Skip to main content

Full text of "judgments of the supreme and other courts of mauritius"

See other formats


Google 



This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project 

to make the world's books discoverable online. 

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject 

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books 

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover. 

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the 

publisher to a library and finally to you. 

Usage guidelines 

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the 
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing tliis resource, we liave taken steps to 
prevent abuse by commercial parties, including placing technical restrictions on automated querying. 
We also ask that you: 

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for 
personal, non-commercial purposes. 

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine 
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the 
use of public domain materials for these purposes and may be able to help. 

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for in forming people about this project and helping them find 
additional materials through Google Book Search. Please do not remove it. 

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just 
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other 
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of 
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner 
anywhere in the world. Copyright infringement liabili^ can be quite severe. 

About Google Book Search 

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers 
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web 

at |http: //books .google .com/I 






/ 



/ 






-••■ 



\ 



,- 1^t>a 




,....<<■ 



JUDGIIENTS OF THE SlIPREHE AND OTHER COUR 



OF 



/ 



MAIIRITIIIS, 



EDITED 



BY A. PISTON, ATTORNEY AT LAW. 



BAKKROPTCY COURT. 



»» 



Cession db Biens, — Demande en libebation 
depinitite. 

JLa Oour n^accordera de decha/rge et liberation defi» 
nitive au dehiteur qui a fait une Cession de hiens 
qiishrsque ce dernier prouvera gue ses dettes 
8ont le risvJtat de circonstances entierement en 
dehors de son controle, 

Oelmgui a achete une Propriete Sucriere en comp* 
iant stir les produits de cette propriete pour payer 
une majeure par tie de son prix n*est point doMs 
Us conditions voulues par la loi pour ohtenir de 
la Oour tme lihdraUan definitive. 



-^ 



>C£S0io BoKOBrM,— Motion fob a full bis* 

OHABOE. 



The Court mU not grant a full discharge to the deb* 
tor who has made a Oessio Bonorum, except 
when the latter shall prove that his misfortunes are 
due to eircuTnstanoes beyond his control, 

Apo/riy who purchases a Sugar Estate » relying on 
the proceeds thereof to pay a large portion of hie 
purchase pricCf is not within the provisions of the 
Local Lam to obtain from the tkmrt a full diS" 
cJiargeof his debts. 



Cbssio Bonobttm Adbien FADUIL 



Before : 

The Honorable Leon Abnattd, Acting 

Puisne Judge. 



L. EoriLLABD, — Of Counsel for Petition 
J. BoTJCHET, — Petitioner's Attorney. 



Ath June 

This is a Petition praying for the full die 
by a debtor, of all his liabilities. The Pe 
was a Planter, who, it appears, had be 
cessful on a small scale and had realize< 
tain sum of money, as a Planter. He alt( 
position and purchased^ a Sugar Estate 
proportion of three fourths for himself, 
transaction he invested the money he had 
as a Planter at '^ Trois Hots '* and which 
^ iDkerited ; some thirty thousand dollars 
ther. In this transaction he lost all he 1 
appeared before the Court, for a Cessio Bo 
with liabilities to the amount of $BSfiOO, 

Under these circumstances I am of < 
that the application cannot be granted. 

The law which allows a debtor to obtai 
the Court a full discbarge, lays very sti 
conditions to the granting of socb a dlM 
and its provisions are so named, that it la] 



ft 




DECISIONS OF THE 



[1869 



the debtor the obligation of provinof much more 
than his bonestj, but such a condition of things, 
such a concatenation of facts that, from them, the 
Court cannot but infer that his misfortunes are 
due to circumstances beyond his control. In 
this case the Petitioner bought an Estate wUich 
he had not the means of paying and he relied for 
the payment of the larger portion of his price, 
upon his skill as a Planter, upon his future pro- 
spects as to amount of crops, sale-price of pro- 
duce and on the absence of unforseen contin- 
gencies. 

This was a speculation, one which may be 
very common in this country and may possibly 
be made under very safe conditions sometimes ; 
but clearly, a man Mvho incurs a debt which he 
cannot presently pay, but undertakes to pay out 
of the profits which he expects to derive from 
the object he has purchased, makes a speculation 
and it is difficult to say that a person who spe- 
culates and borrows money on the success of his 
speculation, has in bis favor a reasonable and 

f>robable ground. One thing it is to make a very 
egitimate speculation, and honestly to work for 
the fulfilment of engagements taken under it ; 
another thing it is to incur a debt which on ex- 
pectations resting not upon future and prospec- 
tive, but some real and substantial means of 
I)ayment from which he may be frustrated by 
osses beyond his control. 

This is not the case here, and however satisfied 
I am, that the conduct of the Petitioner has been 
straight forward and honest, yet I am of opinion 
that he incurred debts on expectations which 
were too far removed firom him to form the basis 
of reasonable calculations, and that, moreover, 
his losses are partly attributable to unskilful ness 
in the manag|ment of the concern in which he 
h&d invested his capital, that is, the management 
of the Estate Trots Cascades. I therefore refuse 
to grant the Petitioner a full discharge of his 
debts. 



BANKROPTCT COURT. 



Cesbioit de Biens, — Appel d'un Jugemei^t nu 

JUGB-COMMISSiOBE. 

La Oour rCaccordem de decharge et liberation defi- 
nitive au dehiteur qui a fait une Cession de 
Mens que hrsque ce dernier protivera que ses 
dettee 9ont le restdtat de drconstances entiere^ 
ment en dehors de son controle. ^ 

CkH/ui qui a achete une ProjprieiS Sucriere en comp' 
tant sur les produits de ceite propriete pour pa^ev 
une majeure paHie de son prix iC est point dans 
les conditions votduespar la loipour ohtemr de la 
Cour une liberation d^itive. 



Cessio .BoiroBTTM, — ^Appeal ebom a Jiri>0M£ir!F 

or XHB Jl^asOOMMISSIONEB. 

The CotHirt wiU not gra/nt a full discharge^ to (he 
debtor who has made a Cessio Bonorumy except 



when the latter shall prove that his misfortunee 
are due to circumstances beyond his control. 

A party who purchases a Sugar Estate, relying 
on the proceeds thereof to pay the large portion 
of his purchase price is not within the provisions 
of the Local Loajo to obtain from the Courts afM 
discharge of his debts. 



Cessio BoNOKU^r Adbiek FADUILHE. 



Before : 

His Honor Sir C, F. Shaitd, Chief Judge, and 
His Honor Mr. Justice Colin. 



Hon. H;. Kosnig, — Of Counsel for Petitioner, 
J. BoucHET, — Petitioner's Attorney. 

Idth February 1869. 

On the 4th June last, the learned Commis* 
sioner in the Court of Insolvency below, found 
the Petitioner entilleH to the benefit of a dit)char« 
ge under Ord : No. 23 of 1856, on his granting 
an assignment of all his real and personal estate 
and effects for the benefit of his creditors, in 
common form. 

The effect of this decree was to protect the 
Petitioner, as usual, from personal execution 
for his debts ; but a full and absolute discharge 
of all his liabilities, under Ord : No. 14 of 1864, 
was refused by the Judge. 

The Decision of the learned Commissioner, 
so far as it did not ^ive this full and complete 
discharge, was brought under revision of the 
Court by the present appeal. 

It appeared from the Balance Sheet of the 
Petitioner, that his debts and liabilities amoun- 
ted to $ 88,814.35 c. while hi^ assets, including 
the price of his real estate sold by forcible eject- 
ment, reached the sum of ^ 66,950. leaving a 
deficiency of ^21,864 35 c. Neither the offi- 
cial assignee nor any of the Creditors appeared 
before the Court to oppose the appeal, while 
some of ,the Creditors with claims amounting 
to $ 6,^89.11 c, consented to give him a full 
discharge, so far as they were concerned. 

Tbb Hon: K(enio. for the appellant. I am 
quite aware that before I can succeed iu my 
demand, 1 must satisfy the Court not only of 
my clients good f iith and honesty in all that 
he has done, but also that he has established 
by proper proof all the requisites of the Ordi- 
nance No. 14 ol 18G4 which, for the first time, 
introduced the principle of full and complete 
discharges in actions of Qessio Bonorum. No 
one has contested the honorable conduct of Mr. 
Faduilhe. No creditor has opposed him, and in 
fact, he has got the usual discharge from the 
chance of imprisonment from the JTodge Com- 
missioner, which could not have . been granted 
unless the Petitioner had established his perfect 
honesty and good faith. 



1869] 



COURTS OP MAURITIUS. 



Eormerly it was impossible, ia actions of tbis 
description to get a full discharge, altbo' insol- 
Tent traders were in more favorable position, but 
the Iftw was changed in 1864 by Ord. No. 14 of 
the year. (Reads Art. 14 of the Ordinance.) I 
submit thnt the Petitioner has proved all the 
points of his case. 

There was no commencement here with fictitious 
capital, for ^30.000 were paid down of the gross 
sale price of the Estate, which the Petitioner pur- 
chased. To insist that the whole sale price should 
be paid is not the practice in this Colony. Such 
a thing never occurs. In the circumstances in 
which Mr. Faduilhe stood he had certainly a 
reasonable hope of paying the whole price, for 
the witnesses examined on his part, among 
others the Honorable Mr. Arbutbnot and the 
Hod. Mr.^ Pitot, concur in staling that he culti- 
vated the Estate with much diligence and assi- 
duity ; that his personal expenses were small ; that 
his want of success arose from the difficulty 
of working a new Estate without good roads ; 
that he was unfortunate as regards the health of 
the animals on the property, and some of the de- 
pendencies of the property were accidently burn- 
ed down during his occupancy, to his great loss. 
I submit that all the elements required by law 
for a full discharge concur in this case, and that 
the law would become a dead letter if a discharge 
were not granted. 

THE COURT. 

The proceeding by way of Cessio Bonorvm 
which has been borrowed from the Roman Law 
by many countries, for the relief ot insolvent 
debtors, does not confer on the Petitioner when 
he is successful an absolute discharge from all 
his debts and liabilities. It merely protects him 
from imprisonment. It lays upon him, in the 
first place, the burden of shewing that his in- 
capacity to pay his creditors has arisen from mis- 
fortune, and not from any fraud or misconduct 
on his part. Thus, in the law of Prance from 
which we have directly drawn our '* Cession des 
Biens," it is declared : C. C. Arts. 1268, 1269 et 
1270. 

1268. '^ La cession judiciaire (and that is the 
species of " cession de biens" with which we have 
here to deal) *' est un benefice que la loi accorde 
'' au debiteur malheureux et de bonne foi, auquel 
^* il est permis, pour avoir la liberty de sa per- 
'* 8onne,de faire en Justice, Pabandon de tons ses 
'' hi ens ^ ses creanciers, nonobstant toute stipu- 

, •' lation contraire.'* 

1269. '' La cession judiciaire ne conf^re point la 

^propri^te aux creanciers ; elle leur donne seule- 

ment le droit de faire vendre les biens a leur 

profit, et d'en percevoir les revenus jusqu'^ la 

vente." 

1270. " Les creanciers ne peavent refuser la 
cession Judiciaire, sice n'est dans led casexceptes 
par la loi. 

*' Elle op^re la dMfarge de la contrainte par 
irj corps." 

if { '^ An aurplas, elle ne libera le d^bitear qae jus- 

I 



qu'k concurrence de la valeur des biens f 
nes ; et dans le cas oti its auraient ete ins 
s'il lui en survient d'autres, il est oblige 
abandonner jusqu*^ parfait paiement." 

By the Ordinance No. 14 of 1864, a 
was introduced into our Law. By § 14 
Ordinance, it was declared that the Co 
grant a full discharge of all the Petit one 
prior to the filing of his Petition, on th 
vent satisfying the Court that he did n 
on his business by means of fictitious 
that at the time when his debts were co 
he had a reasonable or probable ground c 
tation of being able to pay the same ; tha 
solvency is not attributable to rash or hi 
speculation or to unjustifiable extrava^ 
living or to gambling, and that he has i 
guilty of any fraudulent devices in relati< 
afiairs. 

It will be observed that the pow« 
to the Court by this new law is merely 
sive, and that the whole and very oneron 
of establishing the position in which, al 
discharge can be granted is laid upon t 
tioner. 

It will be remarked, further, that th 
ments on this subject, by the above seel 
very special and very stringent : nor is t 
wondered at. The Petitioners in Cessi 
rum are not at all in the same situation 
chants and traders. The Law imposes i 
latter class of persons obligations as to 
duct of their affairs, among others the k( 
certain business books, the striking of p 
balances, and the observance of the 
rules of commercial dealing. From tl 
er or the party not engaged in t 
whom the relief by-way of Cesdo 
is open, the law has not been so exact 
therefore, unless the c^se falls within 
special circumstances set forth in the Ai 
Ordinance above quoted, no full and 
charge of all his debts can be granted. ] 
plainly, not be reasonable that a Plante 
be allowed to speculate deeply in a Sugj 
with the money of other persons and 
prospect that if his speculation did U't 
he should nevertheless get a full dischs 
be quit of all his debts, and belittle \ 
than before. Now, was there speculatic 
present case and was that speculation 
and hazardous character. 

It appears to us that it was. The ( 
the Petitioner was certainly not fictitio 
sense that he had no capital at all, for, 
ediy, he invested in this sugar plantati 
^80,000, but the whole price which h 
himself to pay was much \ greater and, o 
over and above the price ; large additioi 
were required for the working of the 
These, of necessity, had to be borrowed 
upon the produce of the Estate, as the s( 
he had to enable him to liquidate his 
'was, certainly, bearing in mind all th 
gfincies- to which sugar growing is e; 
very hazardous experimen t. may 1 
true that such experiments are ver^ '<^^ 
in this ColoTi'^ , W\.'\\.\^%Q^^1 *^^>^^ 



DECISIONS OF THE 



[1869 



yetf rarely Bucceedt and we are satisfied that the 
legislative never intended that a full discharge of 
dl his debts should be given to a Petitioner who 
JuA made a great venture or speculation in the 
IKkltivation of sugar, whose success depended so 
"Jllich upon the chance of happy accidents, en- 
^ely beyond his own control. We do not, 
therefore, think that such a case is within the 
law for a full and final discharge, and this ap- 
peal must stand dismissed. 



SUPREME COURT. 



FoLLE BKCHiBB,—DBPdT,— Caution. 

Vacquereur d^un Immeuhle, vendu par vote de Id' 
citation d&vant le Master de la Cour Supreme^ 
86 trouvant menace d^evictUm par une nouvUe 
vente du meme Immeuhle, poursuivie par voie de 
FoUe Enckere contre les parties entre lesquelles 
a ete poursuime la Zicita^ion, a ohtenu de la 
Cour la restvtuiiou de la somme qu*il a/oait dS* 
pos4e deoant le Master^ lors de son adjudication^ 
sauf a dormer caution pour les comptes qu'il 
pourraii avoir a rendre en raison de la jouissance 
qu^U a eue du dU Immeuhle^ dujewr de Va^'udi- 
cation iranchee en sa favour* 



"FOLLB EKCHiSE,"—- D£POSIT,^»SsCi;ilITY. 

Tie ptMTchaser of cm IrnmoveaMe Property sold hy 
way of Idcitation before the Master of the Su- 
preme Court, heinq exposed to eviction on account 
iff a new sale of the same property prosecuted by 
way of **FoJle JEnch^re*' aminst the parties to the 
first Idcitation f has been mhwed hy the iSupreme 
Court to claim bach the amount of his purchase 
price deposited by him ai the office of the Master^ 
on the day of the sale, but stibject to his givinq 
security for amy accounts that he may be ordered 
to qive in consequence of his having received the 
(jroceeds of the Estate from the dc^ of his pur' 
chase. 



MALLET,— Appellant, 



versus 



HABEL & Oss«, — Hepondents. 

and 
OASTILLON^-AppeHant, 



versus 



HABEL & Ob8.|— Bespondemts. 



Before: 

His Honor Sib C. F. Shaio), Chief Judge, and 
His Honor Mr. Jitsiiob Coun. 



E. PjELLEBBAir, - 

J. Mebcieb, 
Hon. L. Abnaitd,- 
W. Hewbtson, • 

Q-. GUIBBBT, 

E. Lattbbnt, 



-Of Counsel for Appellant, 
-Appellant's Attorney, 
-Of Counsel for Bespondents, 
-Bespondents' Attorney. 
Of Counsel for Castillon. 
-Attorney for same. 



19th February 1869. 



By a Judgment of this Court, under date the 
24ith December 1868, affirming an Order of the 
Master, of 5th October 1838, it bad been held 
that Antoine Mallet, a creditor holding an un* 
paid '* Bordereau de Collocation " upon the price 
of the Estate FontenelU'f sold by Licitation and 
adjudicated to one Leonard Castillon, had the 
right to cause the said Estate Fontenelle to be 
resold by '^ Folic Enchere,^^ and was not barred 
from BO doing by the fact that Arthur Harel had 
purchased the same Estate upon the forcible 
ejectment of Leonard Castillon, for a sum small* 
er than Castillon was bound to pay. 

The ultimate result of that decision being that 
Harel would be ousted from the Estate, Harel 
applied to the Master for an Order whereby a 
clause would be inserted in the conditions of 
sale, to the effect that the sum of money depo- 
sited by Harel, at the time of his purchase part 
of which had been paid over to the sequestrator 
of the Estate, should be paid back to him by the 
new purchaser, upon the FolU Enchere. 

Harel had been in possession of the Estate 
since 18th September 1867 ; the day after he 
purchased and had received two crops ; and be^ 
fore the Master, Mallet and Antoine Castillon 
objected to Harel's application upon several 
grounds which the Master's decision reviews. 
The Master, on the 7th January last past^ grant* 
ed Harel's prayer and ordered that a clause 
should be inserted in execution of which the 
purchaser of the said Estate should be bound 
to reimburse cash, and at the very time of 
the adjudication, to Arthur Harel, the sum of 
^14831 67 c. being the. difference between the — - 
sum deposited by him and that now remain* 
ing in the hands of the Master. The Master 
further leaves to Mallet the power to pro^ 
ceed, when he shall think proper, to the Foll^ 
Enchere of fjeonard Castillon to pray for subroga4 
tion into the proceedings begun by Mallet. Thef 
Master then proceeds to order that Harel's costsV ' 
shall be paid i by himself and i bj Antoine MaUf 
let, Antoine Castillon and the heirs Yaudi^res.^ 



Against the Master's Decision, Mallet has ap- * 
pe^ed : 



Antoine Castillon has also entered a separate 
appeal ; we now deal with the appeal entered by 
Mallet, to which Castillon is a party and in the 
disenssion of which he took an active part, essen* 
tially on the same side as Mallet, 

In this Court Eugene Bazire intervened for 
Emile Bazire, also a collocated creditor of L^o* 
nard Castillon and joined Mallet &c.« Ac* 

It seems to us that a good deal of the argu* 
ments laid before us on behalf of the Appellant, .is 



^ 



\ 



1869] 



COURTS OF MAURITIUS. 



premature and whatever may be its value, when 
the question of accounts or no accounts to be given 
by Harel arises, and of such value we give no 
opinion, it has no application in the cause as it 
comes up to us. 

The main point insisted upon by the Appellant, 
before the Master and before us, is this, that al- 
though the sale to Harel being annulled by the 
Folle Enchere^ Harel ought to be reinstated in 
the position he held before the sale ; yet as he 
has received the produce, of two successive crops, 
he ou^ht to account for those crops before he re- 
ceives his money back. 

That argument would necessarily raise the 
point of HarePs good faith ; because if he was 
of good faith during his tenure and user of the 
Estate, he has not to account for his produce. 
But that question of accounts did not arise before 
the Master ; it could hardly arise before the sale 
to Harel was actually annulled by the operation 
of the complete Folle FJnchere ; it would not arise 
at all if the inchoate proceedings for Folle Eti' 
chere were given up. 

And therefore we find that, before the Master, 
the Appellant Mallet reserves his rights to bring 
an action for accounts ; • therefore the claim is 
not embodied in the defence to the application 
made by Harel ; therefore we caniiot deal with it ; 
therefore we are left in this position, an usual and 
elementary position in cases of cancellation of 
sale, that if the Estate is taken way from the 
purchaser, by the aunullation of the contract, 
the parties to the contract ought to be placed in 
the same position that they held before. 

I^rima facie, therefore, if Harel is compelled to 
give up the Estate, his money ought to be return- 
ed to him. 

The rule of law is that if damages be due for 
degradations, for instance, or if the vendor be en- 
titled to obtain damages on account of unpaid in- 
terest upon the unpaid purchase price, such da- 
mages should be set-off against the sum which is 
to be reimbursed to the evicted purchaser. It 
would be hard upon tkcutgndor if the purchaser 
enjoyed, at the same tmi^lhe fruits of the Estate 
and the interest of the unpaid price of the Estate, 
and the Courts have power, says TfiOPLONa, 
Vente : II p. 126 " de venir au secours du ven- 
deur et de r^tablir le niveau entre les fruits et 
les interets." 

But to decide a question of this kind, now, 
would be going ex-via ; for the main point out of 
which all secundary points will arise, the good 
faith or bad faith of the purchaser Harel, and 
therefore his liability or non liability to account 
.for the "fruits," deducting expenses, is first re- 
served by the Appellant in his exceptions, and 
then reserved by the Master. 

If Harel be held, when the case arises, to have 
been of bad faith, he is liable to account for the 
fruits, and the question of interest falls to the 
ground ; if he is held to have been of good faith, 
the question of interest due may or may not then 
arise, but it has not arisen and cannot well arise 
90 long as the parties have reserved and stand by 



these reserved rights of trying the firsi 
in a special action. 

"We were pressed by Mr Pellereai 
learned counsel who sided \<rith him, 
the question of good faith, on the gr 
Harel well knew that a Folle Enclvere n 
him out of the Estate, but on MrJP 
own statement, before the Master, we i 
deciding ultra petita if we entered into 
tion. It may be a matter of regret 
Court is not in a position to decide 
matters, finally; but we cannot alter, 
good cause, the position assumed by th( 
and we find no good cause for altering ii 

It was also urged witfi what may b( 
nimia suhtilitas that the sum of mono 
the sequestrator was advanced by tie s 
tor, to keep up the Estate, and therefore 
of the expenses of the Estate and shouh 
sidered as one of the items of the ^ecou 
Harel may be called upon to give. \. 

We cannot sustain this theory ; if B 
an account to give, that account must b 
user of the Estate, and beginning from 
when he took possession ; the sum paic 
sequestrator was a privileged claim w 
the conditions of sale, he was bound t( 
before he received the seizin of the I 
bought, which he paid in obedieiice to tl 
tions of sale, . as he would have, paid 
made, by such conditions, payable, as ai 
dent condition to taking possession ; it 
part of his administration j it is true 
Estate thus kept up by the sequestrator 
to yield a crop, which Harel realized so 
his seizin ; but, on the other hand, a p 
who buys an Estate with a crop, will gi 
money for it than for the same Estate v\ 
crop, and, at any rate, all such consi 
cannot change the nature of the claim 
Harel as a condition to his purchase. 

"We have no doubt, either,that the sequ< 
claim was rightly made payable, as a p 
claim by the conditions of sale; but whetl 
ly or Wrongly made payable, as a matte 
it was made payable, no one objected, n< 
pealed against the Judgment of adjudica 
if Harel is now evicted, he ough to rece 
a sum thus paid as part of the considen 
the purchase of the Estate," which is nc 
taken away from him. 

# 

A case was cited (JJegros v. Syndic 
S. V. 33.1.C69, in which a vendor wa 
ed not to repay to the purchaser i 
he had received on account, inasmuch as 
chaser was bound to make good the de 
value suflfered by the property sold, an 
authority of that case we were asked 
the confusion between sums due by H 
the fruits by him received as for interes 
case might be, and the suma to be reimt 
him upon his eviction. 

"We entirely concur with the law laid 
that case, the force of which is, eviden 
the Court will suffer no injustice to be 
a vendor, from a false application of a ru 



6 



DECISIONS OF THE 



[1869 



Here, the vendor was allowed not to pay back at 
OQce the sum he had received, because it was 
clear that there had been '* d^tournement, en- 
levement de portion des efPets et marchandises 
faisant I'objet de la Pharmacie,*' and that, there- 
fore, saying the actual amount of the sum due 
on that account by the purchaser to the vendor, 
it was proved that there was something due, 
proved also why it was due by the purchaser to 
the vendor. 

There, agaio, the purchaser having been ad- 
judicated a bankrupt, it would have required a 
stern rule of law to compel the vendor to pay a 
Bum of money which had by the operation of 
confusion been disci) arged '* jusqu'^ concurrence" 
says the Judgment. Here the facts we find in 
that Judgment do not exist and would not war- 
rant a similar conclusion. But that decision 
shows that cases may arise and have arisen when 
the repayment by the vendor of au estate, who 
obtains the cancellation of the sale of the por- 
tion of the purchase price which he had re- 
ceived, may be delayed until it has been as- 
certained what part of the same he may retain 
as a set off to his claims . upon the purchaser. 
But this rule, like ail exceptional rules, roust 
depend upon special facts and will usually be 
made to operate under reasonable conditions. 

In this case the Appellant has reserved to him- 
self the right of bringing an action of account 
against Harel ; according as that action will be 
successful or not, Harel will have to account for 
the fruits ; the question of interest whether as 
interest proper or damages for having enjoyed at 
the same time the fruits of the Estate, and the 
interest on the unpaid portion of the purchase 
price, will be a matter for the consideration of 
parties, but can hardly arise until the reserved 
action is tried or given up. 

It was suggested by the Eespondent that 
there was not enough there to lead the Court to 
vary the Master's order, and that Justice should 
be fully satisfied if Harel gave security to make 
good any sum which he might be found liable ; 
and under the circumstances we think the sug- 
gestion good. 

Taking it as a broad and distinct rule that the 

fmrchaser who is evicted by resolution or cancel- 
ation of sale, i. e- by the annuUation of his con- 
tract, ought, whilst giving up the Estate, to re- 
ceive back the money he has received, (for other- 
wise the parties would not be placed in the ori- 
ginal position in which they stood before the 
contract) we should require strong facts like 
those in the case just now commented upon to 
delay execution on one side, whilst it takes 
p^ace on the other side ; and we find no such 
facts here ; but, at the same time, we think there 
is enough to show that Harel having on the one 
band received crops, and, on tho other, having 
not paid a large portion of the purchase 

Erice, it is perfectly possible that he may 
ave something to repay for the ultimate 
benefit of the creditors secured on that Es- 
tate. And it is but fair that whilst receiving 
at once the money he has paid, he should give 
security for the money he may have to pay. The 
contingency is too remote to delay repayment to 
him, but not too remote to order that security 
be given. 



We wish clearly to be understood to give no 
opinion as to whether Harel is liable to give ao« 
counts, or whether should he not be liable to* give 
accounts, he is liable or not liable for interest 
under one name or another name. These questions 
have not arisen and although it has been ne- 
cessary to glance at them in order to exhaust 
the case now before the Court, we do not give 
and we are not in a position to give an opinion 
upon them. 

We shall therefore affirm the Master's order, 
with this proviso, that Harel do give good and 
sufficient security to the satisfaction of the Mas- 
ter, to the amount of <S^14,831.57 to meet all 
claims to which he may be found liable and 
arising out of the adjudication of the Estate 
Fontenelle to him, as the consequences thereof. 

We reserve to the parties the same rights that 
the Master has reserved to them. 

We think the costs in this Court should go as 
the Master has directed, they should be paid be- 
fore him, except so far as the intervening party 
Bazire is concerned. We admit this interven- 
tion, but he shall have to support personally the 
costs of such intervention. 



SUPREME COURT. 



LiBELLE, — OaLOMNIE, — ACTION lES DIFFAMA.^ 
TION, — EeTBACTATION, — JOUENAUX, — BaELE, 
L0T£BIE,~D0MMAGES. 



Libel, — Slandeb, — Action for depamatiok,— 
Apologt, — Newspapeb, — Batple, — LOT- 
tebt,— Damages. 



BOULAN&EE,— Plamtiff, 



veriU9 



LAFFITTB & Obs.,— Defendants. 



Before : 

His Honor Sir C. E. Shaitd, Chief Judge, and 
His Honor Mr. Justice Besteii. 



L. Bouillabd, 

Gt. A. BiTTEB, - 

W. Newton, - 
H. Bebtik, 



Of Counsel for Plaintiff. 
-Plaintiff's Attorney. 
-Of Counsel for Defendants. 
-Defendants* Attorney. 



21 8t AprU 1869. 



The facts and arguments of parties are fully 
stated in the Judgment of the Court. 

Sir C. F. ShaiO), C. J.— In this action the 
Plaintiff Aristide Boulanger, professor of music 



1869] 



COURTS OF MAURITIUS. 



in Fort Louis, complained of certain passages in 
the FeuUleton of the Gommercidl Qazette of Mau- 
ritius, bearing the date of the 5th October 186^^ 
but published on the day preceding. 

The Plaintiff averred that portions of the 
article in question were a libel on his good name 
fame and character, and he asked £1,000 as da- 
mages in reparation for the injury which he said 
he had sustained from the publication in ques- 
tion. The parties called as Defendants in the ac- 
tion were Jules Lafitte, Cashier of the said news 
paper and the admitted author of the article 
containing the words complained of ; Mrs Francis 
Channell printer and proprietress of the paper; 
and her husband Francis Chaunell for the yaiidity 
of the proceedings and the authorisation of his 
wife,and also in his capacity o{ Editor of the paper. 

The libel was in the French language, and in 
English reads as follows : 

" I shall not"here renew the praise so often and 
" so justly lavished on our creole pianist. 

*^ At first sight one sees that he possesses his 
'* piano. 

*• An ill tongue, —Is it the one that was put up 
'' for raffle ? 

" J.— ^Who is that imprudent babbler ? 

" — You speak of his piano, I ask whether it 
*' is the one that was three years ago put up for 
* raffle and which is not yet drawn altho' $800 
" worth of tickets have been paid cash. 

" — • Away with you, venomous viper, the- raffle 
" has been drawn and the piano won. 

" — But there it is. 

" — For this reason ; that the party who won 
*^ it made a present of it to our pianist and I 
" would have done the same. 

" — Strange ! and who is that modem Me- 
** coenas ? 

" — Ah Sir, you are getting indiscreet — please 
" apply elsewhere." 

The Plaintiff averred the following Inuendo or 
Cleaning and intention of the Defendants in the 
fiaid publication. By this false, scandalous, mali- 
cious, and defamatory libel the Plaintiff was 
and is exhibited to the public, first as having 
under the false pretence of the raffle of the said 
' piano, raised a sum of eight hundred dollars 
cash and in the height of dishonesty as never 
having drawn the said raffle ; and secondly as 
haying had the said raffle drawn in some sham 
and spurious manner, and yetbei^gin possession 
of the said piano, it having been presented to him 
by i9ome unknown party alleged to have won the 
same at the raffle. 

In answer to the Plaintiff's demand, the De- 
fendants put upon record the following pleas : — 
let. That they deny all the facts ; 2o. That the 
said Plaintiff has no legal cause or right of action ; 



3o. That the Defendants are not guil 
grievances laid to their charge or any 
io. That the Plaintiff has suffered no d 
alleged ; 5o. And for a further plea, tl 
dants, protesting th&t they have nevei 
published wickedly or maliciously th< 
libel laid to their charge ; that on or i 
fifth day of October last past they hone 
blished in the Commercial Gazette the \ 
above complained of, which is nothing 
echo and almost verbatim reproductio: 
rious reports and rumours then and tl 
long** before current among the public 
Louts and to whicTi l;he said Plaintifl 
i^Cttf or indirectly given rise, by u] 
making a raffle 61 the aforesaid piano 
looting money upon the said raffle, wl 
kept several years without being dra 
by keeping the piano in his possession 2 
raffb had been drawn, without giving \ 
proper notice to every interested party 
raffle was being drawn or had been drawi 
sorting that an alleged proprietor of a c£ 
tablishment had won the said raffle and 
present of the said piano valued at a 
dollars to him the said Plaintiff, and furl 
as soon as they, the said Defendants, \ 
formed that such publication had giver 
to the Plaintiff they offered a suitable, pi 
sufficient explanation and apology, and 
did publish a proper and suitable explan 
apology to show that they had no int 
publishing the said feuilleton to publis 
against the said Plaintiff. 

Both parties led evidence at con 
length. 

Throwing aside some subordinate deta 
do not bear on the present enquiry, tl 
rial facts for disposing of the case may 1 
as folio v(S : 

The Plaintiff Boulanger was formerly 
chant in Port Louis. Some years ago 
his affairs became embarrassed and he 
into arrangements with his creditors, ui 
Control of the Court of Bankrupcy, wh 
agreed to pay them a certain percentage 
debts, by instalments running over a p 
several years. 

In the end of the year 1865 or begii 
1866, Boulanger put out a written circul 
out date, stating that a grand piano fori 
at ^1,000 was to be raffled for ; the tick 
to be 100 in number, and to cost <^10 
the raffle was not advertized m the publ 
nalsof the Colony, but Boulanger and hi 
were very active in procuring subscriber 
was shewn that in several instances perso 
ing on the Flace or in the other public 
of Fort Louis, were soUicited to take tick 

We have it in evidence that raffles of i 
cription are very common in Mauritiu 
witness describes them as a sort of little 
another stated that some people live b] 
and there seems no reason to doubt thi 
occasionally those lotteries are employed 
rit^ble purposes they are sometimes m 
texts for raising money, the subscription! 



8 



DECISIONS OP THE 



[1869 



ceived and pocketed, but the raffle remains un- 
drawn. The lottery of the Plaintiff was very long 
in comiDg to a conclusion. The full number of 
Bubscribers was not obtained. On the 17th Oc- 
tober 1867 a jocular refereni^e was made to the 
great delay, in the Sentindle newspaper. But the 
raffle was not drawn till the 8th Jauuary 1868. 

Due notice had been sent round to all the subs- 
cribers, some 80 in number who had paid their 
subscription of ^10 each. The drawing took 
place in the presence of a number of the persons 
interested, and a M. Pierre Justin Elorent, the 
owner of a carting establishment, in Port Louis, 
gained the piano, but the instrument was not re- 
moved from the possession of Boulanger. Florent 
says that this arose from his drawing room being 
too small to hold it. He adds : " I told Boulanger 
that I would see if I could not have the piano 
exchanged for a smaller one or sold, and as he was 
an artist be might keep it in the meanwhile if the 
piano was not in his way and use it. Boulanger 
told me that he had two other pianos and if one 
of them suited me, he might make a bargain with 
me ; offers were made to me by several persons 
to purchase the piano. I do not remember their 
names now. I met Boulanger once or twice af- 
ter that, I never spoke to him about the piano. I 
never claimed that piano. I never asked delivery 
of the piano from Boulanger. I sold the piano to 
Boule who was acting for some one — this was in 
the month of November last, 1868." 

Boulanger on the other hand maintained that 
Elorent had - made him a present of the piano. 
There is, we think, considerable grounds for be- 
lieving from the evidence before us that Florent 
when he had gained the prize had spoken to the 
Plaintiff as an artist in complimentary and flat- 
tering terms. That the Plaintiff understood more 
than was meant is probable enough, for to the last 
he clings to the notion that Florent had made 
him a present of the piano and even insisted that 
this should appear in the public apology which 
he asked from the Defendant for the alleged libel, 
and which, as we shall see by and by, Boulanger 
would allow no one but himself to dictate. 

Time passed on and it appears that although 
the raffle had been actually drawn as above men- 
tioBed, rumours were still afloat that the Plaintiff 
Boulanger had received ^800 of moneycash.down, 
for tickets, bat had never drawn the raffle. 

He gave a public concert in the month of Octo- 
ber last. The piano was still in his possession. He 
performed upon it at the concert. The Defendant 
Laffltfee was present, and seeing the piano there, 
he asked one of the witnesses if it was the same 
instrument which had been put up for raffle, and 
was informed that it was. 

It was immediately after this, that the feuille- 
ton complained of appeared in the dmimercicd 
Oazette. Boulanger considered himself as deeply 
injured by the publication, and called for a re- 
tractation. 

Both parties met with their friends regarding 
the terms of the apology, which it was then ad- 
mitted on all sides, Laffitte ought to make in 
some shape or other as he had ascertained since 



, the publication of thefeuilleton^ that the raffle had 
been fairly drawn 9 months before. Boulanger 
would accept of no other apology than the one 
written by himself, in which the Defendants were 
made to confess not only that the raffle had 
been properly drawn, at a meeting of the sub- 
scribers regularly called, but that Mr. Florent, 
the gainer, had made a present of it to Boulanger 
and consequently that the statements in the feuih 
leton were due to malevolence and calumny, and 
the Defendants humbly asked him (Boulanger) 
to accept their excuses both so far as the raffle 
and his own personal character were concerned. 

The Defendants refused to accept and pu- 
blish this apology, but in the number of the 
Commermercial Gazette issued on Saturday the 
10th October, there appeared a note of the Edi- 
tor stating that a formal Notice had been re- 
ceived from Boulanger, calling for a retracta- 
tion of the statements in the feuilleton ; that 
the Notice had been sent to the author of 
the article who had replied in a letter which 
was printed below, stating that : *' in presence 
of the Notice received from Boulanger, it was his 
duty to free the Editor from all responsibility 
of the action, that he could not give a retracta- 
tion in the terms asked for on the other side, 
but that before the case is heard in the Court 
he owed an explanation to the public. That this 
explanation would be found clearly and distinctly 
set forth in a letter which he sent to the Editor, 
on the preceeding Monday, but which he had 
kept back that he might not appear to yield to 
threats, but now that legal proceedings are cer- 
tain the same motive no longer existed and he had 
only one thing to do, viz : to establish his good 
faith to his readers. 

The letter referred to is then inserted, it runs 
thus : — 



" 5th October 1868. 



" My dear Editor, 



'* You informed me that I lit^e been led into 
error in speaking of certaiflN rumours which are 
in circulation regarding Mi. Boultoger's Baffle. 

** In setting m^ right you also set right the 
public for I only repeated *' tout haut, ce qui se 
disait tout has." If I have made myself the echo 
of a rumour which was without foundation, I owe 
it to truth as well as to yourself, who did not 
read my feuilleton before it was published, and 
lastly to myself, to remove the disagreeable im- 
pression (la ficheuse impression) which my al- 
lusions may have caused. 

'* On receipt of your letter, I lost not a moment 
in obtaining precise information and the result 
is that the raffle of which I spoke has been re- 
gularly drawn. 

" On principle I only speak what is true. Those 
who know me cannot doubt this ; accordingly I 
come forward, of my own free will, frankly and 
fairly to acknowledge the errors in the rumours 
which I mentioned, rumours which still circulated 
even on the evening of the Ooncert, but which, 
nevertheless, were of a much earlier date/' 



1869] 



COURTS OP MAURITIUS. 



The jocular remarks are then added which ap- 
peared in the SenUnelle newspaper of date the 
i7th October 1867, on the delay in drawing the 
raffle of the fametix j>iano a clavier de rechangey 

It is in these circumstances that the present 
action has been brought bj Boulanger, in which 
we have now to give Judgment, 

The case was very fully argued on both sides 
of the Bar, and it may be as well in the outset to 
notice a plea put forward on behalf of his 
clients by the Defendants* Counsel, which he 
called a sort of exception or Demurrer, In a 
discussion of this nature, the truth of the 
charge brought by a Plaintiff is, in the 
meantime, assumed and the argument was of 
this nature. All lotteries or raffle? and games of 
chance said the Defendant's Counsel are prohibit- 
ed by our criminal Code, except the Cov.ernment 
has expressly given its sanction to the parties 
projecting such schemes. Now, Boulanger does 
not even allege that he had the authority of Co- 
Ternment for setting his raffle on foot, and as he, 
therefore, was deliberately breaking the law of 
the land, he voluntarily placed himself in a posi- 
tion of gross illegality and cannot come to a 
court of law, complaining of what the Defendants 
did, as he himself was flagrantly breaking the 
law in the matter in question. 

In this exception of the Defendants, there 
is, we think, a mistaken view of legal prin- 
ciple. It is true that public gaming houses 
and lotteries are generally prohibited by Ar- 
ticles 335 and 336 of our Criminal Code, as 
dangerous to public morality and the well being 
of society. But it does not follow from this that 
raffles or lotteries of a much more private nature, 
and wiih a trifling payment by each subscriber, 
are equally marked with the stamp of illegality. 
At all events, ueither here nor in England does 
the Government usually deem it worth while 
to take notice of such doings. It must not 
be forgotten that lotteries, after all, even in 
their public form were * long tolerated in the 
most advanced communities and are ooly mala 
frohibitay not mala in se. But even were we to 
ftssume that Boula tiger's raffle fell within the rule 
of the Criminal Code and was really an illegal 
thing, thd arguments of the Defendants might 
have had its weight if Boulanger were endeavour- 
ing to call in the arm of the law to aid him in re- 
covering the money promised by the subscribers, 
or otherwise to assist him in carrying out his 
Bcbeme of a raffle. The legality of the project, 
itself, would then be a subject of most material 
inquiry, even if the argument of the Defendants 
as to the illegality of the raffle were well founded; 
this might be a sufficient reason for the autho- 
rities if they were so advised, stepping forward 
and moving for the punishment of the promoters. 

But the question put in issue in the re- 
cord now before the Court, is a totally different 
one. It is not even the case of the Defendants as 
public journalists and for the public good, point- 
ing cot that the Plaintiff Boulanger was breaking 
the law by making a lottery or raffle. It is a 
cli^e of slander brought by the Plaintiff agaioat 
fhe author of what he alleges to be a defamatory 



article in a public newspaper and against the 
proprietor and editor of the paper, as all lia- 
ble to him in reparation. Even were we to as- 
sume for the sake of argument the position 
most favorable to the defendants, vizt : that the 
Plaintiff in the matter in question was '* versana^' 
in illicito and was breaking the law regard- 
ing lotteries, that would give them a right, pos- 
sibly enough, to warn him, that, in their opi- 
nion, he might be infringing the law, but not 
falsely say or insinuate in their journal that the 
raffle was not fairly gone about, that the Plaintiff 
was not acting honorably or in a straight forward 
manner in the conduct of his lottery. Suppose a 
person was actually breaking the laws of excise 
and carrying off a quantity of Rum without a per- 
mit, no one would beentitled with impuniiy to 
charge him with having got possession of the rum 
by dishonest means. It would be no defence in the 
action of defamation to allege that the Plaintiff 
was, himself, breaking the law, in some other res- 
pect ; for, the issue of libel is one totally distinct 
and apart from the illegality laid at the door of 
the Plaintiff. This point therefore raised in limine 
of the discu8sion,and which was not very strongly 
pressed by the Defendants' Counsel, is not we 
think, one, that can successfully be urged by the 
Defeiidants as a bar to further enquiry, here.^ 

* 
"We must now proceed to notice another and a 
very important purt of the argument for the De- 
fendants whii h was pressed with great zeal by 
their Counsel. It was contended that giving 
the article in the feuilleton, fair play, and 
reading it carefully from beginning to en<i, there 
was, really, no libel in it, at all. It was said 
that the inuendos of the Plaintiff are forced 
and constrain* d ; that the whole ti ing is in a 
tone of pleasantry and bantering ; merely put- 
ting in the form of a jocular dialogue the passing 
rumours and gossip of the day ; that tliere is no- 
where a positive assertion that Boulanger had not 
drawn the raffle and intended to pocket the mo- 
ney and keep the piano; that if it had been drawn, 
the fact which was visible to all the world, viz : 
that the piano was still in his posession, is, in the 
feuilleton, ascribed to the liberality of the person 
who had gained it at the raffle, and th s is the 
very account of the matter which Boulauger| 
himself, has always given. No one could deny 
that a very long time had elapsed since the 
scheme of the raffle had been issued : it was bo- 
na fide delivered to the author of the feuills* 
ton that the raffle had not been drawn, and 
the object of the article was merely to give 
a hint that the thing ought to be brought 
to a speedy conclusion. The Defendants sub- 
mitted that it must be particularly noticed 
that at the conclusion of the remarks it is said : 
'* I have only sketched this little picture as a 
study of what is going on around us " 6tude de 
moeurs,'' I have too high an esteem for our zealouB 
artist to believe a single word of this contempti- 
ble gossip." If ic was insinuated, as some readers 
might imagine, from one part of the article that 
Boulanger had not got a present of the piano 
from the owner, that was only the truth, as in fact, 
Mr Florent never presented it to him. The De- 
fendants, here, admitting that they subsequently 
made a retractation^to a certain extent, argued that 
this could not be turned against them ia thi&^%ai\. 



10 



DECISIONS OF THE 



[186» 



of tbe case, as the feuilleton muBt be judged of 
as at its date and as things then stood. In their 
apologf they stated that thej merely wished to 
disabuse tbe minds of the persons who might 
have carelessly or ignorantlj attached more im- 
portance to the article than the Defendants hare 
intended. 

This question of libel or of no libel is, of course, 
an alUitnportant one in such a case as the pre- 
sent. We have not, as in England, the advantage 
of the assistance of a Jury» and we must per- 
form the double dnty of Judges and Juries as 
we best may, now. 

Now, in the first place, we are clearly of opi- 
nion that the words of the '* Feuilleton " must be 
taken in their plain usual grammatical sense and 
the import and meaning of the article must be 
held to be that which an ordinary reader of a 
newspaper would attach to it. The witnesses, ge<« 
nerally, who were examined on this point, have 
stated that the perusal of the article, created in 
their minds a very painful impression. Tr^ey un- 
derstood that the character of Koulanger was 
seriously impeached and disparaged by the Feail- 
ton. Without attaching any undue importance to 
the opinions thus given us by those witnesses, and 
judging of the matter for ourselves, we are of 
opinion that the words used, de prima fade 
amount to a libel; for, in law, every publication is 
a libel which tends to asperse the character of an 
individual, or to expose him to the rid' cule, hatred 
or' contempt of his fellow eitizena. For such a 
T)iiblication,the author and publishers will be liable 
in damages to the injured party, unless they can 
shew that they stood in what is called a privi- 
leged situation, i.e, that they were entitled to 
speak of the matter and of the person alluded tp- 
For example, all public measures and public 
men, in their public capacity, are open to the 
criticism of those around them. But the criti* 
cismB must be founded on facts well ascertained, 
must be fair in tone and temperate in expression, 
and made for the benefit of the public and not for 
the purpose of giving vent to private spites or 
personal dislike. 

But, farther, we should be sorry to hold that 
the Public Press oversteps its sphere of duty 
when it keeps a steady eye on impostors of every 
description, who are attempting to dtjpe and 
cheat the public. But before launching their 
warning against such persons, it is indispensable 
that the writers in public newpapers, should 
make due and careful inquiry into the facts, and 
that the^ should be sure of their ground or at 
least have taken all reasonable means to obtain 
full and accurate information on the subject, 
before using the great power which their position 
gives them, for good or for evil. 

How far the Defendants are entitled to plead 
privilege from their own position or that of the 
Plaintiff, and how far they may be able to excuse 
themselves altogether or extenuate their conduct 
in the actual circumstances of the case, we shall 
now proceed to enquire. 

The Defendants contended that as public jour- 
nalists, it was not only their right but their duty 
10 animadvert upon all matters of public concern 



or in which the community are interested; That 
Boulanger's BafEle was really a public one and 
that all raffles were prohibited by law (6 Geo. 
4. C. 60); that raffles and lotteries were becoming 
quite a nuisance in Mauritius; that rumours were 
rife among the community and reached the De- 
fendants, even from persons who pught to have 
been the best informed, that Boulanger never 
had drawn his raffle. That, in point of fact, be 
was found still in possession of the identical in- 
strument at the Concert given by him on the 2nd 
December. 1868 more than 8 years after the cir- 
cular for the raffle had begun to be handed about; 
that they (Defendants) bond fide believed that the 
Baffle had never been drawn ; that they had no 
intention to defame Boulanger, but in the cir- 
cumstances were justified in calling attention to 
the matter in their public Journal. That in se- 
veral late cases in England, the law in favor of 
the Press had been laid down by the Judges, in 
very broad terms, but quite in consistency with the 
progress of free institutions and the interests of 
modern Society. 

Beference was specially made to the summing 
up of Lord Chief Justice Cockburn in the case 
of Himterv Pall Mall Gazette^ in 1866, and to the 
subsequent case of CamvpheU v Spottiswoode (Sa- 
turday Beview.) In the former proceedings il 
would appear that the Jury gave the Plaintiff 
one farthing damage8,being satisfied, the presiding 
Judges having summed up very strongly for the* 
Defendants, that tho* the law had been violated^ 
the conduct of the Defendant was all but com- 
pletely warranted by the facts of the case. la 
the latter case the Jury found a verdict for the 
Plaintiff with £50 damages as the charges against 
the Plaintiff were shewn to be false altho' the 
Defendant appeared to have acted in good faith. 
So far as we have been able to gather the import 
of the opinions of the Judges as shewn in tho 
cases reierred to,*fchere is nothing with which we 
should not readily concur. But we mue^t speak 
with a certain reserve as unfortunately the cases 
do not appear in^the ordinary Law Beports of the 
period. Possibly this may arise from their not 
having gone further than the trials at Nisi Frit^^ 

We are very sure that no British Court of 
Justice will ever put any restriction on tho 
Press, so far as fair comments on public men 
and public matters are concerned, or even when 
the persons complaining of having been libelled 
are not within any department of the public 
service, but where there is sufficient reason to 
believe that when they obtrude themselves upon 
the public they are actually and truly ** Impos- 
tors " and making or attempting to make 
" Dupes " of the public. We borrow the words 
from the proceedings in one of the cases in Eng- 
land, referred to by the Defendants' Counsel. 
But we do not think that the present case is 
within those categories. It is sometimes diffi- 
cult enough to draw the line between what is 
public and what is private ; but in this case we 
think the Baffle could scarcely be called a public 
affair tho', doubtless, the prospectus was handed 
about by Boulanger's friends and agents, in 
places of public resort, and any one was readily 
admitted as a subscriber who paid his ,$110. Un- 
like the parties in the English cases quoted to us, 
Boulanger did not bring his Baffle before the 



1869] 



COURTS OP MAURITIUS. 



public, thro* the medium of the Press. He did 
not advertize it in the jouraals of the colony, and 
the drawing was not in public, but only in the 
presence of the subscribers, or those whom they 
Lad sent to represent them, on the occasion. But 
taking the case in the most favorable light here,for 
the Defendants, even if it had been a public, and 
let us assume in strict law, an unlawful affair, pro^ 
hibited by the Colonial Code, while it might 
have been quite proper in the conductors of a 
public journal to point out the illegality and un- 
favorable consequences to Society from such an 
enterprise, the '* Feuilleton " complained of does 
nothing of this kind. There is not one word 
said in the way of discharging the duty of the 
Press to keep the public right as to the illegality 
of lotteries and the duty of good citizens to 
abstain from joining them. All that is done is 
to insinuate pretty broadly that the affair, and 

Jarticularly the drawing of the lottery, was not 
onorably and furly gone about by Boulanger. 

Now. unfortunately for the Defendants, these 
insinuations have been negatived, in fact they are 
found not to be true. 

The Baffle was drawn regularly nine months 
before the publication of the paragraph complain- 
ed of. There, consequently, were no ** impostors" 
or •' dupea " here. The case was not like the 
first of the English cases referred to, where the 
Jury gave nodlinal damages. We are willing to 
believe that the Defendant Laffitte, as he says 
himself, proceeded upon rumours, and the im- 
pressions no doubt of persons with whom he 
came in contact, and the factyCertainly a singular 
one, of the piano being still in the poasession of 
Boulanger. 

But we are of opinion that Laffitte did not 
make full and sufficient inquiries till after the 
paper was published and the mischief was done. 
IJudoubtedly in the circumstances, he bad consi- 
derable grounds for believing that the raffle had 
not been drawn, and he has this to say for him- 
self, that he did not originate the rumours and 
reports. These are facts which may serve mate- 
rially to mitigate and extenuate his fault ; but be- 
fore be printed and published such statement or 
insinuation, as we find in the article complained 
of, he ought to have taken those steps to inform 
himself accurately of the fact which he, himself, 
in his subsequent letter to the Editor of the 
paper, informs us,he adopted immediately after he 
had ascertained that the feuilleton produced a 
painful effect on the minds of many of his readers. 
Had this been done, the feuilleton would never 
have been published in the shape in which it 
appeared and nothing more would probably have 
been heard of the matter. But the Defendants 
have pleaded in the last place that if there was a 
libel, they have made a sufficient retractation 
or apology. On the other hand the Plaintiff, so 
far from accepting what the Defendants have 
offered as an apology, has stated that he considers 
it not an apology at all, but rather a repetition 
of the original offence. 

It need scarcely be said that Defendants in 
an action of libel may always plead in mitigation 
of damages that he has made a retractation or | 



apology. In some cases a Court of 
bold that the apology by itself amoui 
a sufficient indemnity to the compla 
and nothing beyond nominal dama§ 
given : every case must depend upon 
cumstances. 

It is unfortunate for the Defendani 
Laffitte, in his letter to the Editor of t 
cial Gazette of the 5th October 186( 

Eeated that he had proceeded upon rui 
e admits that he then knew that tho 
were false; for, he states that, on his 
per enquiries, they turned out to be 
The reference to what the Sentinelle 
a year previously, is also to be regrett 
an apology is found to be really one 
be simple and distinct, full and candj 

It is true that the Plaintiff Bou 
ideas of what an apology in this case oi 
tain perhaps peculiar to himself, and c 
such as the Defendants could not a 
that was no bar to their making for tb 
suitable and distinct retractation a 
when the facts had been cleared up 
tained. We cannot say that this wai 
the tone and temper of the defence t< 
were certainly not apologetical. 

It is to be noted that the Plaintiff j 
character in issue, and altho* his wii 
some of those called for the defence 
highly in his favor, he did not pass 
unscathed thro' the trying ordeal. S 
men of high standing in our commei 
stated that they were much dissatisfii 
conduct in certain trade dealings whi 
with him while he was a merchant, ai 
made an arrangement with his credit( 

It was further shewn in evidence 
Plaintiff now employs himself as a \ 
music, and holds a high place in tha 
and well paid class of teachers in o 
His income was estimated at £1200 ] 
No special pecuniary damage has be< 
but that is not necessary in a case like 
where a grave question of character 
"Witnesses of standing have said thai 
cessary for the Plaintiff to bring the p 
ceedings to vindicate his character ai 
self right with his friends and the p 
this opinion we think will be dispute 
now that the whole matter has bsBh 
tigated. 

On the whole, for the reasons above 
after giving the case in all its circums 
bearings our best consideration, we th 
is one for damages but not foranythin 
high amount of damages which the I 
asked in his Declaration : we are of o 
the sum of £80 will be a suitable awar< 
with costs, we now give Judgment foi 
tiff, with caption of the body against 
fitte and Francis Channell, limited to 



DECISIONS OF THE 



[ISW 



SOCliXE ClYILE,— POTTBSUITEB EZEBCiBS COHTSB 
LA SoCIGTi,— ApFXL D'UH JuQEUEHT III Ma.- 
GISTKAT DE DISTRICT. 



.Zorsque U creanewr eCwie Societi Civile seerce de$ 
poursuiles contre celle-ci, il doit mettre en oawte 
tout leg iiiembret de la Societe, individueHemaif. 



ClVXh PaBTSEBBHIP, — JCSICIAL PEOCEEDUTG* 
EHTEBED AOADTST THE pABTHEESHIP, — AppSAl 

FBOH A Judgment of Dibtbict Masistbate. 

Where the redilor of a Civil Partnership enter 
Judicial proceedings against the latter, all the as- 
tciciateg must be made parties as Defendants in 
the suit. 



H. B. HUGNIN, a GALEA A Co.,— Appel- 



AENASALOTf,— EeBpondent. 



liiB Honor Sir C. F. Shabd, Chief Judge. 

Q, Gdibkbt, — Of CouHsel for Appellants. 
P. Sobebt, — Appellaute' Attorney. 

L. Chastellieb, — Of Counsel for Eeapoodent. 
A. PiTOT, — fiespondeut'B Attoraej. 

2nd March 1669. 

Id the months of Aqgnet and Septeml>er leat, 
the Plaintiff, in the Court below, ArnasBlon, of 
Qaeea street. Port Louis, trader (now Kefli>on- 
dent) sold vacoa or gunny bags for tbe pritt; of 
(S'lfS to P. A. Huguin wLo subscribc-d the 
" Bona " or acknowledgemeat of the ?ale, as 
follon'st "pour I'Etablissement Belle Riee, A. 
" D. Hugnin, D. Galea & Co., A. P. Huguiu." 

Tbe price not being paid, tha vendor ArnasaloD 
raised the present suit before the Distrii t Ma- 

e'strate of Port Louis, in which he called aa 
efendants H. B. Hugnin D. Galea & Co.. Ilun- 
riette Elancard, the wife of A. P. Huguin. and 
the latter tor the authorizatioa of his wife ocid 
(he validity of the proceedioga, and Dominique 
OaUa, landomier, as memberH of the firm H. B. 
Hugnin, D. GlUa &, Co. 

"W hen the case came into Court it was con- 
tended by the Defendant's Counsel that the 
Plaintiff must submit toi a nonsuit, inasmuch as 
tbe Plaint had not been entered against alt the 
turtles foiming the partnership Hugnin Galea & 
Co., and a deed of partnership, dated 24itb Octo- 
ber 1866, was produced by tbe parties called na 
Defendants, which established that besides tbem- 
rIvcs there were several other persons equally 
ooncemed in tbe Civil assodation in question for 
working the Sugar Estate BeVe JBwe. 

The Plaintiff anawered that tbe Defendants 
were not entitled to lake-nlvantage of their own 
wroDff and refute to pay the price of tbe article! 



Bold, as they allowed A. P. Engnin to subscribs 
the d'>cumentB for them, and that tbe Plai«tiff 
was not bound to find out who the members of 
the firm were, before raising his suit in payment. 

The Judge in the District Court overruled the 
objection of the Delendants, and gave Judgment 
for the Plaintiff with costs. 

The Defendants appealed. 

G. GuiBEBT argued for Appellants. 

P. L. Obastellibb contra. 

THE COURT. 

This ia a question as to the proper course to 
be observed in bringing Defendants into a Court 
of Justice when they are sued aa membera of % 
Civil partuership. This is not a case of Commercial 
partuerahip, and therefore, with the forma to be 
observed in that class of cases, we have nothing 
to do in tlie preeent instance. It is to be particu- 
larly noted that when the Plaintiff deult with 
Mr. Hugnin, be kuew that he did not deal with 
the tatter io bis individual character or capacity, 
for ihe " Eons " granted by Hugnin were sigued 
by him for a Cicil society or partncship styled 
H. B. Hugnin D. Gal^a & Co., and for the Esta- 
blishment Belle Rive. Thia ought to have set 
the Plaintiff upon his enquiry as to who the 
partners of this tiodety actually were; with whom 
he had dealt, when he found it necessary to re> 
Bort to a Court of Justice to recover tbe price o£ 
tbe articlta sold by him. 

The Plaintiff had chosen to take this Civil a8> 
sociaiioQ for bis debtors, as be was perfectly en^ 
titltd to do ; but he mutt take the consequences 
of bis own act and be subject to the disadvantage 
arising, in certain event uali ties, from not being 
aware of the names of all tbe parties with whom 
be bed bargained, if he did not take the trouble, 
at the outset, of ascertaining who tbe persons 
really were to whum he sold bia gunny bag?. 

There ia no reason to doubt that the names ot 
alt the persons would have been at once commu- 
nicated tu him, if he bad ashed torsucb informs 
tioD, as we find tbe Defendants, as soon as they 
were called upon in the Court below, produced 
their deed of Partnership. 

The leading French authorities concur gene- 
rally in mainiaiiiiog that in case, hke the present, 
of civil partnership, all the asBOciates muat be 
made parties, [S,41,l, 483— Cabb£ & ChavteaU 
287 6m] as Defeudants in tbe suit, and some of 
tbem are of opinion that this must be done under 
pain of nullity of the proceedings, 

I do not find myself warranted, iu the present 
instance, in going so far upon the texts of the 
law which they cite. Thia is not a case for ft 
nonsuit ; but 1 am of opinion that the present 
Appeal must be sustained, the Judgment of the 
District Magistrate set aside, and the case re- 
mitted back to him to make an Order that tbe 
partners not called be made parties to tbe suit 
and thereafter to proceed with the case as may 
be just. Costs reserved, with power to the Distnot 
Magittnite te dispose of all qaeatiiMU of coati 
after deciding upon the meriti. 



1869] 



COURTS OF MAURITIUS. 



SUPREME COURT. 



Pbkuve tbstimonialb,— Ees Judicata, — Com- 

PAaNIE D*ASSUBANCB CONTBE L'TiTCEBTDIE, 

La declaration de non-culpahilite, rendvs par le 
Jwry, sw une accusation d*incendie, et VOrdon- 

' nance d^acquittement qui Va suivie, ne s'oppose 
pas a ce que la Compagnie d* Assurance, action- 
nee en paiemeni du dommage^ entreprenne de 
prouver par temoins les tnemes faits consideres 
comme consUtuant non plus un crime, mais v/n 
quasi^lit dan9 le sens^ de VArt, 1382 du Code 
Civil. 



Obal etidence, — Ees Jxtdicata,— Fibe Insxt- 
BATsrcE Compact. 

2%^ verdict of not guilty returned by a Jury, upon a 
charge of Arson, cannot he invoked as res judi- 
cata preventing a Fire Insurance Gompany sued 
in payment of the damage, to adduce parole evi- 
dence in order to prove the same facts, no more 
as a crime hut as a quasi delictus tinder Article 
1382 of the Civil Code, 



JOSEPH VIRAPA & WIPE,— Plaintiffs, 

versus 

THE MAURITIUS PIRE INSURANCE 
COMPANY,— Defendants. 

Before 

The Honorable Nicholas Oustave Bestel, and 
Th« Honorable Gustave Bab^thelemy Colin. 



B. Pellbbeait, 
J. Mebcieb, 
Hon. L. Abnatji),- 

J. PlOWiGUT, 



-Of Counsel for Plaintiffs, 
-Plaintiffs' A.ttomey. 
■Of Counsel for Defendants, 
•Defendant's Attorney. 



17th March 1869. 



On HoK. L. Abkaud*s expressing his intention 
of adducing parole evidence in support of the 
facts set forth in the Defendants' Pleas. 

E. Fellbbeatj objected to any such parole 
eridence, the facts sought to be established hav- 
ing been negatived by the verdict of " not guilty" 
rendered in favor of Virapa the wife, the now 
Plaintiff, by the Jury empanelled for trying the 
charge preferred by the '* Ministiire Public " 
against Virapa the wife, the. now Plaintiff, of 
hAving ^' aided and abetted " the parties charged 
by the same Criminal Information, with having 
criminally and wilfully set fire to the buildings 
inflored by the Defendants. 

It was contended that the verdict of ** not 
guilty " was Res JvMcata between the parties to 
^bia suit, and that the Court would not be war- 
pftDted in allowing any proof tending to negative 



the verdict found in the Criminal Com 
1351 C. C. was quoted by Pellereau in i 
of his objection* 

Abnaud denied the existence of any B^ 
cata between parties and the applicabj 
Art. 1351 C. C, to the matter before the 

That there should be Res Judicata : lo th 
demanded must be the same in the two 
2o. the demand must be grounded on th( 
cause of action ; must be between the same 
and brought by and against the same pa: 
one and the same capacity. 

These requisites are not to be found i 
case. 

The Defendants are no parties to the C 
Information, but the " Minist^re Public," 
who is not the representative of the Defei 
except as Members of that community, th 
tec^ion of which is entrusted by law 
officer. 



The *'Ministire Public" 
nishment of offenders. 



sues for tl 



But the Company, here, seeks to be n 
from the payment of a debt claimed by rej 
a breach of contract on the part of Plaintifl 
the Criminal Court, the Plaintiffs were ci 
with having aided and abetted certain ; 
charged with having criminally and wilfi 
fire to premises insured. 

The verdict of " not guilty " negative 
charge, but, in this Court, the Defendan 
prove that Virapa the wife, not guilty it i 
of having aided and abetted the parties c 
with "arson," had, nevertheless, knowledge 
intention of setting fire to the buildings i 
for the purpose of defrauding the Compan 
that the buildings were burnt by her negli 
fault, and fraud. 

On the Criminal side, she was charged \i 
sin of commission. 

On the Civil side with the sin of omissio 
is of not having prevented the setting fire t 
building insured. 

On the Criminal side, punishment wA tl 
of the " Ministere Public." 

On the Civil side a release from a debt tl 
a breach of contract on the part of Plaint 
sought after. 

The two aims are different and may well 
together without any breach of the Article q 
'Kence no Res judicata. Art. 1351 C. C. i 
note 172. Sib : Vil : 42-2-467 and not 
authorities therein referred to. 

For the reasons above, the Court ov€ 
Pellereau's objection and allows Araaudtk^^ 
with the Ex.amvcAXi\oTi ol\i>& V>X*i^««a«^* 






u. 



DECISIONS OF TI£B 



[1808- 



The "arret " of caasation (Sir : V. 1867 1.108) in 
tbe case of Eoux v- Anumd, in no wiae mili- 
tates against the view the Cou-I has taken 
of the objection of Fellereau ; Boiix v. Ar- 
naud is an exception to tlie general doctrine 
recognized by the Conr de Caaiation (See Note 
1 jt 2 p. 108) Bs shewn by the note (1) acaom> 
panying the case of Roiusin v Lecorre (S. V. 1867 
1.106) X "S'il est vraiqu'en these gen^ralele ver- 
dict n^gatif da Jary eur la question de culpability 
laisse aubsister le fait malinel comme base paBsi- 
ble d'une action civile en dommages int4rgts de la 
part de la pariie qui pretend avoir it6 U»6e par ce 
fait materiel, il eat autrement dans certainei clr- 
constances exceptionnellee oh lefaU et Vintentum 
de i'agent etant indivisibles, on ne saurait uoler 
]efait de la voIotUS qui I'a prodait, sans remettre 
en question la chose irrSvocablement jugee par le 
jnry<CoDE Nap: Art: 1361.1382,— Cobb dIha- 

TMN. OBIMIHILLS Art. 1383.) 

(Bubriqaa de I'ajr^t Bona o Armand.') 

Coiir de Cassation (chre. des reqtea.) 

Audience du 22 jaillet 1868. 

iTieendie. — Ac^puttement.—Choie jngie. — SfBtpon- 
taiUitS Civile.— limte. 

"La declaration de non-culpahilit^ rendue parle 
Jury, notamment but une accusation d'incendie, 
et I'ordonnance d'acqaittement qui I'a luiTie, ne 
•'oppoaent pas k ce que I'indiridu acquittd aoit 
nlterjeurcment actional deVant la Juridiotion Ci- 
lile, et condamne h des dommages int^iSts, & rai- 
son des mdmea faitsconsider^s comme constitnant 
non pins nn onme, roais un quaii delii dans la aens 
de I'Art. 1382 du Cons NsioLios, — Code d'lnst. 
Criminelle Arte. 358,369 et86S.—GoDxXA?.Art. 
1382. La condamnation civile est auffisamment 
motiySe lorsque la decision qui la prononce cons- 
tate que I'individu aequittS est Vavteur des faits 
dont I'Ordonnancb d'acquittement a ^cartS la cri- 
mmalit^, et que ces faits constituent de sa part, 
une faute, sans qu'il soit beaoin qu'elle precise 
les circon stances denatured jostifier cette con- 
damnation. 

Bcijet; en ce sena. 

Nota. — II est en effet bien constant qae le cri- 
minel n'influe pas anr ie civil lorsque le fait ou 
ptut6t la question posSe ne sont pas exactement 
lee mSmes, et cette distinction est tree importante 
pour les asBureurs qui, au point de vue juridique, 
ont k examiner si en droit et en 6quit^ ils pen- 
Tent r^sister & TezScution du contrat. 

Voyei Dieiionnaire det Assurances et Table 
Dieennale, Vo. Influence du Criminel ttir le dvH 
(Veibo-Acguittemeni) par Louia Foujet, Avt. 

Voir Journal des Assurancet par Poujet (Louia) 
20eann^. 

Voir encore le BicUonnaire dee AMuraneet Her- 
r$ttrea par Foujet (Louis) Vo. AcquiiUment, Vol. 
1, p. &5 ib p. 62. Si. de 1855." 



SDPRfME comr. 

Sail, — Iugbnsib, — RzaFOKsASiLnE dv Locatubk 

LUU,— FiBE, - RSSPOKBIBILITT.OF TBI TENANT. 

WIDOW GIQUEL,-Plaintifl; 

versus 

PASCAL,— Defendant. 



Befbre 

His Honor Sis C. F. Sbahd, Chief Judge, and 
His Honor Mr Justice Bbstel. 



L. BoDHXASD, —Of Counsel for Plaintiff. 

A. PisTOS, — Phuntiffs Attorney, 

E. DiniEB St, AxAm, — Of Counsel for Defendant 
J. Hauib, — DeCsndaat's Attorney. 



IQih March 1869. 

This was an action in which the owner of cez* 
tain premises let to the Defendant, aa a bake- 
house, at " Mesnil " in the District of Flaines 
Wilhems, sought to recover damages for the Iobii 
sustained, by the premisea hAving been burned 
down. 

The defence was that the Defendant was ab- 
sent at the time of the fire, while the Plainti^'a 
were on the spot ; that the fire occured from 
Bome " cas fortait " or " force majeure" or, at all 
events, that it took place by no means tlirongb 
Defendant's negligence or fault. 

li. BoDinABD, for the FlaintifFs.— The Plain- 
tiffs let the Bubjects now burned down to the 
Defenduit, by a writing under private signatureB, 
dated 28th January 1868. They consisted of » 
bake-bouse and atone fire place, &c. The rent 
was ^13 per month, and the duration of the 
lease one year &om 10th February 1868. The, 
premiseH perished by fire on the 22nd December 
last, and under Art.1733 of the Civil Code, the 
tenant must make good the loss, unless he proves 
that the fire took ^ace by a " cas fortuit," by a' 
vis major or " vice de construction-" 

E. DcDiEB, contri, — It is enough if I show that 
my client wu not in fault : When the Theatre 
La Qa^ was burned down in Paris, all that 
the tenant wae held bound to establish, to 
save his liability for the damage, was that he hod 
observed all the Police regulationB for the pre- 
vention of fire in eucb establishments' TsoPLOira 
No. 368 and seq. § S7, 2-70. 

A number of witaeaaes were examined on botb 
' iidea. 



iie»l 



COURTS OP MAURITIUS. 



THE COTTBT. 

In cases of tliis descrfpfcion the law is very 
cleftriy traced out by Art. 1733 of the Civil 
Code, in the following terms : " II (le preneur) 
repond do Tincendie, a moins qu'il ne pronve, 
que rincendie est arriv6 par cas fortuit ou force 
majeure, ou par vice de construction, ou que le 
feu a ete communique par une maison voisine." 

The burden of establishing what the origin of 
the fire really was is thrown upon the tenant 
who, being in possession of the subjects, must, 
prima facie, at least, have far better means for 
establishing the truth and is, far more likely, by 
the fault of himself or those on the spot, with 
whom be is connected, to have caused fche loss 
than the landlord, who may leave at a distance 
from the place. Now, in the present case, we 
do not thmk that the Defendant has been able 
to shew (prouver) that the fire arose in any of 
the special circumstances pointed out in the ar- 
ticle. Even were we to hold that the origin of 
the fire was a " mystery," to use the words of 
one of the Defendant's own witnesses, a Sergeant 
of Police, that would not, we think, save the 
responsibility of the Defendant, as it would not 
bring the case within any of the specific catego- 
ries set forth in the article. But there is a good 
deal of evidence to shew that the Defendaat,and 
those in his employment, were not careful in the 
way they dealt with the live embers when the 
oven was extinguished after the daily batch of 
bre^d had been fired. 

' It appears that portions of those embers were^ 
often allowed to lie about on the floor of the 
bake-house, in which, tho' at a considerable dis- 
tance (9 or 10 feet), there was a pile of wood 
kept for the service of the oven, and that the 
embers were occasionally used by the Defen- 
dant's for cooking their meals in a corner of the 
bake-house, and we are not satisfied, looking at 
the whole evidence, that this carelessness had 
not actually taken place on the day of the firei 

The Defendant's Counsel has plausibly argued 
upon the Decision, in the French Courts, of the 
case of the burning of the Theatre " La Gat- 
U," in Paris, in 'February 1835. He has 
submitted, upon the strength of that De- 
cision, that when a person takes a lease 
6f a Theatre or a Bake-house, or any buil- 
ding which, from its verjr nature and the pur- 
t)6ses to which it is applied, is more exposed 
to danger from fire than ordinary houses, all 
that he has to do to exempt himself from liabi- 
lily, in case of a fire, is to shew that he had used 
all possible precautions to protect the premises 
from the risk of conflagration. We think that 
this is a fair enough statement of the Decision in 
the French Courts referred to. — S. 32 2.?0, of 
■5?hich both Teoplong No. 688 and Dxttbbgieb 
' Vol. 1 No. 417 disapprove. But this case is not 
at fdl a similar one; for,as we have already stated, 
' there is but too much evidence to shew that the 
Defendant and his men were not at all careful 
in regard to fire within the buildings. We are, 
therefore, of opinion that the Plaintiffs have so 
. far ^ade out their case. 

As to the yalue of the premises we are- satis- 



fied that the Plaintiffs' demand attemptec 
sustained by their witnesses, is far toe 
We have no doubt that the estimate gi^ 
the witnesses for the defence is much nea 
truth. It is farther to be noticed that wl 
fire took place, there was but little done 
by-standers, to save the property. The '. 
dant was, unfortunately, not at home ; 
could do nothing to protect his interest 
the conduct of, at least, one of the Plainti 
not becoming as, apparently from not liki 
Defendant as a tenant, she looked on an 
templated the progress of the fire with 
complacency instead of doing what she c< 
save the property. 

There is, therefore, no reason why the 
tiffs should not be strictly held to the va 
the premises as spoken to by the most r 
witnesses. 

On the whole we are satisfied, that wl 
allow the sum of £30 for rebuilding th 
mises, with the rent of $15 per month 
months of lost time or £9, together £2 
give what is a fair and equitable compel 
to the Plaintiffs for the loss sustained by 

Judgment is, therefore, given for the f 
£39 with caption of the Defendant's pera 
mited to 3 years. Costi9 to Plaintiffs, bu 
at the rate of the District Courts. 



BAIL COCBT. 



Appeii d'un Jugement de Maoistbat S 

DIAIBE,— PbOCEDUBE SUB APPBL. 

La partie faisant dppel d*un Jv^ement de Mc 
Stipendiaire, rCayant pas notifie son Act 
pel a Vlntvme, avM termes de VArt. 19 de 
15 de 1852, VAppel a ete rejete avec depe^ 



Appeal PEOM a Judgment of Stipendiai 

GISTBATE, — PbOCEEDINGS ON APPEAL. 

Where the Appellant had not given the privi 
pondent notice of the Appeal, in terms of 
of Ord. No, 15 of 1852, the Appeal was d\ 
with costs, (See Teeluck v Trebuchet^ 
Vol. VI, Page 58.) 

INGTJT,— Appellant, 
ver9U8 
MINISTEEE PTJBLIC,-.Eespond 

Before : 
His Honor Sir C, P. ShaiO), Chief J 

W. Newtoist, — Of Counsel for Ap 

A. de Commabmond, — ^Appellant's Atto: 

B. J. Leol:6zio, Substitute Procuse^ax < 



16 



DECISIONS OF THE 



[186& 



2nd March 1869. 

Thi!i was an Appeal from a Jadgment of the 
Stipendiary Magistrate of Port Louis, by which 
he had condemned the Appellant to pay to the 
parties who sued him in the Court below, certain 
sums of wages which they alleged were due to 
them for work and labor done in his employment 
as a manufacturer of Cigars. 

When the case was called in this Court, it was 
objected in limine, by E. Leclezio Jtmior, as Sub. 
Fnoc. Gekebal, that the Appellant had failed 
to. give r otice of his Appeal to the Respondent, 
as required by § 19 of Ord : 15 of 1852, and 
that, therefore, his appeal should be dismissed. 

The Ordinance enacts that when an Appeal is 
to be made in sucb a case as the present, to the 
Supreme Court, notice shall be given to the Sti- 
pendiary Magistrate who shall immediately bind 
the party giving notice, by recognizance with 
sufficient security, to prosecute his Appeal ; and 
it is further ordered that the party having been 
so bound by recognizance, shall lodge his Appeal 
in the Kegistry of the Supreme Court, and give 
to the Bespondent notice of the said Appeal, 
within 3 days from the date of the recognizance. 

The Ordinance further enacts that : " Every 
" Stipendiary Magistrate, upon receiving a notice 
" of Appeal and accepting a recognizance, shall, 
'' forthwith, transmit to the fiegistrar of the 
** Supreme Court, duly certified copies of the 
" Original of the sentence or Order appealed 
'^ against, and of the whole of the evidence given 
'* on the hearing of the conaplaint to which it 
'• refers.'' 



It 
it 
<( 
<( 
<< 
i( 
(( 
ii 
it 

Ci 

« 
(I 
(I 



XXI.—*' On such Appeal being entered in 
the Registry of the said Court, and on the 
aforesaid proceedings being thereto transmit- 
ted, notice thereof shall be given, by the Re- 
gistrar, to the Frocureur General, and without 
any summons or order to that effect ; the cause 
if the Bespondent be a laborer and not appear- 
ing by Counsel, shall ea: officio be set down for 
hearing between the Minist^re Public and the 
Appellant, at the first sitting of the Supreme 
Court which may take place not later than 
three days after the Registrar's receiving the 
aforesaid proceeding, and such appeal shall 
have a continued priority of audience before 
all other causes, until finally decided." 



Upon these sections of the Ordinance, the 
Counsel for the Crown contended that the appeal 
was badly brought; for, if the Respondents set no 
notice of the appeal, how could they select Coun- 
sel for themselves, which, of course, it was their 
right and privilege to do. 

W. Newtoit, contra. The want of notice is 
not an absolute but a relative nullity. The whole 
object and purpose of the law has been gained 
here, for we have, in point of fact, the cause set 
down by the Registrar, and the learned Sub. 
Proc. General actually present to argue the case. 

THE COURT. ^ 

The objection taken by the Crown is fatal to 



this appeal. In all cases, the party against whom 
the appeal to a higher Court is entered must re- 
ceive notice of the appeal, otherwise he would be 
kept entirely in the dark and in the ignorance of 
the proceedings taken against him, and he would 
not be able to appear in the higher Court and 
support the Judgment which he had obtained in 
the Court, below. 

Under the special provisions of this law, 
the necessity of giving proper notice to the Bes- 
pondent in the Appeal, is in one point ot view, if 
possible, stronger than in the ordinary case ; for 
how is he to have the option, if he chooses, to 
appear at the hearing of the appeal by his own 
Counsel, if he does not even know of the exis- 
tence of the Appeal, having got no notice that 
his opponent has submitted the case to the re- 
view of the higher Court ? 

Appeal dismissed, with costs. 



SUPREME COURT. 



TutellEj—Reddition de comptes, — Sttcces- 
sioBT,— Benefice n'lirvEirrAiEE, — Compensa- 
tion,— Abt. 802, C. C. 

L*1i4nUer sous benefice dHnventaire n^est tenu du 
paiement des dettes de la succession quejusqu'd 
concurrence de la valeur des hiens quil a re- 
cueillis, Ses hiens 'personnels ne se confondeni 
point avec ceux de la sitccession. 



Gttabdianship, — Accounts, — Sitccessiok, — 
Benefit op intentobt, — Compensation, — 
Abt. 802, C. C. 

The heir under benefit of inventory is bound to jpay 
the debts of the succession, but only up to the va-> 
lue of the property he Ims collected. His own 
^property is not miaed up with that oftlie sticceS' 
sion, 

Geobob EANKIN, — Appellant, 

versus 
A. CHEVALIER, -Eespondent. 

Before : 

His Honor Sir C. F. Shand, Chief Judge, and 
His Honor Mr. Justice Bestel. 



Q-. Q-xjiBEET,— Of Counsel for Appellant. 
J. GuiBEET, — Appellant's Attorney, 
V. Naz, — Of Counsel for Respondent. 
E. DucBAT, — "Respondent's Attorney. 

ISth March 1869. 

The Bespondent as guardian of the minors 
Q-eorge Eankin, (the now Appellant) and James 
Rankin, had to account for the administratioa 



18 69] 



COURTS OF MAURITIUS. 



he bad had of their persons and property, from 
the 17th June 1862 to the 20th May 1866, when 
he was relieved from his guardianship by the 
emancipation of the said George Bankin (the 
Appellant) and b^ the appointment of a new 
guardian to the said James Rankin. 

This account the Respondent has rendered; but 
objections were taken to it by the Appellant 
who now complains of the ruling of the Master 
on his several objections. 

It is admitted, says the Master, that during 
his guardianship, the Respondent Chevalier had 
received the rent of a shop existing on an im- 
moveable property situate in Arsenal and Far- 
quhar streets. Port Louis, belonging for 3^4 to 
Joseph Rankin and the minors aforesaid, and for 
l\4th to the minors Thomas, the issue of the 2nd 
marriage of their mother to one Benjamin Tho- 

ID MB 

Previous to the beginning of the Respondant's 

fuardianship, and by a notarial deed of the 13th 
fay 1861, the now Respondent Chevalier had 
sold to the mother of the said minors Rankin^ 
then the wife of the said Bei^amin Thomas, a 
plot of ground situate at * Roche Bois/ for and in 
consideration of a sum of ^1,000 ; for the pay- 
ment of which sum, the said Thomas and wife, oy 
the same deed, abandoned to the Respondent 
Chevalier, the exclusive enjoyment for fifty seven 
months to run from the 1st June 1861, of the 
shop aforesaid, then occupied by a Chinaman, to 
whom, as stated in the deed by the said Thomas 
and wife, it was let for ^20 a month. 

It must be borne in mind that the widow 
Bankin, previous to her second marriage with 
Thomas, had neglected to assemble a family 
Coancil to decide whether she should preserve 
the guardianship of her children. 

By such neglect she necessarily lost the guar- 
dianship (Art. 396 C. C), and by the fact of her 
second marriage she lost the legal '' usufruit ** of 
the property of her minor children fArt. 386 
0. C), and the consequence was that she was 
without right and authority to. dispose of the ^ 
then belonging to her children, in the enjoyment 
of the shop aforesaid. Yet, says the Master, the 
agreement as to the abandonment of the shop 
for the lapse of time above mentioned, is binding 
on the minors Rankin, on George Eankin, as one 
of them, in as much, continues the Master, as 
they were held towards Aristide Chevalier, by 
the exception of guarantee as heir of their 
mother *' Quern de evictione tenet actio, ewmdem 
agentem rejpeUit excejptw,^^ 

The application of that Rule to this cause is 
one of the objections urged against the Master's 
Decision. 

We shall, therefore, proceed to ascertain the 
soundness in law of the Appellant's objection. 

On the death of their father Rankin, the ap- 
pellant George Rankin was in a state of minority. 

The succession could not be accepted by his 
mother as his guardian, but under benefit of 



inventory. George Rankin was, nevertheL 
of the heirs of his father and as such ent 
his share in the shop above mentioned, 
part of his father's succession. 

§ 

The share became his personal property 
distinct from the assets of his mother's suc( 

Whilst it is admitted by the Master, i 
reasons by him stated, that the mother 
right nor authority to dispose of the half i 
ing to her minor children, yet in the IM 
opinion as heir of his mother he wad boi 
guarantee Chevalier from the damage whi 
annullation of the Contract between CI 
and their late mother might entail on Ch< 
But the Appellant was still a minor at the 
of his mother, and could not become h( 
but under benefit of inventory (Art. 776 
as such not answerable for the liabilities 
mother, except to the extent of the assets 
estate left by her (Art. 802 C. C.) The 
of inventory is attended witH the fcwofc 
vantage lo. of preventing any confusion b 
the heirs private property and the assets 
succession, and 2o. of preserving the rig 
the part of the heir, of asserting any p 
claim he may have against the saccession 
802 §2 C. C.) 

No doubt an heir, though under bet 
inventory, is an heir in the eyes of thi 
but not to the same extent as an heir '' 
simple," but to the extent clearly defined 
law (Art. 802 C. C), and no further. 

The Decision of the Master does awa; 
the distinction clearly established by tl 
between the liabilities of an heir with 
of inventory and those of an heir " pur e 
pie." 

Tn support of the opinion expressed 1 
Master, it was said that it never was c 
plated by the Respondent, nor by the I 
that the Appellant should be deprived of thi 
putable advantage accorded by the law to tl 
pellant as an heir under benefit of invi 
When it shall have been ascertained th 
assets of the mother's succession are 
cient to meet the liabilities of the deceasec 
only, will the time have arrived for the heii 
benefit of inventory to insist upon the exe: 
the privileges enacted in his favor. 

Tip to that moment, his objection to tl 
ling of the Master is premature. There v 
possible chance of his oeing made answers 
the liabilities of his deceased mother, beyo 
amount of the Assets of her succession. T! 
of the law is too precise to admit of a cc 
construction. Were he compelled, at | 
to indemnify the Respondent, we would, i: 
of insufficiency of Assets in the succession 
deceased, have to recover from the Resp' 
any amount he might have paid him ov( 
above such assets. 

JUDGMENT. 

But why should the Appellant be held 
temporarily, to indemnify the Res^oadfii^^ 



18 



DECISIONS OF THE 



iojr loBs upon a contract vbicb the Master sd- 
mitB to be illegal, but binding upon the Appellant, 
on tbe sole ground tbat he is an beir cf hia mo- 
ther- Sncb B reaaoning vould be good, were tbe 
Appellant an heir " pur et simple" of bis motber, 
instead of bis being an beir utider ben^t ofinveH' 
tory. 

Were he to guarantee the Reapondent, in case 
of insufficiency of asaetB in the succesaion, he 
woald ba?6 to bring against tbe BespondeDt, an 
Action for the refundug of the amount paid by 
him. 

' His action, irhen brought, might be directed 

Sainst one ivbo might be inaolrent at the time 
the action. So he would be a looser con- 
trarily to the spirit and letter of the law (Art. 
»2). See Chasot on Sveesituma. Art. 802, Vol. 
8, Page 7, lo. & 2o.~TorLLiEa, Vol. 4, No. 867 
••-GiLBBaT, note ^ on Art; 802 G. C. 

The Appellant, an heir ander benefit of inren- 
tory, not being bound to indemnify tbe Beapon- 
dent irom any losa arising from the illegal con- 
tract between bis late motber and Seapondeat, 
we are of opimon tbat the rule of law cited by 
-the Master, in orerruling the objection of tbe 
Appellant, has been misapplied, and we. shall and 
1« therefore abatain from affirming thta part of 
bis Decision. 

The second groond of objection to the SCaeter'a 
Decision wa$ that tbe Beependent had not ac- 
counted, to the Appellant, for one-fourth of the 
COotB received by Mm from the tenants of tbe 
, real property in Araenal street, from the day of 
his appointment as guardian, tbat is to say since 
the l7th June 1862 to the 29tb May 1866, 
wbeu bia guardianship ceased, which said rent 
amounted to tbemoutbly sum of gGQ, 

It appears to oa a necessary consequence of 
the nullity, ea to tbe Appellant, of the contract 
between the now deceased mother of the Appel- 
lant and the Beapondent, that Chevalier's account 
ought to embrace that portion of rent of the shop 
ana pavilion in Arsenal and f arquhar streets, ac- 
cming to tbe Appellant, Trom the day of hia 
appointment as guardian, thatia from 17th June 
1862 to the end of hia guardianship on 29th 
May 1866. 

The M aater, holding the contract above 
referred to be biuding upon tbe AppellBut, has 
allowed the guardian to retain the rent of 
|20 for the bonse, in payment of the purchase 
price of the premiaeB at "Eochebois," and only 
charged him with a rent of ^50 a month from 
the cessation of his guardianship up to tbe date 
of his giving in bis account. 

In our opinion tbe Appellant ought to be cre- 
dited for his share in the rent of tbe shop in 
I^rquhsr street, from the 17th June 1862 to the 
ddth May 1366, and also in the 3 months' rent 
at the rate of ^ as stated by the Master. 

The Appellant ought, moreover, to be credited 
with his share in the rent of the pavilion in Ear- 
4nbar street at the rate of jllO for 13 montha, 
^Ids foi hia share in tbe rent of the same pavilion 



[1869 

But what might be the amount of the rent be 
for vbich the appellant is to be credited from tKe 
17th June 1862 to tbe 29th May 1866 ? If after 
paying himself tbe debt due to him by the Ap- 
pellant's mother,fae succeeded in obtaining a rent 
of $50 for tbe shop, in 1867 or 1868, when rent 
was much reduced, d/arftori might be have ob- 
tained, if not a higher, at least an equal amount 
of rent when rent waa higher that it was in 1867 
or 1668. We shall, therefore, amend this part of 
the Master's Report by assessing to the Appellant 
hia share in a rent of ^$[50 per month, from tbe 
I7th Jane 1662 to 29th May 1866. 

We shall abstain from disturbing that part of 
the Master's Decision refusiog parole evidence in 
proof of the Appellant having been employed by 
tbe Beapondent for tbe purpose of rebatting the 
claim preferred for tbe maintenance of the Ap- 
pellant for several years. The som claimed- n 
any thing but unreasonable.and it is very doubtful 
that the Appellant could claim from the Respon- 
dent an amount anfficiently high to be set off 
againat the aom claimed from' nim for boarding, 
lodging, clothing and sehooling. 

ITpon tbe whole we shall and do allow the Aj^ 
peaL We hnebjr reverse that part of the Mia> 
ter's Decision which holds the Appellant boand 
by the contract entered into by bis mother witb 
the Beapondent witb regard to the shop in Arse- 
nal and Farquhar streets. We amend that part 
of the Maaier'a report having reference to tbe 
amount of the rent which, we find, ought to rott 
firom the 17th June 1662 to the SBth March 1866, 
and to be an average rent of fSO per month. 

As to costa, we shall give ids to the Appellant, 
as taxed by the Master. 



AOTIOB KK BETEinjICATlOH D VS TEKBUN, ^ 

QcEBTioir na fait B^BUi/rAHi us tiibbb. 



Actios m timdicatioii of a Ptor of aKOUUD,— 

QuEBTIOir OF BOVHTDABIXS RB8TrLTIN& FBOK 
TITLE DEEDB, 

LEBLANO.— PUintiff, 



NANINE, — Defendant. 



Before: 
Hia Honcw SiaC. F. Shaiid, Chief Judge and 
His Honor Mr. Justice Bebtel. 



li ChamsiAiIXB, — Of Counsel for Plaintiff, 
A. J. Oojss, — PlaiutifPa Attorney. 
HOH. Ii. AsHAro,— Of Connsel fi>r Defendant. 
J. FiranieDT, — Defaidant's Attomef. 



J 869] 



COURTS OP MAURITIUS. 



19th March 1869. 



In this case the facts and the Fleas of parties 
are fully stated in the Judgment of the Court. 

' CntEV Justice : This was a dispute regarding 
li' piece of ground of about 2 acres in extent, at 
the " Quartier Militaire," in the district of Mo- 
fca: The Plaintiff asked that the land should be 
declared to belong to him ; that he should be 
put in possession of the same, and that the De- 
fendant should be condemned to pay $500 da- 
mages for trespass and illegal possession. 

< The property of the land in question was 
claimed by the Plaintiff, on the allegation that 
he bought it from one Pierre Jean L'findormie, 
m terms of a deed drawn up by Mr, Notary 
Maingard, on the 2dth April 1865 ; that he, the 
iaid L'Endormie, purchased it from one Auguste 
Ificolas Pugin who, in his turn, had acquired it 
from Madame Louis de Ghasteignier Paradis, the 
widow by her first marriage of Jean Avice, and 
by her second, of Louis Besseignet, according to 
a deed of sale of 4th December 184i0, 

According to the Plaintiff's averments, the 

E'ece of ground in question was bounded as fol- 
ws: 

' " On one.side by the Jacquard River ; and on 
tiie three other si^s by Auguste Nicolas Pugin 
itt his assigns, that is to say, on one of those 
three sides by Azor, alias Azor Lahache, holding 
tte rightd of the said Pugin ; on the second sidre 
ttj Georges Mariuel, holding the rights of the 
said Pugin, from which it is separated by a 
^ballisage" called ** All^e Besseignet;" and 
tfn the last side by Marie Nanine (the De- 
fendant) the alleged assignee of the rights of 
Victor Bazire the wife, who held the rights of 
the said Pugin. as the said boundaries appear, 
and are fully described in a Plan made by Sworn 
land Surveyor L. Hily, under date of the 9th 
March 1866. 

It appeared that when Hily went upon 
the ground, after having given due notice 
to the Defendant, and the neighbouring pro- 
perties, his survey was opposed by the De- 
fendant, who stated that she had been in pos- 
Btdssion of the land for more than one year, in 
virtue of the sale to her by Bretagne & Uo. and 
ai survey by Mr.Frogerays, Sv^om land Surveyor. 
But Mr. Hily continued his survey at the risk 
and peril of the Plaintiff and set off his plan of 
the two acres in the following manner : " J'ai me- 
Bur6 le long d'un ballisage de 12 pieds limitro- 
phes avec Madame veuve G-eorge Manuel, la lar- 
geur de vingt perches." 

** Madame veuve Manuel m'a communique son 
titre qui est une vente par, M. Latour ^ M. G. 
Manuel, suivant acte de M. Vigoureuz de 
K|Morvant Notaire, en date de 8 Mars 1860, le- 
quel contrat donne pour voisin limitrophe le 
sieur Pierre Jean. Cette partie que j'ai mesur^e 
forme la limite Sud-Est du terrain de M.Leblanc. 
7*ai mesur^ au Sud-Ouest Ja longueur de dix 
perches, k angle droit ; cette limite Sud-Ouest est 
radttophe avec le terrain de Demoiselle Marie 
Nanine; au Nord-Est encore par Demoiselle 



Marie Nanine, sur diz-neuf perches ; ai] 
Est par les sinuosites de la riviere Jacqi 
Buperficie est de deux arpents ; aux ang 
les bornes indiqu6es au dit plan, que 
planter ; tel que tout sera indique au pla 

On the other hand the Defendant Nar 
eged that the ground in question was l 
perty, forming, as she averred, a portit 
plot of ground of 6 acres which she h 
chased from the firm of Bretagne & Co., 
19th June 1865, by deed drawn up by Mr. 
Baoul. The boundaries of the land pv 
by her, she set forth as follows : On the 
West by Miss Clara or assigns, on i 
of 20 perches and five feet ; on th 
West by Miss Augustine PetroniUe, on 
eight perches ; on the South-West by the 
Besseignet, on twenty four perches and 
feet ; and on the North- West by the rig 
of the Biver Jacquard and thp property < 
Lahache ; all as shewn in a plan drawn 
Anthony Frogerays, Sworn Land Surve 
the 17th November 1863. 

In that plan Erogerays, who had beei 
in by Bretagne, on occasion of his pui 
the ground from Henry Drenning, < 
August 1863, laid down the whole groun 
coaaisted of six plots forming altogethe 
perficies of 26 acres and 40 perches, by 
into one block such of the plots as lay con 
and measuring them as if they formed o: 
piece of ground. He said that he had j 
work in wiis way to " fiiciHtate " his sur 
had laid off upon the ground 3 portions 
from each other, of which the first port! 

S rising 5 acres and embracing the 2 f 
ispute, was thus described by him : — 

'* La premiere portion compos6e de 1 
" et de 4 arpents provenant de Dame 
'' Bazire, formant un total de 5 arpents. 

Abornements de la premiere portion : 

" Borneo vers le Nord'Otisst : Per De: 
" Clara ou ayant droit, sur une longi 
•• vingt perches et cinq pieds. " 

** Vers le l^ud Quest : Par Demoiselle 
" tine PetroniUe, sur vingt huit perches. 

" Vers I^ Sud'Est : Par Tallee Bessaig 
" vingt quatre perches et douze pieds ; 
" Nord-Est : En partie par la rive droitc 
" Riviere Jacquard et le terrain de Azor ] 
" che, ainsi qu'il eat explique au plan ci-j( 
** quel est designd sous le titre de Premik 
'' tion, Des bornes k la marque B. pour 
** gne ont 6t6 placees aux endroits indiqi 
" le dit Plan. " 

** La superficie du terrain, sans compre] 
". berge de la rivifere en est, en droit Est, 
" ii est indiqu6 au titre de cinq arpents. " 

The Defendant denied the alleged tresps 
ting that she always kept herself within h 
ful boundaries. It was admitted on bot] 
that their. common author from^lv^xs^iS^. 
ties fto^ei^ ^«.^ ^^ ^"KL^ ksx^^Hfe ^vtfSs 



so 



DECISIONS OP THE 



[186» 



formerly owner of the ground in question, with 
other land at the same place. 

The Plaintiff farther traced his alleged right to 
the land in dispute, in virtue of older title-deeds 
of the following tenor : 1st : A sale hy the said 
Fagin to Pierre Jean L'Endormie, dated 15th 
August 1853, of two plots of ground, the one of 
4 acres in extent, the other of 2. The Plaintiff 
averred that the latter plot was the one in ques- 
tion in the present suit. The description of this 
plot so sold by Pugin to TEndormie, was as fol- 
lows : "la seconde portion de deux arpents, d'un 
cdt^ par la riviere Jacquard, et trois autres cd- 
t^s par le vendeur." In the same deed it was stat- 
ed : ^* Et la seconde portion de deux arpents pour 
Favoir acquise (by Pugin) aussi en plus grande 
£tendue, de Madame Louise de Chasteignet Para- 
dis, epouse divorcee de M. Jean Avice et veuve 
en seconde noces de Monsieur Louis Besseignet, 
Buivant contrat pass6 devant Monsieur Li^nard, 
I'un des notaires soussign^s et son coUegue, le 4 
D^cembre 1840." On 29th April 1866, L'Endor- 
mie went before Mr Notary Maingard and sold to 
Plaintiff those 2 plots of ground with the same 
boundaries ; word for word- 

r 

It was farther shewn that Pugin, on 25th No- 
tember 1857, had given a donatio inter vivos to 
Nicolas Latour, of a '^ portion de terrain de for^ 
me triangulaire situee au dit quartier de Moka, 
(Quartier Militaire) et born6 ; d'un c6te par 
Pierre Jean ; d'un autre par la riviere Jacquard 
et du troisieme cote par la route de Elacq. Pu- 
gin had acquired this land, along with a larger 
portion, from Mr Jean Baptiste Eiviere, on 5th 
May 1842. La Tour, on 8th March 1860, sold 
this piece of ground to George Manuel and a 
survey was produced, verified upon oath of Felix 
Target, Sworn land measurer, dated 4th June 
1860, setting off the said piece of land in terms of 
fhe description in these deeds, with the substitu- 
tion of " M. Haynal aux droits de Pierre Jean." 

The Plaintiff contended, on this survey, that as 
the lands of Pierre Jean are here stated to be a 
boundary, in point of fact, on the side of the 
" A116e Besseignet," and as the lands of Pierre 
Jean had originally belonged to Pugin, he (the 
Plaintiff) had identified the subjects claimed in 
this case, as quite answering the description given 
in the deeds in his favor. 

So much for the. deeds founded on by the Plain- 
tiff. 

Let us now see how the Defendant completed 
her claim of titles. 

She rested her claim to the piece of ground in 
question, on the following additional writings, viz: 
a deed of sale by Pugin to Gony, of date 13th 
October 1846, of two plots of ground ; the 1st of 
4 acres with the following boundaries : lo. Eor- 
tun^ Cazouba ; 2o. Victor Bazire and Azor la 
Hache ; 3o. la Grande AUee ; 4o. Paul Victor. 
Tbe 2 ad of 3 acres with the following boundaries : 
lo. Mr. Lerare ; 2o. L6onide Denis ; 3o. Nicolin 
La Tour ; 4o. Mr. Beaulieu. On a 2nd deed of 
sale by Pugin to Eourgean, dated 16th May 
1847, of 3 acres derived from Eivifere, bounded 5 
lo. by the river Jacquard ; 2nd by the high road 



to Flacq ; drd side by Madame Pierre Jean ; and 
the4tli side bv the '* Grande AUee." On a third 
deed dated 4th May 1 859, by which Bazire and 
wife (veuve Qony) sold to Drenning 3 plots ; the 
1st of one acre, bonded : lo. by the Riviere Jac- 
quard ; 2o. by Marie Claire ; 3o. by the vende- 
resse alors veuve Joson Gony, and 4o.by Azor La 
Hache ; the 2nd of 4 acres bounded by : lo. For- 
tune Cazouba ; 2o. Victor Bazire and La Hache ; 
3o. Grande AUee ; 4o. Paul Victor. The 3rd of 3 
acres bounded by : lo. Lerare; 2o, L6onide De* 
nis ; 3o. Nicolin La Tour ; and 4o. Mr. Beaulieu* 
On a fourth deed dated December 1863, by which 
Drenning and wife sold to Bretagne a variety of 
plots of ground and among others those just des- 
cribed; and on a 5th deed dated 19th June 1865, 
whereby Bretagne & Co. conveyed to Defendants 
plot of 5 acres bounded, by N. W., Clara "ou ayant 
droits" 5 perches and 5 feet. S. E. Demoiselle 
Fetronille, sur 28 perches. S.E. All^e Bessaignet 
24 perches et 12 pieds. N. E. par la rive droite 
de la riviere Jacquard and Azor La Hache, all 
as shewn in Frogeray's Plan of 17th Decembe]( 
1863. In determining the legal rights of parties 
in this suit, it is necessary to bear clearly in 
mind what their position really is, and what is 
the precise nature of the demand of the Plaintiff. 

The Plaintiff say that a certain plot of ground 
of 2 acres belongs to him, although it is in the 
possession of the Defendant. It lies admittedly 
in the angle formed by the river Jacquard and a 
road of 12 or 14 feet broad, called in the Titles, 
sometimes the '^ grande allee,*' and more fre« 
quently the All^e Besseignet" touching that 
River at nearly a right angle. Now two things 
are to be remarked here, first, that the Plaintiff 
must establish his right to this indentical plot 
of land so Ijing and situated, and secondly, as the 
Defendant is confessedly in the occupancy of the 
ground, the Plaintiff must shew a right to the 
property, so clear, that we shall find ourselves 
warranted in disturbing the possession of the 
Defendant in ejecting her and putting the Plaintiff 
in her place. 

Frima facia, at least, with 2 such palpable and 
distinct boundaries as those just mentioned, one 
would suppose that & person claiming the pro- 
perty could easily shew it by a glance at his titles. 
But this is not the case with the Plaintiff. 

In his deed of sale from Pierre Jean L'Bndormie, 
he has only one definite boundary, viz : the River, 
while the others are said to be generally, lands be- 
longing to Pugin or those in his rights. Now, as 
Pugin was originally the proprietor of all the 
ground in the neighbourhood,andfrom time to time 
disposed of his property in lots.or, as we commonly 
say, morcelled out his ground, this, necessarily 
comes to be, in the circumstances actually existing, 
a very general and vague description. But it will 
not escape attention that even the one boundary 
stated, viz : the river, is by itself and without 
some other definite mark, a very wide designation 
for standing alone, we cannot say what particular 
part of the river, in all its length, it may be of 
many miles, is actually referred to. Pressed by 
the vagueness of his original title and necessarily 
obliged to be more specific, the Plaintiff has 
averred that the other boundaries besides the 
river of the plot in qaeatioUi are actually on on* 



1869] 



COURTS OF MAURITIUS. 



Bide the land of Azor La Hacbe, holding the 
rights of the said Fugin ; on the 2nd side the 
lands of George Mannel, also holding the rights 
of Pugin, from which it is separated hj a " balli- 
sage'* called the " all^e Besseignet, '^ and on the 
last side by the lands of the Defendant Nanine, 
also holding the rights of Pugin. Now, u^ifor- 
tunately for the description, the land of Azor 
La Hache did not belong to Pugin at the data 
of the deed by him to L'Endormie (1853). It had 
been given off before that date. As to the boun- 
dary of the lands of George. Manuel, which lie 
on the opposite side of the " all6e Besseignet " 
those lands, at the date of L'Endormie's deed, be- 
longed to Pugin, and he says in his donation of 
them to La Tour (25th November 1857) that 
they are bounded ; on one side by Pierre Jean ; 
the other by the Eiver Jacquard and the 3rd 
by the high road to Elacq. It is very re- 
markable that the boundary of the " All6e Bes- 
seignet" was not given, if the lands really reached 
to that road. "We should certainly have accepted 
that so visible and palpable a boundary would 
have been set down, and not omitted altogether 
in the description. Had this, the real actual 
boundary, oi^ this side, according to the PlaintifP's 
contention, been given to his plot of ground, his 
argument would have been much simplified, but 
the want of it adds considerably to the doubt and 
difficulty of his case, more particularly as we find 
in the titles of other portions of Pugin's ground, 
this very alley given as a boundary. See, for ex- 
ample, Sale Pugin to Gony, 13th October 1860. 
By that last deed it is shewn that the ^* AllSe 
Besseignet " was one of the boundaries of part of 
the lands conveyed to Gony (in whose shoes, so 
far as her interest extends, we have seen the De- 
fendant now is.) How could the Plaintiff's right 
extend to that "allee** at the place in question, by 
a deed granted seven years subsequently ? Besi* 
des, in some of the deed8,we have both this alley, 
and the lands of Pierre Jean given as a boundary. 
It is plain that they did not and could not mean 
the same thing as the PiaintilT is o'bliged to argue. 

It is to be farther noticed that in the above 
deed (Pugin to La Tour, 25th November 1857) 
the extent in acres is not given. This introduces 
another element of uncertainty and confusion, in 
dealing with subsequent titles and the rights of 
after-acquirers. 

Passing from the titles of the Plaintiff, which 
are of necessity the most important evidence in 
Buch a case as the present, to the titles of 
the Defendant, we have, carefully examined those 
latter documents and altho' they have been 
freely criticised by the Plaintiff who has natural- 
ly dwelt much on the absence of any clear and 
positive mention of the river as a boundary of 
the locality in dispute, we think that they are ex- 
posed to less objection than those of the Plaintiff, 
The Plaintiffjit will be remarked, not only admits 
the Defendant to be a proprietor on the spot, but 
he accepts her as his next neighbour on two sides. 
He comes to disturb her in her possession. She 
and those from whom she derives her title have 
been in the occupancy of the land in dispute, for 
many years. In a case of this description it need 
scarcely be said that the Defendant does not re- 
quire to rely on the strength of his own case if 
he can establish the- weakness of the Plaintiff. It 



IS enough for a Defendant and for a party i 
session, to say that the Plaintiff, his opponei 
not proved his case against him, and that 
fore the Court must allow things to rem 
they are; 

"We have not overlooked the depositions S 
witnesses in the case and the plans of the 
veyor, but those parts of the evidence tal 
they must be, with reference to the actua 
deeds of the parties, do not,in our opinion, 
rially assist the Plaintiff, but rather on the ^ 
we think, tend to confirm the position of tl 
fendant. 

In the circumstances above detailed we 
opinion that the Plaintiff has not establish 
case in evidence, and therefore (Plaintiff S( 
ting) a nonsuit will be entered. 



BAIL COURT. 



COKCOBDAT, — IktEEETS, — IMPUTATION Dl 
MENTS, — I)EMAin)E EN EESILIATION DU 
COBDAT. 



ABBANaEMENT, — IntEBESTS, — APPBOPEI 

OP PAYMENTS,— Motion poe the canc 

TION OF THB ArBANGEMENT. 



TENNANT,— Plaintiff, 

verms 

BOULANaEE,— Defendant. 

Before : 
His Honor Sib Chables Fabquhar Si 



Hon. V. Naz, ■ 
H. Bebtin, 

L. EOUILLABD,- 
Q-, A. ElTTEB,- 



Of Counsel for Plaintiff. 
'Plaintiff's Attorney. 
-Of Counsel for Defendan 
•Defendant's Attorney. 



25<A March 1 



On the 1st of last month, the Court, ( 
application of Mr Bertin, Attorney on beb 
Frederic Tennant, of Port Louis, Broker, g 
a Bule to shew cause why the arrangeme 
tween Aristide Boulanger, formerly Merch 
Port Louis, and his Creditors, filed and con 
by the Court, on 20th October 1862, shou 
be annulled " inasmuch as it has not been ( 
ted between parties." 

By the said arrangement, Boulanger und< 
to pay 40 per cent on bis debts, amounting 
gether to $1 12,829.66c. by three equal i 
ments : on Ist September 1863, on Ist 
tember 1864, and on 1st September 186i 
pectiyely '' without paying any interest < 
fMiid 40 per eenti'' 



22 



DECISIONS OP THE 



[1869 



The Rule was made returnable for the follow- 
ing Monday. Tennant filed two affidavits stating 
that he was creditor of Boulanger to the amount 
of ;$[984.02c, and that the arrangement has not 
been executed. 

ThJ^said sum of ^984.02c. was made up as 
follows : A Promissory Note for j^400.39c. sub- 
scribed by Boulanger, on 3rd June 1862, which 
appeared as a debt due by him in his Balance- 
Sheet ; 2ndly, a " Bon " for ^150 subscribed by 
Boulanger, on 15th June 1862, which did not 
figure in his Balance- Sheet ; 3rdly, interest on 
the said two sums at 12 o[o to 1st February 
1869, ^433.64ic., making altogether the above 
sum of $984i.02c, 

Boulanger having obtained an Order from the 
Court, to examine witnesses to shew that money 
tad been paid by him to Tennant, the latter on 
8th February last, put in a supplementary affida- 
vit bearing that it was by error he had included 
in his first affidavit the sum of $150 plus the in- 
terest due thereon. That the said sum of $150 was 
the amount of one and a half month's salary due 
to him by Boulanger at the time of his Petition 
to the Court, for an arrangement, and being a 
privileged debt which could not be affected by 
the intended arrangement, it was not in fact 
comprised by Boulanger, iu his Balance sheet. 
That a sum of ^1^145 had been paid to him by 
Boulanger thro' a Mr. Eaffray, which Tennant 
acknowledged as in part payment ot his said 
claim of ,^150, principal and interest. 

The case was argued by Hon. V. Naz for 
Tennant and L. Rouillaed for Boulanger. None 
of the other creditors joined in the application of 
Tennant. They were all desirous of maintaining 
the arrangement. 

THE COUET. 

Hon. Naz, the Counsel for the party asking 
that this arrangement be set aside, has argued 
that the " Bon " for ^150 is a good and valid 
document of debt against Boulanger and available 
notwithstanding the arrangement, in which, al- 
tho' it was then existing, it was not noticed and 
included. 

It has been contended that the debt was a 
privileged one, being for the salary of a clerk ; 
and it has been assimilated, in argument, to a 
debt secured by mortgage, which will not be af- 
fected by an arrangement with the general body of 
creditors. The Court gives no Judgment on the 
point of the validity of the. " Bon " in question, 
but it must not be held to concur in the view of 
the case presented by Mr. Tennant's Counsel. 

It is thought that a debt secured by mortgage 
may be said to be in a very different position. It 
is known or may be known to the whole body of 
the creditors. It is inscribed in public Registers 
accessible to all the persons having an interest in 
the matter. An acknowledgment for an ordinary 
debt like the present, whether in certain respects 
« privileged one or not, is not at all in the same 
situation. It is not known to the creditors ; it 
has not been inserted in the Balance-Sheet ; it is 
tprmafaciey at least, a latent burden upon the 



Insolvent, which, by so much, would lessen his 
ability to meet his engagement under his ar- 
rangement. May it not be argued that such an 
obligation is opposed to the hona fides and the 
full disclosure of all the circumstances which 
ought to characterize an arrangement between 
an Insolvent and his Creditors P But it is not 
necessary in the case before us to decide the 
question, for I am of opinion that whatever may 
be said of the Bon for ^150, the debtor, Boulan- 
ger, is entitled to contend that the payment 
made by him in or about September 1863 shall 
be applied to the debt appearing in the Balance- 
Sheet, originally due and payable on 3rd June 
1862. For very obvious reasons Boulanger wishes 
BO to apply the payment. He has a greater in- 
terest so to do than to apply the payment to the 
" Bon " for a month and a half's salary, and I am 
of opinion that looking to the rules of the Code, 
. touching Imputation of payments. Art, 1253 and 
seq., he is entitled to insist that the payment 
shall be imputed in the macner which he desires. 

It was plausibly argued by Mr. Naz for Ten- 
nant, that this payment so applied would not 
come up to the 40 per cent on the debt included 
in the arrangement, viz : ^400.39 with the interest 
now due upon it. Counsel confined himself to 
asking that interest should begin to run only from 
the date on which the instalments ought to have 
been paid by Boulanger, but in fact he failed to 
pay them. It was argued that, altho' it was sti- 
pulated in the arrangement that no interest should 
be allowed on the instalments, nevertheless it was 
plain according to law and justice, that the ori- 
ginal right to interest should at once revive, on 
failure to pay at the appointed time. It appears 
to me that the agreement here between parties 
was clearly this that the 40 per cent should not 
bear interest. It is said that when there was a failure 
to pay at the appointed day, the right to interest 
revived ; but it seems to me that the very words 
of the agreement when attentively considered are 
exclusive of this view. 

There was to be no payment of *' any interest 
on the said 40 per cent." This I think excludes 
payment of interest whether before or after the 
dates in which the instalments were payable. 

We, thus, on the one hand, have a sum of 8160 
due to Tennant ; 40 per cent on the debt of $400 
payable in instalments in the manner above men- 
tioned. To account of this debt, we must ascribe 
the payment of ^145 made by Boulanger as far 
back as September 1863. It is plain that the 
debt and the payment are so nearly balanced that 
no case has been made out for the Court to inter- 
fere here, and disturb the interests of the other 
creditors, many of which are of considerable mag- 
nitude. Those other creditors, as we have seen, 
not only do not join in the application of Tennant, 
but to a man, formally range themselves on the 
other side. 

- The application must, therefore, be dismissed, 
but looking at the whole circumstances, without 
costs. 



1869] 



COURTS OP MAURITIUS. 



S1IPREHE COURT. 



Donations faites pab Conteat de mabtagb. 

J7ne donation faite a des epona, jpar contrat de ma' 
riage, est valable quoique ce don soitfait sous une 
condition dont V execution depend de la seule vo- 
hnte du donatett/r. 



Donations,— Maeeiage conteact. 

A donation made on heJialf of the spouses, in a ma/r- 
riage contract, is not null although such donation 
hat been made under a condition entirely depen- 
dent on the will of the person wlw hinds himself. 



PELLEGBIN & Oes,— Plaintiffs, 



versus 



Maeius DEOMART,— Defendant. 



Before : 

His Honor Sir C. F. Shand, and 
GiHie Honorable Mr. Justice Colin. 



E. Pelleeeatt,— Of Counsel for Plaintiffs. 
A. EoHAN, — Plaintiffs* Attorney. 
"W. Newton, —Of Counsel for Defendant. 
H. Beetin, — Defendant's Attorney. 



23rd March 1869. 

This was an action brought by the Plaintiffs, to 
obtain from the Court a declaration to the effect 
that the real tenders made at the request of the 
Plaintiffs to Defendant, on the 27th July last, and 
the deposit of the sum tendered in the Registry 
of this Court, on the 28th day of July last, were 

food and valid, and in consequence thereof the 
^laintiffs were legally discharged from the De- 
fendant's claim against them. 

". The facts upon which this action was grounded 
were these : In the marriage-settlement of the 
late Pierre Sydney Pellegrin with Agla6 Dro- 
mart, dated the 22nd July 1837, one Pierre Sa- 
lomon intervened and promised to give and pay 
the said Pierre Sidney Pellegrin the sum of 
^7,000. That Bum was never paid, and Pierre 
Salomon is now dead. 

Subsequently, Pierre Salomon became, in terms 
of a notarial deed dated 24ith October 1839, the 
creditor of Pierre Sidney Pellegrin, for the sum 
of ;^1,266 2[3. 

Pierre Salomon died, and his estate went to his 
'Widow,Rose Perrine Marie Michel, donee thereof 
under their marriage settlement. 

The Widow Salomon, died, and her universal 
legatees NoSmieand Aristhene Pellegrin have 
transferred to the Defendant Dromnrt their rights 



against the Plaintiffs who are heirs oi 
Sidney Pellegrin. 

The Plaintiffs now say that if they are 
ed as heii^ of their late father Pierre Sidnc 
grin, in the sum of ;^1,266.66 2l3^to^< 
of the late Pierre Salomon, the. hWRi 
Salomon or those who hold the heirs* rij 
indebted to them, the Plaintiffs, in the 
^1000, and that by law a compensation ha 
place, by the force of which the heirs P. S 
grin are only indebted, now, in thoj 
^266.60 2 [3, with five years' interest. 

The Plaintiffs further say that they 
sent 5i6ths of the succession of the late 
Sidney Pellegrin, and for their share, th( 
tendered 5 [6th of the aforesaid debt wi 
years interest, altogether the sum of $\ 
which, sum after tender made, was depog 
the Registry of the Court. 

The Defendant in the particulars by th( 
in, in answer to the Plaintiff's statement c 
urged that the donation to Pierre Sidney 
grin, in the marriage settlement of 22n< 
1839, was null and void. And upon tbi 
swer which, in reality, amounts to the Defe 
plea, the whole argument turned. The 
dant not having insisted upon several otl 
swers put in, such as a settlement betwee 
~ ties, of which there was no evidence, presci 
as to two of the Plaintiffs, which was not pi 
nor was the insufficiency of the legal tec 
otherwise admissible, i. e. if the donation 
held good in law, insisted upon. 

The donation from Pierre Salomon to 
Sidney Pellegrin, in the latter's marriage i 
ment on 22nd July 1837, runs thus : 

** En faveur du present mariage M. Sa 
constitue en dot a M. Sidney Pellegrin, qui 
cepte, une proprieto au quartier des I 
WilhemSjde la contenance de 300 arpens en 
connue sous le nom de " Quatre Bananiert 
de valeur de g<i'200. 

" De plus, M. Salomon s' oblige par ces r 
presentes, k compter au futur epoux, qui I'ac 
une somme de ^1000, mais sans vouloir pr 
^ cet egard le terme de cette liberation, la 
somme ne produira aucun int^ret." 

The aforesaid donation expressly mad( 
favorem matrimonii " the Defendant now 
lenges as- null and void in law, groundi: 
objections on art. 944 and mainly on art. 
Code Civil. 

The first of these articles enacts that : ** ' 
donation entre vifs faite sous des conditiong 
I'ex^cution depend de la seule volonte du > 
teur, sera nulle." 

I The second (1174) enacts: "Touteobli^ 
est nulle lorsqu'elle a eto contract^e sous 
condition potestative de la part de celui qi 
blige." 

The first article more specially, applies t 
nations : the latter to obbgations in general 



24 



DECISIONS OF THE 



[1869 



It was strongly urged that altho' Article 917 
excludes the operation of Art. 944 from marriage 
contracts, yet Article 1174 applies to all con- 
tracts in general and vitiates them when they are 
made solely and entirely dependent on the will 
of the person who binds himself, and a good deal 
of discussion took place as to whether Article 
944 was a mere adaptation of Art. 1174 to dona- 
tions in particular, or a separate and stricter 
application of a general principle to a special 
V Bpeoie3 of contracts, leaving untouched, however, 
the general principle itselff so that although 
marriage contracts would, by Art. 947, be ex- 
cluded from the operation of Art. 941, yet the 
contract woul still be null by force of Art. 1174. 

This argument seems to us perfectly untena- 
ble ; if Art. 944 is not (and it is not necessary 
to inquire whether it is or not) a mere applica- 
tion to a special contract oiii general law, it is a 
more severe enactment* 

'* II faut dire avec Mr. Dbmaitte & Mr. Za- 
CHABicE,** says MAECADB,commenting on this Art. 
" que la regie particuli^re de nbtre Article pre- 
sente un autre sens et se trouve beaucoup plus 
severe que la regie generale de TArticle 1174. 
Dans notre article 944 il ne suffit pas que le do- 
nateur s' oblige s^rieusement, il faut qu*il s' ob- 
lige irrevocablement et de mkniere h ne pouvoir, 
par aucua moyen, se soustraire plus tard au lien 
qu'il s'impose.*' 

And yet that solemn obligation which the law 
of donations requires, that nullity which results 
from the fact that the conditions of a donation 
cannot be left dependant on the sole will of the 
» dojor, all this disappears when the donation is 
one of those raentionned in the 8 and 9 chapters 
of the Tit : 2. of 3rd Book of the Civil Code, a 
donation in a marriage contract, for example. 
There the maxim '* donner et retenir ne vant " 
disappears, and provided there is a gift, that 
gift is held binding upon the donor, evea when 
its conditions would make it worthless in cases 
which do not come within the favoured contracts 
of chapters 8 and 9. 

No doult there may be cases in which Art : 
1174 miglit operate, cases in which the gift ins- 
tead of being saddled with conditions dependent 
on the will of the donor would be conferred in 
such terms as to be no gift at all : ** I will give, if 
I will give. " There is there no gift as yet : 
But great is the difference, however, between 
such locutions which hardly mean anything 
and the expression of conditions which touch 
more the execution of the gift than the fact of 
the gift itself. " I will give if I go to Rome ; I 
give, but when I shall realize the gift, I do not 
say," are the expressions of gifts under potesta- 
tive conditions, dependent on the will of donor, 
no doubt ; but it is the execution of the gift 
which is delayed and altho' such execution is left 
to the will of the donor in such a way as to vi- 
tiate the gift in other cases, the gift is not vi- 
tiated when it is a gift in a marriage contract, 
for instauce. The vinculum exists ; the gift is 
made, the execution may be delayed ; but au- 
thors generally agree, is delayed at latest until 
the death of the donor when the exercise of his 
will can no longer delay the execution of a pro- 



mise or gift which is a fact. Labombijibe, Toul- 
LiBB, Troplong and Dubanton which have been 
cited to us, lay down the principle positively, 
and altho' they may differ from one another as to 
secundary questions, namely as to whether art. 
944 and Arr. 1174 are but the repetition of the 
same legal principle, on the main point they 
agree. 

In reality what is the object of the law ? The 
law plainly has intended to favour the contract 
of matrimony and has, with that view, swept 
away many of the nullities which attach to other 
contracts. We first meet with the chapter of 
the Code which treats of Donations in general, 
and when we have read that no donation shall be 
valid which is encumbered with a condition which 
depends on the donor's sole will, we immediately 
after come to another enactment (947) which ex- 
cludes marriage contract from the operation of 
that article and several others. We proceed, and 
when we come to those special donations which 
are made by marriage contracts, we find another 
article (1086) repeating the same law, derogating 
from Articles 1081, 1082, 1084, 944... enacting 
specially that donations may be made '^ sous 
d'autres conditions dent Tex^cution dependrait de 
la volonte du donateur par quelque personne que 
la donation soit faite/' and further '' en cas que 
le donateur par contrat de mariage se soit re- 
serve la liberte de disposer d'un effet compris 
dans la donation de ses biens presents, ou d'une 
Bomme fixe h prendre sur ses m^mes biens, Teffet 
ou la somme, s'il meurt sans en avoir dispose, se- 
rait cens6 compris dans la donation et appar^* 
tiendrait au donataire ou h ses heritiers.'' 

If then article 944 had not been enacted, ar- 
ticle 1086 would protect donations in marriage 
contracts from the nullities which attend con- 
ditions left dependant on the donor's own will. 
The enactment of article 1086 which is found in 
the law special to such donations after the enact- 
ment in article 944 which is found in the law re- 
lative to donations in general, clearly makes out 
the will of the legislature to withdraw from the 
operati(>n of general nullities a contract evidently 
looked upoa witli favour by the law. In the 
case now before v. ■, the intention of the donor is 
very phiiuj^and the terms are strong. He does 
not promise to make a donation, he does not 
say : " I may give, I will give, if I choose to 
give, " he makes the donation and it is accepted ; 
the contra t is a fact, the term of payment is 
postponed, postponed in such a way that might 
possibly vitiate several other contracts, but does 
not vitiate this ; the time of execution is left de- 
pendant on the will of the donor ; the realisation 
of the contract he can postponed,but the contract 
exists, it has been accepted, " prasens obligatio 
est, sed dUata solutio" It would not be difficult to 
find authorities of very great weight who, in con- 
tracts in general, find a great difference between 
** dare si voluero, and dare cum voluero. 

But there is no necessity to inquire further 
and to decide whether this donation would be 
good if found in another contract but a marriage 
settlement, and such contracts as come within 
chapters 8 and 9 of Title III. It is sufficient to 
inquire, and we have inquired whether it is to be 
maintained when found in a marriage, contract. 



1869] 



COURTS OF MAURITIUS. 



We have already cited, generally, authorities 
who, in principle, come to this conclusion ; the 
law, by itself, we think perfectly clear if we 
were left to the sole light of our own judgment ; 
still there are two authorities of the greatest 
weight not cited to us which we think so decisive 
on the point that we can hardly refrain quoting 
them. 

Meblin, Bep, Vo, InstUuHon Oontractuelle § 10 
p. 395, after showing the distinctions between a 
simple donatio inter vivos and institution contract 
tuelle, says : ** L'institution^contractuelle fait un 
" heritier irrevocable " and adds ; " une autre 
'' raison non moins decisive est que la disposition 
" des coutumes et de rOrdonnance cit^e n'a 
'* point lieu m^me h, regard des donations entre 
" vifs lorsqu'elles sont faites par contrat de ma- 
'^ riage: c'est ce qui r^sulte de la maxime qu'on 
'' pent donner et retehir par les actes de cette na- 
" ture, et c'est ce que Tarticle 18 de !■ Ordonnance 
« de 1731 et Particle 947 du Code Civil ont d6. 
" cid6 en termes precis." 

According to this eminent author the maxim 
*' donner and retenir ne vant " does not apply to 
donations inter vivos made by marriage contract, 
and he gives to Article 947 the fullest extent 
that the Plaintiffs contended it should receive. 

The Cour de Cassation in Laden v. Syndic 
Loden C27t\i December 1816 Ch. 1815. 1. 
129) held, , reversing a decision of the Cour 
de Riom which had annulled a donation in 
a marriage contract because it had been 
made under a condition the execution of which 
depended on the sole will of the donor, that 
" cette regie g6n6r&\e (944) re9oit une ex- 
*' ception formelle h P^gard des 6poux ou leurs 
'' descendant's, exception litt^ralement consignee 
" dans Tarticle 947 et developp^e ensuite dans 
". Particle 1 086 qui autorise, en effet, dans ces 
" mSmes donations, Papposition des conditions 
'< d^pendautes de la seule volenti du donateur ; 
'' qu'ii suit de \h que Parrot attaque, en declarant 
'' nulle la donation portee au contrat de mariage 
*' de Loden fils, pour le seul motif que le donateur 
'' s'etait r^serv6 la faculty de regler h son gre les 
*' parts h^r^ditaires de ses autres enfants, a fait 
'* une fausse application de Particle 944 et for- 
*^ mellement viol6 les articles 947, 1086, Code 
" Civil ; caese &a. 

Tliere is nothing, in the argument, that if the 
gift is realized after the Donor*8 death,it must be 
considered as a gift in view of death ; as a fact, 
the gift is realized after the Donor's deatlT ; but 
it need not have been postponed, the contract 
might have been executed the day afTer the settle- 
ment was signed. Ic is a donation intei' vivos on 
account of the Donor's marriage, and nothing else. 

The Judgment is for the Plaintiff, with costs. 



SlIPBEBiE COURT. 



Pbkittb TBSTiMOiriALBy— NoTAias, — Clebc ds 

NOTAIBE, — SeCBET. 



Ml matiere civile, tme paiixe en causo 
sera ce qu'un clero de notaire, ajpjyt 
moiuy revele d la Gour une conv&i\ 
que la pa/rtie a Sue avec le teinoiny e 
de clerc de notaire. 



Evidence, — Obal Peoof, — NoTAai 
Pbitileged coMMxrirrcATioNs. 

In civil matter^ one of the parties to 
object to a notary^ s clerks called as i 
causCy giving evidence concerning a 
municaUon made by such pa/rtg to th 
his prof essional capacity. 



Abthub EATNATJD,— Plaii 

versvs 

P. DUBHONE AND WIDOW A. fi 

D( 

Before : 

His Honor Sir C, F. Shakd, Kt 
His Honor Mr. Justice Colin. 



L. ROUILLABD,- 
V, DUCBAT, 

E. Pellebeaxt,- 

A. SOHAN, 



•Of Counsel for Plaii 
•Plaintiff's Attorney 
■Of Counsel for Defe 
-Defendants' Attorns 



nth Ma 



In the course of this casb in which 
tiffs seeks to obtain a Judgment setti 
certain sale made by one of the Defei: 
rhone, to the other Defendant, Wid 
Ebrard, of a house situate at Port Lc 
alleged ground of the fraudulent nal 
conveyance, witnesses were heard io 
the allegations of fraud ; one of them 
dore Sauzier, a Notary public, being 
amination, was asked to report wha 
had stated to him, at the office of J\ 
Notary public, whose senior and mani 
Mr. Sauziep then was. Mr. Pellerea 
to the question, on the ground that the 
cation was privileged, and that even i 
zier were willing to aoswer and to 
client's secret, whatever may have bee 
ture of the communication then made 
not to be allowed so to do, as the pri 
not Mr. Sauzier's, but the client's prii 

£. Pellebbau cited, in support of 
Art. 300 of the Penal Code which en 
'* Any physician, surgeon, or other " 
^ sante " as well as any pharmacopolie 
" or any other person,who may, in cons 
^* his or her profession, or avocation, I 
'' depository of any secret confided 
^' her, and who, except when compelle 
'' to become informer, shall reveal su 
'* shall be punished by imprisonmen 



26 



DECISIONS OF THE 



[1869 



*' ceeding six monthfi, and by a fine not exceed-* 
" ing fifty pouDds sterliDg." 

L. EoniLLABD ioBisted, urging that tie No- 
taries were not named in the Article, and that it 
had been held by the " Cour de Cassation ** in a 
Decision of 23rd July 1830, that the Notaries are 
I)ouDd to answer, as their duties are regulated by 
the law of " 25 Ventose an XI," and therefore 
do not come within the provisions of the Penal 
Code. Besides, the said Sauzicr was, at that 
time, not a Notary, but a Notary's Clerk. He 
also cited Chauveau and Faustin Helie, Vol. 
I p. 521. 

Fellebeau, in reply, relied on the almost 
unanimous opinion of the best writers who have 
written on the subject, also a Decision of the 
Court of Bordeaux, 16th June 1835 ; another of 
the " Coup de Montpellilr,'* 24th November 
1827, he also referred to the law as laid down in 
Taylob'b Treatise on Evidence. 

JUDGMENT. 

The law of Evidence in Mauritius is, in many 
cases, widely different from the law of Evidence 
jn England, and when that is the case, it is the 
doty of this Court, even if it did prefer another 
system to that traced out for this Colony, in the 
Codes, resolutely to decline instilling into pur 
jurisprudence, rules which are not legally bind- 
ing, and which might tend to shake the certainty 
of our law and create confusion and doubt where 
we find order and harmony. But there are cases, 
and not a few, where the rules of evidence are 
the same, and where far from having to appre- 
hend the undue influence on our minds oi a sys- 
tem which is not our own, we may well gather 
from the learning of other courts and writers, 
tl^e light .which he]p us to find our way through 
contrary Decisions and contradictory opinions. 
By the Jaw of the Codes and by the law of Eng- 
land, certain communications are privileged ; cer- 
tain communications which are privileged in 
France may not be privileged in England, as for 
example '^ communications to a physician or to a 
priest or clergyman '' ; but communications made 
Dy a client to his Counsel, to his Attorney, to 
his Agent, are privileged, and we conceive they 
are justly privileged. By an Article (300) of Pe- 
ns I Code, which is but the reproduction of the 
Article 378 of the French Penal Code, it is made 
a criminal offence for any Physician, Surgeon or 
• Officier de Santd,' Pharmacopolist, Midwife, or 
any other person who may, in consequence of 
his or her profession, become the depository of 
any Eccret confided to him or her, aod who, 
except when compelled by law to become In- 
former, shall reveal such secret, shall be punished, 
&c., &c. It was urged that ti>6 words ' other 
persons * could not apply to a Notary and that 
communications to him were not privileged. 

Before the promulgation of the French Codes, 
there was some doubt whether communications 
ma^de to a Notary were privileged. Most Jurists 
iiowever, held that they were : 

There is no doubt that there is to be found no 
artivld in the Codes, from which it can be infer- 
j*ed that it was intended to take the privilege 



away ; on the contrary, the article in the Penal 
Code above cited, the principles of which have 
been commented upon by many writers, seems to 
lay down the law distinctly ; the professional per- 
sons mentioned by name are certainly Physicians 
and members of the medical branch of science, 
but it is quite plain that the article is not limita- 
tive ; * any other person ' that becomes the de- 
pository of a * secret,' on account of his profes- 
sion, is prohibited from revealing it. Advocates 
and Attorneys are not mentioned by name, and 
yet there is no doubt that communications made 
to them are privileged if made to them profes- 
sionally. It is but the application of the rule of 
the Koroan Law. (Di^. e2e Tesi\bus) ''Ne patroni ni 
causa cui patrocinium proestiterunt testimo- 
i nium dicant.'' Why should Notaries be ex- 
cluded from a rule which seems just, and when 
the statements made to them are not only quite 
as confidential, but oftentimes much more so 
than those made either to Advocates or At- 
torneys ? The Notaries of Mauritius are the 
conveyancers of Mauritius, the professional 
gentlemen part of whose business it is to settle 
family affairs, partitions of property, profes- 
sional duties which require not only learning 
judgment and tact, but, above all, discretion and 
confidence It is true that the privilege may, in 
some cases, be detrimental to the interest of 
Justice ; it is not the less true that just rights 
might not be vindicated if the communication he 
m^es in confidence to his Attorney or his Nota- 
ry, were to be used against him, for, no fact could 
then be communicated without being accompa- 
nied by a precise and detailed series of circums- 
tances attending it, although quite immaterial to 
the special communication. Now, this would, in 
most cases, not be done for the very reason that 
it being immaterial, it would not be thought of, 
and the result would be that the bare fact com- 
municated would be, might be, at. least, unfairly 
used, or it would be done, and if done would be 
done for a purpose strongly coloured. The de- 
gree of inconvenience always, of positive injustice 
often greatly preponderates over the mischief 
which may in some cases be caused by the use of 
the privilege. 

Most of the authors who have written on the 
subject are clearly of opinion that such communi- 
cations to a Notary are privileged, and several 
Courts of Appeal in France have so decided it. 
It appears, however, that the Court of Cassation 
in re : Gressent^ 23rd July 1830, held that 
a Notary was bound to give evidence '* la 
••* dispense introduites en favour des Avocata 
^* et des Avouesest une dispense exceptionnelle, 
" une mesure d'ordre public etablie par la jtiris- 
" prudence en favour du droit sacre de la defense, 
'* qui predomine tons les autres, et ne peut ni ne 
•* doit fetre 6tendue aux Notaires dont la profes- 
** sion ne les appelle pas i exercer cette defense.'' 

On reading the Judgment which contrary 
though it be to the Decisions of the Court of Bor- 
deaux et Montpellier and of the Tribunal of Me- 
lon, 11th December 1820, is however the expres- 
sion of the law as laid down in the Supreme Court 
of France, we find that the case was a criminal 
one and not a civil suit, and that the Court when 
alluding to the opinion of those lawyers who sus- 
taii^d the privilege, say this " qu'il ne s'agit dans 



1869J 



COURTS OF MAURITIUS. 



'^ I'opinioQ de ces auteurs que d'int^rSts civils 
'* eutre personues privees, et qu'il n'en pourrait 
'^ dtre rien iaduit en matiere cri ninelle et centre 
" Taction de la vindicte publique. *' 

Not only, therefore,doe8 the 'Cour de Cassation' 
decide the point on a criminal case, and the cause 
before us is a civil action, but the terms \>t its 
yery Judgment seem to point out that there exists 
in the minds of the Judges a great difference bet- 
ween the application of the rule in Civil cases 
and its application in criminal prosecutions. 

It might be urged, tbat although, as a mesore 
of expediency and policy, such communications 
may well be held privileged in civil suits where 
the interests at stake are those of private indivi- 
duals, but that the rule ought to be made to 
yield in criminal matters where the interest of the 
public at large in the prosecution of offences, re- 
quires that measures of private expediency and 
policy should bend before measures of public sa- 
fety and public justice. Private interests shouH 
be made to yield to this important rule, but this 
important rule should be made to bend for the 
sake of public Justice, 

On this point, however, we give no opinion ; 
we merely notice that the Decision (given by 
the Oour de Cassation) in the case of Cresseni 
applies to a matter of a strictly and absolutely 
criminal nature. 

But the Cour de Cassation, itself, in a crimi- 
nal case also, has lately in re : Zamarre (S. V. 
53. 1, 379) changed its jurisprudence and laid 
down A doctrine very different from the one 
which, in 1830, had been, contrary to the opinion 
of several Courts, held to be the law. Whilst 
affirming the Judgment of the Court below, which 
compelled the Notary to give evidence in a crimi- 
nal cause, because as a matter of fact it was not 
flhovi^n that the statement made to the Notary 
had been made under the seal of secrecy, but 
merely made to him in his capacity as a Notary, 
and that this was not sufficient, the Court said : 
'^ que les interSts des families peuvent exiger, en 
effet, dans des cas particuliers, que les confidences 
qui aunt faites aux Notaires ne soient pas divul- 
gudes et que les graves inconvdnicDts qui pour- 
raient rdsulter de cette divulgation doivent mo- 
tiver une Jimite au droit de rinstruction, mais 
que cette dispense doit ^tre restreinte, conform6- 
ment aux rei^les generales de la matiere, au cas 
seulement oh elle est strictement necessaire ^ 
Pexercice des fonctions Notariales. " ^ 

Here, notaries are placed in the same position, 
even then those acliialiy named in the article ; 
their privilege is recognized, but the Court traces 
atdistinction between those cases in which the 
saiement has been made as a secret is commu- 
nicated, aod does not extend the rule so as to 
cover every communication made to the Notary. 

In this case the '* Ministere Public " give his 
conclusions in favor of an absolute privilege. 

Dalloz, Yo. Revelation de secrete p. 13, strong- 
ly approves the doctrine which upholds the priyi- . 
lege. The case before us is not a criminal case 
and, we repeat, as to criminal cases, we^ are not 
eaUed upon to give an Of inion ; it is a civil suit ; 



we find authority to support the privilege 
suits ; we find none to discard it ; we fine 
when adverse to the privilege, tho *' Cour d 
sation" suggests a distinction between civ 
criminal cases; and we also find that even 
minal cases, its later jurisprudenco ha<^ 
greatly modified and has been modiHed 
sense which we, in civil cases at least, thli 
sound and legal one. We can see nc 
reason why communications to an Attorney e 
be privileged and communications to a "No 
not be privileged ; the Notary seems to us 
just as often called upon to receive commi 
tions made confidentially and which would i 
I made if the rules which protects them were 
set aside. Mr Sauzier tells us that the com 
cations made to him were made to him as 
clerk to the Notary Mr Pelte, and that if h 
not been a first clerk to a Notary and occupii 
situation which he occupied at Pelte*6 offic 
Bhooe would not have come to him. Du H 
it is true, was not the ordinary client of th 
fice ; but there is no difference, so far as th 
▼ilege goes, between the communication ma 
one to his Notary, when he first applies t< 
Notary or when the application is made aft 
veral year's connection. Applications for lot 
money are often confidential applications, sa^j 
Sauzier, and Mr Sauzier, unless compellec 
clines to answer. 

Now, just as an Attorney will not be ma 
disclose a confidential communication, an I 
ney*s clerk will not be called to prove one, i: 
which is law as to an Attorney ia law as to f 
fcary, that which holds good as to Attorney's 
must, by parity of reasoning, hold good m 
Notary's clerk in like circumstances. 

The privilege exists in England as we 
that it does in our law ; we can, we think 
ther light from the learned decisions of the 
lish Courts, the case of Taylor v. Foster 2. C 
P. 195. JR. V, upper Boddington 8. D. and R. 
leave the case beyond a doubt. The clerk is c 
dered as the organ of the Attorney and is v 
the same conditions of "secrecy," at least a 
as Sauzier was, a confidential managing cler 
whom communications were made as they n 
be made to the titular Notary. 

We say nothing as to what the Dec 
would have been if Pellereau had waived the 
vilege and Sauzier had still declined to answ( 

Here, Pellereau has not waived the privi 
he insists upon it. Mr. Sauzier will not be c; 
upon to answer the question put to him. 



SOPBEME COUBT. 



Sequestre. 

Lorsque, sur une demands de sequeatre, les cc 
tions proposees et dSbattues a V audience sont 
dyiees^ la Cour, si ces modifications sont im 
tanteSffixe une nouvelle audience et fait not 
les nouvelles conditions aux crianciers hype 
caires qui ont laissS defaut tors de la ^ren 



28 



DECISIONS OF THE 



[1869 



Sequestration. 

When wpon an application to place a landed pro- 
perty under sequestratioti, the terms of such appli' 
cation a/re modified, the Court, if such modifioa- 
tions are of some importance, will appoint a new 
sitting and cause such new conditions to he noU* 
fled to the mortgage creditors who have not at' 
tended the first sitting. 



FiLtciE CHAUVIN,— Plaintiff, 



versus 



Tl^IE CREDITORS of the "ALBION" ESTATE, 

Defendants. 

Before : 



P. L. Chastellieb,- 
A. J. Colin, 
G. Guibebt, 
M, Sa^uzieb, 



•Of Counsel for Plaintiff's. 
-Attorney for same. 
-Of Counsel for Li^nard. 
•Attorney for same. 



2bth March 1869. 



BANKRCPTGI COURT. 



Eaillite, — Asstjbance sub la vie. 

Motion a la requSte de Vun des creanciers du failli^ 
ay ant pour hut defaire ordonner la vente d*une 
Police d^ Assurance sur la vie, prise par lefcdHU 
etformant partie de son Actif. Motion combatiue 
par les Syndics de la faUlite et refusSe par h 
Oowr, 



BAmcBUPTCT, — Life Insubance polict. 

Motion made at tlie reguest of one of the creditors 
of the Bankrupt, for an order directing the asd' 
gnees to sell a Policy of Insurance on the life of 
the Bankrupt, ondfonmng part of the Assets of 
the latter. Motion ohjected to ,hy the Assignees 
and refused hy the Court 



3. B. THOMPSON & Co.,— Plaintiffs, 

versus 
ASSIGNEES N. WALLACH,— Defendants. 

Before : 
His Honor Mr. Justice Colin. 



In this case the Plaintiff, co-owner of the ^' AU 
hum " estate, of which the sale by Licitation has 
been begun, has applied to the Court, for an 
Order to sequestrate the estate, and also for an 
Order in virtue of which the sequestrator would 
make certain payments and advances on account 
of the Estate* Mr. Geobge Guibebt, for Cheri 
Li^nard, first objected to this application, but 
subsequently consented to it, provided that no 
farther sum arising out of the sequestrator's pri- 
vilege should encumber the portion of the '^ Al • 
hum " Estate over which he, Cheri Li^nard, has 
Tender's rights, than ;$100 a month. The posi- 
tion thus assumed by Lienard and to which the 
owners of the Estate do not object, has entirely 
changed the original application. Creditors who 
did not appear to object to a sequestration, the 
privilege arising out of which would encumber 
the whole Estate, may weil object to such privi- 
lege being in reality restricted to that portion of 
the ** Albion^* Estate, over which they have hy- 
pothec or other rights, and the qualified assent 
of Mr. Guibert would practically have that re- 
sult. Before we enter, therefore, into the me- 
rits of this application, we order that new notices 
be served upon those on wlfom the original notice 
of motion was served, and new advertizements 
be inserted to the effect that the sequestration 
Order prayed for is intended not to charge with 
the privilege arising out of it, the whole Albion 
Estate, but the Albion estate minus the Mon 
P/ats^ plot of ground which it is intended not 
to charge with any sequestrator's privilege be* 
yond the sum of c^lOO a month. 

All rights and costs reserved. 



J. H. Slade, 
E. DurrviEB, 



— ^Attorney for Thompson. 
— Attorney for the Oriental 
Bank. 

P. L. CHASTELLtEB, — Of Counsel for Assignees 

Wallach. 



r 



20th April 1869. 

On the 8th March 1869 J. Slade moved on 
behalf of J. E. Thompson & Co., for an Order 
directing the assignees of N. Wallach, a bank- 
rupt, to sell the books and remaining assets of 
the bankrupt. The object of the application 
which was general in its terms, was,in reality, to 
have a policy of insurance on the life of the 
bankrupt, and which has been transferred to the 
assignees, at the assignees' instance, sold ; the 
remaining outstanding debts, if any, being con- 
sidered worthless, and the price of the real pro- 
perty once possessed by tne bankrupt having 
been cUstributed. This motion was opposed by 
Chastellieb for the assignees and by Dutivieb 
for the Oriental Bank. 

The 125th Section of the Ordinance of 1862 
allows the books and outstanding debts of a 
Bankrupt which cannot, in the opinion of the 
Court, be collected or received without unrea- 
sonable or inconvenient delay, to be sold by the 
assignees under the direction of the Court, in 
such manner and under such directions as shall 
be considered by the Court. This, however^ 
could not be done before the expiry of two years 
from the issuing of the Eiat, under the Ordi- 
nance ot 1852, a delay notv reduced to one year 



18693 



COURTS OF MAURITIUS; 



by the amending Ordinance of 1863. In this 
case, the aole object of the motion being to hare 
«n Order to Bella certain Policy of Insurance on 
the life of bankrupt. The issue before me was 
the usual one in such caeee, whether it was rea- 
Bonable orconvenient to sell this Policy, at once. 
The assignees decline to sell it, prefemog to pay 
the annual premia and realize, at the death of 
the Bankrupt, the full amount of the policy, i. e. 
£3000 (ten thousand dollars) rather than part 
with a contract which, as they assert, would be 
worth only £240ifBold in EnglandjStill leas if sold 
in this Colony. The Creditor who makes this ap- 
plication has laid before me no evidence to satisfy 
me that it would be reasonable or convenient to 
interfere with the assi^ees, and to substituto to 
1;heir Judgment the opinion of a single creditor. 
It may be true that such palicies are sold in Eng- 
land, but it is not the case that they are usually 
sold here, not one precedent has been quoted to 
show that this is done, or if this has over been 
done, that the transaction was favoursble to the 
interest of the general creditors. It was distinctly 
asserted by the assignees, and not denied by the 
applicant, that the life which has been iuBured 
is not one which can be considered good, and if 
that be the case, the assignees are, a priori, right 
to nurse the contract, so as to obtain its fall va- 
lue rather than run the risk of sacrificing it by 
a premature sale. 

They have in hand money enough to pay the 
premium of the Policy for five years ; after that 
time, if it be necessary, it will be for them to 
consider whether it be prudent to raise money 
apon it, so as to Seep it up. It was urged that 
it was not a moral contract ; the contract, if im- 
moral, wonld have been so from the first, and I 
&il to perceive how it would be immoral in the 
Aesigbees to keep up the Policy in the interest 
of all the Bankrupt's creditors and not immoral 
for a third party, creditor or no creditor, to buy 
the Policy and keep it up in his own interest. 

Policies of life insurance are not generally 
looked upon as immoral contracts ; they are 
yiewed favourably, by the law, and the greater 
development, the more general adoption of those 
and simitar contracts, far from tenaing to shake 
public morality, would, I conceive, create and 
foster habits of thrift, prudence and foresight 
by which communities grew wealthier, better 
and wiser. 

The applicants will take nothing by their mo- 
tion which is dismissed with costs. 



BANKRVPTCV COURT. 



PaILLIXE,— LlTBEB IBBEQULliEBHEHT TESCS,- 
BeTXFB i>S CEKTinCAT, 



BABSBUZTOT, — BOOEB laaXVULAMLt KSPT, - 

BannuL or x CMiatnoiXB. 



Bankruptcy H. DINHEMATIN. 



His Honor Mr. Justice Cchjs. 



E. FELLEBEA.r, — Of Counsel for Bankrupt. 
A. SoHAN, —Bankrupt's Attorney. 

P. L. Chasiellieb, — Of Counsel for AsBignees. 

F, ViCTOE, —Attorney for same. 



'ZUnd April 18S9. 

In this case, E. Pelxebiau, for the Bankrupt 
applied on the 1 5th March for a certificate of 
conformity, the Assignees, by P. L. CnAsrEi^ 
LIES, strenoiisly opposed the certificate, and 
complained that; the conduct of the Bankrupt 
had been fraudulent and that hia Books disclosed 
such groBs Bod wiltul omissions and atatements, 
that he was not entitled to a certificate. The 
main points urged on both sides are taken notice 
of in the Judgment. 

There is no doubt, as Mr Pellereau argued, 
that blunders, irregrilarities in the books, when 
candidly eiplained and when the whole conduct 
of the Bankrupt, however, imprudent and even 
reckless, showe, that no part of the Estate hao 
been kept from the Creditors, will not per se de- 
prive a Bankrupt of the remedy which the law 
holds out to him. Many a mistake may be made, 
which can be amended, many an error of jnd^ 
ment may be excused freely or under condttionB 
as the case may be, but when gross mistakes do 
occur, when many errors are found which may be 
errors of judgment, but may, likewise, be much 
worse, the Bankrupt must explain, and if he do 
not explain bo as to carry conviction, or at least 
create a reasonable doubt, he cannot eipect to 
obtain an unconditional certificate. 

In this case, the Bankrupt starts with a strange 
process, in order to make the two sides of Iub 
balance-sheet tally ; he carries to his credit, ha 
says as matter of explanation, the losses he hoa 
suffered accordiog to bis account. If he could 
Bbow those losses, explain them by his books, the 
process he has adopted might be only singular, 
although it is Strange that these expenses and 
losses should have been so incurred or suffered 
as to balance the liabilities exactly to the last 
cent. 

But these expenses and losses do not appear 
from the Books ; if the Bankrupt paid $G75 for 
medical attendance; ^1,947 for interest and 
discount ; ,$375 for cartage ; those sums Bhould 
regularly appear in his Journal and in his Cash 
Book ; if his losses on goods, losses expe- 
rienced, he writes in that balance sheet, by 
the foil of the goods, that surely can, by com- 
parison of the Books of purchases and his book 
of sates, be tested, and except for one or two in- 
significant items to which my attention vw 
drawn and which, after all, are anything bat 
dear, there is no proof, that I can see, that 
thoae sums have been lost or apeot in tha (v^iun^ 
oEtheBtoJit'i'5'Cft\»&S3M{,S!mwi^w(st -wtRssSifcr 



30 



DECISIONS OF THE 



L1869 



tiou or any other cause. Now here is Dot one 
omission, or fifty omissions ; there is a series of 
omissions which are such that they are not ex- 

Slained by the other books, they are not yerified 
y any entry I can trust, I may say bj any 
entry, at all. This balance sheet, therefore, is more 
in the shape of an argument than a real state- 
ment and, if the argument is fanciful, it is not 
conclusiye, not even plausible. In fact what has 
become of all that money ? "When and how was 
it spent ? On what occasion and on account of 
what goods were the losses suffered P The books 
do not show, when referred to in the proper 
place, where the entries should appear, and I am 
not shown any other entries which can explain 
or justify these so-called omissions. 

In connection with this part of the case, a fact 
was brought to my notice, which, peraet may not 
be of great value, but which assumes a very sus- 
picious character when it is viewed at the same 
time as those omissions and irregularities ; I 
speak of all tbose omissions and irregula- 
rities, which concern his " Balance of As- 
sets ". Fp to a certain time, it appears 
up to 1866, the Bankrupt had a Bank account, 
he paid into and drew upon the Bank ; a wise 
mode of proceeding, for several reasons, but one 
which a trader is, after all, not bound to follow ; 
be that as it may ; up to 1866, he bad an account 
with the Bank ; from that time the account ceases 
entirely, no more money paid' into the Bank, no 
payment made by Dmnematin by means of 
cheques on the Bank ; and yet I am told that he 
received and paid altogether large sums of mo- 
ney ; now the most striking irregularities, sur- 
charge's in the Books, alterations of figures, post 
entries to make up a balance are mainly since 
that date ; why that sudden and unexplained 
change ? it may be that the new mode of doing 
business was a more rapid, a safer one, although 
I fail to perceive why and how ; but it may also 
be, as the assignees suggest, there being no 
trace of any payment into or draft upon the 
Bank, and the Books showing almost constant 
irregularities, that sums of money may have been 
received which are accounted for and of which it 
is impossible to trace the origin or to follow the 
destination. When, for instance, I find in books 
which are called note books, but which are nei- 
ther the Rough Draft Day Book, nor the Journal 
itself, nor the Cash or Sales Book, that sums of 
money have been received from divers perstbns, to 
wit: in Book No. 19, on 21th September, 19th 
December, 10th December 1867, 6th October 
1866, how can 1 know whether that money has 
been privately kept by the Bankrupt or paid into 
the cash account, whether larger sums still have 
not been received ? If I turn to the " Main 
Courrante " I find no entry, and if I turn to 
the Cash Book I find no entry. I cannot be 
satisfied with the explanation that the note 
3ooks were kept apart from the other Books 
and were intended for such, goods that were 
sent out to be looked at ; if kept by the custom- 
er and credit given, the entry was made when 
payment was effected ; but the sale of the goods 
should appear in the Journal ; the payment I 
should find trace of in the Cash Book ; £ find 
neither the one nor the other, and it can hardly 
be urged that these Books were separate Books 
to he considered bjr themselves alone, for they 



refer not to separate goods having a separate ae* 
count, but to goods forming the general stock of 
the trader. 

I cannot consider all this as a mere irregulari- 
ty, I think it worse, and I am afraid that one of 
the keys to these omissions, which I must frai 
consider wilful omissions, is to be found in the 
fact of the house built at Boche Bois, during 
the Bankrupt's course of trade and owned bj . 
the Bankrupt's intimate friend. Miss L^onide 
Boisset. That L6onide Boisset had money in the 
Savings Bank, is perfectly true, that, besides that 
sum, she may have had money kept by her at 
her private residence, is also possible ; but the 
house cost, altogether, it is admitted, ^3,500, and 
the sum she baa at the Bank, falls very short in- 
deed of that amount. Now it is exceedingly bus* 
picious that there is not a title of evidence which 
can be shown of the fact she earned money by 
buying goods at auction and selling them again ; 
no vouchers, no memoranda, no receipts, no wit* 
nesses, nothing. Whilst on the other hand, ex- 
cept for the notarial purchase and acquittance 
deeds which she signs herself, nothing is brought 
forward to prove that she bought or paid foe 
any portion of the material used to build the 
house. The witnesses all dealt with Dinne- 
matin, Received their money from Dinnematin, 
upon accounts in Dinnematin's name ; Edouard 
Pierrot, the timber merchant, says, the Bankrupt ^ 
told him he was building at Boche Boi^ and gave 
him his '* Bon " once and accepted his accounts ; 
but since the Bankruptcy and when the witness 
had been subpoaened, the Bankrupt went to him 
and said the timber had been purcmase 1 to build 
a house for Mies Boisset whose name had never ' 
been mentioned before the Bankruptcy. Another 
circumstance again occurs : the Bankrupt says that 
the house was built on account of Miss Boisset 
and paid with her money ; now, when Frappier 
who is not married to but who lives with L6onide 
Boisset's sister is sent by Dinnematin to Pierrot 
to pay him a certain sum on account, Pierrot de- 
clines and says that Dinnematin owed him mubh • 
more, but that if Miss Boisset would guarantee 
the amount due to him by Dinnematin, he would 
accept $S0 in part payment. 

But this is delivered by Dinnematin who says 
that certainly he woiild not ask Miss Boisset for 
her warranty. Why not, if the house is in rea- 
lity Miss Boisset's ? Dinnematin added, if is true, 
says tho witnesB,.that Miss Boisset had given him ' 
money ; what has he done with it ? where does it 
appear in his books, as money received ? After ; 
reading the evidence of Aofray, Pierrot, Erappier 
and Lconide Boisset herself, upon this point, the 
gravest doubts remain in my mind, and although 
it niay be that the assignees do not find sufficient 
evidence before them to bring an action declaring 
the house in question to be, in reality, Dinnema- 
tin's house, and they are sutely right not to risk 
good monev if their case in not complete, still, 
for the purposes of this Bankruptcy and dealing 
with the Bankrupt alone, and in no wise touch- 
ing the rights of parties that are not before 
me, I am not satisfied with Dinnematin's state- 
ment. I am not satisfied with Lconide Boisset's 
account of the transactions touching the house 
at Boche Bois. 



1869] 



COURTS OP MAURITIUS. 



31 



As I have already stated, the spirit of the law 
is not to punish omissions and irregularities in 
Book keeping, which can be explaiaed ; but what 
iiference can I draw from what has been by the 
assignees, and not without truth, stated to have 
been a systematic plan of carrying.all sums re- 
ceived or surcharging books ? The "main couran- 
te " and the Cash-book do not agree ; this occurs 
constantly ; yet the additions \a.\\y. But there 
are alteration in the "main courante *' Book ; 
inde 1st Book " main courante/' alterations such 
that whilst anxious, so far as I can, to give the 
Bankrupt the benefit of any . reasonnable doubt 
that his explanations may have created in my 
mind, I am led to bielieve that Mr. Descoius, the 
assignee, is right when he says that one word, and 
tliat word is ** Deficit," is the only way to ac* 
count for this strange state of things. 

It is. very true that in the minute investigation 
which this Court has been able to make, it occa- 
sionnally happen^ that the Books show that Din- 
nematin would have received more than he has 
actually received ; but to say the least of it, this 
would hardly be a sufficient explanation. I am of 
opinion that adding to one side of the Book a 
lamp sum to make up a balance, must almost, to a 
ceminty, be a false entry. Whether with the 
premeditated intention to deceive, may or may 
not be the case, but in either case, a false entry 
quite unworthy of the slightest confidence. It 
really seems as if the Bankrupt thought that if the 
additions were correct, the entries to make up the 
items to be added up were perfectly immaterial 
and might be left to the freaks of his fancy. The 
evidence of Descoius seems to me very strong and 
IB not, I thiiik, shaken by that of the Bankrupt's 
accountant who points out mistakes made by 
Descoins. In comparing the two statements 
with the books, there is a great deal of trust in 
wliat Descoins eays when recalled : ''I had turn- 
ed'my attention merely to the more material er- 
rors, and the mistakes pointed out by Dinnema- 
tin, merely added to the number of mistakes in 
his books." The Bankrupt is charged with hav- 
ing obtained goods from his creditors under the 
false statement that be was not embarrassed in 
his affairs. There is no doubt, he told, that if 
some time were given to him, if he could get 
soods to assort his shop, all would go well ; there 
19 no doubt that with his scanty and limited trade, 
having neither large operations from the success- 
ful iesue of w^hich he could expect to recover 
his position, nor any anticipation of crops which 
however delusive often, might have created hopes 
which are occasionnally realized, he could hardly 
suppose that he would right himself and lay a 
brighter state of affairs before his creditors. Still, 
of his stood alone, there is not enough in the 
somewhat indistinct notion conveyed to the 
Court by the statement of conversations held at 
one time with the Bankrupt, at another with his 
broker, to lead me to refuse a certificate ; but 
this does not stand alone, and coupled with the 
very unsatisfactory account of his salep, of his 
receipt, I am compelled to believe that in this 
occasion also, the Bankrupt's conduct has lacked 
candour and fairness. 

It was urged that the Bankrupt's losses 
arose greatly from the fall in the price of 
piece-goods on this market. This point which I 



have already incidentally noticed, is not made out, 
except in one or two petty instances in which a 
loss is proved upon the sales of goods, instances 
which, after all, are not clear and relate to sale 
prices which may not apply to the special goods 
said to have been bought at a higher price. There 
is no connexity. But I may assume that just 
as prices rose during the Civil War in the United 
States, when peace was restored prices may 
have fallen ; but Descoins states that this would 
affect a trader like this Bankrupt in no very 
great measure. In fact he used to buy al- 
m.ost month by month, and sell almost as much 
as he bought ; he would, in a limited measure, 
profit by the rise, in a limited measure lose by 
the fall. He may have done both, the trading 
extending over a period antecedent to, and a pe- 
riod posterior to, the end of the war. But this 
does not appear from the Books ; it has not been 
pointed out to me, except as I have just stated 
above, and surely if instances of important losses 
had occurred, those important instances might 
and could have been pointed out from the Books. 

On the whole, then, I must refuse the certifi- 
cate prayed for, and withdraw protection for 
two years. At the expiry of three years, the 
Bankrupt may apply again, in terms of the Or- 
dinance. 



SUPREHE COURT. 



GeBTIOBABI, — CoiTTRAVENtlON, — CeoWIT PbO- 
SECTJTOB, — CeOWN S6LICI1?0E^— PeOCTJBETJB 
ET AVOOAT GeNEBAL, — BlAINTE. 

Ze JBrocureiir General de ceite c6lonie,a seul le droit 
d'e^ercer des jpowrsuites j>our toute offense com- 
mises eri ceite tie, Bevant les Gours de District 
en matiere correctionnelle, il peut se faire repr^- 
senter 'par toute personne capable ; mais ces pour- 
suites doivent itre faites en son nam et signees 
par son representant, Des pov/rsuites en pa- 
reiUe matiere ayant ete faites par le ' Chvum 
Solicitor* au nom personnel de ce dernier, et en sa 
qualite de representant du Frocureur General, 
oni ete annulees 'par la Cour, 



CeBTIOBABI, — CONTBAVENTION, — CbOWN PbO- 
SECnTOB, — CeOWIT SoLTCITOB, — PBOCUBETmi 

AND Adtocate General,— Infobmation. 

The Procureur and Advocate General of this colony 
is the only officer empowered by law to prosecute 
offenders in this island. Re is' empowered to de- 
pute any fit or proper person to prosecute, under 
his (the Procureur GeneraVs) direction^all offences 
triable by and before tlie District Oourt ; but such 
prosecution must, under pain of nullity, be made 
in the name of the Procureur General, and signed 
by such deputy. Where such prosecution was 
made by. the Grown Solicitor in his own personal 
name, as deputy of the Procttreur General, the 
OovH held the information filed by the Grown 
Solicitor, to be null* 



32 



DECISIONS OF THE 



[186» 



THE HON. THE ACTING PEOCTJBEUB 
AND ADVOCATE GENERAL 

ver9U9 

THE JUNIOE DISTRICT MAGISTRATE 
OF PORT LOUIS. 

Before : 

His Honor Sift C. F. Shand, Chief Judge and 
His Honor Mr. Justice Bestel. 



Tke Hon. J. L. Colin, Acting Procureur <fc Ad- 
vocate General, of Coun^ 
sel for the Crown. 

The Hon. V. Naz, — Of Counsel for the Junior 

District Magistrate. 



28/A uli/Wn 869. . 

This was a motion for a Writ of Certiorari, to 
remove to the Supreme Court, a Judgment given 
on the 20th day of March 1869, by the Jwnior 
District Magistrate of Port Louis, in the matter 
of the prosecution of Fahien Fastourel^ Doctor of 
Medicine, before the District Cour^ of Port Louis 
The said Wiit was prayed for, on the following 
grounds :— 

Mrstly, Because while the District Magistrate 
admitted that one William Oreene, styled Acting 
Oroum SoUicitor, was duly deputed by Heb Ma- 
jesty's Acting Procureur avd Advocate General 
to prosecute the said Fabien Pastourel, he (the 
District Magistrate) held and decided, contrary 
to law, that the said William Greene was not 
entitled in virtue of the powers so deputed to 
bim in his own personal name, and as such Acting 
Crown Sollicitor, to lodge an Information against 
the said Fabien Pastourel. 

2ndly, Because the Magistrate held and de- 
cided that, even if the said William Greene had 
the right to lodge the said Informatipn, it should 
have been lodged on affirmation, whereas, in law, 
the said Information did not need to be affirmed 
by the said William Greene, inasmuch as in 
virtue of the powers deputed to him as aforesaid, 
the f aid William Greene was Crown Prosecutor 
in that case. 

Upon notice of the intended motion on the part 
of Honble, the Procureur and Advocate General 
to the District Magistrate, the latter hastened to 
send up to the Court the Record in the matter 
of the prosecution by the said William Greene 
against the said Fabien Pastourel. 

The presence of the Record in Court rendered 
useless the issuing of the writ of certiorari ; the 
Court, therefore, at once proceeded with the 
hearing of the motion on its merits. 

The Honorable the Procureur and Advocate 
General supported his first ground of objection 
to the Judgment delivered by the District Ma- 
gistrate, by reference to Art. 1 of Ord. No. 29 



of 1853 (commonly called '^ Criminal Procedure 
Act ") which runs in the^e terms: *'Her Majesty's 
*^ Procureur General, in the colony, is empowered 
*^ to prosecute all oflfenders in the name and on 
'^ behalf of Her Majesty the Queen, by himself^ 
" or, under his directions, by his deputy, provided 
'^ that, except in the District Courts, no person 
" shall be so deputed to act on the trial of any 
'' party charged with felony or misdemeanour,. 
" unless he be of the degree of a Barrister -at-law 
'' or Advocate, and of three years standing at the 
" Bar." 

Whence it was urged by the Procurear General 
that his Deputy necessarily enjoyed the right of 
prosecution conferred upon the Procureur Gene- 
ral, the first act towards which was the filing oC 
an Information against all such offenderv, and of 
signing the same. And further, in support of 
his second objection, that as the Procureur Ge- 
neral is relieved from the necessity of any oath 
on filing a Criminal Information, so must his 
deputy be relieved from the necessity of any af- 
firmation, contrarily to the decision of the Dis* 
trict Magistrate. 

In acknowledging the unequivocal right of the 
Procureur General of prosecuting offenders, bj 
deputy, in the District Courts, the Magistrate^ 
from the wording of Art. I of Ord. 29 of 1853^ 
inferred that the only power which can be con* 
ferred to his Deputy, by the Procureur General, 
consists merely in his acting, on the trial of any 
offender, in lieu and stead of the Crown Proee« 
eutor, (viz) the Procureur General. 

And that assuming, however, the right on tte 
part of the Deputy of the Procureur General, to 
sign and file a criminal Information, the lattev 
should be laid upon affirmation (Art. 6 Ord. No. 
35 of 1852. District Magistrates Ord : Criminal 
Side) which requisite does not appear on the fseo 
of the information filed in this case. 

The District Magistrate made no answer to 
the argument of the Procureur Genera], and con- 
tented himself with leaving, for the coasfderation 
of the Court, the motin of the Procureur General. 

JUDGMENT. 

The power of prosecution is confided, by the 
criminal Procedure Ordinance, to the Procureur 
General, alone. He is the only Officer empowered 
by law to prosecute all offenders (Art. 1 of Ord i 
No 29 of 1853.) But as it is plain that the Pro* 
cureiir General could not be in attendance before 
the several Courts of the Island, on the same 
day, and perhaps at the same hour, it became 
necessary for the despatch of public business ta 
provide against such an impossibility. There 
fore it is that he is first provided with a 8ubsti« 
tute Procureur General to assist him in the di8« 
cha^^ge of his duties before- the Supreme Court, 
and other Courts of the Colony. 

It became also necessary to provide against 
impossibility of the Substitute's attendance in 
the several Courta, at one and the same time. 
Hence it was provided by the Police Ord : No 11 
of I860, amongst other duties laid upon the Po« 
lice force, that the latter " do exhibit Informa* 



1869] 



COURTS OP MAUBITIUS. 



tioDs and conduct prosecutions for crimes, Mis- 
demeanours and Contraventions, subject &a." 
(Art 21 No. 10) ; but every such information 
not being laid by the Crown Prosecutor (vizt : ) 
the Procureur General, is to be laid upon aflBrma- 
tion. (Art C Ord. 35 of 1852.) 

The Procureur General is further empoMV^red 
by Art 1 of Ord. No. 29 of 1853 (Criminal Pro- 
cedure Ordinance) to depute any fit nud proper 
person to prosecute utider his, the Procureur 
G-enerars directions, all offences triable by and 
before the District Courts. 

The Information laid before a Magistrate by 
the Deputy specially appointed by the Procureur 
General, whenever occasion may require,6hould be 
laid by the Deputy in the name of the Procureur 
General, to whom, alone, the right of prosecu- 
tion has been confided by law. Such Infor- 
mation running in the name of the Procureur 
General who (by the bye) is a sworn OflScer «.f 
the Crown, requires no affirmation on the part of 
the Deputy, because it is the Crown Prosecutor 
who by his deputy, and not the Deputy as such, 
wlio informs the Court of the offence complained 
of. 

The deputy must, however, sign the Criminal 
Information, for the sake lo. : of identifying hini^- 
self with the Criminal Information laid by the 
Procureur General ; and 2ndly, for the purpose 
of establishing his identity with the individual 
alleged, in the body of the Criminal Information, 
to have been deputed by the Procureur General. 

The better to elucidate our meaning, we shall 
refer to a Form given in the Original Draft of the 
Criminal Procedure Ordinance, by the late 
Ohttf Judge Surtees^ not as law, but as a form 
which appears to us to meet the requirements 
of the law on this head. 

" District of Mahebourg. — ^To wit : Be it re- 
membered that the Honorable A. B, Procureur 
General of Our Sovereign the Queen, prosecut- 
ing, herein, in Eer name and on Her behalf, by 
E. F.y Clerk of the Feaee^ informs Her Court of 
General Sessions of the Peace, in and for the Dis- 
trict of Mahebourg, that John Price of etc." The 
Information, says the note at the foot of the 
above form, should be signed by the Clerk of the 
Peace, instead of the Procureur General. 

The Criminal Information, in this case, runs 
Bot in the name of the Procureur General by his 
Deputy, Greene, Acting Crown Solicitor, but in 
the name of the Deputy Greene, who informs 
the District Court that the offence therein men' 
tioned hat been committed. The Criminal In- 
formation is signed by the Deputy, not as such, 
but as Acting Crown Solicitor. 

That Criminal Information we hold to be bad 
in law, because it should have bten laid in the 
name of the Procureur General, who alone, has 
the right of prosecution, whether in person or by 
Deputy ; be the Deputy who he may be, and the 
Information thould have been signed by the 
Deputy as saeh, witb or without any further ad- 
-dition or additions. 



SUPREME COIKT. 



ASSUBANCES CONTEB L'llfCENDIE, — InDEM 
CeSSIONNA-IBE, — EXPEBTISE. 

Le cessionnaire eventual de Vindemnite stipu 
une Police d* Assuranres contra V Incendle. 
reclamer le paiement de cette indemnite i 
Vaccomplissemeni des formalites stijpuleea 
Statute de la Compagnie d^ Assurance et 
mement d ces Statute. 

Specialement, le cessionnaire ne pent pours 

Compagnie, enpaiement de la portion d'in 

qui lui a ete transfh'eey taut que Vexpertis 

nue dans lee Statute de la Police d' Assure 

pas eu lieu entre la Compagnie et V assure. 



FiHE Insubak^cb, — Indembtitt, — ASSIGNEI 

PBAISEMENT. ( " EXPEETISB. " ) 

The Assignee of a portion of the indemnit] 
Jated in a Fire Insurance Policy y canm 
payment of such portion of indemnity, pre 
the fulfilment of the formalitiep enactei 
Statutes of the Policy ^ having taken pU 
otherwise than in execution of such statui 

As a consequence, such assignee cannot 
Company f for the payment of the share o) 
nity transferred to him, before the appn 
{expertise) provided for in the statutes 
Policy has taken plaice "between the Insti 
the Company, 



Emilb DIOEE,— Plaintiff. 

versus 

THE MAUEITIUS FIEE INSTJEA 

COMPANT,-~Def€ 



/ 



Before : 
The Hon. Justice Bestel. 



L. BoinLLABI), 

C. Gauteat, 
Hon. L. Aenaud,- 

J. PiGNEGUT, 



Of Counsel for Plai] 
-Plaintiff's Attorney, 
Of Counsel for Deft 
•Defendants' Attom< 



28th April 

The Plaintiff had lent a certain sum of 
to wit : ;$370, to one Judgaunauth, sec 
the mortgage of a real property situate nt 
Bois," on the condition that the mortgf 
iosure the building existing on the land c 
gaged. 

The mortgageor, Judgaunauth, perfor 



84 



DECISIONS OF THE 



[1869 



condition laid upon him and effected, on the 
22Qd JuDe 1868, with ** The Mauritius Fire la- 
Burance Company,'* au Insurance for ;^l,200. 

The Insured, on the 3rd September 1868, as- 
signed his Policy of Insurance to Emile DiorS, 
the Plaintiff, in guarantee of the payment of the 
said sum of $370. 

The assignment was noted by the Company, 
on the very day of the transfer (viz ;) 3rd Sep- 
tember 1868, as appears from the indorsation 
made by the Company, on the Policy of Insa- 
rance. 

In the night of the 24th to the 25th Novem- 
ber 1868, a fire broke out on the premises of 
Judgonauth, and burnt down a pavilion bearing 
No. 1 in the Policy of Insurance, and insured for 
the sum of S800, and damaging another pavilion 
bearing No. 2 in the same Policy, and insured 
for ^200. 

Notice of puch fire was given to the Insurers, 
on the 26th November, one day after it had 
taken place, by Simonet, the Attorney of JuH- 

fonauih, who gave a similar notice to the Junior 
)istrict Magistrate of Port Louis, who, at once, 
proceeded to enquire into the cause and extent of 
the fire. 

Some time having elapsed without any settle- 
ment having been come to between the Insured 
and Insurers, Judgonauth empowered Emile Dio- 
t6 to receive, direct from the Company, the sum 
above mentioned of $S70 out of the amount of 
indemnity to which Judgonauth might be enti- 
tled. 

The settlement of indemnity being still delay- 
ed, Dior6 brought this action against '* The Mau- 
ritius Fire Insurance Company, " in payment of 
the sum total of $SS^ 04c, both for the principal 
sum of ^370 with the interest thereon at the rate 
of 9 op per annum, that is $IS Oi from 3rd 
September to the 26th January 1869, without 
prejudice to any other interest hereafter to be- 
come due. 

On the case being called for trial, L. BoutL- 
LABD for Plaintiff, after opening the facts 
above mentioned, examined his witnesses with 
the view of establishing the loss alleged to 
have been sustained by the Plaintiff through the 
laches of the Company, which, though aware of 
the partial assigment of Judgonauth to Plaintiff, 
ever since the 3rd September 1868 and of the ex- 
istence of the mischief done by the fire to the 
buildings insured ever since the 26th November 
following, had taken no step until after action 
brought for tbe final adjustment of the rights of 
parties. When the necessary steps were taken, 
the loss sustained by Judgonauth was ascertain- 
ed in presence of Judgonauth without the pre- 
sence of Plaintiff, to whom no Notice was given 
of any of the proceedings, who> however, as assi- 
gnee of the Insured, had an interest in attending 
the expertise resorted to. The policy of Insu- 
rance, said Hon : L. Abnaud, for the Company, 
clearly establishes the existence of a contract be- 
tween Judgonauth and the Company. 



The assignment is shewn by the endorsement 
on the Policy, to have come to the knowledge of 
the Company. But this assignment grafted upon 
the original contract, confers on the Plaintiff, as 
such assignee, no other rights than those apper- 
taining to the assignor. 

The assignment cannot affect the contract en- 
tered into between the original parties to the 
contract of assurance, the assessment of which 
must be made in the manner and at the time 
provided for by Art. 19 and 24 of the conditions 
of the Policy of Insurance by and between the In- 
surer and Insured. 

The presence of the assignee of the whole or 
part of the indemnity can be of no assistance 
towards the ascertainment of the amount of loss 
sustained. Should be, however, apprehend any 
combination prejudiciable to his right between 
the Insured and Insurer, he had merely to inter- 
vene in the matter, for the protection of his 
rights. 

The acceptance of the transfer, by the Compa- 
ny, is tantamount to an attachment in the bands 
of the Company which would be liable to the as- 
signee were they to pay the amount assigned to 
the Insured, without a special authority to that 
effect from the assignee* 

JUDGMENT. 

The point raised in this case, is not without ita 
difficulties, which, however, are more apparent 
than substantial. Eor, on looking at them more 
closely, those difficulties which lie merely at the 
surface, soon vanish away and leaves us inpre- 
sence of a stern reality which is any thing but 
favorable to the Plaintiff's action. 

Ist. The parties to the contract are the Insur- 
ed and the Insurers. 

Their right and liabilities are to be determined 
by the law they have laid down to themselves. 
The assignment of any portion of the Insurance 
money cannot alter the law so laid down between 
parties to that contract. The extent of the da- 
mages sustained, the mode and time of assessing 
those damages, of making good the latter, can 
only take place in the mode and at the time or 
times stated in the Policy of Insurance which is 
the law of parties. Nowhere is it stated in the 
Policy that in case of any assignment of the 
whole or part of the indemnity, the assignee shall 
be present or called upon, either by the Insured 
or Insurers, to attend the expertise which the 
original parties to the Insurance Contract have 
stipulated should take place in the manner and 
within the time mentioned in Art. 19 and 24 of 
the conditions of Insurance. Let us test this 
by the Jurisprudence of the French Courts. The 
only French text-book we have on terrestrial In- 
surance, is the work of Pouoet. What does he 
say on sucb transfers P In'yolume 1, under Ar- 
ticle ** Paiment," pages 570 and 571, we read : 

^'11 existe nne leg^re distinction entre la 
*' deUgoHan et le transport erentuel d'indem- 
nit^. 



1869J 



COURTS OP MAURITIUS. 



36 



" La dSlSgatioQ est an acto parfaitemeDt yala« 
** ble, aux termes daquel I'assure, aprds I'iQcen- 
** die, del6gue soit la totalite soit aae partie de 
" I'indemDit^ h laquelle il a droit ; dans ce cas et 
*^ lorsque la d616gatioa porte sur la totalite de 
" rindemnite, lepaiement doit ^tre fait directc' 
^' ment an creancier, et la quittaoce enoDce en 
'' quelle quality il agit ; mais> pr^alablement 
'* la compagnie doit avoir fait approuver le regie* 
*' ment da sinistre par, Vassure^ et obtenir d^* 
** charge poar ce fait. Le transport eventuel 
** d*indemnite est I'acte par lequel un d6biteur 
" c^de h son creancier hypothecaire Pindemnit6 
^' 6ventuelle ^ laqaelle il pourrait avoir droit 
^' apres Tincendie des immeubles hypothequ^s. 
'* Ce transport confere les mimes droits que la 
M delegation, encore bien qu'il ait lieu avant Pin- 
^* cendie," 

The same rale holds good as to a 'partial de- 
legation of the indemnity ; under the head 
" Transport," Vol.i2, p.p. 949 et 950 of the same 
work, we read : 

" Lorsque remprnnteur d^l^gue an pr^teur 
*^ Pindemnit^ qu'il a h recevoir de Passureur, en 
'' cas d'incendie de Pimmeuble hypoth^quS, ce 
*^ transport doit sortir son entier effet.!' 

'' Si le transport est prim6 par une opposition, 
'* il ne pent prejudicier aux droits anterieure- 
" ment acquis. 

'^ Le transport ^quivaut alors a une simple 
** opposition,'* 

In volume 1 Vo. *'Paiement," p, 571, the 
writer says ; 

'^ Si ind^pendamment des delegations, quelles 
** soient pour tout ou partie de Pindemoite,!! a ete 
*^ signifie des saisies arrets, les agents (des maisons 
'' d'assurances) doivent, aiasi que nous Pavons dit 
Vo, *' Opposition," se garder de juger la question 
de preference. lis se bomeront h, demander le 
concours h, la quittaace, de tons les creanciers de- 
legataires et opposants et celui de Passure, ou 
bien que celui-ci fournisse la maiu levee des sai- 
8ies-arrej;s pratiquees centre lui et la renoncia- 
tion au benefice des significations de transport, 
^uquel cas Pindemnite pent dtre payee h, V assure, 
lui-meme, et sur sa simple quittance, en y men- 
tionnant les main- levees des oppositions ou les 
renonciationa aux delegations ou aux transports." 

The necessary inference from those quotations 
are that the assignee, the Plaintiff in this case, 
will be fully entitled, unless there exists some 
cause of preference on the part of any other ere- 
ditor unknown to the Court, at present, to the 
Bum claimed by him out of the amount of the 
indemnity, if any, which shall be found against 
?<The Mauritius Eire Insurance Company," in 
conformity to the provisions of Arts. 19 and 24 
of the Policy of losuranee of the 22nd Jane 1 868. 

That the acceptance by ^' The Fire Insurance 
Company," of the assignment, is equivalent to au 
attachment which would make it obligatory on 
the company not to part with the indemnity in 
fiiyor of the Insored, without previoua deduction 



of the sum assigned, on pain o rendering them- 
selves liable for the same.to the assignee ; that 
there is no authority in the Colonial law, nor in 
the jurisprudence of the French Courts making 
it obligatory, either on the assurers or insured to 
call the assignee to be present at any of the 
steps required by the Policy of Insurance, for ar« 
riving at the settlement of the indemnity to which 
the Insured might ba entitled. 

But, of course, should the assignee, on becoming 
aware of the existence of the fire, deem it advi- 
sable for the better protection of his rights to 
intervene, I am not aware of any law prohibiting 
his interference in the settlement of the indem- 
nity. 

To this end a Notice to the Company would be 
sufficient to secure his object and to prevent any 
thing being done without his presence and to the 
prqjudice of his lawful rights. 

* 

Whether the Colonial law or the jurisprudence 
of the French Courts be referred to, I must come 
to this conclusion that this action must be dis- 
missed, unless the Plaintiff should elect to be 
non-suited. 

Costs against Plaintiff. 



BAIL COURT 



Saisie abb£t, — Tiers saisi. 

Le dehiteur d*une eriance, entre les mains duquel la 
dite creanoe a ete saisie arretee, est neanmoim 
tenu de la payer au creancier, si dans les delait 
voulus par la loi la demands en validite de la 
dite saisie arrSt n'a pas eU denoncee. 



AtTACHMEI^T to money,— Q-AEiriSHEB. 

The debtor between whose hands the debt has been 
attached, is, nevertheless, bound to pay the samei f 
the demand in validity of such attachment has 
not been notified to him within the delays pre' 
scribed by law. 



F. EICHEB,— Plaintiff, 



versus 



OOLAic HossEir MAMODE,— Defendant 



Before I 
The Honorable Mr* Justice Bsstxl. 



36 



DBCISIOWS OP THE 



[1869 



I. EouTLLABD,~Of CouDsel fof Plaintiff. 
B. DB I'HAZAL, — Plaintiff's Attorney, 
W. Newton, — Of Counsel for Defendant. 
W. FiNNiss, — Defendant's Attorney. 



29M 4prt7 1869. 

The Defendant bad received goods by the ves- 
sel Le^jo» of Honor, Williams roaster ; he had paid 
2/3ds of the freights due to the ownerd in the 
person of Eicher, the Plaintiff, as Consignee and 
Agent of the owners, and as such entitled, as 
admitted by the Defendants, to recover such 
freight, when one Mahomed Kassen alias Mallam 
Hassen, on the 20th January last, attached, in 
Defendants' hands, all sums of money and other 
property whatsoever which the Defendant, in this 
case, owed or might owe on whatever account to 
P. William, master of the said vessel, and espe- 
cially the sum due by Ihe Defendants for fhe 
freight of divers merchandizes shipped on board 
of the said vessel, to secure payment of the value 
and damage due and suffered by the attaching 
party, for the non-delivery of one case of iron 
spoons shipped on board of the said vessel con- 
signed to him the attaching party. 

This attachment was brought to the notice of 
the Plaintiff by Defendant who, at the same 
time, expressed his readiness to pay the balance 
remaining due upon the freight, on renewal of the 
said attachment. 

The validity of that attachment was not applied 
for by the attaching party, nor any notice served 
upon the Oitrnishee, within the time required by 
-Article 665-0. P. C. 

The attachment being of the 20th January, 
should have been validated, at the latest, on dlst 
January. No such demand was ever made and 
still less served upon the Garnishee. 

And yet aitho* served with the Plaintiff, on 
4th February last, calling upon him for the pay- 
ment of the oalance of freight due by himj the 
Pefendant thought fit to deposit the balance 
claimed into Court on the 12th February last, 
and now seeks to be relieved from payment of 
any interest and from the costs of this action, 
on the ground that he was not, nor, could he be 
a judge of the validity of the attachment pot into 
his hands by the attaching party, whether rightly 
or wrongly. 

Assuming him to be no judge of the merits of 
the attachment, yet the time for the validation of 
that attachment having expired before he was 
legally called upon to pay to the Plaintiff the 
amount attached in his hands, it was his bounden 
duty to have paid the money demanded of him, 
especially the time for validating the attachment 
having expired, and that. up to this day, no de< 
nunciation of the demand in validity hais been 
served upon. 

This he might safely have done, as ^' Faute de 
denonciation de la demafide en validite, an tiers 



snisi, les paiements par lui faits jusqu'^ la denon- 
eiatio!i seront valables. (Art. 565 C. P. C.) 

Jud^'ment will, therefore, be entered for Plain- 
tiff, with interest at 12, from the service of the 
Plaint, with costs, arrest in execution, three 
years impriso'.raent. 



SUPREME COURT. 



DrvoECE, — Adulterb,— Desaveit d'ekfant. 



DrVOBCE, — Aj)iniTEBT, — DiSATOWAL OP A CHUJK 



E. THE HUSBAND,— Plaintiff, 



versus 



E. THE WIFE, -Defendant. 



Before : 

His Honor the Chief Judqe and 
His Honor Mr. Justice Bestel. 



The Hon. V. NAz,-«Of Counsel for Plaintiff. 
J. PiGNEOUT, — Plaintiff's Attorney. 



2^th April 1SS9. 

This was an action for a Divorce d vinculo 
matrmoniif on the ground of Adultery committed 
by the Defendant during the temporary absence 
of her husband, the Plaintiff, from the Island. 

On his return to the colony, the Plaintiff in- 
troduced into this Court, an action in disavowal 
of the male child to which the Defendant had 
given birth on or about the 25th day of May ia 
the year 1867. 

^ On that action, the Plaintiff succeeded, and 
\iy a Judgmr nt of this Court, of the 5th May 
1868, the said male child was declared not to be 
the isdue of tha legitimate marriage of the Plain- 
tiff with his wife, the Defendant. 

The Plaintiff having thus proved his case and 
established tho Adultery which is the ground of 
the Divorce now prayed for ; the Court, with the 
concurrence of the^ Miniature public, " is driven 
to the necessity of dissolving the marriage 
bond, wherein pfl^ties were respectively heldeii, 
and the Plaintiff is hereby authorized, <m eom- 
pHanco vnth the requisites of the law in matters 
ofDivorce, to summon the Defendant before the 
Officer of the Civil Status, who is hereby em« 
peweved to pronounce the Divorce hutehj 
allawed. 



1869] 



COURTS OF MAURITIUS. 



SUPREME C61RT. 



SOClixi OlTILE, — ASBITBAGE. 

Dans rm acta de sodete civile, lea parties peuvent 
convenir que certaines contestations qui pourront 
s^Slever entre les assodes seront souniises au Juge- 
ment d^a/rbitres choisis par les assodes; mais 
cette dause ne sera valahle qu*d la condition de 
specifier d^tme manvere predse les questions qui 
devront Stre soumises aux arhitres et de nommer 
les arUtres. 



Civil Fabtnbbship,— Abbitbatobs. 

The jparties to a deed of Civil paHnersTUp may agree 
ihat certain contestations which may arise between 
the partners shall be subrmtted to arbitrators ap- 
pointed by the said partners ; but such clause 
tdU be lawful imder the condition of svffijciently 
specifying the subject matter to be referred to ar'^ 
titration and of naming the Arbitrators, 



eALDBMAR FRfiBBS,— Plaintiffs, 

versus 
WIDOW DIOEE AOT Obs,— Defendants. 

Before : 

His Honor Mr Justice Bestel, and 
His Honor Mr Justice Colik. 



P. L. Chabtbllibb," 

F. ViCTOB, 

!B. Pellebjsau, 
J, Mebcibb, 
A. Leoall, 

J. PlGNEGUT, 



•Of Counsel for Plaintiff^. 

■Plaintiffs' Attorney. 

-Of Counsel for Wid. Dior6. 

-Attorney for same. 

-Of Counsel for J.J.Wilson, 

-Attorney for same. 



29th April 1869. 



The Plaintiffs in tliis case, seek to obtain from 
the Court, an Order for the dissolutioa of a Civil 
Partnership entered into on the 28th October 
1867, by the Plaintiffs and the Defendants, for 
the purpose of working the Sugar Estate JRich" 
fmd, situate at " La Bris^e Verdiere " in the 
District of Flacq. The Declaration i-ets forth 
the grounds upon which the Plaintiffs rest their 
case, grounds into which, for the purpose of the 
point raised by the first Plea, it is now immate- 
rial to inquire. One of the Defendants, the Widow 
Pierre Diore, pleaded as a first plea, that, "the 
deed of Partnership entered into between parties 
and mentioned in the Plaintiffs* Declaration, sta- 
ting that all the difficulties or contestations which 
might arise between the partners, shall be sub- 
mitted to the final Judgment o^ two arbitrators 
appointed by the said partners, and stipulating 
that in default of the partners to appoint such 
arbitrators, the said arbitrators shall be appointed 
by Justice to whom the faculty is left of naming 
1^ third arbitrator to diyide them, if necessary ; 



the Plaintiffs are debarred by the afores] 
from the right of entering any action for 
solution of the said Partnership before 
preme Court, and ought to be referre< 
arbitrators appointed by the partners oi 
tice, to decide upon the contestations a 
tween parties. 

The other Defendant, Julius Josephus 
did not join in the aforesaid plea. 

The Plaintiffs contended that the pL 
jurisdiction of the Court, was untenable 
grounds : lo. because parties could not 
as to oust the jurisdiction of the Court; 
cause the reference did not and should hs 
the names of the intended arbitrators ; 
cause supposing the reference yalid, it 
applied to the discussions that might 
tween parties, and did not touch the exi 
the partnership, the essential question 
it should be ordered to determine, or to 

The clause in the contract upon whi 
the plea, of which the plea is but the e 
thus: 

" Toutes questions relatives aux afi 
'' la society, seront d^cidees a la majc 
'' Yoix des associes, et enfin, toutes diffi( 
" contestations qui pourront s'6lever e 
" associes, seront soumises au Jugement 
^' nier ressort, de deux arbitres choisis 
'' dits associes. Faute par ces derniers 
" sir ces arbitres ils seront nommes pai 
*^ avec facuite a eux de s'adjoindre un 
" bitre pour les d^partager, ^'il y a lieu.' 

In the very able argument laid befc 
both sides on the first point urged ag2 
validity of the clause of reference, we w( 
struck with the great divergence of opinic 
upon this questio vexata, has arrayed i 
learning and weight oi authority on eitl 
If Pabdessus, No. 1391, Cabbe 9. 3 
many other commentators and Courts 
the validity of the clause, Mbblin (Q. d 
TnoMiNE Desmazubes and other no less 
conimentators and learned Courts are ir 
of the contrary doctrine. It is a rule 
that Courts of Justice will construe th( 
tion 0^ parties, so as to give effect to the 
lations, provided these be not prohibited 
But can parties covenant that their fui 
putes shall be so dealt with, that one < 
shall be deprived of the power of resorl 
** Court of law to enjorce bis rights or to ^ 
medy for his wrongs ? 

Upon this question of doctrine which 
one of universal application, not limited 
special laws of one countrj, we were ref( 
the law of England as an illustration re 
more easy the solution of the whole eubj( 
England, likewise, the question has givei 
a good deal of discusBion. Until the in 
case of Scott v Avery (House of Lor 
Law J Rep. N. IS. Exch. 38) it was 
clear that the agree n tent to refer \ 
binding, so far as it could oust the jurii 
of the Courts. Since that case was 
the Court of Exchequer in Morton y 8c 



SB 



DECISIONS OF THE 



[18e» 



Law J. Bep. N. S. Exch. 28) baa upheld the 
principle that the clause was not binding which 
absolutelj ousted the Judepment of the Court, 
distinguishing that general principle from the 
special facts in Bcott y Avery^ where the ju* 
nsdiction of the Court was not absolutelj ousted, 
but a condition precedent to the right of action 
had been corenanted for, that is, that before 
action could be brought the damages should be 
ascertained by an arbitrator.In another case Scott 
V 77ie Corporation of Liverpool^ (28 Law J. Rep. 
N. S. Chanc. 2. 30), the Lord Chancellor affirm- 
ing the decision of Stuart t. c. and the opinion 
of Erie, J., held '' that the parties to the agree- 
ment have provided before hand for the settle- 
ment of any disputes that may arise on the rights 
and liabilities growing out of the contract, by the 
arbitration of persons mentioned in the agree- 
ment, or to be determined when disputes arise. 
Such a stipulation cannot be urged as an answer 
to either party who prefers to resort to the Courts 
for the determination of his rights, nor can it de- 
prive the tribunals of the country of their juris- 
diction, whatever remedy may be open to the 
parties against whom proceedings are instituted 
for the breach of the agreement But when the 
contract provides for the determination of the 
claims and liabilities of the contractors by the 
Judgment of some particular person, this would 
be incorrectly called a ^rorision for submisfion 
to arbitration, as no dispute can exist in such a 
case, everything being dependent on the decision 
of the individual named ; and until he has spoken, 
no right can arise which can be enforced either 
at law or in equity.'' The rale here laid dowti 
seems to embody the principles held in ^cott 
V. Avery and Horton v. Sayer. 

In Treaudet v. Mariette and org * in a case 
very similar to this, a case of civil Partnership, 
in which the Plaintiffs sought, as the Plaintiffs 
in this case seek, to obtain the annuUation of the 
co-partnery in which the plea was as the plea here 
is, that the matter should be referred to arbitra- 
tors, according to a covenant to that effect ; this 
Court has had occasion to declare an agreement 
of this nature to be lawful, whilst holding at the 
same time that the subject matter of the Plain- 
tiff's prayer, in that special cause, was not con- 
nected with the Partnership. This case would, 
therefore, whilst upholding the abstract rule on 
which the plea rests, be fatal to the plea on the 
second objection taken by the Plaintiffs. 

But it is often difficult to know precisely whe- 
ther a particular issue is covered by the very ge- 
neral but vague terms of a covenant to refer 
long before disputes have or can have arisen. 

There is another point, not taken in PrSavdet 
V. Manetie^ which seems to us to be very couclu- 
sive. 

Art : 1006 of the Code of Civil Procedure 
enacts, under pain of nullity, that the reference 
shall give the names of the Arbitrators. In the 
contract before us, the names of the intended ar- 
bitrators are not to be found, and one of the par- 
ties declines going before arbitrators. It is urged 
that the Court may appoint the arbitrators now. 



• Supra— vcs X. Page 179. 



The answer lies on the surface. Why should ^e 
Court, without consent, supply a fatal omission ) 
Either the reference as it stands is sufficient or 
it is not* If it is, we have no power to add con* 
ditions, to supply omissions ; if it is not, why 
should we interfere to make it sufficient so as ta 
oust our jurisdiction. 

It would be a reference not on account of a 
previous binding agreement, but on account of 
an invalid agreement, made binding by the inter* 
vention of the Court. We think there is a good 
deal in what Mr. Baron Bramwell stated, in bit 
Judgment in Hurton v. Sayer^ that *' it is quit^r 
clear that the parties might, if tbev had thought 
fit, have so framed the covenant, that until there • 
was an arbitration, there should be no cause of 
action." And so thev may in our law, prorided 
the conditions of such a contract be found in tbo 
contract, a subject matter referred, and an arbi* 
trator named. It was argued as usual, that this 
was not a reference, but a promise to refer ; we 
give no opinion as to the right of any party to 
obtain damages for breach of covenant, ^Art. 114^ 
C. C. Vide also Livingston v. Balli 24 Law J. 
Bep, N. S. Q. B. 69 ; but we find no distinction, 
between a promise to refer and any other pro- 
mise, the promise to sell, for instance (Art. 158^ 
Code Civil). IV be binding, the promise to refer 
should contain the essentiai requisites of a refe- 
rence, as the promise to sell, to be binding, 
should contain the essential requisites of a con- 
tract of sale. 

The Cour de Cassation (p Alliance v. Prunwr 
S. Y. 43-1-561) deciding in case of policy of ui« 
surance containing an agreement to refer, but 
without naming the arbitrator, has held upon ft 
plea similar to the one before us, that the clause 
was of no effect in terms of Art. 1006 and that 
if one of the parties refused to go before arbitra- 
tors, such party was not debarred by an invalid 
covenant like this, from enforcing its rights before 
the ordinary Courts. That Decision affirmed tfab - 
Judgment of the Court of Appeal of Lyona (8. V, 
41,2,341). 

Since the Judgment of the Court of Lyons, 
the Court of Paris, (in Pruneaus v Lesselin . 
S. Y. 43-2. 6) has held the same doctrine which 
has since been also adopted in (Oadot v Hespet 
S.V. 43. 2, 489) by the Court of Douai which 
had previously, in 1837, decided the ot^er way. 
It is to he noticed that the same volume of Be« 
ports gives a Decision of the Court of Agen tak* 
ing a different view, but that Decision was prior 
to the Judgment of the Supreme Court of 
France. 

On the whole, such covenants are not -prohi- 
bited by our law, and are lawful. But they are 
lawful utid( r the condition of sufficiently specify* 
iug the subject matter to be referred to atbitra* 
tion, aud of naming; the arbitrators. We havo 
seen thtit this contract did not name the arbitra- 
tors. Wo say nothing as to the sufficiency of 
the reference so far as the subject matter is c6u« 
cerned. We can tuke very little notice of the 
araument drawn from expediency ; the law seekns 
to us positive and the objection is before ua. A 
reference may not be, in certain cases, a speedj 
and economical mode of settling disputes ; and 



1869] 



COURTS OP MAURITIUS. 



89 



7et oar experieoce of references has, by no means, 
made us enthusiastic of such * domestic tribunals', 
and we might easily refer to cases where litiga- 
tion has, through references, been protracted 
far beyond the time that th^ trial would have 
occupied before the Court, and where economy 
has been quite out of the question. 

In Commercial Partnerships, disputes between 
partners were, by our law, (Art, 61 Code Com,) 
ordered to be referred ; that Article has been 
repealed by a special Ordinance. When parties are 
inclined to go to arbitration, we are ready to 
assist them as best we may ; but in a matter of 
doubtful expediency, when one of the parties 
insists upon proceeding to trial, and the agree- 
ment to refer is, as we hold it to be, in this case, 
not binding, we ought not to interfere. 

The Plea must be overruled with costs against 
the Defendant, Mrs "Widow Pierre Diore. 

The parties will proceed on the merits of the 
case, without delay. 



BAIL COURT. ^ 



Pbeuvb tbstihokiale, — Appel D*xnsr JvaElCEITT 

DE MAGtSTBAT DE DiSTBICT. 

Lapreuve iestimoniale est admissible dans tous lea 
eas, en matiire de commerce. 



Etidekoe, — Obal Pboop, — Commebcial mat- 
TEBS, — Appeal pbom the Svd&kekt op a 

DiSTBICT MaGISTBATE. 

Oral proof is admissible in all Gommercial matters. 



ABMOOGAPILLAY & Anothee,— Appellants, 

versus 
VTDBLINGAPILLAT,— Eespondent. 

Before : 
The Honorable Nicholas Q-xjstate Bestel. 



Q-. Q-uibbbt,— Of Counsel for Appellants. 
jr. Mebcieb,— -Attorney for same. 
V, Naz, —Of Counsel for Eespondent. 
H. Bbbtut, — Attorney for same. 



2m AprU 1869. 

The Action tried in the District Court, had, for 
its oWect, the recoYery of the balance of a sum 
due for goods sold and delivered by the Appel- 
lants, traders at *« Souillac," District of Savanne, 
and for money lent by the same to the Bespon- 
dent. 



The point raised on appeal is fully set out in 
the Judgment given between parties. Whereas, 
says the Judgment, though the exception to art. 
1341 C.C. contained in art. 109, of the C. of Com- 
merce, as regards " Achats et Ventes/* has gene- 
rally been extended by the Commercial Jurispru- 
dence to other transactions between traders, it 
has been always under the provision of the last 
paragraph ofthe said art. 109, vizfc. ** daus le cas 
•* oil le tribunal croira devoir admettre la Preuve 
" testimoniale.*' Here follow the authorities quo- 
ted by the Magistrate in support of the opinion 
just expressed by him for using such discretion- 
ary power. The Judges must be very cautious 
not to endanger the rights and interests of par- 
ties by admijttiog or refusing to admit so danger- 
ous a kind of evidence. In this colony, especially, 
where false testimony is of daily occurreuce. The 
Courts must be more prudent; in extending an 
exception to the General rule of our Law : art. 
1341 C.C. 

The Magistrate proceeds in setting forth his 
Other grounds for the disallowance of the parole 
evidence prayed for. 

» 

The only ground urged for reversing the. rul- 
ing of the Magistrate is that " the Magistrate 
had rejected and declined to admit the oral tes- 
timony tendered by the Appellants, in support of 
Plaintiff's claim altho' grounded on transactions 
made between traders and for use of Respon- 
dent's trade. 

JUDGMENT. 

On reference to the law and the legal authori- 
ties on this point, I find that the last Par. of 
Article 109 ot the Com. Code, leaves it to the 
discretion of the Judge or Magistrate to admit 
or reject such Parole Evidence. ** Les Achats et 
Ventes," says Art. 109 C. Com. ** se constatent : 
4o. par la preuve testimoniale, dans le cas ou If 
tribunal croira devoir Vadmettre.** 

In order that I should reverse the Judgment 
appealed from, I must find that the Magistrate 
has abused ofthe discretion vested in him. I have 
carefully looked into the reasons stated by him 
for having refused the oral evidence tendered. 
He is probably correct in stating that no less 
than 160 articles are sought to be proved by 
parole, between parties who, knowing how to 
write, were inexcusable for not having claimed, 
if not a bon or promissory note, should at least, 
have insisted upon a demand by letter, especially 
when sums of J^200 are stated to have been lent 
at one time. Is it to be admitted, continues the 
Magistrate, that the Plaintiffs (now Appellants) 
giving money to the amount of ^152 to a stranger 
for the Defendant (now Eespondent), would not 
have asked for an acknowledgment thereof, from 
that stranger, as a voucher. Is it easily ad- 
mi«?8ible that Defendant (now Respondent) for 
avoiding? payment of a balance of $187, should 
deny havi. g paid so large a sum of ;JI671 ; and, 
again, that a cheque drawn on so H'»n"rable a 
Pirm as •* The Ceylon Company " whose books ai« 
regularly kept, could not have been procured as 
evidence. 

The reasons set out by the Magistrate, in sup- 



40 



DECISIONS OP THE 



[1869 



port of his disallowaDce of the proof sought to 
be adduced appear to me iosufficient to warrant 
the conclusioa arrived at by him. 

The rule which has prevailed in this Court, for 
I nearly 30 years, has becu and still is that which 
has been sanctioned not only by the French text- , 
writers but by the jurisprudence of the French 
Courts of Law, affirmed as it has been by the 
** Cour de Cassation," (vizt) : la preuve testinto- 
niale est admissible, dans tons Us cos, en matiere 
de Commerce : les prohibitions de la loi Civile 
sent inapplicable?, sauf Men entendu, les cas oil 
le l%islateur exige un Acte ecrit. (Art. 1341 C. C. 
GiLBEBT, Note 56, and the authorities therein 
roentionedj The reasons for allowance of Oral 
Evidence in Comipercial matters are fully set out 
in TouLLiEB, Vol. 9, No. 230 and pages 367 — 
372. 

*' En matiere commerciale, says Cabbi^ and 
Chatjyeau, ^' aucune limite n'est fix6e aux iuges 
** pour Tadmission de la preuve testimoniale. Dans 
*' les affaires qui se succedent aussi rapidement 
'* que les negociations commerciales, on n'a pas 
** toujours le ioisir et le pouvoir de prendre d*u- 
'' tiles precautions pour constater les engage- 
*' ments. U ^tait done necessaire que la loi se 
/' montrat plus facile sur les moyens de preuve. " 

FoTHiEB enseignait d^h, sous Pancien droit, 
cette doctrine qu'aujourd'hui touslecrauteursem- 
'brassent et que nous trouvons sanctionn^e par lea 
arrets — (see Cabbe and Chauveau, Proo. OivU 
le. Vol : 3. Quest : 1639 ter : .) 

Should the parole evidence be attempted to be 
given of other matters than Commercial Tran- 
sactions, it will, of course, be the duty of the 
. Magistrate to check the attempt, as it will be his 
duty, after hearing the witnesses, to weigh their 
various depositions and to determine the degree 
of credit to be attached to »uch depositions, 
whether in whole or in part, and to give Judg- 
ment, accordingly. 

Under these circumstances, I shall and do re- 
verse the Judgment, in so far as it has refused 
the parole evidence tendered, and shall, and do 
hereby, refer the record back to the District 
Court for the purpose of enabling the Magis- 
trate to proceed with the heariqg of the witnesses 
produced or to be produced by the parties to the 
' iuit. Costs reserved. 



BANKRUPTCY CODBT, 

Failute, — Absence de livbes, — Cebtiticat. 

Bankbuptct, — Wobthless Books,— CbbtitI' 
cate. 

BANKRUPTCY ALEKBD VBBEON. 

Before . 
His Honor Sir Chables Eabquhab Shand^ 

Chief Judge. 



Eua. Bazibe, —Of Counsel for the Bankrupt. 
F. V10T03, . —Attorney for same. 
L. BouiLLABD, —Of Counsel for the Assignees 
p. E. D» Chazal,— Attorney for same. 



10^^ May 1869, 

In this case, the Court has now to deal with 
the question of the Bankrupt's discharge. The 
Official Assignee has considered it bis duty, in 
the circumstances, to oppose the issuing^ of a cer- 
tificate. It appears, from the evidence, that the 
Bankrupt began business as a Linen-draper in 
Port Louis, in the year 1863, and continued to 
carry on that trade till bis stoppage of payment! 
some months ago. His debts, according to his 
Balance-Sheet, amount to ;^I1,455.42, and hii 
assets te $2,623 88. He ascribes his losses, in 
the first place, to an alleged larceny in 1864 of 
^6000 from a press in his house \ 2dly. to the hea- 
vy discounts which be had to pay in his business ; 
the loss thereby incurred he estimates at ;$[2,30S 
odds; lastly to the great depreciation in the 
value of shop goods during the late difficult times 
of the Colony. 

It has lieen shewn, in evidence, that the 
Books of the Bankrupt have been so badly kept 
that they do not shew the position of his affairs. 
Indeed, to use, the words of one of the wituessei 
an experienced man of business, the information 
they offered is so defective that they are practi* 
cally " worthless.*' 

There is, however, a difficulty in dealing strictly 
with the Bankrupt, in relation to this part of the 
case. 

It appears that he is a man of no educatioa ; 
he cannot read and cannot write beyond rudely 
forming some figures and signing his name. His 
business books, if those records may be thought 
worthy of the name, were made up by a person 
employed by the Bankrupt, from rough jottings 
and scraps of figures supplied by the latter. . 

"With regard to a very important state- 
ment of ibe Bankrupt, viz : the alleged loss 
by tfieft, from his d^w^Wing house of the 
large sum of ^6000, the Court is very far 
from being satisfied with the account given by 
the Bankrupt. No one has been adduced asja 
witncbS who can confirm the statement of the 
Bankrupt, that he was actually in possession of 
such a sum of money, altho' on the other hand, it 
would, no doubt, appear that at the outset of his 
career as a trader, he was the owner of consider- 
able funds. It is true that the Bankrupt, at the 
time 0^ the alleged abstraction of his money, 
lodged information with the Police, and called in 
his neighbours, complaining of his bouse having 
been broken open in his absence, and shewing 
them the disordered state of the part of the pre- 
mises where he says the money was kept. 

But all this, it need scarcely be said, goes only 
a very short way to establish the loss of the mo* 
ney . A gain the pressure of the terms on which 
he did business with the houses that supplied 
him with goods, pannot be reasonably complained 
of ; for those terms were not different from the 



i869Ji 



COURTS OF MAURITIUS. 



rates asually pYevaillog in the trade of the Colo- 
ny; As to the late depreciation of his property, 
no doubt the value, of such wares as he dealt la 
tttust, latterly, have been much diminished in 
Port Louis ; but, an unfEiTorable feature in the 
case, here presents itself. The Bankrupt, it is 
true, denies the accuracy of the statement ; but 
it has been given in evidence before the Court, 
that he undertook to one of his leading credi- 
tors, not to sbll his goods at any considerable 
abatement ; a promise which he did not keep. 

Altogether, it is plain that the case is a special 
one ; and having features not commonlr occur- 
ring in inquiries of this nature, I am of'^opinion 
that the account given by the Bankrupt, of his 
losses, is not eatisfiictory, and that, in the cir- 
eumstances, no certificate of any class can, at 
once, be granted. 

A Certificate of the 3rd class will be allowed, 
but not to be issued for 6 months from this date, 
during which period, Protection is withdrawn. 



SUPBSHE COURT."* 



IffCirATICOT,-— DBLiJ,---^NlTLLITB,----DlSMAirnl Eir 

ausBOSATioir. 

Lorsque la demande en liciiation n'est pas stdvie, 
dmi lea quinze jours, du depot du Oahier des 
' eha/rges^ cette demande n'est pas nulle et les De- 
fendeurs ne peuvent fairs tme nouvelle demande 
d hur requSte ; ils doivent simplement se faire SU' 
hroger dans la dema/nde dejd faite. 



LiciTATiON, — Delay, — ^Nullitt, — Subeogatioit 

Where the Petition to the Master, for a Zicitation, 
has not been followed wp, as prescribed by Icm, 
hy the deposit of the memorandttm of charges, the 
Petition is not annulled and the Defendant are 
not entitled to file a new Petition and to have, 
thereby y the carriage of the proceedings ; they are 
only entitled to pray for subrogation into the 
rights conferred by the first Petition* 



LADOUCEUR & ANOR^— Appellants, 



versus 



BASTIEN AND WIFE, -Respondents, 



Before : 

His Honor Justice Bestel, and 
His Honor Justice Couir. 



L. EoTTiLLABD, — Of Couusd for Eespo: 
A. PisTOir, — Eesppndents* Attome 



nth May 1 

This was an Appeal against a Decision 
Master, under date 16th March 1869, w 
Bastion the wife obtained the right to a 
proceedings for a sale by Licitatioo, in pre: 
to the Appellants. 

The case seems to us a very plain one 
97 of Ord. 19 of 1868 enacts that : when 
conflictiug demands for a sale by Licitatio 
been made, preference shall be given to th< 
whose Petition has been presented first* 

It is incumbeot upon such party to fol 
his demand by filing in the Master's office, 
a fortnight after the demand has been dep 
the memorandum of the conditions of the I 
Licitation intended to be carried on« 

It is in no wise enacted that this shall b 
under pain of nullity, or^thjt.tkt>J»i«^^ 
file such conditions of sale within.„y;ie . £x 
sham^ftMreTSaS, lose Mb *f|Bt t8^r^ ont 
ceedings. 



O. GiriBEBT, —Of Counsel for Appellante. 
P. E. BB CHAZAL,»-AppellantB' Attorney. 



Cases of negligence maj[_occur in whi< 
Master injgJstjMgigib^ be*&]le3rupon to in 
by grantiDg'^iD^gation into the proceedi: 
another party^ffi. ueuof the privileged bul 
gent party ; out such a case bas not arisei 
and when it does arise, a practical remedy 
practical grievance will easily be found i 
pHed by the officer of the Court. 

But, as a matter of fact, the Bespo 
were the first to petition ; it follows mi 
have the right to carry on the sale. 

They do not lose that right simply by 
failed to deposit the conditions of sale wi 
fortnight. 

No fact of gross or ^jlM negligence w 
before the MaJstJS^SalfiiogToT nis special 
ference ; no demand in subrogation was 1 
fore him. 

Under the special facts of this cause, the 
lants, when they came into the field, did 
is urged, know that the fiespondents had i 
obtained that which they sought to obtai 
right to sell the property in question, by 
tion. It is not necessary to consider wheth< 
might have known this if they had cho 
know it. The Master has been satisfied t 
Appellants' costs before him should be c 
Licitation. Against that Order there is no 
but we are of opinion that, having obtaln< 
a Decision, the Appellants ought not to h 
tered this appeal. We fully agree with tl 
ter, on the merits of this cause ; we confii 
Decision, but are of opinion that the costs 
this Court-should be paid by the Appellan 



42 



DECISIONS OP THE 



[iset 



SDPREUE COURT, 



societe, — coktbbtatioks extbe assoolis,- 
Eapfobt du Masteb, — ^Appel. 



Pabtkbbship,— Contestations between pabt- 

NEBS, — BePOBT of THE MaSTEB APPEALED 

BIUSABD,— Appellant, 

verstis 

HEWETSON,— Respondent. 



Before : 

His Honor Justice Bestel and 
His Honor Justice Colin* 



L. BoxnxLABD,- 

E. DUCBAT, 

Hon. V. Naz,- 
H. Bebtin, 



>0f Counsel for Appellant. 
-Appellant's Attorney. 
-Of Counsel for Eespondent. 
-Eespoudent's Attorney. 



im May 1869. 



This was an Appeal from a Decision of the 
Master, upon a Kule of reference by consent, 
from this Court to the Master, ordering " that 
" the whole matter (at issue) between parties be 
" referred to the Master of this Court, to 
" compute accounts and decide, if necessary, 
" upon the validity or existence of the alleged 
•* sale by Breard to Hewetson. All rights of 
" Breard to object to the said alleged sale being 
" proved, and all the rights of Hewetson to 
•* prove such alleged sale, being duly reserved." 

Parties and witnesses heard on the 29th July 
1868, the Master went thro' the various heads of 
the demand ot Breard v. Hewetson and found 
that the first bead of Brdard's demand rested 
upon an account drawn op from the books of the 
Albion Dock, which did not and could not, for 
the reasons by him set forth, shew the accurate 
state of the concerns of that establishment, and 
decided that the incomplete and incorrect state- 
ment produced by Breard could not be taken as 
a basis for any action before a Court of Justice, 
against Hewetson. 

As regarded the 2nd head of the demand re- 
lative to the alleged use and enjoyment, by 
Hewetson, of the mules &c., and other articles 
composing the stock of materials of the establish- 
ment, after the cessation of the operation in the 
demand mentioned, the Master decided that in the 
absence o^Auj^^mise en demeure^* of Hewetson, to 
fulfill his obligation, Hewetson was not bound to 
pay any sum to Br6ard, either for the alleged use 
and enjoyment of the said stock of materials, 
or as damages for having kept and retained the 



With respect to the 3rd head of the demand 
of Breard, the Master decided that Hewetson 
having failed to prove the alleged sale of the said 
stock of materials by Breard to him, for the sum 
of ,^1200, was bound to return the same to Bre- 
ard, in terms of the agreement entered into bet- 
ween thenf, but only such as it might then stand, 
or rather such as it stood at the date of the de- 
mand, as there had been no previous '* mise en d^ 
meure " and because, pursuant to the agreement 
between parties, Hewetson was not responsible 
for the mortality of the animals, nor was he obli- 
ged to replace the carts and other articles worn 
oat or distroyed, and further, subject to the pre- 
vious payment by Breard of any sum that might be 
due to Hewetson for the advances made by him, 
with interest at 12 op from the 10th August 1864« 
date of the end of the operation, amounting to 
the principal sum of ,$(1026, 20 c. 

Several objections were filed by Br6ard against 
the various Decisions come to by the Master, on 
the several heads above referred to of his demand. 
Those several objections were overruled and the 
Master, on the 14th Dec. last, maintained his 
Beport such as it was originally drawn up. 

JUDGMENT. 

It now remains that the Court do express an 
opinion on the worth of the Master's Report on 
the various heads of demand laid before him* 

After carefully weighing the reasons assigned 
by the Master in support of his conclusion CNQ 
each of those heads r we fixed no reason for do- 
parting from the ruling of the Master on the 
several heads dealt with by him in his Beport. 
We therefore, affirm the Master's Report, with 
costs against Breard. 



SUPREME COURT. 



BeSOLUTIOK DB TBNTE, — DOMMAOSS, — ACOMP- 

T£S. 

Le vendeur qui a regu jpaiement d*une pariie de son 
prvK et qui demande resolution de la vente pour 
defaut de paiement du solde lui restant du^ ne 
peut reprendre sa jpropriete qvlen restituant i 
Vacquereur la ^portion du prix de vente payee par 
ce dernier. Si, pa/r la faute de Vacquereur, I «»- 
meuble vendu a suhi une deterioration equivalanie 
d la portion du prix de vente quHl a payS, le ven^ 
deur aura le droits alors, de retenir cette portion 
du prix de vente, a titre de dommages et interets* 



Sale, — Action mr CANCELLATioisr thbbeop,— 
Paet patments. 

The vendor who has received part payments out qf 
his sale price, and who claims cancell^itionqfsu^ 
sale, for want of payment of the balance due, can^ 
not resume the ownership of his said property 
without paying hack to the purchaser the portion 
of the sale price already paid by the latter. Where^ 
by the pwrchaser^ 8 faulty the property sold has de^ 



1869] 



COURTS OP MAUKITIUS, 



43 



creased in vcdue to the amount of the part pay- 
ments, the vendor shall then he entitled to keep 
the same as damages. 



E. DE CHAUMONT,— Plaintift, 

Versus 
N. BIGAIGNON xsn Obs,— Defendants. 



Before : 

The Hon. Jitbticb Bestsl and. 
The Hon. Justice Colin. 



E. Pellebbau,- 
J. Mebcieb, 
E. J. Leclzio, 

A. J. COLIH", 

W. Enoriss, 



-Of Counsel for Plaintiff. 
-Plaintiff's Attorney. 
Of Counsel for Mooning & wife. 
-Attorney for same* 
-Attorney for Bigaignon. 



Uth May 1869. 



By a notarial deed, dated May 2Dd 1866, Des- 
chiens and wife aud Moonings and wife sold, to 
the late Amanda Bigaignon, the deceased wife of 
James Amot, a plot of ground situate at Moka, 
of about 20 acres in extent, for the sum of ^2,700, 

It appears that, out of the sale price, the sum 
of 1,000 was paid. 

It appears, also, that the Plaintiff now holds 
the rights of Deschiens in and over the balance 
still unpaid, and is, therefore, the creditor of the 
sum of ;8850, with interest at 9 op since the 2nd 
May 1868, which sum of ^860 the Defendant 
who is sole heiress of the late Mrs Arnot, n6e 
Bigaignon, has neglected to pay. 

The Plaintiff has, accordingly, brought an ac- 
tion, to which, MooniDgs and wife creditors for 
the moiety of the sale price still unpaid, have 
been made parties, to obtain : lo. The cancella- 
tion of the sale aforesaid, 2o. an Order to the 
effect that the sum of SI 000 paid by Mrs James 
Amot, should not be paid back but kept by 
the vendors, as damages, on account of the 
destruction, by the purchaser, of the wood 
growing upon the Estate. 

Moonings and wife, made Defendants to this 
actioD,but having practically the same interest as 
the Plaintiff, pleaded that they had no objection 
to the prayer in the Declaration set forth. 

The real Defendant, by "Wm. Finniss, her at- 
torney, pleaded several pleas, in support of which 
not the shghtest evidence was offered; but 
pleaded also as to the second ground of action, 
that far from decreasing, the Defendant had in- 
creased the value of the land, by planting the 
whole of it with sugar canes. 

JUDGMENT. 
We think the Plaintiff entitled to the cancel- 



lation of sale payed for ; he is a creditor on ac- 
count of a sale price left unpaid, and the remedj 
applied for by him, is one which may be and it 
here legally sought. 

But the effect of a cancellation of sale, is to 
place the parties to the sale, or their assigns, in 
exactly the same position as they were before 
the sale ; the vendor may not recover the whole 
estate back through the annuUation of the con- 
tract, and keep that portion of the sale pl^ce 
which he has received on account. 

The vendor may, certainly, set-off against the 
purchaser's claim for repayment, any sum due 
to him for damages suffered on account of the 
non execution of the contract, as for instance, 
for any deterioration of the property sold. 

He ought not, without full compensation, to 
receive a ruined Estate instead of a prosperous 
Estate. It is incumbent upon him, however, to 
prove the specific damage suffered ; to prove 
that the value ot the property has decreased. 

The Plaintiff well aware of this, has alleged 
that the Defendant bad cut down timber and, 
thereby, lessened the value of the land. 

Witnesses were called to substj^tiate that 
allegation ; but the evidence failed^completely to 
prove that the Plaintiff would recover back an 
Estate of less value than it really had, at the 
time of the contra,ct. 

The witnesses distinctly prove, on the contra- 
ry, that the land is now of much greater value ; if 
some trees have been cut down and fire wood 
made, the land has been cleared, worked, 
planted and there are sugar canes now actually 
growing upon it. 

The claim for damages fails, then, entirely ; 
and there is no other fact alleged to take this 
case out of the sound general rule : that if the 
contract of sale is cancelled and the vendor 
takes back his property free from all charges 
and encumbrances laid thereon by or on account 
of the purchaser, he should, on the other hand, 
refund the portion of the purchase price he has 
received on account. 

Judgment will be entered for the Plaintiff, 
cancelling, as prayed for, the sale of the plot 
of ground in question in favour of him the Plain- 
tiff and Moonings and wife ; but the sum of 
^ 1 .000 received in part payment of the pur- 
chase price must be paid back to Defendant or 
assigns. Costs in favor of the Plaintiff, so far 
as the action m cancellation of sale is concer- 
ned ; but all costs, such as witnesses, &a., in- 
curred on account of the claim for damages, to 
be paid by Plaintiff, himself. 



BAIL COURT. 



DOIOCAGES ET IkT^BeTS — MISS 'ES DEMSUBE,- 
PbOPBIETJLIBB ET LOCATAIEE, — BaIL. 



DECISIONS OF THE 



[1860 



Le hcatavre qui a eprouvi des partes par suite de 
iSfaut de repa/raUonsfkites en temps utile a la 
maiaon louee, ne peut rdcHamer d/u proprietairej 
des dommages ei interetsy si ce dernier n'a point 
ete mis en demeure defaire Us repa/rations re^ 
qvAses^ avant Vepoque du dommage. 



Damages — " misb en demextbe," — Laiodlobi) 
AiTD Tenant,— Lease. 

The tenant who has experienced losses in conse- 
quence of the want of repairs made in due time 
to the house let^ has no right to sue the landlord in 
payment of damages if previous to the occurrence 
of such losses^ he has not summoned the landlord 
to make the necessary repairs. 



TANKOB, -Plaintiff 
versus 
GTJSTAVE OVIDE,— Defendant. 

Before : 
His Honor Justice Colin. 



V. DsikAFATE,- 

E. Saxtzieb^ - 

6. 0-XTIBEBT, • 

A. Betuel, 



-Of Counsel for Plaintiff, 
■Plaintiff's Attorney, 
-Of Gonnsel for Defendant, 
-Defendant's Attorney. 



nth May 1869. 



This was an action for damages, brongbt by the 
Plaintiff against the Defendant, his landlord, for 
loss incurred by the Plaintiff through the Defen- 
dant's neglect to repair the premises occupied by 
the Plaintiff, and by him used as a store. 

The damages were laid at £100, and it was 
farther asked of the Court that its Judgment be 
enforced by the caption and imprisonment of the 
Defendant's body. 

After Y. Delaeayb bad opened his case, he 
called a witness to prove the faces alleged ; but G*. 
GviBEBT, for the Defendant, objected that there 
had been no " mise en demeure " and that the 
actjon in damages was not admissible. He cited 
Art. 1 146 Code Citil. 

Delafaye replied that he was not prepared to 
■how a *^ mise en demeure " served by the Plaintiff 
or at his request, but that he could prove that 
the Defendant knew that the repairs required of 
hix were necessary, and had sent workmen who 
had begun the repairs, but left them off unfinish- 
ed. 

JUDGMENT. 

The Art. 1,146 Code Civil, on which the Defen- 

dant relies, is very positive : *' les dommages et 

int<r6ts ne sent diis que lorsque le dibiteur est 

\ en demeure de remplir son obh'gation, ezcept^i 



The Court finds in this case no ^'mise en de- 
meure " either by summons or any other written 
notice ; there is nothing in the contract to show 
that the parties have waived in one way or an* 
other the necessity of a " mise en demeure '' ; 
the obligation here is that of the landlord, to re- 
pair, and it is on account of an unlawful brencfai 
of that obligation that damages are daimed. 

I am not called upon, in this case, to girt 
an opinion as to what might be the eflBeel 
of a concatenation of facts showing the in* 
tent of parties, if such facts could be adda* 
ced in evidence, where there is or ought to 
be a contract ; but I observe that in the facAi 
alleged, it is stated that some workmen came| 
began the woi^ of repairing and left their 
work unfinished. It is not alleged that even vexu 
bad notice was given to the Defendant ; that tlie 
workmen had left, or that the fact itself was ift 
any other manner brought to his knowledge. I 
do not say that this could have sufficed ; very ftr 
from it ; but even this is not allegeain the Plaint. 

The Defendant's objection must be sustained i 
this action in damages must, under Art. 1140 
aod 1189 combined, be dismissed with costs; 
unless the Plaintiff prefers to take a nonsuit. 



SUPREME COURT. 



SaISIE PBOTISOIBE,— BsvENDIOATIOlTy — InTSB* 
PLEADEB. 

La partie qui reclame des hiens mohUi&rs lui appwr* 
tenant, et qui ont etS indument saisis swr tin 
tiers^ n'a pas qualite pour demander lanullUi de 
la saisie ; U doit procSder par voie d* opposition 4 
la vente^ et de revendicatwn {Interpleader)* *" 

Pbotisiokal sEizimB, — AcnoK m Kuijucnr 

THEBEOF, — InTEBFLEADEB. 

A party who claims moveahle effects heing hispro^ 
perty and unduly sewed on a third party ^ is not 
entiUed to pray for the nullity of such seizure; A0 
mut resort to an Interpleader. 



ntenmoins, lorsque la chose queled^biteurs'itait 
oblige de donner ou de faire ne pouvait 6tre den- 
ude ou faite que dans un certain temps qu'il a 
laiss6 passer." 

Now Art. 1,139 explains how the debtor is " mis I 
en demeure." '' Le d^biteur est constitu6 en de- \ 
meure, soit par une sommation, ou par un autre 
acte equivalent ; soit par I'effet de la convention 
lorsqu'elle porte, que sans qa*il soit besoin d'acte^ 
et par la seule 6cheance du terme, le d^biteur 
sera mis en demeure." A summons, thereforei 
is not absolutely necessary ; any other act having 
the same force will do as well ; as a rule, any act 
which would suffice to interrupt nresoription will 
have the effect of a " mise en demeure." But 
the summons or equivalent act must be in writ- 
ing. The word '' acte " used by the law seems to 
denote as much, aod the authorities, Toullixji 
YI, No. 253, amoDgst others, are clearly of opi- 
nion that a verbal notice will not suffice. 



1869] 



COURTS OF MAURITIUS. 



45 



OAPETEON & DEIiANGE.— Pl»intiffB, 

VMVW* 

DT7PBAT & LABOQITE,— Defendants. 

Before : 

His Honor the Chiex' Justice and 
The Hod. Justice Bestel. 



E, Pellebeau, 

A. ASTBDC riLS, 

P. L. Chastelueb,- 
H. Bebtut, 



-Of Counsel for Plaintiffs. 
-Plaintiffs' Attorney. 
•Of Counsel for Defendants. 
-Defendants' Attorney. 



I4ih M(vy 1869. 



Duprat and Laroque, alleging themselves to be 
the creditors of one Nemours Delastelle^obtained 
an Order from the Judge at Chambers, under 
date of the 14th December last, for the provi- 
Bional seizure of the cargo of rice alleged to be 
the property of the said Nemours Delastelle their 
debtor, and then on board of the schooner Ex^ 

Ct, Marchandy Master, anchored in the har- 
r of this Town of Port Louis ; such provisio- 
nal seizure to secure payment of a sum of {8,085 
85 c. as set forth in the 1st and 2ad items men- 
tioned in the affidavit in support of their applica- 
, tlion. 

The provisional seizure of the said rice was 
made on the 16th December last. 

Qn the 18th of the same month, the Plaintiffs 
pliftained a Summons which was served on De- 
la/itolle and the other Defendants therein named, 
OalliQg upon them to shew cause on tli9^21st De- 
cember last, why the cargo of rice on board the 
fudd . schooner Mepress, provisionally seized as 
aforesaid, at the request of the Plaintiffs, should 
not be landed ex-officio under the superintendence 
of one Valentine Bickwood, in his capacity of 
goardtian of the subjects seized and stored in one 
pi the Crown stores at the " Albion Dock," there 
Iq remain pending the litigation between parties, 
and unti^ this Court shall have'finally adjudicated 
thereupon, all rights of parties, generally what- 
Boever, being duly reserved, especially the rights 
and privileges of Messrs Canot and S. Aubert, 
the owners of the said schooner Eapresa. 

On the retarn day of the Summons, that is on 
the 21st December, the several parties mention- 
ed in the Summons, appeared and were heard. 

On the 22nd of the same month, it was order- 
ed between Duprat and Laroque and Capeyron 
and Delange, by the Judge at Chambers^ as 
folios : 

^' I grant that part of the application having 
reference to that portion of the cargo claimed by 
'* Ca{)eyron and Delange, on the condition that 
*' Plaintiffs do pay the freight due for that por- 
" tion of the goods claimed by Capeyron and . 
** Delange who consent to the FlaintiffB (Daprat I 



" and Laroque ) taking possession thereof and to 
'' their storing them in one of the Crown lock 
<* stores of the '^ Albion Dock," on the same 
" terms and conditions as those of the " Mauri- 
" tius Dock," for such storage. The respective 
'' rights of the several interested parties duly 
^' and fully reserved as to the form and merits " 

For the sake of convenience, it would appear, 
We find in the margin of the original of the 
Judges' Order, the following memorandum : 

" By consent it is agreed that Messrs. Capey- 
ron and Delange shall cause the rice in dispute 
to be landed and sold, and the net proceeds depo- 
sited in the Eegistry of the Supreme Court of 
this colony. All rights and actions generally 
whatsoever, of all parties concerned, being fully 
reserved. 

This 26th December 1868." 

On the 30th December last, a summons was 
issued oil the application of Capeyron and De- 
lange, calling upon Duprat and Laroque to shew 
cause, at Chambers, on the 6th January now last 
past, why a Judge's Order delivered by His 
Honor Sir Charles Earquhar Shand, on the 16th 
day of December last, to Duprat and Laroque, for 
the provisional seizure of the cargo of the ship or 
vessel Ik^presSfSet out io the summons, should not 
be annulled or rescinded to all intents and pur- 
poses,and why the provisional seizure consequent 
thereon, of the 16th December last, of the said 
goods, E^ould not be declared null and void, and 
why the guardian of the seized goods should not 
be ordered to deliver the same to the Plaintiffs 
Capeyron and Delange ? " 

Ifit. Because Capeyron and Delange are hona 
fide holders of the bill of lading in the Summons 
referred to. 

2o. Because the said Capeyron and Delange 
cannot, with regard to the rice in question, be 
bound by any exception which might be opposed 
to the said Nemours Delastalle, or any debts 
which he may owe. 

So. Because the said Nemours Delastelle is 
not^ and never was, the owner of the rice in ques- 
tion. 

On the 8th January 1869, an amendment was 
applied for, at Chambers, of that part of the 
Summons which referred to the delivery of the 
goods therein mentioned, by the guardian of the 
goods seized ; Duprat and Laroque. objecting to 
the application in toto, the Judge re&rred the 
matter, together with the amendment, to the 
Court. On the 27th January last, Capeyron and 
Delange applied and obtained, from Chambers, a 
Summons calling upon Duprat and Laroqne to 
shew cause, on the 29th January, why the Judge's 
Order above mentioned, of the 30th December 
last, should not be rectified and amended, in so 
far as Valentine Bickwood (the guardian of the 
goods seized) is concerned, and why the said Ca- 
peyron and Delange should not be authorized to 
withdraw from the Eegistry, the proceeds which, 
after deduction of the freight, customs due and 
other oostSi amount to the sum of ^6,669,d5c., 



46 



DECISIONS OF THE 



[1869 



and why they should not be allowed to retain 
the same. 

Parties heard on the return day of the Sum- 
xnoni the matter was referred to the Court, to 
be discussed when the principal action should 
be heard. 

The principal cause came on for trial on the 
18th March last, when P. L. Grastellibb took 
a preliminary objection to the demand in nullity 
of the proyisional seizure made at the request of 
Dnprat and Laroque. 

Chastellier rested his objection • 1st On the 
nature of the action brought, viz an action in nul- 
lity of the provisional seizure practised. 

2nly That the revendication of the articles al- 
leged to have been unduly seized should have 
been demanded in the manner traced out by Art : 
608 Code ox* Civil Pbogbsttbe^ and no other ; 
(see Gilbebt's note, and authorities therein cited 
ffos 2 <fe 3) which form of action is neither more 
nor less than what in our amended Colonial Code 
of Procedure is known under the name of an " In- 
terpleader." (£ule 28, small Bules, and 78 Large 
Bules.) 

3rdly That the agreement between parties, of 
the 26th December 1868, that Capeyron and 
Delange should cause the rice in dispute to be 
landed and sold, and the net proceeds deposited 
in the Begistry of the Supreme Court of this co- 
lony, did away with the seizure, therefore with 
the necessity of bringing this action in nullity. 

That true it was that all rights and actions, 
generally whatsoever^ of all parties concerned, 
were fully reser?ed. 

But this reservation could not and did not ap- 
ply to the right of demanding the annullation of a 
seizure, which parties had agreed should be treat- 
ed as non existing, for the purpose of proceeding 
to the immediate sale of the goods under seizure, 
with the view of speedying the exercise of their 
rights on the proceeds of the sale of the goods 
seized. 

£. Pellebbau answered : that the reasons 
alleged for the dismissal of the action in nullity 
of the seizure, were contradictory of each other. 

lo. If the agreement has done away with the 
seizure, what would be the good of an Interplea- 
der ? 

2o. The subjects seized are no longer in exis- 
tence, by the tact of the sale thereof. The mo- 
ney has taken the place of the rice sold. 

An action in revendication, even in the terms 
of Art. 608, would be superfluous. 

3o. There remained, therefore, no other action 
for recovering either the subjects seized or their 
representative, the money, but an action in ntil- 
lity of the seizure. 

4o. The Interpleader has been introduced for 
the protection of the seizing Officers, and not for 



the 3rd parf^ whose property has been unduly 
seized, who is left to the ordinary remedy by our 
law, vui : the action in nullity of the seizure of 
his goods. 

JUDGMENT. 

The action to be resorted to by one alleging 
himself the owner of subjects seized in the pos- 
session of a debtor, at the request of an execa- 
tion creditor, to recover his property so unduly 
seized, appears to us plainly traced out by the 
text of Art. 608, C. P. C, 

<' Celui qui so pr^tendra proprietaire des ob- 
'^ jets saisis ou de partie d'iceax, pourra s'oppo- 
^* ser h la vente, par exploit signifi^ au gardien^ 
'' et d6nonc6 au saisissant et au saisi, contenant 
" assignation libell^e et Tenonciation des preuvei 
'' de propriety, k peine de nullity, " 

But the words pourra, which precedes the word 
** s'opposer " has led the Court of Bordeaux. (S. 
y. 32.2- 17-) to infer that the mode traced out by 
Art, 608 was not the only remedy to be resorted 
to by the 3rd party for recovering the property 
unduly seized, and that he might, if he cliosea 
have recourse to the action in nullity of the sei- 
Eure. Chauveau on Cabbe Art : 608. O.P.O. 
Quest : 2075. p. 747, puts to himself the following 
questions : 

'' La femme qui se pretend proprietaire dea 
** meubles saisis sur son mari, est elle autorisde a 
demander la nuUitS det poursuites. ? 

The answer is ''Non " : la demande en mdlUSeat 
spicialement reserv^e a la pariie same^ and thiO 
reason of this is, that allowing the drd party to 
demand the nullity of the seizure, it would ba 
allowing him to avail himself of a right belonging 
to the party seized (S. V. 32. 2.17,Note 1— CABBi 
Lois de la Procedure^ No. 2075) ; et d'ailleura ce 
moyen est inutile puisqu'il est remplac6 par un au- 
tre moyen ^lus efficace et plus assure : celui de Pop^ 
^position a la vente, indiqu6 par I'Art : 608 C. P. 0. 
Cost ce qui a 6t6 }ug€ par un arr^t6 de la Cour 
de Bruxelles ( S. 15. 2. 175.) 

^' Cette solution a et^ de Douveau consacr^a 
!' par la Cour de Nimes, le 16 Mai 1829, (Dalloz 
** 29. 2. 230. See also Sib. Yil. 32. 2. 440) et 
" nous ne la croyons pas susceptible de doute 
^' malgr6 un arr^t contraire de la Cour de Bor« 
"deaux. du 31 Aout 1831. " 

'' Quoique la question semble borner cette d6- 
'' cision k la femme du saisi, il est bien entenda 
** qu'elle s'applique h tout tiers qui se prebend 
'* proprietaire des meubles saisis sur le debiteur." 

So much for the French authorities* On 
turning to our Colonial Law, we find that : ^^ if 
any claim be made to or in respect of any goods or 
chattels taken in execution under the process 
of the Court, or in respect of the proceedl^or 
value thereof, by any person not being the party 
against whom such process has issued, it shall be 
lawful for the Begistrar, upon application of the 
Officer charged with the execution, of such pro-' 
cess to issue a Summons calling before the said 
Cout as well the party on whose behalif such pro- 
cess is used, (that is the execution creditor) 
as the party making such olaim ; and the Court 



1869] 



COURTS OF MAURITIUS. 



47 



■hall adjudicate upon such claim &a/' (Small 
Bules No. 26.) 

This case being of a commercial nature, is 
subject to the small Bules of Court, (Art. 78. 
Large Bules) and the remedy of Art. 28 above 

iuoted, must be resorted to in this as in all other 
lommercial caseS| that is an Interpleader. 

There is no doubt that the protection of the 
seizing OfEicer may have prompted that remedy. 

' But does not the right of the claiming party* 
deserve and demand equal protection ? 

If he be not permitted, in his own proper per- 
son, directly to apply to the Registrar, for the 
Interpleader Summons, he is surely not debarred 
the right of lodging his claim with' the seizing 
Officer, so as to compell the latter for his own 
protection and the protection of the claiming 
party, to apply to the Begistrar, for the inter- 
pleader summons. In England as in France, the 
general rule is that the Defendant, himself, that 
IS the execution creditor, cannot apply, under 
the act, (Interpleader act) which applies only 
to persons ** not being parties " against whom 
the process issues ; so that the act does not apply 
to a Defendant alleging the Judgment or Execu- 
tion to be void (Chittt's AaofiBOLn's proof : 
page 1221). 

And what does all this show P that in England 
as in France, the action in nullity of a seizure is 
an action to which the Defendant (or party 
against whom the process has issued; is alone en- 
titled ; and that revendication, like an Inter- 
pleader, is the sole legal mode as traced out by 
Art. 608 C. P. C. and the Rules of Court, to be 
resorted to by the claiming party, to recover 
possession of his property unduly taken in exe- 
cution^ or the proceeds thereol 

The necessary inference to be drawn from all 
that has been said is, that speaking the language 
of our Civil Code, Bevendieation is the remedy 
to which the Defendant should have resorted for 
the assertion of their alleged rights^ either to the 
rice or its proceeds, and what comes to the same 
thing in the language of our Bule of Court or of 
the English Interpleader Act, an Interpleader 
should have been resorted to for the same pu]> 
pose. 

Another point has been mooted in this case, 
viz. : the substitution of a claim to the proceeds 
of the sale of the rice originally provisionnally 
seized, to the rice in kind mentioned in the sum- 
mons obtained at Chambers. 

This amendment, being rendered necessary by 
the altered state of things, we might have allow- 
ed, had the proper action been brought. 

But the Defendants having mistaken their re- 
medy, the allowance of the amendment would 
assist neither the parties nor the Courts in bring- 
ing this suit to an end. 

Howeyer, were parties to come to an iinder- 
Btandins; to oyerlook the mistake, and to treat 
this action in nullity as a regular Interpleaderi 



the Court would have no objections in allowing 
the amendment prayed for, so as to expedite the 
Decision of this case and save the parties fur- 
ther costs. 

In default thereof, aotion dismissed with costs* 



SUPREME COURT. 



IlfTSBBOaATOIBB SUB FAITS ST ABTICLES. 

Les rdponses faiteg par im Defendeur inierrogS de* 
vani la Oour SuprSme^ surf aits et articles, ne 
lient point son co-Defendeur. 



EVIDEWCB, — iKTBBBOaATOBY, — FeBSOKAL AK- 
SWEBS, 

Ihe answers of a Defendant called hefore the Su» 
preme Court, to be heard on his personal ansvoers^ 
are no evidenep against the other Defendants in 
the cause. 



BATNATTD.— Plaintiff, 

versus 

DUBHONE aud Anoiheb,— Defendants. 

Before : 

The Honorable Justice Bestel and 
The Honorable Justioe CoLiisr. 



L. BoinLLABI), • 
E. DiTCBAT, 

E. Pellbbeau,- 
A. BoHAJir, 



-Of Counsel for Plaintiff. 
-Plaintiff's Attorney. 
-Of Counsel for Defendants. 
-Defendants' Attorney. 



\Ath May 1869. 



The delay for pleading, by Mrs Ebiard one of 
the Defendants in this cause, having expired, the 
Bule served upon her to shew cause why Judg- 
ment should not be signed against her for want 
of Plea was made absolute ; default was merely 
recorded against her, but Judgment on this de- 
fault was reserved until Judgment should be gi- 
ven on the merits for or against the vendor Du- 
rhone. 

On the 19th February instant, L. Bottillabd, 
on behalf of the Plaintiff, put the defaulter De- 
fendant, widow Ebrard, into the box, for the pur- 
pose of a personal interrogatory. 

To this E. Pellebeau, for the Defendant Da- 
rhone, objected : lo. .Because any statement the 
Defendant might make, however binding upon 
her, would not be evidence against her co-defen- 
dant Durhone,should she go so far as to admit the 
existence of fraud between herself and Durhone ; 
this statement sworn or una^^To^ ^fs^\ \^s^^ *^ 



48 



DECISIONS OF THE 



[1869 



opposed to Durhone. The absence of any Plea 
on her part, to rebut the charge of fraud urged 
i^inst her, however strongly it may tell against 
her» is no evidence of fraud on the part of her 
vendor Durhone, and unless collusion be brought 
home to the vendor,the sale made by him to Mrs. 
Ebrard must be upholden by the Court. 

EoxTiL^ABD, however, insisted upon the per- 
sonal answers of the co-defendant, widow Ebrard^ 
for the purpose of making up a i^n'ma/octe case 
against her. 

It appears to us he is already in possession of 
that jprima facie case he seeks to establish against 
the widow Ebrard. 

The Declaration was duly served upon her. 
She has allowed the time for pleading to run 
out. Called upon by a Rule of Court to shew 
cause why Judgment should not be signed against 
her, she has allowed the Rule to be made ab- 
solute. Default was recorded against her. Of 
this she does not complain. Does not this shew» 
as far as she is personally concerned, that she 
has no defence to make to the demand, and is 
not her silence sufficient prima evidence of the 
fraud urged against her, personally ; might not 
a Judgment nil dicit have been signed against 
her? 

Thereupon she would have been out of Court, 
and an entire stranger to the parties in Court. 

If a stranger to the suit, she could not be ex- 
amined. 

Assuming, however, the possibility of her be- 
ing examined, and assuming that she were to tell 
as of Durhone's fraudulent intentions in selling 
her his house, her statement, even 'upon oath, 
would not be evidence against her accomplice* d. 
fortiori could not her statement, not on oaih^ be 
urged against Durhone, as evidence of the guilt 
laid to his charge. 

The case of Liicas v JDi^ier St Amand is no 
precedent. 

Didier had pleaded " not indebted. " On the 
day of trial Didier did not appear, and G-. G-ui- 
BERT was called upon to make out a prima facie 
case against him. Not having any other evidence 
of t\m facts charged in his Declaration, he asked 
for the appointment of another day for the perso- 
nal interrogatory of the Defendant. 

In this case we have no Flea of any kind. De- 
xault was given against Mrs Ebrard, on the return 
of the Bule to shew cause. Judgment nU dicit 
might have been signed against her, had she been 
alone. But as it is necessary, in order to annul 
the sale between parties, that fraud should be 
brought home to the vendor as well as to the 
purchaser, the Court delayed its Judgment on the 
default made by Widow Ebrard, until such time 
as it should be in a position to say whether, or 
not, the fraud alleged against the vendor had or 
had not been made out. 

The Court, therefore* allows the objection of 

FxiiIiSBBAV. 



SUPREME COURT. 

Seqxtbstse, — GxTANO,— Gages abbiebbs. 

Sequesteatioit, — Guano, — Abbiabs op wages. 

MSIS CANTIN, Snbgnardian of ^ 

the minors Marie Mathilde and > Plaintiff. 
Louise Emmeline Dior6, j 

vertus 

lo. JOSEPH JULIUS WILSON, Y 

2o. WIDOW PIERRE DIORE, C Defendanta. 

80. GALDEMAR EREBES, ) 

Before : 

His Honor the Chief Judge and 
The Hon. Justice Bestel. 



E. Pellebeau, 

J. lilEBCIEB, 

A. Legall, 

J. PiGNEGUT, 

E. Bazibe, 

E. Laubent, 

p. L. Chastellieb,- 

F. ViCTOB, 



-Of Counsel for L. Cantin* 

-Attorney for same. 

-Of Counsel for Wilson* 

-Attorney for same. 

-Of Counsel for Wid. Dior* 

-Attorney for same. 

-Of Counsel for Galdemar 

Ereres. 
Attorney for same. 

l4itJi May 1869. 

A motion was made, yesterday, before the 
Court, for a Rule placing the Sugar Estate BuA 
Fund, situate at Flacq, under Judicial Sequestnt- 
tion, pending the proceedings in ** Folle En' 
chere " thereof, and up to the day of the final 
adjudication, according to the terms and condi- 
tions mentioned in the Schedule annexed to the 
Judge's Order, of the 14th April present month«* 

The only objection to the aboye motion re- 
ferred to the guano asked for in the Schedule 
mentioned, which item wa8,howeTer,subsequentl7 
withdrawn by Pellereau. 

In the absence of consent, to that efiPect, of all 
the Mortgaged Creditors of the Estate, it is im- 
possible that the Court should allow the payment 
of the arrears of wages due to the laborers of the 
the said Estate. 

With the exception of those two items, viz : 
the guano and arrears of wages prayed for, the 
Court orders that the sequestrators hereinafter 
named, do supply to the Estate Bich Fwnd the 
requisites set out in the Schedule aforesaid pen- 
ding the proceedings of the '* Folle Ench^re " 
and up to the day of the final adjudication of the 
said Estate. 

Thomas,Lachambre, & Co. having been the first 
to offer to undertake the sequestration of the " 
said Estate, without interest, and on the mere 
commission of 2i percent, the Court, therefore, 
appoints Thomas,Lachambre & Co. sequestrators 
of the saidjEstate. on the conditions set out in the 
Schedule herein before referred to. 

Costs to be costs of sequestration. 



1869] 



COURTS OF MAURITIUS. 



40 



BAIL COUST. 



AHSKDEKEiriS,— 'FOITTOIB BES MaGISCFBATS DB 
DiSTKICT A CBT foABD, — APPEL D'UW JuGB-^ 

MsifT DS Magistbat db Distbict. 



AjaSNDHESTTSy — POWEB OP DiSTBICT MaGHS- 
TBATES TO THAT EFPECT, — ApPEAIi PBOM A 
JUDGHEKT OP DiSTBICT MaOISTBATE. 



GALEA,— Appellant, 



versus 



AXTTARD AKB Ux., — ^BespondentB. 

Before : 
His Honor Sib C. F. Shaiid. 



H. Q-AL^A, -^Of Counsel for Appellant. 
Eua. Bazibe, — Of Counsel for Respondents. 



2Sth Ma/y 1869. 

This was an Appeal from a Judgment of the 
District' Magistrate of " Moka," sitting on the 
Oivil side. 

The case arose in the following way : In the 
month of December last, the now Repondents 
Mrs. Autard, and her husband ^'for the yalidity of 
the proceedings and the authorization of his wife/' 
presented to the Court, below, an application 
setting forth that the Defendant had been tres- 
passing upon a piece of ground of about 40 acres, 
^ belonging to her, the said Mrs. Autard, at the 
* ** Quartier Militaire," of which she alleged that 
she had been in quiet and peaceable possession, 
as owner, for more than one year before the tres- 
pass complained of. It was further averred by 
the complainants, that the Defendant, Mr Gal^a, 
had been trespassing, particularly, by cutting and 
carrying off wood from the ground in question. 

The Plaintiffs craved that G-al^a should be or- 
dered to cease all trespassing for the future ; that 
the Plaintiff, Mrs. Autard, should be restored to 
the peaceable enjoyment of her property, and that 
the Defendant should be farther condemned bo 
pay her £50 as damages for the wood, with in- 
terest and costs. 

After several adjournments granted by the 
Court, below, at the request of the parties, the 
bearing of the case began on 8th January last, 
when the Counsel for the Defendant objected 
that the Plaint was not properly entered : lo. in 
respect a married womaf cannot sue in her own 
name ; 2o. that the Court was incompetent, as 
[ f Mrs. Autard had alle^d that she was the owner 
ij of the land in question ; and, 3o. the Plaint 
was said to be badly entered, as the date of the 
sieged trespass was not stated, and the various 



qualities of being public, uninterrupted, etc., 
which an alleged possession must have by law to 
support such an application, were not set forth 
in the Plaint ; and it was contended, on those 
grounds, that it should be declared null and void» 

The Court overruled the objection to its com- 
petency, declined to declare the Plaint null on 
the ground of the various defects alleged by the 
Defendant, but ordered it to be amended by 
the insertion of the omissions to which the Couo- 
sel of the Defendants had specially directed at- 
tention. 

I 

At the same hearing the Defendant's Counsel 
waived, for the present, his first objection '* as to 
'' a married woman's capacity to sue in her own 
" name." 

The ease, then, went to trial upon the Plea of 



the Defendant, which 
non est factum.*' 



was '' the general issue 



The Plaintiffs examined 6 witnesses and the 
Defendant, then, proposed to renew his ob- 
jection that a married woman cannot sue in her 
own name ; but the Magistrate decided that the 
objection could not be revived and discussed, after 
the merits of the case had been entered upon. 
Seven witnesses were then heard on behalf of the 
Defendant, and after the argument of Counsel, 
the Court, on 22nd March last, gave Judgment 
for the Plaintiffs, except as to the claim of da- 
mages for cuttiog down the trees. As the parties 
had confined the case to the question of possession, 
and the issue of property of the land was not 
raised, and seeing that the trees necessarily be- 
longed to the owner of the land, on which point 
there was no evidence, the Court did not find 
itself in a position to decide the matter of da- 
mages ; costs of suit were also given against the 
Peiendant. 

Mr. Galea appealed and counsel were heard on 
both sides : Mr. Gal^a for Appellant, Mr. Bazire, 
SenioTf for the Respondents. 

THE COTTRT. 

The Defendant in the Courts below, now stands 
as Appellant here, and the case has been fully 
and fully argued by Counsel on both sides. The 
discussion generally has turned upon the same 
points as were urged before the District Court* 

The Counsel for the Appellant has argued that 
the orignal plaint, as it altogether omitted the 
various ingredients, so to speak, of that posses- 
sion required under Art. 23 of the Code of Civil 
Procedure, to support such a Judgment as was 
asked by the complainant, could not competently 
be amended, and that consequently the Magis- ' 
trate, in allowing the amendment, really made a 
new Plaint for Autard and wife, and went alto- 
gether beyond his powers ; I am clearly of opi- 
nion that this ground of appeal cannot be sus- 
tained ; but, as will be noticed by and by, I think 
the question of costs should have been some- 
what differently dealt with by the Magistrate as 
to the power of the District Judge to amend de- 
fective Pleadings under our form of process *^ it 
ii one of a ^et^ \«q%.^ wA ^Ti«ass«^ \iato«J^\ 



60 



DECISIONS OP THE 



[1869 



The words of the Bales in the Court below § 48^ 
are these. : 

" The District Magistrate may at all times, 
amend all defects and errors, both of substance 
and of form, in any proceedings in Civil matters, 
whether there is any thing in writing to amend 
by or not, and whether the defect or error be 
that of the party applying to amend, or not ; all 
such amendments may be made with or without 
costs as to the Magistrate may seem fit ; and all 
such amendments as may be necessary for the 
purpose of determining in the existing suit, the 
real question in controversy between the par- 
ties, shall be so made." 

j/^ It was contended by the Appellant's counsel, 
{ that as the complainant did not make a formal 
; motion for leave to amend, the Judge had no 
[ power to make such an amendment ex-proprio motu 
\ ^ut this is a mistake. In practice, the suggestion 
> to amend defective pleadings often comes from 
i the Judge ; indeed it is his duty with the view of 
i shortening the delay and lessening the costs of 
I Justice, to put the pleadings in any case where 
I this is possible, in such a shape as to determine 
in the suit actually before him, the real question 
at issue between the parties. This is undoubtedly 
I the meaning and intention of the legislature, and 
I is, I think, clearly evinced by the concluding 
I words of the section of the Bule just quoted. The 
I first ground of appeal cannot, therefore, be ad- 
(mitted. 

In the next place, the Appellant renewed, in 
this Court, his contention in the Court below, 
that the husband Autard should have sued as 
administrator of the legal community of goods 
which must be presumed to exist in the absence 
of any positive proof that the wife was, herself, 
the proprietor of the land in question. But the 
Magistrate held that this objection having been 
waived in limine of the discussion below, 
could not be, again, renewed after the merits of 
the case had been entered upon. In this opinion 
as a genera.1 and established rule in Jurispru- 
donee, I must concur. It was argued that the 
matter being one of** quality " of the Plaintiff, 
might be urged at any stage of the case ; but that 
doctrine which, in some of the authorities quoted 
was pushed to an extreme, cannot apply to this 
case, when the point had already been mooted 
and had been given up at the earlier stage ; and, 
secondly, it mast not be lost sight of that the 
objections, even if it had been receivable at the 
later stage of the proceedings, could scarcely haye 
been dealt with as fatal to the instance, looking 
at the very extensive power of amendment bes- 
towed upon the Court, at any stage of the process 
to have the real question between the parties 
disposed -of in the actually depending suit. I 
agre^ with the District Magistrate in thinking 
that in the actual state of the pleadings in the 
case, the point could not be again raised by Mr 
Galea's counsel ; but even if it could have been 
Tenewed and if the point had been ruled in his 
favor, this would probably have led, not to the dis- 
missal of the case, but, to an amendment of the 
pleadings. 

Coming now to the merits and the statement 
kfibJia witnesses adduced on both sides, we find 



that the evidence is very contradictory. The 
Judge in the Court, below, a gentleman of great 
standing and experience, has said in his Judg- 
ment llmt ^' the evidence is painfully conflicting.'' 
This is unfortunately but too true. 

The District Magistrate has farther arrived 
at the conclusion that, '' on the whole, the weight 
of evidence appears to me to preponderate in 
favor of the Plaintiffs and to shew that through 
Yillemain their assignee or lessee, they were in 
lawful possession of the said ground,and that they 
have been unduly disturbed by the Defendant/' 

It appears to this Court that the case upon the 
proof adduced, is one of difficulty ; but it is a 
fixed rule of our Jurisprudence that the judg« 
ment of the Magistrate, in the Court below, who 
performs the functions both of Judge and Jury, 
will not be disturbed in the Supreme Court, un- 
less the Judges of the latter are quite satisfied 
that a mistake resulting in a miscarnage of Jus- 
tice has occurred in the case. It must be re- 
marked that the Judge, below, has the yery great 
advantage of seeing and hearing the witnesses 
depose in open Court, under his own eye and in 
presence of the parties, their counsel and the 
Public. 

He has the fullest opportunity of obseryinp^ 
the witnesses, and noting their appearance, their 
character and demeanor. In the case now before 
me, although I may not agree with him in all the 
reasons which he has given for his judgment, I 
see no grounds for altering his decision on the 
merits of the case -, but I cannot concur mth hiia 
as to costs. 

I am satisfied that considerable delay and ex^ 
pense arose in the Court, below, from the care- 
less and defective manner in which' the original 
Plaint was prepared, leading to the necessity of 
extensive amendments. 

I do not think that in these circumstances, 
the original complainants, tho' ultimately success- 
ful in the Court below, were entitled to their full 
costs. 

On the whole matter, I dismiss the appeal and 
affirm the Judgment of the District Magistrate, 
except as to the costs below. I find the orignal 
Defendant, Mr Gal6a, liable to pay only one half 
of the costs of the original complainants in the 
District Court. The costs of the appeal to be 
borne by the Appellant. 



SDPREHE COVRT. 



DeTIS BT MAEOHiS, — ACTION EN PAIEMENT DS 
TEATAFX FAITS SUrViOifT CONTENTION, — COH- 
TSAINTE PiJEt OOEPS. 



WOBX AND LABCGTB DONE,— CAPTION OP TBM 
BODT. 



1869J 



COURTS OP MAURITIUS. 



51 



PEBUKB MARTIAL, & Co..— Plamtiffs, 

verstu 
OAFEBRE Ain> Anob*,— Defendants. 

Before : 

HiB Honor Sib C» E. Shakd and 
His Honor Justice Couir. 



Of Counsel for Plaintiffs. 
Plaintiffs' Attorney, 
Of Counsel for Defen- 
dants. 
M. Satjzibb, — Defendants' Attorney. 



Gt. QTrrBBBT, 

P. EOBEBT, 

P. L. ChasteIiLIEB, 



2SthMay 1869. 

This was an action for work and labor done 
in erecting a Circus in the *' Champ de Mars," 
to be used by the Defendants, for the public 
exhibition of equestrian performances. 

It appeared that, bjcan Act under private si- 
gnatures, dated 3rd l^byeinber last, the Plaintiffs 
undertook to erect for the Defendants, a circus 
in wood, according to an annexed Plan, for the 
Bum of Sl,200, the price to be paid S600 cash 
and ;g600 20 days after the delivery of the 
building. The wood was to remain the property 
of the Plaintiffs and to be removed at the close 
of the exhibition. The work was to be begun 
the twenty fourth of the then current month of 
November, and to be finished, at the latest, on 
the fourth of the following December, and 
failing delivery of the building on that day 
the Plaintiffs were to pay to the Defendants 
;5(100 a day, as penalty for their want of punc- 
tuality. On the 5th December, the Defendants 
agreed to a prolongation of the time for two ad* 
ditional days for the purpose of having certain 
floorings added to the seats, and they promised 
to pay the first ^600 when those additions were 
finished without any dispute. 

^ In their Declaration the Plaintiffs alleged that 
they had executed all the work and delivered the 
building in due time on the fifth December ; that 
the Defendants, of said date, paid them the sum 
of ,^200 to account of the ,$600 which the^ were 
bound to pay cash on the delivery of the circus : 
the Plaintiffs, therefore, concluded for payment 
of $1,000, interests and costs. 

The Defendants, in their Plea, denied that the 
work had been executed at the time stipulated ; 
they denied that they had taken delivery of the 
circus, and alleged that up to the 14th Decem- 
ber the building was unfinished, and that of that 
date they found it necessary to summon the- 
Plaintiffs to deliver it over find to shew that it 
was so well built that the Municipal authorities 
had granted permission to use it for public repre- 
sentations by the Defendants and their trotipe ; 
that the Defendants, on the 15th December, had 
called on the Plaintiffs to make the building 
fit for the purposes for which it had been cons- 



I tructed, as the Municipal authorities refused to 
allow it to be opened to the public : that on the 
sixteenth December, the Defendants served a 
notice on the Plaintiffs, that as they had not 
taken steps to comply with those summonses, 
the Defendants would, themselves, have the ne- 
cessary alterations completed and the Defen- 
dants alleged that they were, themselves, com- 
pelled to have this done, the Plaintiffs having 
failed to do so ; that deducting the payment 
which they had made to account of the price 
;$I200, the farther sum of ^$93.55 paid to divers 
persons for work done, and ^jil^O paid to Du- 
chenne for completing the Circus, according to 
the requirements of the Town Architect, and 
the forfeiture of ,$1100 a day for every day's de- 
lay after the stipulated period of delivery, which 
the Defendants reduced voluntarily to the sum 
of ,!^500, there remained the amount of ,$1216, 
which had been tendered to the Plaintiffs, and 
on their refusal to accept the tender, the money 
had been consigned in the Registry of the Su- 
preme Court. 

Issue was joined on the respective averments 
of parties, and evidence at length was led on 
both sides. 

THE COTJET. 

We have, now, to consider the results of the 
evidence in this case. ^ 

The proof as to the building having been ori- 
ginally constructed with suficient materials and 
strength, was divided; but it was shewn that 
on the 5th December, the day of delivery, while 
the building, generally, was finished, it was dis- 
covered that the flooring of part of the seats had 
not been mentioned in the agreement, and the 
Defendants granted two days in addition for this 
being done, and promised to pay the first instal- 
ment of ^600, as soon as this flooring was added 
** sans aucune contestation.'* In point of fact 
^200 was paid to account on the said 5th of 
December, and the receipt granted by the Plain- 
tiffs and accepted by the Defendants was couch- 
ed in the following terms : " Re^u de M. Vin- 
" centi Alvarez la somme de 8^200 It valoir sur 
'' celle de douze cents piastres, pour le cirque 
*' que nous lui avons fait au Champ-de-Mars. 
'« (8ign6) P .Martial & Co." 

The Defendant, also proceeded to paint the 
building, and to introduce gas into it and adver- 
tized in the newspapers of the 11th December, 
that the circus would be opened to the public 
next day, viz. *' Saturday the twelfth, with the 
permission of the Mayor." It appeared, how- 
ever, that the announcement, so far as regarded 
the Mayor's permission, was premature, for, on 
the fiiteenth December, Mr Merle, the Town 
Architect, reported to the Mayor that the build- 
ing was not sufficient, and altho' the Plaintiffs, 
when called upon by the Defendants, stated their 
willingness for the purpose of avoiding legal dif- 
ficulties and *' law suits '' to make such improve- 
ments as Merle might require, the Defendants^ 
themselves, had them executed at the costs of 
J190. 

Of the same date^ \vl AVja Y^^"\i^^5«s^^>^'«k 



62 



DECISIONS OF THE 



L1S60 



Bowspapers announced that the opening of the 
.drcuBy lormerlj advertized for the 12th had. '<on 
account of the bad weather/' been postponed 
to the eyening of that day (15th,) From that 
date the circus was regularly opened to the pab- 
lie. 

It appears to the Court that the difficulties in 
the nresent case, have arisen from the parties 
not haying kept in yiew, from the beginning, that 
before an erection of this nature could be put to 
the use for wbich it was intended, the formal 
permission of the Municipal authorities was re- 
quired for the safety of the public. We think 
it is established upon the eyidence, that, at the 
time stipulated, tne Plaintiffs had fairly com- 
pleted the building and put it at the disposal 
of the Defendants who granted a prorogation 
of the time for two days, that certain additional 
planking should be added under a part of the 
seating, promissing to pay the first instalment 
** sans aucune contestation. " 

The Defendant made no complaint with the 
way in which the work had been done ; they 
tooK possession of the building, introduced the 
gas fittings, proceeded with the painting, and 
the Defendant Alyarez paid a part of the price 
to account and accepted a receipt that the pay- 
ment was *' pour le cirque que nous lui ayons 
£at au Champ de Mars. " 

They adyertized the opening for Saturday the 
12th December, with the permission of the 
Mayor, and subsequently, yiz ; on the 15th De- 
cember, countermanded this by a fresh notice, 
sufficiently intelligible, now that the real posi^ 
tion of matters is known, that the representa- 
tion had been put off on account of the ^^ bad 
weather. " 

It will be remarked that on the original act, 
there was nothing said as to the Plaintiff's un- 
dertaking to erect a building which should pass 
the official examination of the Town Architect, 
though such a stipulation would probably haye 
saved much of the subsequent difficulties. All 
that was said in the act, was that the circus 
should be built " according to an annexed plan.'' 
Were we obliged, for the decision of the case, to 
determine the question whether, y^ithout any 
positive stipulation given to that effect, the 
building, looking at the purpose for which it was 
intended, ought to have been constructed by the 
Plaintiff, of such strength, as to pass the Mu- 
nicipal Suryey, we might have found the point 
in the circumstances actually occurring here, 
one of considerable difficulty ; but it is not 
necessary that it should receive an actual 
solution here. For, it must be said to the cre^t 
of the Plaintiffs, that throughout the whole 
operations for the construction of the circus, 
it is in eyidence that they willingly receiyed 
and acted upon suggestions for the improve'* 
ment of its stability, from whatever quarter ema- 
nating, and as soon as they were informed that 
the Architect of the Municipality was not satisfi- 
ed with its construction they, at once, offered to 
execute whatever improvements he might desire. 
The Defendants, altho' they had called upon the 
Plaintiffs to do this, did not give them time to 
perform the work themselves, but had the im- 



provements executed as we have seen, at a oost 
of;$fl90. 

In the whole we are satisfied that, substantially, 
the Plaintiffis have made good their case. But, 
in the settlement with the DefendantB,they must 
eiye credit for various sums disbursed by the 
ktter for materials and for work done in the 
course of the erection of the circus. The Plain- 
tiff do not dispute their liability generally for 
these deductions which are as follows : Account 
Jules S6;do. Elie ^15 ; do. Pierrot & Co. $45 
11 ; do. Houdlette & Perkins ^24 61c and $2 
83 : do. Duchenne ;^190. In the aggregate ^283. 
Under abatement of this amount, we give Judg- 
ment for the sum claimed in the Declaratioii« 
with interest and costs of suit and Caption of 
the bodies of the Defendants, limited to 12 
months. 



SePREME COURT. 



ImPUTATIOM" DB PAIBMBNT,— CoNSIONATIOlf PS 
MABOHAITDISES, — BaLAJSTCE DE COMPTE COtT- 

BANT,— Befits de livbeb la MAscHAiTnifiv a 

3)£FAUI BE PAIEMENT. 

Le IKgociant qui easpSdiey sur demande, un envoi de 
mwrchandises a un Hers qui lui doit dijd, une ha* 
lance decomjpfe courant, et qui^ dans Vi/ntervdUei 
rei^oit de ce tiers une remise qui couvre la hi^ 
Icmce du comjpte coura/nt, mais qui ne 8uffitp(M 
i payer, en outre, le priss du dernier envoi, peiui 
charger un agent de prend/re livraison des maf^ 
chandises a lem arrivie au port de destination et 
de ne les livrer au tiers quesvff paiement integral ^ 

APPEOPEIATIOir OP PATMBirTS, — CONSIGNATOOBr 

OP GOODS, — Bills op lading, — BALAiircE o» 

AK AOOOrNT OUEEENT, — BePUSAL TO DELIVXB 
GOODS, EXCEPT UPON PBEVIOUS PAYMENT. 

Where a Merchant, had upon application^ ihvj^ed 
an Invoice of goods for the account of a third 
party who owed him already ihe balance of cM 
account current, and where, in the meamohlh, the 
third party had effected a remittance which was of 
greater amount than the balance due, hut did not 
si^jice to pa/y the balance coupled with the lagi 
invoice, the Court ruled that the Merchant wa$ 
entitled to send orders to an agent to receive the 
goods when landed, and refuse delivery except 
upon full poAfmeni thereof. 

ALPBBD SEEENDAT,— Plaintiflf, 

versus 
(JABBEBT,— Defendant. 

Before : 

His Honor the Chiep Judge and 
The Honorable Justice Colin. 



W. Newton,* 
E. Sauzibb, - 

G-. G-UIBEBT,- 
J. Q-UIBEBT, - 



•Of Counsel for Phuntiaf. 
-Plaintiff's Attomev. 
•Of Counsel for De&ndant. 
-Defendant's Attorney. 



1869] 



COURTS OF MAUaiTIXJS. 



5i 



28^^ May 1869. 

This waB an application referred to the Court, 
by Mr Justice Bestel to whom it had been made 
in Chambers ; the Plaintiff's object was to obtain 
an Order upon the Defendant, who is, in this 
Colony, the agent af Messrs. Era, Horner & Co. 
of London, for the delivery of certain goods and 
merchandize shipped for the account of Plaintiff 
on board the hunloej and retained by Gar- 
bert in whose poesession the bills of ladiog are. 
The Defendant declines deliyenug the goods 
which have been consigned to him, until the same 
are paid for. It appears, from the letters pro* 
duced, that the Plaintiff had dealt for some time 
with the London house, receiving goods directly, 
and remitting directly the price of the goods re- 
ceived. It also appears that when the d^erences 
arose, which have led to this suit, there was a 
balance of £49.11.1 due from the Plaintiff, to 
Fra, Horner & Co. On the 18th August 1868, 
the Plaintiff ordered a new invoice of goods, apo- 
logizing at the same time for not having replied to 
letters received, and announcing a remittance by 
the next steamer. Horner & Co.answered that let- 
ter,on the 7th October 1868,promising their most 
careful attention,and hoping that by the next mail 
they will send complete invoice and bill of lading. 
On November 7th 1868, Horner & Co. write 
again, and state that they expected a remittance 
for the balance due to them, but have not-re- 
ceived it ; they draw in favor of Qarbert, for that 
balance, but add, that Serendat need not accept 
the draft, if when it is presented the remittance 
has been sent, Garbert would cancel the draft. 

It now appears that on the 17th October 1868, 
Serendat enclosed a second order to Horner & 
Co., but no remittance ; Homer & Co. answer on 
7th January 1869; that second order is to remain 
for the present in abeyance, and the Plaintiff is 
informed that the goods forwarded to his pre- 
tIous order. Homer & Co. have been obliged to 
consign to Garbert, a mutual friend, and that no 
orders can, for the present| be executed, without 
a remittance. 

On the 18th December 1868, Serendat sent a 
draft at 90 days for £100 on the Oriental Bank ; 
that draft Homer & Co. acknowledge on 6th 
February 1869 ; they inform Serendat that the 
same has been placed to his credit and repeat 
{heir former advice that they had drawn for their 
balance, and presume that their draft was not 
accepted. 

The goods ordered on 18th August last, and 
Bhipped by '* Dunloe," are now in the possession 
of Garbert who states himself ready to deliver 
the same, provided the balance due on the value 
of the goods be paid, or to deliver such portion 
of the said goods, at the option of Plaintiff, as 
fihall amount to the value of the £100 remitted, 
minus the £49.11.1, balance of the old account. 

The Plaintiff now says that he intended the 
remittance of £100 to cover the goods ex 'Dunloe,' 
and that according to the course of dealing be- 
tween the parties, the London house had no 
right to consign the goods to Garbert, without 
due or sufficient notice that they intended to 
yary the course of dealing. 



There is no doubt that Merchants or tradei 
ought not capriciously to change a settled moc 
of dealing with their customers. There shoul 
be fair notice or sufficient cause. On the oth( 
hand, if those who receive goods unpaid for, ai 
not regular in sending remittances, they havi 
generally at leaBt,but themselves to blame if ere 
dits become shorter, and conditions more seven 

According to the facts before us, we have n 
evidence of the course of dealing for any lengt 
of time previous to the day when the Londo 
house resolved to consign the goods to Garberl 
Goods were sent out, and money remitted, bu 
how long, under what circumstances, under wha 
stipulations, that mode of business had been cai 
ried on, we find little or nothing to enlighten us 
But we have evidence that on the 18th Angus 
last, the Plaintiff who had not written for severe 
months, and had a balante against him, gave a 
order and promised to forward a remittance b; 
the following mail. The following mail, and tw 
other mails subsequent to that, brought no re 
mittance; in fact, none was sent before the 18t! 
December, and by that time the London hous 
had given notice to the Plaintiff that they hai 
drawn for their balance, but that the Plaintii 
need not accept the draft;, if he had remitted 
when it was presented. 

The Plaintiff's draft was carried to the Plain 
tiff's credit, apparently as usual, and the Plain 
tiffneither accepted the draft for £49.11.1 no 
has he remitted or paid here any other sum c 
money. 

He now urges that his £100 remittance shouL 
cover the goods ex '< Dunloe " ; he has paid thi 
price of the goods; so runs the application 
There is no proof that the £100 were originally 
intended to be applied specially to the paymenl 
of the goods shipped on board the '' Duoloe " 
and, surely, if the Plaintiff had meant the '' Dun- 
loe '' order to be a a special one, he would hav( 
accepted and paid the draft on him for his agent'i 
balance; he has done nothing of the kind. 

We do not consider, therefore, the £100 re- 
mittance to have been a special one, we must 
hold it to have been meant : lo. to pay the balance 
due to Horner & Co., 2o. to be applied to meet 
any further claim for goods shipped as per order. 

But it is alsonrged that if Garbert, here, keeps 
the goods, the course of dealing is unduly chang- 
ed. Garbert should deliver the goods, and the 
Plaintiff remit any balance he may owe. 

We cannot follow the Plaintiff so far as he 
would lead us ; we think he has had timely and 
sufficient warning ; we think he has but himself 
to blame if his credit with the London house is 
no longer allowed to stand on the same footing 
as before. That credit does not appear to have 
been, at any time, long or large. 

The Plaintiff's business with Homer & Co. 
does not. so far as the evidence can show, appear 
to have been, at any time, extensive. In August 
last, he owed nearly £50 ; that sum he was to 
pay, he promises to remit and is 4i months be- 
fore he remits ; he had been 8 months ^.^ \j^^s^ 



54 



DECISIONS OF THE 



[1869 



without writing when he made the promise.Wbeix 
he does remit he sends a draft for a sam which is 
Terj inferior to the amount of the balance he 
owed and the value of the goods ordered. We are 
of opinion that the London house upon the state 
of things that has come out in evidence, finding 
orders sent with greater regularity than remit- 
tances were effected, were entitled, whilst exe- 
cuting the order without delay so as to cause no 
inconvenience, to direct their Agent not to deli- 
Ter, unless payment were effected by cash here,or 
a remittance to them in London. We find the 
offer made by Garbert, in a notice served on the 
22nd April last, upon the Plaintiff, to deliver an 
assortment of goods so as to meet the difference 
between £100, and the balance of £4:9 lis Id, or 
to pay that difference in money, very equitable, 
if the Plaintiff declines taking delirery of all the 
goods upon payment of the whole price of the 
goods. We are of opinion that the Plaintiff's case 
resting upon the allegation that he has paid the 
price of the goods per Dunloe, fails, and there- 
fore must consider and hold that Plaintiff do 
take nothing of his application which is dismissed 
with costs. 



SUPREUE COURT, 



SiQUESTBE. 



Ga^es arrieres, — Honorcdres de medecin et comptea 
du pliarmacienj — Terres en location^ — Loyera 
echus, — Depenaes courantes. 

SEQTTESTEATIOiy. 

Arrears of wages, — Fees due to tie medical praciU 
Uoner and account of the pharmacopolist,^- Leased 
grounds, — Rent due,-^'Petty expenses. 



In the Mi-TTEB OE THE SeQITESTEATIOK OP THE 

" Paib Fitnd " Estate 
Ux parte : Antoine GENE VE,— Applicant. 



l6thMa/rch 1S69. 

In this case, E. Leclezio Senior, for Antoine 
Geneve one of the co-owners of the Fairfund 
Estate, seized at the instance of Mr Coignet a 
hypothec creditor, applied for the sequestration 
of the said Estate, and moved that certain pay- 
ments and advances be ordered to be made by 
the sequestrator. 

The hypothec creditors of the said Estate, 
some under their written consent and others, 
Messrs Dttviyiee & Piston, having appeared 
and assented at the Bar, consent that the arrears 
of wages, due to the laborers, be paid to such 
laborers. 

Under that consent we shall allow the sum of 
;Sf 1,905. 33 to be paid by the Sequestrator to the 
laborers and employes of the said Estate for ar- 
rears of wages for the months of October, No- 
vember, December 1868 and January 1869, pro« 



vided that does not exceed the amount found to 
be due to them by the Stipendiary Magistrate 
of the District, otherwise the sum to be reduced 
to the amount actually found to be due. 

Also the sum of ^500 for arrears for the montU 
of February, under the same conditions. 

That the sequestrator shall also pay the run- 
ning wages not to exceed ^500 a month. Also 
the provisions required for laborers, and the food 
and the fodder required for cattle, the whole not 
to exceed ^400 a month. 

The rights of the Medical Piactitioner and the 
sums due b^ the owners of the Estate for mede- 
cines supplied, we make no order upon, leaving 
the parties interested to make good such rights 
or claims, if any, as by law directed, upon the 
purchase price of the Estate. 

We do not feel justified upon the evidence, ia 
charging the whole Estate with the rent due on 
account to Letellier's ground, but we shall be 
disposed upon the written consent of the hypo- 
thec creditors, no personal creditor having ap- 
peared to object, to allow the item prayed for on 
that account. 

We consider the sum to be paid by the se- 
qu0fetrator for petty expenses, which are only 
generally mentioned, should not exceed $50 per 
month ; we allow that sum on that account. 

In the course of the proceedings, Messrs J. & 
N. Harel intervened, and as owners of a plot of 
ground leased by them to the owners of Fairfund, 
objected to any sequestration privilege encumb- 
ering their land. That objection ought to pre- 
vail ; the owners of land leased, cannot possibly, 
without their assent, see their position as owners 
and landlords, made worse by a privilege created 
for the benefit of the owners oi an estate and 
their creditors. 

The condition of this sequestration order, 
therefore, shall be that the sequestrator shall 
have no right whatsoever over the land which is 
the property of Js. & N. Harel and by the latter 
let to the owners oi Fairfund Estate. Mr Duvivior 
one of the hypothec creditors consented to pro- 
vided his rights of " Folle Enchero " be reser- 
ved to him. This was not objected to, and Mr- 
Duvivier's rights are reserved. Mr. Q-eorge Au- 
bin is willing to be appointed sequestrator, pro- 
vided his advances be repaid to lum at the expi- 
ration of the delay to be fixed for the said se- 
questration, and that he do have the right of 
forcing on the sale of the said Estate in case he 
be not paid. Mr. Aubin charges in addition 12 0{o 
interest and 2^ commission. We find the terms 
high ; but as no one objects, we presume that no 
better terms can be obtained andweshall appoint 
Mr. Aubin sequestrator at those rates with full 
powers to force on the sale, if at the expiry of the 
sequestration order, he be not reimburseo. 

The sequestration shall come to an end on 
the 15th June next. 

Costs to be costs of fiequefltration. 



TABLE GHRONOLOGIQUE. 



773 



1919 



— 14 oct. — 



— — 17 oct. — 



— — 19 oct. 



— 21 oct. 



Loi divisant certains ddpartements en drcontt- 
crlptiona tiectorales pour la nominatkni des 
membres de la Chambre dei ddvutte , p. 26. 
17 oct. — Loi ayant pour objet de decider que, par modiflr 
cation k Tarticle 4, § 1", de la loi du 9 avr. 1898 
BUT les accidents du travail, lea frais m^dicaux 
et pbarmaceutiques seront, dans tous les casket 
quelle que soit Tincapacit^ occasionn6e par Tao- 
ddent , k la charge du chef d'entreprise, p. 447. 

Loi relative au regime transitoire de TAlsace et 
de la Lorraine, art. 9 et 10, p. 2k. 

— Loi rendant applicable au territoire de Belfort 
la loi du 12 juIU. 1919 relative k I'^lection des 
d^pntds, p. 28. 

— IjoI portant ; 1* ouverture et annulation de credits, 

sur I'ezercice 1919, au litre du budget ordinaire 
des services civils ; 2* ouverture et annulation 
do credits, sur I'ezercice 1919, au titre des 
d^nses militaires et des d^penses exception- 
nelles des services civils, art.- 15 ( qxd modi fie 
I'art, 29, § 11, sur les baiMC A loyer), p. 564. 
— — 23 oct. — Loi tendant k proroger les locations veibales 

entre le 1" aoQt 1914 et le 9 mars 1918, p. 565. 

— Loi ayant pour objet : ... 3° de r^primer la sp^ 
culatlon iUicite sur les loyers , p. 565. 

— Loi ^tablissant Tobligatlon du cong6 dan« les 
baux k ferme sans dur^e limit^e , p. 546. 

— Loi rd^dant les droits et obligations resultant 
des baux d'immeubles atteints par faits do 
guerre ou situ^s dans les localitds 6vacu6es 
ou envahies, p. 566. 

— Loi ^tendant aux maladies d'origlne profession- 
nelle la loi du 9 avr. 1898 sur les accidents 
du travail, p. 447. 

— Loi abrogeant Talin^a 2 de I'art. 87 du Code 
civil < d4»ormai8 le mart et la femme pour- 
ront itre t4moin8 ensemble dans le mime 



TIUS. 



55 



— — 23 oct. 

— — 24 oct. 

— — 25 oct. 



— — 25 oct. 



— ~ 27 oct. 



ditors, contended that the approbation for 
3onorum should be dismissed. The Poti> 
vith his very limited means ought never to 
irchased such an Estate. 

i 

I with the assistance that he got from a 
'je creditor, to make the deposit and work 
ate for a time, the chances of success were 
)sperate ; besides we see that the Insolvent 
iiy get those advances and the assistance of 

party who also lent him money, by pay- 

e sums to third parties by whose good 

those advances were procured. There is 

here of bond fides and unavoidable mis- 
, and it' is alone to cases of that nature 
' 3 form of proceeding by Cessio Boiiorum is 
)le. Besides, the conduct of the Petitioner 
a very bad in various other particulars. 

been living all along, as he himself ad> 

the rate of jg600 a month, for his private 
ture. 

*ore he left the property he swept off all the 
1 and cows, some of the mules, all the tools 
the workshop and a large quantity of wood, 



acte). — V. G. civ., art. 87, g 2. 

- 28 oct. - Loi modifiant Tart. 2 de la loi du 9 avr. iM^ving a perfect wreck behind'him. 

sur Tacquisition do la petite propri^td rura^ » *^ 

— V. L. 9 avr. 1918, art. 2, § 2, p. 669. 



48 — C. civ. 



— — 31 oct. — Loi autorisant les d6partements et les comm- 

k acqu6rir des terrains et des domalnes r 
k les lotir et k les revendre en yue de ' 
Taccession k la petite propri6i6 des tra 
et des personnes peu fortun6es , p. * 

iS 

«eem 

• gnees 

..sed to 

accede to his proposal, batr contended that his 

conduct had been such that the application for 

the OeBsio Bonorum should be, itself, refused. 



Erom the examination of the Insolvent and 
the evidence of the witnesses adduced in the case, 
it appeared that he bad purchased the Estate 
Beaux Sondes , in the year 1866, for the sum of 
;^56,800, while be admits that all the property he 
then possessed was only a few thousand dollars, 
about j^ 10,000. To make up the necessary amount 
for the deposit, viz : one fourth of the sale price, 
the Insolvent entered into an arrangement with 
a Commercial Firm of Port Louis, whereby he 
undertook to make good a mortgage claim of 
some j^ 14,000 due to it by a former owner of the 
Estate, the said firm agreeing to advance him 
J^15,^00 to make up the deposit money and also 
to make the necessary outlay for working the 
Estate for two years. The crop of 1866 was a 
fair one, but the next crop was very deficient, 
and at the date of his application to the Court, 
in December last, the debt due to the Merchants 
who had made the advances amounted to ,^30,000 
and the Petitioner was, besides, indebted in a sum 
of ^8,000 to another party who had given him as- 
sistance for carrying on the Estate, after his first 
supporters had withdrawn. The total debts in 
the Balance-sheet are ;^92,288, while the only 
assets therein mentioned is the Estate Beaux 
Songes which is made to figure at the estimated 
yalue of $100,000 ; but it was lately sold and 
fetched only ;SI25,000, an amount not nearly suf- 
ficient to pay the mortgages upon it. 

W. NxwTONi for the official and trade assignee 



He says he expended money in paying the la« 
borers and keeping up the Estate, but he has 
failed to shew by any proper evidence that he did 
so. He was formerly an Insolvent, but he can't 
tell us when that took place or what his debts 
then amounted to, and he says he then owed his 
wife <^12,000, the exact sum still due to her, al- 
though he alleges that she has made large advan- 
ces in possession of Beaux Songes ; but of this 
no evidence whatever is produced. We altogether 
oppose the granting of this Petition : 

Q-. GuiBEET, for the Petitioner : " My client 
and the parties who advanced money to enable 
him to make the deposit and carry on the Estate,, 
did nothing more than enter into a speculation 
which has unfortunately not succeeded. He was 
no worse than the others. This happens every 
day. The first crop was good enough ; but the 
second was a short one, and the Petitioner was 
turned out of possession and another manager 
put on the Estate, and then he was abandoned by 
his first supporters. A second came to his aid ; but 
in November last, he also withdrew, leaving the 
Petitioner to carry on the Estate, as he best could, 
without any assistance. It was then that he was 
driven to sell off the oxen to oupport himself and 
keep up the Estate. 

There was certainly some extravagance in his 
living, but he had a wife and a child to support, 
and was in bad health and obliged to live in 
Port Louis, for, though ho was really the pro- 
prietor of Beaux Songes, he was not allowed to 
remain on the Estate. 

I submit that he is entitled to succeed in the 
present application, at least to the extent of be- 
ing protected from imprisonment." 

THE COUET: 

I This case presents several features of a special 
and peculiar nature, and which are, certainly, 
very unfavorable to the Petitioner. It hsjn^^^^ 



56 



DECISIONS OF THE 



[1869 



argued on his behalf that, after all, he only join- 
ed other parties in the specalation of carrying 
on this Sugar Estate, and if the speculation was 
unsuccessful, why should he suffer more than the 
other associates who were equally foolish and 
rash in entering upon such an enterprise ? But 
this reasoniog is not satisfactory. The other 
parties were persons of substance who have ho- 
nored all their obligations. They have paid cash 
down and have not caused loss to any one. They 
do not require to come to a Court of Insolvency 
to give an account of their conduct and of their 
deiuings and ask its protection if the Court shall 
be satisfied that they have acted, all along, with 
good faith and been the victims of misfortunes be- 
yond their own control. The position of the Peti- 
tioner is exactly the reverse of all this : with a ver^ 
limited capital he undertook very heavy responsi- 
bilities. He put himself forward as the purchaser 
of a large E8tate,while he was the owner, merely, 
of a few thousand dollars. From the beginning of 
the adventure, he was in such a state of indebt- 
edness that any prospect of any making good his 
position can scarcely be said to have been within 
the remotest probability. 

But, farther, the expensive style of living in 
which he indulged was quite unwarrantable in 
the circumstances. 



He admits that he spent, monthly, for his pri- 
vate purposes some ,$600. He says, no doubt 
that his wife contributed from her funds. But 
lie furnished no evidence of this, he could not 
even say what property she possessed, nor what 
amount was advanced by her. Latterly, he strip- 
ped the Estate of almost every thing upon it. 
He sold off nearly the whole of the oxen and 
cows, some 70 or 80 in number. Before he left 
the property he sent away a wooden house in the 
course of erection. Its value may not have been 
very great, as the wood was not new ; but the 
dimensions of the building were 4i0 feet in length 
by 18 in breadth with a height of 8 feet, and five 
or six carts were required to transport the wood 
from the estate. At his departure, the property 
was denuded of almost every thing which could 
be removed. In the words of the manager who 
was put upon the Estate when it was placed un- 
der sequestration, '' when I went upon the Etate 
" I found it entirely divested of provisions, tools 
*' and animals. '* 



Unfortunately for the Petitioner he cannot 
give any proper account, of what he did with the 
money raised in this irregular and unwarrantable 
manner. He kept no Bank account, no cash 
book, and no record of any part ot his expenditure, 
excepting of some of the payments made to the 
laborers. In such a case, the Petitioner cannot 
be said to have been in good faith throughout and 
to be reduced to his present position by misfor- 
tunes beyond his own control. 

The benefit of Cessio Bonorum cannot J)e 
granted to him, and the Petition must be dis- 
missed. 



I 



BAIL CODRT. 



ACTIOK EN DOMMAOES £T n7T]BB£TS POTTB F0T7B* 
SUITE MALI0IBI7SB, — MOTlF FBOBABLE ET BAI* 
SOITKABLE, — iKCOimUITE 3)U PLAiaKAKT DAKS 
VK PBEOiBEKT PBOCES, — BeJET. 

L'acquittement du Plaignant, (antMeuremeni prS^ 
venu de vol devant une cour correctionneUe) ne 
lui donne pas infaillihlement droit a des dom* 
magei et vnteriU^ lorsque, suriouij il a, en quelque 
sorie, provoqu6f par certains actes reprehenstbles^ 
Taction correctionneUe deja diri^ee centre lui. 



AoTioK nr nAMAQES roB kalioiotts fbosecv* 

TICK,*— BeASOKABLE AND FBOBABLE CAUSE,— 
PlAINTIPF'S inSBEHAYIOUB IK TEE FOBMSB 

AGTiOKt — ^Dismissal. 

The acquittal of a Plaint^ Qpreviously Defendant 
in an action of Larceny) is hy itself no ground 
for a suit in damages at his instance; epeciaUy 
when such Plaintiff had been guilty ^ in suchformtr 
action f of gross misheha^nour. 



PAVADfi,— Plaintiff, 

versus 

KOO-MOOTOOSAMY, — Defendant 

Before : 
His Honor Snt 0. F. Shakd, Chief Judge. 



E. Bazibe, 
J. Meboies, 

P. L. CHABTBLLIEBy- 
A. PiTOT, 



•Of Counsel for Plaintiflf. 
-Plaintiff's Attorney. 
•Of Counsel for Derondant. 
-Attorney for same. 



2nd July 1869. 



This was an action of damages for malicious pro- 
secution. The Plaintiff asked £100 as reparation 
for the iojuries which he said he had sustained 
by a false charge of larceny of 1,000 yacoa bags, 
preferred against him by the Defendant, on tha 
26th August last, by signed Information before ' 
the District Magistrate of Port Louis. The 
Plaintiff alleged that the charge of larceny waa 
got up against him by the Defendant, falsely and 
maliciously, and without any reasonable or pro- 
bable cause. 

It appeared from the evidence, that in the 
month of August last, 1,000 vacoa bags had been 
shipped at Savanne, on board of each of the two 
coasters Oecile and Ste Franqoise which left Souil- 
lac at the same time, bound to Port Louis. On 
the morning of the 25th, both vessels had reached 
their destination, and the Plaintiff went to Du« - 
chesne the Captain of the Oicile and told him 
that he expected 1,000 vacoa bags from Savanne* 
and wished to know if he had them on board of 
bis coaster. For reasons which have not been 



18691 



COURTS OF MAURITIUS. 



57 



Yerj clearly explained, Duchesne, while he told 
the Plaintiff that he had such a quantity of vacoa 
bags in his ship, did not ask him to go on 
'board and see whether or not they were the bags 
he was in quest of. He recommended him to go 
to the other coaster, Captain Yallet, and inquire 
if the bags he was looking for were not the bags 
which formed part of its cargo. 

The Plaintiff went, accordingly, and spoke to 
Captain Yallet. What passed on this occasion 
between the parties is very material for the deci- 
BioQ of the present case. Yallet deposes on oath 
as follows : 

•• On my arrival at Port Louis, at about 6 
*^ o'clock A.M, on a Wednesday in August last, the 
-" Plaintiff, at about 7 o'clock, came and asked 
*' me if I had 1,000 vacoa bags on board. 

'• I said yes. He said they have been sent to 
'" me by my ** confrere " at Savanne. I have just 
'* seen Duchesne who says you have my vacoa 
** bags ; please deliver them to me, for I have a 
*' letter from my friend who says he has sent 
" them to me. He the Plaintiff shewed me a let- 
'' ter. I can't read. I believed him. I asked 
'^ his name, he said I am Mootoosamy ; these bags 
** are consigned to me. I did not, then, know ei- 
'* ther one or other of the Plaintiff or Defendant. 
*' I told him I could not immediately give deli- 
'* very, as the coaster was loaded, but to return 
" at 9 o'clock when, upon payment of the freight, 
'' I would deliver them. This was done accord- 
^'ingly." 

Next day, one Vythilingum who had shipped 
the bags at Savanne, on board of the Ste» Fran- 
^isBf Captain Yallet, came to town and went to 
the ship to enquire about them. He was then 
informed bv Yallet of what had taken place, and 
he and Yallet went in quest of the Plaintiff, and 
fioon found him in the town. He admitted the 
receipt of the bags, but pleaded that if they really 
did not belong to him he had merely coiumitted 
a mistake in taking delivery of the wrung bags. 
The Defendant, who, by this time, had joined the 
party, required him to restore things to their 
proper and original position by replacing his 
bags on the quay whence he had taken them ; but 
the Plaintiff refused to do this, uuless the freight 
«nd cartage were repaid to him. 

Some high words then followed between the 
parties and they separated in very bad humour ; 
the Defendant threatening that he would prose- 
cute the Plaintiff as a tiiiet, the latter telling bim 
that he might do as he pleased. 

The Defendant, the same day, lodged a com- 
plaint of larceny of the bags against the Plaintiff. 
The latter was tried before the District Magi<<- 
trate and acquitted with C08t9. It is for this pro- 
aecution as malicious and without reasonable or 
probable cause, that the present action in da- 
^nages has been raised. T>>e Defendant has ad- 
mitted the Information in the Court below, the 
acquittal and the identity of the parties. This 
^ f has rendered the production of the Bercord in the 
rVListrict Court, unnecessary, for, the testimony of 
I the witnesses in the one case could not be used 
I in the other. 



We have now to consider, whether, looking at 
the case in all its features, the Plaintiff has been 
able to establish the two matters which must be 
proved to exist in all cases of this nature, viz : 
that the proceedings taken against him were 
founded in malice and were devoid of reasonable 
or probably cause. It has been suggested on be* 
half of the Plaintiff that the Defendant's motive 
was the malicious one of damaging and perhaps 
ruining the character of a rival dealer in vacoa 
bags ; but the fact of both the parties here be- 
ing in the same line of business, is plainly by it- 
self far too narrow a basis to support a charge of 
malicious prosecution. 

On the other hand, if the evidence had dis- 
closed nothing more against the present Plaintiff 
than that by what might reasonably have been 
held to be an innocent mistake he had taken pos- 
session of a quantity of vacoa bags which did not 
belong to him, it certainly would have been a very 
strong thing for the present Defendant, if, instead 
of resorting to Civil proceedings he had lodged a 
criminal Information against the Plaintiff, for 
larceny of the bags and caused him to be subject- 
ed to a public trial for the alleged offense. 

But, unfortunately for the Plaintiff, there is 
evideoce of very gross misbehaviour on his part, 
before the charge of theft was prefered against 
him, Ue undoubtedly obtained delivery of the 
bags by false pret^'nces and by passing himself off 
for another party. He told the captain of the 
coaster Ste, Frangoise that he had a letter from 
the shipper at Savanne, stating that the bags had 
been shipped for him, on board that vessel, and 
he showed a letter in support of his false state- 
ment. The witnt*8s not being able to read, could 
not, at the moment, che/ck the bona fides and ve- 
racity of Pavade, who, farther, added another 
falsehood by stating that he was Mootoosamy to 
whom the goods were serit. Thus, in fact, perso- 
nating another and an absent individual, viz: the 
Defeu'iant. Keeping this evidence in view, it is 
impossible to hold that the hands of the Plaintiff 
were clean in this affair. Por some reason or 
other, he made fa'se statement, that he might ob- 
tain possession of the vacoa bags on board the 
coaster of captain Yallet. When the truth sub- 
sequently came to li^ht, after a wrangle about 
the terms on which the bags were to be restored 
to their real owner, the Plaintiff still insisted up- 
on some trifling b'jt inadmissible conditions', and 
in a manner, as we have seen, set the Defendant 
at defiance. In i his state ot matters it cannot be 
held that in lodging a charge of larceny against 
the Plaintiff, the Defendant acted with malice and 
without any probable or reasonable ground for 
the accusation. 

The acquittal of the Plaintiff is, by itself, of 
course, no ground for a suit in dnma^es at hie 
instance against the Defendant. If the contraiy 
were to be the rule of law, there would just be as 
many suits in damages as acquittals. The Plain- 
tiff had really himself to blame. He exposed 
himself to the risk of the evil of which he com- 
plains, by his duplicity and false statements, and 
he must take the consequences. 

The action is dismissed ^\v\i^<^^Xji^, 



«8 



DECISIONS OP THE 



[186» 



BAIL COURT. 



AfPEL D'Uir JVGEMEirr DE MAaiSTRA.T DE DlB- 
TBICT. — ACTB D'aOCUSATION. — OMISSION D'UN 
HOT EBSEKTIEL DANS LA COPIE DE GET ACTE, — 

— DfeoMiNATiON iNEXACTE,— Renvoi devant 
LB Magistbat db Distbict, — Vol, -Kegel, 
— Feais. 

I/enonciation, dans la copie de Vacte d^accutaUon^ 
d^un crime different, et Vomission dans la copie 
de ce mSme acte d'un mot essentiel et constitutif 
de ce crime, ne sont pas des moyens d^appel va- 
lides, lorsque ces erreurs n'auront pu entraver la 
libre defense du Prevenu, 



Appeal eeom Convigtion op Distbict Maois- 
tbate, - Inpobmation, — Omission in the go- 
PT thebeof of a substantial wobd, — Ebbo- 
NEOUS heading, — Remit to the Magistbate, 
— Labcent,— Unlawful possession,— Costs. 

The Court wHl not quash a con/viction^ on appeal^ 
because the copy of the Information sent up to 
the Court was defective and its title erroneous^ 
the body of the original Information being correct 
and complete. Specially when the Prisoner suf" 
fered no hardship or impediment in his defence. 



SIG OBEEN,— AppeUant, 

versus 

THE QUEEN,— Respondent. 

Before : 
His Honor Sib C. E. Shand, Chief Judge. 



A. Lalouette, 
Q-. Lalandelle,- 
E. J. Lecl^zio, - 

J. BOUCHET, 



•Of Counsel for Appellant. 
•Appellant's Attorney. 
•Of Counsel for Respondent. 
■Respondent's Attorney. 



2nd July 1869. 



This was an Appeal from a sentence of the 
Acting Dintrict Magistrate of Grand Port, sit- 
ting on the Criminal side. 

« 

The charge against Sigobeen was that he had 
been found unlawfully in possession of certain 
Indian gold and silver ornaments,which bad been 
stolen from one Booduah, »ome time previously. 
The accused was found guilty and sentenced to 
^ six mouths imprisonment, with hard labor, and 
three shillings oi costs. , He appealed to the 
Supreme Court. 

In the course of the discussion in the Court 

above, it was pointed out that in the copy of the 

proceedings sent up from the District Court, the 

word excuse did not appear in that part of the 

charge againat the Priaoner, which stated, or 



« 






(( 



ought to have stated, that be was in posaeBaicm 
of the articles, '* without sufficient excuse or jus- 
tification. " It was alt*o shewn that at the top ^f 
the charge itself, which, as we have seen, wu 
for being in unlawful possession of certain ar- 
ticles previously stolen, the words, '* charge of 
Larceny " were placed. 

After hearing Counsel on both sides, the case 
was remitted to the Court below '* for ezplana- 
" tion as to whether the word eoscuse which k 
" omitted on the copy, appears in the Original 
'* Information ; and 2ndly why the heading r 
" charge of La/rceny was put upon a charge for 
" receiving stolen property ? " 

• 

To this remit the Acting Miagistrate made the 
following return : " I beg to state : let That the 
" Word *' excuse " which is omitted in the copy of 
" the Information in the case of Si^o&ean, appeared 
'* in the Original Information ; and, 2ndl7, that 
the heading : ** charge of Larceny " was erro- 
neously put, by the Inspector of Police, upon a 
charge for receiving stolen property, inat^d of 
the heading : '* charge for receiving atoleii 
"• property." 

Lalouette for the Appellant resumed his ar- 
gument and mentioned that altho' after the re- 
turn of the Magistrate he must give up his ob- 
jection on tbe ground of the omission of the 
word eoictise in that part of the original Informa* 
tion which charged the possession of the stolen 
property '* without sufficient justification or ex- 
cuse, " yet, the other difficulty still stood in l^e 
way of the Crown ; viz : that the Information 
was erroneously entitled *^ charge of Larceny ", 
whilst it really was a charge of '* unlawful possei- 
sion." 

He farther argued that from the dates men- 
tioned in the record as sent up from the Dis- 
trict Court, it might be gathered that there bad 
been two Informations, in fact, although only 
one of them was made to figure in the Recordj 
and that the Prisoner must have suffered in his de- 
fence from such uncertainty in the proceedings. 

E. Lecl^zio, Sub. Procurev/r Oenerali The 
omission of the word ** excuse, '* merely occurred 
in the copy of the Information sent up to this 
Court. The original was all right. In the next 
place it was a mistake, no doubt, to head an la- 
formation for receiving stolen property with the 
words *' charge of Larceny " ; but no harm came 
of this blunder of the Prosecutor, who was the 
Superintendent of Police. There is no reason to 
believe that there were double Informations here 
or that the whole proceedings were not fair and 
regular. 

THE COURT. 

From tho return of the Acting District Ma- 
gistrate, under the remit from this Courts it ap- 
pears that in two matters there has been some 
carelessness and negligence in the Court below. 
In the copy of the original information sent up 
to this Court, a very importaut word in the body 
of the information ; viz : the word /' excuse '' was 
omitted, and again, we %id quite an erroneous 
title placed, or, at leasts allowed to remain at the 



J869] 



COURTS OF MAURITIUS. 



59 



top of the original Information, when it ought to 
hilTe beeo carefully deleted. 

I trust the officials in the Court below will be 
^more. careful aod accurate for the future, as a 
tery little more would have led to the upsetting 
and quashing of the whole proceedings. 

As the matter actually stands,and being satisfi- 
ed that the Prisoner suffered no hardship or impe- 
diment in his defence, the body of the original 
InfOTxnation being correct and complete tho' its 
title was erroneous and the copy sent up to this 
Oourt defective, and being farther satisfied that 
the accused was properly tried and proved, by 
sufficient evidence, to have committed the offence 
with which he was charged, I must dismiss the 
Appeal, but in the circumstances, without costs. 



BAIL COURT. 



Ajpfeal PR03I coirvicTioN OP DiSTEiCT Maghs- 

^BATB, — BeCEITEB OP STOLEN GoODS, — EVI- 
DENCE OF COACCUSED, — ACQTTITTAL, — OONVIC- 

TioiT, — Costs. 

The evidence of a coaccused against his accomvplice, 
cannot be admitted until he be acquiUed or con- 
victed. 



Appel d'i?n Jugement de Maoistbat p,e IJis- 
TBicT, — Eecel, — Temoignage d'un coaccuse, 
— Libebation, — Condamnation,— Pbais. 

Xe Umoignage Wun coaccuse contre son complice^ ne 
peut etre regUy si le deposant n'a, auparavant, 
ete acquitte ou condamne. 



SINNEVASSEN,— Appellant, 

versu>8 
THE QUEEN,— Respondent. 

Before 
His Honor Sir C. E. Shand, Chief Judge. 



T. Hebchenbodee,- 
E. Pellebeau, 
E, Leclezio, 

J. BOUCHET, 



-Of Counsel for Appellant,™ 
-Appellant's Attorney, 
■Of Counsel for Bespondent 
-Bespondent's Attorney. 



2nd July 1869. 



In this case the Appellant Sinneva^^sen ,had 
been charged in the District Court of Grand 
•' Port, with being in possession, in the month of 
: August last^ and without sufficient excusQ or 
. justification, of certain ** Bons " and other pro- 
) perty which had, some days previoi^s]^, been 
/ stolen from one Sinnevassen Chetty. " 



The accused was convicted by the Acting Dis- 
trict Magistrate and sentenced to 6 months im- 
prisonment with hard labor, and £5 of costs. 

Among the grounds of appeal to the Supreme 
Court, appeared the following reason : ** The de- 
position of Clara Edmond Bon should have beeii 

rejected, she beingaco-aCQused.notaqqulti^cnu^ 
not convicted. " 

It was shewn in the discussion before the Bail 
Court, that the said Clara and Sinevassen (the 
Appellant), had been charged with drugging and 
larceny ; but before proceeding with the trial 
of the Appellant for being in unlawful possession 
of the Articles aforesaid, the Inspector of Police 
had moved the Court '* that the charge against 
Sinevassen and Clara, for drugging and larceny, 
be struck out " and the motion had been granted 
by the acting Magistrate. 

In this Court it was contended, as above men- 
tioned, that the statements of Clara could not be 
admitted in evidence as she had neither been ac- 
quitted nor convicted. A remit was made by the 
Judge in the Bail Court to the Judge below, that 
be should state whether by ordering that the 
charge against Sinnevassen and Clara for drugg- 
ing and larceny ** be struck out '* he meant that 
the charge was dismissed and the prisoners ac- 
quitted. The return by the Magistrate was that 
by those words he did intend to decide that the 
charge was dismissed and the prisoners acquitted. 
Thereupon the Appellant's Coun«sel left the case 
in the hands of the Court. 

THE COURT : 

The form of expresaion used by the Magistrate, 
here, was ambiguo\is. Aa his intention was to acquit 
the prisoner, he should have said so distinctly and 
in the usual appropriate terms. It is not safe 
to depart from the ordinary technical words ; 
more particularly in Criminal matters. 

The appeal is dismissed^ but without costs. 



BAIL COURT. 

OUVEBTUBE DE CbEDIT,— BaIiANCE DB CoifPTX 
COUBANT, - InTeBETS. 

Zes inthets son dus de plein d/roit sur toute balance 
de compte courant, a partir du jour de la cloture 
de ces comptes. 

Opening oe Cbedtt, — Balance op accottnt 
ctjebent, — Intebst thebeon. 

Sums the balance of an account current, carry inte" 
rest from the day on which such account have 
been finally closed. 



BAUD ON,— Plaintiff, 
versus 

OAEBONEL, PIDDINGTON & Co.,— Defen- 

[daats. 



60 



DECISIONS OF THE 



[1869 



Before 
His Honor Justice N. Q-. Bbstel. 



L, RoiriLLABD,- 
E. DUCHAT, 

W. Newton, 
E. Sauzieb, 



Of Counsel for the Plaintiff, 
■Plaintiff's Attorney, 
•Of <'ounsel for Defendants, 
-Defendants' Attorney. 



2nd July 1869. 



The Plaintiff had opened a' credit and debtor 
account with the Defeodants who were al- 
lowed to draw upon him for wants of their 
Engineering establishment, on the terms stated 
in the power of Attorney given to one Dumat 
by Piddington, a member of the firm " Carbonel 
Piddington & Co. 



» 



The account begins on the 28th November 
1866 and ends on the Slst January 1867, leaving 
a balance of ^389.09. against the said firm which 
has paid certain sums ou account. Whereby the 
above balance has been reduced to the sum of 
^108 in principal. 

On action brought, this balance was paid into 
Court, but was not taken out by the Plaintiff, by 
reason of its insufficiency owing to the absence 
of the interest claimed by the Plaintiff, but de- 
nied, by the Defendants, to be due. 

The only point to be ascertained is whether 
interest is due or not and should have been paid 
into Court along with the principal. 

The Defendants ground for refusing to pay 
interest is that none can be due to the Plaintiff 
who might have been paid long ago had he been 
BO mindfd. That he not having been paid 
thro' his own fault in having claimed a larger 
sum than was really due to him, must necessari- 
ly submit to the loss of interest now claimed. 

The answer to this plea was, true ifc was that 
a larger sum had originally been claimed by 
error, but, at the opening of the trial, the error 
was frankly admitted by the Plaintiff who, 
unhesitatingly, reduced the sura origina'ly de- 
manded to its present figures. The Defendants 
might, therefore, have added the interest on the 
reduced principal to the sum paid into Court, 
and the Plaintiff would not have been warranted, 
as he was. to claim the now disputed interest. 
*' Du reste," says * Pabdessus (Droit commercial^ 
** 2 p. 527), les comptes (courants) portent in- 
" ter^ts de plein droit, parceque les correspon- 
•* dants sont respectivement mandataires'" 

JUDGMENT. 

"When this case came for trial, the error com- 
mitted by the Plaintiff, in claiming a larger sum 
than the one really due to him, was admitted. 

The Defendants remained debtor of a smaller 
sum which, howewer, was not paid. This non 
payment compel 'ed the Plaintiff to bring his ac- 
tion for the recovery thereof On action brought, 
iJia Defendants paid, into Court, the amount 



of their debt as reduced in principal only. No*» 
thing was paid in on account of interest. The 
reason assigned for their not paying such inte- 
rest was the error originally committed by the 
Plaintiff in demanding a larger sum than was 
due. This, however, is no argument for not pay- 
ing interest on the minor sum due, the amount 
of which had been made known to them. 

They have enjoyed the Plaintiff's money up to 
the time they paid the reduced principal into 
Court. It is but fair that the Plaintiff should 
be indemnified for the enjoyment the Defendants 
have had of l^is principal, by interest now clai- 
med from the day of trial, when the error com- 
mitted was acknowledged into Court. 

Judgment for Plaintiff, with costs. 



SDPREME eODRT. 



PbOPBI£t^ SuCBlfeBE ADMrsriSTB^B PAB LE COK- 
MI88IONNAIBE, — ACTION EN DOMMAGES ET IN- 
TEBETS A LA BEQUETE d'uN CBEANCIEB. 

Le creander vnscrit sur Une propriete siicriere, qui 
est infervenu dans un acte d'ouverture de credit, 
pour consentir a ce que les sucres soient consignds 
au bailleur defonds, ne pent, si ce dernier prend 
ensuite r administration de la propriete et laisse 
pericliter le bien, attaquer le (hmmissionnairey en 
dommages et interets. 



SuGAB Estate managed bt a •* Commission- 
NAiBE," — Action in damages at the instanck 

OF A CBEDITOB. 

The creditor inscribed on a Sugar Estate^ who 7ia4 
intervened in a deed of opening of credit^ in or* 
der to consent to the sugars being forwa/rded to 
the *' OommisHonnaire** money lender, cannot if 
the latter, afterwards, assumes the management 
of the Estate and allows such Estate to go to 
ruin, enter an action in damages against the 
" Commissionnaire,** 



LEWISON,— Plaintiff, 



verstu 



THOMAS, LACHAMBEE & Co.— Defendants, 



Before ; 

His Honor Sib C. E.-Shand, Chief Judge, and 
His Honor N. G. Bestel. 



Ot. Q-TJIBEBT, 

J. Slade^ 

Hon. L. Abnaitd,- 

J. Fi&siojnCf 



"Of Counsel for Plaintiff.J 
-Plaintiff's Attorney. 
-Of Counsel for Defendants. 
Defendants' Attorney. 



1869] 



COURTS OF MAURITIUS. 



61 



26^;^ May 1869. 

By a Notarial contract of the 10th January 
1860. duly registered, one Damare Amed^e Per- 
rot let. to one Yictorien Lamarque and one Jo- 
seph Isaac Cohen De Lissa, a >ugar Estate Le 
Nuage alias Chamarely in the District of filack 
River, for six years and three months reckoning 
from 11th January 1860, to end on the 3l8t 
SI arch lb.66, such lease renewable for six other 
years on the same terms on notice being given 
to the said Perrot, one year before the last men- 
tioned date. 

One of the several conditions of the lease 
above mentioned was the annual consideration 
of 160,000 pounds weight of sugar of the first 
quality, manufactured on the said Estate, to be 
delivered to the said Perrot, in two instalments 
of 80»000 pounds weight, on 1st November and 
15th Jauuary of each year, under the penalty of 
the cancellation of the said lease, for non pay- 
ment of the rent, after a mise en demeure remain- 
ing unheeded for three months after service 
thereof. 

By a subsequent agreement under private 
signatures, of the 5th June 1860, the said Vic- 
torien Lamarque assigned his share in the lease, 
to De Lissa, and by a notarial deed before 
, Raoul, of the 22iid February 1864, duly regis- 
tered, De Lissa sole lessee of the said Estate, 
ceded and conveyed to one James Blackburn, ^ 
of all his rights, claims and charges arising from 
the above mentioned lease, from and after the 
16th January 1864. 

For and in consideration thereof, the said 
Blackburn bound himself to pay in discharge of 
the said De Lissa, the sum of g 10,000 to Le- 
wison, the Plaintiff, a creditor of the said De 
Lissa, on the portion accrueing to him. Black- 
bum, in two equal instalments of ,^5,000 on the 
crops of 1864 to 1865 and of 1865 to 1866; and 
the said De Lissa, further abandoning to Le- 
wison that portion accrueing to him, until the 
Plaintiff should have been paid the sum of 
jJ17,589 due to him. 

Blackburn and De Lissa further bound them- 
selves, jointly and in solido, to pay to Lewison, 
the. sum of ^100 per month from the 47th Fe- 
bruary followini5 and to be deducted from the 
interest of the c' aims aforesaid, on payment of 
which said 5100 during the partnership between 
Blackburn and De Lissa, the Plaintiff undertook 
not to interfere m, nor impede the working of 
the said Estate or the consignment of the pro- 
duce thereof to any agent or agents. 

It is further acknowledged by Blackburn and 
De Lissa, in the said deed of partnership, that 
the machines &c., set out in an inventory to the 
contract annexed, were the property of the 
Plaintiff and should becoi e the property of the 
partners on a cash payment of ;gll,720. 

By an act under private signatures, to which 
Pierre Jules Levieux, the proxy of the said 
Perrot and wife, as well as George Lewison the 
Plaintiff, were made intervening parties, it was 
agreed, among other things, that all the sugars 
manufactured on the Estate, should be sent 



to Port Louis to Messrs Thomas, Lachambre 
and Co., represented by Arsene Maroussem, of 
Port Louis, Merchant, who bound themselves to 
store the same at the '* Albion Dock,*' at the 
expense of the said Blackburn and De Lissa, to 
sell the same, except the quantity of 160,000 

f)ounds weight which was to be delivered to the 
essor Perrot or Agent, on the wharf, in terms 
of the conditions x)f the said lease. 

The Plaintiff complains that the said Defen- 
dants on or about the latter end of the year 
1864, had improperly and without the consent 
of the said De Lissa or of the Plaintiff, had pre- 
vailed upon Blackburn to confide to th in the 
administration which had been entrusted to him, 
Blackburn, personal ly , by the partnership con- 
ventions, and had assumed the entire control, 
supervision and management of the said Estate 
Chamarel, which administration by them or their 
agents had entailed heavy losses upon the Plain- 
tiff, and the following among others : 

1 st. The bullocks and mules, for the reasons 
assigned in the Declaration, for the most part 
have died, and the rest had been n^uch deterio- 
rated in value. 

2. The rent of the landlord being unpaid altho* 
sufficient sugars had been sent to the Defen- 
dant for paying the same, Perrot caused tL ? 
lease of the said Estate to be cancelled, and to 
be paid of his rent, had seized and sold all the 
mules, carts, implements generally whatsoever 
being on the said Kstate. as well as the machi- 
nery and utensils belonging to the Plaintiff, and 
by him lent, as aforesaid, to the said Blackburn 
and De Lissa, for which wrongs, g 1 5,000 plus 
-^50 costs of Declaration and service, giving a 
total of ^15.050 are claimed as a reparation 
for the wrongs which the Plaintiff alleges to 
have sustained at the hands of the Defen- 
dants. The Defendants, in their plea, lo de- 
ny the various matters, facts and things in 
the Declaration alleged ; the capacity of Plaintiff 
to bring any action in damages or otherwise 
against the Defendants, by reason of the alleged 
facts in the Declaration set forth which have al- 
ready been the subject matter of 2 laid suits now 
or lately pending before this Court between the 
parties therein mentioned, of which suits the 
Plaintiff had full knowledge and notice, or by 
reason of any other facts or matters whatsoever 
connected with the Ohamarel Estate ; 

3. Not guilty of the grievances or damage 
complained of; and finally, pray for the dismissal 
of the action. Thereupon issue was joined. 

On the cause being called for trial,the Honora- 
ble L. Abnaud, of Counsel for the Defendants, 
took a preliminary objection and contended that 
the Plaintiff had no right of action against the 
Defendants for the alleged non or bad perfor- 
mance of their contract with the lessees of the 
E:)tate Le Nuage alias Chama/reh 

The Plaintiff was no party to the contract 
between the Defendants and the lessees of the 
said estate, in which contract not the slightest 
reference is made to the existence of any live 
stock, machinery &c,, of which the Plaintiff al<* 
leges to have been. d!e^TO^^>5^ 'Ocka *«fi^»%NA.^58[«^ 



62 



DECISIONS OF THE 



[1869 



of the Defendants in not paying to the landlord 
the amount of his rent, by reason of which Per- 
zot cancelled the lease made to Blackburn and 
De Lissa, and for payment of his rent seized the 
live-stock and machinery put on the Estate and 
referred to a schedule annexed to the contract 
of the 22nd January, to which, however, the De- 
fendants were no parties. 

The Contract upon this action is based on the 
agreement in four parts signed by the Defen- 
dants Blackburn and De Lissa. and in which 
Levieux intervenes for the protection of the 
landlord's rights, and De I jssa for no other 
than the following purpose, as stated in the 
art. 13 : " Au pres^ent est aussi intervenu 
" M. Geo. Lewison, (roprietaire, lequel apres 
** avoir pris communication de ce qui precede a 
" declare avoir pour agr^able les conditions qui 
•• precedent et s'est obiig6 a n*en pas entraver 
** I'execution jusqu'li Tentier remboursement 
" des avances qui seront faites par MM. Thomas, 
'* Lachambre & Co., en principal et int^rets." 

The conventions to which the Plaintiff assents 
and undertakes not to disturb, relate to the ad- 
vances to be made to Blackburn and De Lissa, 
for the wants of their estate, and the conditions 
connected with those advances and the refunding 
thereof. . No reference is therein made to any 
live-stock, machinery &c , or to the schedule an- 
nexed to the contract of the 22nd January, men- 
tioning such live stock, machinery &c. 

G. GuiBBBT for the Plaintiff,on the other hand, 
maintained that clause 9 of the agreement under 

Erivate signatures between the Defendants Black- 
urn and De Lissa, was decidedly in favor of the 
right of action on the part of the Plaintiff. This 
clause provides for the sale of the sugars in pay- 
ment of the debt of Blackburn and De Lissa to 
the Plaintiff, with the exception of the 160,000 
pounds weight to be deducted in kind for their 
landlord Perrot, for rent. The net pro- 
ceedis of the sale of the sugars were to be apphVd 
to the payment of the balance which might be 
«due to the Plaintiff ; and by clause 10 of the 
same agreement, any balance in favor of B'ack- 
burn and De Lissa, should be paid in two equal in- 
stalments. " Une moitie pour Mr Blackburn, 
*' et une moitie pour Mr De Lissa; sur la i de 
" Mr Blackburn il sera verse k Mr Lewison une 
' ' somme de ^5,000, avec les iuterets h 9 0(0 
'* par an, et la totalite de la part de Mr De 
" Lissa sera versee a Mr Lewison." Coun- 
sel next called the attention of the Court to 
the fact ( f the agreement having been made 
in four parts, whence he inferred a rec'g- 
nition by the Defendants of the Plaintiff be- 
ing a party to the opening of credit by Defen- 
dants to Blackburn and De Lissa. He al^o urged 
that altho' Blackburn was the party who was en- 
trusted with the mariagement of the estate, had 
either deprived himself or had been either indu- 
ced and compelled by the Defendants to resign 
such management in fa<ror of the latter who should 
have so managed the estate as to prevent the pos- 
sibility of a cancellation of the lease and the sei- 
zure of the Plaintiff's property. 

JUDGMENT. 

We have in vain tried to find a plausible 
gl*ound in support of this action. Not a Word 



is said in the *' ouverture " of credit by the 
Defendants to Blackburn and De Lissa, which 
might raise in the Defendants' mind, the least 
suspicion that the live-stock, machinery &c, then 
being on the Estate Le Nuage alias Ohamarelf 4t 
the date of the *' Ouverture de credit, ** were nqt 
the property of Blackburn andDe Lissa. 

We have no evidence of the contract between 
Blackburn, De Lissa and Lewison, of the 22ad 
January 1864, to which a Schedule was annexed 
in support of the statement of Lewison, and re- 
cognition by Blackburn and De Lissa of the live- 
stock, machinery &c. therein mentioned being the 
property of Lewison, having ever been brought 
to the notice of the Defendants. 

Further, the clauses 9 and 10 say nothing more 
than the Defendants were empowered to »ell all 
the sugars of the Estate, with the exception, ho- 
wever, of 160,000 pounds weight to be delivered 
in kind to the landlord, in payment of his rent ; 
that the net proceeds should go in payment of 
the Defendants' balance in favor of Blackburn 
and De Lissa, in the way above pointed out. 

Assuming Lewison's intervention to have made 
him a party to the agreement or *' ouverture de 
credit " we find him approving the ** ouverture 
de credit, " the conditions consequent upon it 
and, inter alia, in which way matters were to be 
conducted between parties to secure to the de- 
fendants payment of the advances to be made by 
them. The Plaintiff further consents to be paid 
upon the eventuality of an existing balance in fa- 
vor of Blackburn and De Lissa, in the manner 
stated in the agreement *' apr^s avoir pris com- 
*' munication de ce qui prec6 te a d^clar^ avoir 
** pour aireable les conventions qui precedent et 
" s'est oblige ^ n'en uas entraver Tex^cution jus- 
*' qu'k rentier remboursement des avances qui 
" t»eront taites par MM. Thomas, Lachambre 
** & Co,, "en principal et interet-n. " Not a 
word is there of Lewieon's right to the live 
stock, machinf^ry Ac. being on the Estate. The 
admission of Blackburn and Delissa could only 
be binding on the Defendants if they had been 
brought to their notice,. or, had reference been 
made to the deed of the 22nd January 1864, 
in the " ouverture de credit." Neither of these 
hypotheses has been realized. 

But it has been said that the assumption of 
the adminiHtTHtion by the Defendants render- 
ed them liable to the Plaintiff, there being 
ample evidence of the damage complained of 
by the Plaintiff, being the immediate conse- 
quence of their mal administration, assuming 
such maladministration, the Defendant** might 
be called to account by the leasees Blackhurn 
and De Lis.^a who, so far as the Defendants were 
concerned, were the sole lessees and owners of all 
live stock, machinery, being on the Estate, at the 
date of the **Ouverture de Credit."That the Plain- 
tiff should have a right of action agamst them, he 
ought to have been able to shew that the Defen- 
dants had knowledge of the live-stock, machinery 
&Cf being his, the Plaintiff^s property. 

He has failed in this proof. The conpequence 
is that the action must be, and is accordingly 
dismissed with costs. 



1860] 



COURTS OP MAURITIUS. 



SUPBEME COUBT. 



AfiSUBANOE OONTBE l'tKCEKDIE, — BATnCEIfTTS IS* 
CENDIE3 PAB MALTEILLANCB,— InTEKTIOIT CBI- 
KINELLE ET 7BAXTDULEU8B DE L ASSDBB, — 
PbbUVES,— ACTtOlf ES PAIEBlBIirT CONTBB LA 
COMPAGNIE, — EeJET. 



!PlBE IHTSITBAirCE, — BXTILDINGS PTJBPOSELT SET 

ON riBB, — Insubbd guilty knowlegb jlstd 
TEAUD,— Evidence (Dibect and ciecumstan- 
tial), — "Witnesses' Vebacitt, — Oath and 

SOLEMN APEIBMATION, — ACTION IN PAYMENT 
AGAINST THE COMPANY, — DISMISSAL, 



• VIEAPA AND WIPE,.-Plamtiffs, 

versus 

THE MAUEITIUS FIEE mSURANCE Cy., 

— Defendants, 



Before : 

His Honor N. G-. Bestel, and 
His Honor G, B. Colin. 



£. Fbllebeau,- 
J. AIebcibb, - 
Q-, Gfibbbt, - 
J. PiGNiGtrr, • 



-Of Counsel for Plaintiffs, 
-Plaintiffs* Attorney. 
-Of Counsel for Defendants. 
Attorney for same. 



4th July 1869. 



A Policy of Insurance bearing the No. 12,953 
under date the ITih September 1867, shews that 
the above Company bad insured for one year, 
from the 17th September 1867, aforesaid, at 
noon, and ending on the 17th September 1868, 
certain buildings erected on a plot of ground be- 
longing to Virapa the wife, situate at Port Louis, 
Pagoda street, No. 35, were insured against the 
risk of fire.. The buildings insured were, amoogst 
others : 

lo. A dwelling house in wood, covered with 
shingles, valued at and insured for... Sl»800 



2o. A kitchen built in wood, doubled and 
covered with galvanized sheet iron, 
valued at and insured for 



... ... 



3o. A pavilion in wood, covered with tin, 
valued at, and insured for 

4o. A kitchen and an outhouse in wood, 
covered with tin, valued and insured 
for 



50 



200 



... •••■ ••* ••* 



. • ( . • f 



200 



^2,250 



On or about the 27th June 1868, at about 10 
y clock at night, a fire broke out on the said pre- 
^li^ises oif Joseph Yirapa the wifi?, and the four 



buildings above described were totally dee 
by the said fire, and the damage thereby b 
by the said Yirapa the wife, amounted, ace 
to the valuation made by the Mauritius F 
surance Company, to the sum of Two th 
two hundred and fifty dollars. 

In compliance with Art. 16 of the Pc 
Insurance, the Plaintiff Yirapa the wife, 
the declaration required by tiie said Articl 

But the Defendants have not, up to th 
of the declaration, paid the said sum of i 
nor rebuilt the house and out^iouses dee 
by fire, altho' four months have elapsed six 
said fire, and alt ho' often requested so 
A declaration by the said Joseph Yirapa, i 
on behalf of his wife, made on the back 
said Policy of Insurance, on the 30th Sept 
1867, shewed that a sum of $4:25, out • 
amount of the said Policy of Insuranc< 
transferred and assigned to one Jacques « 
Isaie Avrillon, which transfer and assig 
was registered at the of&ce of the Defendai 
the 21st October 1868, No. 2,204, and re: 
null and void by payroent to the said A\ 
by Yirapa and wife, of the said sum of ^4 

But another declaration made by Jose^ 
rapa, for and on behalf of his wife, on the 
September 1867, duly registered at the o 
the Dirfendants, on the 2l8t October 186 
2,205, shewed that the said Policy of lus 
was assigned and transferred to the sai 
rillon, up to the sum of ^900 in which th 
Yirapa the wife was indebted to the sai 
rillon ; which transfer and assignment 

food, the Defendants not having satisfie 
laintifis in any manner. 

The Plaintiffs, therefore, demand Jud 
against the Defendants and pray that the 
be condemned to pay to the said Virapa th; 
the^um of ^2,250, that is to say a sum ol ^ 
into the hands ot Yirapa the wi^e, and ti 
;^900 into the hands of the said Avrillon, t 
signee of a similar sum, as above exp] 
together with interest on the said sum of $ 
at the rate of 9 0[0 per annum, and the co 
suit. 

The Defendants, in answer to the above 
ration, pleaded several pleas : lo. No ri| 
action. 2o. Not indebted, and 3o. That the 
ings in the Declaration mentioned, had be( 
sured against the risk of fire breaking out 
dentally, and that the fire in the Declaratic 
ferred to, was not such an accidental fin 
that the said buildings were purposely s 
fire for the purpose of defrauding the DefcE 
and 4o. That the said Virapa the wife had 
ledge of the fact that the said buildings wi 
be set on fire for the purpose of defraudio 
said Defendants, and that she did nothing t 
vent the same from being so set Dn fire ; an 
the said buildings were burnt and deal 
owing to the fault, negligence and fraud ( 
Plaintiffs. 

The Plaintiffs replied and denying the 
ciouSy false and defamatory matters iu the 
I^os. 3 and 4, prayed that in conformitj- 



«4 



DECISIONS OF THE 



[186 



Art. 299 of the Penal Code, the Court, m giving 
Judgment on their behalf against the Defendants, 
tm the Plaintiffs' aetion,do order that the said 3rd 
ftnd 4th pleas be suppressed and struck out and 
to coodemo, moreover, the said Defendants to 
pay to Plaintiffs a sum of £500 as damages, 
besides the sum in the Declaration demanded. 

In their Rejoinder, these additional conclusions 
have been totally disregarded by the Defendants 
who maintain their pleas 3 and 4i, alleged by the 
Flairi tiffs to be defamatory. 

JUDGMENT. 

This action is defended by TJie Mcmritius Fire 
Insurance Company, upon very serious grounds. 
Tiie pleas distinctly set forth that the fire which 
burnt down part of the premises insured, was not 
accidental, but took place with the Plaintiffs' 
knowledge, for the express purpose of defraud** 
ing the Company. 

It is very plain that such a plea must be sup- 
ported by very strong evidence in order to defeat 
the Plaintiffs' right arising out of her Policy. 

The evidence adduced has been of a twofold 
nature : direct and circamstancial. 

If the direct evidence is to be believed, there is 
no doubt that Mrs Virapa ihe Plaintiff, knew 
that her house was to be burnt down ; by whom 
and when it was to be burnt down. 

There is no doubt, also, that if another hand 
committed the offence, it was for her private 
purposes that it whs committed, and hers was 
the will that prompted and directed the deed. 

The direct evidence has been much cavelled at, 
and there is no doubt that the witnesses who 
gave it are not of a class wh se veracity arid 
whose memory can be much relied upon. The 
most impo>tant witness of all, was not produced 
before the Court of Assizps, when the Plaintiff 
was tried on a chnrge of arson, aod acquitted ; 
and the reason why, is not explained in the evi- 
dence before us ; still, those witnesses are verv 
positive ; there is no suspicion, that we can see^ 
of their having the remotest interest to bring 
this charge and disclose the facts that they have 
revealed ; there is no suspicion that they have 
conspired 'together through malice or spite to- 
wards the Plaintiffs ; they speak to collateral 
facts which, if false, might have been proved 
false, and are lett unrefuted. 

Altogether, their united statements carry in the 
present instance great weight ; whether sufficient 
to bring conviction to our minds, if they stood 
alone, it is not necessary to inquire, because 
they do not standalone, but are sui 'ported by 
circumstaxcial evidence of very great import. It 
is, really we think, very much to be regretted 
that the law should have taken away the best 
lafeguardd which can be relied upon, to h(^pe for,if 
not to secure truth from most of the witnesses 
that are put in the box : the sanction of a so- 
lemn oath, the appeal of the Almighty to hear 
and receive the oath. We are fully aware that 
an oath may not be necessary for those whose 



education and sense of honor, fear of disgrace, 
detestation of that which is mean and low, are 
sufficient for the candour and truth of their sta- 
tements ; and that such men exist in every coun- 
try, under every religious system, we have no 
doubt ; but, unfortunately, the Hindoo and Ma* 
hometan immigrant coolies whom we hear as wit- 
nesses are not, generally at lea9t,men of that des- 
cription ; their moral, as well as their social posi- 
tion, stands very low, and to call facts by their 
true names, they often lie *' im/pvdentismne, " 
I^ow, these are the very people whose moral 
aberrations should be checked by the hopes and 
fears which their own religious creed inspires, and 
these are the very people from whom the influ- 
ence of such hopes and fears is taken away. They 
are not sworn at all, they solemnly affirm ; what 
the affirmation is worth and what meaning the 
solemnity of the affirmation conveys to them, it 
is difficult to say ; the plain fact remains that 
the least educated, often the most superstitious 
are the very people who are called upon to give 
^evidence without an appeal to the object of their 
worship. 

This, however, being the law, we must take it, 
and apply it as we find it, and comparing the di- 
rect with the circumstantial evidence, we find 
that the latter supports the former. 

The Plaintiff owed money secured on her house, 
and an attorney had received instructions to sue 
and eject her. The Plaintiff tried to raise mo- 
ney to pay off the pressing creditor, but failed. 
This, of course, per se would mean little or no- 
ti ing ; if the rule of Beccaria has occasionallj 
proved true, it has just as often proved false and 
oppressive ; but those are tacts, and facts which 
the most respectable witnesses have laid before 
us. Oneoftne direct witnesses, Mootoosamy, 
states that he was told by the Plaintiff to set fire 
to the house, and that he saw in the drawing room 
shavings of wood and gas oil ; a witness J. B. 
Wildman, who lives opposite the house, was 
awakened that night by a strong smell of petro- 
leum oil, went ou£ and saw smoke coming out of 
t'te Pluiutifi^s roof. He has no doubt at all as to 
the smell of the <il. Again, the day after the 
fire, the detective Inspector Boulter asks the 
Plaintiff whether she can account for the fire? no 
she ^aid, we have lost a good deal of property. 
Now, that is completely false, and of that parti- 
cular f ict we have no doubt whatsoever , ey^rj 
piece of furniture had been removed from the 
house, Wilman saw that done ; Jumun who help- 
ed to carry the furniture out, and did so with 
Tamby the Plaintiffs' servant, is positive as to the 
fact ; Asselin proves it ; the other witnesses prove 
it too, *' nothing was left " some of them say ; the 
removal by two me: , lasted several days ; they 
took down even some windows chat were in the 
loft. 

Now, this removal of the furniture is, here, of 
very great importance ; Veerapa, the Plaintiff 
husband was ill from ikiVQv ; that is perfectly 
plain, Dr. Rogers puts the fact beyond dispute ;. 
he leaves his bouse for a change, but he goes to 
reside at a short distance off in the same street,* 
in malabar camp, at his nephew's residence* and 
yet n ^t only is every bit of valuable furniture 
taken away, why and wherefore is not shown, 



1869] 



COUflTS OF MAURITIUS. 



65 



but every article that can serve is carried away, 
from the house that was bur at, to the nephew's 
house. There is more : it is distinctly shown by 
Made. Ghavry, for instance, that the cows 
which were usually kept in a covered shed, but 
to leeward of the house, a shed which was in fact 
burnt down, were on the very day preceeding 
the fire, removed to windward, and left for the 
night in an uncovered shed and that was not 
burnt. The reason ^iven is, that because the 
Plaintiff wanted to clean the shed, the cows were 
removed to the opposite side of the premises. 
We do not believe the reason alleged ; we do not 
l)elieve the removal of the cows to have been 
merely au awkward coincidence. One of the 
direct witness, IMootoosamy, states that money 
was given to Tamby, to drink, after he had re- 
ceived his orders to set fire to the house. If the 
circumstance stood alone, it mii^ht be certainly 
a mere coincidence, but Tamby was seen by 
other witnesses, drunk that night. 

It is again shown that the Plaintiff tried not 
to learn from Appasamy what he wou'd say, 
what he had seen or heard, so as to be prepared 
to meet honestly and explain every possible fact 
that would be adduced against her, but tried to 
induce the wit i teas to prevaricate, and after the 
preliminary inquiry before the magistrate, she 
told the witness that Tamby had revealed every 
thing, asked him not to say any thing against 
her, and he would get a rew^ard. She did not 
directly ask Mootoosamy to say nothing if called 
as a witness, but promised him also a reward for 
his silence generally, if she gained the insurance 
case. We reject the statement of Tamby b fore 
the District Magistrate. There is no sufficieut 
evidence ; it seems to us, that the words used 
by the Plaintiff in her conversation with Appa- 
samy, amount to an admiss^ion that Tamby spoke 
the truth, and to import into a cause as evidence 
against a party an unsworn statement by ano- 
ther person, requires the clearest proof that the 
party against whom such statement is to boused, 
distinctly admitted the same to be true and 
knew well what the statement was in all its bea- 
rings when the admission was made. A contra- 
ry doctrine, bad in principle, would be practical- 
ly fraught with danger. The evidence as to cha- 
racter, touching Veerapa, always most valuable 
in a doubtful case, does not touch the Plaintiff 
the owner of the house ; it evidently was not 
Veerapa who was ill at the time, but Mrs Veerapa 
who, if the witnesses have made out the Defen- 
dants' case, was art and part in the facts com- 
plained of All the circumstances above spoken 
of being viewed together, the false statement 
made and we must hold it to have been wilfully 
made to Boulter; the promises held out to witnes- 
ses ; the strong smell of petroleum oil ; the re- 
moval of the furniture ; the shitting of the cows 
from the covered shed to leeward to the uncover- 
ed shed to windward ; Tamby drunk that night ; 
the house seized and the sale already advertized ; 
the failure to secure a loan of money to pay off 
the debts, all thise divers and collateral circum- 
atapces, of which no satisfactory or eve^ plausible 
explanation has been given us„ and which are 
proved beyond any reasonable doubt, confirm so 
positively the impression left in our minds by 
the testimony of the witnesses who speak directly 
of a fire purposely and deliberately set, or who. 



like Eamsamy, Alfred, and Appasamy speak of 
conversation which are little short of confessions, 
that we must come to the conclusion that the 
pleas ought to be sustained. 

We must give Judgment for the Defendants, 
with costs. 



SUPREME COURT. 



Appel au Conskil PBiyfi, — Sbktencb ijftst- 
TBALE, — Rule db bepbbenoe, — Ordojstsjlsgih 

D'ExEQUAT UB. 

Lorsque la Oour a prononce un Jugem^nt rendani 
exScufoire wne sentence arhitrale^ ce Jugement de 
la Gour est sv^ceptible d'appel au Oonseil J^nvSf 
sHl reunit les conditions requises par VQrdre.tn 
Oonseil, quoique les parties aient, dansle cpmpro* 
mistrenonoe au droit d' appel de la sentence a/rbi' 
trale. 



Obdeb in Council, — Motion fob ilbatb to 
Heb Majesty in Heb Pbitt Council,— 
Award of abbitbation, — Rule op Repebencb, 
— Exequatub. 

When the Oourt has converted an Award of ar^ 
hitration between parties, into a Rule, and ordered 
execution to issue on s^wh Rule ; and altkdugh the 
parties to the Rule of reference had boun i them^ 
selves in all things to abide by such above 
Award ; an appeal to Her Majesty in Her Privy 
Council will lie against such Judgment of the 
Court, if the case comes within the provisions of 
the Order granting such leave. 



ROSTAND, —Appellant, 



versus 



BOULANGER,— Respondent. 



Before : 

His Honor Sib C. F. Shand, Chief Judge, and 
His Honor N. G-, Bbstel. 



G. Gutbebt,- 

E. DUCBAT, ■ 

E Leclezio," 
G, Ritteb, ■ 



-Of Counsel for Appellant. 
-Attorney for same. 
■Of Counsel for Respondent. 
-Attorney for same. 



1st June 1869. 



This was a motion by G. Guibbbt on behalf of 
Rostand, for leave to appeal to Her Majesty's 
Privy Council, from a Judgment of this Court, 
given between parties, on the 10th December 
1868, making a Rale of Court an award of Arbi- 
tration between parties, of the 25th July 1868, 
and ordering execution to issue thereon. 

This motion was resisted by B Liolezio Ju- 



66 



DECISIONS OF THE 



Ci^ 



nior, on behalf of Boulanger. He contended that 
by the Rule of refereuce the parties thereto had 
bound themselveB in all things to abi-e by, per- 
form and fulfil, the award of the arbitrators, and 
that r either of them should prosecute any pro- 
ceedings in error or prefer any bill in equity 
against earh other for any matter relating to 
matters so referred on any or either of them, in 
particular on the said arbitration or award. 

That in order to try the merits of the Judg- 
meiit of this Court on appeal, the Court above 
would necessarily have to look into the merits of 
the award of the arbitrators which, though in- 
tended by the Rule of reference to be final, will, 
as a matter of fact, be subject to be reversed on 
appeal against the express letter and spirit of the 
rule. That the award had been submitted to this 
Court, not as a Court of Appeal, bat tor the s >le 
purpose that it might be made a Rule of Court 
in order that execution might issue thereon ; 
^hich execution the arbitrators had no power to 
order. 

The answer to this reasoning was : The end 
eontem plated by the Appellant was to submit tV 
the criticism of the appellate Court, not the me- 
rits of the award, but of the exequatur allowed 
by the Supreme Court. 

The Appeal is, in no wise, inconsistent with 
tiie undertaking of the parties that the awttrd 
ahould be final and unappealable. 

The argument on appeal may, very likely, com- 
pel the Court above to refer to the a^%ard, in 
or^er the better to test the correctness of 
the conclusions arrived at by this Court <>n the 
Beveral heads referred to in the Judgment, but 
not otherwiae. Any attempt to criticise the rule 
of reference or the award, except as to the points 
raised before this Court, cau not fail being resist- 
ed on appeal, 

Further, this Court has not to anticipate what 
may, or may not, happen on appeal. 

Its duty is merely to ascertain whether this 

case comes or not within the provisi ns of the 

Order in Council for granting the leave prayed 

lor. 

JUDGMENT. 

The conditi »ns required for an apreal to Her 
Mnjt sty's Privy Council, are : lo That the Judg- 
ment of this Court he final or having the etfect 
ot a final and definitive sentence 2o That such 
Jud^u)eut be given or pronounced for and in res- 
pect of at y sum or matter at issue above the 
amouut of £1.000, 3o. That the party aggrieved 
do, within fourteen days after Judgment, appl> for 
leave to appeal. 4o aud do enter into good and 
sufficient security to the satisfaction of the Court, 
for the prosecution of the appeal and for the pay- 
Bfent of the costs of appeal. 

■lo In this case the sum awarded to be paid by 
the appellant is S^ 15.370 or £3.074. 2o the Judg- 
ment is final. The motion tor leave to appeal was 
made within the fourteen days. 4o The security 
for payment of the costs of appeal have been fur- 



u^ 



All the requisites required by tbe Order la 
Council, concurring in this case, the Court is luu 
der the necessity of granting the leave to apped 
moved for. 

whether parties will be allowed on appeal ta 
criticise the reference to or the award of the ar« 
bitrators on discu»ising the merits of the Judg- 
ment of this Court before Hf^r Majesty's Piivj 
Council, will he a fit and proper subject matter 
for the consideration o\ the appellate jurisdict- 
ion, but not for the consideration of this Coui^ 
whose duty ater Judgment, is merely ministeriid 
and not extending further than the mere ascer- 
tainment of how far the requisites for an appeajl 
are or are not to be found in each case in which 
leave to appeal id moved for. 

Id granting execution upon the award of the 
arbitrators, we have overruled the objections o^ 
Rostai d. In so doing we may have erred, and 
he is justly entitled, under the circumstances, to 
submit our Judgment, to the review of a superior 
Tribunal. 

Costs against Boulanger the Respondent. 



SUPREME COURT. 



FBOPBliTlS SuCEtAeE,— SoCliTB CIVILE, — DiB- 
COBDE £T M£8I17T£LLIGENC£ ENTBE ASSOCIES,-*- 
YlOLATION DE CONTBAT, — RuiNE IMMIITENTI 
DE LA PBOPRIKTK, — ObDBE DE SeQUESTBE,-— 
Intebbogatoibe sub PAITS £T ABTICLES,*— 

Competence destemoins,— C.P.C. Abts 268^ 
283, — Demakdb >n dissolution db la Socii- 
TE,— C.C. Abt. 1871,— Jugemekt ence sews, 

*' La dissolution des Societes d terme ne peut Sih 
demandee par Vun des associes, avant le temm 
convenu, quautant quHl y en a de justes motifs 
comme lorsqu*un autre associe manque a sea en^ 
qagemenSf ou qu^une infirmiie hahitueUe le reful 
i/nhabile aux affaires de la Societe, ou dtiires com 
semhlahles, dont la legitimite et la graviU soni 
laissea a Varhitrage des Juges^" 

La Co^vr pourra, prenant en consideration lee term^i 
ahsolus de V Article 268 du Code de Procedure 
Civile, et ceux facuUatifs de V Article 28S du 
meme code, et d'apres les circanstances partictt^ 
lieres dans chaque cas^ adnieUre on ecarier le tS^ 
moignage des differens genres de temoina meth 
tionnes dans ce dernier Article, 



SuGAB Estate,— CrviL pabtnebshep fob tbob 

WOttKING THEBEOP, — DiSCOBD AND MISUNDEB- 
STANDING between PABTNEBS, — VIOLATION OF 

COVENANT,— Impending buin op the E^tat9, 
— Obdeb op Sequestbation, — ^TJNsveoBK peb- 

SONAL ANSWEBS, - COMPETENCY OF WITNESSB8» 

— C.P C ABTS. 268,283.— Action EN CANOEt- 

LATION OP PABTNEB8HIP, — CO. AttT. 1871,— 
DeCBEE dF DISSOLUTION. 

'' Dissolution of Partnerships for a term cannot he 
demanded hy one of the Partners he/ore the term 



\m} 



COURTS OF l^AXJIHTIUS. 



^l 



agreed^ unless for just motives, as where another 
Ijurtner fail^ in his engagements, or that an hobi^ 
iualinHrmiiy renders him unfit for the affairs of 
^ihe Partnership, or other similar cases, the law- 
fhlness and weight of which are left to the arbitrO' 
Hon of Judges,*' 

Art, 283 0,0, P. being optional in its enactment^ 
contrary to Art, 268 of that same code, which is 
imperative, the Court will, in consequence and 
according to the special circumstances attending 
each ca^e, reject or admit the evidence of that 
class of witnesses enumerated in the above former 
article* 



G- A LDEM AE FRE R BS,— Plaintiffs, 

vers^is 

WIDOW P. DIOEE AND J. J. WILSO!^, 

Defendants. 



Before : 

His Honor N. G-. Bbstel, and 
His Honor Gt, B. Colin. 



P. L. Chastellieb,— Of Counsel for Plaintiffs. 

— Attorney for same. 
— Of Couusel for Widow 

Dior6. 
— Attorney for same. 
—Of Counsel for J. J. Wil- 
son. 
— Attorney for same. 



F, ViCTOB, 

£. Fejllebeau, 

£. Laurent, 
A. Legall, 

J^ PlGNiQUT, 



lOthJune 1869. 

This action was brought by the Plaintiffs to ob- 
tain from the Court, a decree dit^solviog the Civil 
partnership entered into by the Plaintiffs with the 
Widow Pierre Diore and Julius Joaephus Wil- 
son, for the working of a Sugar Es^tnte named 
Michfund and situate at *' La Bria^e Verdiere " 
in the district of Flacq. The Plaintiffs alleged 
that on the 28th October 1867, the Widow Pivrre 
Dior6 sold to Wilson, to Victor Galdemar and to 
F^lix Galdemar, the two latter trading under the 
name and style of " Galdemar freres," four fif- 
teenths of the aforesaid Estate, to wit ; one fif- 
teenth to Wilson, and three fifteenths to " Q-al- 
demar treres." That sale which was effected in 
virtue of a deed drawn up by Mr. Pelte, a No- 
tary, was made for the sum of 8 45,333. 33^ c. ; 
of which sum, $ 11,333.33 c was for the undivid- 
ed 111 5th sold to Wilson, and i 84.000 for the 
undivided 3il5ths sold to Galdemar "fr^res." 
The Plaintiffs also aver that the undivided 4il5th8 
Bold as aforesaid, formed part of the 10il5ths of 
the said Estate sold previously by Wilson to the 
Widow Diore, according to a deed of sale drawn 
up by Pelte, a Notary, and dated 6th July 1803, 
(he said Wilson having, it appears, originally pur- 
cfiased the whole Estate when it was put up for 
Bale at the death of the late Pierre Dior^, for the 
ittm of ^135j006, so that the several conveyan- 
^ o£ 4i?er8 portipns of the said property from 



the sale to Wilson to the sale to Galdemar *' &^. 
res " and Wilson, appear to have run thus : 

1. Ihirfund purchased by Wilson, alone. 

2. On 6th July 1863, Wilson sells lOilSths o£ 
Fa'ffund to Widow Diore, aud remains co-owner 
for 5[i5ths. 

On 28th October 1863 Widow Diore sells 
lll5th to Wilson and 3|l5ths to Galdemar '^ fr^ 
res," and th^ r-apective rights of the parties in 
and on over the E!«tate are fiually found in tho 
following proportions : 

Mrs. Widow Diore 6[15ths ; 

J. J. Wilson 6il5ths ; 

Galdemar fr^res 3[15ths ; 

The co-proprietors holding their several shares 
undividedly. 

By the same last above mentioned deed, a civil 
co-partnery was entered into for nine years, by 
the three co-proprietors ; the object was, specialr 
ly, the working of the t^aid sugar estate. 

The Plaintiffs, further, aver that they were, 
by the deed of co-partnery, entrusted with ths 
management of tiie affairs of the co-partnery in 
town. Again, that it was covenanted that ill 
order to meet the expense of working the sugaf 
estate, premiss* ry notes should be made by Wil- 
son and endorsed by the Widow Dior^, which 
notes should be jointly paid by the co- proprietors 
of the Estate. 

The Plaintiffs further allege that if it were ne- 
cesnaiy to give a mortgage* to secure the payment 
of such promissory not' s or to secure the advan- 
ces made on account of the sugar estate, the 
owners bound themselves to gra t ihesaid mort- 
gage without dela\ , so as Lot to embarrass the 
working of the said estate. 

It was also agreed that the sugars of the estate 
should be sold at current prices ; that each year 
a statement of the nffairs of the partnership 
should be prepared and the proceeds of the sugar 
be applied to the expenses of the estate, in the 
first place, aud next to the sale price of the es- 
tate. 

The Plaintifts now aver, that ^n accordance 
with the above conditions, they, the Plaintiffs^ 
have undertaken the management of the affairs 
in Tnwn, and have made the advances re- 
quired for the estate, for the crops 1867- 
1868 and 1868— (59 That on account of such ad- 
vances made partly with monies belonging to 
them, the Plaintiffs, panly by means of promis- 
sory notes made by Wilson endorsed by Widow 
Dior6, (although Widow Diore refused to endorse 
certain of the said Promissory notes.) the Plain- 
tiffs remain creditors to a large amount. That 
they the Plaintiffs, have applied to several capi- 
tabsts and establishments of Credit, in order to 
raise money to meet the expenses of the '' entre- 
coupe " 1869— 187(', but without success. That 
this has been caused in a great meaaute b^ thii^ 



68 



DECISIONS OP THE 



[186ir 



ill-will and bad disposition of the Defendants, 
and chiefly of the Widow Dior6, who, since the 
last year, has embarrassed the maDagement of 
the affairs of the said co-partnery, by refusing to 
give her signature and starting difficulties. That, 
Bince the beginning of this year, the Plaintiffs, in 
order to prevent the laborers, engaged on the 
Estate, disbanding have been obliged to supply 
provisions at their own expense ; that the De- 
zendaats, although duly summoned to contribute 
in due proportion to their share, have not done 
00, and have not answered the summons. That a 
large quantity of canes has been left without 
guano, — although the Manager has applied for 
the same. That there is a large sum of money 
due for arrears of wages to the men who have 
brought a complaint to the Stipendiary Magis- 
trate of Flacq to have their contracts of service 
cancelled. That, further more, one of the credi- 
tors has commenced legal proceedings in order 
to be paid a sum of $ 4,150. 86 c. with inte- 
rest, for an instalment due to him since January 
last. That such a state of things is intolerable ; 
that the Plaintiffs have offered to contribute cash 
for their share of the expenses, but their will 
is rendered nugatory by the refusal of the. De- 
fendants to do the same. That, therefore, it 
is impossible that the Plaintiffs should remain 
in partnership with parties who, by their ill-will, 
negligence or wrongful behaviour, refuse to assist 
them in working the joint Estate. 

The above are the several averments made by 
the Plaintiffs who conclude by praying for a 
decree for the cancellation of their co-partnery. 

The Defendant J. J. Wilson, has pleaded that 
he has not shown any ill-will or negligence, and 
that on the contrary, he has alwa^^s sided with 
the Plaintiffs in their endeavours to obtain, from 
Widow Diore, the execution of her part of the 
eonvenant. That such steps and endeavours have 
failed through the Widow Diore's ill-will, negli- 
gence and bad disposition, and on that ground 
only the Plaintiffs are entitled to obtain Judg- 
ment of the Court, cancelling the contract of par- 
tnership. 

The other Defendant, Widow Dior^, did not 
plead within the time allowed by law, bat on 
motion made to sign Judgment against her, ob- 
tained on 20th April last, leave to file her Plea. 

The Plea first pleaded was to the Jurisdiction 
of the Court and that Plea has already been dis- 
posed of, after consideraton, by Judgment of this 
Court, on April 29th 1869. The plea then went 
on to set forth that the Plaintiffs had no right of| 
action ; further that the Widow Dior6 denied 
having refused to endorse bills subscribed by 
Js. Wilson and necessary to m^et the costs and 
expenses of the Estate Hichfimd^ or having ever 
refused to give a mortgage on the said Estate, in 
ease the same became necessary. That the De- 
fendant has given a sum of $ 300 to buy guano 
and has, besides, endorsed six promissory notes, 
amounting together to ^14'347 13 (j/. on the 17th 
November la^t, which the Plaintiffs have not 
accounted for and which were meant to defray 
the expenses of the property and to pur- 
chase guano, and since that time, on the 10th 
Pebruary 1869 for instance, she has endorsed 



promissory notes on account of the said estate, 
That it was the plaintifis who, in February last, 
after consenting to carry on the working of the 
estate, by means of collateral guarantees, refused 
to execute their formal execution. That she ig 
still ready to endorse as many bills as may be ne- 
cessary and is not guilty, whilst the Plaintiffs are 
guilty, of ill-will, negligence and bad adminiBtra- 
tion. 

After the Court had, as aforesaid, dealt with the 
plea of jurisdiction, and directed the parties to 

Eroceed on the merits, witnesses were heard on 
ehalf of the plaintiffs and the widow Dior6, and 
such evidence together with the documents put 
in were commented upon by Counsel on both 
sides, J. J. Wilson preserving the attitude which 
he bad assumed in his plea. 

This case, although resting on a special article 
of fhe Civil Code, and so far involving a point of 
law seems to us to depend almost entirely upon 
the appreciation of a number of facts, and their 
bearing upon the contract. But there is an ob- 
jection which was raised in the course of the trial 
and decided, but of which we are anxious to say a 
few words, certain witnesses were called, but tneiz 
evidence was objected to, because they were re* 
latives or clerks of the parties and came under 
Art. 283, Code Civil Procedure. The question 
whether the Court could according to the special 
circumstances attending each case, reject or ad- 
mit witnesses of that class, or whether they must 
be absolutely rejectee^ has marshalled, on each side 
a bead roll of decisions and a powerful array of 
commentators, We have held and hold that,unles8 
prohibited by the law, we should not shut out the 
light, but let the objection go to the credit rather 
than to the admissibility of evidence. In fact, when 
the law is absolute against the admission of wit* 
nesses, its enactment is peremptory : ascendants 
and desceridauts in the direct line cannot be 
heard, and Art, 268 of the Code Civil Proce- 
dure is distinct. But when we come to collateral 
relatives, clerks, servants, or that class of wit- 
nesses enumerated in Art. 283 which, besides, la 
not limitative, the law ceases to be absolute in 
its terms. 

•* Pourront ^tre reproch^s " says the article. 
Why this broad difference in the mode of dealing 
with witnesses of the class alluded to in Art. 268| 
and the mode of dealing with witnesses of the 
class dealt with by Art. 283 of both classes muat 
necessarily be excluded. How could sales and 
deliveries of goods in or inary commercial cases 
be proved, what difficulties almost insuperable in 
every cause of the nature of those in which the 
rule so well applies, ** d mestica domestiois prom 
hantwr V* We sternly decline to let in p role 
evidence even by indirect way, when we consider 
that the law is against P roof by parol ; but in 
cases where proof by par^l is admissible, we are 
all of opinion that, unless strictly prohibited by 
the enactment of the law, we should not exclude 
that light by which we may be guided to justice 
and truth. There is no doubt that as we have 
said, cogent reasons may be urged on either side ; 
if it were not so, we should not have such a mass 
of authorities on one side and on the other ; our 
views which are not new are supported by that 
eminent writer* Mr, Touillixb, IX p. 2dG&8eg. 



1869] 



COURTS OP MAURITIUS. 



69 



— Fatabd, V. — UnquSte^ Sect. I, Par, 4, No. 11, 
— Cabbe, 9. 1 102,by numerouH decisioDS of Court 
of Appeal, and by the Oour de Cassation in Lajpou* 
jade v.Amouroux (S. V. 43. 1. 428). The autho- 
rities on the other side are just as respectable, but 
ure must say that our Rules of Court which have 
greatly modified the system of hearing witnessess 
who are now almost invariably examined in open 
Court, whom we see and hear, ourselves, of whose 
attitude we can judge for ourselves, instead of 
having to rely simply upon the depositions taken 
down by a commissioner, have done away with a 
great many of the objections which the Code of 
Civil Procedure may have intended to guard 
against. That Code, no doubt, where riot modi- 
fied by our own legislature or rules, still exists ; 
and upon its provisions, we agree with those who 
think that the Court may admit or reject sucli 
witnesses according as facts believed tend to show 
that they may be prejudiced or biansed. If all 
the authorities, save some stray ones, were on one 
pide, in matters of jurisprudence where it is right 
that the law should be as certain as possible, we 
should not decide contrary to a constant current 
of decisions and legal authorities, without most 
cogeot reasons ; when the authorities seem so 
evenly arrayed, we think we canuot do better 
than seek the truth, although we do so in a way 
repudiated by some, when it is sanctioued by 
others of equal weight and equal learning, at 
least. We may add that in this case, the objec- 
tioQ would strike against the witnesses adduced 
on both sides ; if we rejected A. 6oull6, we should 
assuredly reject Olivier and Mercier. 

We may also add, that on the merits of the 
issue before us. we should have come to exactly 
the same Judgment which we have arrived at, if 
all the parole evidence were expuuged Irom the 
record and nothiug left but the letters and other 
documentary evidence wldch have been adduced. 

We shall now pass on to the consideration 
of the real merits of this cause. 

Amongst the circumstances under which a dis> 
solution of partnership takes p ace, the only one 
which applies to the isBues before us is that in 
which one or m'>re partners seek to obtain, in 
spite of the refusal of the other partners the dis- 
solution of the contract before the time originally 
agreed upon for its determination. It is elemen- 
tary that if all the parties consent to dissolve the 
partnership, whether the object be the retirement 
ot one partner, or the total cessation of business, 
the partnership may be fully dissolved, for parties 
to a contract may when they please sever their 
connection, and by their joint consent put an end 
to their agreement. 

*' D'abord, il va sans dire, (Dalloz Vo. Soci^te) 
qu'elle pent etre disnoute par i'accord de toutes 
les volont^s qui ont concouru k la former ; c'e^t 
Ik une r^^le 6vidente commune ^ tons les con- 
trats *' But, there may be cases when one of the 
partners is anxious to put an end to the partner- 
ship which the other or one other partner insist 
upon continuing, and the cause before us is of 
that nature. It then becomes the duty of those 
wtio wisti to dissolve the contract, before the time 
originally stipulated, to show that the grievance 
which they allege entitle them to the remedy 









which the law that resulates this special matter 
has provided by its enactments. Art. 1871, Civil 
Code, is the one which directly applies to the 
point at issue. It runs thus : " La dissolution 
des Boci6tes k terme ne pent Stre demandee par 
Tun des associ^s, avant le terme convenu, qu'au- 
tant qu'il y en a de justes motifs, comme lors- 
qu'un autre associ^ manque h ses engagements, 
ou qu'une infirmity habituelle le rend inhabile 
aux affaires de la soci^t^, ou autres cas sembla- 
bles dont la legitimit^ et la gravit6 soUt laiss^es 
a I'arbitrage des juges." The article is not only 
not limitative in its provisions, but expressly 
enacts that besides the special cases noticed in 
which one partner may sue for a decree of disso- 
lution, there may be other ** cas semblables," the 
lawfulness or importance of which are left to the 
award of the Judges. That power left to the 
Court in terms sufficiently precise to require little 
additionnal weight from authority, is however 
I fully supported by precedents, inter alia Ben- 
fort V Betkfort and Damage, Court of Aix, I8th 
June 1822, Vide, also Tboplong II, par. 984. 

Those ** cas semblables " are very numeroup 
and difficult to specify in a complete enumeration 
says the last quoted eminent authority. One of 
the most important, however, after the cause 
specifically mentioned in the article, the nou 
execution by one of the partners, of his covenant, 
is that which arises when discord and misunder- 
standing of sufficient importance to prove preju- 
dicial to the concern has sprung up between the 
partners. That cause of forced dissolution of the 
contract may be traced up to the Roman law : 
" nee tenebitur pro socio, si it h, injuriosus et 
damnoBus socius sicj ut non expediat eum pati'' 
writes Ulpian (Dig. pro socio XVII. 14) ; and ia 
laid down as a strong one by the above mentioned 
decision of the Court of appeal of Aix, by Teop- 
LONG, by Malepeybe and Joubdain, p. p- 313, 
314 ; juuge Dalloz, Sect, 666. 

In the case before us, several reasons have been 
Btrongly insisted upon, to induce us to dissolve 
this co-partnery ; but there are two which require 
our serious consideration. 

The working of a Sugar Estate, in Mauritius 
is not easily assimilated to the working even of a 
very large farm ii. Europe. The capital which 
must every year be invested to raise and realise 
a crop, is here comparatively very large, and large 
on any point of view. It is not sufficient to have 
the Sugar house and all the plant in perfect 
working order ; a considerable Bum is every year, 
required for agricultural and manufacturing pur- 
poses. We have, but too often, had instances 
before us o^ the frightful rapidity with which 
balances accumulate against the imprudent or 
unfortunate landowner and of the way in which 
even fair hopes are frustrated, and insolvency 
follows upon competency. It is therefore impor- 
tant for the proper working of an Estate owned 
by several co-proprietors any where, it is essen- 
tial for the proper working of a Sugar Estate 
here, that harmony should prevail am »ngst the 
partners, and that the fabric should be supported 
by the united endeavours of all, as those endea<* 
vonrs are directed by the covenant and not be 
brought down by the disintegrating struggl ^s of 
partners pulling wildly in every direction. These 



70 



DECISIONS OF THE 



m? 



may be truisms for those who are acquainted 
with the ups and downs of the Sugar manufac- 
ture, but truisms too apt to be lost sight of and 
the neglect of which is fraught with danger. 

Now, in the case before us, we find every ele- 
ment oi discord, proof abundant that those part- 
ners do not agree, and have not agreed for some 
time. There is a paper war ca' ried on by means 
of ushers, no messengers of peace, more and 
more bitter as it goes on, and the Estate is in the 
meanwhile, left without the proper supplies, sup- 
plied which if not found in time,are almost useless. 
And if uot found at all, leave the partners with 
iTie almost certain perspective of a vastly reduc- 
ed crop. This Estate has received no quantity 
of guano, at all commensnrate with its require- 
ments ; that ii^ in evidence ; the men have not 
been pai«l, or if they have been, since the trial 
began, and we do not know this as yet, they 
have been paid in consequence of a measure 
which shows the almost complete co^apse of the 
undertaking, an order of sequestration iollowing 
upon proceedings for the sale of the Ei^tate by 
*• Folle Enchere." And why have they not been 
paid ? Why those arrears of wages which have 
been suffered to accumulate for several months, 
to the great detriment of the Estate, to the 
unfair and unjust treatment of the labourer, 
to the prejudice of hypothec creditors whose 
cl^iin becomes worse and worse, as the arrears 
of wages become greater ; to the undue dear- 
iiess of the labour market ? the cause, the main 
cause at least that the evidence points out, is, 
that those parties cannot agree, quarrel about 
the means of raising money, about the meaning 
of their obligatioris, and lose their en dit in the 
meanwhile What has been the result ? Pro- 
ceedings to sell the Estate by levy are carried 
on at the instance of the wife of one of the part- 
ners, Mrs. J. J. Wilson, a hypothec creoitor. nay 
more, a more summary, root and branch process 
of ejectment of all the partners, is threatened by 
a "Folle Enchere " at the request : 1st. of Mn. 
Diore, the Defendant, as gunrdian of her minor 
children, then continued, when that D fendant 
deemed it proper not to carry on a " Folle En- 
chere," against herself, at the request of Tantin 
the sub-guardian. We have those fncts in evi- 
dence ; we have the notice previous to levy, 
under the hand of Mr. Pigneguy, attorney for 
Mrs Wilson, 24th March 1869 ; the notice of 
" f'olle Enchere " by Mrs. Widow Diore, Ist. 
April 1869 ; the rule by consent to which Chu- 
tin the sub guardian is as party, and whereby 
the '* Folle Enchere " is stayed, but for a limited 
period of time, 20th April 1869. We have fur- 
ther legal proceed' ngs threatened by Sauzi r, 
attorney for several parties; his receipts to the 
Plaintiffs who have, apparently, pnid their share 
of the sums due. What again is the result ? 
The seguestration order has not been filed, or 
a certified copy of the same, but we take ju- 
dicial notice of our records ; the fact, besides, 
has not, could hardly be denied, and we have, 
ourselves issued an order to sequestrate the 
Estate Richfundf a measure resorted to when an 
Estate is to be sold judicially, ^nd legally placing 
t^e Estate, until its sale, or the period nxed in 
the sequestration Order, out of the hands of the 
owners. That is the state of things which we 
Add the position of the co-partner^ at the pre- 



sent moment. Not only is the Estate threaten- 
ed with seizure, it is threatened with seizure ai 
the instance of the wife of one of the Defen4;^ 
ants ; not only is a " Folle Enchere " carried onJ 
it is carried on in the name of the minor chiX-J 
dren of another of the Defendants herself in thd 
field at the first, then withdrawing to mak^ 
way for the sub-guardian. And not only a?6 
all those proceedings set in motion, but a sel 
questration Carder has been resorted to, " ad 
rem conservandam." for the partners cannot saV^ 
the Estate from ruin themselves. 

Now, the Plaintiflfe appear to us to be right 
when they say, showing that state of things, 
that there is here, no disorder with ruin looming 
in the distance, but disorder with ejet-tment 
already begun in all the forms that ejectm<int 
can adopt. Here we find discussions and disseti* 
tipns which, if what we have said of sugar cane 
cultivation and sugar manufactory be true, sho^ 
symptoms of the utmost gravity. With 'aH 
those facts lying before us ; we are of opinion 
that if we have the power to interfere, and Wi 
hold that we have such power, we ought to in* 
terfere to protect the interest of the parties who 
complain. It would require strong proof tliafi 
the Plaintiffs are alone to blame, to induce xA 
to leave them to bear the burden and the conse^ 



qnences of the grievous state of things Which 10 
laid before us. ^ 

But far from admitting that they are to 
blame at all, the Plaintiffs distinctly aveip 
that Mad. Diore's ill-will, the violation by her 
of the covenant, are the true causes of the 
actual impossibility to carry on the con- 
cern. It is U'ged by them that the Defen- 
dant's ohject is that the •* Folle Enchere *' 
which she began, but from which, it is said, she 
retreated to give way to the sub-guardian, should 
run its course, because if the estate is sold by 
" FoHe Enchere," the contract of sale being an- 
nul 1 d, G-ddemar f re res creditors of the Fol 
Encherisseur, wdl lose his lien on the estate. 

It is replied that Mad. Diore co-owner, co- 
debt* t, has rights and liabilities independent of 
those of her minor childn n. 

All this fiank attack seems to us of little im- 
portance, it does not h»-lp us to solve the second 
point we have to consider. Is Mad. Diore to 
blame ? Has she failed to perform the covenant 
she undertook or have G-aldnmar "f/eres, " by 
their fraud or negligence, lost the right to obtain 
the redress which, upon the facts, they would 
otherwise, be, in our opinion, clearly entitled to ? 

Before the Plaintiffs purchased a share of the 
estate Ricl^und, they had »nad« advances for the 
working; of the estate, securing their balance by 
hypothec ; by the articles of partnership it wa« 
specially agreed that the e-tate should be worked 
by money raised on notes Wilson endorsed wi- 
dow Diore, which notes should be paid by aH the 
CO -proprietors ; it was also agreed that books 
should be kept, and that all the parties should 
have access to them. It appears to us sufficientlif 
clear irom the letters that parsed from the evi- 
dence of A, Boull^ and of Dubois, that the Do- 
fendaiit Dior6 did refuse to endorse notes for the 



im9} 



COURTS OP MAURITIUS. 



a 



■ 1 - 

worKing of tlae estate, and we find do sufficient 
evidence that the Plaintiffs are to blame. It even 
appears that when Mad. Diore failed them, they 
went beyond the obligations set upon them by 
the contract, and tried to prop up the declining 
fortunes ^ of the estate by raising money upon 
ttit^ir creliit and that of Wilson. It also appears 
;ui evidence that instead of the 150 or 200 tons 
jguano which the Estate required, only 35 were 
pent. T^ow, although often requested to sign no- 
"tes to raise money for guano, the Defendant 
^ior^ only advanced $ 300 (three hundred) a 
B\im quite out of proportion with her share of 
|;he market price of 150 tons guano. The answer 
Je ihit was that she did not abso'utely refuse to 
sign notes, but wanted first to know what had 
l)ecome of about $ 14,000 worth of notes she had 
signed for the working of the Estate.. This was 
stated by Dubois, but it appears to us very plain, 
Mat the % 14,347.13 c of notes signed by her, 
were not sigiied for the working of the Estate, 
land that Mad. Diore was well aware of this, 
there are six notes making altogether ^14,347.13 
respectively due on 15th September, 30th Sep- 
t;ember, 15th October, 30th October, 15th No- 
Veinber, 30th November 1869; now Galdemar 
'\phrea " were creditors upou account cur- 
rent for the t?um of ;g 12,107 deducting from 
Sl4,347.13, i. e. the total amount of the notep, 
lUe dit«count upon each of the notes at 12 o\6, 
J)rokerage and g 7.25 c, for stamps, we find ex- 
actly the balance due to Galdemar, ^. e. jfr2,107, 
tlie dates of the notes discounted, the figures, 
tally exactly with the entry in the books, com- 
jbare the account No. 7 approved by Wilson, 
dated 31st July 1868, with settlement of 17th 
jNovember 1868; al>o appro ve.d by Wilson. The 
argument urged by Widow Diore in support of 
her statement that the notes were for the work- 
ing of the Estate, and not to pay Galdemar his 
balance of 31st July proceeding, is that the re- 
ceipt given to her bears the words '* pour Mich- 
Jund.** But the balance due was for Bichfund; 
the notes were to be paid by the three co-pro- 
prietors, and there was no impropriety in en- 
titling the receipt "for Bichfund'' But what- 
ever va'ue may attach to that circuin stance, we 
think the weight of the evidence very str<»ngly 
in favor of Galdemar ** fr^res." Now is it possi- 
Ble to explHin otherwise the fact, that fo a cent, 
the amount of the notes is in principal exactly 
that of the balance. Mad. Dior6 had accipss to 
the books ; they were shown to her, say iBruriet ; 
that Would be of little consequence, but the ac- 
count showing the balance, and that is of great 
consequence, was given to her, she to'k it, had 
time to look over it, compare it with the books 
ot the estate, sent her brother-in law to do so, 
and he did so, she n^^ver protested, and it is 
only when new difficulties arise, when she i^ 
strongly solicited to endorse notes in terms of 
her coven»nt, that the notion is set up that the 
^ 14.347 18 of notes were endorsed not to pay 
ttie bt^nce due, but to work the estate. 

There is no doubt that although Wilsoti has 
toproved all Gtildfemair'fe accounts, the Defeti- 
dant 1l)ior6, ^ho'hlas not dorie so, liftiy, unless iti 
Bome other way estopped, qijies'tion the correct- 
ness of the account's. But the books of G»1d^<^ 
inar " freres," kept in terms of the contract, 
slidW at all events, what, right or wroiig, they 



did with the proceeds of the notes, and if th6^ 
applied the money to a purpose which we thitiK 
she knew, which she was afforded every oppor- 
tunity of knowing, ^e are inclined to believe 
that Galdemar *' freres *' were entitled so to do. 
Surely they were entitled to be paid their ba- 
lance, how could they get payment, un'ess somp 
other settlement had been offered, except by the 
usual course of dealing between the three c6- 

Sroprietors ? Several receipts are produced bV 
lad. Diore, none, except a sum of $ 6000, is for 
notes meant, for the working of the Estate. They 
were made to pay ihtertst to Mrs* Wilson, to 
herself as leg^d guardian to pay for a mill and 
for other causes which have nothing to do 
with the cu'rent expenses of a Sugar Estate. 
The receipts bear this on their face. There 
are sevrral other facts not without impor- 
tance, if we keep in view the covenant. When 
she compared the accounts, of which she hiil 
a copy, with the bo(»ks of the Estate, if stie 
' thought the money raised upon the six notes 
in question, had been misapplied, how is it that 
she did not set forth specific objections to the 
account!), and help to work the Gstate in the 
meanwhile ? We see no distinct charge, no cletfr 
objections; why again refuse, wheu notes be- 
came due, andliad not to be paid or renewed, Xa 
make other notes, unless the Plaintiffs bound 
themselves personally to pay the notes alrea(^ 
made ? Why should the Plaintiffs who had the 
Smallest share in the Estate, and were ci-editors 
besides, bind themselves personally to pay thbsb 
notes ? Why should they not, as usual be pafj 
out of the proceeds of tlie Estate, or the private 
property of the co-proprietors,in fair proportion? 
The impression left in our minds is this, that the 
Defendant Diore does not seem to care to increase 
the Plaintiffs* balance, provided,come what may, 
she receives the interest due on her minor's 
children claim, and that interest is by our la\v, 
her property, as their If gal guardian. It seenia 
then to us that this course of proceeding is con- 
trary to the express agreement settling the way 
in which the Estate should be worked. 

From the endeavours made by BouH^ and 
Mercier to put an end to the differences that 
had arisen between the par' ies, we gather no- 
thihg clear but the facts that no plan proposed 
could find cordial acceptance by all, and that the 
ways and means to raise money sufficient to 
work the ISstate, cbu'd riot be obtained either 
froin the ressoufces of the coproprietors, or the 
ans? stance of capitalists arid ' redit Companies. 
**The Cey'on Company'* found the request made, 
ridicu'ous ; it is not shown that fiorii any other 
source i \\ete was reasonable expectation, or any 
expectation at all to find the money required. 

The evidence of Mr. Mercier is to the effect 
tliat Galdemar •* freres " peevishly broke off the 
last negncianoTis, arid packed but of an urider- 
taking they had first promised to assume It is 
to be regretted that when the Messrs Galdemar 
we^ie ptit in the box togiVe their unsworn J)fersb- 
nal answers, no question was put to them relative 
to the interviews to be s^okien of by Mr. Mercier. 
By our law, persons in that position nkit being 
BWorn,and being put in the box,bv their opponent, 
in ojder that, if possible, certain admissions or 
confessions be obtained from. tWs^.^\a3N^ ^^\» \«fe 



72 



DECISIONS OP THE 



[1869 



cross- examined bj their counsel, and are thereby 
often deprived, through sheer ign« ranee or want 
of experience, of giving their own account of 
what has passed. The admission which is wanted 
having been obtained, they are dismissed. The 
result is that a one sided account, or part of 
ft transaction only comes before the Court, and 
this we think unjust. It is difficult to see, we 
do -not see, why if examined on one side, the 
party should not be cross-examined In this 
case it does not make much difference upon the 
merits, for if the Plaintiffs gave up the scheme, 
it appears they had first consented to adopt they 
were allowed to do so, and the grievance, if any. 
takes no substantial shape, for we are not told, 
nor do we see, from what quarter the money 
"■ equired would haye cou»e, and who was ready 
to advance funds upon the securities that might 
be forth coming. According to the evidence, 
' the parties applied to, had declined and we are 
carried no farther. 

On the whole, then, we are satisfied that the 
weight of the evidence is in favour of the propo- 
sition that Mad. Diore has broken her cove- 
nant^nd t' at the Plaintiffs have fulfilled their*s. 
We are satisfied that the ill-disguised estrange- 
ment between Widow Dior6 and Wilson, and 
Widow Dior6 and Galdemar, ha*8 grown into a 
spirit of hostility of which we have traced the 
consequences. 

It may, even now, be too late to prevent the 
ruin of the Estate, but the continuation of this 
partnership must, in our opinion, prove fatal to 
the interests of all. In every point of view, 
therefore, both or one of the special grounds 
enacted in Art. 1871, and upon an important 
** cas St mblable," of which it is our duty to 
weight the import, we have come to the conclu- 
Bion that Judgment must be entered for the Plain- 
tiff, and the partnership between those co- pro- 
prietors, on account of the Eichfund Estate, be 
dissolved from this day. We are aiso of opinion 
that the Widow Diore must pay the costs ol 
this suit. 



BAKRRUFTCT COCRT, 

Faillite, — Comptabilite impabfaitb, — Cebti- 

EICAT DE 2mE CLASSB. 

Oeriificat de seconde claase accorde a la Petition^ 
naire, sa faillite reswtant de nombreuses ventes 
faites a credit et d'une comptabilite imparfaite, 

Bankbuptct, — Ibbegulae mode of Book-keep- 
ing, — Oebtipicate of the 2nd class. 

The Court being satisfied that the Bankrupt's fai- 
hire being brought on partly through numerous 
sales on credit, and partly through an irregula/r 
mode of book-keeping, allowed her a c&i^tificate of 
the second class* 

Bankbttptct St. GtriLLAUME THE WIFE. 

Before : 
His Honor G-. B. Colot, Commissioiteb. 

P. lu ChaoteIiLIEb,— Of Counsel for Bankrupt. 

&. HiTTBM, -^ Attorney for same. 

' Mouiu^ASD, —OfCounael for Assigneeg. 



3r(f July 1869« 

In this case, the Bankrupt has made the usual 
motion for a certificate uf the first class. 

The assignees object. They do not allege any 
fraudulent act, but rest their opposition on the 
fact that the books have been badly kept and do 
not properly disclose the state of afiairs of the 
Bankrupt. It is satisfactory, at all events, to 
find that no fraud is imputed to the Bankrupt 
who has been examined as to all her dealings 
that do not extend over a long period of tioae. It 
is, however, much to be regretted that her books 
should not have been kept in such a manner as 
to leave no doubt that every thing done by the 
trader can, after a reasonably patient examina- 
tion be ascertained from those books. 

I cannot too often or too strongly express the 
opinion of this Court that a regular journal should 
be kept, even by small traders ; the law requires 
it ; common sense would require it if the law did 
not too often repeat the opinion which I have 
many a time expressed, that even small traders 
should keep accounts with one of the Banks ; pay 
mto and draw upon the Bank. If they are ac- 
tuated by the earnest desire of laying clearly be- 
fore their creditors, in case of misfortune, or sure- 
ly ascertaining for themelves, in any case, the 
course of their dealings ; the Bank pass, and the 
Bank Cheque Books are very useful auxiliaries 
of the Journal; and nothing is more natural 
than that creditors who lose their money 
should like to know how that money has gone^ 
and should entertain suspicion and doubt when 
they cannot find out from the books to whom the 
money received by the trader has been paid, or 
in what manner it has been employed. 

In this case the observations made by the trade 
ansignee go more to the mode in which such 
books as the trader kept, have been kept, then to 
any wilful omission of entries ; in fact, the bank- 
rupt has kt'pt books, from two of which', mer- 
chandize bought and merchandize soLl, the assi- 
gnees have been able to trace pretty fairly her 
real position. 

Though she did not, therefore, kept her books 
as they ought to have been kept, still, there arises 
no substantial suspicions that she has intended 
to deceive or mislead her creditors. It appears 
that, as usual, she has sold a good deal too much 
on credit, and to too many people. And unfor- 
tunately those customers are not few who consi- 
der as free gifts, goods sold to them on credit. 

Taking into account those debts, and the 
amount of good handed over to the official as- 
signee, I am of opinion that the Bankrupt has 
sufficiently explained away the doubts which were 
naturally created by the irregular unbusiness 
like mode of book keeping adopted by her, or, 
more properly, adopted for her by her husbaud. 

Her family was very large, her expenses are 
not shown to have been extravagant; but I 
strongly suspect that they must sooner or later, 
under any circumstances, have proved too much 
for small returns and bad debts. 

I have come to the conclusion that she ought 
to have a Certificate of the second dass. 



1869] 



COURTS OP MAURITIUS. 



78 



BANKRUPTCY COUBT. 



Paillitb,— Appibmation db criSancb, — Pho- 

DTICTIOlSr TABDIVB, — MoTION A L'ePPBT D'oBTE- 
KIB IiA BEPOBMB DV FBOJET DE R^PABTITION 
DE DIYIDEKDE. 



BAifBmrPTCT,— Appibmation op debt, — Tardy 
PILING OP CLAIM,— Motion pob leave to up- 
set THE scheme op DITISION POR THE DITIDEND. 



In Be : 
Bankruptcy of L. H. <fc Co, 
and 
L. H., individually. 



Before : 
His Honor Sir C. E. Shand, Kt., Commissioner. 



2nd August 1869. 

When a creditor had sworn to his debts, in 
the month of April lasfc, but failed to lodge his 
claim in the Bankruptcy till after all the calcula- 
tions had been made for the first Dividend, the 
account audited, and the case was called in Court 
that the scheme of division prepared by the offi- 
cial Trade Assignees for the Dividend should be 
approved of : 

The Court, in the circumstances, refused to 
allow the proceedings for the Dividend to be up- 
set and to grant the motion then made by the 
creditor, for leave te file his claim and share in 
the Dividend, his share would have been £2 
odds, reserviug his right to claim under any sub- 
sequent dividend- 



BAIL COURT. 



Coups et Blessubes,-— Tbibunal cobbection- 

KEL SAISI DE LA PLAINTE, — AmEUDE, — ACTION 

BK dommages intebets, — Fbais. 

Dommages et mterets nornmaux prononces contra 
le Defendeur ; ce dernier ayant, pour le memo 
motif, deja ete condamne correctionnellement a 
Vamende, 



Assault,— Cbimiwal Inpobmation lodged be- 
poBE the Distbict Coubt, — Fine, — Action 

IN DAMAGES, — CoSTS. 

Vindictive damages onVy^' awa/rded against the De- 



fendant, rega/rd being had to his having already 
heen fined before the District Court, 



COTTE,— Plaintiff, 



versus 



EARIDE, — Defendant. 



Before : 
His Honor Sib C. F. Shand, Chief Judge. 



W. Newton,— Of Counsel for Plaintiff. 
E. Bebtin, —Plaintiff's Attorney. 
EuG. Bazibe,— Of Counsel for Defendant. 
J. Mebcieb, — Attorney for same. 



18^^ August 1869. 

In this case the Plaintiff asks damages against 
the Defendant, to the amount of £100, for an 
alleged assault in the month of June last, by a 
blow in the eye. 

It was shewn in evidence that the Plaintiff 
who had formerly been a Railway Clerk, came, 
on the day in question, without any business, to 
one of the Railway offices in Port Louis, when 
the Defendant and the other clerks were busy : 
tbat an altercation arose between the Plaintiff 
and Defendant, the latter accusing the former of 
having spoken calumniously of him, ;^a charge 
which the Plaintiff denied. 

The Defendant advanced towards' the Plaintiff, 
a scuffle ensued, the Defendant endeavouring to 
put the Plaintiff out of the office, the latter re- 
sisting. Just as the scuffle was beginning, the 
witnesses heard the sound of a blow, but no one 
saw who gave it ; but upon the whole evidence I 
am satisfied that the Defendant was the striker, 
but the blow was not a severe one. The Plaintiff 
endeavoared to use his umbrella against the per- 
son of the Defendant, but the by-standers inter- 
fered and separated the parties. 

The Plaintiff, immediately, brought a Criminal 
Complaint against the Defendant before the Dis- 
trict Magistrate, who found the charge proved, 
and ordered the Defendant to pay the heavy fine 
of £10, with costs. 

I am of opinion that in a case of such a nature, 
the Plaintiff having taken his remedy before the 
Magistrate, and been successful in getting the 
Defendant punished, ought to have allowed the 
matter to rest. But as the door of the Civil 
Court was open to him, I shall award him 40s, or 
£2 damages to vindicate the law ; with costs at 
the rate of the District Courts. 



74 



DECISIONS OF THE 



[1869 



SUPREME COURT. 



Vbnte pab lioitation, — Ancien Cahiee des 

ChAEOBS, — ReYENTE PAE FoLLE ENCHiEE, — 

Modifications dans dbs clauses eelatiyes atjx 
conditions de la vente oeiqinaiee. 

Aueun changement ne pent etre fait dans les condU 
tions de vente du premier cahier des charges, lore 
de la seconde vente d*un Immeuble, pa/r Folle 
Enchere, 

OependantM po/r suite de circonstances majeureSjarri' 
via pendant ie temps ecouleentre la premiere et la 
seconde vente^ des modifications da/ns les conditions 
de vente f assent alors jugies nScessaireSy notanv 
ment V addition d'une nouvelle clause dans le ca* 
hier des charges, aya/nt pour hut de coneilier les 
droits des parties vntSressies, ces modifications et 
addition etant, de plus, les consequences de Vi^ 
nSsBecution, par Vacquereur originaire, des ohligO' 
tions par lui souscrites ; la Oour autimsera Vin^ 
sertion, dans les conditions de la demikre vente^ 
de toute clause Equitable, 



Bale bt Lioitation,~Oeiqinal Mehosandum of 
Ohaeoes, — Resale by way of " Folle Ek- 
OHisEE," — Modifications of clauses in the 

OEIQINAL conditions OF SALE. 

Ko alteration can he made upon the original i»e- 
morandum of charges, when a/n Estate is exposed 
for sale a second tims, hy way of " FoUe En' 
chere.** 

Yet, where a material change of circumstances has 
occurred hetween the dates of the two sales, sug^ 
gesting a modification in the articles of sale, and 
particularly where the emergency requiring an 
addition to he made to the Memorandum of 
charges, to do justice to the parties, has arisen 
from the failure of the first purchaser to perform 
his obligations, the Oourts of Law will authorize 
proper clauses to he added to the conditions of 
the later sale. 



WILSON,— AppeUant, 



versus 



CANTIN AND ORS.,-*-Bespondents. 



* 

Before : 

His Honor Sir C. F. Shand, Chief Jadge and 
His Honor G. B. Colin. 



A. Leqall, 
J. Pign:6guy, 
E. Pelleeeau, 
J. Meeciee, 
E. Bazieb, 

A. ASTEUC, 
L. EOUILLABD, 
V. BOULLB, 



— Of Counsel for Appellant. 

—Attorney for same. 

— Of Counsel for L. Cantin. 

— Attorney for same. 

— Of Counsel for C. de Lai 

roche. 
—Attorney for same. 
—Of Counsel for J. Dior6, 
— Attorney for same 



P. L. Chastellieb,— Of CounEel for Oaldemar 

frerei. 
F. ViCTOE, —Attorney for same. 

J. Wilson the wife, learing de&nlt. 

17th August 1869. 

The Estate Bichfund formerly M&unt Alba, in 
the District of Flacq, containing about 1,200 
acres, or thereby, was sold on the 5th of May 
1863, by Licitation between the heirs and repre- 
sentatives of the owner, then deceased, the late 
Mr Pierre Dior^, for the price of ^ 136,000. The 
purchaser, the Appellant in this case, Mr Julius 
Joseph Wilson, landowner, is the husband of 
one of the daughters and heirs of the late Pierre 
Dior^, by a first marriage. The other parties 
interested in the sale were ; the widow of the 
late Pierre Dior^ and her minor daughters by 
her marriage with him, of whom she was the le- 
gal guardian ; their sub-guardian Mr Lisib Can- 
tin ; Joseph I)ior6, of Port Louis, and Auguste 
Dior6 of the same place, as legal guardian and 
Bub-guardian of Jean Pierre Dior6, the natural 
acknowledged son of the said Pierre Dior6. The 
conditions of the sale, as to payment of the price, 
were as follows : a deposit, at the Yery time of 
the adjudication, of one fourth of the sale pricei 
if required by any of the parties, and the pay- 
ment of the balance by eight equal instalments 
from year to year ; the first to be paid one year 
from the date of the adjudication, with interest 
at 9 per cent ; and in case no deposit should be 
required (and in fact none was required) thM 
the whole of the sale price was to be payable by 
8 equal yearly instalments, together with the 
interest at the rate of 9 per cent, payable every 
six months to the guardian of the minors Dior^ 
and to the parties of age. 

On the 6th July, thereafter, viz ; 1863, the 
purchaser, Mr Julius Joseph Wilson, sold to the 
widow Dior^ ten fifteenths of the property, by 
Notarial deed passed before Mr Pelte, Notary, 
remaining, himself, owner of the other five mf- 
teenths. On 28th October 1867, Mrs Dior6 re- 
sold to the said Julius Joseph Wilson, one fif- 
teenth of the property, and to Messrs Galdemar 
Freres, Merchants in Port Louis, three fifteenths, 
the ownership of the said Estate thus, ultimate- 
ly. standing : six fifteenths in the person of Mrs 
Dior6 ; six fifteenths in that of the said J. J« 
Wilson, and three fifteenths in Galdemar Freres^ 
In the said deed of sale, Mrs Dior6, as tutrix of 
her two minors daughters,agreed to prorogate the 
term of payment of the share of the price due 
to them in this manner, that is to say, it was 
agreed that the amount due to them should bo 

Eaid in seven instalments by equal yearly sums 
eginning on the Ist January 1869 and going on 
to and including the year 1875 ; the first term 
being thus payable on the 1st January 1869, and 
the last on the Ist January 1875 ; interest 
at the rate of 9 per cent was to be paid eveij 
three months, counting from 1st January 186/, 
and the said interest vvere to be provided fos 
out of the general funds of the Estate, by A 
Partnership for working the property consti- 
tuted by the same deed among the said 8 



18691 



COURTS OP MAURITIUS. 



n 



parties, in tbe proportions aboTe mention- 
ed. By the same deed, Mr. Wilson under- 
took that his wife should accord to the said 
parties, the proprietors of the Estate, a similar 
prorogation of the term of payment of her claim, 
and upon the same couditiona as that granted 
by Mrs £>ior6 to herself and the other two co- 
SMociates for the amouat due to her minor 
daughters. 

It was expresBly stipulated that the enlarge- 
ment of the time for paying the price, was grant- 
ed without any innovation or derogation from 
the rights, actions or privileges of the minors 
I>ior6 over the estate Jtickfmd. 

The management of the Property under the 
said Partnership, was not proaperous. The part- 
ners did not agree among themselTeB, and^ the 
Estate was put under Judicial Sequestration. 
Mrs Wilaon proceeded to sue out an " Bipio- 
priation fbrcee," whereupou Mrs Dior4, acting 
as guardian of her minor children, entered pro< 
ceedingB before the Master, for the resale of the 
Estate, by way of'FolIe Enchere," To avoid 
the opposition of interests which might arise be- 
tween the minora and their mother as their legal 
guardian, Mr Lisis Cantin,the sub-guardian, was 
authorized, by the deliberation of a Family Coun- 
cil, to follow out the proceedings of " Eolle 
Enchere " begun by Mrs Dior6, and the sale 
was tixed to take place before the Master of 
'this Court, on the 6th May last. 

At this stage, Mr Gantin obtained from the 
Master, an Order calling before him the other 
jiersons interested, to shew cause why the clause 
in the conditions of sale to J. J, Wilson, in 1863, 
regulating the payment of the price, and above 
referred to, should not be amended and the fol- 
lowing clause substituted in its place, viz : 

" Inasmuch as security from the risk of an 
" Insolvent purchaser is not the only object 
" aimed at, the purchaser of the said property, 
" whether he bids in person or by an agent or 
" through an Attorney at-law, acting, when so 
" bidding, in the legitimate exercise of his func- 
'' tions aa such Attorney, shall be bound to de- 
" posit, cash, into the bands of the Master of the 
" Supreme Court, at the very time of the ai^u- 
" dication of the said property and before the 
" same is knocked down to him, one fourth of 
" the sale price, if required to do so by any one 
" of the parties interested, and the three-fourths 
" shall be paid by two equal instalments from 
" year to year ; the first instalment becoming due 
*' oue year after the day of the adjudication of the 
" said Estate, together with interest thereon, at 
'* the rate of nine per centum per annum, paya- 
'* ble quarterly to the guardian of the minors 
" Siore and to the other parties of i^e, and in 
*' case no deposit should be re'juired, then the 
" whole of the sale-price sball he payable 
" by two eqnal inatalmentB, the first of which 
'* becoming due one year after the adjudication, 
" and the second one in two years from the day 
•' of the abjudication, together with the interest 
''■ thereon at the rate of nine per centum per an-- 
•' nam, payable, every three months, to the 
'* guardians of the minors Dior6 and to the par- 
"ttes of age." 



The purchaser J. J. Wilson opposed the pro- 
posed change, contending that no alteration can 
be made upoo the original memorandum of char- 
ges, when an Estate is exposed for sale a Becoud 
time, by way of " folle enchfere." The Master, 
in his Judgment of date 28th April 1869, over- 
ruled the objection, and ordered that the clause 
should be modified aa prayed for, excepting that 
the interest should remain payable every six 
months. 

J. J, Wilson appealed to the Supreme Court. 

A. Lgoall, for Appellant, stated the sale to 
his cUent, of the Estate, iu 186.3, the Bubsequent 
sales of portions of it, leaving it etanding GjIS 
in his person ; 6il5 in that of Mrs Diorl, and 
SjlS in Messrs Galdemar Fr&res. By the deed 
of 1867, Mrs Diore, aa tutrix of her minor 
daughters, agreed to enlarge the period of 
payment of the price, so that it should be paid 
by 7 yearly inatalmentB beginning : the first, on 
Ist January 1869 ; the interest wm to be paid 
quarterly, beginning from 1st January 1867. 

This was an implicit acknowledgment that no 
interest was due or owing, prior to that last date. 
The Partnership between Mrs Dior4 his client, 
J. J. Wilson and Messrs Galdemar constituted, 
by Baid deed, did not Bucceed, and Mrs Diorf has 
entered the present proceedingB for the resale 
of the Estate by " Folle Enchere ; " We cannot 
resist the proceedings which are now carried on 
in the name of Lisis Cantin, the sub-guardiaa 
who chooaes to lend himself to her views, but 
she will, herself reap the whole advantage, ai 
the income of her minor daughters will be paid 
to herself; but we do resiBt the extraordin- 
ary proposition that under the new sale, the price 
shall be payable in a way totally different from 
what it was under the terms of the former sale- 
Instead of 7 yearly instalments, it is aeked to have 
only two, and the interest instead of being pay. 
able every six months is to he paid every three 
months. The Master haa admitted the change 
as to the instalments, rhus the position of my 
client as the " Fol encheriBBeur " is rendered 
much worse ; a leas price will be got for the Es- 
tate and he will be liable to pay the difference. 
Bnt this Court haa twice decided that under a 
sale by " Folle Enchfere " the position of the 
original purchaser cannot be made wor.'e. La- 
marre, (Piston's Ifeportg, Vol. 5, p.ai) Delafond. 
(Thid : p. 107.) The Master holds that if the 
change in the conditions of sale is caused 
by the fault of the first purchaser, the change 
ought to be made ; but it is obvious that 
this reasoning is unsound, aa every " Eolle 
Enchere " is caused by the failure of the pur- 
chaser to fulfil the conditions which he has 
undertaken, But the Master has mistaken the 
position of matters. He asBumes in his Judg. 
ment that several instalments are due, but there 
is only one, viz : that payable on Ist January 
laat ; and all the interest, as we have seen, was 
paid up to the 1st January 1867. The French 
cases referred to by the Master are not appli- 
cable. The change proposed to be introduced in 
the present case is of far greater moment than 
the nlteratioDS there allowed. They differ both 
in kind and extent. 



76 



DECISIONS OP THE 



[1869 



Mr Ghastellieb for GMdemar fr^res ; 

Although on the Becord I am Kespondent, I 
follow Mr Leojlll on the same side : (Counsel 
narrated the facts.) We have a great interest 
to watch those proceedings, as our rights will be 
swept away by " Folle Enchere. " Mrs Dior6, 
now change her position, and tho* she still re- 
mains debtor in the price which she engaged to 
pay, she will enjoy the revenue of her minor child- 
ren as their guardian. She has contriyed to get, 
through Mr Cantio, the Sub guardian, the autho- 
rity of a Family Council to give a preference 
over the Estate to any money-lender who will 
advance funds to an approved purchaser sufficient 
to cover the amount of deposit and the expense 
of making the next crop, provided the proposing 
purchaser do make a bidding of ^135,000 at least, 
for the Estate. This shews the animus of Mrs, 
Diore and such an arrangement will bo highly 
prejudicial to the children. 

The original " Cahier des charges " cannot be 
changed, but must be the basis of the resale of 
" Folle Enchere " Art: 735. C. Civ. Peoc : 25th 
June 18)3, S. 14.2.302. In our own Supreme 
Court.this has been already twicedecided : Lamar- 
re (Piston's Beport 1865. vol. 5 p. 21) Delafond 
(Ibid : p. 107.) The enactment that the • new 
Bale shall take place '' sous Tancien cahier des 
charges " was not in the french law originally ; 
but this was, all along,the basis of the proceedings 
in *' Folle Enchere." Caeee and Adolphb Chau- 
VEAU p. 312. The arrSt in S. 12th July 1813, 
p. 340, is directly in point. 

The french cases cited by the Master, do not 
apply. In this case of Mounier, v. Boujou 
S. 64.1.777, there was merely a question of pay- 
ment of some interest. The Master erroneously 
supposed that payment of 6 instalments were- 
asked ; but this was not the case, as only one was 
due and could be asked under the prorogation 
granted for payment of the price, 

E. Pellebeau for Mr Cantin, Sub-guardian : 
Strong allegations have been advanced against 
the hona fides of my client ; but no collusion was 
alleged before the Master, and none exists. The 
Bale must be public after due advertizements, 
as the interests of minors are here involved. 
The real and full price will be secured ^ and 
the minors will be duly protected. It would 
be ea8y to retort upon the Appellant, for he 
was only a " pr^te nom," and this proceed- 
ing by way of " Folle Enchfere " is the only 
mode open for the protection of the interest of 
the family and the creditors of the former owner, 
Mr Diore. A family Council has been duly con- 
voked under the presidency of the Master of this 
Court,and we trust the Court will have no difficul- 
ty in homologating its resolutions to the effect of 
authorizing the guardians of the minors giving a 
preference to any person who will come forward 
and advance funds to an eligible purchaser to 
ensure a good price for the Estate. All the pro- 
ceedings have been perfectly regular. I refer in 
Chapman case, 5th August 1862, (Piston's JBe- 
jporfe, 1st Edition, VoU II, p. 81,) confirmed by 
the Privy Council. 



The great argument against us, here, is that | 



the Master has illegally changed the '* Cahier des 
Charges ;" but this is a mistake. He has not 
altered its real meaning and sense. The pur- 
chaser had 8 years, from 1 863, to pay the price. 
The Order, by the Master, that the price should 
be paid by two yearly instalments is, really fa- 
vourable to the '' Folle Encherisseur," as the six 
instalments are already due and might have been, 
at once, demanded. (Teoplong, Priv, et Hyp. 
2,154 Vol. 3 p. 192.) How is the Appellant Wil- 
son injured P He is really owing more than is 
asked of the new purchaser. He may be liable 
to pay any difference between the old and new 
price ; but contrainte par corps for the defi« 
ciency is now abolished. If the Appellant's 
contention were given effect to, resales would go 
on for ever ; the price would never be paid, and 
what is to come of the creditors on the EstatCi 
such as Olivari and others, throwing for the mo- 
ment, the interest of the owners out of view. 
The Appellant has not paid any thing. So he is 
out of Court. All the parties to the former ** Ca- 
hier des charges " did not give delay, only some 
of them, and what they did cannot bind the 
others ; "Wilson is the only Appellant^; we must, 
therefore, presume that Galdemar Fr^res are sa- 
tisfied. I refer to Dalloz, Vente puhUque des Im," 
meuhles. No. 1907 and seq : Carre ChauveatTi 
Vol. 6.2.740, 1,268, 2,242— S. 1815,2.61. 

JUDGMENT. 

The leading question in the present case, viz : 
how is the memorandum of charges of the sale of 
this Estate Bichfund to be framed under the pro- 
ceedings which have been taken by way of **Eolle 
Enchere," is one not only of interest to the par- 
ties, but to the law itself, for it has been anxious- 
ly argued, and we think it may be fairly said 
that a point of principle is, to some extent, at 
least, involved. 

Unquestionably, the general rule is quite firm- 
ly established, that, in sales by " Folle Enche- 
res," the clauses and conditions of the re-expo- 
sure of the immoveable subject shall be the same 
as those under which the purchase was made by 
the ** Fol Encherisseur," unless he consents to 
the change ; and this, for the obvious reason that 
as he is responsible for the difference of price, if 
a less amount is realised at the second sale, altho'. 
by the late change of the law, no longer by con'- 
traintepar corps ; his case under the resale should 
not be made worse, and his position more one- 
rous than it otherwise might be if the re-expo- 
sure were to take place under new clauses and 
conditions to which he had not consented and to 
which he would be a stranger. Such is the ge- 
neral rule in France, as was pointed out by the 
Counsel for the Appellant and Messrs Galdemar 
freres, in the course of the argument, and the 
same principle was given effect to in the two 
cases of Lamarre & Lafond^ decided by this 
Court, which have also been quoted in the dis- 
cussion. It may be remarked that the later 
French law contains an express enactment that 
the new sale by ** Folle-Ench^re '* shall take place 
sotis Vancien cahier des charges ; Code Pboo, Cit., 
Art. 735 This article is, of course, not law ia 
Mauritius.but it is truly only an exponent of the 
general principle which has obtained, all along, in 



iS69] 



COURTS OP MAURITIUS. 



77 



this branch of the law of transference by Sale of 
Immoveable subjects. 

Such being the undoubted general law^the Ap- 
pellant maintains the proposition that the princi- 
ple is in itself so eqaitable and so necessary to 
meet the justice of the position of the first pur- 
chaser, as against whom the new sale is to take 
place, that the rule is inflexible and cannot be 
modified or, at all events, that the changes in the 
articles of sale which the vendors, here, wish to 
introduce under the " FoUe-Ench^re " are so 
great and so prejudicial to the interests of the 
Appellant, that they cannot be admitted consis- 
tently ^^ith a due and soond interpretation of the 
law. It is now necessary that we should examine 
the value of this position which is the basis of 
the present appeal against the Judgment of the 
Master. 

Although, as we have seen, already, the rule 
above stated is undoubtedly the general one,it need 
scarcely be said that in its application to the com- 
plicated and ever yaried circumstances which occur 
in individual cases. Courts of Law have been obli- 
ged to admit modifications more or less important 
that true and substantial justice might be done 
to the parties. Nor will this be deemed remar- 
kable when it is remembered that in some cases 
when the payment of the original price is post- 
poned to a distant .datie, a considerable period of 
time must elapse between the two sales, bring- 

* ing with it, in many instances, a variety of chan- 
ges in the relations of the parties interested 
among themselves, or with respect to the immo- 
veable subject which is again to be brought to 
public sale. Thus,in the case of Villeneuve vDupuigy 
28th December 1852. S. V. 1853, Part I. p. 408, 
the Court admitted the insertion of a clause into 
the new '* Cahier des charges, " which did not 
occur in the memorandum of conditions of the 
first sale. The clause was to the effect that the 
new purchaser should, within one month of the 
sale* pay the price to the privileged and hypothe- 
cary creditors, according to the final " Ordre '* 
which had previously been drawn up and esta- 
blished among them. The Court of last resort 

' (Cassation) in admitting the new clause, enun- 
ciated the following among other grounds of 
Judgment : '' Que I'addition insure au cahier 
des charges, n'etant que la reproduction des 
clauses pr6c6dentes avec leurs consequences l^- 
gales, telles qu'elles r^sultaient des faits sur- 
venus posterieurement ; " — so, again, in the 
case of Mounier v. Bouju, 17th August 1853, 
S. V. 1854, Part 1 page 778, the same 
Court decided that : *^ Bien que Tadjudication 
apr^s folle ench^re, doive Stre prononcee sur le 
cahier des charges de la premiere adjudication ; 
cependant on pent insurer dans ce cahier des 
charges, des clauses qui seraientla consequence 
de Tin^x^cution des obligations imposees au pre- 
mier adjudicataire : Telle est la clause qui mettrait 
les inter^ts du pnx de la premiere adjudication k 
la charge du second adjudicataire, sauf recours 
centre le premier, &c." 

In a late case in our own Court, viz : that of 
MaUet^.Earel l[ others^ 19th February 1869 
(Piston's Reports^ Vol. 9. p. 4) we had a stricking 
example of a Yery important addition being made 
to the original memorandum of conditions, when 



the Estate came to be re-exposed for sale upon a 
'* Folle Enchere." The Estate Fontenelle had been 
sold, upon a licitation, to Leonard Castillon, who, 
without paying his sale-price, had resold it to 
Arthur Harel. At the time of the sale, the latter 
made a large deposit towards payment of tb ^ 
sale-price, and a portion of this deposit had been 
paid to a Judicial Sequestrator who had furnish- 
ed supplies for carrying on the property. When 
the " Folle Ench^re " took place, the Court, to 
meet the sum which fell to be repaid to Harel, 
authorized a clause to be added to the original 
conditions, whereby the purchaser was obliged 
to deposit, at the time of the adjudication, 
^14,831.57 c. the difference between the whole 
Slim deposited by Harel and the portion of it 
which remained in the Master's bands, after 
paying off the claim of the Sequestrator, This 
was an important innovation upon the original 
conditions of sale, but one which the Court au- 
thorized for the purpose of meeting the peculiar 
circumstances which had emerged betwixt the 
two exposures. 

We thus find that the principle has been given 
effect to both in France and in our o«vn Colony, 
that where a material change of circumstance! 
has occurred between the dates of the two salefli 
suggesting a modification in the articles of sale, 
and particularly where the emergency requiring 
an addition to be made to the memorandum of 
charges, to do justice to the parties, has arisen 
from the failure of the first purchaser to perform 
his obligations, the Courts of Law will authorize 
the proper clauses to be added to the conditions 
of the later sale. 

But, while we are satisfied that the Court has 
power to make changes in the articles of sale, a 
power which, in any view, it will necessarily be 
very cautions and careful in exercising ; when we 
come to look at the clause which it is proposed, 
in the present case, to substitute for the one 
that stood in the original conditions of sale, it is 
by no means so clear, as was assumed by the 
Counsel for the Appellant, in the argument, that 
the proposed clause in regard to the payment of 
the price, is, really and in truth, a change or 
innovation. In the letter of the articles of 
sale, it may be so ; but after all does it do any 
thing more than fairly carry out the original con- 
dition as to payment of the price according to its 
real meaning and spirit, bearing always in mind 
the considerable lapse of time which has taken 
place, and that no part of the price, whatsoever, 
has been paid by the Appellant Mr. Wilson? 
The original stipulation as to the payment of the 
price was, that the amount should spread over 8 
years ; the whole sum being payable by 8 equal 
instalments, beginning, the first, one year from 
the date of the adjudication, ^. e, 5th JVJay 1868. 
We are, now, in the year 1869* So, at 5th may 
last, 6 instalments were due ; for nothing has 
been paid by Mr. Wilson, and he can take no 
benefit by what has been called the sub- agree- 
ment prorogating the term for payment of the 
price, dated 28th October 1867, above refered to ; 
for, he has not paid one shilling under it, and the 
original condition by such failure, and by the 
very terms of the deed, itself, immediately revi- 
ves and comes again into full operation. Now 
does the clause as to payment of the ^rice^ x^t.<\- 



78 



DEaSIONS OF THE 



[1869 



poted to be i abftitoted for the former one, lay 
iDjr fresh burden upon the shoulders of the Ap- 

Kuant beyond what he if already under, or make 
I condition wone than it ia at the present mo- 
ment ? It will be obserfed that the terma pro- 
posed by Mr Cantio, and sanctioned by the 
lia ter, are more liberal than the original ones ; 
for, it is proposed to accord to the purcbaaer, one 
year after the date of the adjudication, to pay 
the first instalment of one half of the sale-prtce« 
and another year ihereafiker, for payment of 
the second instalment ; the interest being pa- 
yab'e every six months. Is this a change of 
which the Appellant, the ** Fol Encb^ris- 
seur " can complain P Do not those new, 
conditions carry out« substantially and in a 
bond fide way« the true intent and meaning of the 
original articles, keepins: in mind the lapse of 
time which has taken place since the date of the 
sale in 1863 ? The contention of the Appellant 
is that the conditions of sale must, just simply, 
bo repeated, changing the date from 1863 to 
1809 ; in other words, that the sellers who stipu- 
lated for payment of the whole price in 8 years, 
shall grant a second and fresh term of 8 years. 
It appears to os that this is quite unreasonable, 
and would be a sacrifice of the spirit and meaning 
of the original memorandum of charges to the 
mere letter of the conditions of sale. Putting 
the matter in another light, the success of the 
Appellant's argument would lead to a very 
startling result. Suppose in like manner, as has 
already actually occurred, the new purchaser 
should fail to pay his sale-price, ana another 
" folle ench^re " should supervene, it would, ne- 
cessarily follow, if the Appellant's argument were 
to succeed, that a fresh term of 8 years for pay- 
ment of the price must be accorded, and the date 
of ( ayment of the price of the Estate be^ thus, 
indefinitely postponed. 

We are, therefore, of opinion that the Master 
has taken a sound view of the law in reference to 
the new clause proposed as to payment of the 
Sale-price ; and nis Judgment is, hereby, affirm- 
ed with costs. 



Sais of IiacoYSABis Fbovbbtt,— Acncnr qr 

CiJrCELLATIOir THKBKOF, — FkaUB, — FoUUp 

Ekch^eb,— Tkavscbiptiov, — PBITILSeX. 



SUPREME COURT. 



VrorTB n'nniETTBLE, — Action bn b^solution,— 
Fbaudb, — Folle Enohbbe,— Tbakscbiptioit, 
— FsiYiLioE. 

Le droit de Folle EnoMre ne ie perd pas comme Is 
droit de rSaolution de vento^ par defaut de tram* 
cripiion dans un certain delai. 

Le porteur dee State dsfrais eneourus pottr faire 
vendre un immeuhle devant le Master de la Oaur 
^uprime^ ne peut^ en consSquenoe, demander la 
rieolution de ta revente du m6mo immeuhle par 
radjudicataire ci un tiers, sur le motif que oette 
revente a Mfaitefrauduleusement et pour 6luder^ 
apr^ les d4lais de transcription, te paiement 
ies itoits defrais de la vente. Le porteur de ees 
itats de frais peut toujours exeroer son droit de 
¥Me Enohdre. 



The right of JBbUe Enchere is not. Wee 
vendor^ 8 right^lost if not transcribed witikin eertaik 
delay. 

The hearer of hills of costs incurred in order to atT' 
rive at the sale of an Immoveable property hefbr4 
the Master of the Supreme Court, cannot, consO' 
quently, claim the cancellation of the resale qf 
the said property hy the adjudicatee to a this 4 
party, on the ground that such resale has heelS 
made fraudulently and in order to avoid pa^fwtent 
qfthe said costs of sale after the delays qftram* 
scripHon. 

The hearer qfsuch hills of costs is always entiOed to 
exercise the right of Folle Enchkre. 



BATNAUD,— Plaintiff 



versus 



DTT BHONE,— Defendant. 



Before: 

His Honor Justice Bestel and 
Honor Justice CoLnr. 



L. ROUILLABB,- 
E. DUOBAT, 

E. Fellebeau,- 

A. BOHAK, 



-Of Counsel for Plaintiff. 
Plaintiff's Attomej. 
-Of Counsel for Defendants. 
-Defendant's Attorney. 



2nd July 1869. 



This was an action broupfht for the annuUation 
of a sale madt» by the Defendant to one Widow 
Ebrard, of a house situate in Creoles street, in 
this City of Port Louis, upon the ground that tlie 
said sale was fictitious and fraudulent. 

The Court has had on two occasions, to deal 
with questions that arose incidentally in tha 
course of the tri&l of this cause, and it will only 
be necessary now, to lay a brief summary of the 
facts on which the action was made to rest. 

It appears that on the 26th July 1866^ the 
Defendant purchased at the Bar of the Master'a 
Court, a house situate in Creoles Btreet,Port Louis, 
upon the sale by Licitation of the same. Certain 
costs were due on account of such sale, by the 
Defendant, to the Attomies who had acted in the 
matter, and it would also appear that the De- 
fendant Du Rhone, at or about the end of Ja- 
nuary 1867, asked the Plaintiff to pay such costi 
for him, which the Plaintiff consented to do, ob^ 
tainin^ from the Attomies a proper subrogation in 
their respective rights. It would farther appear 
that on 12th August 1867, the said F. Du Bhone 
sold the house in question to the said widow 
Ebrard, and the Plaintiff alleges that such sale 
was made by the Defendant Da Bhone to defirao 



18691 



COURTS OF MAURITIUS. 



79 



bis creditors, and especially to defraud the Plain- 
tiff of his privilege over the said property. 

The Widow Ebrard suffered default to be re- 
corded against her. F, Du Rhone's plea traversed 
all the facts set forth in the Declaration, specially 
denying that the sale by him effected was made 
to defraud his creditors, or that he had promised 
to give the Defendant a privileged claim over 
the said property. 

JUDGMENT. 

The first essential condition under which a 
suitor is allowed to pray for the annullation of a 
covenant to which he is not a party, is that he 
ihould be aggrieved by the same. That his 
existing rights should be taken away or lessened 
by the contract of which he challenges the lawful 
force. In a word that he should have a legal 
ixiterest. 

The Defendant Du Rhone is, here, alleged, by 
the Plaintiff, to have fraudulently sold his house 
to another person ; the Plaintiff is bound to show 
that the sale is prejudicial to him, has lessened his 
f ecurity, has deprived him of that which he was 
entitled to, before he can show that the contract 
is one which ought to be annulled by the 
Court, as a fraudulent contract. 

The Plaintiff, it seems to us, has no interest 
that has been at all interfered with. How can 
the sale by Du Rhone to Ebrard interfere with 
the payment of the costs due by Du Khone, on 
account of his own purchase at the Bar ? 

Why should he not sell ? by what new and 
binding stipulations has he deprived the Attornies 
bearers of the bills of costs on the Plaintiff, or 
their assignee, of their right to sue ? In what 
manner can a sale, or fifty sales, change the ori- 
ginal conditions of sale which, if binding upon 
Du Bhone, are binding upon the purchaser from 
Du Rhone, in exactly the same way. Du' Bhone is 
liable to a " FoUe Enchfere " if he does not pay 
the costs of sale, the purchaser from Du Rhone 
takes away the Estate with all its encumbrances, 
charges and equities, unless the same have been 
cleared, or unless the owners of the claims upon 
the Estate have, by their own act, lost any privi- 
lege attached to such claims. What could the 
Attornies do as against Du Rhone that the Plain- 
tiff, their assignee, cannot now, on account of 
the sale from Du Rhone to Ebrard, dp as against 
Du Rhone and Ebrard ? The Attornies had a 
right of '* Folle Eoch^re ; " has the sale in ques- 
tion done away with that right of '' Folle En- 
chire ? " 

Nothing has been laid before us to show that 
there is the slightest proof of this. It was Bug« 
gested by the Plaintiff that he had not transcribed 
his right of " Folle Ench^re. " Rights, of •' Folle 
Enchire " are not, like ordinary vendors' rights, 
lost if not transcribed within a certain delay ; 
(vide VaUet v. Hewetson) if they were, the Plain- 
tiff would have lost a privilege attached to his 
daim by bis own fault, not by the fact of the 
■ale by Du Rhone to Ebrard. 

It would be contrary to every principle of real 



an 



property law to suppose that, eceieris jpanbtis, the 
purchaser of an Estate could, by simply selling 
such Estate to a third party, sweep away the cent 
ditions under which he bought. 

Now the Attorney's right for costs of sale 
paid, 18 a right of *' Folle ench^re "; it is a 
right which arises, not like the hypothec, or it 
personal claim before the sale, but a right whicb 
arises after the sale, and on account of the sale ; 
and on that very account, carries its own special 
privilege. The Attorney's costs of sale are not 
paid out of the purchase price, they are paid over 
and above the purchase price. It is not, that we 
are aware, the practice for Attornies to inscribe 
their right arising out of their bills of costs, upon 
a Judicial sale ; but if they do so, inscribe them 
ad major&m cwutUam ; their remedy is, surely, at 
all events, the *' Folle qnchfere " in case of non 
payment. 

I^et us suppose, for the sake of the argument, 
that the Attorney may expropriate ; how does the 
sale from A- to B. prevent him from expropriat- 
ing, how can it do so unless he has chosen to lose 
that right by his own laches and negligenceP 
The fiale, per se^ surely cannot prevent him. 

Let us carry the argument further, and sup- 
pose that the right of ** Folle ench^re " being 
lost, the Plaintiff has nothiog left but a personal 
claim against Du Rhone. In such a case, if Du 
Rhone has, for no consideration or a fraudulent 
consideration, conveyed his house away so as to 
shield it from his creditors, the cause would stan4 
in a different light. 

But we find in this case that Du Rhone bought 
for the sum of ;$I4,000 under certain conditions 
as to payment ; a few months afterwards he sella 
to Ebrard for the same sum, and charges the pur- 
chaser to pay under the same conditions, t # 
after deed of partition has been drawn up and in 
the way that the Court shall direct her to pay. 
In fact Durhone, personally, does not appear to 
have any claim to any portion of the original sale 
price which must first go to the vendoPs credi- 
tors, secured^ on the property, and then to the 
co-proprietors themselves, if there is a balance. 

In the conditions of the second eale then, there 
is nothing new, there is no money paid to Du- 
rhone or assigned by Durhone, if any portion of 
the $4/000 was to go to Durhone before the samip 
portion would go to Durhone now ; and if claim- 
ing under him, his creditors could secure that 
; sum then, they can secure it now* There is no 
allegation that bouse property has increased in 
value, and that the sale of this house for the san^ 
amount for which it was bought a few months 
after it was bought, is suspicions, as the sale of 
any kind of property much below its real value, 
might be, in some instances, suspicious. 

To resume, then, if the costs of the Judicial 
sale have not been paid, Du Rhone is liable to a 
*' Folle Ench^re ; '* the purchaser under him ia 
liable to a '* Folle Ench&re," in the same man- 
ner. 

We fail, then, to perceive in what way the fale 
has deprived the Plaintiff of any privilege. 



80 



DECISIONS OF THE 



[186» 



If Da Bhone has, tinder tlie deed of partition, 
any sum to receif e out of the original sale price, 
his creditors can, now as before, reach that sum 
of monej ; the sale to Ebrard has not divested 
Du Bhone, in this particular case, of any claim 
he may have had ; has not, therefore, deprived 
his creditors of any claim they may set up under 
him. 

GPhere is no personal right taken away from the 
Phuntiff, by the sale. 

For those reasons, we think the Plaintiff is out 
of Court, and that it is not necessary to inquire 
on the merits whether the sale was fraudulent or 
not ; indeed, unless it was made to defraud the 
Plaintiff, it is difficult to see what creditors it 
was meant to defraud, since no portion of the 
price is paid by £brard to Da Bhone, and not a 
condition is changed. 

There was an allegation, however, to which 
we paid a good deal ol attention, and on which 
the evidence laid before us might have thrown 
much light and have quite altered the position 
of things. It is the allegation that the Defendant 
Du Rhone held out to the Plaintiff the hope 
that he should have a privilege over the Estate. 

What better privilege the Plaintiff coold re- 
ceive than the one he had ? we cannot say, but 
the evidence fails to show that any such pro- 
mise was made, and the case resumes its original 
position, that the sale has not, per se^ invalidated 
the rights held by the Plaintiff, that whatever 
they may be, those rights are now what they 
were before the sale, untouched and unchanged, 
and that, accordingly, the Plaintiff has no inte- 
rest to challenge the same on account of such 
■ale. 

The action must be dismissed with costs. 



SCPREHE CODRT, 



BUCOESSIOirS, — MiKEITBS, — PaBTAOE, — HOMO- 
LOGATION,— CO-PABTAGBANTS,— PBIVllilGE. 

Le cO'partageant, mhie tnmeur, qui n'a point inS" 
crU son privilege dans les delais de la loiy perd 
tout droit de suite et fout privilege sur les immew 
lies qui n^ont point die qffectes d son lot. 

I/C delai accorde par la loi au cn^partageant pour 
inscrvre son primlege, court dujovr de la vente 
des immeubles de la succession^ lorsqu^Hs ont Ste 
alieneSf et non dujour du partage, 

Speciakment, si le co^partageant mineur a eti eoU 
loque sur un des immeubles ay ant forme partie 
de la communautSj et achetes depute par le mari, 
etque cetimmeuble se vended, lamort dumari 
un prix vnsuffisant pour couvrir le lot du mineur j 
eelui'd, sHl n^ a point inscrit son privilege dam 
les delais prescrits par la loi, ne pourra^ au de* 
iriment des droits acquis par des ti^ers, sefaire 
eolloquersur les autres immeubles a/yantformS 
partie de la communaute. 



Successions, — Mutobs, — PABTmoir, — Homo- 
logation, — ^''CO-PABTAGSAITTS," — PbIYILBOS. 

The *'eo^artageani'^ even where he tea minor Jose 
his privilege and his " droit de suite *' on (ha 
other immoveable properties of the succession if ha 
has not inscribed Ids privilege vriihin the dekn/t 
prescribed by law. 

Such delanf runs from the day of the sale of the m» 
moveable properties (when they have been sold by 
the heirs) and not from the da^ of the deed of 
partition. 

Therefore^ when a minor ^ eo-partageant " %ad been 
eoUocated, for his share^ on the price of one of 
the immoveable properties which hxd formed pari 
of a *' communaute " a^ had been purchased 
afterwards by the husband, amd when after &a 
death of the latter^ the immoveable property woi 
sold for a price which was not stfffieient to pof 
the share of the minor, the latter^ having failed io 
inscribe, in due time, his privilege on the oikw 
properties of the '* communaute," tueh minor 
had no privilege or ^ droit de suite " on 9uch 
properties. 

BOUEBELLT AND WIFE,— Plaintiffs, 

versus 
ASSIGNEES BAZIBE & Obs.— Defendants. 

In the cause 

THE OEIENTAL BANK COEPOEATION. 

THE CHABTEBED MEBCANTILE BANK, 

and 
THE ASSIGNEES OF E. LEPOIGNETJB^— 

Intervening Parties. 

Before : 

His Honor C. F. Shand, Kt., Chief Judge, and 
His Honor G. B. Colin. 



Hon. V. Naz, 
J. G. Tbssieb, — 
Hon. H. Kcenig, 
E. DuvrviEB, 

J. PlGN^GTIT, 

H. Bebtin, 
E. Pellebeaxt, 
J. Mebcieb, 



I 

1 



Of Counsel for Plaintiffs. 
Plaintiffs* Attorney. 
-Of Counsel for Intervening 

Parties. 
Attorney for same. 

•Of Counsel for minor Lepoi- 
-Attorney for same, [gneur. 

17^ August 1869. 






This was an application made by the Plaintifiv 
ezercisiog the rights of their debtors, under Art. 
1166 Cod, Civ., to obtain from the Court a Judg- 
ment homologating and affirming a deed of recti- 
fication of the partition and liquidation of the 
Estate and community which had existed between 
the late Victor Lanougarede and his predeceased 
wife. The original deed of partition had been 
drawn np by Pelte, notary public, on the 26th 
October 1865 and duly homologated and affirmed 
by the Court, on the 20th February 1866. To 
the application now before the Court, the minors 
Lepoigneur, the assignees of Widow Bazire, of 



1869] 



COURTS OP MAURITIUS. 



81 



Widow Yaudafi^De and of P. Ivanoff Lepoigneur, 
were made Defendants as representatiyes of the 
late Lanougar^de and his wife. 

The Orieotal Bank Corporation, The Chartered 
Mercantile Bank of India, intervened in the 
cause, and sapported the application made by the 
Plaintiffs. The assignee of El p. Lepoigneur also 
intervened, and of the actual Defer, dan ts<, the as- 
signees of Widow Bazire, of "Widow Vaudagne 
and of Ivanoff Lepoigneur^ who had respectively 
been before the Qourt of Insolvency, a so sup- 
ported the application, whilst the minors Lepoi- 
gneur, by their guardian, objected to the same, 
and contended that- the deed should be remitted 
to the Notary to rectify the same in accordance 
with the views of the minor Lepoigneur, which 
sliall be presently set forth. 

In the course of the proceedings, several sug- 
gestions were made, one of which alone requires 
B special notice. Isabella Lepoigneur, one of 
the heirs Lepoigneur, died, leaving her minor 
brother, Charles Victor Lepoigneur, her univer- 
sallegatee. 

For the elucidation of the facts of this cause, 
it is necessary to go back to the death of Mrs. 
Lanougarede. That lady died on the 2nd June 
1864.. The Estate held jointly by her husband, 
and herself, was then ordered to be sold ; twenty 
three houses or Sugar Estates were put up for 
sale ; twenty three " Cahiers des Charges," each 
embodying the conditions of sale of the property 
to which it applied, were framed, and Lanouga- 
riide purchased the twenty three houses or Sugar 
Estates. A deed of partition was then drawn up 
by Pelte, settling the share accruing to Lanou- 
garede, himself, in the joint-Estate ; settling also 
the shares of his three children or their represen 
tatives as heirs of the late Mad. Lanougarede, 
and further determining the attributions to be 
made to each ; determining, for instance, that the 
share of Lanougarede should be paid out of the 
purchase price of certain specific Estates, - that 
the shares of the heirs Lepoigneur should be 
paid out of the purchase price of certain other 
specific Estates. 

That mode of settlement of the respective 
claims of the " co-partageants " or co-proprietors 
was accepted by all the parties whose interest it 
dealt with, and was, finally, upon the conclusions 
of the ly^inistere Public, affirmed and homologat- 
ed by a Judgment of the Court, 

Lanougarede had then died, and all his child- 
ren accepted his succession, saye the minors Le- 
poigneur, who, by right of their ui inority remain- 
ed heirs under benefit of inventory. 

They now take their stand as representatives 
of Made. Lanougarede, and as such, creditors of 
Mr Lanougarede, and discard all liabilities arising 
out of Mr. Lanougarede's own succession which 
they repudiate. 

The other heirs Lanougarede became insolv- 
ent, petitioned the Court of Insolvency, were 
admitted to make a *' Cessio Bonorum, " and 
as we have seen, are now represented by their 
aaugnees. Mow, when they became insolvent, 



all the Estates bought by Lanougarede* and 
which, at Lanougarede's death, had come down 
to them, were once more sold ; some by " Eolle 
^nch^re *' at the request of creditors of both 
Mr. and Mrs. Lanougarede ; others by *' Folle 
Bnchere " at the request of the heirs Lepoi- 
gneur, themselves ; others, again, were judicially 
sold at the instance of the assignees Lanou- 
garede. 

Of the first class of Estates, there is and could 
be no difficulty ; the unpaid vendors of Mr. and 
Mrs. Lanougarede, jointly, had, it is admitted, 
fully the right to sell ; they did so, and the mi- 
nors Lepoigneur, to whom the price or part of 
the price of one of the houses thus sold had been 
attributed by the original deed of partition, re- 
ceived from the new purchaser, without the 
slightest contestation, that portion of the price 
which accrued to them. 

But other Estates were sold at the instance of 
the assignees of the heirs Lanougarede ; others 
at the request of heirs Lepoigneur, by *' Folle 
Enchere," 

The Estates fetched generally lower prices 
tban the amount for which they had been sold 
when Lanougarede bought. 

The practical result is this, that the heirs or 
their creditors, to whom, by the deed of parti- 
tion, a claim was given not over the price of all 
the Estates, but specially over the price of cer- 
tain specific estates, (a mode of partition and of 
settlement which all assented to,) are in danger 
of loosing a considerable portion of their share of 
the succession. 

The heirs Lepoigneur feel this, and, therefore, 
contend practically, that the original scheme 
should be altered, their original collocation, spe- 
cially on six out of the twenty three estates of 
the community Lanougarede, does not satisfy 
them, and their pretention is that the partition 
which has been ordered to be rectified so as to 
meet the new prices obtained, should be so recti- 
fied that their claim, instead of being limited to 
the price of the six estates originally attributed 
to them, should extend to the other estates, as 
well, in due proportion. 

Now, what the Notary has done, in obedience 
to the Rule of Court, is this : he had, for his data, 
the original deed of partition accepted by all, 
confirmed by the Court ; he had before him the 
settlement by which, estate A. must go to the 
share of Marcus ; estate B. to the share of Junius ; 
he had for estate A. a price of, say ^15,000 in- 
stead of the original price of say : ,^20,000 ; he 
dealt with each Estate separately kept in view 
of the original mode of settlement, but put 
aside the claims that the new price of, say $l6y 
000 did not C6ver ; exactly as .the Master of the 
Court would do when having before him a final 
" Ordre,*' and a reduced price, he preserves the 
first and prior collocations, and excludes those 
that the reduced price cannot cover. 

The Notary has, also, whilst refusing to shift 
the several attributions as they had been settled 
by the deed of partition* refused to attempt to 



DECISIONS OP THE 



litteB 



diifcorb the *' Ordrea " for the distribation of the 
pricee of sale, as finally closed hj the Judgment 
of the Master of the Coart. 

• The minors Lepoigbear object to this, and saj 
that thej have a right to be collocated on the 
lump of the propertj, supporting, if need be* 
their share of the loss, but that tbey cannot be 
compelled to keep their old collocations, the yalue 
of which has been greatly reduced. 

They have brought their pretentions; good or 
bad, to a practical test. One of the houses bought 
previously by Lanougar^de, and sold by his as- 
signees, was purchased at the bar bv one Vincent 
Georges, who was ordered by the Master to pay 
his purchase price to the Oriental Bank and the 
Chartered 2dercantile Bank, creditors having hy- 
pothecs on the property ; but the minors Lepoig- 
neur have given notice that they objected to the 
payment of the Bordereau of collocation, inas* 
much as they allege they have a right of ** Folle 
Encb^re " in and over the house in question. 

Now, the house in question is not one of those 
the price of which wa9, in the deed of partition, 
attributed to the Lepoigneur branch. 

Vincent Georges, although ready to pay, pan* 
sed when he received this opposition, and the 
Banks, thereon, applied for a certificate of "Folle 
Enchere " which the Master ordered to issue notr 
withstanding the contention of the heirs Lepoi- 

Sieur, as disclosed by their opposition. Vincent 
eorges appealed to this Conrt, and was allowed 
to pay the money into Court, or upon security 
given, the question of interest and costs being 
reserved until the pretentions of the heirs Le- 
poigneur had been tried on their merits. 

We notice this circumstance which is inciden- 
tal to the present general application; because it 
was mainly througbt it that the respective con- 
tentions of the minors Lepoigneur on the one 
hand, of the assignees supported by the Banks on 
the other, came fairly before the Court. 

The issues are, now, much narrowed. The 
minors Ijepoigneur assume this position. As 
heirs of Mme Lanougarede, we are creditors of 
Lanougar^de or assigns ; we have not been paid ; 
we have a right of ' Folle Enchere ' not only in 
respect to the Ebtates allocated to us by the deed 
of partition, but in respect to the other Estates 
as well allocated to us by the deed of partition. 
The Notary was wrong when he rectified tbo ori- 
ginal deed of partition, not to have redistributed 
the whole lump according to the proportionate 
interest of all the *' cO'partageants ; " his process 
of considering the original allotments as final, is 
unjust. 

The assignees and the Banks answered : to a 
right of ** Folle Encb^re " you huie, and have 
used it where better creditors than yourselves bad 
not already done so over the Estates of which 
the price was allocated to yonr share ; ^ over the 
others you- have no right whatsoever,or whatever 
rights you had, if any, you have lost by your 
own free will and choice. The Notary was right 
not to alter a scheme of partition which you, and 
all had assented to ; which a final Judgment has 



oonfirmed. The sole pdmers he had, he has fidrijr 
and fully exercised. 



. I 



There is in this cause a fact, which seems to 
dear away a good deal which appeared haay c^ 
nebulous, if we view it, as it shoiild be TJewed; isi 
a plain, straight forward way. Thie deed aiftofit 
tition of the joint- Estate of LanougarMe anil 
wife, has been approved by all the parties and 
homologated by the Court, upon the conclusions 
of the " Minist^re Public." A more solemn jui' 
dicial confirmation of a deed of partition, oar wr 
kooweth not ; every official intervention whidi 
that law requires, is found here; every formality 
to reach the final decision has been ftilfilled, and 
unless a special act of the legislature were enact- 
ed, in every case of partition, to give validity to 
the same, it is impossible to conceire in wUI 
way, under our law, a deed of partition between 
co-heirs, or co-proprietors can be more solemnly 
sanctioned. 

By their own will, by the further consent 
of the Law- Officer of the Crown, by the final 
Judgment of the Court, the heirs of the late 
Mad. Lanougar^e had slmred between them- 
selves, and in the mode, and under the condrtioos 
stipulsted by themselves, the Estate jointly hdd 
in her life time by the deceased lady and the hua*' 
band who survived her. By that deed and that 
Judgment, the minors Lepoigneur, the only heiia 
of Mad. Lanougarede, who did not accept Mr. 
Lanongar^de's succession, as her succession had 
been accepted, were to receive their share of the 
Estate of the late Madame Lanougar&de, out of 
the sale price not of all the real property, but of 
certain specific Estates. The consequence was 
that the sale price of the other Estates which waa 
not allotted to the heirs Lepoigneur, was made 
over to the other heirs of Madame Lanougarede, 
or to Lanougarede, himself, who having become 
the purchaser of all the Estates at the bar, dis- 
charged by confusion the price of those which had 
been allotted to bim for bis moiety in the com- 
munity. On what principle of justice could the 
heirs Lepoigneur or any other branch of heirB^ 
after final confirmation of that deed of partition, 
repudiate the same, now, because by some un. 
toward circumstance, the lot they were then con- 
tent to receive, the property they have chosen 
and selected as security for their rights, has fnllen 
in value and has 'not fetched; when resold, the 
same figure it reached before ? 

Surely they have a remedy, if they have not 
waived or lost it ; but that remedy is not the 
repudiation of a contract, which, if it stood un- 
supported, would, probably, command the san<v 
tion of the Court, but which is supported by a 
Judgment which has given to it the weight and 
force of a ** res judi(Jata." 

Let us suppose that the Estates, instead of 
being all bought by Lanougarede, had been 
bousht by direrd parties, and that some of the 
purchasers bound to pay according to a deed of 
partition, had paid in ooedience to their contract, 
on the faith of a partition assented to by the par- 
ties, and affirmed by the Court, could such pur- 
chasers be, now, exposed to see their property 
taken away from them by *' Folle Enchere " or 
otherwise, because one heir who was to receive 
his share of another Estate, had found that ehare 



-'Hi, " i 




I'V 



I'lll 



OP JiXtJRriiiJs. 



a 



♦ ... " , - ij • • ■* J • ■ ■ ' * •■ • ■ ■' *■ ' . . ' 

rMkieed oi* toBi ? Btif if LanoiigarMe has bought^ 
Lanougar^de baa paid to himself the pHce of 
thosHBi llstates which the deed of partition allotted 
fohimselfk^ Those who dealt with him, knowing 
tljii^f, knowing that on /sinch {Istates there was no 
otjcumbrance, no charge, that thej were Lanouw 

g rede's own, would lend their monej, and thus 
% at least, and saving tlie question of warranty 
which it shall be our duty to examine, presently, 
9u^ht not to be exposed to find their contract 
yitiated or their rights endangered by heirs who 
have previously accepted other securities in sa- 
tisfaction of their claims. 

That is not only just and true, because it is 
right that effect be givea to contracts which the 
law allows ; but in matters of partition, the Code 
(Art 883) distinctly enacts it ; by that partition 
apd the operation of the Article 883, the heirs 
I^ppoigneur, whilst held to be sole proprietors of 
mat which is allotted to them, are held never to 

2&ve been proprietors, at all, of that which is not 
lotted to thetD. The consequences of that prin- 
ciple of our law, that a partition has a declarative 
but no translative effect, are of great and varied 
importance ; for instance, the coheir or comma- 
ij^iet has not a vendor's right ; he has not, there- 
fpre, the resolutory action ; he has, only, the pri- 
vileges conferred by Arts. 2,108, 2,109, of whitli 
we.shall speak anon, and this doctrine which is a 
corollary of the rule of Art. 883 is now beyond 
dd.ubt. The logic of the law shows it, and it is 
i^iqght or laid down, inter alia, by Meblik. Be- 
pert, verbo. Idcitation ; Pothieb, Obenieb, Tbo- 
TLONa, Priv: Htp: II, No. 291, and amongst 
many decisions to that effect, we may cite that 
of,t|ie Cour de Cassation, 29th Sept. 1829, in Ores': 
eargties v. Oreanciers Lafargue^ and that of the 
Cour'de Paris, 21 April 1830, in lE'ohad v. Veuve 
Qruintzena, 

ihe stipulation in the conditions of sale to 
Iianougar^de, that the purchaser would suffer a 
'• Folle Each^re " if he did not comply with the 
conditions, is perfectlpr valid and has been carried 
into effect ; the unpaid creditors of Mr and Mrs 
Laoougarede had sold some Estates by " Folle 
Enchere ;" the heirs Lepoigneur, themselves, have 
done the same ; but where the conditions have 
been executed, the *' Folic Enchere " fails. If La- 
nougar^de was bound to pay to A. and did not 
pay, A. had his right of *' FoUe Enchere ;" not 
where he was bound to pay to himself or to B ; 
and paid himself or paid B ; after the deed of 
partition, A who had accepted other allotments, 
has no right of *' Folle Enchere " as to the Estate 
of which the price is finally attributed to B. or to 
Lanougar^de, himself. Here, Lanougarede has 
paid by confusion ; he has complied with his con- 
ti:s^t; with the special conditions of sale. The 
apparent difficulty arises from this* that the heirs 
Lepoigneur would fain consider the 23 di^^rent 
sales as one sale ; the 23 '^ Cahier des Charges. " 
as one '* Cahier des Charges," overlapping one 
another, and each carrying its effect and its force 
over Estates for which they were neither made nor 
intended. But that is a mistake in law ; Estate 
A D^'ght have been purchased by Marcus ; Estate 
^,hj JwUuSf and surely Marcus would have had 
xiijthinjgto dp b^t with his pwn covenanit ; Junius 
no conditions to domply with but thbse; which 
regulated his purchase. The JTact thai! Lanouga- 



rid^ purchased all the Estates' , does not alter t$iS 
position of things ; under one sale, he is liable Jo 
one creditor, under another sal& to another ere-: 
ditbr ; but there is Hot a general amalgamation o^^ 
conditions, rights and liabilities.— And it mdstt 
not be supposed, under the cloak of false equity,' 
that the law is harsh or seyere ; coheirs and ** co- 
partageants " have rights, just as great, just as; 
practical, as the vendor's rights which they have 
not ; they have the '* copartageant's privilege 
given them specially by arts. 2,108.2109 ; privi- 
leges sufficient to all intents and purposes, pro- 
vided they be properly guarded and protected. 

It was also urged that the heirs Lepoigneur. 
or rather some of them, were minors when the 
deed. of partition was homologated. Ivanoff Le* 
poigneur was of age, and, like all the other heirs 
of Lanougarede, accepted his succession. MinoEf 
are protected by the law ; if they were not, they 
would not be, as such, heirs under privilege ojf 
inventory ; but minors are protected by the law, 
within the fair limits of common sense, and com? 
mon equity. Protection to them does not mean 
spoliation of others, a permanent danger to 
others. Because one of the several co-heirs is f| 
minor, the law does, not compel, except under 
special agreement, the other co-heirs to remaia 
joint proprietors with the minor ; and therefore 
the minor's guardian intervenes, in some cases 
a family council, besides ; in very many occa- 
sions the opinion of the Frocureur General, the 
interference of the Court or a Judge is require(J^ 
before an act or deed can be binding upon the 
minor. But when .the formalities which, in each 
special case, the law directs, have been fulfilled^' 
and often without any other formality that the 
guardian's intervention, the .minor is bound as 
majors are bound. Otherwise when would sue? 
cessions be wound up, settlements effected, or 
payments even made ? " Quod facit tutor, facit 
pupillu9, " is an acknowledged principle of our. 
law; whether the law could be or should be mor« 
stringent, is a question on which we have oui^ 
own views which it is not necessaiy in this case 
to propound ; but coheirs, creditors, third parties 
under any title or name, must be allowed to deal 
with security even when a minor is interested ; 
and the guardian is in the field to protect the 
minor, either alone, or with the further assistance 
of his ward's friends, or the superintendence of 
the " Minist^re Public " and Judge. This case ia 
one out of many which are not suffered to pass 
unchallenged when any body is interested in dis- 
cussing their data, or disputing their conclusions. 

We must now turn to the question which, to 
us, is the one on which the case must turn. 

The deed of partition is complete, . and finally 
binding ; but is it right that co-heirs or co-pro-i 
prietors entitled to a proportionate share of the 
Estate, should lose their rights or part of their 
rights, when the share allotted to them turns out 
to be of lesser value than it was thought to pos- 
sesss P 

When parties consent to a mode of settlemenff^ 
they are presumed to have consented to that 
which they deemed proper and just. But the l^w, 
for the better proteyction of co-heirs and / OPpar- 
tageants/ has conferred upon them, in lieu qithH 



1 



84 



DECISIONS OF THE 



[1869 



rendor's privilege which the economy of that law 
swept away, another special privilege for the 
proper adjustment of their claims, a privilege 
just as effective as the other, tlie privilege of the 
*' co-partageants." But, as the rights of third par- 
ties bad to be protected, likewise ; as it was ne- 
cessary to guard conveyances and transactions of 
every kind from unknown rights that might, by 
suddeDly emerging, cause grievous wrong, the 
law has saddled the privilege of the *' co-parta- 
geanta " with the condition that it be inscribed 
m the Eegister of Inscription, within a certain 
delay. 

Art. 2109 enacts that : '* Le coh^ritier ou co- 
partHgeant conserve son privilege sur les biens 
de chnqiie lot ou sur le bien licite, pour les soul* 
te et retour de lots, ou pour le prix de la licita- 
tion, par l*ioscription faite a sa diligence, dans 
ioixante jours, k dater de i'acte de partage ou de 
I'adjudication par licitation : durant lequel terns 
aucune hypotheque ne pent avoir lieu sur le bien 
charge de soulte ou adjuge par Licitation, au 
prejudice du creancier de la soulte ou du prix." 

By Ord. No. 36 of 1863. sect. 6, pargh. 2, the 
privilege is not done away with/ but the delay 
of inscription is reduced to forty Jive days. The 
cause of this proviso is very plain ; one of the 
very best provisions of our Codes, for the securi- 
ty, certainly for the information of third parties, 
is to be found in the system of Public Registers 
of Inscriptions and Transcriptions. There one 
may learn how he deals, whac dangers may threa- 
ten his investments, what rights may interfere 
with his covenants. If a lender of money or pur- 
chaser of real property finds that Estate A sold 
by Licitation between Marcus and Junius has 
been bought by Marcus, he knows that he has 
no vendor's rights to fear ; he goes to the Kegis- 
ters after the expiry of the legal delay for ins- 
cribing the other privilege and finds no Inscrip- 
tion there, he contracts, and fairly so without 
danger ; for, where, in such case, could the limit 
be made to stop if allowed to extend beyond the 
term enacted by the law ? 

Who is to blame, if the privilege is lost from 
want of Inscription ? Surely the *' co-partageant," 
himself, who tor motives best known to himself, 
family reasons, confidence in the value of his own 
allotted share, in his debtor, has waived a right 
which pxtended his privilege beyond his own 
share his warranty beyond his own debtor's per- 
sonal solvency. 

The copartageant or his assigns who have thus 
lost their privilege, have still a personal right, 
which may, yet, be secured by inscription ; but 
which, like ordinary inscriptions, will rank ac- 
cordiog to its date, but without any superior re- 
troactive privilege. Art. 2,113 enacts : *' Toutes 
creances privilegi^es soumises h la formality de 
rinscription, h i'egard des qaelles les conditions 
ci dessus prescrites pour conserver le privilege 
n'ont pas ^te accom plies, ne cessent pas, n^an- 
moins, d'etre hypoth^caires ; mais Thypotheqae 
ne date, k regard des tiers, que <de I'^poque des 
inscriptions qui auront du ^tre faites, ainsi qu'il 
aera ci-apr^s ex^iqu^.'' 

The text is clear the authorities no less, to 
show that the day of the abjudication is the ter- 



minus a atu>* ftnd not the day of the homologa- 
tion of the Deed of Partition. 

Papon V. Faugere, (Bordeaux,) 16th June 1831, 
D. 81. 2. 212. Chanteron t. Ferret i[ VUUmr 
(Lyon.) 2l8t Feb. 1882, D. 82. 2. 146. JETer. M- 
nard v. OrAtnciers Bmard, (Paris), 7th Feb, 
1833, D. 83. 2. 203. Qalhis v. Be Monifleurg, 
C. Cass. 15th June 1842. S. Y. 42. 1. 63. 

This latter decision is quite in point and lays 
down the doctrine above maintained as against 
minors. *' Attendu que pour Tobligation de 
prendre inscription dans les 60 jours, k dater du 
partage ou de i'adjudication sur Licitation, la loi 
ne distingue pas entre les majeurs et les mi- 
neurs.*' In the case Heritiert Midard v. Qa- 
lopin, 0. Cass, 23d July 1839, S. V. 89-1-560, 
we find very cogent reasons : " Attendu que 
les dispositions de 1' Article 2,109 d6montrent, en 
effet, que Tattente d'une liquidation definitive 
n'a nullement frapp^ ses r^dacteurs ; ce n'est pas 
en efPet I'^poque du reglement des parties sar 
leurs retours et repetitions respectifs qu'ils don- 
nent pour point de depart k Tinscription, mais 
celle de Tadjudication ; et cependant i/s n'jgao- 
raient pas qu'apr^s I'adjudication, il reste pres- 
que toujours des compensations et dee cfdculs 
qu'une liquidation est seule de nature \ etablir* Ce 
qui a frappe les l^gislateursj c*est la cessation de 
rindivision ; c'est la transformation d'un droit 
commun k plusieurs, en un droit exclusif ; c'est 
cette attribution de la propriety qui, ouvrant un 
ordre de choses tout nouveau, place les interess^B 
en demeure de s'ioscrire." 

The same reasrteing, almost i^ressimis verbis^ 
we find in Teoplokg's commentary. Vol. I Prvo* 
et Hyp,, No. 318 bis. We say nothing as to 
" lesion ;" besides other reasons there is no proof 
that at the time the partition was made, the 
share allotted to the heirs Lepoigneur was of less 
value than the share allotted to the other " co- 
partageants " (art. 890.) 

There is, besides, no action in rescision or can- 
cellation, before the Court (arts, 887 and 888.) 

The conclusion to which we have arrived is : 

That the deed of partition finally homologated 
has settled the respective rights of the co-heirs^ 
and determined on what specific Estates each co- 
heir or '* copartageant " snould receive his shaie 
of the Estate. 

2o. That the deed of partition and Judgment 
homolocrating the same has the same binding 
power for minors as for majors. 

8o« That the minors Lepoigneur have no right 
of " Folle-Ench^re " and no vendor's rights over 
the property allotted to Lanougarede for his 
share. 

4o. That, as a fact, they have not inscribedi 
within forty five days, their privilege as " copar- 
tageants." 

5o. That in law,they have lost the privilege,and 
have no right but the right of warranty unde;|^ 
Art. 2,113, but with no better privilege than or- 
dinary hypothec creditors* 



.1869] 



COURTS OF MAURITIUS. 



.86 



^60. That this being the case, the KTotair was 
jigh% whea ordered to rectify the original deed 
crf^partition, eince the new sale prices did not 
ifeach the amount of the original sale prices to 
lAnougarede, to do so in the plain nsual com- 
mon sense way. 

7o. That no new right or other new privilege 
is proved to have arisen that could induce the 
ITotary or authorize him to interfere with settled 
rights. 

80. That the Notary was right not to assume 
a power he had not, that is, interfering with 
^' Ordres " as settled by the Master, the proper 
officer of the Court, for such matters. 

And accordingly we are of opinion that the 
objection of the minors Lepoigneur to the homo- 
logation' of the rectification of the deed of parti- 
tion, are to be set aside, and that they shall take 
nothing by their application to have the whole 
matter remitted back to the Notary, to be dealt 
with in the way they maintaiued. 

We are of opinion that the Plaintiffs should 
have Judgment with costs, against the minor 
Victor Lepoigneur, in his name, and as universal 
legatee of Isabella Lepoigneur. 

The assignees, Defendants in this action, we 
hold to be also entitled to their costs against the 
unsuccessful party. 

As to the intervening parties, their interven- 
jtion is admitted according to the provisions of 
Art. 882 ; but at their own expense ; they shall 
neither receive nor pay costs. 



SDPREHB OOOBT. 

TfiMomrs, — VAOATioirs. 
WrrarEss,— Costs. 

Before : 

[is Honor Sir C. E. Shakd, Chief Jadge, and 
His Honor Justice Bestsl. 

Motion m Se 

LBWISON 

vertfus 

THOMAS, LACHAMBBE & Co. 

24iih August 1869. 

When a witness is summoned in a cause, ihe 
-pttity ealling him, must, generally pay his taxed 
'ctosts, although an Appeal to the Privy Council 
mkj imve h&Bn. entered. 

,^, The witness is not bound to wait the issue of 
file Appeal ; the result of it will fix which partr, 
§B between themselves, is ultimately liable to 
jpaj Uiose coitfl« 



SUPREHB COURT. 



Action sir bbstitutiok" d'xtk hcmettble, — 

PeEITVE, — AVBU JITDICIAIBB, — "ReUEbA, 

Oirconstances d^(vpres UsqueUes la Oour a refitsS 0$ 
faire droit a une demande en restitaUon cTim 
immeuble transfers par undebiteur d,son creof/li* 
der avec convention verhale de remSre, 



Action is ebstittttion op an immoveabui 

PEOPBBTT, — ^BVIDEKCB, — ADMISSION BEEOBI 

A Coubt op Justice, (aveti judiciaibe)— 
Equity op bedkmption (bbmebe). 

CHrcumstances under which the Court has refused to 
order the restitution of an Immoveable Property 
transferred by a debtor Co his creditor, under a 
verbal agreement of eguity of redemption (Bi- 
m6r£). 

HITIE,— Plaintiff, 

versus 

BIVET,— Defendant. 



Before : 

His Honor Justice Bestel and 
His Honor Josticb Colin. 



P. L. Chastelueb,- 
V. Laval, 
E. J- Lecl^zio, 
A. Piston, 



•Of Counsel for Plaintiir. 
-Plaintiffs' Attorney. 
-Of Counsel for Defendaol 
-Defendant's Attorney. 



2nd July. 1869. 



On the i7th December 1849, by a deed linSer 
private signatures, duly registered and transcinib- 
ed, Joseph Oourdin sold to Leonoe Bivet^ the 
Defendant, a house situate in PamplemoujeuBef 
road. Port Louis, for a price therein stipulated lo 
have been paid cash. 

On the 29th September 1858, E. Hiti6^ itia 
Plaintiff* and Felix Laurent, were declared bank- 
rupts. 

L^once Bivet, above named, and one Boucherat, 
his partner, affirmed a claim of such partnership 
against the Bankruptcy of Hiti^ and Laurent. 

Afterwards, Leonce Biivet, being called as a 
witness in the matter of the said Bankruptcy of 
Hiti6 and Laurent, was examined concemipg the 
aale made to him by Gourdin, as aforesaid, m tie 
Immoveable Property situate in Pamplemousses 
road. Lionce Bivet, amongst o^r things, stattd 
aa follows ; — 

*^ One or two years before the Bankruptcy f6f 
Hiti6 and Laurent, I had under my name a pro- 

Erty. Mr Gourdin placed it under my nam«. 
r Hiti^ was then my debtor to th^ as&sfod^ 



66 



DECISIONS OF THE 



[186» 



two tbounand, two hundred and a few dollars. Mr 
Hiti6 told me that I was to replace it under Mr 
Biti^'s name as soon as I should be paid* 

*' When I am paid by Mr Hiti^ the latter will 
become the owner thereof. 

*' It was long before I joined Mr Boucherat 
that Hiti6 was my debtor in the amount men- 
tior^ed by me of two thoasand two hundred and 
a few dollars. This sum is a personal claim of 
mine, independant of my share in the partner- 
ship. I believe, as far as I am concerned, that the 
bouse was conveyed to me for a sum of from fif- 
teen to two thousaad dollars. 

I would have no difficulty to retrooede the 
house to Mr Hitie were he to pay me, inasmuch 
as I do not enjoy that house/' 

The said immoveable property was not insert- 
ed in the balance sheet of Hiti6, amongst his as- 
sets, neither before nor after the examination of 
Leonce Rivet. 

On the 16th January 1860 the bankruptcy of 
Hiti6 and Laurent was superseded and the said 
Hitie and Laurent were put in possession of all 
their property. 

Oq 11th January last, E. Hiti6 entered the 
present action, claiming from L. Rivet the resti- 
tution of the bouse above mentioned* The case was 
argued before the Supreme Court on the 17th 
March following. 

JUDGMENT. 

The Declaration, in this case, sets forth that on 
I7th December 1849, the Plaiotiff caused to be 

J laced and put under the name of the Defendant, 
i^once Rivet, by one Joseph Gourdio, an im- 
xnoyeable property with the buildings and a p pur- 
nances thereof, situate in Pam, lemousses street, 
Port Louis. That the Plaintiff and one F6lix Liu- 
rent were declared bankrupts on the 29th Sep- 
tember 1853. That on 23rd May 1859, the De- 
fendant admitted hefore the Commissioner in 
Bankruptcy that the immoveable property in 
question was the property of him the Plaintiff. 

That on the 16th January 1860, the adjudi- 
cation of Bankruptcy aforesaid was superseded 
in virtue of an Order of the said Commissioner, 
and the Plaintiff and Felix Laurent were put in 
possession of all their property. 

That the Plaintiff has often requested but 
the Defendant has hitherto declined to res. 
tore to the Plaintiff the Immoveable property 
ID question. That an action has therefore ac- 
crued to the Plaintiff to have and demand of 
the Court, here. Judgment against the said De- 
fendant, to restere and give back to the Plaintiff, 
the full and quiet possession of the property in 
question, or to pay the sum of $3,(X)0 value of 
the said property and appurtenances. 

The Defendant traversed generally the atata- 
m^ntB made bf the Plaintiff , and specially that if 



the facts alleged were true, the Plaintiff would 
have merely acted in provision of his bankruptqTf 
and in order to defraud the rights of his, the said 
Plaintiff's creditors ; which fraudulent act tte 
said Plaintiff is not entitled by law to allege* 

The Defendant further pleaded that the sate 
of th(^ real estate in question, was made to him 
the Defendant, by Joseph Gourdin himself, 

The evidence in this cause, so far as it touchat 
the real convention between the parties, is verj 
meagre indeed ; in fact, it depends, almost en« 
tirely, upon the statement sworn to by the De- 
fendant before the Court of bankruptcy. It if 
perfectly clear that the pleas, such as they are 
framed, are untenable ; but it is no less clear that 
the Plaintiff must make out his case. 

The general pleas are bad when they deny the- 
main facts alleged by the Plaiotiff; the special 
plea is not borne out when it alleges fraud on the 
Plaintiff's original transaction. 

The evidence shows that it is traethat some 8 
years before his bankruptcy, the Plaintiff, then a 
debtor to the Defendant, bought a house of 
G-ourdin and had the house nominally conveyed 
to the Defendant, evidently as a security for the 
Defendant's claim upon him. 

In &ct it was a kind of sale to the Defendanti 
upon an equity of redemption ; the Plaintiff be* 
ing entitled to receive back the house when he 
had paid.the money he owed. There is rio fraud 
there ; there is no undue preference at all showa 
in this case, juf*ging of the (acts according to the 
evidence before us, and that evidence we gathor 
from the statement of the Defendant, himself. 

It is also perfectly true that the Plaintiff, as 
bankrupt, has succeeded in paying or obtaining 
a discharge from his creditors, and his bankrupt* 
cy has been duly superseded, so that no claim 
can be set up against him by the Defendant ; for 
the debt proved by Boucherat, is the Joint inter* 
est of Boucherat and the Defendant. 

If the case stood solely in this light, the Plain- 
tiff must succeed. 

But can we consider the debt to secure wliick 
this house in question was, upon its purchase^ 
from Gourdin, put under the Defendant's name^ 
as a debt which came within the operation of the 
Bankruptcy P or was it not, rather, a foregone 
conclusion, a thing of the past, a debt already 
paid in a special manner, which could not form 
part of the bankrupt's liabilities at the time 
of his bankruptcy, just because it has been paid^ 

A debt is not the less paid by an actual assign* 
ment of a just eonsideration, because by the ope» 
ration of an equity of redemption, the debtor r^ 
serres to himself the right to take back the 
spt'cific consideration, or otherwise satisfying the 
debt. The equity of redemption is in favor tA 
the debtor assignor, but cannot be used by the 
creditor assignee. The latter is paid, paid in ft 
special manner he has consented to, but absolok 
teiy pHid if the debtor does not choose to 
the powers he has reserved to himself. 



869] 



COUETS OP MAUEITIUS. 



87 



Now, we do not know what maybe behind the 
eurtain ; we have, in support of the Plaintiff's 
ullegationSy that the house was to be restored to 
him ; only the Defendant's statement. The De- 
fendant admits the fact, but saddles his admis- 
pion with the further statement that he was 
bound to restore, on being paid his money, the 
debt which this sale was meant to discharge. If 
the Defendant's release of the Plaintiff at the 
bankruptcy is put forth, that release operates as 
a discharge of all debts existing at the time of 
the Bankruptcy, and paid in a special manner. 

And the Defendant's statement upon which we 
must again fall back, is distinctly to the effect that 
f' at the time the house was made over to me, Mr 
Biti^ was my debtor up to upwards of ^2.200 and 
a few dollars." and again. *' This sum is a particular 
claim of mine independant of my share in the 

Firtnership." And again : *' It was long before 
joined Mr Boucherat that Hiti6 was my debtor 
in the amount mentioned by me of ;^2,26o and a 
few dollars." 

So far as we can see, what further evidence we 
have, rather goes to corroborate this stat-ement 
than to rebut it. 

In fact, the claim proved at the Bankruptcy 
was the partnership claim, the joint claim of 
Soucherat and Bivet. 

In fact, the house does not appear as part of 
the assets of the bankrupt. It the house had 
not, subject to the aforesaid equity, really been 
conveyed to satisfy a debt personal to Rivet the 
Pefendaiit, the house would haye still been the 
property of Hiti^, and Hitie would have entered 
the same as part of his Assets. He does not do 
BO, and why ? Evidently because two years, at 
lea^t, before, the house had ceased to be his pro- 
perty. Rivet does not prove his personal claim, 
whilst the partnership claim is proved. Why ? 
because the personal claim is discharged by the 
transfer of the house, subject to the same equities, 
but the partnership claim is not paid at all. 

Subsequently, Hiti6is fortunate enough to ob- 
tain a discharge from his creditors. We are 
prepared to give the fullest force to that discharge, 
£ftirly and publicly obtained with the sanction of 
the Commissioner ; but we cannot give it 
the force that will revive a special claim dis- 
charged in a special way before the Bank- 
ruptcy, in order that the special claim so 
revived should disappear under the general dis- 
charge and the special consideration revert to the 
Bankrupt, or, at least, before we do so, we must 
have clear proof that the parties intended that 
this should be their case. And we have no such 
proof. It is again very true that all this rests 
upon the evidence of the Defendant, himself, be- 
fore the Court of Bankruptcy ; but that evidence 
is brought in by the Plaintiff, who gathers from 
it, and from it alone, that the house was in reality 
bought by him the Plaintiff, and by him put 
under the Defendant's name. Subtract the De- 
fendant's statement, the Plaintiff fails entirely in 
the essentials of his case ; why then should not 
believe that pnrt of the Defendant's statement 
which ezplairs the catise of the transfer, aa well 
as that part fiom which we gather the fact of the 
transfidr? 



Why should we divide the statement, the judi- 
cial admission P We may not do so, and we think 
the evidence gathered from the record of the case 
in Bankruptcy rather supports that view of the 
case. The Plaintiff owed money to the Defen- 
dant and paid him by buying a house in his 
name, reserving to himself the right of recover- 
ing the same if he paid in money the sum he 
owed. That took place long before the Bank- 
ruptcy; a contract apparently complete long before 
the bankruptcy ; has nothing to do with the Ban- 
ruptcy so far as we can see, and therefore is not 
affected by the general discharge which took 
place of all debts existing at the time of the 
Bankruptcy. 

It is a pity that the pleas instead of dealing 
with the question broadly and on its legal bear- 
ings, denied facts which the Defendant had ad- 
mitted, suggested fraud of which there is no 
proof, and which, if true, would have made the 
Defendant h particeps fraudis. 

But as the case stands, compelled to decide 
upon the meais^re evidence, the very few importaijit 
facts before us, we must come to the conclusion 
that the Plaintiff has not made out his case. We 
shall give Judgment, dismissing the action with 
costs, unless tbe Plaintift electa to be nonsuited. 



BAIL COURT. 



'Ajovanement, — Delai. 

Zorsqiie les dUais prescrits par lea Bules of Oouri 
fCauront pas Ste observes dans la signification 
soit d*une plainte soit d*une defense^ U sera on 
pouvoir du Juge d^annuLer le dit acte de proof' 
dure ou d'a>ccorder un renvoi. 



Plaint,— Notice op defense, — ^Delat. 

When a Plaint toith summons or a Notice of do* 
fense has not been served- on the other side, unthm 
the statutory delays, the Judge has power either 
to annuU the proceedings or to grant a postpone 
ment where no substantial right is prejwdioei 
thereby. 



TEEMOTJLET,-Plaintiff, 

versus 

DUCLOS»— Defendant. 

Before : 
His Honor Justice Colin. 



L. BoinLLABD,«-Of Counsel for Plaintiff. 
y. Pbaoassa, — Plaintiffs' Attorney. 
O. G-uibbbt, — Of Counsel for Defendant. 
7. JKOBEST, — Attorney for same. 



DECISIONS OF THE 



{U69 



1{k Beptmiber 1869. 

In tfaia case, an objection was taken* by tbe 
Defendant, to the validity of the Plaint with 
•ummoDB. It appears that the Plaint was served 
on the 27th day of July last.and waa made retarn- 
able on the 3rd August. It was argued that the 
delay was much too short, and that the Plain- 
ti£f should be nonsuiled. The Plaintiff answer- 
ed that even if the delay were too short, there 
•hould be no nonsuit, but an adjournment upon 
such conditions as to coats that the Court would 
think just and proper under the circumatances. 

By section 2 of the Bules of Practice, a copy of 
the Plaint should be served on the Defen'iant, 
eight clear days before the sitting of the Court 
at which the summons shall be returnable. 

Bule 134 does not repeal but amends Rule 2 
by shortening the delay from 8 to 4 clear days. 

But, Rule 134 is, itself, expressly revoked by 
Bale 158 which makes no provision as to delays, 
BO that Bule 2 which never was repealed is the 
Bule which determines the delays to be observ- 
ed in cases similar to the one before the Court. 

Eight clear days must elapse between the ser- 
vice of the Plaint, and the return. 

No Judge's Order is found, in this case, short- 
ening the delay. 

The Defendant has neither expressly nor im- 
pliedly waived the objection which was taken in 
** limine litis. " 

The summons is, therefore, abortive, and should 
be declared void. 

But tbe Plaintiffs applies for and adjournment 
which shall give the Defendant the time he was 
entitled to obtain, and submits himself to pay 
the costs. 

It was a questio vexata, under art. 61 of the 
Code of Ci?il Procedure, whether a summons 
made returnable before the expiry of the delay 
|yrescribed by law, was to be treated as a nullity. 
. We must, however, look in this case npt so much 
to art. 61, as to general Bules and Orders of 
Court. 

The rule seems very positive ; but, at the same 
time, we have, under the general Bules, very ex- 
tensive powers of amendment, I am inclined to 
use those powers liberally, not only because it is 
bard that the mistake of the practitioner should 
become injurious to the suitor, but also because 
trivial objections should not be encouraged. 

At the same time, this can hardly be called a 
trivial objection. A Plaintiff may so easily and 
readily obtain from a Judge, leave to shorten 
delays when he shows good cause, thai it would 
be unwfbe to allow uncontrolled latitdde, bf 
which the ir^dlt would be great Idbseof^s 'of 

Sractibe,'and oftien, in the words of LcffdiEiynd- 
urst, in £eto v. Gihert^ (2 Cboxp. ^Hi/ tdO/a 
bouatf or negligenee* 



There is authority to shew (Cox k Lloxv, C« 
0. Prac;d32) that when a Defendant has pot 
given sufficient notice, m point of time, of a 
special defence which requires notice, the JTodge 
may adjourn the case, in order to enable him to 
give the required notice. 

This Bule the application of which is left io 
the discretionary power of the Judge, isjutfk; 
for, otherwise, the Defendant might be deprived 
of a good and substantial defence. 

I am not, therefore, prepared to say that I 
am in every case bound to refuse an adjourn- 
ment the effect of which would be to cure an 
irregularity, when the real merits of the oppo- 
nent's case are not thereby prejudiced. In tiiis 
case, however, the summons is bad ; if it is set 
aside, the Plaintiff may begin again ; his cause 
on the merits, is not endangered ; costs, he offers 
to pay ; he would, in any case, have been order- 
ed to pay costs. 

Practically, there is no great difference ; but 
when I consider that upon that first process 
every other legal delay mainly depends *, that 
many difficulties are avoided by annulling a sum- 
mons which is confessedly bad, and that no sub- 
stantial right is prejudiced thereby, I have come 
to the conclusion that without deciding whether 
the power of amendment extends to a o^Um like 
this, I should decline to interfere. The Summons 
is bad, and 1 annuU it with costs ; the 
may elect to be nonsuited. 



SOPBEnB COURT. 



SiQTJESTBE, — SOOIETB, — ADttlNISTBATTOVy 
TESTATIOHS EKTBE ASSOOliS. 



SEQnESTBATIOK,--^PABTlbBSHIP,-— l£&Nl(SfiHED^I ~ 

Contestations between PABTihnts. 



GALDEMAB FRfiBBa-^Plainttib, 

WIDOW DI0R£ k Obs.|— befendaata. 

Before : 

His Honor C. F. Si^iiTD Et.» Chief Judge and 
His Honor G** B. Colin. 



P. L. CAAStSLi;XEB,- 
F. ViOTOB, 

E. Pellebeau, 

J. MEBOlBBy 



-Of Ooonsel for F^[aiiA3Bi. 
-Plaintiffii' Attorney. 
Of Counsel fbr DdfaiiBiuMB. 
-Defezidaiits' Att(nhi6)r. 

We ard of opinion tiiat the Court faav^idH- 
.itolVed Ihe civil oo-partoery between mdssr 
Diozi, J. J. Wilson and Galdemar frAnt r«li 



1869] 



COURTS OP MAURITIUS. 



89 



Widow Dior6 having appealed to the Privy Coun- 
cil from the Judgment of the Court, the Estate 
Biehfund ought not, to the great prejudice of 
both the innocent co-proprietors and the credi- 
tors, to he suffered to go to ruin. 

Gl^aldemar ireres, the co-proprietors who have 
been successful before this Court, were, by the 
deed of co-partnery, to receive the sugars, sell 
them and apply the produce to pay the notes 
made for the support of the Estate. 

We are of opinion that, subject to the proviso 
hereinafter mentioned, they should be authorized 
to receive the crop, pay off with the produce of 
the joint Estate, the debt of the joint-proprietors 
for which the ** Folle Enchere " issued, or pay 
off the debt, at once, if they have private means 
of their own, and reimburse themselves with the 
proceeds of the sugar. 

That sum,*.0. ^15,000 or thereabouts paid, there 
will be no necessity to carry on the sequestration 
which Messrs. Thomas, La Chambre & Co. have 
undertaken. Those gentlemen have, by law, a 
privilege in and over the crop of the Estate ; it 
IS just that one of the co-proprietors pays them, 
euch co-proprietor should reimburse himself 
with the proceeds of the crop ; the sum taken 
out of the crop, to pay the sequestration 
account, wiD not vary, and the necessity for 
a sequestration come sooner to an end. The 
balance of the ^crop should be applied by 
Galdemar freres & Co. to pay : lo. the pro- 
missory notes still due which were made by the 
joint-owners of the Estate, for the working of the 
Estate ; 2o. the promissory notes already due 
and paid by Qaldemar frferes & Go's own money. 
Galdemar freres & Co. claim no privilege, so that 
the creditors will not only not suffer, but be ac- 
tually benefited. Those whose claims may be due, 
may at once, if not paid, make good those claims ; 
those whose claims are not due will, by the fact 
that a large sum of money is paid off, find their 
own position bettered. 

Besides, it is the right and duty of owners of 
Estates to apply to the payment of debts already 
due the proceeds of the crop, if such proceeds 
have not been specially burdened by some legal 
encumbrance. 

It is clear that Mrs Widow Diore having lost, 
before this Court, the case touching the dissolu- 
tion of co-partnery, and having, by her appeal 
a p tori suspended the execution of the Judgment 
of this Court, no motion having yet been made 
for provisional execution, or suspension, is desi- 
'■ reus that the crop should be received by others 
than Galdemar freres. We should be ready to 
hear, between this day and next Tuesday, any 
proposal made by her which will, at the same time, 
pay off a debt for which a '* Eolle Enchere " is 
being sued at the request of her own minor chil- 
dren, and provide for the payment of the working 
expenses past and present of that sugar Estate ; 
but whilst we leave, so far, this matter open, we 
znust come to a conclusion which we shall vary 
only by substituting some other name to that of 
Galdemur fr^res^ if this can be effected. 

Wc^ therefore, order : lo That the crop be con- 



signed to Galdemar freres, provided Galdemar 
frSres pay off the claim of the minors Dior6, for 
which the *' Folle Enchere " is sued : 2dly the se- 
questration account of Thomas, Lachambre & 
Co. 

We further order that the price of the eugars 
so sold shall be applied by Galdemar freres to re- 
imburse themselves of the two above mentioned 
payments and shall, afterwards, be applied to 
pay: lo the promissory notes still due for the 
working of the Estate, and the current expenses 
of the Estate / 2o the promissory notes specially 
made by Wilson and by Widow Diore, in terms 
of the articles of co-partnery for the working of 
the Estate. 

The balance, if any, shall bo brought up to 
this Court, to be applied as the Court shall di- 
rect, according to the just right of all parties, 
and- according to the circumstances hat may 
prevail when the Order is applied for, circums- 
tances that we are unable to foresee at the pre- 
sent moment. 

We also order that the Books of the Estate 
and the Books of Galdemar freres, relative to the 
Estate Biehfund, be kept at the disposal of the 
co-proprietors, and also that, if requested by 
either of the co-proprietors, Galdemar freres do 
within eight days from the requisition to them, 
file, at the Registry, copies of all the sales of 
Sugars by them made, and accounts of payments 
by them made in pursuance of and in obedience 
to this Judgment. Thomas, Lachambre and Co, 
will receive their costs upon this motion ; the 
costs of the joint-proprietors of the Estate will 
be reserved until at the end of the crop it is 
known v* hether there will be a balance or not. 
The costs of the creditors who have been sum- 
moned to appear shall be considered as motion 
costs and paid out of the proceeds of the Sugars , 
those creditors who were, but are no longer 
such, will neither pay nor receive costs. 



SUPREME COURT* 



Succession, — Acte de partaoe,— Homologa- 
TioM", — Contestations, — Action pbincipalb. 

Lorsque dans un acte de part age, Vzuie des parties 
en cause fait une reclamation qui n^ est point ad- 
mise jpar tous les autres co-partageants, et oblige 
le notaire a refer er ceux-ci aux magistrats com' 
petents, cette reclamation pent etre jugee sur la 
demande en homologation du partage tel quHl a 
ete itahli par le notaire, a moins que la Cour 
n^ordonne qu*elle lui soit presentee par voie d*ac* 
Hon prindpale. 



Succession,— Deed of Pabtition, — Homolo- 
gation, — Contestations, — Peincipal ac- 
tion. 

WTieref in a deed of partition, one of the parties to 
such deed sets forth a claim which is contested, and 
all the parties are refem^ V^tKe wiVw^Vi N^ 



90 



DECISIONS OF THE 



[186» 



jwoper jurisdiction, such claim may he adftidU 
cated upon hy tlie Court, on a Demand for the 
hamologation of the deed of partition drawn up 
hy the not art/, unless it he decided that it ought to 
h(f hrought hefore the Court hy vjay of a princu 
pal action. 

Widow A. MAEIETTE and Ohs., -Plaintiffs, 

verstts 
PI AT AND Oes., — Defendants. 

Before : 

His Honor Sir C. E. Shand, Chief Judge and 
His Honor Mr. Justice Colin. 



E. J. Leclezio, — Substitute Procureur and Ad- 
vocate General appearing 
ior the "Ministere Public," 

G, GuiBEET, -^Of Counsel for Plaintiffs. 

J. Gfibeet, — PlaintiflFs' Attorney. 

L. BoFiLLASD, I Of Counsel for Defen- 

P. L. Chastsllieb, ) dants. 

V. BoS' } Defendants' Attornies. 



7th Septemher 1869. 

By a Plaint dated May 29tb 1869, the Plain- 
tiffs who are legatees '* h titre uniyersel " of the 
late Ooralie Piat, called upon the Defendants, 
who, likewise, claim under the Will of that de- 
ceased Lady, to appear before the Court to shew 
cause why the Court should not hear the parties 
to the deed of partition of the Estate of the said 
late Coralie Piat, the said deed dated March 17th 
1869, and drawn up by Pelte, Notary Public, 
upon the objections raised by Edouard Piat, act- 
ing as legal administrator of the Estate of his 
minor children legatees of the late Coralie Piat,- 
and also by Edouard Piat Junior, a legatee of 
the late Coralie Piat, to the aforesaid deed of 
partition ; and further to shew cause why the 
Court should not dispose of the said objections, 
and why should the Court rale and decide that 
the said claim is grounded in law and must be 
given effect to as binding upon all the legatees 
by universal title of the late Coralie Piat, the 
aforesaid deed of partition should not be referred 
back to the Notary, to be amended and rectified 
accordingly. And further why, at all events, the 
said Court should not consider that a partial 
rectification of the deed of partition is necessary 
as regards the parties who have admitted the 
claim *of the said minors Edouard Piat and of 
Edouard Piat the son ; and further why should 
the Court be of opinion that no rectification is 
required in either case, the said Court should 
not affirm and homologate the aforesaid deed of 
partition such as It stands. 

It appears that when the Notary's scheme of 
partition was prepared and submitted to the in- 
terested parties who all claim under the Will of 
the late Coralie Piat, Edouard Piat Senior, on 
behalf of his minor children, and Edouard Fiat 
Junior, on his own behalf, on 8th April last, ob- 
Jected to the aforesaid deed of partition, setting 



/ 



up a certain claim which they allege they held 
against the Estate of the late Coralie Piat. The 
claim was not a large one, the principal Bum 
would be ^1,100 for balance due on $5,500 and 
interest on that sum of j$>5,500 from the day that 
the Beauvallon land was sold to Vigier Latour 
& Dupin fr^res, such interest decreasing gradual- 
ly in proportion to the payments made on ac- 
count of that sum of ^5,500 now reduced as 
aforesaid to $1,100. That claim, was at once, 
acknowledged by Mr Antony Colin as Attorney 
for Lecourt de Billot and wife and Jules Piat, by 
Henry Piat, Mrs Mariette, Nemours Br6ard, Vic- 
tor Desvauz, Prosper Allendy, John Piat, Arthur 
Lalouette, Alfred Montocchio and Edouard Piat. 

The claim was objected to by Leonce and Victor 
Boulle, and Onezime Letellier, both in their own 
pergonal names respectively, and as in the name 
of the parties they represented. 

The Notary, thereon, paused, and referred the 
parties to apply to the proper Jurisdiction. 

The Plaintiffs have seized the court, by the 
Plaint aforesaid, of the respective contentions of 
parties. After the Plaintiffs had stated the above 
»cts, the claimants supported their alleged rights 
into the examination of which it would be, now, 
Buperfiuous to enter, because the objecting lega- 
tees took a point upon which the Court, after 
having heard the *' Minist^re Public," is called 
upon to pronounce. 

Those legatees contended that the Court could 
not, now, enter into the merits of the case, but 
that the claimants should be sent back to make 
good their claim by a regular action at law. 

It is perfectly clear, that when a deed of parti- 
tion is sent up for the consideration of the Court, 
we have power to order that regular pleadings 
should take place whenever the circumstances of 
the case lead us to think that substantial justice 
requires it ; but there is no law compelling the 
Court to have recourse to that mode of proceed- 
ings, whenever, from the statements made by the 
parties before the Notary and taken down by the 
Notary, by the tenor of the documents which 
brings all the parties before us, we are satisfied 
that the issues are already fairly raised upon the 
deed of partition and the subsequent Plaint. 

The resiilf^ of ordering the claimants to bring an 
action at law, a result which certainly one might 
arrive at in a complicated case, must be to keep in 
abeyance the rights of all the other parties to 
the deed of partition, heirs, creditors, legatees ; 
for, we cannot homologate the deed of partition 
as it stands, inasmuch as the claim, if admitted 
or rejected, may materially change its import, 
and we cannot reckon upon a general consent, to 
keep back a sufficient sum to meet possible con- 
tingencies and divide the rest. In fact such a 
consent could not be safely given in every case. 

Art. 837, Code Civil, regulates this matter, 
and refers us to the laws relative to our Civil 
procedure. 

• 

Art. 977, Civil Procedure, after directing the 
Notary as to what he has to do, enacts that " Si 



1869] 



COURTS OJP MAURITIUS. 



91 



le Juge Commiasaire renvoie les parties h Tau- 
dience, Pindication du jour ou elles devront 
comparaitre, leur ticndra lieu d*ajournement. II 
ne sera fait aucune sommation pour comparaitre 
Boit devant le Juge, soit a raudienee." 

The mode of proceeding, now, for partitions of 
property, is to call directly the parties either be- 
fore the Judge a!j Chambers, according to the 
Chambers Ordinance, or before the Courts direct- 
ly, according to circumstances ; saving this 
"which is sufficiently summary, the law imposes 
no other distinct formality. The law enacts no 
obligation to compel parties to resort to a long 
and expensive series of legal proceedings, when 
Justice can be, just as well, done by hearing 
them at once. In fact, what is the issue before 
us ? the usual one. Shall this deed of partition 
be affirmed as it stands or not ? JSTo say the 
claimants ; we have a clear right which most of 
our co*legatees admit ; we are ready to make it 
good at once, as to those who object. 

The objectors do not say : homologate the deed 
of partition, at once, notvdthstanding the claim 
which should be repudiated. 

They say : let the matter stand over until, upon 
action brought, the Court has decided upon 
the validity of the claim. 

We repeat, cases may arise, probably often 
rise, where this would be the surest,and,pos8ibly, 
the cheapest mode of proceeding ; but this cause 
is not one of them ; here the amount in dispute 
is small, the respectiye contentions of parties 
clear, the loss in time, perhaps in money to 
innocent parties, great if we delayed the case ; 
and as no law compels us so to delay it, 
as the authorities sanction this course of procee- 
dings, as independently of authority, the text of 
law points to a summary mode of procedure, we 
must, in conformity to the conclusions of the 
" Ministere Public, " overrule the preliminary 
objection taken by Mr. L. Bouxllabd for his 
clients who must pay their own costs of the day. 
The other parties will have their costs of the day 
as costs of partition. 



SUPREME COURT, 



Succession, — Licitation, — Pabtagb en katube 

— ApPEL D*TJlir JXJGEMENT DU MaSTEB. 

LorsqtCv/n, expert nommesous V empire de Vancienne 
procedure en lidtatwn a decide que le terrain iri' 
divis entre les co-heritiers etait partageahle mi 
nature, il doit Stre donne suite a la procedure 
commencee, bien que la nouvelle Ordonnance sur 
les ventes dHmmeuhles ordonne que toute Licita* 
Hon •* commencee " sous V empire du Oode de FrO' 
cSdure sera contmuee confurmement aux prescrip- 
tions du dit Oode, et qu^ aucune licitation ne sera 
reputSe " commencee " que lorsque le depot du 
Cahier des Charges aura eu lieu. 



HUCCESSION,— LlCITATIOS", — PaBTITIOIT IN KUTD, 

— ^Appeal ebou a Judgment of the Mastsb. 



When an appraiser, appointed conformably to the 
old lano on Incitation, had found that the proper- 
ty could he divided in hind, the mode of proceed- 
ing under the law must he followed up, although, 
hy the new law, the proceedings of a I/icitation 
" commenced^* under the Code of Civil Proce- 
dure are to he continued conformably to the pro- 
visions of such code ; and a licitation is deemed to 
have been ** commenced " only when the memo- 
randum of charges has been deposited at the 
office of the Master^ 



ANDEE AND WIPE,— Appellants, 



versu;S 



BfiTUEL & OES,— Eespondents. 



Before 

His Honor The Chiep Judge, and 
The Hon. Justice Colin. 



L. EourLLABD, — Of Counsel for Plaintiffs.. 
A. J. Colin, — Plaintiffs* Attorney. 

a gSS^^ } ^^ Counsel for Bespondents, 
A EoH^' ! ^©spondents' Attornies. 



7th September 1869. 

This was an appeal against an Order of the 
Master of this Court, under date June 22nd 1869, 
which dismissed the present Appellants' applica- 
tion to set asido certain proceedings for the sale 
by licitation of real estates situate at Moka, and 
jointly held by the heirs iiouessart. The pro- 
ceedings in licitation had been introduced by the 
Eespondeut Betuel who alleged himself to be 
the creditor of Elys^e Eouessart, one of the co- 
proprietors of the said real Estates. It appears 
that by a Eule of Court, dated 24th August 1868, 
to which the heirs Eouessart and Betuel were 
parties, it had been already ordered that one 
William Mars should examine the same real Es- 
tates, and report whether such property could be 
conveniently divided in kind (en nature) between 
the co-proprietors, and that if they could, such 
division should take place; if they could not, 
then the sale by licitation thereof should take 
place according to law. 

The Rule of Court is final. William Mars, in 
execution of the same, made a final report, on 
November 12th 1868, and he found that the Es- 
tates could be divided " en nature." 

Our law prefers the division " en nature " to 
the sale by licitation of the real Estate ; in fact 
the latter may not take place unless the former 
process cannot conveniently be adopted. Art. 
827 Code Civil is peremptory. Also Arts. 976, 
977, 978 Code Civ. Proced. (Court of Lyons, 30th 
Nivose, An 12). This was, accordingly, ordered 
as usual, and the Appraiser has reported that the 
actual division '* en nat»\3x^" ^awi\alift'Nj>siR.^- 



92 



DECISIONS OP THE 



[1869 



Bat it also appears that the Eespondent B^tael 
left the whole matter in abeyance until March 
1869, when, notwithstanding the final Bule of 
Court aforesaid, and the appraiser's report, he 
filed, 00 30th March 1869, a memorandum of 
conditions of sale, the object of which was to sell 
the Estates hf licitation de piano, instead of fol- 
lowing up the proceedings which he had himself 
instituted in the first instance, and which had 
been so far sanctioned by a Eule of Court which 
not only binds the other parties to him, but 
binds him likewise to the other parties. 

Andre and wife, the Appellants, objected to 
B^tuel's scheme of ignoring completely the divi- 
sion in kind which the law requires, if it can be 
e£fected, the Bule of Court which had ordered 
it, if possible, the appraiser's Report to the effect 
that it was possible. They objected therefore, 
to the new proceedings ; but the Master declined 
to set them aside, mainly on the ground that by 
the operation of the new Ordinance relative to 
Sales, 1^0 19 of 1868, B^tuel was entitled to carry 
on fresh proceedings. 

Hence the appeal entered against that Order, 
by Andr6 and wife. 

JUDGMENT. 

We are clearly of opinion that the new Ordin- 
ance has not set aside rights already vested in 
suitors at the time of its promulgation. 

The light to divide *• en nature," whenever this 
is practicable, is one which the law specially fa- 
vours; the sale by licitation takes place only n 
when the division " en nature '* may not con- 
Feniently take place. 

By a final Judgment of this Court, made be- 
fore the promulgation of the Ordinance, this 
ha J been ordered, if found by an Appraiser then 
appointed, to be practicable. 

There is nothing in the Ordinance which can 
possibly be construed as an interference with, 
still less as a repeal of the law which directs real 
estates to be divided in kind, if possible. There 
is nothing in the Ordinance which interferes 
with the right of suitors to avail themselves of 
Judgments already obtained when the Ordinance 
became law, although Judgments to the same 
effect and for the same object may be sought in 
another way for cases that have arisen since the 
Ordinance became law. 

By section 104i of the new Ordinance, a De- 
fendant in licitation has, now^ to apply to the 
Master, by petition, to obtain an oraer staying 
the licitation so that a division in kind may ' take 
place. 

That is the new mode of proceeding for cases 
that have arisen and may arise since the passing 
of the Ordinance. 

The law is very much the same, but the pr9- 
cedure is somewhat reversed. But in the cause 
before us, the Court had, before the passing of 
the Ordinance, granted a rule which was never 
T0BiiDddd^ but was on the contrary adopted, as 



I 



1 



final by all the parties, and that Bule had or- 
dered the proceedings to take place as usual, 
according to the only way in which they could 
take place, that is according to the laiw then in 
force. That is •• Res judicata." Why should 
the Master be applied to when the Order ^has 
already gone forth ? What could the Master do 
now, that the Hule of Court has not done, so far 
as it goes ? How can the Master be called upon 
to ignore a final Judgment of the Court, whea 
the Court, itself, has no power to set it aside or 
rescind it, except by consent ? Why this attempt 
to begin " de novo " that which is already done ? 
We have no right to allow it ; we find no prac- 
tical use in allowing it, if we had the power. It 
was urged that although section 216 enacted that 
*' the provisions of the present Ordinance are not 
applicable to any proceedings commenced prior 
to the time when the Ordinance should come into 
operation,'' yet, section 217 enacted that for all 
other sales by public competition before the 
Master, ^. e. for all sales except sales by forcible 
ejectment, '^ proceedings shall be deemed to have 
commenced, if the memorandum of charges has 
been filed." 

In this case, it was argued, the memorandum 
of charges had not been filed. 

The answer lies on the surfiice ; in this case 
there is no sale contemplated, there is no memo- 
randum of charges to file, the Eule of Court or- 
dered no sale in the first instance, but a division, 
in kind ; and a division in kind not only is not a 
sale, but is exclusive of the essentials of a con- 
tract of sale. 

When a sale by licitation takes place before 
the Master, a stranger may come in and buj, 
and in that case, the rights and liabilities of ven- 
dors and purchasers immediately arise. In a divi* 
sion in kind, no such rights or liabilities arisOi 
but the operation of art. 883 is, at once, brought 
into play ; each heir or coproprietor is held to 
have always been the proprietor of the share 
that falls to his lot. Section 217 which specially 
deals with sales, never implied partitions in kind, 
which, so far as the proceedings commenced be- 
fore the Ordinance are concerned, are protected 
by section 216. and " shall be continued under 
and subject to the law in force at the time when 
the same were commenced." 

Here, not only had the proceedings already- 
commenced, but they were completed so far as 
the first stage goes. The Rule of Court had fin. 
ally ordered that the estates should be divided 
*f en nature, " if practicable. The Appraiser^B 
report, as yet nncnallenged, is to the effect that 
the division is practicable. It was again urged 
that by the law then in force, the appraiser's 
report must be homologated, and that this can- 
not, now, be done. Why cannot this, now, be 
done ? Sect. 228 expressly repeals arts. 969 to 
975 Code Civil Proced ; but it does not repeal 
art. 982 Code Civil Proced., and that article 
speaks of the Judgment of homologation, and of 
the mode of settling and drawing lots. But if 
all the articles had been repealed, the proceed- 
ings for the division ** en nature " having com- 
menced before the passing of the Ordinance, they 
would stand repealed under Sect. 216| for future 



1869] 



COURTS OF MAURITIUS. 



98 



cases^ not for a case like the one before us. Let 
^ UB go, even, farther ; let us suppose that the for- 
mality of homologation had been repealed in such 
a way that the old law were no longer applicable, 
Hie result would be that the appraiser's report 
would stand without the necessity of a confirmat- 
ion by the Court or Judge, as the case may be. 
When a legal formality required for the validity 
of a covenant is repealed, or its execution becom« 
es impossible, and yet the covenant is not abrog- 
iited, the sole consequence is that whilst previous- 
ly the covenant would not have been bindiog 
without the formality, it becomes binding without 
the formality. The same is true as to any judi- 
<!ial act or act done under a judicial order. The 
homologation of an appraiser's report gives it 
greater solemnity and greater authority ; but if 
the law revoked the necessity of homologation 
the report would not lose any portion of its in- 
trinsic value. 

But the necessity of homologation, and its 
corollaries, have not been repealed. Where then 
is the practical difficulty ? If the appraiser's 
report is wrong, this may be shown upon motion 
or application made for homologation, or motion 
or application made to have it set aside. 

If it is confirmed, then the division in kind 
will easily take place ; if it is not confirmed,then, 
and only then, may arise the necessity to sell by 
licitation, in execution of the secondary order 
found in the aforesaid Rule of Court. 

Then, and only then, will arise the fact that 
there is to be a sale, and then will apply the pro- 
visions of the new Ordinance. 

In this way, a Judgment of the Court, final so 
far as it goes, will receive its due execution, and 
parties will not be compelled to give up rights 
which possibly may prove abortive, but which, 
prima facie, are of practical application, since the 
report of the appraiser is still unchallenged. 

We have come to the conclusion that the pro- 
ceedings in licitation of the real Estate in ques- 
tion are, to say the least of it, premature. That 
B^tuel had no right to ignore the Rule of Court 
given not in his interest only, but in the interest 
of all the parties to it. 

We are of opinion that Sect. 217 of Ord. 19 of 
1868, specially treating of sales, cannot be made 
to extend to divisions "en nature." We are, 
further, of opinion, that the proceedings for the 
divisions " en nature " of the Estates in question 
commenced before the passing of the Ordinance, 
must be continued in terms of the general Section 
216, according to the law then in force. We 
must reverse the Master's Order ; annul the pro- 
ceedings taken by B6tuel for the sale by licita- 
tion of the real Estates Bouessart, and order that 
B6tuel do pay the costs of this appeal [and the 
cost before the Master, except such cost as have 
been incurred by those of the Bespondents who 
took the same side as Betuel. 

Those Bespondents will pay their own costs. 
Those other Bespondents who were made parties 
to the proceediogSy but took no active part, will 
have their costs, such as they may. be, against 
B^tael, the failing party. 



SDPREHE COURT. 



Yeitte d'immexjbles, — Offbes BisLLES,— Coir- 

SIGNATIOK, — InT^bAtS, — VbAIS. 

Circonstances en vertu des quelles la Cour a decidi 
que Vacquereur d'un immeuhle avait eu ju8t$ 
sujet de craindre d'etre trouble et avait agi coil' 
formement cm vceu de la hi enfaisant desoffres 
r^elles et en consignant son prix, et que le creait" 
cier condamne a perdre les interets qui auraieni 
couru sans le fait de la consiqnation, devait pa^ 
yer les frais et les reclamer de Vauteur du trouble^ 



Sale of immoyeable peopehtt, — Beal tew- 
DEBs, — Deposit, — " Consignation, " — Intb- 
bests,— Costs. 

Circumstances in consequence wliereof the Court haa 
found that the purchaser of an immoveable pro^ 
periy Imd just ground to fear being disturbed and 
had acted in accordance with the law in refusing 
to pay his purchase price and in making real ien^ 
ders which were followed up by a deposit of such 
price, and that the creditor who had refused to 
comply with the conditions of tlie real tender 
made to him and who had lost, thereby, the into* 
rest** which would have become due pending the 
time such money was deposited, ought to pay the 
costs and to claim the same from the party who 
caused the trouble* 



Vincent GEOB&ES and Anob., — ^Appellant*, 

versus 

THE OBIENTAL BANK COBPOBATION 

AND Obs., — Bespondents. 

Before : 

His Honor Sib 0. E. Shand, Chief Judge and 
His Honor Justicb Colin. 



P. L. Chastellieb,- 
J. H. Slade, 
Hon. H. K(ENia, 

B, DunviBE, 



•Of Counsel for Appellants. 
-Appellants' Attorney. 
-Of Counsel for Bespon- 

dentsa 
'Bespondents' Attorney. 



ZOth September 1869. 



In this case, the Court had already, on the 4th 
of December 1 868, given Judgment on the me- 
rits, and recalled an Order of the Master, undet 
date the 6th October 1868, appealed against l^ 
Vincent Qeorges. By the aforesaid Judgment, 
it had been considered that the Appellants do paj 
to the Bespondents the sum claimed from them 
by the Uespondants, with interest thereon x^ to 
the day of their tender before the Master, the 
said Bespondents giving security for the repay- 
ment of the said principal and interest in case of 
eviction or in case they are compelled to pay their 



94 



DECISIONS OF THE 



[1869 



{urchase price or any part thereof to the heirs 
lepoigneur, and io the event of the Respondents 
declining to accept the said payment upon the 
said terms, it is ordered that the said Appellants, 
do, forthwith, after such refusal, pay the said 
principal sum and interest as aboye into the hands 
of the Begistrar of the Court. 

The Court, then.reserved all questions of costs 
and the question whether interest was due since 
the tender by Appellants, of the money before 
the Master, till the result of the question arising 
out of the claim made by the heirs Lepoigneur 
and affecting the immoveable property in ques- 
tion. 

That question, which was an important one, 
has since been raised by the heirs Lepoigneur,and 
adjudicated upon by the Court ; we held that the 
rights of the Oriental Bank and Mercantile Bank 
Were preferable to those of the heirs Lepoigneur, 
and we entered fully into the reasons which led 
us to that Judgment. 

We have, now, been asked to consider the 
points reserved on the 4th December last, that is 
the question of costs and of interest, nfter tender 
by the Appellants, of their purchase price. 

We have no doubt that the Appellants are en- 
titled to their costs ; they had bought, were ready 
to pay, offered to pay, but being directly threat- 
ened with eviction on the part of parties who set 
up claims of the value of which they were not 
called upon to judge and could not judge, they 
acted in strict conformity with the enactment of 
the Code : (Art. 1653) '' Si I'ach^teur est trou- 
ble, ou a juste sujet de craindre d'etre trouble 
par une action soit hypoth^caire, soit en revendi- 
cation, il peut suspendro le paiement du prix, 
ju8qu*ii ce que le yendeur ait fait cesser le trou- 
ble, si mieux n'aime celui-ci donner caution, ou h 
moins qu'il n'ait ete stipule que, nonobstant le 
trouble, Tacheteur pai#ra," — and offered to pay, 
provided they received security. 

That was their right, a just right ; for, if hav- 
ing purchased, they were bound to pay as soon 
as called upon, they were entitled to have a clear 
title, and by law it is the vendor's duty, or the 
duty of those who claim the purchase price, as 
creditors of the vendor, to give a title and cause 
the ** trouble " to cease, and to dispel the danger 
of eviction. 

The Banks refused to give security, and a cer- 
tificate of ** FoUe Ench^re " was applied for as 
against the Appellants, ready as they were, not 
in words, but in fact and deed, to pay under se- 
curity, or to deposit. Now, no costs would have 
been incurred before the Master; no appeal 
lodged, no costs before this Court, if that had 
been accepted which we hold ought to have been 
cepted in terms of Art. 1658 of the Code. 

We are of opinion, therefore, that the Banks 
ought to pay the costs of the Appellants. 

The interest after tender has not been insisted 
ppon as to the Appellants, and rightly 8o, since, 
as soon as they deposited this money, it might 
Jbaye been taken out on security being given, and. 



I clearly, the Appellants have not had the user or 
enjoyment of the same. But the Banks have 
urged that the costs and interest and percentage 
due to the Treasury, should be borne by the 
Heirs Lepoigneur whose claim caused the troo* 
ble complained of, and who have failed to sustain 
their claim. 

The heirs Lepoigneur have failed to sustain 
their claim, and they have been mulcted in all 
the costs of the suit on the issue of which de- 
pended the fate of their claim. 

But that principal claim, and its fate must not 
be confounded with the quasi-episode with 
which we have to deal. Here, the question was: 
were the Appellants Vincent Georges, who were 
threatened with eviction, entitled to pay undeir 
security, or deposit, as they offered ? We held 
that they were, and that no certificate for •* Eolle 
Enchere,*' should issue against them. 

Those tenders which we sastained were not 
objected to by the heirs Lepoigneur ; they were 
objected to by the Banks who applied for the 
certificate of " FoUe Enchere." 

Right on the principal issue as against the 
heirs Lepoigneur, the Banks, we are of opinion, 
were wrong on the collateral issue as againlit the 
purchasers Vincent Georges ; the heirs Lepoig- 
neur have to pay the costs of the principal issue ; 
the Banks have to pay the Appellants' costs aa 
to the collateral issue. 

We do not think the heirs Lepoigneur should 
receive costs ; the mischief was caused by them 
after all ; it was they who set in motion preten* 
tions found invalid and which created the distur- 
bance of which the Appellants justly complained 

For the same reason, we think the Bank enti- 
tled to recover interest from the heirs Lepoi- 
gneur,and whatever percentage the Registrar will 
deduct from the sum deposited. Who caused the 
deposit and led to the loss of interest on the mo* 
ney deposited ? the heirs Lepoigneur. Who 
again gave rise through the deposit, to the Trea* 
sury claim of percentage P the heirs Lepoigneur. 

If the Bank were wrong to resist the Appellants^ 
offer to pay, under security, or to deposit, surely 
the heirs Lepoigneur were wrong to create,through 
an illegal claim, the necessity of a deposit or of 
payment under security. 

As to the two inscriptions which are^ stated ta 
have been taken on behalf of the heirs Lepoigneur 
to wit : the minor Lepoigneur, and Isabella Le* 
poigneur, on the Estate bought by the Appel- 
lants, they are valueless after the Judgment of 
the Court in favor of the preference due to the 
claim of the Banks over the claims of the heirs 
LepolgneuryCven upon the hypothesis,of which W6 
say nothing, that tney might stand as against the 
Estate previous to such Judgment.Mr Fsllebs^V 
has very properly, to save further expense, not 
objected to their being erased. 

Our Judgment is, accordingly, that the costs of 
this appeal, and the eosts before the Master be 
paid to the Appellants by the Banks. 



'- J 1 



t^6^j 



COURTS br MAuitinus. 



98 



That all the interest due since the tender of 

Cyment made before the Master bj the Appel- 
lis, of their purchase money, be paid by the 
heirs Lepoigneur. 

. That the Banks do recover back against the 
fceirs Lepoigneur whatever amount may be de- 
dflbted from the sum of money deposited on 
account of percentage accrueing to the Colonial 
Treasury upon the deposit. 

That the inscriptions taken in Vol : 164, No. 
40^ at the date ot 22Qd June 1867, and inscrip- 
tion taken in Vol ; 154, No. 42, at the date of 
22Qd June 1867, the first on behalf of Charles 
Victor Lepoigneur, under the guardianship of 
Phdrre Ivanoff Lepoigneur, the other on behalf 
of Is^ella LepoigDeur, be erased so far as they 
toucA the property situate in Port Louis, at the 
corner of chaussee and Malartic streets, sold ju- 
dicially and awarded to the Appellants Vincent 
Georges fils and Joseph Vincent Georges. 



SUPREME COURT. 



X 



mBSAS C0BFFS«— MaNDAT B*ABSfiT. 

Lorsqu*un mandat d'arret adresse aux autontes de 
rfle Maurice par une autre colonie anglaise^ 
parte que le prevemi est accuse d^ avoir commis 
*' le crime de desertion et de detoumement de 
fonds^^ un Juge de la Cour Supreme peut aidori' 
ser V execution du Ait mandat d*arrSt d Maurice* 



Habeas Cobftjs, — ^Wabbaitt of abbest. 

When a warrant of arrest forwarded to Mauritius 
from, another British Colony , charged the person 
against whom, it was issued with having com," 
mitted ** the crime of desertion and embezzle' 
meni^'* the Court ruled that it was latoful for one 
of the Judges of the Supreme Court to endorse 
eueh warrant for the purpose of authorizing the 
apprehension of the party charged. 



Ex PABTE : C. L. SIEBTTB. 



Before : 

Bis Honor Sm 0. F. Shand, Chief Judge and 
^J8 Honor Justicb Bestel, 



B. J. LeclAzio, — Substitute Frocureur and Ad- 
vocate General appearing 
for the " Ministere PubUc." 

W* NBWTOVy -—Of Counsel for the AppUcant. 

7. H. AcKBOTDi — Attorney for same. 



6th Oetoher 1869. 

<^ On an esf -parte motion to that efiS^ot by W* 
NswTOK on behalf of one Charles Leopold Seebur, 



a writ of Habeas Corpus was directed to Jontf 
Tebenoe Nicolls O'Bbibn, Chief Inspector olT 
Police at Mauritius, ordering him to bring before 
the Court, the body of the said C. L. Seebur,then 
and now said to be illegally detained in the Cen- 
tral Police Station of Port Louis, in the said Is- 
land of Mauritius, together with the cause of the 
detention of the said O. L. Seebur. 

The Court immediately ordered the writ to 
issue as moved for and marie the same returnable 
on the following day the 29th day of Septc mber 
instant, when the consideration of the niatfer on 
motion of the Counsel of the said C. L. Seebar 
was adjourned to the 5th October insiaat. 

The body of the said C. L. Seebur was produ- 
ced with the return of the cause of detention. 

The return put in shewed on its face a prima 
facie suflicient cause of detention of the said See- 
bur, viz, a regular formal warrant for the appre- 
hension of the prisoner in the Cape Colony, bac- 
ked by the signature of one of the Judges of the 
Supreme Court of Mauritius. 

On Mr. Newton, attention being called to that 
fact he contended that the indorsement of the 
warrant produced was illegal, null and void and 
rested his argument on Section 10th of the Stat, 
6 & 7, Viet. C. 34 , which he alleged, in no wise 
warranted the indorsation, by the Judge, of the 
warrant put in. 

That the language of the act was as clear and 
precise as it was express : ** It shall not be 
lawful (says the statute)" for any person to en- 
dorse his name upon any such warrant, for the 
purpose of authorizing the apprehension of any 
person under this act, unless it ehall appear upon 
the face of the said warrant that the offence which 
the person for whose apprehension the said war- 
rant has been issued is charged to have commit- 
ted is such that, if committed within that part 
of Heb Majesty's dominions where the warrant 
is so endorsed, it would have amounted, in law^ 
to a treason or some felonj.*' 

When called upon to indorse a warrant of ar- 
rest forwarded to Mauritius, from another British 
Colony, the first duty of the Judge applied to 
for indorsing such warrant, is to ascertain that 
the offence charged and appearing on the face of 
the warrant is an offence which, by the law, of 
the place where the indorsation is applied for, 
a Felony or Crime. If no Felony or Crime (vp" 
pear on the face of such warrant, the Mauritius 
Judge has no authority for granting the indorsa- 
tion asked at his hand. 

That in this case, no Felony or Crime appears 
en the face of the warrant bearing the indorsa- 
tion complained of. 

The offence charged is embezzlement. Is it an 
embezzelement of the Queen's monies or stores P 
If BO, such an offence would be a crime by our 
Penal Code, and the indorsation by one of th© 
Judges of the Colony would be good. 

If it be the embezzlement of monies belonging 
neither to the Qubek, nor to the Master or Sop 



M 



DECISIONS OF THE 



pasB 



puri^^r <^<Kr rA th^ ^iftrrlj th^sr^, the offmee 

wrtnld be btjt » ;r<mpi^ mind^tn^kn^r pT:iiiuluU>l6 
W ltti^ti9f/r,rMm% urai tir,^ (Art. Z^ FeniU Code). 
l7w» irnrrafit Um^^ un q^^it^ in the d*rk « to 
the dMMi fA «mb^z/,l^rnMtit refi>mred to. And 
irh/ nh^rAi we *4/i to tb^fe ^Tnb*zz'«n«it ap- 
pear ir^tf ori the fa^e of tf'»e «arrar,t, the ntcti^ 
imff f*ff\M\n\U^n t// </*r*7frrt a nirriple Hmh^z^^m^ut, 
* m^re rrpiv^em^nor, Into one of a more heiooioi 
OAtnre, or into * crime .' 

Iff mhnweffthtiHvHn. VkOCi:zKf:u G£5f:ftALsup« 
pfftUifi the \u*\(tr%%i\ot\ uo$f <\uArrt:il^(\^iti argued 
ififtt th^ jie7^;ral f\f>CMUiHXii% forwirdtti with the 
wmrrAot \tfi*/\u^ bf;eri laid htiUtrty the Judf^e who 
ludhtM'A the warrant, nhotild he rea^l in connec- 
tior» with the warrant irinxmiich an they afforded 
the 'l()d((e an opportunity of aiicertainin^ the 
real nature (iir»d graf ity of the offence auuiinarilj 
atated in the n arrant. Hut on reference to the 
docnrr.enfa rtjftzrrc.ti to Ihe Jud^e had collected 
that the ernhf'//,tement char^f;d on the faCe of 
the warrant being the alleged etnher/lement of 
Piihlie rnonleN waa Nuch tn a conviction in this 
f aland wouhl have warranttrd the Court of Asiiizes 
Uf award not the more lisnient puninhment of im- 
pri«onrnent and fln<\ but that penalty which our 
renal (Uuln attarhea to the crime of embezzle- 
tneiity viz : recluaion or hard labour. 

JUUOMJfiNT. 

The wording of Keciion 10 of the statute refer- 
rf d to a|)peflra to ua clearly to require that the 
worrant of npprohonaion coming to thia Island 
from niiothrr liritmh colony is nolto bo endorsed 
by any Jud^fo, unloss the oflenco churged appears 
on the f'n(*« of the iinid warrHUt, to bo a Felony 
or Crimu within that |)art of Hku Majksty*8 do- 
minions wluTo the warrant is endorsed, that is to 
say,iu tlioproBont casO|iutho Island of Mauritius. 

Now, what is the ufToncu which appears on the 
iUce oi the warrant produced P Tho said C. L. 
Hcebur is expressly uhiirgcd with having com- 
mit tod *' tho crime of dusurtiou and embezzle- 
mont. *' 

Have wo a law, hort\ which punishes as a 
crime or felony tho crime or embezzlement ? 
undoubtmlly wo have. If so the charge is that 
of i crime kuuwii to our law» but whether the 
ombeaNbmeat were to tho prejudice of Hbb 
Mjljkstv or of a public Department or otherwise, 
will be umttor for subsequeut consideration on 
the trial of the (>arty charged. 

The on\f point we have to ascertain is whether 
thero i»| m the offonco appcarin|j; on the face 
of the warrant laid before us, sufficient to autho- 
rise the Juge to grant the indorsation complain-' 
•d of* We think, looking at the face oi the war- 
YAiil and not going beyond it, that tiiers is. 

Wo ar». therofofo, not in the position to 
tuthoriae iKe liberation of the prisoner, bat must 
order him to bo nsmanded, and he ia hereby 
lemanM, accordingly* 



Ze Ckylcm O/nipany a^jani garamii U paiemmi ds 
trots OMnuUts d'uiie creamee hfjpcdlecaire^ ■•- 
yenMamt nJyngaiicm^ et la prcfrieti hypotKegmee 
ayarU tti vendme eiuuitepar voie ^expropriatiom 
atant fecJUance de la troUihne ammuie (^les dam 
jjrerai/'/ffis 4 tan t payees) et achetes par te pcnrteur 
de la Cf^ance hypothKcaire pour ve pnriz inferietwr 
a sa creance, la Cour a decide que le Ceybm 
Cf/mpany etait oblige au paienmemt du wumiant ia 
eeite troUieme annuite hien qme par le fait dc 
fixpropriatiom du dehiteur primeipal^ la dUa 
erea^ice hypolJJcaire etait devemie exigible ejs Id- 
taliU et nonpar annuite$> M 



CAUTI05EB, — SCBBOGATIOar,— NOTATIOH'. 

Where the Ceylon Company had hound iise^ io 
pay with subrogation three instaimenis of an* 
nulties of a mortgaged claims and aftermarda the 
mortgaged property was sold by way of JoreSble 
Ejectment before the third annuity had hecoma 
due (the ttoo first one having been paid) andprn^ 
chased by the mortgage creditor for a price Sehw 
the amount of the claim remaining dzie to him^ the 
Court held that the Ceylon Company was bound 
to pay such third annuity, although hy the fact 
of the sale by forcible Ejectment of the mortgaged 
property such mortgage claim had become due for 
its whole amount and no more by annuities. 



MAUEITIUS LAND CEEDIT COMPANY 

LIMITED,— Plaintiff, 

versus 

CEYLON COMPANY LIMITED, — Defon- 

dant. 

Before : 

N 

• 

His Honor the Chief Judgb and 
The Honorable Jusiice Colik. 



The Hon. H. K<iina,- 

y. BOULLi, 

£. J. Lsciiiio, 
B. DunriBBi 



-Of Counsel for Plainti£L 
-Attorney for same. 
-Of Counsel for Defen^ 

dant. 
-Atiomey for aame. 



IQik Stfidmber 1809. 



This waa an action brooght by the Plai 
against The Oytoi Osmpoiiy. to xeoorar the 
<^ JS^IOM for the amoont of an Mnnily far 
tho year 18^1 doouponn loan made on Jiqr 
S0lhl864. by tho BsuIJA to Miai Aogiotao 



1869.1 



COUETS OP MAURITIUS. 



97 



Marie Lige Se?toe, then OTrneTot the BetteJBiaih 
Estate, situate in the diBtrict of Flacq» which 
aforesaid annuity The Oeyhn Company had under- 
taken to pay under the circumBtaDcea that shall 
be presently set forth. The annuity of which 
payment was sought to be enforced oy the pre- 
Bent action, fell due in two equal instalments of 
;$f3»082,75 each, on February let and August Ist 
1868, and as it was not paid when it ought to 
have been paid, according to the Plaintiff's con- 
tention, interest also was claimed, but only from 
the day of service of the Declaratiou. The un- 
dertaking of the Defendants took place under the 
foUowiog circumstances : 

As already stated, Miss S^v^ne borrowed from 
the Plaintiff a certain sum of money, to wit : 
$55,000, to be repaid by her in twenty one yearly 
payments or annuities of the sum of $6,165.50 
each, each annuity being itself payable in two 
instalments, respectively due 1st February and 
Ist August of every year, until total extinction 
of the debt. To secure this claim, an hypothec 
was inscribed on the BelU Etoile Estate. It 
appears that the Belle Etoile Estate, was, on 
April 3rd 1866, in virtue of a special power of 
attorney given to The Oeylon Company, by Miss 
^v^ne, sold by The Ceylon Company to Laure 
Bttssy de St. Romain. One of the conditions of 
sale was, that the purchaser should pay the 
amount due to the Plaintiffs. The consent of 
the Plaintiffs to the intended sale was soli- 
cited and given in a letter dated November 
11th 1865, under the following condition ''that 
The Ceylon Company shall take directly to- 
wards The Mauritius Land Credit and Agency 
Company Limited, the obligation not only to pay, 
durmg three consecutive years to reckon from 
Ist February 1866 and at the stipulated time of 
payment, the instalments of annuities due by 
Miss S6v^ne, but also to give the aforesaid 
Sugar Estate Belle Etoile^ such effective assis- 
tance as will ensure to the Plaintiffs the preserva- 
tion of their pledge and their hypothecary rights. 
The Ceylon Company then directly came into the 
field, and in a letter dated April 3rd 1866, signed 
by Mr Arbuthnot the Manager of the Company" 
informed the Plaintiffs that '' under an opening 
of credit, dated this day, for the Estate Belle 
Etoile in the district of Flacq, lately the proper- 
ty of Miss S6v^ne. The Ceylon Company Idmited^ 
h ave undertaken to pay, during the years 1866, 
1867, 1868, the annuities payable to your Com- 
pany on account of the loan made by your Com- 
pany to Miss SSv^ne, and which is secured by 
privileged hypothecation on the said Estate. The 
said payment will be made with subrogation in 
favour of The Ceylon Company Limited. 

The Plaintiffs, on April 9th 1866, admitted 
that the over- due instalment had been paid to 
them, and repeated their acceptance of the un- 
dertaking by The Ceylon Company to pay the an- 
nuities for 1866, 1867, 1868, the whole without 
innovation or derogation from the Plaintiff's rights 
promising also to subrogate The Ceylon Company 
at each payment, but expressly reserving priority 
for the balance that mignt remain due to them, 
the Plaintiffs. The above conditions were also 
inserted in the contract between The Ceylon Com* 
paaw and Laure de St-Bomain. We read there that 
theuompaoy reserves to itBelf,the right of reducing 



I 



I the amount of credit allowed to St. Romain, but, 
' '* dans Pun et I'autre cas, la Compagnie prend 
charge de payer pendant les dites trois annles 
1866, 1867, 1868, les annuites qui seront dues 
au Mauritius Land Credit and Agency Componv; 
Limited, en se ftieant subroger auz droits de la 
Compagnie du Credit Fonder, 

That is the contract to which Mr. Arbuthnot 
referred the Plaintiffs in his letter dated April 
drd 1866. 

It further appears that the aforesaid covenant 
was duly executed in 1866 and 1867, but the 
Defendants, although requested,have not paid the 
amount of the third year's annuity, which the 
Plaintiffs allege was due before the commence- 
ment of this suit. 

Upon those facts, the action was brought for 
the amount above stated* 

The Defendants did not plead within the legal 
delay, and a rule was taken out of the Eegistry 
calling upon them to show cause why Judgment 
should not be signed against them for want of a 
Plea. 

On its return, the Bule was enlarged, and ul- 
timately, on the 3rd of November 1868, the De- 
fendants obtained, by consent, leave to file their 
Plea within eight days. 

The Plea denied all the facts set forth in the 
Declaration. It, then, (2) set forth that the 
Plaintiffs had no right of action against the De- 
fendants. (8) That the Defendants did not bind 
themselves in manner and form as alleged, nor 
are they now bound in any manner whatever. 
That they, the Defendants, are not indebted in 
manner and form and in the amount alleged, nor 
in any way or to any amount whatsoever. (5) 
That at the time when the alleged half of 
the aUeged annuity of the third year men- 
tioned in the Declaration, t. e. 1868, purports 
to have become due, i,e, on 1st Eebruary 1868, 
the considerations of the contract between Plain- 
tiffs and Defendants had, altogether, changed, 
and could no longer be executed in all their con- 
tents. (6) That the Estate Belle Etoile had been 
since August 27th 1867, seized at the request of 
a creditor, whereby the whole of the Plaintiffs* 
claim upon the said Estate has become exigible 
piano Jure and could no longer be either claimed 
or paid by half annuities, and that the Plaintiffs 
could, no longer, subrogate the Defendants in 
all their rights in and upon the said Estate, as 
they were Dound to do. (7) That the Plaintiffs 
did on or about November 28th 1867, purchase 
the said Estate Belle Etoile, upon the sale by 
forcible ejectment which was then prosecuted 
for a price far below the amount of their claim. 
(8) That being first inscribed creditors upon the 
said Estate,- the said Plaintiffs have, virtually, 
paid themselves part of their loan aforesaid, and 
absorbed the whole sale price of the said Estate, 
and that they the Plaintiffs could, no longer, sub- 
rogate the Defendants in their rights in and 
upon the said Estate, as they were bound to do. 
In their Beplication, the Plaintiffs, practicallv 
joined issuer and maintained that they were still 
able to subrogate the Defendants in all their 



98 



DECISIONS OF THE 



[1869 



tights butreserring priority to themBelyes for 
ihe balance of their claims^ as agreed upon. 

We are of opinion that the pleaa put in by the 
Befendimts, in so £» as they deny aU and several 
the fiicts set forth by the Plaintiffo are altogether 
untenable. Whatever may be the legal be^nn^ of 
the other pleas, the facts alleged by the Plamtiffs, 
we find to be true.It is shown oy the strongest evi- 
dence,that the Plaintiffs were creditors, as they al- 
lege to be, and that they consented that the sale of 
the Estate Belle jStoUe, from their original debtor 
to Laure de St Bomain, should take place 
through The Ckylon Company ^ on condition that 
The Ceylon (hmpany should undertake to pay 
three of the annuities that were to become due, 
».e. the annuities for the years 1866, 1867, 1868. 
It is distinctly shown that this was agreed to ; it 
is,moreover, shown that the covenant received its 
execution in 1866 and 1867. 

We have before us a clear undertaking, not a 
promise to pay depending upon certain contin- 
gencies, not even a warranty of payment. The 
contract is a ^rect one, neither collateral nor 
conditional. 

This is so much so, that in the contract settling 
the conditions of advances to be made by The 
Ceylon Qornpany to St Bomain, whilst the Com- 
pany reserves to itself the right of reducing the 
amount of the sum it bound itself to advance, it 
undertakes, in either case, to pay to the Plaint- 
ifis the annuities for the years 1866, 1867, 1868. 

The contract is a very special one i a good 
many annuities are still to become due ; the De- 
fendants do not undertake to pay the amount of 
any three of them out of the whole ; they spe- 
cially undertake to pay the three due for 1866| 
1867, 1868. 

The Defendants, now, decline to pay the last 
annuity ; and the reason alleged is, practically, 
that tne Plaintifis can no longer execute their 
part of the covenant. The several pleas last plead- 
ed, merely reiterate that defence, and the part of 
their covenant which, it is alleged, the Plaintifib 
can no longer execute is that they cannot 
subrogate the Defendants in their rights. 

It is doubtful whether the subrogation,here,was 
intended to have the force of a resolutory condi- 
tion. Subrogation is granted by the law (Art, 
1251) to any creditor who is preferable to him- 
self, on account of his rights, privileges and 
hypothecs, and as Art. (1252) fiffirms the maxim, 
nemo contra se suhrogasse censetur^ the promise to 
subrogate, with priority and preference reserved, 
amounts, in this case, to exactly that which the 
law would have effected on behalf of one creditor 
paying a preferable creditor, and on behalf of the 
preferable creditor for the balance remaining due. 

But it is unnecessary to consider that ques- 
tion, because we find sufficient evidence to lead 
us to what seems to us a very clear conclusion 
even upon the assumption that the condition of 
^abrogation was intended to have resolutory 
force. 

From the fiicts before U0| we are of opinion 



I 



that the subreption was possible on the Ist Fe- 
bruary 1868 ; IS possible now ; and if il ifera no 
longer possible, the Plaintiilii are in nawise to 
blame for an altered state of things, whieh if, 
imputable to either of the parties before the 
Oourt, is imputable to the Demidants more than 
to the Plaintiffii. 

The Estate BelU Etoile haa been seized and 
sold. By the Plaintiffs' laches or fault P In Ho 
wise. Nay, the Defendants were warned by Mr, 
Ourrie one of the Plaintiffs' Board of Directors 
of what was taking place, and the answer receiv- 
ed from the Muiager of Tl^e Ceylon Oom* 
pony IdmUed, under date September 28rd 
1867, runs as follows ; ''Referring to this matter 
of Belle Etoile^ I wish to say that as I do not see 
now,my interference, can, in any way, benefit this 
Company, I have determined to let Mr Jollivet 
do as he pleases, should the Estate come to be 
sold, it might be that an arrangement as to the 

furchaser might be prudent ; but meanwhile, as 
have said, so far as I am concerned, things may 
take their course." 

Now, the Plaintiffs had required that their hy- 
pothecary rights should be secured hj^ the De- 
fendants giving for three years effective assist- 
ance to the Estate. In this letter of 3rd Anril 
1866, Mr Arbuthnot makes no mention of tnis, 
but refers the Plaintiffs to his contract with Lauro 
de St-Uomain, dated same day, and in that con- 
tract. The Ceylon Company bound themselves to 
advance large sums of money to St-Romain for 
three consecutive years. ^ 

But if things were to take their course, and it 
appears they did, the last year's (1868) advraces 
would not be made to St-fiomain who was ejected 
in November 1867, and the Plaintiff^' hypothe- 
cary rights would be, and it appears they have 
been, greatly prejudiced, possibly through no 
fault of the Defendants, but surely no fault or 
even slight negligence can be imputed to the 
Plaintiffs, themselves, who seem to have always 
strictly adhered to their contract. 

But, legally, how does all this change the posi- 
tion of parties, or take away an atom of force 
from the direct undertaking to pay assumed hy 
the Defendants ? 

They say, however^ the Plaintiffs are bound to 
subrogate, and they cannot, now, subrogate. 

Why cannot they now subrogate P The claim 
is not extinct ; it is in full legal force. It niay be 
practically, of no great value, as the PlaintifW 
Wance may practically be of no great value ; but 
it exists nevertheless. If it is true that the 
Plaintiffs have bought the Estate, they owe the 
sale price ; that sale price, as usual, must go to 
the highest privileged creditors ; but be those 
highest privileged creditors who they may, the 
claim against the debtor or debtors for any ba- 
lance, is still there, may be sued for and recover- 
ed, and The CevUm Company^ for their balance^ 
is in no worse legal position than the Plaintifiil 
for their balance, except that whether this turnfl 
out to be of practical value or not, the agreement 
has given, as the law gives, priori^ to the Plain- 



1869] 



COURTS OP MAURITIUS. 



There is not even before us evidence that St.- 
Remain is hopelessly insolvent, he has been ejec- 
' ted r that is a fact and strong presumption that 
his affairs are not prosperous ; out of his other 
assets or possible means of meeting his liabilities, 
we have do data on which to form a judicial opi- 
nion. 

But if he were hopelessly insolv^nf, the market 
* value of the claim for which The Ceylon Company 
has twice received and would now receive subro- 
gation, may be greatly lowered ; but the claim is 
atill the claim it was, so far as its legal position 
goes. Its nature is not altered, though its im- 
portance may be altered ; at each stipulated pe- 
riod of time. The Ceylon Company 'may, for the 
annuities it has paid, as the Plaintiffs may, for 
the annuities still due to them, recover by Judg- 
ment against the debtor or debtors, and have 
such execution as the law permits. 

Even if the claim had disappeared, it has not 
disappeared by the fault of the Flaintiffe. Taking 
into consideration the contract with St* Remain 
(3rd April 1866) specially referred to by Mr. 
Arbuthnot in his letter to the Plaintiffs, the 
Plaintiffs' conditions to give their consent, we 
are of opinion that if either party has to com- 

flain, the Plaintiffs have to complain that the 
estate was not worked for 3 years. It may not, 
we repeat, be the Defendants' fault, at all, if 
some untoward circumstance interfered with the 
execution of that contract, but it assuredly is not 
the Plaintiffs' fault. They have done nothing, 
and the facts discloSe to us nothing to show that 
the direct covenant to pay, specully the 3 an- 
nuities for 1866, 1867, 1868, has been at all mo- 
dified. Neither in any case have the Plaintiffs 
guaranteed the value of their claim, they would 
hardly have done this, when they sought and 
obtained another debtor, besides the original 
obligee, for a portion of such claim. 

When the Defendants bound themselves di- 
rectly, they knew that if the Estate came to be 
sold tor less than the amount of the hypothecs 
inscribed upon it, all such hypothecs that would 
not be covered by the sale price, would, by the 
Judgment whereby the sale price is distributed, 
be ordered to be erased ; and yet they did not 
object to yield priority and preference to the 
Plaintiffs ; now they admit by the plea that the 
Plaintiffs, themselvep, will not receive the whole 
of their claim ; what right have they to complain 
as against the Plaintiffs, if their own share of the 
debt which is postponed to the Plaiutiffo' share, 
is not paid ? 

At all events, we have no evidence before us 
that at the time the Defendants had bound them- 
selves to pay, and they ought to have paid the 
annuity in question, a final '' Ordre " or Judg- 
ment bud swept away the hypothecs not carried 
by the sale-price ; we have no evidence to shew, 
that at that time, even that confessedly valueless 
accessory of the debt had ceased to exist. And 
it is clear law that any fact which happeus after 
a subrogation will not create a warranty not ex- 
pressly agreed upon. The same rule holds good, 
if the subrogation does not take place, because 
the party that should receive aubrogation on 
paying, declines or postpones payment. (Latai^- 
XBE. Dalloz 49. I. 40.) 



We say nothing of a case in which the 
who has to receive payment and give subr< 
would be guilty of laches or negligence. 1 
does not arise in the suit before the Coi 
sides. Art. 2037 applies to cautionary obli 
not to direct ones, and even if this could 
sidered as a cautionary obligation, thei 
be '' le fait du creancier " ; and again 1 
tioner would only be discharged to the e: 
the prejudice suffered through non subr< 
ToTHiBB, obligations, No. 557 ; also S. T 
118, Tboplong, caution, No. 572. 

We should also take notice of an ar 
raised by one of the Pleas. It was urg* 
on account of the sale of the Estate, the 
' claim of the Plaintiffs had become due an 
no longer be paid by annuities. Suppose 
be correct, now does this change the Defe 
undertaking to pay a specific sum ? It vr 
a strange theory that if A owes a debt w 
is allowed to pay by instalmentf, and B 
takes directly and personally to pay the i 
of one of the instalments, that B's ob] 
should be avoided, because, by some contii 
A loses the benefit of paying by instalmen 

This does not touch B's special liability 
by some condition in his contract, or subi 
stipulation, the creditor's right has bee 
jected as to B's liability to him, to som 
contingency. There is nothing of the 1 
the cause before us. 

Upon the facts laid before the Court, \ 
that the Plaintiffs have made out their cas 
no negligence, is brought home to then 
find that even supposing that the obligal 
subrogate carries such force that if it cann 
place the contract must be cancelled, the 
tiffs may, as they offer, subrogate, noin 
find that the debt, whatever may be its 
still exists. We find no express or lege 
ranty undertaken by or binding upon the 
tiffi, and therefore must give Judgment fo 
with costs. . 



SUPREME COURT. 



CONTEATS ET OBLIGATIONS,— MiSE EM" DE 

— DoMiiAGES, — ^Action becokvention 

Circonstancea Wapres lesguelles la Oour a 
que renireprenevr qui, a la suite d*un acco 

,'itaii engage a livrer son travail a une epoq 
tdiney n'etait eft demeure qu*d dater d*ur< 
mathn qui lui avatt ete faite posterieure 
Vepoque convenue, 

L^Employeur qui refuse de payer le travail a 
vrier sur le motif que par la faute de cell 
travail lui a occasionne des dommages, peu 
ver ces dommages dans le cours de Vact 
paiement qui lui est intentee par Vouvrier, 
pas ohlige a cet effet de lui intenter une 
reconventionnelle, 

WOBE AND LABOUB DOKE, — CONTBACI 

Obligations, — " Misb hk BEMSOTa*' 



100 



DECISIONS OF THB 



[1W9 



OifemiutaneM wubr vAiei tha (hurt rvM OuU 
the workjnan leho, eonformably to an agramneni, 
luu hound himteJ/ to haw kit work eomphiad on 
afiaed day, was not " in mora " until ho Jtad n- 
ekoed a "mito en dommre" vhioh had &m» 
$erved upon hm after the date agreed upon. 

The employer who rtfutu to pmf the prieo agreed 
upon to a workman, on the ground ihat by tka 
fault of the Liter he hai it^ered damofet, may 
prove iwh damngee ae a defence to an action in 
paymeniof the workman'* Mlary; he it not bound 
to enter agfuntt htm a erou-aetion to that efeet. 



POCULOT,— Plwntiff, 



UABOUSSEM.-Defendant. 



Before; 
His Honor Sir 0. F. Siuso, Chief Judge and 
His Honor Jdbxios CoLur. 



P. L OiuBTXLUXB,— Of Counsel for FluBtiff. 
A. J. CoLm.— Flaintiff'B Attorney. 

Hod. v. Naz,— OF Coaneel for Defeodant, 
W, HiffXTioir, — Attorney for eame. 



In this oclion the Plaintiff Poculot, an Ed- 
gineer ia Port Louis, sued the Defendant Matous- 
aem, the proprietor of the Estate Antoinette ia 
the District of Famplemousses, for work done and 
matenals provided for the said Estate, from 2Sth 
Kovemberl866 to 2lHt August 1867, or there- 
ftbouta. The Plaintiff concluded for the sum of 
$2,S2(i.lBc. aa the balance of an amount of (2,396 
for said vork and furoiahiDgs, credit being given 
for JI300 paid to account. 

The Defendant pleaded not indebted, "and 
'' farther that under an agreement made with the 
" said Flaiatiff, on the nrst day of July in the 
" year one thousand eight hund^d and siztv 
" seven the eaid Defendant undertook to peri- 
" otm and deliver on or before the thirty first 
" day of July in the year one thousand eight 
" hundred and sixty seven, in complete and aa. 
" tisEaotory working order, certain worka speci- 
" fied in the said agreement, namely lo. Putting 
" up a complete set of vacom pan. 2o FutQ' 
" ianiog iron waggon for sugar, 3o. Putting up 
" the engine for turbines and rarioua other woru 
" more mlly Bpe<»fied in the aaid agreement to 
« to vhich reference iam^e," - 

' " That the eaid I^Bfeadaat did not perform 
*' the said work and did not deliver the same in 
*' working and aatis&ctory order at the time 
" apeiafiea or at any other time, and did not per- 
" form and execute the conditaona of the aaid 
" agreement, to the Defendaot'a damage and pre- 
" judioe of upwards of eight hundzed f ODnda 
" iterling." _ 



The Plaintiff joined Mne on the Sat ;la< and 
aa to the other he said " that the woA wUdi Iw 
" bpeed to make on the Defondinfc Ertate yiaa 
" duly made and delivered, and the aaid ddi*etT 
" duly accepted by the Defendant who hat oaed 
" the mac^iinery put up by the Plaiotifi' on Ut 
" Estate Atttoinotte, ana still naea the aame," 

■' And the Plaintiff further aaya Ihat he hu 
" truly executed the eonditiona of hia aaid agree- 
" ment," 

From the evidence in the caae, it appeared that 
by a " sona aeing privfi " dated lat Jiily 1867, ■ 
contract had been entered into between the p«r> 
tiea, in the following terms : 

" Entre Monaieur Jules Pocalot, Meeanicien* 
" demeurant au Port Louis, d'une part ; £t 
" Monsieur Albert Ferran agissant pourMonidenc 
" Araine MarDuasem,Propri£taire, d'autre part ; " 

" II a 6tA arr£t£ et convena ce qui anit, aaToit : 

" lo. Que Ifr. Julee Poculot a'engage i ltd 
" monteruneinataUttion compute deTuua,e*eati 
" dire inataller toua les hacakdainei^iairopeta 
" etc.,fonctioanant parfititemeDt par le laojaa. 
" de tuyautages et roninets de ehugea et de de- 
" charges, et, en un mot, tons lei aooeasoirea nfr> 
" ceMsuea pour faciliter, le plua poaaible, le trt< 
'* vail de cette inatallation, pour priz et aomme 
" de mille piastres." 

" 2o. A Ini foumir un charriot en far, eomple^ 
" et devant contenir use cuite dea ridea, pone 
" prix et somme (voir le deria entre sea maina.}" 

" 3o. A monter le moteur dea turbinea area 
■' tuyautage n^ceasaire pour prendre, h roccasion, 
" une prisq de vapeur des deux autrea grands 
" gendrateurs ; inataller le monvement des tur- 
" binea : foumir one pompe d'olimentation don* 
'* nant plus d'eau qu'il n'en faudra au multitu* 
" bulaire ; adapter un tuyautage k cette chaa- 
" di^re, pour faire foactionner lee turbines, et 
" faire une reparation au dit multitnbulaire ; pla- 
" cer la pompe servant aujoord'hni it I'alimenta- 
". tion de ce g^nSrateur, au mouvement des tnr- 
" binea pour extraire I'eau de sea fonds ; monter 
" le diviseur ; placer une pompe atteadue pour 
" le puits de Dufay ; le tout pour prix et somme 
". de deux cent soixante piastrea." 

" 4o. Toos cea travaux g^ndralement queU 
" conques, geront livrfs poaitivement le 31 Juil> 
" let 1867, et ne seront pay^a que 60 jours 
" aprk leur miae en marche, et fonctiounant, 
" alors, k I'entidre satisfaction du dit propri- 
"etaire guise reserve aussi le droit de faire 
" venir un autre m£canicien, si toutefoia Mon- 
" sieui Julea Poculot ne ee rendait pas sur I'B- 
'' tablissement quand sa presence sera reqoiae 
" par une simple lettre ^crite par radministm- 
" teur ; et dans ce cas ce dernier declare n'avoir 
" aucune reclamation k &ire k M. Ara^ne Ma* 
" rouBaem,m(ime pour lea travaux commences." 

" Fait double et de bonne foi, Antoinette, ce 
. " ler. Juillet 1867." 

" ApprouTi le present. 

(Signi) A. FxBSAir, 

Poor A. UumosaiK, 

ApproUTJf 

<8ig&<) J, FocQioT.'* 



1868] 



COUflTS OF MAURITIUa. 



The facial of the case occupied a number of the 
mttii^ of the Oonrt and many witneaseB were 
examined on both eides. 

P. L, Chabtkllieb for Plaintiff; I ask no- 
thing but fair remtiDeration for my work aad la- 
bor. My denund divides itself into two branches; 
. the one for what I did under the contract, the 
-other for labor and fumishiDgB not embraced 
within the agreement. The latter amounts to 
aboat ;S1706 and it has been proved by the wit- 
<neHieB Bourdin & Fran^oiB, as not included in 
the written agreement, and the same witneeseB, 
along with the witneaa Ferriol, Btate that the 
pricM charged for them are reasonable. The De- 
fendant admits Bome of them and disputeB the 
vest ; but I submit that we have eetabUahed the 
irhole of them. We wera not bound to supply 
any materials, under the contract -, our duty was 
only to put up the materiala fumi^ed to us. 

The leading ground of defence ie, shat the work 
was not completed by the Plaintiff. Put the first 
crop of 200,000 lbs. was actually made with this 
machinery and the subaequeat crops have been 
also made with it. Thia proves not only that the 
machinery was pat up, but also that it was well 
done, Mr Poculot spared no expense to do this. 
He employed Mr Boardin, a gentleman of great 
skill and experience, to superintend the opertt- 
tion. His testimony and that of our other wit- 
nesses Messen, Neptune and Obavrymootoo, is 
conclusive. The Defendant's witnesses, the 
Messrs. Honning, admit that the work was well 
done and that if a little time had been allowed 
to rectify some trifling defects, no difficulty could 
have arisen betvreen the parties. 

It is said, on the other side, that the work was 
not finished within the time agreed upon. No 
doubt the contract was very Btriagenb on this 
head ; bat the evidence shews that the Defendant 
waived the point of time and enlarged the period 
of operations. This was only reasonable when 
there was so much important and heavy work to 
execute. But, in truth, we coold not get on with 
the work, as the materials were not supplied to 
UB in proper time. 

The Boiler did not arrive on the Estate till I8th 
of July, and it was only on the 2nd August that 
the neeessary mason work was completed. 

Hugh Hanning tells us that Perran stated to 
him that the Defendant had enlarged the time for 
finiahiug the work, and this is CBtablished by the 
fact that during the month of August there 
were various written orders from the Estate to 
UB asking lu to send certain pieces of machinery 
&c., etc. See particularly Perran's letter of 25tfa 
Anguat, 

The Defendant's " mise en demeure " of 2nd 
September shews that enlarged time had been 
^Ten. We were then merely asked to deliver 
%e work. Nothing was therein said as to 
the legal delay haviug expired. Suppose we had, 
within 48 hours, delivered the work as therein 
required, nothipg could have been said. In &ot 
it woa really fimahed ; only some details remained 
to be done. 



If Bonrdin had not been summanly diemiased. 
all would have beenpntto rights. He never had 
a fiur opportunity to put things right. 

CarboneVi case in 1868, is quite in contrast to 
the preient. There the work was proved to be 
badly done ; here it is just the reverse. 

I admit there is a contradiction in the evi- 
dence aa to the machinery having worked well 
and produced a wife (batch) of sugar, particularly 
in what Perran and Bourdin say. But the for- 
mer is indirectly interested in the case, and tho? 
the latter has not yet been paid for his trouble, 
that cannot affect his testimony. Hugh Hanning, 
it is true, swears that there could have been no 
" cuite " in the sugar pans, and Perran says the 
same, while Bourdin swears positively that there 
was. Thia latter is direct evidence, and it is to 
be noted that Hanning was on the spot only 
twice, viz : on 6th and 19th and on the latter oc- 
casion, only for a quarter of an hour. The other 
Hanning [Bobert) was only there on the 6th, 
2 days after the pans were tried. It ib quite 
a mistake in the statement of some of the wit- 
nesses when they say that there was no " Jn- 
melle " for the sugar waggon. As to the wag- 
gon, itself, (Chabiot), we never got a fair op. 
portunity to test the article, and this observation 
runs thro' the whole case and applies to the 
whole machinery. It is said that the skilled 
workman Messen was withdrawn by us from the 
work, prematurely, but by that time, in point 
of fact, things were really completed ; only a few 
details remained to be done. 

The claim of dameges attempted to ba set off 
against our demand is inadmissible. Por, ths 
losses alleged are merely indirect and consequen- 
tial, which are never allowed. Selwyn, ifiri 
Prius, ia loco. How could I he prepared to 
rebut such general claims of loss ? All that wiui 
decided in Carbonel's case in 1863, was that the 
Defendaut might have brought a suit in damages 
against me if he pleased ; hut he has not done 
this. Counsel farther referred to Zacsabice, mite 
en demeure, p.(>47, note 3. TOULLIXB, Yol. 6, No. 



Hon. Y- Naz for Defendant. (Reads Declara- 
tion and Flea.) The ^sittons which I maintain 
are these: lo. The Plaintiff did not execute the 
work within the delay stipulated ; in fact, he ne- 
ver completed it. 2o. It was not in time to pre- 
pare the crop for which the machinery was order- 
ed, as the Plaintiff knew, all along. 3o. By this 
failure of the Plaintiff, damages, &r above the 
amount c'aimed, were sustained on the authority 
of Garbonel't case. I can set off the damages X 
suffered in answer to a demand for payment of 
bad machinery. It was an express stipulation in 
the present case that the work should be com. 
pleted by the 31st July (reads last clause of con- 
tract.J This is, in law, the most peremptory of 
clauses G. 0. 1,139 and 1,146 to be read together. 
No ftOK en demeure was required. Lasoubibbs 
on eoniraeU, ad art. 1,188. Ncs. 7 and 8. The 
Civil Code, in opposition to the Boman Law, re- 
quires such a specific article fixing a definite 
time, as the mere elapse of the tefm is not 
enough. Tovllter, vol. 6, No. 251, MrBaC- 
tray's evidence cleaily shews that the crop which 



102 



DECISIONS OP THE 



[1869 



•hcmld luife been b^gan in July, only eommenced 
on 19th September and e?en in the middle of 
Ko?ember ; the Messrs. Manning tell us that 
workmen were required to be kept on the Estate 
to keep the mill going, and owing to the defects 
in the machinery, the crop was not finished till 
March (See the evidence of L' Amour, Ferran and 
the two Hanniog'S') A quantity of about 200,« 
000 Ibi. of sugar was lost by the delay, equal on 
an a?erage. to ^S a cwt. The witnesses Ferran« 
Lebon, Ferriol and Baffray, have spoken to this. 
The object of the Defendaot was to unite the Es- 
tates of Antoinette 8f Lueia iuto one & to sell oflf 
the machinery on the latter Estatei as the new 
usioe would do all the work. He had sold the 
old machinery for $ 13.000 but as we could not 
deliver it, the contract bad to be broken. The 
Plaintiff made the contract for us with the En* 
gineers in England & he prepared all the plans 
etc. so if he forget any thing to make the work 
complete, he has himself to blame A must take 
the consequences^ We were fully entitled to re- 
ly upon his zeal and ekill in preparing & comple- 
ting every thing. Tboploko, ouvrage^ 981 : yet, it 
is clear, the piping ordered was useless, and so 
were the leather straps. It cost us $ 1. 000 to 
correct the blunders of the Plaintiff and set things 
to rights. The usine, if it had been in good 
order could have made lbs. 500.000 a month, as 
it was only 55.000 were made in the month of 
August. The result of the other months was 
equally unsatisfactory. It is true that on the 
other side, four of the Plaintiff's workmen have 
come forward h stated that the work was well 
done. These are Ferriol, fiourdin, Neptune and 
Messen. But their interest is to support the 
Plaintiff, for, they have not been paid for their 
work & have lodged attachments in our hands. 
Bourdin has committed the grossest mistakes, to 
say the least, in his evidence. He says Hanning 
was present when the machinery was at work & 
expressed his satisfaction with it. This is abso* 
lutely untrue. Again, the same witness state that 
a cv,ite of sugar had been made in the Pans, but 
this was physically impossible, as both the waggon 
(chariot) and the trough (jumelle) were wanting. 
If a cuite had been made distinct traces of it must 
have remained ; but the witnesses tell us there 
were no traces. In fact, the Plaintiff neglected 
the work. He sent Bourdin, but not till the 
18th July. The dates, iiv the account sued on, 
speak for themselves. They begin on 16th July 
and don't finish till 80th Aug. If the work has 
been completed as the Plaintiff attemps to shew, 
what earthly motive could the Defendant have 
had to send a '^mise en demeuie " and not 
go on with his crop which was spoiling on the 
ground ? The efiect of this '^ mise en demeure'' 
ran from the date at which the work ought to 
have been finished, not from the date of the 
notice, itself. Toullieb, vol : 5, No. 229. La- 
BOMBiiBE, ad art ; 1146,7, note 3. The only de- 
lay granted by us was the liberal one of a week, 
as we did not wish to stand upon the cuntract in 
all its rigour as to time. 

There is a charge in the PlaintiiPs account for 
what he calls extra furnishings beyond the con- 
tract. But though the sum is not very great, in 
principle such a demand is inadmissable. We 
employed the Plaintiff as a man of skill to order 
all the articles from England. If he omitted some 



articles, he has himself to blame. Sb bugainad 
that for a net and fixed aom ; the wbde work 
should be completed, and we cannot be called oa 
to pay more, otherwise a planter would never be 
Bure'^that he would get the machinsfy be wished 
for the sum which he stated and which he ooald 
aflbrd. Besidea,the Plaintiff oapricioiialy attend 
the puUias that were sent out nom home, whidi 
had to be restored by Hanning. He also fixed 
the pans so low that the ^chariot" coold not get 
under them, and a complete alteration thus came 
to be required which cost a considerable ram of 
money. 

The Phuntiff was liable iot^'fimU l^gk^" 
Tboploko, ouvrage No. 981. Aa to the dami- 
ges which he contended he was entitled to set off 
against the Plaintiff's demand* Counsel submitted 
that the loss caused by the Plaintiff'B fidlore to 
finish at the time agreed upon, the expense of 
working two sugar houses instead of one, the 
impossibility to sell off the machinery upon the 
estate Luda^ which the Defendant had arranged 
to do, and the loss of crop, amounted to much 
more than the whole of the Plaintiff's demand. 

JUDGMENT. 

This is an action brought by an Engineer 
against the owner of a sugar estate, for work 
done and materials supplied for the benefit of the 
Defendant's property. The Plaintiff Mr. Poculot 
is an Engineer in the town of Port Louis, and 
the sum he demands from the Defendant Mr^ 
Marroussem the proprietor of the Estate '* Anr 
toinette " in the District of Pamplemousses, is 
^2,396.15 the balance of an account of $2,696.15 
the difference, viz : $ 800, having, as is stated, 
been paid to account. 

The first date in the account relating to the - 
matter now in dispute, is 16th July 1867 and 
the last 21st August of the same year. It has 
been shewn in evidence that on the 1st July 
1867, the parties to the present action entered 
into an agreement, in the form of a private deed, 
whereby the Plaintiff undertook, first ; to set up 
a complete set of vacuum pans in the sugar- 
house cf the Defendant's Estate at Pample- 
mousses, with all the accesaories necessary for 
their complete and effective working, for the 
price of <8'1,000. 2nc%: To furnish an iron 
waggon (chariot) for the sugar-house, sulEclent 
to contain a batch (cuite) of sugar from the va« 
cuum pan, for the price mention^^d in a certain 
'* devis " (estimate) but which appears to have 
been mislaid. 

It may, here, be noted that in his account the 
Plaintiff asks, under this head, the sum of $ 430 
as the price of the said waggon, but the Defen- 
dant has only admitted the amount of t 250 
which, he says, was the price actually agreed 
upon. We shall see in the sequel what proof 
has been adduced on this point. 

Zrdly To set up the machinery for moving the 
turbine?, to place a large feeding pump for one 
of the Boilers & to execute various other pieces 
of work in the machinery of the Defendant's 
Sugar House, fthe words of written contract re- 
ferred to) for the price of | 260. 



1869] 



COURTS OP MAUBITTUS. 



108 



itkl^. In the last clause of the agreement, it 
' vaB itipulated that the whole works should be 
' delivered OTer, poBitivelf on the 80th July 1867. 

It is upon thiB agreement that the Plaintiff 
Ibnnda ttw lai^^ portion of his.demand. But 
-at the same time, he has stated in hia ac> 
count a raiistj of items amounting to $ 810,16, 
OF thereby, which he Gays he is entitled to add to 
the BDms due to him uader the agreement, being, 
as be alleges, for certain work executed not 
covered, by the term of the written contract. 
All this, it must be remarked, is without referen- 
ce to the first item in the account that of $ 21 
under the date of 28th November 1866. This 
item has nothing to do with the present dispute, 
and the Defendant admits that it must be paid 
by him. 

Such being the nature of the PlaintilTB demand, 
lob uB now see what is the defence relied upon 
by M. MarouBsem. 

The leading Fleas maintained by the Defen- 
dant,on Becord, and in the course of the leng< 
thened disonstion which the case has undergone, 
may be resolved into these propositions ; 

lat That the FlalntifC failed to perforin the 
contract within the time limited or within the 
extra time which was given to him ftir grada by 
'the Defendant, & that, m point of. fact, the Plain- 
tiff never at any time delivered over the work 
complete, the Defendant being obliged to call in 
other Engineers to rectify the Plaintiffs blunders 
and to flnish theoperationsnecessary toput the 
machinery in efficient working order: that the di- 
rect and immediate cost of this failure on the part 
of the Plaintiff, was a chaise by these other en- 
gineers, of about ^1000 which the Defendant 
has paid to them, and that the whole loss and 
damage which he has sustained by the failure of 
the Plaintiff to complete the vrork in due time, 
amounts to $4XiOQ and more than extinguishes 
the Plaintiff's whole demand- The Defendant 
has further contended that in any view, the extra 
charges of the Plaintiff or many of them, at least, 
would be inadmissible in law, as they are covered 
by the written contract and their value included 
nndeF the price therein agreed upon. 

We shall consider these pleas and some subor- 
dinate ones of less importance, in their order. 
And first as to the defence that the work was not 
completed at the time stipulated, or indeed at 
ftll, by the Plaintiff, what is the fact here P 

In the original " sons-Being prive " it was co- 
venanted that " totts cea travataa, ginhalement quel' 
c<mqi)M, levont livrh potiHvement le 31 JuUlet 
1867." It is admitted by the Defendant, (see 
Ferran's evidence) that a further term of one 
week was expressly granted in addition. This 
would bring the time finishing the work to the 
8th of August. 

K ow. in proof that the work was not complet- 
ed at that date, we have, among other circumetan- 
c« which will be noticed by and bj, the fact that 
the Defendant served upon the Plaintiff a mito 
m derMme long after that time, viz. on the 2nd 
September, cJling upon him to complete the 



work, within 48 hours, and deliver the same in 
felt working order, and in default thereof to pay 
all loss or lumage accraeing from the non-execu- 
tion of the agreement. On the service of this 
legal demand, the Plaintiff with his workmen lefb 
the Estate and neither he nor they ever returned. 
Tbe work was coi^leted by other Engineera 
called in by the Defendant, vis : the Messrs. 
Hanning. 

It is said, no doubt, by some of the Plaintiff's 
witnesses, that, in point of effect, the work waa 
virtually completed at the date of the serviceof 
the " miie en, demture " and that all that was 
required was merely same farther attention to 
certain details, and that If the Plaintiff had been 
allowed the short time usually found to be neccE- 
sary after the setting up of such machinery to 
watch its working and correct the trifling defects 
which often occur in newly erected Sugar Houses, 
eveiy thing would have done well and noqueBtion 
would ever have arisen between the parties. 

We think it is probable enough that if the 
time which waa occupied by the Messrs. Hanoing, 
tbe new engineers who were called in by the 
Defendant, after he served hia "otmb en demiure," 
in examining the machinery, studyiog its defeets 
and patting it in thorough working order, had 
been given to the Plaintiff, the same result wouFd 
have followed and the work would have been 
effectively finished by the Plaintiff j for, Robert 
Hanning tells UB fairly and candidly that " the 
" machinery waa well enough put up (by Poculot} 
" if it had been fiaished. We had nothing to take 
" down of what Fuculot had done, only to com- 
" plete. If Poculot had been allowed to go on, 
,' he would have been able to do what we have 
" done." 

But, undoubtedly, the work was not finished 
at the stipulated or prorogated date, or even 
when the " mite en, demeure " was iaeued, and 
accordingly we find the Hannings making a 
large charge for completing every thing. Those 
gentlemen examined as witnesses have sworn as 
follows : 

Hugh Hanning. " From the 6th to the 19th 
September we had to work almost night and 
day to repair and [.complete what Poculot had 
undertaken to do. Daring that interval we 
bad to work both on the Estate and at our 
Works- Establishment. We had two work- 
men on the Estate, and at our Works -Es- 
" tablisbment the works were distributed among 
" our several workmen. We used the greatest 
" Bpeed we could, in completing those works. 
" We were then busy with other works. I 
" think no other Engineer Establishment wonld 
" have completed tbe work more quickly than 
" we did, taking into consideration the proximity 
" of our works to the Estate Antoinette ; the list 
shewn me is the exact account of the work 
" done b; us on account of the patting up of the 
" machinery of Poculot. I charged tbe Estate 
" S46S for tbe above works. The whole of those 
works referred to the boiler and vacuum pans 
' and are included in Poculot's undertaking 
' marked A-, and were indispensable for com* 
pleting the fitting up and for making the crop,') 



104 



DECISIONS OF THE 



[18(» 



M 
tt 
€t 
€t 
€t 
tt 
tt 
U 
tt 

•i 

€t 
tt 
tt 



And Bohert Hanning: *' It muBt hare taken na 
nearly 20 days in finiahing the work mentioned 
in Foculot's agreement and not completed by 
him before the machinery and vacuum pan 
were at work. The crop could actually begin 
on the Estate, about the 14ith September. 
From the 6th to the 14ith, we were constantly 
at work to allow the Estate to begin the crop ; 
we used all possible speed working the whole 
day and later. I dont think Foculot could have 
finished in a shorter time than we did. We had 
to do some of the works in our shop which is 
only 3 miles from Antoinette, which allowed 
us to do the works quickly." 



In arriving at the conclusion that the work was 
not finished, even at the date of the mise en deme* 
urSt we do not forget that the witness Bourdin has 
deponed that thej^t ^* cuite " of sugar was made 
on the 4ith September, the day on which he got 
formal notice of the dissatisUiction of the Dc' 
fendant and on which he, Bourdin, left the esta- 
blishment ; that the sugar then made was placed 
in the coolers and that he was pretty well satis- 
fied with the operation. But the great weight of 
evidence is quite the other way. The witnesses 
Ferran, Hugh Hanniog and Robert Hanning, 
declare that no sugar was made till after Bour- 
din left the Estate and not till the 6th Septem- 
ber or somewhat later, and they give substantial 
reasons for the fact being as they have deposed, 
viz. : that the state of the machinery was such, 
and among other things the defects in the iron 
waggon were so great that sugar could not have 
been made at the time spoken of by Bourdin, and 
they saw no traces of the operation which could 
not haye escaped their notice if it really had been 
performed. 

We are quite satisfied, on the evidence, that 
the work was not completed, even at the date of 
the tnise en demeure, viz. the 2nd September 
1867. 

We may here notice a matter which engaged 
a goad deal of the attention of parties in the 
course of the trial, viz.- the question of whether 
in the present case the mere lapse of the term at 
which the work should have been completed, 
would entitle the Defendant to insist, at once, 
for his claim of damages. It was conceded, on all 
sides, that the old maxim of the Soman law dies 
interpellatpro hominey has not been admitted into * 
the Civil Code and that consequently in the ordi- 
nary case, at least, the party wronged requires, 
before entering his suit in damages, to take some 
active steps, by way of a summoos or other equi- 
valent act, to put his opponent in legal mora. 
C.C, 1139. • 

Some argument was also submitted to us on the 
part of the Defendant, tending to shew that the 
present case would really fall within the latter 
part of this article of the Code combined with the 
article 1146. The articles referred to run ver- 
bally as follows : 

1139. *' Le debiteur est constitue en demeurOf 
Boit par une sommation ou autre acte Equivalent, 
Boit par I'efiet de la convention, lorsqu'elle porte 
que sans qu'il soit besoin d'acte et par la seule 
Echeance du terme, le debiteur sera en demeure," 



1 146. ** Les dommagea et intirAts ne aont dig 
que lorsque le debitenr est en demenre da lempltf 
son obligation, excei)t6,n&uimoin84or8qae la chosa^ 
que le debiteur s'Etait oblige de donner oa de fiure^ 
ne pouvait dtre donnte ou faite que dans on cer- 
tain temps qu'il a laissE passer.'* 

It was contended that the parties to the ooa« 
tract, in the present case, had clearly in view,, 
when they entered into it, that the machinery to 
be set up was required for the coming jorop, and- 
th^t, therefore, the case was within the laat part- 
of the latter article and consequently, if the ma- 
chinery was not duly delivered over at the date- 
stipulated, it was too late for the object intended^ 
and the loss and damage could be sued for with- 
out any preliminary formal notice or sununons. 

On these questions it does not appear to us to 
be necessary that we should give a formal opinion^ 
for the decision of the case does not, we think, 
depend upon their solution. It will be observed 
that we are in presence^ here, of a formal mise en 
demeure preceding the raising of the present amt, 
and so, in any view whatever, the I^ai effect of 
the special words in the agreement, itself, might 
be, the Plaintiff has been formaliy put inmord and 
the Defendant, so far at leasti must be held to 
be rectus in curia. 

But, at the same time, it must be remembered 
that the question still presents itself for determi- 
nation from what date are we to hold that the 
party was in mord ? Is it from the 8th August^ 
when the additional week admittedly granted 
to the Plaintilff, expired, or from the date of the 
mise en demewe, nz : the 2nd September follow- 
ing ? 

Now, this question, in the circumstances which 
actually occured, admits of a ready solution ; for, 
the Plaintiff, after the 8th August and down to 
the date of the mise en demeure, continued the 
work with the full knowledge, approbation and 
consent of the Defendant. This is quite estab* 
lished by the evidence in process, both documen- 
tary and parole. (See, inter alia^ the various notea 
sent from the Estate to the Plaintiffs workshop, 
dated 1st, drd, 15th, 22nd and 25th August 1867, 
respectively.) It was not till the 2nd l^ptember, 
when the mise en demeure was issued, that the 
Defendant annoyed, apparently, at not Ending 
the work completed on a certain day when he 
paid one of his usual visits to the Estate, and 
wearied out by the long delay, called upon the 
Plaintiff, formally, to deliver over the machinery 
completed in 48 hours, the result of which was^ 
as we haye already seen, the departure of the 
Plaintiff and his workmen and the abandonment 
of the work in its unfinished state. The period 
for the performance of the contract had been en- 
larged first by the express and then by the tacit 
consent of the Defendant, down to the date of 
the mise en demeure. Any claim for loss and da-^ 
mage owing to the non-completion of the work 
can, therefore, only date from the 2nd September 
when the Plaintiff was, for the first time, put em 
demeure. 

To free himself from the claim of damages for 
not completing the work, the Plaintiff has put. 



1869] 



COURTS OP MAURITIUS. 



105 



forward two pleas which it will be conveDient to 
notice in this part of our Judgment. 

In the Ist place he has alleged that the delay 
was caused by the articles of machinery not hav- 
ing arrived in time from Englaad, to enable him 
to put them up within the delay stipulated. To 
this the Defendant has answered that the Flain- 
tiff bad, himself, made all the necessary arrange- 
ments with the persoDS in England who were to 
supply the machinery ; that be had taken the 
whole charge upon himself, having been employed 
at a high rate of remuneration to do so, and we 
find on the Plaintiff's account a charge of no less 
than $ 1,000 for preparing the plans and specifi- 
cations of the various articles required, and send- 
ing the order to England. 

It, therefore, might well be that the non arrival 
of the articles, in time, would not have been, in 
law, a valid exduse for the non completion ot the 
contract of the stipulated term in a question be- 
tween Mr Poculot and Mr Maroussem,the Plain- 
tiff and Defetidantin the present case ; but the 
fact of the late arrival of the machinery has not 
been proved by the Plaintiff. On the contrary 
looking at the evidence, generally, and particular- 
ly at what the witnesses Bourdin,Lennet, Ferran, 
and Maissin, have deposed, we are satisfied that 
all the necessary pieces of naachinery had reached 
the Estate in time to have admitted of the due 
completion of the work, within the time agreed 
upon, or, at all events, before the date of the 
taiseen denieure of 2nd September which put the 
Plaintiff in legalvnord. 

j^gain the Plaintiff has alleged, as an excuse for 
his procrastination, that the necessary mason- 
work on which the machinery was to be baeed 
and partly enclosed, was not completed in time 
to enable him to fulfil his contract; but this, 
again, has not been proved in evidence. We think 
the testimony, particularly of the witnesses Bour- 
dioy Maissin, the Hannings, L'Amour and the 
mason Potin, shew that the Plaintiff was in no 
way hindered from completing the work by the 
want of the necessary masonry. 

Potin has sworn that all the mason-work was 
finished by the 81st July ; but be this as it may 
and it is obvious that as to adding the neces- 
sary piping to Boilers^ Vacuum pans, etc., it is 
not required that all the surrounding mason-work 
shall have been completed before beginning the 
pipings. The operations may, to a certain ex- 
tent, go on concurrently, and some portions of the 
mason-work can very well be executed after the 
piping is completed. So it is not necessary 
that all the mason-work should be completed 
before the Engineer can proceed to put up his 
sugar machinery. On the whole, we are quite 
satisfied that there is no evidence to support this 
plea of the Plaintiff : that he could not get on 
for want of the necessary masonry. 

Having thus, so far, cleared the grounds, there 
is, still, one question of a preliminary or prejudi* 
cial nature which must be disposed of before the 
question of damages can be determined. It will 
be observed that it is not the Plaintiff who is 
here maintaining a claim of loss and damage for 
Alleged violation of the contract to which he has 



been a party. It is, on the contrary, the Defen- 
dant who alleges that he has sustained great loss 
by the breach committed by his opponent and 
wishes in this suit to set off those loss against the 
Plaintiffs claim of payment for work and labor 
done and materials supplied to the Defendant's 
Estate, The competency of the Defendant taking 
up this line of defence in the present suit, has 
been challenged by the Plaintiff, but we think 
without reason, f r, it is consistent with fair deal- 
ing with the established rules both of this Court 
and the Courts in Europe, that the Plaintiff, in 
a case like the present, must shew that he exe- 
cuted and completed his contract in a proper 
and workmanlike manner. The Defendant, whea 
called upon to pay such an account as the pre- 
sent, for skilled labor, is ertilled to say that 
the work has been badly done, or not done 
at all ; and without the necessity of a sepa- 
rate and substantive cross-action, may, at once, 
and in his defense against the demand of the 
Engineer, shew that the loss directly arising 
to him is, at least, equal to the amount for which 
the latter has called the employer into Court. 
Of all this the workman cannot complain ; the 
Court would protect him against any chance of 
unfair surprise by confining his opponent to his 
claim of direct and positive loss arising out of the 
workman's failure to do his duty. No doubt the 
employer may competently bring a cross-action, 
if he pleases, for the whole of his claims or 
for the excess over and above the amount of 
the Engineer's demand ; but it obviously tends 
much to the shortening of litigation and the con- 
sequent saving of delay and expense to allow the 
question of direct loss and damage sustained by 
the Defendant thro' the fault of the Plaintiff, to 
be inquired into and set off in the suit for pay- 
ment of the workman's account so far as may be 
necessary to compensate the demand of the lat- 
ter The Court in the case of Carhoneh JBourdin 
fils Sf Co, V Qeffroy and ors., in 1863, (Piston's 
BeportSf 1863, p. 34,) had occasion to notice and 
to give effect to this principle. "What kind of 
damages the Defendant will be entitled to and to 
what extent he can in law be allowed to press 
his demand on that head, is another question 
altogether which we shall have occasion to con- 
sider immediately ; but in the meantime we enter- 
tain no doubt that the Defendant may competently 
in the present action, set off in defence his claim 
for loss and damage occasioned by the fault of 
the Plaintiff. 

The damages which the Defendant asks in the 
present case to be allowed to state against the 
PlaintifTs demand are of two sorts : the one 
more direct than the other.* The first part is 
made up of the sum which the Defendant had 
to pay to the Messrs. Banning for the comple- 
tion of the work i. e: a sum which collecting 
all the items together, may be stated at SIOOO. 
The prices charged by those Engineers appear 
to have been very moderate. Ilugh Uanning 
has deposed " that they (the prices) are below 
••our ordinary prices which we reduced on ac- 
" count of Mr* Poculot, because we were told, 
** at the time, that Poculot would be sued in 
" recovery of the amount. We might have 
*^ charged three times the amount and have got 
** it ; for. the work was very pressing, "We had 
" to work day and night" 



}06 



DECISIONS OP THE 



[188» 



The second part of the DefendaDt's claim in 
damage arises, as he alleges, from the non-com* 
pletioo of the work by the Plaintiff obliginfj^ him, 
the Defendant, to make the crop of 1867 at 2 
Sngar houses instead of one, including the ex- 
pense of putting the Sugar House of Lucia in 
repair, imposing upon him the cost of additional 
laborers, fuel, etc. He also says that the delay in 
commencing the cutting o( the crop, resulted in 
a loss of a considerable quantity of Sugar, and he 
farther adds that the impossibility to sell off the 
machinery of Lucia Estate, as it was required to 
make part of the crop, the new machinery not 
having been finished in time, caused a consider- 
able pecuniary loss to him. Of all these grounds 
of alleged damage, it might possibly be said that 
they are grounds of what is usually called in 
law indirect or consequential damage. But 
without attempting to define what class of 
damages those claims might belong to in legal 
logic, we think that the difficulty in the way of 
allowing damages beyond what the Defendant had 
to pay to the Messrs. Hanning, is insuperable. 

We do not find in the case a sufficient amount 
of clear and direct evidence that any further da- 
mage was actually and really sustained by the 
Defendant. It is true that respectable witnesses 
have stated that they believed that the Defen- 
dant must have sustained considerable loss and 
damage generally, from the non completion of 
the work at an earlier date ; that it is reason- 
able to suppose that working two sugar houses 
would cost more than working one ; that more 
men were actually required ; that the caries 
were really ripe for cutting, before the ma- 
chinery was ready to pass them, and that con- 
sequently a lo8S of yield must have arisen, 
which they estimated al a high figure, but 
we do not find such cftar and distinct evi- 
dence of positive facts known to the witnesses 
and resulting in Iqss and damage to the Defen- 
daLt as a Court of Justice must require. It will 
be remembered that in the circumstances here, 
and looking particularly at the delays granted 
by the Defendant to the Plaintiff, the main 
ground of damage against the Plaintiff must be 
restricted to the loss arising from the 2nd Sep- 
tember to about the 14th of the same month, 
i, e„ speaking generally, the time required by 
the Hannings to put every thing in good work- 
ing order. The Plaintiff must make good the 
direct loss thence resulting, i. e., the amount of 
the Hanniogs charges for doing what the Plain- 
tiff ought to have done ; but we are not in a 
position, for the reasons above stated, to allow any 
further or broader damages. 

We have, in the last place, to consider the 
additional charges which the Plaintiff makes as 
extras beyond the deed of agreement of Ist July 
1867. It is obvious that the burden of establish- 
ing very clearly those extra demands must be 
laid upon the Plaintiff, otherwise very great in- 
justice might be done to the Defendant and 
Planters in his situation. 

What is the case here ? A Planter has con- 
tracted with an Engineer that the latter shall 
prepare and send to Europe a complete descrip- 
tion and specification of a set of sugar-machinery 
costing a certain sum of money to be sent out to 



the Colony, and to be, there, set up hj the En« 
gineer who is to receive a certain fixed flam for 
his whole trouble in the matter. At the end 
of the day, the Engineer sends in an account 
for extra, which, be says, were not embraced in 
the original contract, and calls upon the Planter 
to pay a considerably lazier sum than he bar* 
gained for. There might be no end of soch de- 
mands, and a Planter who had laid aside a oer<r 
tarn definite amount of money for bis new ma- 
chinery, perhaps all that he found he could, 
with prudence, devote to such a purpose, might 
find himself quite unexpectedly caU^ upon to 
meet fresh and indefinite calls for additional ar- 
ticles of machinery and alleged extra work done 
by the Engineer. Such demands require to be 
very narrowly watched by a Court of Justice. 

In the present case, looking at the general 
pinciple to which we have just alluded, and the 
evidence of the witnesses, particularly that of 
the Hannings, as to what items the original 
contract must, technically, be held to bare em- 
braced, we are cot prepared to go beyond the 
amount admitted by the Defendimt, viz : 9616.15 
and a charge of $4Xi in the account of the Han- 
nings, and which Hugh Hanning says ought not 
to be paid for by the Plaintiff. The aggregate 
of those deductions is ff 656.15. Taking the 
price of the iron-waggon in the contract at $430, 
as spoken to by the Plaiotiff^s witnesses, without 
contradiction, we have in the contract the 
sum of $ 1,770 to which add the above sum of 
$ 656.15, making together the amount of 
$ 2,426.15. From this, deducting the account 
paid to the Hannings, or $ 1000. we have the sum 
of $ 1.426.15 for which we find the Plaintiff 
entitled to Judgment. 

As to costs, it must be remarked that the 
Plaintiff has not been entirely successful in his 
suit. On the other hand, the Defendant has made 
no tender of any part of the Plaintiff's account, 
and has contended that in the circumstances the 
Plaintiff was entitled to recover nothing against 
him. We think the matter of expenses will be 
equitably disposed of by allowing the Plaintiff 
one half of his costs as they shall be taxed by tbe 
Master. 



BAKRRUPTCY COURT* 



Faedlitb,— Peeuvb. 

Lorsqu^un failli notifie son intention d*atiaquer U 
Jugement de mise enfaillitey c^est au demandewt 
dprouver, de nouveau, Vetat de faiUite, et non au 
failli a prouver que ce Jugement prononcd confre 
lui est base sur des faits errones. 



Bankeuptct, — Teial, — EyiDBBrcE, 

When the Bankrupt undertakes to shew came 
against the validity of the trial of Bankrupted, 
the Petitioning creditor is called upon to heffm 
and adduce aU the evidence on which he meam 
to rely in order to establish the trading, peH^ 
tioning, creditor's debt^ and act of Bankruptcy^ 



1809} 



COURTS OP MAUBirros. 



Bahkbijptoy HoHoai EOUESSAET. 



A. SoHAir, — Attorney for the Bankrupt. 



27th September 1869. 

HonorS SiODeBtart, alleged to be a diHtiller.wae 
adjudicated a Bankrupt on the aecond AugoBt 
1869, on the Petition of one Joseph Viger, alteg' 
lag himeelf to be the Baeignee of one Louis Alcide 
Henry Andre, by an act under private eignaturea 
of the 28th July, dulyregiBtered. 

The duplicate of the Order of adjudication was 
Ber?ed on Honore Boueaaart in person, on the 
9th September now last past. HonorS Bouesaart 
gave notice to the parties interested, of his in- 
tention to ahew cause to the Court of Bankrupt- 
cy against the vatidity of such adjudication, on 
Monday the 13th September, when, by consent 
the hearing waa adjourned to the 20th Septem- 
ber instant, when K. FeliiSbba.u moved on be- 
half of the said B. Roneaaart, that the adjudica- 
tion made on the Petition of the said Joseph Yi- 
ger,allegiDg himself to be a creditor of H. Rouea- 
nrt be annulled on the several grounds referred 
to in hie notice of the 9tb September. 

L.BoiriLLABD, in support of the adjudication of 
Bankruptcy put in the Judgment of adjudication, 
when he waa called upon by B, PELLEttEAr to 
eetablish the eoundnees of that Judgment, by ad- 
ducing proof of the existence of the three condi- 
tions required by law in support of an adjudica- 
tion of Bankruptcy, viz .- lo. the exietence of 
the Petitioning creditor's debt ; 2o. the trading, 
and 3o. the act of Bankruptcy alleged against 
the parties adjudioated a Bankrupt. 

lo this call, L. Bouili^lbd demurred, and com- 
plained of the attempt made to throw upon him 
the otm» prohattdi which the law has rightly laid 
to the charge of the party adjudicated a Bank- 
rupt, 

This point being quite new to me, and never 
taving been taken before in the Bankruptcy 
Court, to my knowledge at least, I neceesarily 
took time to consider the point raised. On pon- 
dering over it and aearching for authorities on 
support of either view of the point raised, I was so 
fortunate to fiud in Fontblanqui's Bakkbupt- 
OXREFOBTBof I85I, page 212, the very case 
dted by AaoHBor.D in support of the objection 
taken by £. Pellsbxau. 

FoKTBlANQUi's Bankruptcy SeporU not being 
in my hands in this colony, I do not hesitate to 
go tp the trouble of quoting the case at full 
length in tbe very words of the Beporter, as they 
«i]l, more fully, explain the argumenta of the 
twA Counsel engaged in this case, and tbe 
grounds of my coDcTuaion on thia point. 



(Before Mr Commissioner GoiriBrBir.) 

■' This was a question of disputed adjadicatioQ 
under the Act 12 an-l 13 Vict. C. 106 S. 101, 
answering to Art. 53 of our Bankruptcy Ordi- 
" dinance." 

'* Parry, Counsel for the Bankrupt. 

" Bayley, Counsel for tbe Petitioning creditor. 

" A preliminary diacusaion took place aa to 
" the obligation of the parties to begin. On 
" the part of the alleged Bankrupt, it wat 
" iosiated that the Petitioning creditor waa 
" bound, in the first instance, to 'examine his 
" wituesaes and to establish the three requi- 
"sitea neceaaary to auatain the adjudica- 
" tion, precisely as if there had been no previous 
" adjudication " Exparte," 

" On the other side, it waa saggeated that by 
" the ezpreaa terms of the 101th Section, the 
" Bankrupt waa to ahew cause against the origi- 
" nal adjudication, to the satisfaction of the Court, 
" and if be failed so to do, within the period spe- 
" cifled in the act, the original adjudication be- 
" CBme absolute without more, and from this 
" provision, it waa argued that tbe petitioning 
" creditors had already established a prima facie 
" caae, and could not be rec[uired, in the first 
" instance, to produce any evidence. It was ad- 
" mitted at the Bar that the practice in reference 
" to this question was not settled. 

" Mr. Commissionner Qodlbubh thought the 
'' question so important as matter of practice, 
" that be consulted with his brothers Commis- 
" sionnera Evans & HoLBoyn, and subaequentlv 
" announced that they had come to the uoanf- 
" mous conclusion, that in ordinary cafes, and bs 
" a general Rule, the Petitioning Creditor, upon 
*' a disputed adjudication, should be called upon 
" to begin and adduce all the evidence on which 
*' bo means to rely, in order to establish the trad- 
" log Petitioning Creditor's debt and act of 
" Bankruptcy. 

" The Court, however, reserved to itself the 
" discretion of allowing the Petitioning Creditor to 
" adduce further evidence at any subsequent 
" stage of the proceedings, if further evidenca 
" waa decided neceasary. 

" Batley, for the Petitioning Creditor, then 
" called the attesting witness to a deed of as* 
*' signment for the benefit of creditors, which 
" waa the act of Bankruptcy relied upon, and 
" the witness was cross-examined by Paebt 
" with a view to establish the objection relied 
" upon," 

ITpon the atiength of this authority, on lo 
important a point of practice, I do not hesitate 
in saying that I cannot do better than following 
a precedent so fully in point, not lightly laid 
down by Mr. Qoulburn after a conference with 
his brothers comraiasioners who agreed with him 
in the unanimous conclusions announced br 
Commirsioner Qoulburn, on the point raised 
before him. 

1 therefore order MuA tl^ %«#3&i3t^%,^'»:^!!u». 



)08 



DECISIONS OP THE 



[18TO 



do proceed nitb his case, aa if there had been no 
adjudication eiparte, and do prove the requieite 
coDditiooa in support of the adjudication exparte 
obtained by the Petitioning Creditor against the 
aHeged Bank rapt. 



BlXRRilPTCY COURT. 



VXTLLITE,— COHpfTEHCE. 

Le Fca'lU ayant attaqne U Jugement de mise en 
yaUHte, tur le motif gue ledemandeuTn'eimtpai 
Is vMtalU propriitaire de la criance affimic 
par ee dernier, et ayant intentS une action devant 
la Cour Supreme, en nvllUd de faet^ par leguel 
eeite criance avait iti eedSe au demandeur, la 
Cowr a JugS qu'eUe ne devatt point entendre taf- 
faire jvsqu'd ce que la Cour SuprSma k fut pro- 
noneie gar la validity du dil traneport. 



Bahiruttct,— JrHiBMCTioir. 

Where o Bankrupt had given notice of hit iitien- 

Hon to show cause against the validity of the 
Judgment of adjudication of Bankrvptcy, on the 
ground that the JPetitioning creditor was not the 
Yionk fide holder of the claim affirmed hy him, 
and had, moreover, entered an action before the 
Btpreme Court, to obtain the tiullity of the trans- 
fer made to ruck Petitioning creditor, of the claim 
by him affirmed as aforesaid, the Court ruled 
that the proceedings in Bankruptcy were to be 
stayed until the Supreme Court had decided 
upon the validity of the said transfer. 



InSe: 
Bahkedptcy E. EOITESSAET. 



A. Seiuxl, — ^Attorney for the Bankrupt. 



27th September 1869. 

Elisce Eouessart was adjudicated a Bankrupt 
on the 2ad August one thousand eight hundred 
and sisty-uine, on the Petition of one Joseph 
Viger, alledging hiraself to be the asBignee of one 
Louia Claude Henri Andr^, hy bti n?t under pri- 
vate signatures of the 28th July IS09, duly regis- 
tered. 

The duplicate of the Order of adjudication vaa 
served on Elisee Boueesart in person. On the 
9th September now last past, he gave notice to 
the parties interested, of his intention to shew 
cause to the Court of Bnnkriiptcy against the 
validity of such adjudication on Monday 18th 
September instant, when by consent the bearing 
was adjourned to the 20tb CJepteoibeF instant. 

When E. Pelleeea0 moved, on behalf of 
ElisSe Houessart, that the adjudication made on 
<Aapgiition of the said Joseph Viger, alledging 



himself to be a creditor of E. Bonesiart.be annul- 
led on the ground : 

1o. That Viger was not the lawful and bonft 
fide owner of the claim upon which the adjudica- 
tion compla'ned of was made, of the 28th July- 
one thousand eight hundred ond sixty-nine, daly 
registered, upon which be rests his claim againtt 
E. BouessarC 

2o. Because the assignment was bad in law, 
having been made vrithout s valuable considera- 
tion and for the sole fraudulent purpose on the 
part of Henri Andr^, through the instrumen- 
tality of the said Joseph Viger, of enforcing the 
ezecutiou of the Judgment of the 6th Febmaty 
1865, by personal arrest against Elis^e Bouessart, 
to which the said Henri AndrS could not have 
legally resorted personally, from the fact of 1^ 
being the brothet-in-law of the said Elis^ Roue«- 
sart. 

E. FsLLEBBAU further stated that to try the 
illegality and fraud above complained of, an ae- 
tion bad been brought hy Bisfc Bouessart, 
before the Supreme Court. 

I have, nnder such circnmitancea, been asking 
myself, have put the same quntioD to Counad, 
until the Supreme Court shall have ai^udicated on 
the issue pending between partiei, what ia the 
Commissioner to do f 

I/. BoiTiLLABD, for his client the Petitioner in 
Bankrnptcy, held the Court competent, by reason 
of its original Jurisdiction in Bsokruptcy matterff 
to proceed at once with the trial of the issue be- 
fore it. 

E. PELLESEin forEliseeBouewart, maintained 
the incompetency of the CommisBtoner to try an 
issue wherein a 3rd party was in attendance in 
the Bankruptcy Oourt, whose presence in Court 
could not have oeen enforced by theCommissiooei 
{Archb. Law andpraoHce of Bey. law, p. 29). 

Of two things one : either the issue raised be- 
fore the Supreme Court will be found for Elis^e 
Bouessart. If so it is superabundantly clear that 
the adjudication of Bankruptcy made against him, 
on the Petition of Joseph Viger, will have to be 
annulled by the Commisaioner, on proof of the 
finding of the Supreme Court. 

Should the issue he found in favor of Joseph 
Viger who has obtained the adjudication now 
disputed hy Elisee Bouesaart, it will be the duty 
of the Oommissioticr, on proof of such finding, to 
support such adjudication and to proceed there- 



Tf so,i8 it not evident that my duty aa Commis* 
sioner bids me stay my Judgment on the validiiT' 
of the adjudication obtained Ez-parte at the 
bands of this Court until Judgment of the Sn- 
preme Court on the validity or non validity of 
the claim set up by Joaeph Viger ? Especially if 
it be found that the adoption of the course re- 
commanded by KTr. Bouillisd might lead to a 
conflict between the Superior Court and the 
CommissioDer, were these judicial powers to come 
to a contrary decision on one and the same isane* 



1869] 



COURTS OP MAURITIUS. 



109 



If 80 which of the two decisions would prevail? 
should the Comniissioner's Judgment cdhtracUot 
that of the Supreme Court, there is no doubt that 
on appeal from the Commissioner's Judgment, the 
latter will be quashed. 

If so, proceeding now with the immediate trial 
insisted upon, will be a mere waste of public time 
and entailing useless cost upon parties apparently 
insolvent. 

For those several reasons, I have come to the 
conclusion that the trying of the validity of the 
adjudication disputed by Elisee Rouedsart shall 
'^be stayed until Judgment shall have been given 
by the Supreme Court and on the issues sub- 
mitted it, by E. Rouessart. 

All the rights of all parties are fully reserved, 
as well as the questioii of the costs already in- 
curred before the Bankruptcy Court. 



SUPREME COURT. 



DrvoBca, — SiyiCBs et injubes obavks. 



DrVOBCE,— SCBTITIA ASD " UTJTJEBS GBA.TES," 



DU RHONE DB BEAUVAIR THE WIFE,— 

Plaintiff. 
versus 

DU RHONE DE BEAUVAIR THE HUS- 

BAND,— Defendant. 

Before : 

His Honor N. ft. Bbstel and 
His Honor Q-. B. Colin. 



L. ROUILLAED,- 
J. PiaNGEUT, 

E. Pellebeatj,' 
A. Rohan, 



-Of Counsel for Plaintiff. 
-Plaintiff's Attorney. 
•Of Counsel for Defendant. 
-Defendant's Attorney. 



28th October 1869. 



This was an action for a Divorce a vinculo ma- 
trimonii by the wife of the Defendant, on the 
grounds of** soevitia " and " injures grfives," fully 
set out in the Plaintiffs' Petition. 

The facts relied upon by the Plaintiff were de- 
nied by the husband, and had, therefore, to be 
proved by the wife. 

This she did, and the counter proof was made 
by the Defendant. 

On the closing of the enquiry, the Defendant 
hesitated not in expressing his regret at the 
course adopted and insisted upon by his wife, 



/ which he ascribed to the evil counsel of those 
whose duty it was to have impressed on her mind 
a contrary course of action. He further disputed 
the sufficiency of Plaintiff's evidence to warrant 
the conclusion to which she «iras anxious to lead 
the Court and added that in spite of all the facts 
alleged against him by his wife, supported as they 
had been by the biassed evidence adduced by the 
Plaintiff, he, nevertheless, felt the greatest sym- 
pathy for the disappointments of one whose exist- 
ence had been embittered by a change, not in his 
affections, but in his pecuniary position. It is that 
sympathy which led him to desist from the divorce 
by mutual consent to which he bad, at one time, 
assented, the relinquishment of which led to his 
wife's present demand. That he hoped that the 
anxiety he then expressed of having his wife back 
under the conjugal roof where her husband anti- 
cipated the joy of welcoming her back and of 
making up for apparent past harshness by the 
exhibition hereafter, of the kindest an^d most af- 
fectionate regards for her feelings and welfare aa 
well as for her person as a lady and a wife, 
would lead the Court to dismiss the action now 
pending. 

This language however calculated to enlist the 
feelings of the Court in favor of the Defendant, 
cannot be however of much weight in presence of 
the facts before us, for it is impossible that the 
Defendant should feel any sympathy for one of 
so degraded a character as he has represented 
his wife to be, publicly charging her, as he has 
done, with having been his mistress before their 
marriage, and to have led a dissoFute and crimi« 
nal life after and pending the marriage. 

I. 

If from the •* injures graves " we pass on to 
the '^ BOBvita '' charged, these appear to us as 
fully proved as the mischief done to Plaintiffs 
character. 

Hence the necessity on our part, however 
painful or repugnant it may be to our feelings 
as men and Judges, in conformity with the con- 
clusions of the " Minist^re Public," to allow the 
Divorce prayed for. 

We, accordingly, authorize the Plaintiff to 
summon the Defendant to appear before the 
competent Officer of the Civil Status, who is 
hereby authorized and empowered to pronounce 
the Divorce a vinculo matrimonii of the parties in 
the cause« Costs against Defendant. 



BAIL COURT. 



Coups et blessubes, — Capitaike et Second,— - 

LiVBEDB BOBD, — MeEOHANT SHIPPING AoT^ 
— ApPBL D'un JuOEMENT DJS MaGISTBAT DE 
DlSTBIOT. 

V Article 243 paragraphe 6 du " Merchant Ship* 
pingActy*' qui dtahlii une pSnalite cantre tout 
marin qui frappera le Captains ou Je Second 
d'un navire, s' applique Sgalement au Second hrs- 
qu'il a/ura firappi le Oapitatne. 



m 



DEdSIONS OF THE 



[18M 



Larsgu'une pladnte sera pariee devant le Magistrai 
par le CapiUune d'tm navire eontre fun des ma- 
rine engages d son bord^ le Capitakve devra pro* 
dmte le Livre de Bord a Vappui de sa pHainie 
ou prouver que cette production est impossible, 
fauie de quoi saplainte sera rejetSe. 



AWULITLT,— MaBTSB AITD MaTE, — OFFICIAL LOG- 

Book, — ^Msbchakt SHippnra Act,— Appbal 

FBOH A CONTICTIOIir OF DiBTBICT COUBT. 

Article 243 Sea. 6 of the "Merchant Shipping Ad,'* 
which enacts a penalty against seamen for as - 
sauUi/ng any Master or Mate of a ship, applies 
io the Mate when the latter is convicted of having 
assaulted the Captain, 

Where a complaint is lodged before the Oompetent 
Court by the Master of a ship against any seaman 
engaged on board such ship, the official Log* Book 
of the ship, with the entry of the facts complained 
if, must be produced in Court, or the proof that such 
production is not practicable must be m^ade, 
faiUng which siuh complaint shall be dismissed. 



LAOAZE,— Appellant, 

versus 

THE QUEEN,— Bespondent. 

Before ; 
His Honor Snt C. F. Shaitd, Chief Jndge. 



W. NawTOK, — Of Counsel for Appellant. 
E. Bebtik, — Appellant's Attorney. 
E. J. Lecl^zio,— Actg. Sub, Froc. & Ady. GFen. 
J. BoucHKT, —Queen's Attorney. 



30th October 1869. 

This was an Appeal from a Judgment of the 
Junior District Magistrate of Fort Louis, sitting 
on the criminal side. 

On the 80th of last month, Jules Lacaze, Chief 
Officer on board of the British Ship <* Northum* 
herland " lying in the harbour of Fort Lonis, was 
brought before the said Magistrate, charged with 
having, on the previous day, infticted blows with 
a belaying pin on the person of William Ford, 
Master of the vessel. With consent of the ac- 
cuBed» the trial took place next day, viz : the 1st 
of the present month of October. The Master, 
the said William Ford, and three othei- witnesses, 
were examined for the prosecution, and three 
witnesses were heard for the defence. The Ma- 
giatrate, in his Judgment, stated that in virtue 
of the " Merchant Shipping Act " 1854 (17 & 18 
Vict. 0. 104, § 243), he convicted the accused 
of haying wilfully and maliciously inflicted blows 
upon the person of the said William Ford, and 
sentenced him to imprisonment for one calendar 
month and a day, and also to pay 6 sh. of costs, 
Md in defaiLit ojf payment, he ordered the ac- 



cused to be impriioned for the space of two dqfi 
longer. 

Zacaze appealed. 

W. Newtok, for Appellant : this conyietion 
most be quashed. In the first place. Section 24t, 
of the '' Merchant Shipping Act, " on which tha 
convietioa is expressly founded, does not apply to 
the case. It is therein enacted that *'If any Sea- 
man who has been lawfully engaged, or any ap- 
prentice to the sea service, commits any of tne 
following offences he shall be liable to be punish- 
ed summarily as follows ; that is to say undsft 
Head 6th of this Section, for assaulting any 
Master or Mate, he shall be liable to imprison- 
ment for any period not exceeding twelve weeks 
with or without hard labor. 

Now, the accused himself is here the first Offi- 
cer or Mate, he is not one of the seamen. No 
doubt it will be pleaded that in Section 6th 
of the Statute, it is declared that the word 
'* Seamen *' shall include '^ every person (ex- 
cept Masters, Pilots, and apprentices duly in- 
dentured and registered ) employed or engaged 
in any capacity on board a ship ; ** but 1 con- 
tend thatthe way in which |248 is expressed, 
is exclusive of this interpretation. The Master and 
Mste are made to stand by themselTes, alone, as 
the superior officers of the ship ; they are the 
parties who may complain under this section 
against the seamen for assault ; but the Mate 
cannot complain against himself for assault which 
would be an absurdity ; yet that is the interpre- 
tation for which the Grown contends, as it says 
that the word ** Seaman," here, includes the 
Mate. The alleged assault, in the present case, 
must have been tried, if at all, under the com- 
mon law ; but as the Magistrate tried it errone- 
ously under the section of the Statute, it must 
be set aside. 

In the second place, I have a still more seri- 
ous objection to the proceedings before the Dis- 
trict Cfourt. The official Log- Book of the ship 
was never produced. This, under the Statute, is 
essential and cannot be dispensed with. In the 
section immediately following the one on which 
the conviction is made to lie, viz. Sect. 244, we 
have this plain injunction of the Legislature : 
** Upon the commission of any of the offences 
enumerated in the last proceeding section, an 
entry thereof shall be made in the official Log- 
Book, and shall be signed by the Master and 
also by the Mate or one of the crew, and 
the offender, if still in the ship, shall before 
the next subsequent arrival of the ship at any 
port, or, if she is at the time in port, before 
her departure therefrom, either be furnished with 
a copy of such entry or have the same read over 
distinctly and audibly to him and may, there* 
upon, make such reply thereto as he thinks fit ; 
and a statement that a copy of the said entry has 
been so furnished, or that the same has been so 
read over as aforesaid, and the reply, (if any) 
made by the offender, shall, likewise, be entered 
and signed in the manner aforesaid ; and in any 
subsequent lesal proceedings, the entries herein- 
before required shall, it practicable, be produced 
or proved, and in de&ult of such production or 
proof, the Court hearing the case, may, at its 



i86»} 



COUBTa OP MAURITIUS. 



Ill 



discretioB^ refuse to leceiye evidence of the 
offence." 

At the trial there was not one word said ahout 
the Log-Bdok. It was never mentioned. No 
enqnirywas made as to whether the entries had 
been duly made or not made, and whether it was 
practicable to produce the Book or not. There 
was plainljr,here»a positive departure from the Sta- 
tute and something was* omitted which may often 
prove a strong safeguard of the accused, viz : the 
entry made at the time of what actually took 
place* and what the accused had then to say for 
himself. It was incompetent for the Magistrate 
to go on in the wa^r he did. His discretion to 
refuse to allow evidence of the offence only 
opened to him after he was satisfied that it was 
not practicable to produce the Log-Book ; but, 
in point of fact, no enquiry at all, regarding the 
Log-Book was made, and thus the proceedings 
are vitiated from the beginning. 

E. LegIiBZIo Jwhicr, contra.'^ As to the first 
objection raised, the word ** seaman " in one of 
the opening sections of the act is declared to in- 
clude *' every person " (with certain exceptions) 
en board the ship. The exceptions are : *' Mas- 
ters, Pilots and apprentices." iN'ow, the Mate 
or first Officer is not one of them. So he is ex- 
pressly included in the term *' seaman." 

The reason of the " Master or Mate " being 
put together in § 243 (6) is this. They are the 
the Superior Officers of the Ship ; assaults upon 
them are of the most dangerous tendancy. The 
Master is often absent, and then the Mate has 
the command of the vessel. 

But what is conclusive upon this point, is the 
consideration that there is no other Section of the 
act under which the Mate could be punished 
for assaulting the Master. 

In the second place, in the circumstances of 
the case, as shewn by the evidence, it was im- 
possible to produce the Official Log-Book at the 
trial. The assault was committed late on the 
afternoon of the 29th September, the accused 
was apprehended, soon after aod taken to Jail 
by the Police, and the trial took place oq the 
Ist October. In such circumstances, different 
entries which might otherwise have been made 
in the Log-Book, could not have been made, and 
therefore the objection must fail. 

THE COXJET. 

This case was argued before me on Wednes- 
day last, and for obvious reasons I am desirous 
that is should be disposed of as speedily as pos- 
Bible. 

The charge against the Appellant Lacaze, is a 
vert serious one. He is the Mate or first (Mcer 
of the ship ** The Northumberland" He is accused 
of having committed a violent assault upon his 
superior officer William Ford, I need not say 
that there are few persons placed in a situation 
of greater trust and responsibility than the Mas- 
ter of a ship. His authority must be supported, 
and all c ses of serious insubordination on the 
part of his officers or crew, particularly when ac- 



companied with violence, will be severely dealt 
with by a Court of Justice. 

The objections to the present conviction do 
not touch the merits of the case in the sense of 
actual guilt or innocence of the accused, but 
they raise the important question of whether the ^ 
accused has been well tried according to law, and 
both objections are worthy of the serious atten- 
tion of a Court of Review. 

I shall consider them in the order in which 
they are stated by the Counsel of Lacaze. 

As to the first objection, there certainly is an 
awkwardness in the way in which the 6th divi- 
sion of Art. 24iS of the Statute is worded. 

This sub-section of the act relates to assaults 
upon officers of the ship, and it is said that- 
whenever any seaman who has been lawfully en- 
gaged, or any apprentice to the sea service com- 
mits any of the following offences, he shall be 
liable to be punished summarily as follows ; 
Among other offences we have the following : 
•* XX " (6) — For assaulting any Master or 
Mate, he f hall be liable to imprisonment for any 
period not exceeding twelve weeks, with or with- 
out hard labor," 

Now, prima fctde^ this enactment would 
not apply to the present case, for, the ac- 
cused is here the Mate or First Officer of 
the Ship, t.6. one of the persons for whose pro 
tection the above clause is drawn, and not one 
of those who, at first sight at least, could be 
charged with the offence set forth, and be pun- 
ished under it. on the charge beiog proved 
against him. But then, in what is sometimes 
called the '• Dictionary Clause *' of the Statute, 
we are instructed by the Lergislature as to the 
meaning to be attached to the word '* Seaman '* 
\vhen it occurs throughout the act. This word, it 
is said, shall include every persons, (except 
Masters, Pilots and apprentices duly indentured 
and registered) employed or engaged in any ca- 
pacity on board any Ship, " XX, " if not incon- 
sistentwith the contestor subject matter.'* There- 
fore the word " seaman," here, will include 
the *• first Officer or Mate, for, unlike the Mas- 
ter, he IS not excepted from the clause, 
and there is no inconsistency in so including 
the Mate, for altho' the words ** Master or 
Mate " stand together, as we have seen in S. 
243 of the act, the Mate may be guilty of 
assaulting the Master and must be tried for the 
offence. In fact, no other clause in the act has 
been pointed out under which such a prosecution 
as the present could be supported, and as the Sta- 
tute approaches very much to what may be term- 
ed a Code in regard to " Merchant Shipping," 
this consideration adds much to the weight of 
the argument in this part of the case submitted 
by The Substitutb Fbocttbeub Gbnbbal. In 
those circumstances I should not feel myself in 
a position to sustain the first objection pleaded 
by Mr. Newtok, for the Appellwat. 

The second dbjection is founded on the noA .. 
production of the official Log-Book at the trial, ^ 
or the proof that such productioii^ was not prac- 
ticable. It appears to me that here there ba& ' 



112 



DECISIONS OF THE 



CMe» 



been a miscarriage at the trial, the proyisiona 
of the act in this respect Dot having been obser- 
ved. The section of the Statute immediately 
following the one we have already had occasion 
to coDsider ( § 244) is thus expressed •* ** Upon 
the commission of any of the offences enumerat- 
ed in the last preceding section, an entry thereof 
shall be made io the Official Log-Rook, and 
shall be signed by the ISA aster aod also by the 
Mate or one of the crew, and the offender, if 
still in the Ship, sbal), before the next subsequent 
arrival of the ship at any port, or if she is at the 
time in Court, before her departure therefrom, 
either be furnished with a copy of such entry or 
have the same read over distinctly and audibly 
to him, and may thereupoo make such reply 
thereto as he thinks fit, and a statement that a 
copy of the said entry has been so furnished or 
that the same has been so read over as aforesaid, 
and the reply (if any) of the offender, shall 
likewise be entered and signed in the manner 
aforesaid ; and in any subsequent legal proceed- 
ing the entries hereinbefore required shall, if 
practicable, be produced or proved, and in default 
of such production or proof, the Court hearing the 
case, may, at its discretion, refuse to receive 
eyidence of the offence." 

I need scarcely say that the Official Log- Book 
occupies a very conspicuous place in the economy 
of the merchant shipping of Great Britain engage 
ed in Foreign Trade. The keeping of it is one of 
the duties imposed by the Statute, upon the Mas- 
ter, under heavy penalties. It must contain an en- 
try of every occurrence in the progress of the ship 
firom one port to another and when in harbour, 
which can affect any one connected with the ?es- 
sal ; in short says Lord Tenterden or his Editor 

ipage 133 ), almost '* every occurence which can 
appen in the course of a voyage,to affect the in- 
terest personal or pecuniary of the owner. Master 
and seamen,the discipline and safety of the ship,or 
the ends of Justice,must have its place in the Offi« 
cial Log-Book." In the section of the act which 
has just been cited, it is ordered that in the legal 
proceedings following upon any of those occur- 
rences, the entry in the Official Log-fiook shall^ 
" if practicable, be produced, or proved." 

Now, in the present case, the entry in the Log* 
Book was not produced or proved, and nothing ap- 
pears on the record to shew that it was not practi- 
cable to prove it. In fact, no notice of the Log- 
Book appears in the proceedings, from bep;inning 
to end. Bat farther there is a very material sec- 
tion of the statute which declares that all entries 
made in any official Log-Book " shall be received 
in evidence in any proceeding, in any Courti of 
Justice subject to all just exceptions.'' Now« 
this evidence was altogether wanting in the pre- 
sent enquiry. It is manifest that the entries of 
the occurrence in the Log-Book may be very ma- 
terial for enabling the Court before which the 
trial may take place, to ascertain the real truth 
and justice of the case. At all events, those en- 
tries are declared in the acfc,to be evidence in the 
case, which most be produced when practicable, 
and it is manifest that as the official Log-Book 
was not produced, nor the impracticability of 
producing it proved before the Court, the caae 



baa not been tried in terns of law, and the pio- 
ceedings must be set aaide. 

It was argued before me that in the circum- 
stances which occurred, there oould have been no 
entry in the official Log-Book. But I was not 
able to follow the reasoning, even supposing that 
it were still in time to shew the impracticabi- 
lity of producing the Log-Book at the trials 
which I do not think it is. I am of opinion 
that at the trial itself, the Log-Book sboula have 
been produced or it should have been shewn that 
it was impracticable to produce it. It is now 
too late to go into such an enquiry. But even 
if the enquiry were competent, the offence having 
been committed, as alleged, on the 29th Septem- 
ber, and the trial having taken place two days 
thereafter, viz : on the 1st October, while all the 
persons concerned were in the town of Port Louis, 
on board of the Ship in the harbour, it is difficult 
to see what there was to prevent the Master 
making the entries as required by the act. 

But, as I have already said, it appears to me 
that the impracticability, if it existed, should 
have been shewn at the trial, if the Log-Book 
was not produced, and that this not having be^;^^ 
done, the proceedings were not duly had, in 
terms of Law, and must, therefore, be set aside. 

The conviction is quashed ; but in the oircum-*- 
stances, without costs. 



SUPBEHE COURT. 



Appel au Conseil Peiv4,— Bxbcutiok Eboti- 

BOIEE, — FrAIB, 

Hn COS J^appel au OonseU Privi, VexdeuHon provi" 
soire du Jugement sera cbccordSe ou refwie^ en 
tout ou en partie, suivant Ua ckreamtances de la 
cause et aussi suivant que eette &i6cution ae 
trouvera en rafpport avec le but gw ee propose la 
Justice, 

Circonstances dans lesquelles la Oour a acoofds 
V execution provisoire de son Jugement juand aux 
frais seulement. 



Appeal to the Pbivt Coxns[CJL, — PaoTisiOKAXi 
ExEOTTTioir, — Costs. 

Applications for executmv pending appeal to ffer 
Majesty in Council^ will he granted or refused in 
whole or in part according to the actual droitm^ 
stances and according to what wUl best promote 
real and substantial justice in each case. 

drcumstanees under which the Court has ordered 
its Judgment to be executed for costs only and not 
on the morUst 



1869] 



COURTS OP MAUBITIUS. 



118 



GALDEMAB FBESES.— Plamidfib, 



versus 



WIDOW DIOEfi,— Defendant, 

Before : 

His Honor Sir C. F. Shaih), Chief Judge and 
Honor Jubticb Bestel. 



-Of Counsel for Plaintiffs. 
-Flaintiff*B Attorney. 
Of Counsel for Defendant. 
-Defendant's Attorney. 

6th November 1869. 



\ 



F. L. Chastillieb,- 

F. ViCTOB, • 
E. PSLLEBEAtr, 

J. Mebcier, 



On the 10th June of the present year 1869, 
the Supreme Court pronounced Judgment^ dis- 
solving a Civil Partnership which had been en- 
tered into on the 28th October 1867, between 
Oaldemar freres. Merchants, in Port Louis, the 
widow Pierre Dior6 and Julius Wilson, for the 
cultivation of the Sugar Estate Sichfund in the 
District of Flacq. The duration of the contract 
of Partnership was for nine years. 

The Plaintiffs in that suit were the said Gal- 
demar freres and the Defendants, Mra. Dior6 
and J. J. Wilson. 

In the decree dissolving the Partnership, there 
was also a finding of costs of suit against Mrs. 
Dior^. She appealed against the whole Judg- 
ment of the Court to Heb Majesty in Her Privy 
Council. 

The parties who had been successful against 
her, in this Court, Messrs. Galdemar Freres, 
presented the present application for interim 
execution of the Judgment of the Court, of lOih 
June last, so far as it related to the costs, which 
amounted to £259.12 offering due security to 
repay the amount, in the event of a reversal of 
the Judgment in the Court of last resort. 

This motion was opposed by E. Pellebeau for 
Mrs. Dior6, who argued : The final Judgment of 
this Court cannot be divided into parts, and ex- 
ecution asked of one part while it is not moved 
for as to another. 

The question of costs must follow the fate 
of the Judgment itself, of which execution is not 
asked. By the rules of the Code of Civil Pro- 
cedure, interim execution as to costs alone, can- 
not be granted by the Court, art : 137. There 
are third parties interested in this case and by 
the rules of the same Code, there can be no in- 
terim execution in such cases where an appeal 
has been entered. 

P. L. Chastellisb in support of the motion : 
The case must be ruled by the Charter of Justice 
of 1831. The rules of French Procedure dou't 
apply to the case. The Court has, in former ins- 
tances, allowed interim execution for a part of 
the case, and refused it as to others. See Adler ^ 
Ore V. Breard §r ore 2Gth August 1864. (Piston's 
Bq>ort Vol. IVp. 94.) 






THE COURT. 

In all discussions of this nature, we must, ne- 
cessarily, be governed by the Order in Council of 
13th April 1831. for the better administration 
of Justice in the Colony of Mauritius and its de- 
pendencies. It has fixed certain precise rules 
for our guidance to which we must conform our- 
selves. The words of the said Order in Council 
or Charter of Justice, as we often term it, appli- 
cable to the matter now before us, run in the 
following term : 

** And it is hereby further ordered, that it 
shall and may be lawful for any person or per- 
sons, bemg a party or parties to any Civil suit or 
action depending in the said •' Cour d'Appel " of 
the said Island of Mauritius, to appeal to His 
Majesty in Council, His Heirs and Successors, in 
His or Their Privy CounciUagainst^any final Judg- 
ment, sentence or decree of the aaid^ Court, or ■ 
against any Hule or Order made in any such 
civil suit or action having the effect of a 
final or definitive sentence and which appeals 
shall be made subject to the Bales, Re^^ula- 
cions, and limitations following, that is to 
say ; in case any such Judgment, Decree, Order 
or Sentence shall be given or pronounced for or 
in respect of any sum or matter at issue above 
the amount or value of £1,000, or in case such 
Judgment Decree,Order or Sentence shall involve 
directly or indirectly, any claim, demand or ques- 
tion to or respecting property or any Civil right 
amounting to, or of the value of £1.000 or in 
case the same shall aff'ect the right of any -peV' 
son to freedom, the person or persons feeling 
aggrieved by any such Judgment, Decree, Order 
or Sentence of the said " Cour o'appel " may, 
within 14 days next after the same shall have 
been made, pronounced or given, apply to the 
said " Cour D'appel ", by Petition, lor leave to 
appeal therefrom to His Majesty, his Heirs and 
Successors, in His or Tlteir Privy Council, and 
in case such leave to appeal shall be prayed by 
the party or partie8,who is or are directed to pay 
any sum of money or perform any duty, the saia 
" Cour d'appel " shall, and is hereby, empowered 
either to direct that the^ Judgment, Decree, Or- 
der or sentence appealed from shall be carried 
into execution, or to direct that the execution 
thereof shall be suspended pending the said ap- 
peal, as to the said Court may, in each case, ap- 
pear the most connstent with real and subs-, 
tantial Justice ; and in case the eaid *' Cour d*ap- 
pel ** shall direct such Judgment, Decree, Order 
or Sentence to be carried into execution, the 
person or persons in whose favor the same shall 
be given, shall, before the execution thereof, enter 
into good and sufficient security to be approved 
by the said Court, for the due performance of 
such Judgment or Order as His Majesty His 
Heirs and Successors, sha!l think fit to make 
thereupon." 

The Court is empowered as will be seen from 
the above clause " and in case such leave to ap- 
peal shall be prayed by the party or parties who 
is or are directed to pay any sum of money or 
perform any duty, the said " Cour d'apiel'* shall 
«and is hereoy empowered either to direct that the 
Judgment, Decree, Order, or Sentence appcniled 
from shall be carried into execution, or to direct 



1 



114 



DECISIONS OP THE 



[1869 



that the execution thereof shall be suBpended, 
pending the said appeal as to the said Court may, 
in each case, appear the most congistent with real 
and substantial Justice." 

We do not think that there is anything in this 
Charter or in principle to prevent us granting 
execution of a part of the general final Judg- 
ment, altho' execution in the meantime is not 
asked of the whole Judgment of the Court. 

It may happen that it would not be consistent 
with real and substantial Justice to allow interim 
execution of whole Judgm^t involving the rights 
of many parties, and it might be rights of such 
complexity that execution, in the meantime might 
rendered them well night if not totally, inextri- 
cable, when the Judgment of the Privy Couucil 
should ultimately be pronounced. But the Court 
might see its way clearly to allow execution of a 
portion of the general decree, in the meantime, 
on proper security being found as quite consis- 
tent with the rights and interests of parties to the 
suit. Of this the case ofAdler i) Bfeard, referred 
to from the Bar is a good example. The Court, 
there, granted interim execution of the general 
decree so far as it related to certain of the parties 
and there rights, but refused it as to other par- 
ties and their interest in the Judgment, as the 
Court was of opinion that interim execution of 
the whole Judgment would not only, not be 
consistent with real and substantial Justice, but 
might throw matters into such a position, that 
the ultimate Judgment of the Privy Council 
might be rendered nugatory or abortive. In the 
present case the successful parties have not asked 
interim execution of the whole Judgment because 
as they tell us the rights of third parties might 
be seriously affected, and after interim execution 
the state of things might be so altered that it 
might be very difficult to put the final decision 
of the Privy Council in force. They confine 
themselves to asking interim execution of the 
Judgment for costs. 'This is a part of the case 
which stands out by itself clear and separate from 
the general Judgment on the merits and as to 
which we think we can order ezecutiun to issue, 
on proper security. 

^ "We, accordingly, hereby allow interim execu- 
tion for the said costs, on satisfactory caution 
being formed for repayment in the event of a 
reversal before the Committee of the Privy Coun- 
cil ; with cost of the motion against Mrs. DiorS. 



BASiRRVPTCY COURT. 



Fattjjte, — LrvBES,— Cebtificat. 

// ne suffit pas que le commerqant tienne des livres, 
U fatU que ces livres soient hien tenuSy et balaticea 
de temps cL autre de faQon a ce qu'd, touie Spoque 
Vdtat reel des affaires du comniergant puisse Sire 
immSdiatement connu. 



BAirKBirPTCT,-rB00KS, — CSBIIPICATE. 

H is not Bi^ient that there should be booie, ih^ 



must be properly kepi and balanced fivm Ums 
to time^ so thut, at any iime^ the real state of iks 

trader's affairs may^ at once, appear. 



In Be 
BANKBUPTCY Ch. DOMAIN. 



Before His Honor N. G. Bestel. 



8th November f 869. 

I am called upon this day to acjjudicate <m 
the motion made by the Bankrupt, for a certi- 
ficate of comformity to which I have been told 
he was entitled. 

His title or right to a certificate was, howeveri 
strongly denied and opposed by the trade-Assi- 
gnees who bitterly complained of the conduct of 
the Bankrupt, as a trader, on several grouude. 

I shall deal, for the present, with the first 
objection which refers : lo to the absence of 
books up to a certain period, and 2dly to the im- 
perfect manner in which the books produced were 
kept. 

Charles Domain began business in 1854i with 
a sum of ;$2,500, placed at his disposal, by one 
Lory, on the understanding, as it appears from 
Bankrupt's statement, that,should the trade then 
about to be entered upon prove successful, the 
net profit should be equally divided between 
Lory and himself : If not. Lory would have to 
bear the loss of the money advanced by him. 

The 1st year the iJ2,500 invested by Domain 
produced a net profit of ;^ 10,000 which was sha- 
red between parties. 

But from 1854 to February 1859 not a scrap of 
paper has been produced to throw the least light 
on the transactions between Lory and Bankrupt. 
What those transactions were, of what nature, 
what their extent ? we have no means of ascer- 
taining. The Bankrupt, however, in mentioning^ 
the existence of a *' Sous seing-prive " between 
himself and Lory, took care in the same breath 
to inform us that his copy thereof had been han- 
ded over by him to Lory, in compliance with 
the wish expressed by Lory in his letter to Do- 
main, of the 30th August 186*, — whereby he 
recommended to Domain the destruction of 
letters and "pieces inotiles'' and requested 
the old books to be sent to him ; and yet 
the Bankrupt says that from 1854 till 1859 he 
had kept no books but was in the habit of 
making out a yearly inventory from 1859 to 
1861 or 1862, and subsequently took very pre- 
cise notes of his assets and liabilities which he 
submitted to Lory, at Beunion Island,and upon 
which a yearly settlement took place between 
parties. 

So much for the veracity of the Bankrupt, 
and for the absence of books from 1854i to' 20th 
July 1859 when the Bankrupt began to keep 



1869] 



COURTS OF MAURITIUS • 



116 



looks He tells us thai; a journal by double- 
entry was then kept by him, a fair copy of 
whivh was never made, but the original or 
rough of which has been handed over to the of- 
ficial Assignee. This journal, however, and the 
^ther books in Court have been all so badly 
kept that it has been impossible for the trade 
Assignees to ascertain the true and real state of 
Domain's affairs after a personal minute exami- 
nation of the books produced. The Accountants 
called in to their assistance by the Assignees, 
have not been more successful in their labors ; 
and they agree with the Assign ees, in stating 
that the difficulty of their task arose from the 
imperfect «nd untrade-like manner in which the 
Bankrupt's books have been kept. 

The Bankrupt and his Accountant on their res- 
pective examinations were unable to give any sa- 
tisfactory answers to the various entries to which 
their attention was directed, and stated their in- 
ability to remove the difficulties pointed out with- 
out a more minute reference to the books. The 
Court, thierefore, ordered that the books of the 
Bankrupt should bo put at his disposal and of his 
Accountant by the trade Assignees, who hastened 
to comply with the orders of the Courts Re-exa- 
mined after reference by him and his Account- 
ant to the books, neither the Bankrupt, nor ac- 
countantjCould explain the irregularities apparent 
on the face of the books. And it was not until 
the certificate sitting that the Bankrupt on see- 
ing the opposition of the trade-assignees to the 
allowance of the certificate moved for, that the 
Bankrupt, through his Counsel, gave certain ex- 
planations which, however plausible at first sight, 
might prove anything but satisfactory on further 
reflection. The late hour at which they were 
ushered in (viz) when the Assignees had all but 
closed their case, is a fact which militates very 
much against their having with the Court, the 
weight to which they would have been otherwise 
entitled had they been afforded at an earlier stage 
of the proceedings, when the Court and the As- 
signees would have had ample time to inquire in- 
to their merits. Of this advantage, however, the 
Court and Assignees have been deprived. 

Had the Bankrupt's books been properly kept, 
as they should have been, they would have spoken 
for themselves, and there would have been no ne- 
cessity for such numerous explanations, however 
truthful they may be, because there would have 
been no room for them. As justly observed by 
Commissioner Mmhlanqui in re Smart and several 
other cases (Fonhlanqui^s Reports of cases in 
Bankruptcy 1849 to 1852 page 14.) 

''It is not sufficient that there should be 
books, they must be properly kept and balan- 
ced from time to time, so that at any time the 
real state of the traders affairs may at once ap- 
pear P " 

^ This desideratum is certainly not to be found 
in this case. The state of the books is .such 
that it would have been impossible that, at any 
time ; the real state of Ch. Domain's affairs 
should at once appear from his books, whether I 
referred to by Ch, Domain personally or by any 
of his creditors as anxious as himself to ascer- 
tain the real state of his affairs before or after 



insolvency. Some errors, of course, may and must 
be expected to creep into the best kept books* 
but those errors are, generally, of a trifling cha- 
racter, easily to be discovered, at all events not 
so numerous and so 'gross as those noticed in 
Domain's books, not of such a nature as to de- 
ceive the trader and his creditors as to the real 
state of the trader's affairs. 

This is not all : In book No. 103 the knife of 
the accountant has been in use ; nearly fortjf 
folios have been cut off. The accountant tells 
us that those cuttings were made by him, of 
his own accord, and without the knowledge op 
privity of the Bankrupts, for the following rea- 
sons : lo because certain entries had erronious* 
ly been made therein.. 21|| in order to make the 
book look neat, and 3ly because he did not be- 
lieve that^he book could be of any use hereaf- 
ter to any one else but Domain. 

The cuttings are at the opening of the book; 
They are so numerous and so apparent that the 
damage done to the book could not escape the 
notice of the Bankrupt. They must have caught 
his eye. And yet Domain far from reprimand- 
ing or dismissing from his service the accountant 
who had taken such an unwarrantable liberty 
with the book, continued to employ him as ac- 
countant and did not even enquire what he had 
done with the missing folios whicih the account* 
ant tells us " were torn up by him." 

We are quite in the dark as to the transactions 
of Domain with Lory ; as already observed, might 
not those missing folios have thrown some light 
on those transactions, not^^ithstanding the belief 
expressed by the accountant of their utter use- 
lessness to any else but Domain P 

But say that the missing folios had no refe- 
rence to the transactions between the Bankrupt 
and Lory, they might have revealed other facts, 
the knowledge of which might have been of a 
greater or less importance to the Bankrupt's cre- 
ditors or to the Bankrupt, personally. The cut- 
ting off of those folios assume a more serious as- 
pect when it is considered fbat the accoun- 
tant cannot speak positively as to. their contents. 
It is true that Hily the accountant says that he 
is ready to swear that the settlement with Lory 
formed no part of the contents of the missing fo- 
lios, forgetting, at that moment, that he had un- 
hesitatingly said on oath, a few lines before : ** I 
do not remember w^at was in them " (the mis- 
sing folios.) 

To sum up, I have before me a trader who, for 
many years, was carrying on an extensive trade ; 
who from 1855 to 1859 kept no books; who on 
the suggestion and at the request of one who had 
aided him in his trade, whether as a friend or as 
a money-lender, was a partner : had thought fit 
to part in favor of Lory with whatever books or 
notes kept by him as well as the *' sous seing- 
priv6 " existing between himself and the money- 
lender : who from 1859 to the date of his bank- 
ruptcy did keep several books, it is true, but so 
imperfectly that it wou'd have been, as it has 
lately proved, impossible for him or any of his 
creditors having an equal interest with himself* to 
know the real state of his affairs at " any given 



110 



DECISIONS OF THE 



[U6» 



uu^Mibi ** to metrW'Q tbe mme on refiereoee to 
tb« ix^/kf kiSrpt and x^ov pr^d'^e^. Farther, 
tiuU in4^ Mw tb« nriCitiiatLoDi of book No, 
](i3f iMrt^r reprinuuided Lifl book-keeper for 
ibe r<tbov*l of the 40 folios mUftirg on the 
Cm of the book, thofj;^fa the cottiog off those 
f(rfiof eotiSd not but \»%^t ttm/irk his eye, being at 
the <fp«Ding of the book. He nerer took the 
trouble of eriquiririi^ what had become of the 
misfeiflg folios and wbat was their contents. 

I bare b#:en told the fault laj not with the 
Bankrupt but with bis accountant. 

To tUrttrifti hirn of a certificate would be render- 
ing the bankrupt responsible for the acts and 
deeds of a third party, which would be not only 
harsh but inconsi*tent with irquity and the rul^ of 
law which reauires that the guilty party and he 
o/r/ne should near the penalty to which he msy 
bave rendered himself amenable by his own per- 
sonal misconduct. This would be true, had not 
that trader sanctioned and ratified the acts and 
deeds of his Accou* tsnt : lo. liy his not having 
reprimsnded him for the unwarrantable liberty 
he faa^l taken with his books, &c. 2 ly By hav- 
ing prenetYed in his employ an Accountant who 
acknowledgi:s that such cuttings as thorie above 

{minted out ** ought not to be done in book- 
Lcepiijg, " and who has committed the gross 
errors to which bis attention was called when 
under ozaminaiion, even after a minute inspec- 
tion of the books kept by him. 

But the question in such a case as this is not so 
much one of punishment as one of immunity^ the 

Suestion being whether a trader who has so con- 
ucted himself shall bo permitted to resume trad* 
inn without faying hid craditorfi, or in the words 
of the L<yr(l Jvstica Cranvforth, the question is 
sot as to the proper quantity of pmishment to be 
inflicted u)>on tho Bankrupt, but whether this 
Oourt ought to sanction the re-entry of the 
Bankrupt uito business, without having previously 
paid his debts in full, (Ex- Parte Curties, Ban- 
xruptcy Appeals, 1861 to 186G) in which case 
of appciil by tho Bankrupt from the refusal of 
his cortificato, tho Petition was dimissod with 
costs and oil protection refused. 

I may add with Lord Justice Knight Bruce in 
his Judgmont in the case above, other circums- 
tanoos might be noticed ; but without laying stress 
on moro niinuto fact**, I find those which I bave 
alruiuiy nii'iitioncd before me, and I am asked in 
thooxcrcico of n judicial discretion of a tribunal 
Imviiig to A certain oxtont tho judicial adminis' 
tration of the aiFuirH of commorco, to givo tho 

Jasspurt of such a tribunal to this man to enable 
im to outer ogain into trade. It is a demand 
without a pretext ; it is a demand without colour, 
and 1 do not rcoolleci a case where a certificate 
has been asked in wluoh thoro were moro plau- 
siblo and irrosistiblo grounds for refusal. 

And concluding my Judgment in the words of 
tho ** Lord Justitv Knight Bruce, " I can well 
•ay for my part and so far ss my Judgment is con- 
oorned, 1 dismiss the Petition, refu?«e the certi- 
floato and refuse any proteotion whatever, with 
costs.** 



HEXHi DOM Anr. 



The motior, for a Certificafee, by tt» Rankiapt 
Henri Domain, was misted by tiie Aade-As- 
aigoees, on the same groonds •■ tlioae atetad in 
their oppoaitioo to the moCioii of Clurln Domain 
to a similar end. 

My reasons for lefosine a CerCificale to Ob. 
Dopiain apply equally to the cue of Henri Do- 
main. The irregularittea apparent on the &ee of 
Henri Domain's hooka, his peraonal inability »^i 
the inability of his acooontant, aatiafiMtorily to 
explain the irregnlaritiea pointeid oat to him and 
to his accountant, even :.fter a minnte examina- 
tion of the books, the alterationa of fignrea at the 
opening of his book No. 2, the alleged wrong 
entries, the counter entries to amend such alleged 
wrong entries altogether nnaoconnted for, and 
the late hour at which an attempt waa made bj 
Counsel to explain away the charges diieeted bj 
the Assignees against the Bankrupt, hare led me, 
open the strength of the anthontiea quoted at 
length in my Judgment, on the motion of Cb« 
Domain, to refuse, as I do refuse, the CertiiScate 
prayed for, and further lefhie any protection 
whatever, with costs* 

J, MAUBEL. 

This was a motion by the Bankrupt for the 
granting of a certificate. The motion was op- 
posed by the assignees, on the same grounda 
urged by them against the applications of Char- 
les and Henri Domain for a certificate, baring 
reference to the irregularities apparent ontbe 
face of the Bankrupt's book and pointed out by 
them to. Maurel and his accountant. After a 
minute reference to the books, neither the Bank- 
rupt nor his accountant could account satis£acto- 
rily for the irregularities to which their attention 
hod been directed. 

True it is that an attempt was made by Conn- 
sel, at the last hour, at a satisfactory explana* 
tion of the irregularities complained of. 

When this could not be done the blame waa 
immediately laid to the charge of the account- 
ant who was to be made a scape goat the better 
to relieve the Bankrupt from the conseqaencea of 
his own laches whether personal or through hia 
agent whose doings were sanctioned and allowed 
by the Bankrupt whose bounden duty waa to 
have checked the careless mode of booK-keeping 
a f opted by his accountant and continued up to 
the date of the bankruptcy. 

Surely during all that long space he most have 
had frequent opportunities of referring to his 
books and could not help noticing the irregola- 
rities pointed out by the Assigneea and might 
have put a stop to the evil pointed out. 

in this as in the two cases of Charles and 
Henri Domain, and for the reasons fully sat oat 
in Charles Domain's caae, I refuse the certificate 
and refuse any protection whateyer. — ^With coitf • 



i«eg] 



COUftTS OP MAURITIUS. 



BDNlEia COflBf . 



Jjn^'une pafHe intSreuSe dtmre oifmfr Zs eAon* 
gament iTun gran2M> iSj^vsM nommj^or "£t4le" 
^ la Cour Supreme, elle devra prodture tm 
" .A^Savit " deafmta extr leiquelt eUe baae aa 
■demtmde, ei aatigner ioiitet hi partiei en eavte 
dant le premUr "BuU," i amiparaitre depant le 
TribiHtat, powr eoir ordormer qn'un "Buie Niei " 
gera accordS par la (hur,fiMLnt una audience i 
lagitelle la gtteslion sera debattue. 



JiTDictAii Skquxstkatob, — KoTioB OF MoTioir- 
— AiKDATiT,— RpxB Nisi. 

Ifyn apdrtylo'alBiile^bppoiniing aJudieial Ss- 
^ueitrator lobA^ to'kaoe tuck iequestrator r9- 
-iiUKiH, hemutt'give notice to aUihe paHiea to 
'ihefirH Rvlt, of hia iaimtion to move for a 
" Kule Nim" to that effeei, and tet forth an af- 
fidavit of &e fyeta on whush he intends to ground 
hit ttplplioatim. 



■WIDOW DIOEE,— PlMntiff, 



GtAU)EJlAM FSSBES jjoi Afos.,— Defen- 
daots. 



His Honor tlie Chigp TimaK and 
Tlie Honorable TS. &. Bebtsl. 



E. Pbllessac, — Of Counsel for FlainU$i. 
E. Laceeft, — PlaintifTB Attorney, 

■f . L. Ohasteelibb,— Of Counsel for Defen- 
dants 
P. ViCTOB, — Defendant*' Attorney, 



10<A Nffoemier 1869. 

A Notice vas served on the Defendants, inti- 
nutiDg to them the intention of Plaintiff to move 
this Court, on the 11th October last or aoy othei 
day wheu Couosel could be heard, for a Bale 
appointing another person in the room and 
, stead of Oaldemar frerefi, the DefendaAta, to 
carry out and execnta a Judgment of the Su- 
preme CourtfOf the 17th August now lastpast.be- 
tween Plaintiff and Defendants.nsmiog Qaldetnar 
&^s Jddicial Administrators of the sugar estate 
£ic%/uMfi, the joint property of the Plaintiff and 
Defeiidaote. The said Buie being asked and 
prayed for on account of the refusal, neglect, 
breaches and laches of the aaid Oddemar frerea 
in the execotion of and concerning the said 
Judgment, which said refusal, neglect, breaches 
and laches of the said Oaldemar ftgres are fully 
mentioned and recited in three Notices served st 
the request ot the Plaintiff on the Defendants, 
OD the 22nd September and on the 11th and 13th 



October now last past | which the Fluntiff would 
bring into. Court, which waa done on the Motion 
day. 

On E. PeliiBbead moving the Court foe the 
Bnle referred to in the notice of motion : 

P. L, Chastsilisb objected on behalf of Oal- 
demar tzhTee to the motion ; be was supported in 
his opposition by L. Bouili^abd, of Counsel f« 
Wilson. 

The olyectioa'waB to the form of tbe moti(^ 
which, it waa contended, waa inconsistent with 
the Rules ^d practice of the Court. 

In caBOBsimilar to the present, the Bule and 
practice was : lo. To give notice of the motion 
intended to be made on the day mentioned in the 
notice, and 2o. npon an affidavit aetting forth the 
groanda in support of the application to move the 
Court for a Bule " Nid " in tne first instance, re- 
turnable on any given day ao as to put the De- 
fendant in poBBeBsioD of the grievances complain- 
ed of and of giving him the opportunity of ascer- 
taining the nature of the demand made npon him 
and thuB enabling him to prepare his defence, 
if any he have, to the application. 

- The Plaintiff sboiild have adopted the Proce- 
dure traced ont in form 10 of the Uules of Court^ 
the same procedure resorted to by Oaldemar 
frires V, JHorS & or*, for their appointment aa 
judicial administrators of " Bichfand. " 

That Form is Form 10 entitled : " NoUee vr^ 
tummoita before tiie Court, to abew came why &a ; 
Whereas the Form followed by the Plaintiff in 
this case is that hearing No. 8 entitled : "Notiee 
of Motion. " 

2o. Again, the several parties to the Judg. 
ment appointing Gsidemar fr^ri^s Administraton 
of tbe Estate " Bichfund " have not been called 
into Court, and yet they have or many have an 
interest in opposing the chaoge prayed for, no 
Nutice of Motion having been served on them. 

E. Peliebbait supported the form of the pn>^ 
ceedjngs adopted by reference to Form 10 of the 
Bulea of CouFt, which rules that " in all that 
class of cases which are not susceptible of com- 
mencement by Declaration and in which it was 
formely lawful, under ihe " Code of Procedure 
Civile, " for one party to commence proceedings 
by giving to the adverse party, de piano, an " As- 
sigoation a comparaitre devaut Je tribunal &e, 
pour voir ordonner &c. " a party may, instead of 
the above notice (Form 8 Notice of Motion) use 
the following form No. 10, that is " Notice with 
Summons before the Coort, to shew cause why " 
Ate. 

He contended that the Motion for the remov- 
al of Galdemar frferes from their administration 
was one ot that class of cases not susceptible of 
commencement by Declaration, hut in which the 
Plaintiff was entitled to give, de piano, to the 
adverse party(the Defendants) an "Assignation h 
comparaitre devant le tribunal &c, pour voir or- 
donner " that they should be deprived of the ad- 
ministration confided to them by the Rule *tt 



118 



DECISIONS OF THE 



[1869 



Court afore-mentioned for the several reasons 
brought to their knowledge bj the sereral notices 
served upon the Defendants. 

Form 10 sajs nothing of the Affidavit the ab 
sence of which, howerer, is more than compen- 
sated for bj the fact of the notices served on De- 
fendantSyhaving specifically set forth the grievances 
complained of bj the Plaintiff. Let it not, there- 
fore, be said that the adoption of the form com- 
plained of is unfair to the GhUdemar fir^res bj 
depriving the latter of the possibilitj of shevring 
cause against this motion. The form adopted on 
this occasion is the same that was resorted to by 
theGaldemar fibres when claiming the administra- 
tion of Biehfund against the now Plaintiff. And 
why sboald not the same form be followeil by 
the Widow Diore for the purposes of depriving 
the Defendants of their administration ? 

JUDGMENT. 

It is not unimportant that suitors should en- 
ter this Court by the right door. If instead of 
a strict adherence to the Rules of practise and to 
the forms traced out by the Rules ot Court for 
the guidance of practitioners, the latter were at 
liberty to lay aside the forms given, and to adopt 
others of their own framing, there would be an 
end to anything like certainty in the practice, 
confusion would be the immediate result from 
such a departure from the Bules of practice of 
this Court, to the great prejudice of suitors, and 
of a great hinderance to a safe and speedy admi- 
nistration of Justice. 

But to return to the' subject matter before us : 

The Form adopted in this case, is not, as erro- 
neously stated by E. Pellebbau, the Form 10, 
but the form No 8, entitled ** Notice of Motion" 
which should b6 set down on the Cause- Paper of 
this day on which the motion was to be made. 
This motion was not so put down. 

'' Notice of motion is sometimes given to the 
<f opposite party, particularly where it is desired 
** that time and expense ma^ be saved by affor- 
*' ding the party an opportunity of showing cause 
^' agaiost it in the first instance. " {Ohitty^s 
Archb. Pract. p. 1413) 

However desirable it might have been that the 
Defendants should shew cause, in the first ins- 
tance, yet it could hardly be expected that they 
should be in a position to do so, espe- 
cially in presence of the numerous grievances 
set out in the Notices served upon them and of 
the importance of the issue before the Court 
which IS neither more nor less than a side way 
of setting aside a Judgment of this Court, with- 
out a new-trial. 

A Notice of motion is a mere intimation to an 
adverse party of an intended motion whether for 
a Rule " Wwi," or a Rule •* Absolute," in the 
first instance. 

*' All Rules to set aside proceedings for irre* 
gularity or otherwise, are Bules '* Nisif^* a fortiori 
should they be so when not irregular proceedings 
but a formal Judgment is sought to be set aside." 



"^ I^ "^ a&so2s<e " in the « fint instanee, Vbef 
** are obtained thus : Let an AfidauU be made 
** of the &ctB ncccessry to support tiie applies- 
*' tion &c. If the Bnle ieq[iiiied be a Bole 
^ miti ** <Hily, give the Motion-F^Mr with the 
^^ Affidavit, annexed, to Coonael &c. (fifhiUf^w. 
** 2lf«W: Pract: p. 1411) •» 

Therefore, whether the Role moved for be 
** Niii " or **' Ai$oluie" in the first instance an 
affidavit must be made of the &ctB neoessaiy to 
support the application and laid before the 
Coort. 

We have no inch affidavit in support of the 
Plaintiff's motion, till the ^yezy dose of tlus dia- 
cnssion. 

The Bnle and the practice of this Court, 
grounded on the Bules and practice of ^ West- 
minster " lead us to the condosion that the 
Plaintiff is not '^ reda in curia " and therefore 
that she cannot and that she do take nothing by 
her motion. 

We are the more confirmed in this conclusion 
hj the fact of the Plaintiff not having called into 
dourt some parties who might have an interest 
in upholding the Judgment songht to be set 
aside and who might have succeeded in doing so 
had they been afforded an opportunity of shew- 
ing cause against this motion. ^ - 

Costs against Widow E^iore. 



SUPREME COUBT. 



DrvoBCE, — SincBSETTirjiiEES G-sates, — Iybo- 

GNSBIE. 



DrvoBCE,— ScBviTiA Aim *'1kjtjkbs Graves. "- 

D^JJKKXJSnSTEBB, 



L THE WIPE,— Plaintiff, 

versus 
L THE HTJSBAMD,— Defendant. 

Before 

His Honor The Chief JimaE, and 
The Honorable Or. B. Colin. 



Hon. V. Naz, —Of Counsel for Plaintiff. 
H. Bbbtebt, — Plaintiff's Attorney. 

P. L. Chastellieb,— Of Counsel for Defendant. 
V. Latal, — Defendant's Attorney. 



25ih2ravenib€rlSe9. 

This was a s\;it introduced before this Court 

by M«..« ]Sr.... L -the wife of J.....« 

V f . f f L. • • •, for a div'orce a vinculo matrimonii 



1869] 



COUETS OF MAURITIUS. 



119 



The charges blc^ught by the Plaintiff against her 
husband, extend o?er several years, and set forth 
a series of soeviiia which if made oat would evi- 
dently show the Plaintiff's wedded life to have 
been miserable, indeed. At the root of all her 
Bufferings, the Plaintiff had placed her husband's 
inveterate habits of intoxication that have so 
grown upon him and mastered all self-control, 
that he constantly threatens and strikes her, 
stjikes her mother, and has been sentenced to be 
imprisoned for three months with h^rd labour, 
and to pay a fine, by the District Magistrate of 
Black Biver, on account of his great violence and 
the assault to which it led. His intemperance 
has also, it is alleged, brought about the ruin of 
himself- and the whole family to such a degree, 
that the Plaintiff is often obliged to have recourse 
to her neighbour's charity for her children's 
bread. 

The defence attempted to palliate the conduct 
of the Defendant and to attribute the cause of 
some part, &t least, of the grievances suffered by 
the Plaintiff, to her mother's undue interfe- 
rence and meddling in the domestic concerns 
of husband and wife. The Defendant also denied 
having brought about the ruin of the family, and 
expressed himself anxious, if his ' wife would re- 
turn to him, to atone for his past conduct. 

We are of opinion that the only part of the 
Defendant's answer which we can sustain is that 
in which he repudiates the delapidation of his 
wife's fortune, the ruin of his mother-in-law. 
Sad as is the fact, and painful the apparent con- 
sequences of the fact, we do not find sufficient 
evidence to convince us that the Defendant has 
directly brought about the state of misery which 
seems to stare the family in the face. But we 
have sufficient evidence that he did nothing to 
support the family where every exertion on his 
part was called for ; when he should have strain- 
ed every nerve to sustain his tottering fortunes. 

Instead of taking to work, he took ,to drink, 
and intemperance brought in its train ; idleness, 
misery and degradation. 

We believe, from the evidence before us, that 
the Defendant is a confirmed drunkard^ not we 
trust past recovery and past atonement, but a 
drunkard who has already done enough, caused 
his wife to suffer enough to entitle her to the 
legal remedy she sues for. 

His violence, when drunk, is left beyond any 
reasonable doubt ; he slaps his wife's face, strikes 
ber with his fist, attempts to', strangle her, So 
says Mrs. Leguen, the Plaintiff's sister. By 
Arthemise Bonne Langue, he is seen to strike 
and kick his wife, then to rush upon his mother- 
in-law, push her against the wall, and attempt to 
strangle her, and that scene is not a solitary one ; 
I^icolas Babilonne speaks of facts of the same 
nature. Inspector Brownrigg and Sergeant Gray, 
show that he was once sent for by the District 
Magisti^tQ and warned not to begin again ; he 
had been striking his wife and mother-in-law ; 
the warning passed unheeded, and again he is 
brought up and sentenced to three months' im- 
prisonment and to pay a fine of £10. Rivet^ a 



neighbour, proves very clearly the destitution in 
which the children were left ; he often had to 
give them food, and the Plaintiff has been obliged 
to sell Jewells, furniture and clothes to feed her 
children. 

His conduct to his children, themselves, was 
harsh ; and to his frequent use of the horsewhip 
' to strike them, and her interference on their be- 
half, the mother-in-law attributes the first cause 
X)f dissension between her son-in-law and herself. 

Against the Plaintiff herself, not a word is 
said ; the best feature of the Defendant's case is 
the avowal made by him that he has not a word 
to say against her chastity or her character. 

But that avowal is not sufficient to defeat the 
Plaintiff's right, at best an afterthought, it can- 
not excuse the obloquy heaped upon her^ the 
coarse, disgraceful language used towards one 
who bojrn of respectable parentage, as the wit- 
nesses say, chaste and pure as she is confessed to 
be, striving to bring up her young children pro- 
perly, notwithstanding the fatal exemple set up 
by their own father, must have had constantly 
her feelings outraged, her sense of decorum and 
of shame put to the severest trials. It is not suf- 
ficient to atone for acts of violence and brutality 
which drunkenness explains, whilst it does not 
excuse ; it is not sufficient to lead us to hope 
that a life so dissolute will be amended upon a 
further trial of common life ; drunkenness and 
idleness, brutality to others, and self-degrada- 
tion, are found here together and are here found 
to have led to a state of misery, which, if the 
witnesses speak the truth, and we believe that 
they do speak the truth, is not often witnessed. 
It is possible that the mother-in-law may have 
interfered when she ought not to have interfered, 
but .we find no evidence of such undue inter- 
ference, it is only natural that that lady 
should have tried to avert from her grand-child- 
ren's backs their father's horse-whip, and she, 
too, has suffered much and has suffered long. 

We allow this prayer and grant a decree for a 
divorce a vinculo ; we authorize this Plaintiff to 
repair within the legal delays, before the Officer 
of the Civil Status of the District, where the mar- 
riage bond was entered into in order that the 
divorce be pronounced by such Officer who is by 
this decree authorized to pronounce the same. 

In the course of the argument, the custody of 
the children was alluded to. We find no formal 
motion to that effect ; we, therefore, make no 
formal Order ; but our Law, Art. 302, has pro- 
vided generally for the custody of the children, 
unless a special Order be granted by the Court at 
the instance of the family or the *' Minist^re 
Public." It is still open to the family or to the 
** Ministfere Public " to apply for a special Order, 
if they think it right ; but we have beard np such 
application, /et. 

Defendant shall pay the costs of this suit. 



i 



&0 



DECTSIONS OF tEE 



[1869 



BIILC9IIB1L 



ASSEL B'DV IVBIMtST DE LA CoiTS DC DiBTBICT, 

Cadiioit,— DiLAI. 

L'aspel Wan Jugement de Covr de District doit 
are/aii data U» einqjovrt Ae la daU du dit 
Jugement, el le Magittrat doit, " aunitSt " aprh 
gtie Ui raisotu d^tippei lui tout remises, k>u- 
mettre VAppelant a ii« eautionnemtnt ; mais 
Pappel n'ettpoini nul si Is cautkmnemant n^a 
pas 4U foumi el re^ datu ha cinqjour$ du J*ge- 
meTU. 

ApFEAI. 7B0M A JUSQICIHT OF SlBTOICT CoUBT, 

^-Sbctjetit, — Deiay. 

Every person appending from the Judgment of a 
Disbrid Court, must, within five days from the 
dale of the Judgment, exetunvehf, give notice in 
writing of such intended appeal, to the Dietrict 
Magistrate, who shall '^ immedialehf " bind the 
party lo giving such notice, with student lecm- 

LBultveh appeal u nol annulled by thofact 
suck secvrily was entered into on the day 
afttr Qt,e eapiry of Qie jive days. 



LAIiOtnETTB,— Appellant, 



LAZABE.— Beapondent. 



HiB Honor &Ir. Jdsuce Coub. 



A. Lalotiettk, — Of GoDiiBel for himaelf. 
J. U. HiTrf, — Attorney for same. 
£. J.Leci£zio, — Of CoDUBel for Bespondeat. 
L. Debfebleb, —£eBpon dent's Al;};omey. 



25th November 1869. 

In this caee which wbb an appeal from a I>eci< 
sion of the District Court of Grand Port, dated 
27tli April laBt, the Bespondent, when the cause 
, came on for hearing, took an ohjection against 
the admissibility of the appeal which, as he con- 
tended, had not beea followed ■;)p in cooformity 
with Section 61 of the District Court Ordinance, 
CiTit side. The section runs thus : ^ 

" Every person bo appealing, shall, within five 
" days from the date of the Judgment, ezclusi- 
" veiy, give notice in writing of such iutended 
" appeal to the District Magistrate ; upon which 
*' Notice Buch Ma^strate shall immediiftely bind 
" the party ao giving such Notice, by recogni- 
*' zance to Her Majesty, with sufficleut security 
*' of equal ttmount to the sun; and costs awarded ; 
'* and the oondition whereof shall be that such 
(* party giving such notice of appeal, shall appear, 
•* and nitbia a fortnigth, prosecute Buch appeal 
«* to its conclusion before the above named Su- 
*' preme Court, and pay such cost^s the Mid 



" Court mky award on such ftppeal. The psr^ 
" having so been bound by rect^iEance bIhiH 
" lodge his appeal in the Begiatry of the Bald 
" Cuurt, and give to tlio Reo^oudent notice df 
" the appeal, within five days from the daite of 
" the recognisance." » 

It WBB Admitted by the Bespondent that notice 
in writing had been raven to the Mwistrtftb^ 
within Bve daya from the date of the Judgment i 
but it waB contended that the recognizance wu 
entered into after the five daya, to wit : on the 
day after the expiry of* the five days, and that 
the words " upon which notice, aucb Magistratb 
'' iball immec^iately bind the party' so , giviiv 
" enoh notice, by recognizance," was inteodm 
to bring the recognizance within the five day* tt 
well as the Kotioe in writddg of the intended 
appeal. 

.The delay of fire days is, by the section, ex- 
presBly enacted lor the Xotice of appeal ; it is 
not expressly extended to the recognisance ; and 
as nullities of every dbseriptidn and perh^ia. 
more especially those which woald bar the ezer- 
cise of aright given^by iyi,e^miate,Ke atrictiseinU 
juris, I am, prima fade, of opihlon tbat the 
appeal should not be estopped by the foot that 
the recognizance was given on the day imme- 
diately following the notice of appeal. The argu- 
ment that the Ordinance enOcts that the recog- 
nieance shall be immediately alter taken, aUd 
that therefore the recoguiz^ce should be taken 
within the five days, would give to the statute a 
very harah conBtruction, conatruction not bonw 
out by the legal sense of the word "inunediatety," 

The Appellant has five days to give notios <tf 
appeal ; he may, therefore, wait until the Isit 
portion of the time allowed to him to serve bii 
notice of appeal. Shall the MagiBtrat^ be bonni 
to Bit beyAnd the ububI Court botirs to bind the 
Aptiellantby recognisance, or may he not wait 
nntil the next day P He would be bound to ai 
on, if the wOrd '' immediately " had the meaning 
given to it by the Respondent, i.e., at the very 
minute that follows. But it is settled that the 
word has no such meaning. 

By the 13 Eliz. C. 6, Sect. 2. costs could not 
be awarded beyond the eum of the debt or dam- 
ages recovered wheu the auifi of the debt or 
damages did not amoiiiTt to forty abiUingg ; that 
statute waa amended by the subsequent statute 
3 and 4 Yictoria C, 24. which allowa, in certain 
cases, the Judge to certify certain matters^ upon 
which certificate, costs would be allowed. The 
statute enacts : " uoless the Judge or PreBitUng 
OfBcer shall immediately certify," 

The strict meaning of the word :tbnmediately^ 
came under cnnsideration of the Court, and it 
has been held that the certificate might be grknfe- 
ed at or within a reasonable time after trial- OE 
enqairy. In fact, tbat the force of the word 
*' immediately " was not to bind the Judge t9 
certify as soon as the verdict was brought in, btit 
gave him a certain reasonable latitude. 

Thmipton v. Oihton 8. M. and W. 281, 
Fage v. Fearce 8 M. and yf. 677. 

In the former case, Baboit AxdibSoit refflri^d 



1869] 



COUETS OP MAURITIUS. 



131 



to a Judgment of Loao Geutoillob Hjxs- 
mOK, Bm T. R'anat ( caaes Tomp. Hmdwicke 
114) Hia Lordshipitliere, said ; "It was Bsid tliat 
the word " immediatelT " excluded all interme- 
diate time aed action, but it will be found that it 
has not, neceeaarilf , ao strict a signification." 

The word " immediately " has almost the same 
lorce as the word *' inataster " ; that term has 
iMen held to mean that the act ahatl be done 
within twenty-four honra, 

Chitty'b pracHee of the Law III. 82, quoting 
jpriee t. SifnpMn, 1. TADin 343. 

In the same way, the term " forthwith " baa 
been considered in Nicholh v. Chambers (I, Cr. 
MAW. 386) to import that the requisitekact 
shall be performed aa soon as, by reasonable 
exertion coaficed to that object, it might be. 

We have just seen caeea in which the word 
** immediately " was used and construed in the 
same manner, and this Oourtin JOowland v. Je^^t, 
construed it so, likewise. 

In fact, just AS the Judge who is to grant the 
certificate for costa, " immediately", may take a 
leBBOoable time to consider, the Magistrate who 
is to bind, immediately, may take a reasonable 
time to conaider the value oi the security tender- 
ed. 

With respect to tbo Ordinance, there is this 
more to be said : if the legislature ' had- intended 
the teem of five days to C9rep, in every case, both 
the Notice ot appeal which is mentioned in direct 
cennection with the five days, and the recogni< 
xance which is not mentioned in direct connection 
vith the five days, the legislature would have 
directly included both acta within the prescribed 
delay, and it baa not, 

We think, for I have taken the opinioii of my 
brother Judges on this point of practice, and' 
they ^ree with tne, that, aa a rule, tbe delay 
should not be allowed W the Dietriot Magistrate 
' to go beyond the very first moment after the five 
days subsequent on Judgment, that he can bind 
the Appellant, 

The objection to the admieaibility of the appeal 
IB overruled, with costs against the Bespondent. 



SUPREME CODBT. 



MaIQIAKT ET HAltnATAIBB, — HaHHAT TACITE,— 
IfBGOTIOBnif OE8TOB, — AgENCB D'DNS PBO- 
TBliTE SqOBliBE, — COUFTE-COCBAHT- 

Ifl compte-courant ouvertpwt deg commUtionnairei 
d un plantew et amiirme, aprea la mort de ce 

■ d«mi&r,aveclaeiiccesncm,nepetttlier qaelea hS- 
ritien (pti out persoaneUestent control avee les 

■ commimoTOUtiret. Odvi qui a eontraetS n'ert 
point, jiuju'&preuve du contraire,' le maatdaiaise 
iaeite dea mitres eo-ASritieri quipeuvent ridct- ■ 
mer la halanee de eompU-cowant hur rmmumt 
a la date da didt de Iwtraittewr. 



Pbifoivai^ ' Ain> xavsr, — Tacit POWBB-OF-Af-, 

TOBITET, — ^NeOOTIOBITK GESTOB,— AsUfCZ OV 

A 8u6AB Estate,— AccouKT cubbeht. 
.Am ijtcema^ current opened hy agenU in town it 
a I'lanter and cotiiinued after the death oftha 
laiiar vrilh his repregentativei, it binding upon 
suchofthe heire only who liave contraotedper-' 
sonnaUy with the agents. Those who have 10 
contrail are not, prima facie, the taeit agents of 

. the other co-heirs who are' entitled to claim Ois' 
amount of the balaneefOf such aeoount current 

. jKoruing io them at the ^Ue of the opening of iha 



FELINE,— Plaintifi", 

F. GONNET, FLASSON & Co.— Defendant*, 

Before : 
His Honor the Chie; Judge. 

Hon. E. J. htCL&zio, — Of Counsel for PlaintiC 

A. J. CoLTH, — Attorney for same. 

L. BonnxABD, — Of Connsel for Defen- 

dantB. 
J. PiGiTBGDT, — Attorney for same. 

21tk November 1869. 
Id this case, the Plaintiff Mr Francois Feline, 
in his capacity of heir of the late Pierre Feline 
his father, sued the Defendant lor the payment 
of the sam of ,$490.44 being, as was alleged, the 
third part oF tbe snm of ^1.471.32, balance of an 
account current for the Estate " Mon Backer," 
acknowledged by the Defendant to be due to tha 
late Pierre Feline, on the 1st May 18G1. 

Judgment was asked by the Plaintifi', for (he 
ftbore sum, vn'th interest at the rate of 6 per 
cent from the last mentioned date, with costs 
of suit. 

In answer, the Defendants stated that the late 
Pierre Feline, the father of the Plaintiff, died en 
the 6th January l861. He waa the owner of the 
Estate " Man Bocher " to which the Defendant , 
had been in the habit of furnishing money and 
also tbe ordinary necessaries for carrying on the 
property, receiving in return the sugars and aellx 
ing them in the market. That it is true that the 
account current between the parties, when closed 
on the Ist May 1861, did, aa the Plaintiff alleged, 
shew a balance in faror of the Estate, of £1,471; 
82 of which one third would be $490.44, but , 
tbat the Plaintiff cannot be allowed to pick out 
thfi balance at a particular day when in his favor, 
for, afterwards, on tbe, 6th July 1S41, when the 
Plaintiff sold his share in the Estate to his bro- 
ther Louis Fdine, the balance had turned the 
other way to the extent of upwards of $1,700. ,' 
That the Defendants had, bondjide, continued to 
make aArances to the Estate after, the death of ' 
Mr. Pierre Feline and the closing of the account 
above-mentioned. The property then belonged to 
his two BOOB Louis Feline, the Plaintiff Francois 
Feline, and a sister, Mrs Noble : That the D»< 
fendants considered that those heirs were respoQ- 
aible to them for those advances which benefit 
ed the Estate, Mr Louis Feline having acted foE 
the Eatate and represented the heirs after the 



i22 



DECISIONS OF THE 



[186» 



fa.ihet*B death, in his dealings, witli the^ Defen- 
oants, ia conoection with the Estate Mon Bocher, 
That a division in kind was effected between the 
heirs, on 18th March 1861, when the sons took 
the ImmoTeable Property and the sister had the 
other assets for her share : that on the 5th July, 
as already mentioned, Francois Feline sold his 
share to his brother Louis ; the balance then ap- 
^pearing on the books of t'tie Defendants was then 
upwards of $1/700 against the Estate. The De. 
fendants contended that it was only from the 
date of the sale to Louis that the Plaintiff Fran- 
cois could get quit of bis Lability for his share of 
the loss upon the property ; that the account is 
not an account of the succession, but of the 
Estate, and it is so entered in the books of the 
Defendants. 

THE COTJBT. 

On looking at the business books of Messrs. 
Gonnet, Plasson & Co. we find the following 
entries relating to the Estate Mon Bocher^ 

The account stands in the Ledger, originally. 

''Mon JBocW; P. Feline," and on the 8th 
March 1861, i.e, about two months after the 
death of the owner, the said Pierre Feline, and at 
the close of the sales of the sugars made by him, 
we have an entry closing and balancing the ac- 
count current in the following terms : 

'^ Mon Bother, P. Feline. Arr6t6 le present 
<« compte courant par une balance de quatorze 
'' cent soizante et onze piastres et 82 c. en, favour 
^< de I'Etablissement Mon Bocher ; valeur du ler 
** Mai. J^emis k Mr. L. Feline toutes les pieces 
*' comptables relatives au dit compte courant. 

" 8. E, ou 0. 
^ '* Port Louis, Le 8 Mai 1861. 

'* ApprouvS 

*' pour Tetab. Mon Bocher, 

•• (Signed.) L. Feliot." 

An account appears in the books in the same 
form down till October 1861, on the 16th of that 
month, it is carried to a new folio, and it is con- 
tinuied under the heading '' Mon Bocher^ Louis, 
Feline, '' whose naitne is thus substituted for his 
father's. We thus see that on the 8th May 1861, 
there was a balance of <^ 1,411.32, and due by 
the Defendants, as per account rendered by them, 
of which one third j7nm(£ fade, at least, belonged 
to the Plaintiff as one of his three heirs. T}ie 
account figures in the notarial inventory made 
after the death of Mr Pierre Feline, as bringing 
out " in favor of the succession,'' the above-men- 
tioned sum. This account emanating from the 
Defendants themselves, is the Plaintifirs title, and 
to resist successfully the demand based upon such 
a document, it is necessary that the Defendants 
should be able to allege something in fadt or law, 
Relevant to set Jside that title. What do they 
allege P They say that after the death of the 
fkther, Pierre Feline, and the striking of che ba- 
lance, when all the sugars of the crop were dis- 
posed of they went on makiilig advances to the 
Estate, as before ; that they dealt with Louis 
Feline the son, as representing the family, and 
thht as the balance, afterward^, turnip against 



the Estate, and in the l)efendant*s favor^ they 
cannot be held bound by the state of the accounti 
as it stood admittedly at the beginning of IMiij 
1861, which would just be to allow the Plaintiff 
to pick out, at a particular moment, the balance 
when it suited his purposes. 

There is no reason to doubt that the Defen- 
dants were in good faith when they continued ta 
make advances to this Sugar Estate, after the 
death of their constituent Pierre Feline and their 
giving in the account as closed and balanced oo 
8th May 1861 ; but, to bind the present Plaintiff 
who is one of the heirs and representatives of the 
late owner, they must shew that he is obliged, in 
law,to homologate those advimoes which, in other 
words, would come to this that he must take th^ 
state of the account at a subsequent time when it 
will suit their views and interests, i.e, when the 
balance is in their favor. But on what principle of 
law can the Plaintiff be so bound ? 

The Defendants alleged that they dealt with 
Louis Feline, the only one of the heirs with 
whom it is shewn that they came in contact aa 
representing the ^Eimiiy after the father's death. 
This is quite possible, but what authority had 
they for so dealing with one of the facnily as the 
general representative of all its members ? It 
will be observed that Louis Feline settles the ac- 
counts and recives all the voachers for the Estate* 

This statement that he was acting '' for the 
Estate " conveys no dear and definite meaning 
as to what persons he was acting for. How. 
then, can his acts be bind|pg upon the oth^ 
heirs unless authority to act on their behalf oaa 
be produced ? But there is nothing of the kind 
put forward by the Defendants. It has noi 
Deen shewn, in evidence, that the Plaintiff even 
knew of those advances, far less sanctioned theioa 
or authorized them to be made on his account. 

The demand of the Plaintiff^ founded upon 
the admission of the Defendant of an existing^ 
balance when the last of the sugars of the parti- 
cular crop were sold, has not been piet by any 
plea effectual in law to elide the demahd. 

To the arrangements of the heirs among them* 
selves in the way of partition of the property 
left by their &ther, and the sale of his share of 
the Estate " Mon Bocher ** by one of the brothexfl 
to the other, the Defendants were no parties, and 
they can have but a slender bearing upon the 
present question. The Defendants admit that 
after the Plaintiff parted with his share of the 
Estate to his brother, the Plaintiff can no longer 
be held liable for any part of the advances made 
by item to the Estate ; but the result of their 
argument would come to this tha| while they 
refuse to allow the Plaintiff to stand upon the 
closed account as rendered by themselves on the 
8th May 1861, they would take the balance 
when favorable to them on 5th July thereafter, 
and make him liable for. his share of a balance, 
no proof being produced that he ever auttiopzed 
advances to be made on his account* 

1 think the pontioh of the Flaititiif is good 
in law, and t&exi^fbr^ Judgment will is^iie in hie 
favor in terms of his demand, with coMs; 



1S69] 



COURTS OP MAURITIUS. 



12^ 



SOI^lifiliiE CQURl 



ESBEIJB DS DBOIT, — NXTLLITi. y 

li'erreur de droit, comme V err cut defaii, cmnulle la 
convention lorsqu'elle en a H^ la catise pmct- 
pale et determinante. Dans le doute il n^y a pas 
de mdlite. 

Oireonstances d^aprea lesqttelles^la Cour a decide 
' que fepoux marie en separation de hiens, qui 
avait achete des immembles e^ son nom seul^depms 
la celebration du mariage, et les avait revendms 
depuis, eonjointement avec sa femrne, a un Hers 
(an fidei commis) qui plus fa/rd en avait repasse 
vente aux d&ua epoux, ne pouvaii reclamer la 
rectifieation de ces aetes en se basant sur Verrewr 
de droit qui lui avail fait vendre et racfieter 
eonjointement a/oec saf&nme des immeubles qui 
n*appartenaient qu*a lid settl. 



EittBOB IN LAW,— ^NtTLLITT. 

Errors in law as errors of fact anrml a contract 
when such error is the principal cause and is the 
very essence of the contract. When there is a 
doubt to thai effect, there is no nullity, 

Oihnanstanees under which the Court had ruled 
that a husband married under the mode of the 
separation of property, who had purchased im* 
moveable properties after the celebration of his 
marriage and afterwards had sold the same^ 
jointly with his wife, to an otherparty (afiduda' 
fy} who afterwards sold back the same to the 
iwo spouses f had no right to claim the iiwdifica^ 
turn of such deeds, on the ground that by an error 
in law, he had sold and purchased jointly with 
his wife immoveable properties which were his 
personal properly* 



EAMPAL, — Plamtiff, 

versus 

BOTJR AND Wipe and Anob,— Defendants, 



Before : 

His Honor Mr. J^ctstice Bestel and 
His Honor Mr. Jxtstice Colin. 



Hon. E. J, Leclbzio,— Of Counsel for Plaintiff. 
E. Lecl^io, —Plaintiff's Attorney. 
L, Rouillabd, — Of Counsel for Defendants. 
E. DucBATy — DefoQdants' Attorney. 

's 

2ith Mvember 186^^ 

The Plaintiff brou^Lt ttis action a(;ainst two 
of his children, the issae of his marriage with 
the late Deidamie Mamet, to the effect of claim- 
ing from this Court a decree deolaring that five 
houses situate in this Town of Port Louis, and 
apparently the joint-property of the Plaintiff and 



the Plaintiff's children by Marie Deidamie Mar 
met, aforesaid* belong to the Plaintiff, alone, and 
for no 'part or portion to the Defendants, and 
ordering the Defendants to proceed before Mr 
Oimel, Notary, and sign a notarial deed already 
prepared, and deolaring, as aforesaid, that the said 
n^ve houses are the Plaintiff's e:(clusiTe property. 
The' prayer went on to ask that, should the De- 
fendants be ordered to sign the deed aforesaid 
and neglect to do so," an office copy of the Jadg- 
ment of the Coart to be delivered in the matter 
should be annexed to the notarial document 
aforesaid and such annexion be deemed to be the 
equivalent of their having signed the said nota- 
rial document. 

The Declaration which ushered into Court this 
prayer, after reciting the divers original deeds of 
purchase by the Plaintiff, of the five houses in 
question, set forth that Fran90]s Rampal was 
united in marriage to Marie Deidamie Mamet 
and the marriage contract was drawn up by D^ 
roull^e, late a Notary public, on 25th July 
1835 and stipulated a separation as to propertjr. 
That the Plaintiff during his said marriage did 
sell the houses in question to Eugene Th^veuz 
the wife of Antoine Mamet^ on 5th August 1844i, 
that in the said deed of sale, through an evident 
error, the sale aforesaid was made by the said 
Fran9ois Eampal, theTlaintiff, and the said Marie 
Deidamie Mamet, the wife separated as to pro- 
perty from Pran9ors Bampal, although the said 
Mrs Bampal had no right whatsoever to th^ 
ownership of the said property and could not sell 
the same. 

That by a written declaration' bc^Hg the 
samd date as the notarial deed first describ- 
ed /.'e., 5th August 1844, the- said Mrs An- 
toine Mamet duly authorized by her husband, 
bound herself to re-assign and make over again 
the said real property to Rampal, the Plaintiff, 
and his said wife, when required, the said Mra 
Antoine Mamet averring that the sale aforesaid 
was not a serious one. 

That Mario Deidamie Mamet, the Plaintiff'a 
wife aforesaid, died on September 15th 1846. 

That an inventory after death was then made, 
which said inventory does not mention the real 
properties foresaid as forming part of the suc- 
cession of the late Mrs Bampal. 

That on the 26th Pebruary 1852,. Mrs Antoine 
Mamet reassigiied the real property in questiou 
to Fran9Qis Bampal, again through error, in his 
own personal Qame and as legal guardian of his 
five minors children the issue of his marriage 
with his late wife Marie Deidamie Mamet That 
Bampal the Plaintiff has obtained from some of 
his children a declaration to the effect that they 
lay iio claim to the property, and it is that decla- 
ration which the Defendants refusing to sign, tlie 
Plaiijitiff wishes to have decreed to be binding 
upon them. 

The Defendants pleaded, in subetance, that they 
altogether denied the averments set forthin the 
DecTaratioh« 

That no error was committed by the Plaintiff 
as wrongly alleged by him, • 



124 



DECISIONS OF THE 



[1869 



That the Plaintiff knew perfectly well what lie 
was about when he accepted from Antoine Ma- 
met the wife a declaration or ** contre-lettre " si- 
gned by her with the aathorization of her hus- 
band, to the effect that the sale to her was ficti- 
tious and binding herself to retrocede the same 
and convey them back to the Plaintiffs and his 
wife. 4o. That the Plaintiff knew well what he 
was about when he assented to and signed in his 
own name and as • legal guardian of his mi- 
nor children (their mother being then dead) a 
notarial deed by which the said Mrs Antoiue 
Mamet retroceded^ conveyed and handed over to 
the said Plaintiff in both his alleged capacities 
the 5 houses in question. 

5o. That if the 5 houses in question did not 
figure in the inventory as part of the Estate of 
the late Mrs Kampal, the Defendants' mother, it 
was the Plaintiffs own fault, for he was acting as 
legal guardian in the name of his minor chilcben 
and cannot now avail himself of his breach of 
duties against hiij wards; 

JUDGMENT. 

The Plaintiff's object in this case is, right 
or wrong, to obtain from this Court a decree al- 
tering the tenor of a series of deeds which if 
they stand as'' they are, show that his children, 
the issue of his marriage with the late Marie 
Deidamie Mamet are, as representatives of their 
deceased mother, joint proprietors with himself, 
the Plaintiff, of five houses situate in this town 
of Port Louis. The Plaintiff would oust his 
children out of their rights of joint-ownership, 
alledging that the deeds in question were made 
nnder.the influence of an error in law, and that 
he, the Plaintiff, should be sole owner of the said 
real property. 

The deeds are all signed by the Plaintiff and 
are, a priorif conclusive evidence that he is not 
the sole owner of the five houses, but only joint- 
owner for one half, the other half being his 
children's property. 

Errors in law differ from errors of fact, and 
there are cases in which our law distinctly pre- 
cludes all possibility of curing an error in law ; 
for instance. Art. 1356 enapta that : ^' I'aveu de 
la personne ne pent dtre revoque sous pr^tezte 
d'erreur de droit, mais seulement pour erreur de 
fait." Again Art. 2052 enacts that '^ la transac- 
tion ne pent Mre attaquie pour cause d'erreur 
de droit. " But these are exceptional cases, 
and this general rule seems to be well settled 
that there is no essential distinction between er- 
rors of fact and errors of law when a remedy is 
Bought, and a remedy is still legally possible* 

As the basis of all contracts is the '^ in idem 
placitum conseosus, " it follows that the. article 
1109 adopted that other rule of the civil law ''nulla 
voluntas errantis est, " and save in the exceptions 
which it enacts, our Codes draw no distinction 
between errors in fact and and errors in Law. 

On the other hand, it is not every error either 
•of fact or of law which will tend to vitiate or 
impair the full force of a contract, the error must 
4)0 in the very ei}sence of the oontract| the key- 



stone of the arch ; otherwise many contracts of 
the most legitimate nature and binding force 
would be jeopardized, and the law is not leas 
true, that ^ falsa demonstratio non nocet " when 
enough appears to show the intention, after tha 
false description is rejected or rectified. 

In realty, error must be the principal cause, 
we might even say the sole cause, which led to 
the contract in order to upset the contract. If 
a party may have been determined by some other 
cause, by liberalty, for instance, by a moral or a 
natural obligation, the contract will not be set 
aside because another apparent cause may turn 
out to have been a mistaken one in fact or in law. 
The authorities are very clear in drawing the 
distinction, and it is a just one. Tottllieb YI 
No. 68* — DuBAVTON "%. p. 129; and Labombiebk 
whose work was relied upon to sustain the doc- 
trine that errors in law as well as errors in fact 
might lead to the annuUation of a contract, ex- 
preses himself distinctly. 

Art. 1,110 par. 24 : ^' Mais ' I'erreur de droit, 
doit^dtre^ aussi bien que Terreur de fait, un fait 
certain et la cause d^terminante du contrat. 
Dans le doute il n'y a pas nullity, *' in dubio nocet 
error erranti." The decisions of the Courts lay 
down the same doctrine, inter alia Toulouse, in 
Se Oeniej^ v Oenieys 24 Janvier 1824— S.Y.ch : 
7. 2. 298— Ct. Eiom, in re AUes, 13th March 
1865, — Dalloz ; 55.2.183. — Grenoble, in re To- 
hourechoYBu^.—B. 7.30. 2. 474 ( 24 Juillet 

„ 81.2. 95,) 1830, 

In this cause the Plaintiff states that he was 
married under the '' regime " of separation of 
property and that it was through his mistakini^ 
the law that his wife joined him in the convej- 
ance tohis mother in law Mrs Antoine Mamefe. 

For reasons which.are left destitute of all ex- 
planation, he had put, through a fictitious sale^ 
his real property under his mother in law's name. 
It was only many years afterwards that the pro- 
perty was reconveyed by Mrs Antoine Mamet in 
the same manner as it had been conveyed to her. 

We do not want to inquire' into the motives 
which actuated the Plaintiff, they may have been 
perfectly legitimate ; Art : 1321. C. C. allows^ 
as between the parties themselves, the existence 
and legal force of '' contre-lettres ; " but there 
stands the fact, and it is not from' that fact, as* 
suredly, that we can receive an impression that 
he was mistaken in law. That he purchased the 
property, alone, that when he sold it, his wifo 
sold jointly with himself, may certainly have been 
due to an error in law. But it may have b|Ben 
due to many other causes which we may at once 
say, seem to us a great deal more probable, more 
natural and more legitimate than the one 
alleged, and alleged for the practical purpose of 
depriving the Defendants, his children, of that 
which the Plaintiff has acknowledged, not in 
one deed, but in several deeds to be their's. 

It may have been due to a liberality in favor 
of his wife ; vrhen we look at the marriage con- 
tract, we find a clause, No 5, to the effect that 
^* le futur epoux ou ses hiritiers seront tonus de 
rembourser i^ la future Spouse on ii ses hiritiere 
leprix des Imobteubles etle moataat das oapi- 



1869] 



COURTS OP MAUKITIUS. 



126 



iaux appartenant k la future Spouse, ou qui lui 
reyiendrait pendant le maiian^, si le remploi dtl- 
ment accept^ par la future Spouse n'a pas 6t6 
effectu6, " 

It was therefore foreseen that the bride had to 
receive real property or money; vhich the bride- 
groom would have to account for ; nothing is 
more likely than the fact that the wife was ack- 
nowledged to be joint-owner of the 5 houses was, 
if not a liberality, at least i, just payment, or 
recompense for monies received for her by the 
husband. It may not have been the usual mode 
of accounting or the legal mode of making a 
'^ remploi," but it had a practical effect and shows 
clearly the intent and 'leaning of the Plaintiff's 
mind. 

It must not be forgotten that, so long as his 
.wife was alive, and could defend her own just 
rights, the Plaintiff remained silent, he starts his 
own alleged legal mistake long after her death, 
and she died leaving her children in a state of 
minority, legally protected by himself their fa- 
ther Cur tamdin tacuit ? , 

We are weighing the circumstances of the case, 
perfectly satisfied that the legal error alleged, 
was not, if there was an error, the sole cause, 
was hot even the principal cause on which 
the contract rested. But there is more, upon 
the hypothesis that it was th% sole cause of 
the contract, the Plaintiff must satisfy us, 
that in reality there was an error, and an 
- error on his part. We do not believe, in point 
of fact, that he was mistaken ; we believe that 
when he put his property under his mother Jin * 
law's name, he knew full well what he was about; 
that he knew full well what he was doing whpn 
he conveyed, along with his wife, and subsequent- 
ly took the reconveyance in his name, and as 
guardian of the minors, heirs to their dead 
mother. 

The deeds are full of averments that must have 
opened his eyes to the truth, if they had been 
sealed ; it is there stated that he was separated 
as to property ; suppose he had forgotten that it 
is there stated that he alone had bought the pro- 
perty, if his wife had no right to a share thereof, 
or if he did not mean a liberality, would not that 
circumstance, at once, have disclosed to his mind 
an anomalous state of thing ? We do not believe, 
then, that the Plaintiff was mistaken at all. It 
was urged that in the inventory made of the Es- 
tate of his deceased wile, no mention is made of 
her share of the real property. The Defendants 
^answer this conclusively ; the real property could 
not be mentioned at all, it was still apparently 
the property of the mother in law ; the re -con- 
veyance had not yet been effected, and again 
the children were minors, the Plaintiff was their, 
legal guardian. If the real property could have 
been mentioned and was not, it was his own 
laches, his own fault, and surely he cannot set 
up that conduct as an argument in favor of his 
present views. The Plaintitf urges t}iat he 
Drought this action not to deprive his children, 
but for the sake of one son he has, the issue of 
a first marriage. That sou has long since arrived 
at the years of discretion, (his birth was declared 
on 18th June 1824) and he can act for himself 
HoWi if he have rights ; or if he have none at 



present whenever his rights emerge; The Plain- 
tiff, himself, has a legal interest ; if he is rights 
he wants no such reason ; but the reason given 
brings no conviction to our minds. 

It becomes unnecessary to examine the point 
suggested by the Defendants that the Plaintiff 
has ratified any error under which he acted, if 
error there has been ; it is also uniiecessary to 
examine the consent given by two of the Plain- 
tiff's children, and DVhatever reasons led to that 
consent; that consent leaves the Defendant's 
case on its own merits, neither aided nor shaken 
by it. 

We dismiss the Plaintiff's actions, and we dis- 
miss it with costs. I 



SDPREHE COURT. 



SaISIB DE MEtTBLES, — DeMANDE EN DISTRACTION, 
— TiTBES ENBBGISTBBS,— PbEXJVE TeSTIMO- 
KIALE. 

y CirconstoMces en vertu desquelles la Cour a deddS 
que la demande en distraction de certaint 
meuhtes aaim en la possession d^un dehiteur, ne 
pouvait etre admise, hien qvs par un sous-semg 
prive enregistre plusieurs mois a/oa/nt la saisie^ 
ce dShiteur avait vendu au riclamant les meu" 
hies ohjet de la contestation. 



SeIZUEE of moveable PEOPEETT, — ^IsrTERPLKA- 
DEE, — EeGHSTEEED TITLE DEEDS, — ObAL 
PBOOF. 

Oircumstances under which the Court has refused 
to admit a claim made hy way of interpleader to 
certain moveable property seized whilst in the 
possession of a debtor, although such claim was 
grownded on a deed of sale duly registered seve- 
ral months before the seizure. 



CAMOIN AND JULIEN,— Interpleader claim- 
ants. 
^ In Re : 

Chaeles VIEAIJ,— Plaintiff, 
^ versus 

Andee ALCIDE, — Defendant. 

Before : 
His itiConpr the Chief Judge. 



E. Fellebeait, 

A. B^tttel, 

P. L. ChasteIiLIEB,- 
J. Or. Tessieb, 



— Of Counsel for the Inter- 
pleader claimants. 
— ^Attomeyfor same. 

'Of Counsel for Yieau. 
-Attorney, for «unA. 



12« 



DBCI8ION8 Og THE 



[189ft 



E. Basibi, 

O. GUIBXBT, 
X 6UI9EBI, 



— Of Counsel &rA«Aleide. 
^-Attorney for lamo. 

— Of CoonBol for AssijB^eei 

of A. Alcide. 
'-Attorney for Bame» 



lit Deember 1809. 

On the 18th September iMt, by order of the 
Judge sitting at Ohamberii, Charles Yiean, of 
Ifew Little Mountain street, Port-Louis, pro- 
•priet()r, was allowed, on affidavit, to seize provi- 
sionidly to the amount of ^,405, the gooas and 
chattels of his debtor Andr^ Alcide, Livery 
Stable-keeper, Church street, Port Louis. 

On the 27th September thereafter, Pierre 
Camoin, of Bourbon street, Fort Louis, Attor- 
ney's Clerk and proprietor, and Aristide Julien, 
of Church street, rort Louis, Blacksmith and 
proprietor, gayenotioe that they objected to the 
said provisional seizure, oa the ground that they 
bad purchased certain of the said articles from 
Andr6 Alcide, by a deed of sale dated 14th 
December of last year and registered on the 2drd 
February following. ^ In the said Notice the 
artides so claimed to be freed from the seizure 
were enumerated as follows : lo. A four wheel- 
ed carriage by Erswell; 2o. A 4- wheeled carnage 
by Jones; So. A French 4-wheeled carriage; 
4o. Two hearses complete ; 5o. A green coach ; 
6o. Another coach (coup6) ; 7o. A carriage by 
Erswell with 6 seats ; 8o. A bay horse ; 9o. An 
Australian horse ; lOo. An Australian bay horse ; 
llo. A grey Cape cob ; 12o. A Cape horse (caf6 
au lait) ; 13o. An Australian grey horse ; 14o. 
Two sets of double harness. 

There being, thus, a doable claim of pro- 
perty to the said moveable effects, parties 
were brought before the Supreme Court as 
in an Interpleader, and they agreed that the 
trial should take place before the Chief Judge 
alone, whose Judgment should be held to dispose 
of the matters in dispute. 

Evidence at considerable length was adduced 
on both sides, and the following Judgment em- 
^ bodies the leading facts and arguments of the 
parties. 

Sib C. F. Shaistd, C. J. : 

Mr. Charles Yieau, of Port Louis, being a cre- 
ditor of Mr. Andro Alcide, stable-keeper there, 
executed, in virtue of a Judge's Order, a seizure, 
on the I8th September last, of, tn(sr alia, certain 
carriages, hearses, horses, and harness, as being 
the property of his said debtor and found in his 
possession. On the 27th September thereafter, 
two other persons, Mr. Pierre Camoen, an Attor- 
ney's clerk, and Mr. Aristide Julien, blacksmith. 
Port Louis, appeared in the field and objected to 
the seizure* alleging themselves to be the true 
owners of the said moveables. An issue of pro- 
perty in the Article in question is thus directly 
raised, and that issue must, necessarily, be deter- 
mined upon the evidence which has been sub- 
mitted to the Court. 



In the eooise of the argument, it was pressed 
by the Counsel for the eUumantSi that the stater 
menta made by Alcide ought not to be allowed 
to weigh against them. I put>t to the Couxisel 
for the different parties, whether, looking at the 
position of the various persons interested in the 
present discussion, the case bad not better been 
dispoeed of irrespective of any statements which 
Alcide may have made to the witnesses. This was 
agreed to, and accordingly I have set aside his sta« 
tements on both aides, t . e. whether they appeared 
to weigh in favor or against the claimant's case* 
There is an other point to which I shall, here, ad- 
vert : one of the witnesses deposed to facts adverse 
to the claimants. But he admitted that certain 
disputes had loog existed between his &niilyand. 
some persons to whom one of the claimantfi is 
nearly allied. Without, in the least, impeaching 
the veracity of thisVitness, it appears to me that 
it willjbe better to deal with the case on the 
other evidence, leaving aside what this witness 
had stated. 

In considering the testimony of the other wit- 
nesses, I hare weighed carefully whatever ap- 
peared to affect their credibility. 

• 

The claimants, in the Interpleader, Merars. 
Camoin and Julien, stand As IHaintiffs in such 
an inquiry. They allege that they acquired, by 
a true and bond fide sale, on 14th December 
1868, the property and possession of the move- 
ables i'n dispute, and in support of their preten- 
sions chey have adduced the following documen- 
tary evidence : 

A deed of sale {sous-eeing-prive) dated 14th 
December 1868 and subscribed by AndrA Al- 
cide, alone, acknowledging that he , had sold 
and delivered to the claimants the articles 
which are now in dispute, as they then formed 
part of his Establishment in Church street, and 
in more or less need of repair. The writing 
bears that the seller did not grant warranty; 
the price was stated at ^1,200. half of which 
was ready money ; and for receipt of this sum 
of $600 a discharge w&s given in the said deed 
of sale. It was further declared that as to the 
remainder of the price, it should be due in equal 
sums of <^200 each, for the payment of which 
the purchasers had subscribed, jointly and se« 
veraily. 3 bills for ,8^200 each, ** i^ ordns," fij- 
ling due on 1st January, 1st July and 1st 
March then next, and which bills had, on the 
day of the sale, been handed to the seller. The 
deed of sale farther bore that it was agreed be- 
tween the parties that the whole of the articles 
so sold should be put up (remises) in Alcide's 
establishment '' ou travaille, d'ailleurs, I'un des 
acquereurs," and the purchasers agreed to pay 
a monthly rent of ^85 demandable every month. 
This deed was registered, on the 23rd February 
1869. 

Three bills were produced dated 14th December 
1868 of j[200 each, drawn by Camoin and Ju- 
lien. The first, payable on Ist January 1869, 
bore to have he&tx acquit en CapiUU et Merits by 
Alcide, on the 28th August and registered 
on the nth October last. The, second, pay- 
able on the 1st February, bore to have beea 
<' acquit " by him " en Oc^itql el iMttrHs^r eiM» 



18^ 



COUETPS OF MAURITIUS. 



127 



oil: 28th ApgoBt aod . registered on the llth 
0(^ber| while the. thirds payable on 1st March 
1869f bore to have been ** acquit en capWd ei 
Ini^iiU " by Aldde, likewise on the 28th An- 
gnst 1869 and registered on the llth October 
thcoaeafter. T«7o receipts for rent were produced 
by the claimants, the first^for "^70 for putting 
up... their carriages and horses from the 14th 
Dumber 1868 (date of j;he deed of sale) to the 
14th Eebraary 1869 ; the second, dated 15th 
September 1869 for ;^265 for the period from 
14th February to 14th September 1869. The 
first of those receipts was registered on the llth, 
the second on the 18th October 1869. A receipt 
for ^10, dated 30th June 1869, was produced. 
It bore to be given by a veterinery Surgeon to Mr 
Camoin, for an operation performed upon an 
AuJBtralian horse. 

Such is the documentary proof on which the 
claimants rely ; let us now see to what extent 
they have been able to supplement it by parole 
evidence. 

They have shewn, by the testimony of persons 
of respectability who lived near the premises, 
in church street , or had occasion to be there 
frequently, that the articles now in dispute were 
seen constantly at the Livery Stables in ques- 
tion, whi^dh are of large extent ; that Camoin- 
was often on the spot 'giving orders ; that Julien 
Vfo/ked at his business of a blacksmith there ; 
that the witnesses believed that the articles 
belonged to Camoin or to both claimants ; 
that some of them had seen the deed of 
sale now produced by Oamoin and Julien; 
that' the claimant Camoin was in possession of 
some funds ; that Camoin, in August last, some 
2 or (3 months previously, enquired for permises 
suitable for keeping horses and carriages ; that 
he had got some repairs executed on the carri- 
ages, and, on another occasion, has asked work- 
men to make some repairs on 2 of the carriages 
and on one of the hearses; but they could not 
agree upon the price ; that in ,the opinion of the 
witnesses, the articles in dispute we^e generally 
known to belong to the claimants. 

On the other hand, the nature of the opposing 
evidence will be gathered from the following 
summary : — ^Alcide is the only tenant of the pre- 
mises under the Landlord ; the Sign Board bears 
•*Andr6 Alcide, Livery- stable keeper " or ** Mes- 
sageries Golouiales '' ; Alcide, alone, pays the 
license to Government ; the claimants took out 
no license ; the name of Alcide appeared in the 
regulations placed insida of all the carriages ; the 
coachman in the establishment knew no other . 
Master pr Owner than Alcide who engaged them 
and paid their wages. They took their orders 
only from him or his wife or son, and never from 
the claimants. Alcide gave out the food for the 
horses, and when short of money, he «v^ent to the 
Place and drew the fares which the drivers had 
earned* The articles claimed were not separated 
from the others in the establishihent, they were 
all worked and used together ; there was no | 
difference in any respect after the date of the 
alleged sale to the -claimants, in December last; 
the coach. drillers, at the end of the day, paid 
over the fare^ to Alcide, whose son kept the 
whole eetablishment. The carriages were known 



by the Municipal authorities, oa the Plaoe^ as 
belonging to Alcide ; he or his son exercised a 
*8U)rveillanoe over them when out on the streets, 
for hire. Camoin used to keep a carriage in the 
establishment and was in the habit of asking one 
of the servants to put'in his horses, paying him 
a small gratuity for his trouble. Julien works 
in the yard as a Blacksmith, and repairs the car- 
riages. * . 

Prpm what Camoin himself said upon interro* 
gatories and the evidence of some of the wit- 
nesses, there appears no reason to doubt that he 
was possessed of some means. He seems to 
have a fancy for horses. He bwned a race 
horse and ran it in his own name, both at the 
race meeting of 1868 and that of 1869. He 
states that he kept his money in a press and ne- 
ver deposited it in a Bank, because he was afraid 
of failures. The statements of various witnesses 
of standing, concur in shevring that the public 
generally and such persons as had occasion to go 
to the livery stables on business, always consi- 
dered and dealt with Andr6 Alcide as the real 
and sole owner of the whole establishment* 

Such being the somewhat conflicting evidence 
with which we have to deal, we must, now, pro- 
ceed to sum it up with the view of arriving 
at such conclusion as it may appear to the Court 

to warrant. 

* 

Oiie thing is, on all sides, conceded, viz : that 
Andr^ Alcide was originally the owner of the 
articles in question which formed a portion of 
the f' materiel '*< of his livery establishment in 
Church street. The claimants undertake to shew 
that he ceased to be the owner of those move- 
ables on 14th December 1868, l^y a bond fide sale 
to them. This they must establish in evidence ; 
otherwise the articles being the property of Al- 
cide, must form, by law, the pledge of his credi- 
tors, and would fall under the provisional seizure 
of Yieau. The claimants must prove a full, out 
and out and complete sale to them. They will 
not, according to the rules of the Code Civil, re- 
quire to prove a subsequent and actual delivery, 
for it is enough, accordmg to that law,if the par- 
ties were quite at one as to the subject, the price , 
and had given their full and flnal consent ; but 
the want of a real, positive, distinct and visible 
transfer of the moveables from the seller to the 
buyer, will always be a prominent feature in any 
argument directed against the band fides and 
completeness of the alleged contracts 

Now, looking at the whole evidence, hinc inde, 
docClmentary and parole, which has been laid 
before the Court, have the claimants proved such 
a thorough bond fide completed sale as the law 
requires to divest the owner of his property and 
carry it off from his creditors ? Unquestionably 
there are grave difficulties in the way of the 
claimants, here. The documents they produce, 
with slender exceptions, are entirely between 
themselves and Alcide, no third party appears 
in them whose presence could have^ assisted us 
in ascertaining the real nature of the transaction. 

One of the two documents in which the name 
of a third party does occur is the receipt by the 
Yeterinery Doctor for j$[10, the price of an QQon 



128 



DECISIONS OP THE 



[1869 



tion upon an Australiftn horse for Camoin, on 
15tb June last ; but we have seen that he had to 
do with other horsea, and no proof was led poai- 
tirely to connect the receipt with one of the 
faorsea in this Interpleader. The other production 
by the claimanta, in which the name of a third 
party occurs, is only a receipt by a member of 
the legal profession acting for Aicide, for the 
first two 'months of the rent of the ^ remisage " 
of the carriages and horses. 

This can go but a very phort vay to prove 
the real nature and quality of the transaction 
between Aicide and the claimants. 

The whole case of the claimants haft a singular 
and remarkable air : One of them is a lawyer's 
clerk, the other is a blacksmith. According to 
their statement they formed a sort of partner- 
ship for carrying on a livery Stable. They 
bought the carriages, horses &a.,^ in question, 
from a livery stable-keeper with whom they agreed 
to allow the articles to remain in his premises 
and to be worked for their behoof. It is certainly 
a very extraordinary thing for a tradesman to 
allow a rival business to be carried on in such 
close proximity with his own ; and the little evi- 
dence, to shew that other premises were- looked 
for, applies to a period much after the alleged 
sale. Then, except to some of their own ac- 
quaintances, the sale remained quite a secret. 
Every thing in the yard, on the Place and in thd 
streets, went on as before. Alcide's name alone 
remained in the Government license, over the 
Entrance to the premises and in the inside of the 
carriages. He continued in the eyes of the pu- 
blic, of the Municipality and the drivers of the 
-' carriages, as the sole owner of the whole Esta- 
blishment. There is another diflBculty in the 
way of the claimants. Where ^id the money 
come from, which,' according to their case, they t 
paid to Aicide ? As to Julien, a witness who knew 
him well states that he is a good workman as a 
farrier, but he tiever knew hint to have any 
means. No doubt other persons may 9,ccumu- 
late funds in this trade, but it was not proved 
that he had done so. Ipdeed it is remarkable 
that there is very little evidence to support the 
position of this claimant at all, and the witness 
just referred to tells us that Julien's demeanor 
in the Establishment was certainly not that of 
the owner. 

The statement by several of the earlier wit- 
nesses, that the claimants were in apparent pos- 
session of the yard, qr at least of part of it, made 
an impression on the Court, but is was subsequent- 
ly shewn that one of the claimants, Camoin, put 
up his carriage there daily and had also a race 
horse at livery in the Establishment; and theother, 
Julien, had his workshop on the premises. Their 
presence on the spot was thus accounted for 
uliunde, and the fact, necessarily, came to be of 
much less significance. 

As to Camoin being possessed of funds, the 
case is somewhat different from that of Julien ; 
he, Camoin,appear8 to have been in possession of 
some monfey, and he was owner of a race horse ; 
but his statement is a singular one. He tells us 
that he kept his money locked up in an " ar- 
JooJraj " without investment, for fear of bankrupt- 



I 



ciea. He allowed interest at the rate of 12 per 
cent to run upon the instalments of the price of 
the purchase fron^ Aicide. The three bills for 
;$S00 each, payable respectively the 1st of Ja- 
nuary, iFebroary and Mach 1869, are endcnsed 
as paid, with interest only on the 28th Augoat 
1869. The claimant's excuse for not paying more 
promptly, viz : that he expected the fares of the 
carriages would meet the balance doe, is not at 
all a satis&ctory one. 

Oji the whole matter I am of opinion that the 
claimants have not made out their cIeus^. 

It is impossible to separate the documentaij 
from the parole evidence, even if the former 
were less exposed to criticism than it is. Looking 
at the matter in the light shed upon it by the 
proof taken as a whole, I do not think that the 
claimants have been able to establish such a final 
and completed contract of sale as can divest Ai- 
cide and his creditors^ of the property in the mo- 
veables in question. ' 

The claimants' demand is therefore dismissed 
with costs. 



SDPBEHE COURT. 



Htpotheque, — Eadiation D'nrscEiPTioir, — 

^ CiDAlTT ET OeSSIONITAIBE,— EbAIS. . 

Le projprietaire d'un Immeuble^ qui veut fairs ror' 
yer une inscription grevant cet immeuhh, peui 
assiffuer en radiation le cedaM anissi hien que le 
cessionnaire de la creance hypothecaire^ quoique 
ce dernier ait pris inscription en renduvelLement ; 
alors surtout que le demandeur rCa point cofi" 
naissance que la notification du transport a eu 
lieu. 



MoETGAGE, — Erasure op iNscRimoir, — As- 
BiGNOB Aim Assignee, — Costs. 

The owner of an Immoveahle Property, who wisJieg 
to obtain the era^re of an Inscription of, Mort' 
gage "burdening such property, may. summon the 
assignor as well as the assignee of the mortgage 
claim, although the later has taken an inscription 
in renewal of the first one, especially when the 
claimant has no judicial knowledge^ that the tranS' 
fer of such claim has been notified to the debtor^ 

CAZELIN,- Plaintiff 
versus 
LEBBASSE, — Defendant 



Before : 

His Honor the Chief J^ge and 
His Honor Mr. Justice Bestel. 

E, Peheebau, — Of Counsel for Plaintiff'. 
A. Ajstbttc, —Plaintiff's Attomeyv 

P. L. OhasteMiIEb, — Of Counsel for Defendant. 
J. U. TSxTtk^ —Defendant's Attorney. 



1869] 



COURTS OP MAURITIUS. 



12 



lOth December 1869. 

This was an application made in the usual 
form at Ghambeni, for authority to erase an In- 
scription. The Defendaiit haviug made objections 
before the Judge at Chambers, the matter was 
referred to the Court. The facts were the fol- 
lowiug : 

The Plaintiff, Henri Caselio, called the Defen- 
dant, Selmour Lebrasse^ to shew cause, why an 
inscription enrolled in favor of the latter on 15th 
September 18i64, should not be erased from the 
Registers of the Mortgage Office. 

The grounds for the application were thus set 
forth. '^ Inasmuch as the said inscription bur- 
'^ dening a plot of ground admeasuring eight 
" acres and fifteen perches, situate in the Discrict 
" of Flacq, at the place called •* Les Trois Hots," 
^^ bounded on the north by Fanchin Pignolet, on 
•* thirty one perches and three feet / on the 
" soutn by Ernest Cazelin, on thirty one perches 
" and three feet, and on the west by the said 
'^ Pignolet on twenty six perches and three feet^ is 
" null and void for the following reasons : '' 

^* lo. Because this Inscription taken against 
'^ the real estate of Ernest Moreau personally, 
'* the debtor of the said Selmour Lebrasse,cannot 
'' burden the lots of the co-partageants of the 
'^ said Ernest Moreau." 

*' 2o. And because a partition in kind of a plot 
•* of ground of the extent of forty acres and se- 
'• venty five perches from which was extracted the 
'' plot of ground aforesaid, now the exclusive pro- 
*^ perty of the Plaintiff, has taken place between 
*' the said Ernest Moreau and his copartageants 
" conformably to Law." 

" Costs to be costs of erasure." 

The PlaintifTthus stated that, the Inscription 
as it stood on record, covered the whole subjects : 
that he was now sole owner of the portion of those 
subjects which had fallen to him on division. 
He farther set forth thai as he wished to dispose 
of his property, it was absolutely necessary to 
give the purchaser a clear title, which could not 
be done while the Inscription in question re- 
mained in the Begisters, unerased. 

The Defendant answered that he had sold his 
interest in the Estate to the late Mr Jules Chau- 
vin, by a notarial deed on the 4th April 1866, 
that the Inscription in question was renewed in 
favor of the said Chaavin,on the 7th April there- 
after : that the Inscription of 1864i was therefore 
effaced by the later one, that the Plaintiff had 
called for the erasure of the wrong Inscription, 
that the Plaintiff had an opportunity, from the 
Public Becords, of seeing exactly bow the matter 
stood, that he had neglected to avail himself of 
the information to be thence gathered, and that 
accordingly the Defendant was entiled to go out 
of the case, with his costs, and his Counsel so 
moved. 

To this the Plaintiff replied that even on the 
assumption that the Defendant's statements were 
well founded, Lebra^se was not legally divested 



by his cession to Chauvin, no proper or legal no- 
tice having been given to the debtor ; that there- 
fore the Plaintiff was entitled to have I^ebrase's 
Inscription removed from the Begisters of Mott- 
gages. In England such rights, choses in actittn, 
could not be assigned at all and in France, and 
in our system, tho' the law was not so rigid, yet; 
unless due and proper notice had been given of 
the transfer, the cession was not effectusd, so far 
as third parties were couQerned, to transfer the 
right from the '' c^dant " /to the assignee. C. 0. 
1690, Mabcade, ad locum. Tboplong, Ysnte, 
No, 884. 

The Defendant, on the other hand, contended 
that the notice of cession was merely required to 
protect the debtor,who till notice, was entitled to 
pay the amount to the original creditor. Sib£Y, 
Codes annotSs. Abt. 1690, Nos. 70 — 65 ai^d seq. 

THE COURT. 

It has often been a question to what extents 
notice for a cession is required to be given to the 
debtor, even for the validity of the cession itself, 
as divesting the ^cedant," and not merely for the 
purpose of putting the debtor in mala fid^ 
to pay to any other party. 

The text of the law' declares : ''Le cessionnaire 
'^ n'est saisi k Tegard des tiers que par la signifi* 
'' cation du transport faite au d^biteur ; n^n- 
** moins le cessionnairp peut-etre ^galement saisi 
*' par Tacceptation du transport fait par le d6- 
^' biteur, dans un acte autbentique." 

On this subject Mabcade writes as follows 
Ad, Abticle 689 Q. C. and following articles : 
*^ Entre le c6dant et le cessionnaire, c'est-^- 
*' dire entre le vendeur etTacheteur, la trans- 
'^ milBsion de la propri^t^ d'une cr^ance b'o- 
'^ p^re par le seul consentement, et la d6li- 
'* vrance se realise par la remise da titre ; 
'^ mais relativement aux tiers, le cessionnaire 
'* n'acquiert la propri^te que par la signification 
^' faite au debiteur, de Facte de transport, ou par 
*' I'acceptation du transport par ce debiteur. Pen 
*' importe pour la signincation qu'elle soit faite 
*' par le cessionnaire ou par le cedant. Quant & 
" K Pacceptation, on con9oit qu'elle serait par- 
'* faitement valable centre le debiteur, quoiqu'- 
'* elle n*eiit lieu que par acte sou8*seing prive ou 
" mSme verbalement 5 mais vis-a-vis de toute au- 
*• tre personne, elle n'est efficace qu'autant qa'elle 
*' est faite par acte autbentique." 

So, Tboplono, Vente ad. Abt. 1691 C. C. 
'* Ainsi done tant qu'il n'y a pas eu de significa- 
'' tion8,le cedant est cens6 saisi h regard des tiers 
•' et le cessionuaire n'a rien h, pr6tendre sur la 
" creance dont la propriety repose, en ce qui con- 
•* cerne ceux ci, sur la t^te du vendeur." 

The Plaintiff might therefore in the absence of 
notice to the debtor in the creance, have reason- 
ably entertained doubts as to the Cession having 
been completed to the effect of demanding Le- 
brasse altogether and vesting fully the debt in the 
person of Chauvin under the renewed inscription 
of 1866. But it is not necessary to go into the 
enquiry of the value of such doubts, because the 



130 



DECISIONS OP THE 



[1869 



present discassion is now reduced to a question 
of costs. The Defendant says that as he has been 
called into Conrt erroneously, he should be put 
out of the cause, with costs. But taking the case 
even upon his own shewing, we must enquire at 
the outset if he really had any sufficient interest 
to make a formal opposition and appearance by 
Counsel in the cause P It is not at all evident to 
us that he had such an interest. He says he has 
no objection to the erasure of the inscription as 
asked by the Plaintiff. We think he might have 
said so at once, without coming into Court and 
discussing points of law. 

We shall therefore order erasure of the inscrip- 
tion in question, costs to be costs of erasure, no 
costs in faror of Lebrasse. 



SDPREHE COURT. 



HlBEAS COBPirS, — COMPiTBNCB, — PROMTTLaA- 
TION A MATiaiCB DBS StATTTTS DF PaBLEMEUTT 
D£ LA GbANDE BbETAGNE, 

Zfn Juge en Aiistralie a qualitepour decerner un 
mandat d^ arret contre un forqat condamne a la 
deportation dans cette Oolonie, par une Cour de 
la Grande Bretagne, et qui est en rupture de 
han a Maurice. 

< 

Sten que Us his locales ne soient promulguees a 
Maurice que par la publication qui en est faite 
en cette lie, les Statuts du Parlemeni de la 
Orande Bretagne, concernant cette Oolonie^ y 
sont en vigueur sans y avoir ete publics . 



Habeas Coeptts, — ^Jueisdictiok, — PBOMULaA- 

TION IN MaTJRITITTS OF THE ACTS OF THE BeI- 
TISH FaELIAMENT. 

A Judge in Australia has jurisdiction to issue a 
warrant of arrest against a prisoner of the 
Crown who was located in that Oolonyy on tichet 
of leave, and who^ having escaped from the latter 
place, had repaired to this Island, 

The Acts of the British Parliament are promuh 
gated in Mauritius without having been published 
in the Colony, as the local laws. 



In the mattee of 
CON MORGAN ^nd Martin TAYLOR. 



Before : 

His Honor the Chief Judge and 
His Honor Mr. Justice Bestel. 



E. Pelleeeait, —Of Counsel for Applicants. 
• H. AcKEOTD,— Attorney for same. 



2l8t December 1869. 

On a motion by E. Pellebeau on behalf of one 
Con. Morgan and of one Martin Taylor for a writ 
of Habeas Corpus directed to John Nicolls Ter- 
ence O'Brien, Inspector General of Police in the 
Island of Mauritius, directing him to bring be- 
fore the Court the bodies of the, said Cod : Mor- 
gan, whose true name is alleged to be Edward 
Connor, and the said Martin l^aylor whose true 
name is alleged to be Thomas Henderson, to- 
gether with the cause of their imprisonment and 
detention and to order the return before it of what- 
ever documents may be necessary to ascertain the 
cause of their detention and imprisonment, tiie 
Court ordered the said writ to issue returnable 
on Tuesday 14th December 1869, at noon. 

On the day and at the hour appointed, the 
said Inspector General of Police produced into 
Court the body of the said Con. Morgan, alias 
Cornelius Morgan,alias Edward Connor, and the 
body of Martin Taylor, alias Martin Bowman^ 
alias Thomas Henderson, and returned as the 
eause of the imprisonment and detention of. the 
said Con. Morgan, alias Cornelius Morgan, alias 
Edward Connor and of the' said Martin ' Taylor, 
alias Martin Bowman, alias Thomas Henderson, 
a warrant under date the 7thiOptober 1869, di- 
rected to the Constable of Perth, and all other 
peace officers in the Colony of Western Austra- 
lia delivered an/i signed by one E. W. Landor, 
Police Magistrate in and for the District of Perth, 
Western Australia, to apprehend the said Ed- 
ward Connor, Eeg, No. 7,373, late of Bahbury, 
charged upon oath before the said Police Magis- 
trate, for that he on the 24th February 1869, 
being a prisoner of the Crown, located in the 
District of Banbury, in the said Colony, onticket- 
of-leave, did unlawfully depart from his appoint- 
ed place of residence, to wit. the said District of 
Banbury, and another warrant of the same date 
directed as abv^ve, delivered ' by the same Police 
Magistrate of Perth, Western Australia, for the 
apprehension of Thomas Henderson, Beg. JN^o. 
4,168, late of Banbury, charged with a similar 
offence as above, which said warrants were se- 
verally indorsed by on^ of the Judges of Her 
Majesty's Supreme Court of Mauritius, and di- 
rected to him, the said Inspector General of Po- 
lice for execution in the Island of Mauritius, by 
him or any Inspector of Police or Police Cons- 
tables to be appointed by the said Inspector Ge- 
neral of Police. 

On the above return being made, E. Pellb- 
BBAU, of Counsel for the said prisoners, con- 
tended that the indorsement for execution of the 
said warrants was illegal, and therefore null and 
void, and moved for the immediate discharge 
of the said Edward Connor and Thomas Heur 
derson, from imprisonment. 

In his argument. Counsel referred first : to the 
act of 5th, Geo. 4 C. 84i Seo. 22 wherein it is 
enacted that the offender sentenced to transpor- ^ 
tation who shall be afterwards at large within 
any part of His Majesty's dominions without 
some lawful cause, before the expiration of the 
term of Transportation, shall suffer, death as in 
the case of felony, without benefit of clergy, and 
may be tried, either in the Ooantj or place 



'^ 



COURTS OF MAuarrius. 



131 



where he ahallbe apprehended, or in that part 
from whence he was ordered to be transported. 

So mach, however, of the above act aa inflicts 
panishment of death for retaniiii^ from truia- 

Jortation has been repealed hy i&5. Wj-tliam 
V, BubBtitating for pnniBhment of death, trans- 
portation for the offender's natural life, and pre- 
viously to transportations imprisonment with or 
without labour, for any term not exceeding foar 
years. 

Prom that enactment of 5th Geo i. C, 84. 
Sec. 22, said E. PSLLSaEiu, it is erident that, 
aesuming for the aake of argument that the 
parties charged are guilty of the felony en- 
acted, that they are to be tried at Mauritius, 
being the place where they have been apprehen- 
ded or in England, the part from which they 
were ordered to be transported, and that they 
were not to be sent back to Australia for trial, 
the Act conferring ao jurisdiction on the Courts 
of Auatralia to try the offence with which the 
parties are charged. 

The absence of jurisdistiou becomes still more 
apparent from the fact that the offence with 
which the parties are charged could not have 
been committed as long as they continued in Au- 
stralia ; located in Banbury, where they had a 
right to move about as long as they continued 
within the space limited to them, they were no 



It was by going beyond that limited space that 
they could commit the offence charged. Such 
removal from Banbury necessarily placed them 
beyond the juriedictioQ of the Magistrate of 
Perth, who therefore was by the very offence 
committed deprived of the power of issuing the 
warrants now exhibited for their apprehension. 

The warrant issued by him being null and void 
for want of jurisdiction, it neceHsarily followed 
that tbe eiecution of such illegal warrant on the 
illegal indorsation complained of is also null and 
Toid,wbence the necesHary inference that the par- 
ties being illegally arrested, must be immediately 
discharged. 

Not so was the answer of the Substitute Pro- 
cureur General who appeared in support of the 
lawfulness of the warrant, indorsation, arrest and 
detention. The Court, was it said by the " Mi- . 
nist^re Public ", is not called upon to inquire 
into the power of the Australian Magistrate to 
issue the warrant indorsed by one of the Judges 
of this Court ; nor to inquire whether the A-ui 
stralian Judicial Authorities have or have not the 
power to try the prisoners of the felony charged. 

The Court has merely to enquire into the va- 
lidity of the indorsation of the warrant by the 
Judge who granted the same and whether there 
u a sufficient cause or not for the further de- 
tention of the prisoners. 

That a felouy has been committed, there can 
be no doubt from the enactment of 5th. Geo. i. 
That the Pohce Magistrate of Perth has power 
to issue a warrant for the apprehension of the 
felons therain referred to, appears from the very 



fhct that he.and he alone, has the means of ascer- 
taining the non-presence of ticket- of-Ieave men 
on the spot where they hare been located. From 
the moment of their leaving tbe locality assigned 
to them, whether to go in another part of the 
District of Perth or beyond tbe sea, the offence ' 
is committed, and the power to iesne a warrant 
for their apprehension comes into existence and 
may be exercised; were it otherwise tbe 6th. Geo. 

4. would be a dead letter, and so also the 6iE 
AND 7th ■V:oT.,C. 84. enacted with the view of 
remedying a faihice of Justice by the escape of 
persena cnarged with felonies in one of Her Ma- 
jesty's Colonies, into another of Her Majesty's 
Colonies, and whereby it ia provided '' that it 
" shall not bo lawful for any person to indorss 
" his name upon any such warrant, for the pur- 
" pose of authorizing the apprehension of any 
" person under this Article,unless it shall appear. 
" on the face of the said warrant, that the offence 
" for which the person, for whose apprehension 
" the said warrant has been issued, is charged to 
" have committed, is such that if committed wUhin 
" that part of Her Majesty's dominions where the 
" warrant is so endorsed, it would have amounted 
" in law to a treason or some felony, or unless 
" the depositions appear sufficient to warrant the 
" committal of such person, for trial." The face 
of the warrant discloses an offence qualified by 

5. Geo. 4. C. 22. to be a felony. 

Hence not only was the Jndge who gave the 
indorsation now quarrelled, warranted in grant- 
ing the same, bat bound in law to do so. 

But the applicability of Abt. 6 & 6, Viot. C. 
34 to this case, has been denied. 

Itprovides, however, for all offenders escaping 
from one Colony to another of Her Majesty's 
Colonies without any distinction being made be- 
tween convicts and unconvicted offenders. The 
convict guilty of a second offence, ia no leaa an 
offendEr, and, as such.withia the wording and spi- 
rit of the 5 &6 ViciOBU. C. 34; and surely a 
maa convicted of a second offence is less deserv- 
ing of the laws' protection than one merely 
charged with a first offence of which he may not 
ever be convicted. 



Next it was said that aesumingthe 5th Geo. 
4. C. 84 ; and the 6th afb 7th Vict. Chap. 31 
to apply to all and every British Colony, still 
would they be inapplicable to this Island, for 
want of due promulgation. 

The answer to this objection is to be found in 
the Eoyal Order in Council of the 6th Novemhtr 
1832, Ut paragraph, which whilst providing that 
the laws made for the administration of the. sub- 
jects of Her Mtyesty in the Island of Mauritius 
shall he in force as soon as they shall be known 
by the inhabitants of the Colony, by way of a 
Proclamation or other public notice, which said 
laws shall be published by the Governor, makes 
the following exception ; " Provided, however, 
" that nothing in these presents shall extend to 
*' any act relative to the said Island, made or to 
" be made ^y Her Majesty with tbe advice and 
" consent of Parliament, of which, execution in 
" the said Island shall begin and have effect from. 



132 



DECISIONS OP THE 



[1869 



** such a period as is, or may be, in like cases, 
** determined by Law." — (BoriLLABD's Co(7a of 
JUauriiius Laws 4. Vol. p. 54 — 55.) 

judgment; 

However desirable it might have been that the 
Order in Council just qubted should have been 
more explicit as to the mode of promulgating an 
act of Parliament to render it binding on tbe in- 
habitants of this Island, certain it is tbat the 
mode traced out for the promulgation of the 
other laws referred to in the Order in Council, in 
no wise applies to the acts made by Her Majes- 
ty with the advice and coijisent of Parliament. 

However desirable again it may be that the 
acts of Parliament applicable to this Colony 
should be published for the information of the 
inhabitants of this Island, yet we cannot admit 
for one instant that the accidental non-publica- 
tion thereof can relieve the Court from applying 
an act of the Imperial Legislature extending to 
all British Colonies. 

The 5th. Gig. 4. C. 84. Sec. 22. declaring 
on the other hand, that an o£Fender found undul j 
at large within any part of His Majesty's domi- 
nions before expiration of bis sentence shall, on 
conviction,suffer death as in cases of felony, with- 
out benefit of clergy » and on the other hand 5th & 
6th Yictobia C. 34 Sections 2 & 10, empowers 



one of the Judges of Her Majesty's Superior 
Court of Law, where the person shall be, to en- 
dorse the warrant issued by a p^on having law* 
full authority to issue the same for the apprehen- 
sion of the party charged, provided that it snail ap- 
pear on the face of the warrant, that the offence 
charged to have been committed is such that if 
committed within that part of Her M^esty's 
dominions where the warrant is so endorsed, it 
would have amounted to a felony, or unless the 
depositions appear sufficient to warrant the 
committal of such person for trial. 

The offence charged may not, it is true, am- 
ount by any special article of our Colonial Penal 
Code to a felony, or to a crime, but the merit of 
the warrant jfi not to be judged of by our Code o{ 
Criminal Laws alone, but by another law also, 
viz : the 5th Geo : 4. C. 84 equally binding 
upon the Judges of the Island. The offence char- 
ged against the prisoners is by the Statute dealt 
with as a felony without benefit of clergy, and 
this made it imperative upon the Judge in this 
Colony to endorse the warrant presented to him 
in obedience to the 6th & 7th Vict. O. 34, 
Aets. 2 & 10, such warrant having been issued 
by one having lawful authority to issue the same. 

We therefore support the indorsation corn- 

Elained of. E. Fellebeaxi will take nothing by 
is motion, and the prisoners must be remanded, 
and they are hereby remanded, accordingly. 



&LPHWICIIL LI^T OF imERS. 










Accomodation Bills . . 
Accounts ••••€• 

AOENT AND PbINCIPAL , . 



Do. do. • • 

Do. do. • • 

Do. do. 

Appeal 

Do. 

Do. 

Do. •..•.. 

Do. 

Do. 

J^o. •••••• 

Do. 

Do. 

Do. 

Arbitrator •••*., 

ARRANGEliBNT 

Attachment of Monies, 

Do. do. . , 

Attorney ...... 



(See Bills) 

Settlement thereof,— Writ of Execution, — Cross Action, — 

Report of the Master 

Quasi Delictus, — Trespass, — General Board of Health, — 
Poor Relief Committee, — Inspector of Nuisances, — 

Damages .••••• , 

^^Gens de Service,^^ — Pledge, — Stipendiary Magistrate, — 

Master and Servants , 

Sale of Goods ""••.•, ««.*•• 

Mortgage, — Cos^s, — Appeal from a Judgment of the Master 
To the Privy Council of Her Majesty, — Jurisdiction^ — Heirs 

From a Judgment of the Master, — Delays , 

Do. do. Mortgage, — Costs, — Principal and 

Agent ••••.• , 

Do. do. " Folle Ench^re,"— Sale by Forcible 

Ejectment, — ^Warrant for payment. 
From a Judgment of District Court, — Art. 2244 of the Code 

Napoleon, — Prescription of 30 years^ 
Interruption thereof, — Plaint before 

a District Court. . 

Pledge, — Gage, — Interes ts, — Costs 
Deposit, — " D^pot N^cessaire,'*— 
Responsibility of Inn-Keepers . , . , 
Sale of moveable property, — Breach 
of Contract concerning delivery,— 
Cancellation of sale . . . . o • 

Promissory Note, — Endorsement, — 

Transfer 

From a Conviction of District Magistrate, — Record, — 

Evidence 

Do. do. Jurisdiction of District Magistrate 

in criminal matters,— Division of 
offence ...... ...... 

Third arbitrators, — Homologation of the decisions of 

the arbitrators, — Contestations between partners , 

Under the control of the Court, — Cessio Bonorum 

Provisional valuation of unliquidated claims , 

Public servant, — Notice thereof 
Partition, — Subguardian 



Do. 
Do. 

Do. 



Do. 



do. 
do. 

do. 



do. 



Pages 



91 



13 

19 
48 
53 
93 
28 

53 

88 



• . . . . 



• • ••• 



57 
60 

51 



63 
95 
29 

94 

74 
80 
26 

I' 



II 



Bankruptcy ..•••• 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Bills ....*. 

Do. ...... 

Books 

Breach 

Broker .••••• 

Cancellation .•...• 

Do. ...... 

Do. 

I-'O* • • t • • • 

Cessio Bonorum . . • • • • 

Do. do. •#•••• 

Do. do. •••••• 

Do. do 

Chief Overseer ..•••• 

Contracts •••••• 

Costs •••••• 

Do. ...... 

Do. ...... 

Do. 

Do. 

Cross Action ...••• 

Crown Land .••.•• 

Curator ••.••• 

Damages 

Do. 

Dbfosit •....• 

Division • 

Dl VOBCB •••%•• 

Do. 

Do. 



Proof of debt, — Jurisdiclion, — Nullity of fiat ...... 

Books kept in the Tamul language, — Certificate ••..,. 

Cessio Bonorum, — Sworn Broker ••••.. 

Trader 

Books, — Accommodation Bills, — Undue Preference ...... 

Privilege, — Costs, — Master and »Servants,«— Laborers and 
Workmen ...... ...... ...... 

Certificate,— Accommodation Bills ...... 

(Accommodation), — Undue preference, — Books ...... 

Do. Bankruptcy, — Certificate ...... 

Kept in the Tamul language, — Certificate, — Bankruptcy. . 

Of Contract concerning delivery, — Cancellation of sale of 
moveable property, — Appeal from a judgment of Dis- 
trict Magistrate .... •#.... ... .. 

(See Sworn Brokers) ,... ••.... -...•• 



CJ 



Of sale of an immoveable property, — Third holders,-— Costs 

Of lease, — Instalments .. 

Do. Partial destruction of the immoveable property 

leased. ....• ••.••• •••... 

Of sale,— Appeal from a Judgment of District Magistrate,— 
Sale of moveable property, — Breach of contract con- 
cerning delivery .... ...... ...... 

Undue preference. — Judicial mortgage .... ...... 

Sworn Broker, — Bankruptcy 

Monthly payments ....•• ...... 

Arrangement under the control of the Court ••••.. 

Master and Servants,— Salary, — Privilege, — Manager .... 

Interpretation thereof, — Fire Insurance. . •••••. 

Third holders, — Cancellation of sale of an immoveable pro- 
perty ...... 

Appeal from a Judgment of the Master, — Mortgage,— Prin- 
cipal and Agent ••.... 

Masters and Servants, — Bankruptcy, — Privilege,— Labo- 
rers, — Workmen. ... ...... 

Appeal from a Judgment of District Magistrate, — Pledge, — 
Gage, — Interests .. ...... «••••• 

Last Will and Testament, — Nullity, ..... • 

Writ of Execution, — Settlement of accounts, — Report of the 
Master ...... ....•• 

Lease thereof, — Temporary jouissance, — Possession ...... 

Of Vacant Estates ...... ••••.. 



News Papers,— Libel .... ••.... 

Quasi Delictus, — General Bord of Health,— Poor Belief 

Committee, — Inspector of Nuisances, — Principal and 

Agent, — Trespass .. •••.•• 

'' D^p6t n^cessaire," — Responsibility of Inn-Keepers,— 

Appeal from a Judgment of District Court 

Of Offence, — Appeal from a Conviction of District Magis- 

trate ..••.. ••..•• ...... 

Action dismissed ...... ....•• ••.... 

Soevitia and injures, — Dismissal ...••• ...... 

For abandonment and outrages ...••• •.«••• 



Pagea 

7 

9 

22 

24 

26 

31 
66 
26 
66 
9 



6% 
22 



8 
17 

63 
37 
22 
69 
80 
42 
40 

6 

SS 

31 

60 

72 

91 

85 

1 



18 

61 

94 
68 
81 
90 



Ill 



Emancipated Minor •• 
Endoksement ••••#• 



Evidence 
Do. 
Do. 



• • • • % 

• •• • • • 



IBRi 



Succession under benefit of Inventory, — Prescription. ..... 

Transfer, — Appeal from a Judgment of District Magistrate 

Promissory Note. ... ....•• •••••• 

Oral Proof, — Fraud .... 

Do. Do. Authentic deed. . . . • • •••••• 

Record, — Appeal from Conviction of District Magistrate. . 



86 

94 
10 



28 



Fiat 



Fire Insurance . . i^ . . . 

FOLLE ENCHiiRE •••... 



Fraud 
Do. 



••«••• 



Of Bankruptcy,— Nullity thereof, — Proof of debt, — Juris- 

t. diction «••••» •••••• 

Interpretation of Contracts 

gale by Forcible Ejectment, — Warrant for payment,— Ap- 
peal fiom a Judgment of the Master • 

Oral Proof,— Evidence . • • f • . •••••• 

Do. Do. Notarial deed •••••. 



7 
40 

88 
10 
12 



Gage 



Gen. Board of Health 



Gens de Service 



Pledge, — ^Interests, — Costs, — ^Appeal from a Judgment of 

District Magistrate « •••••• 60 

Poor Relief Committee,— Inspector of Nuisances,*-Princi- 

pal and Agent,—-Trespass,— Quasi Delictus •••••• IS 

(See Master and Servants) •••••• •••••• 



Heirs •••••• Jurisdiction, — Appeal to the Privy Council of Her Majesty 93 

Homologation Of the decision of the Arbitrators, — Contestations between 

partners, — Arbitrators, — Third Arbitrators •••••• 74 



Incidental 



Inn Keepers 
Inspectors 



Interests 
Interpretation 



•••«•• 



Application to a sale by levy C, C. 1257 C. of C. P. 812,— 
Sale by levy, — Notice previous to levy, — ^Tender of 
money •••••• #••••« 

Their responsibility, — Deposit, — D^p6t n^cessaire •••... 

Of Nuisances, — Principal and Agents, — Dampges, — Quasi 
Delictus, — Trespass, — General Board of Health, — 
Poor Relief Committee 

Costs, — Appeal from a Judgment of District Magistrate, — 
Pledge, — Gage , •••••• 

Of Contract, — Fire Insurance • 



86 
61 



IS 

60 
40 



Joint Debtors ....•• Seizure of Immoveable Property, — Original Debtor, — Third 

Holder, — Partial nullity of the seizure ...••• 

JouissANCE •••••• (Temporary), — Possession, — Lease of Crown Land — *' Pas 

Geom^triques," ,.,, ....•• •••••• 

Judicial Mortgage. . • • * Cessio Konorum,— Undue Preference . . , • 

Jurisdiction •••••• Of the Bankruptcy Court,— Nullity of Fiat,— Proof of debt 

Do. •••••• Heirs, — Appeal lo the Privy Council of Her Majesty . . . • 

Do. •••••• Of District Magistrate in Criminal matters, — ^Division of 

Offence,*— Appeal from a Conviction of District Magis- 
trate • • •••• ttt«« t •r •• •• 



82 

35 

87 

7 

98 



94 



IV 



Labor 
Do. 




Laborers 
Last Will 
Lease 
Do. 




Do. 
Do. 


• • 6 •* • 


Do. 
Libel 

LiCITATION 

Limitation 


• •• • • • 



Done aii'l Work, — Plea of unskilful workmanship 

Done and Work Oii a Sugar Estate for fitting ap and re- 

pai ing tlic inncliin'Tv •••••• 

(Soo Aicisier and Servant) ••...• 

And 'r('o':im«^nl, — Nullity, — Costs ., 

('ancc-l.tion hc^^of, — Instalments ,,..,, 

Partial ilestvuciion of the Imiuovoahle property leased^ — 

Canceliaion oflra^e ,. ..••.. 

llenew.ll iheroof, — Taciie Reconduction. . ...... 

Of Crown Land^ * Pas Geometriques ",— Temporary Jou- 

issance — Possr'Sbi')n 

Transciipiion, — ^Iortg<»^«^e Creditors 

News pHpeis, — Damages 

Procedure 

(See Prescription) 



« • 



• • • • • • 



•••••• 



98 

78 
8 

17 
29 

S5 

69 

43 



• •• • • • 



Manager 
Master 




' Do. 


#•90** 


Do. 


• ••«•• 


Do. 




Minor 


• ••••* 


Mortgage 




Do. 
Do. 


A • • • • • 



Chief oversrer, — Salary,— Privilege, — Master and Servants 
And Servanls. — S'Ipendiary Magistrate, — Principal and 

Agent. — ** Gens de Service," — Privilege 

And Servants, — Laborers aud Workmen, —Bankruptcy ,— 

Piiv^ege, — C'osts • 

And Servants, — Salary, — Privilege, — Manager^ — Chief 

O vc "scer •....• «••••• •»•••• 

Repoit oT,— Settlement of Accounts,— Cross Action, — ^Writ 

of Execution •••••• •••»•• • 

(Emancipated), — Prescription, — Succession under benefit of 

inventory %...•• .••••• 

Costs, - Appeal from a Judgment of the Master,— Principal 

and Agent «.•••• •••••• •••••• 

Creditors, — Lease, — Transcription ...... ••••«• 

(Judicial), — Undue Preference, — Cessio Bonorum 



42 
19 
SI 
49 
91 
86 



69 
«7 



9 • ' • • 



Newspapers ...<.. Libel,— Damages ...... •••••• 

Notarial deed •••••• Fraud,— Oral Proof 

Notice , Previous to levy, — Tender of money, — Application Inci- 
dental to a sale by levy 



2 
IS 

86 



Oral Proop , Evidence,— Fraud .' •••••« 

Do. •••••• Notarial deed, — Fraud •••••• •••••! 

Original Debtor Third Holder, — Joint debtors,— Seizure of Immoveable Pro- 
perly, — Partial nullity of the seizure 

Overseer •••••• (See Master and iServants) •••«»^« 



10 
IS 

8ft 
4t 



Partial 
D . 



Destruction of the Immoveable Property leased^^-Cancella- 
tion of Lease •••••• •••••• 

Nullity of the seizure, — Seizure* of Immoveable Property,— 
Original debtor, — Third Holder^— Joint debtors. • • • • • 



IT 



Partition •••••• 

Partnership #••#•• 

Pas G^oMferRiaxTEs u.*« 
Pledge •••«•• 

Poor Belief Committee 

Possession •••••• 

Prescription ...... 

Do. 

Principal .. . ... 

Do. ...... 

Do. 

Do. , 

Privilege •..•.. 

Do. 

Procedure 

Promissory Notes, . • . , . 

Proof of Debt ...... 

Public Servant ..•.,• 

Quasi Delictus ••..•• 



Subguardian, — ^Attorney ...... 

Contestation between partners, — Arbitrator, — Third Arbi- 
trators, — Homologation of the decision of the Arbitra- 
tors •••..• 

(See Crown Land) ...... 

Gage, — Interests, — Costs, — Appeal from a Judgment of 
District Magistrate 

Inspectors of Nuisances, — Damages, — Principal and Agent 
Quasi Delictus, —Trespass,— 'Gheneral Board of Health 

Lease of Crown Land,— Pas G^ometriques,— -Temporary 
Jouissance , ...... 

Of 30 years,— Interruption thereof, — Plaint before a District 
Court, — Appeal from a Judgment of District Court. . 

Emancipated minor, — Succession under benefit of Inventory 

And Agent,~Quasi Delictus, — Trespass, — General Board 

of Health, — Poor Relief Committee, — 
Inspectors of Nuisances, — Damages .. 
Do. Gens de Service, — Privilege, — Master and 

Servants, — Stipendiary Magistrate . , , , 

Do. Sale of Goods .••••• 

Do. Mortgage, — Costs, — Appeal from a Judgment 

of the Master .*.... 

Master and Servants, — Gens de Service, — Stipendiary Ma- 
gistrate,— Principal and Agent, . 
Do. Do. Laborers and Workmen, — Bankrupt- 
cy, — Costs o . . , ..*..• 
Do. Do. Manager, — Chief Overseer, — Salary. , 

Licitation ^ .. . . . •••••• 

Endorsement,— Transfer, — Appeal from a Judgment of 
District Magistrate. . ' 

Jurisdiction, — ^Nullity of Fiat, — Bankruptcy •••..• 

Attachment of Monies, —Notice thereof . . .•..•• 



^ 



Trespass, — General Board of Health, — Poor Relief Com- 
mittee, — Inspectors of Nuisance8,»— Principal & Agent, 
Damages ....•• ...... 



Pages 
32 

74 

60 

13 

35 

57 
86 

13 

19 

48 

53 

19 

31 
42 
43 

95 

7 

65 



13 



i& 



Becord 
Befobt 

Rebpoksibilitt 



• • • • • • 

• ••••• 



•Evidence,— Ap/peal from a Conviction of District Magistrate 23 
Of the Master,-— Cross Action, — Writ of Execution, — Set- 
tlement of Accounts, — ...... ...... 91 

Of Inn Keepers, — Appeal from a Judgment of District 

Court, — Deposit,— ^* Depot ii^cessaire," ...... 61 



Salary 




Salb 




Do. 
Do. 
Do. 


• • •• • • 

# • # 4* * 



Privilege, — Manager, — Chief Overseer, — Servants and Mas- 
ler .a.... ...... ••'••• 

Of immoveahle Property, — Cancellation thereof, — Third 
Holder,- —Costs .... ,•.... • 

By " Folk Ench^te '^ Sequestration. .... ...... 

Of goods, — Principal and Agent ....•• 

Of Moveable property, — Action in Damages, — Transfer of 

purchaser's right and loss of 
■^ Plaintiffs' title to sue pendente 

lite ...... c..-.- 



42 

6 

16 
48 



59 



VI 



Sale 



•••«•• 



• • • • • • 



•••••• 



Of Moveable property, — Breach of contract concerning de- 
livery, — Cancellation of sale^^Appeal from a Judg- 
ment of District Magistrate •••••• •••••• 

By levy, — Notice Previous to levy, — Tender of Money,— 
Application incidental to a sale by levy C. 0. 1257 C. 
of C.P.812...... 

By levy, — Folle Enchdre, — Warrant for payment ...•.• 

Of Immoveable Property, — Original Debtor,-^Third Hol- 
• der, — Joint Debtors, — Partial nullity of the seizure. , 

Sale by Folle Ench^re •••••• 

Detailed account •••••• •••••• 

And Master,— Principal and Agent •' Gens de Service,"— 
Stipendiary Magistrate •••••• •••••• 

And Master, — Workmen and Laborers,— Bankruptcy ^^-'Pri- 
vilege,— Costs •••••• •••••• 

And Master, — Salary, — Privilege, — Manager,— Chief Over- 
seer •••••• •••••• •••••• 

Of accounts, — Report of the Master,— Cross Action,— Writ 

of Execution •••••• •••••• 

StipendiaryMagistrate Master and Servants,— Principal and Agent '' Gens de Ser- 

vice,'* — Privilege •••••• •••••• 

Attorney, — Partition ••.... 

Partition, — Subguardian,— Attorney ••..•• 

Under benefit of Inventory,— Prescription,— Emancipated 
Ltinor •••«•• •••••• •••••• 

Bankruptcy, — Ccssio Bonorum «••••• •••••• 



Do. 



Do. 

Seizure 

Sequestration 

Do. 
Servants. 

Do. 

Do. 

Settlement 



«••••• 



Subguardian 
Succession 
Do. 



#••••• 



6S 

8» 
88 

8« 
16 
79 

19 

42 

91 

19 
32 



Sworn Broker 



86 
2S 



Tacite Reconduction. . 
Temporary ...... 

Tender of Money .... 

Testament 

Third Arbitrators. . . . 



Do. Holder 

Do. Do. 

Trader 

Transcpiption 

Transfer 



Do. 

Trespass 



• • • • • 



Lease . . •••••• •••••• 

" J ouissance",— Possession, — ^' Pas G^om^triques,— Lease 
of Crown Land.«.. ••..«• 

Application incidental to a sale by levy C. C, 1267 C. of 
(/. P. 81f2, — Notice previous to levy •••••• 

and Last Will, — Nullity,— Costs ...... 

Homologation of the decision of the Arbitrators, — Contes- 
ta tions between partners •••••• •••••• 

Joint Debtors, — Seizure of Immoveable property,— Partial 
Nullity of the Seizure, — Original Debtors •••••• 

Costs,— Cancellation of sale of an Immoveable Property 

Batikruptcy ••..«• •••••• 

Lease, — Mortgage, — Creditors , 

Of purchaser's right and loss of Plaintiff's title to sue pen- 
dente lite, — Sale of Moveable Property,— Action in 
damages •••••• 

Appeal frona a judgment of District Magistrate, — Promissory 
Note, — Endorsement , 

Geneial Board of Health, — Quasi Delictus, — Poor Relief 
Committee. — Inspector of Nuisances, — Principal and 
Agent, — Damages. . ....•• •••••• 



• • • t •• 



29 
85 
86 

Tie 

74 

82 

6 

S4 

69 

59 
95 

13 



Undub Ppeperencb. . . . 
Do. Do 



Bankruptcy,— Books, — Acnommodation Bills 
Cessio I5onorum, — Judicial Mortgage .... 



26 
87 



Vacant Estates Curator thereof 



VII 



Warrant 

Will 
Work 
Do. 

Workmen 

Writ 



•••••• 



• • • • • 



For payment, — Appeal from a Judgment of the Master,*— 

FoUe Enchfire, — Sale by Forcible Ejectment 88 

Testament, — Nullity, Costs ...... ..*.•. 7S 

And Labor done, — Plea of unskilful workmanship , , , . 3S 
do. do. on a Sugar Estate for fitting up and re- 

pairing the machinery •••••% 98 

And Loborers, — ^Masters and Servants, — Bankruptcy,— Pri- 
vilege, — Costs ...••• 81 

Of Execution, — Settlement of accounts,— Report of the 

Master, — Cross action ..•••. 19 



X 



6« 



fX^y^ 



^^ 



i 



A*- 



a 



ALPHABETICAL LIST OF MATTERS. 



(1S69.) 



A 



Accounts 

Account Current, ..... 
Do. 

Acts ....... 

Admission . .... 

Adultery 

Affirmation of Debt , . 

Agency •••••• 

Amendments •.•... 

Appeal , 

Do. 

Do. 

xJO* •.««.. 



Do. 



Do. 



Do. 



Succession, — Benefit of Inventory, — Compensation, — Art. 

802, C. C, — Guardianship 

Balance of, — Interest , . ...,•• 

Principal and Agent, — Tacit power of Attorney, — Negotio- 
rum gestor, — Agency of a Sugar Estate .....* 

Of the British Parliament, — Their promulgation in Mauritius 

Before a Court of Justice, — (See Aveu Judiciaire) 

Disavowal of a child,— Divorce ...... 

Tardy filing of claim, — Motion for leave to upset the scheme 
of division for the dividend, — Bankruptcy ...... 

Of a Sugar Estate, — Account Current, — Principal & Agent, — 

Tacit power of Attorney, — Negotiorura gestor 

Power of District Magistrate to that effect, — Appeal from a 

Judgment of District Magistrate .... 

To the Privy Council, — Rule of reference, — Award- of Ar- 
bitrators , 

do. Provisional execution,— Costs .... 

From a Judgment of the Judge Commissioner, — Cessio Bo- 

norum ...... 

Do. Master, — Succession, — Licitation,— 

Partition in kind. . , 

Do. District Magistrate, — Civil Part- 

nership,— Judi- 
cial proceedings 
entered against 
the Partnership 
Do. Do. Oral Proof, — 

Evidence, Com- 
mercial matters 
Do. Do. Amendments, — 

Power of Dis- 
trict Magistrate 
to that effect . . 
Do. . Of District Court, — Security, — De- 

lay ...... ...... 



Pages 

16 

59 

121 

130 

85 

36 

73 

121 

49 

65 
112 

1&2 

91 



n 



39 



49 
120 



i 



Appeal 



Do. 



Do. 



Do. 



Do. 



• • « t • • 



Do. 



Do. 



Do. 

Appraiser 

Appropriation of Payt^ 

Do. do. 

Arbitrators 

Do. 

Arrangement 

« 

^Assault 

Do. ...... 

Assignment 

Do. 

Attachment of Money. 
Aveu Jxjdiciaire 

.Award 

Bankruptcy 

Do. ...... 

Do. 

Do. 

Do. 

Do. 

Do. 

Do. 

Benefit OF Inventory. . 

Bill of Costs ...... 

Bills of Lading 



From Conviction of District Magistrate^ — Information^ — 

Omission in the 
copy thereof of a 
substantialword. 
Remit to the 
Magistrate, — 
Larceny, — Un- 
Ittwful posses- 
sion, — Costs . . 
Receiver of stol- 
en goods, — Evi- 
dence of co-ac- 
cused," Acquit- 
tal, — Convic- 
tion, — Costs . . 
Assault, — Mas- 
ter and Mate, — 
Official Log- 
Book, — Mer- 
chant Shipping 

Act 

From a Judgment of Stipendiary Magistrate, — Proceedings 

on Appeal ...... 

(Expertise), — Fire Insurance, — Indemnity, — Assignee .... 

^^ Imputation de paiemcnts", — Motion for the Cancellation 
of the Arrangement,— Interest. ^ • . . , . ...... 

Consignment of goods, — Bills of Lading, — Balance of an 
Account Current, — Refusal to deliver goods except up- 
on ])revious payment ...... 

Civil Partnership ...... 

Rule of reference, — Appeal to the Privy Council 

Tender the Control of the Court, — Interests, — Appropriation 
of payments,— Motion for the Cancellation of the Ar- 
rangement ...... •...». ••..•• 

Criminal Information lodged hefore the District Court,— 

Fine, — Action in Pamages, — Costs . . 
Master and Mate,— Official Log-Book, — Merchant shipping 
Act, — Appeal from a Conviction of District Court. . , , 
Fire Insurance, — Indemnity, — Appraiser, — " Expertise " . . 

Costs, — Mortgage, — Erasure of Inscription , 

Garnishee. ...... ...... 

Action in restitution of an Immoveahle Property, — Equity 
of redemption, (R^mer^J-^Evidence, — Admission before 

a Court of Justice . . « 

Of Arbitration, — Rule of reference, — Exequatur, — Order in 
Council, — Motion for leave to appeal to Her Majesty in 
Her Privy Council . . , 



Pages 



B 



Life Insurance Policy. ... ....... 

Books irregularly kept, — Refusal of a Certificate 

Certificate, — ^Worthless Books 

Irregular mode of Book-keeping, — Certificate of 2nd class 

Afiirmation of debt, — Tardy filing of claim, — Motion for 
eave to upset the scheme of Division for the Dividend 

Fiatl — Evidence ...... 

Juris,diction ...... 

Books, — Certificate .... , 

Compensation, — Art. 802, C.C. — Guardianship, — Accounts, 
— Succession ...... 

Privilege, — FoUe Ench^re,— Transcription ...... 

Balance of an Account Cun-ent, — Befusal to deliver goods 
except upon previous payment, — ^Appropriation of pay- 
ments, — Consignment of goods. v« • • • ...... 



58 



59 



110 

15 
33 

21 



52 
37 
65 



21 
73 

110 
33 

188 
35 

So 

65 



28 
29 
40 

72 

73 
106 
108 
114 

.16 

78 



52 



Ill 



Boundaries •••••• 

Caption of the Boby . . 

Cautioner 

Certiorari 

CessIo Bonorum 

Do. 

Commercial Matters . . 

Communications 

Compensation 

Consignment of Ooods. 

Do. 

Contract & Obligations 

Contravention • 

'^ Co-Partageants " . . 

\yOSTS •••••• 

Do. ....... 

Do. 

Do. 

Do. 

Do. 

Criminal Information. . 

Cross-Action 

Crown Prosecutor .... 
Crown Solicitor 



Resulting from the title deeds^ — ^Action in vendication of a 
plot of gtound ....••• •••••• 



Pages 

18 



c 



Work and labof done, ; , , , /, . , , 

Subrogation, — Novation •••••• 

Contravention, — Crown Prosecutor, — Crowii Solicitor, — 
Procureur and Advocate General, — Information 

Motion for a full discharge „.•.•. 

Rash Speculation, — Indebtedness, — Misconduct «.•••• 

Appeal from the Judgment of a District Magistrate, — Oral 
Proof, — Evidence . . .....* « 

See Priviledged Communications ..••.. ...... 

Art. 802, C. C.,'— Guardianship^ — Accounts, — Succession, — 
Benefit of Inventory 

BRls of Ladings — Balance of an Account Current, — Refu- 
sal to deliver goods except upon previous payment. . . . 

Interests, — Cost's, — Sale of ImmoveabFe property, — Evic- 
tion, — ^Real tenders, — Deposit 

" Mise en demeure, " — Damages, — Cross Action, — ^Work 
and labor done ...... 

Crown Prosecutor, — Crown Solicitor, — Procureur and Ad- 
. vocate General, — Information, — Certiorari 

Privilege,— Successions, — Minors,— Partition,*— Homolo- 
gation 

Appeal from Conviction of District Magistrate, — Informa- 
tion, — Omission in the copy thereof of a substantial 
word, — ^Erroneous heading, — Remit to the Magistrate, 
— Larceny,-^Unlawful Possession . , , , , 

Appeal from Conviction of District Magistrate, — Receiver 
of Stolen goods,— * Evidence of co-accused, — Acquittal 

Assault, — Criminal Information lodged before the District 
Court, — Fine, — Action in Damages , . . . . i , © 

Fee of Witnesses 

Sale of Immoveable Property, — Eviction,"— Real tenders, — 
-Deposit, — Consignment, — Interest , . 

Appeal to the Privy Council, — Provisional Execution , , . . 

Mortgage, — Erasure of Inscription, — Assignor and Assignee 

Lodged before the District Coui:t, — Fine, — Action in Da- 
mages, — Costs, — Assault 

Work and labor done, — " Contracts & Obligations, " — 
^' Mise en demeure " — Damages , . • , 

Crowii Solicitor, — Procureur and Ad;vocate General. — In- 
formation, — Contravention, — Certiorari .*^ . . . • 

Procureur and Advocate General, — Information, — Contra- 
vention, — Certiorari, — Crown Prosecutor 



60 
96 

31 

1&2 

55 

39 



16 
52 
93 
99 
31 
80 



68 
69 

73 

86 

93 
112 

128 

73 
99 
31 
31 



D 



Damages 

Do. 
Do. 



Do, 



«••••• 



Do. 



• • • • « 



Libel, — Slander, — Action for defamation, — Apology, — News 
papers, — Raffle, — Lotery ♦.••.. 

" Mise en dfemeure, " — Landlord and Tenant, — Lease , . . . 

(Action in) for malicious prosecution, — Reasonable and 
probable cause, — Plaintiff's misbehaviour in the former 
Action • . . i . . 

(Action in) by the Creditors inscribed on a Sugar Estate 
against the "Commissionnaire " thereof, for bad ma- 
nagement of the Estate ...... « i • • • . 

Fire Insurance, — Buildings purposely set on fire, — Insured 
guilty knowledge and fraud, — Evidence, — Direct and 
circumstantial, — Witnesses' veracity, — Oath and solemn 
affirmation,-^Action in payment against the Company 



6 
44 



56 



60 



63 



IV 





• 


Pages 


i)AHAaE8 rtr»«« 


Cross-Action, — ^Work and labor done, — Contract and Obli- 






gations • •••••• • 


99 


Db. 


For Assault, — Action before the Civil Court after a Convic- 






tion before the Criminal Court , 


73 


Deed of Partition . , ,, 


Homologation,— Contestations, — Principal Action, — Suc- 






cession 


89 


Defamation 


Action- for, — Apology, — Newspapers, — Baffle, — Lotery, — 






Damages, — Libel . . 


6 


Defence 


(Notice of), — Plaint, — Delay 


8T 


Delay 


Nullity, — Subrogation, — Licitation ••'.... 


41 


JiJ\j» % ¥• % f » 9 


Plaint, — Notice of Defence ' 


87 


Do. 


Appeal from a Judgment of District Court, — Security .... 


120 


Deposit 


Security, — Folle Encliere 


4 


Do. 


Consignment, — Interest, — Costs, — Sale of Immoveable 






Property, — Real tenders , ....•• 


93 


Disavowal of a Child . 


Adultery, — Divorce .... ••..•. 


36 


Dividend #..... 


(Sec Bankruptcy) ...... 




Divorce ....•• 


Disavowal of a child, — Adultery • , . t . , 


36 


Do. 


SoDvitia and " Injures graves," , 


109 


Do. \ 


Do. do. Drunkenness ...... 


118 


Donation ..•.,. 


Marriage Contract 


23 



E 



ERAsrRE ^ ...••• Of Inscription of Mortgage, — Assignor and Assignee^ — 

Costs 

Ebror in Law Nullity.^ 

Eviction 



•••••• 



Evidence 
Do. 
Do. 

Do. 
Do. 



Do- 



Do. 
Do. 

Do. 
Do. 

Exequatur 



Expertise 



Sale of Immoveable Property, — Real tenders, — Deposit, — 
Consignment, — Interest, — Costs .... 

Oral Proof, — Re^ Judicata, — Fire Insurance Company, — 

Dot Notary's Clerk, — Privileged Communications 

Do. Commercial matters, — Api)eal from Judgment 

of District Magistrate .... 

Personal answers, — Interrogatory ...... 

Of Co- Accused, — Acquitfal, — Conviction, — Costs, — Appeal 
from Conviction of District Magistrate, — ^Receiver of 
stolen goods , . . . • . r 

Direct and ciicumstantial, — Witnesses' veracity, — Oath and 
solemn affirmation, — Action in payment against the 
Company, — Dismissal. — Fire Insurance, — Buildings 
purposely set on fire, — Insured guilty knowledge and 
fraud ...... ••.... 

Bankruptcy, — Fiat .. . • 

(Oral) Interrogatory of party, — Personal answers, examina- 
tion and cross-examination •.•.,. ' 

Personal answers, — Aveu Judiciaire,— Action in restitution 

Seizure of Immoveable property, — Interpleader, — Registered 
title deeds, — Oral Proof 

Order in Council, — Motion for leave to appeal to Her Ma- 
jesty in Her Privy Council, — Award of Arbitrator, — 
Rule of reference . . , 

Appraisement, — Fire Insurance, — Indemnity, — Afsignee . , 



128 
128 

93 
13 
25 

39 

47 



59 



63 
106 

66 
85 

125 



65 
33 



F 



Fiat , Of Bankruptcy, — Evidence in support thereof • 

FiKE ••.... Action in damages, — Costs, — Assault, — Criminal Informa- 

tion lodged before the District Court, . ...... 

Fire , Lease, — Responsibility of the Tenant .... ...... 

Fire Insurance ,..,., Indemnity, — Assignee, — Appraisement^ — (Expertise) 



• • • • 



106 

78 
14 
S3 



Fire Insurance 



" FOLLE ENtJH^RE " .... 

Do. 



Do. 

Fraud 



t • • « * • 



Biiildiiigs purposely set on fire, — Insured guilty knowledge 
and fraud, — Evidence direct and circumstantial, — ^Wit- 
nesses' veracity, — Oath and solemn affirmation, — ^Ac- 
tion in payment against the Company, — Dismissal. • • • 

Deposit, — Security .,..., ...... 

Transcription, — Privilege, — Fraud, — Sale of Immoveable 
property, — Action in Cancellation thereof 

Modification of clauses in the original condition of Sale , . 

Sale of Immoveable Property, — Action in Cancellation 
thereof, — Folic Ench^re, — Transciiption,— Privilege . , 



Pages 



G 



Garnishee Attachment of money . . ...... 

GuARDiANSHtP Accounts, — Succession, — Benefit of Inventory, — Compen- 
sation,— Art. 802, C. C. , 



H 



'^ Habeas Corpus . . . . 
Do. 



• • • > • 9 



« ■»• • « . 



HOMOLOGATION- 

Do. 



Warrant of Arrest , 

Jurisdiction, — Promulgation in Mauritius of the Acts of 
the British Parliament ...... 

Of deed of partition, — Co-partageants, — Privilege, — Succes- 
sions, — Minors , ^ . • ...... 

Contestations, — > Principal Action, — Succession, — Deed of 
Partition 



I 



Imputation 
Indemnity 

I>fF0RMATI0N 

Do. 



Inscription 
Insurance 



Interest 

Do. 
Do. 

Interpleader 
Do. 

iNTERROaATORY 

Do. 



«....• 



»••••# 



(See appropriation of payment) ...... ....... 

Assignee, — Appraisement, — ('^ Expertise "), — Fire Insur- 
ance ..«••• ••••tf» •....« 

Contravention,— Certiorari, — Crown Prosecutor, — Crown 
Solicitor, — Procureur and Advocate General ...... 

Omission in the Copy thereof of a substantial word, — Er- 
roneous heading, — Remit to the Magistrate, --Larceny, 
— Unlawful Possession, — Costs,-^--Appeal from Convic- 
tion of District Magistrate ...... 

Of M ortgage, — Erasure thereof, — Assignor and Assignee, — 
Costs ...... 

Against fire, — Insured guilty Ijnowledgc and fraud, — Evi- 
dence, — Direct and circumstantial, — Witnesses' vera- 
city, — Oath and solemn affirmation, — Action in pay- 
ment against the Company, — Dismissal, — Fire Insur- 
ance, — Buildings purposely set on fire , 

Appropriation of payment, — -Motion for the cancellation of 
the arrangement , . , , , 

On Balance of Account, — Opening of Credit ...... 

Costs, — Sale of Immoveable property, — Real tenders, — ^De- 
posit, — Consignment . . , . . • 

Provisional seizure, — Action in nullity thereof ...... 

Registered title deeds^ — Oral proof, — Sale of moveable pro- 
perty 

Evidence, — Personal answers ..••*. 

Of party, — Personal answers, — Examination and Cross-ex- 
amination ...... ...... 



J 



63 

4 

78 
74 

78 



35 
16 



95 

130 

80 

8§ 



33 
31 



58 
128 



63 

21 
59 

93 
45 

125 

47 

66 



Jurisdiction 
Do. 



Bankruptcy 108 

Promulgation in Mauritius of the Acts of the British Par- 
liament, — " Habeas Corpus ," 130 



I 



jrages 



Landlord 
Larceny 



Lease 

Do. 

Libel 

LiCITATION 

Do. 



Life Insurance Policy . 
LoG-BooK ...... 



Lottery 



And Tenant, — Damages, — ^' Mise en demeure, " — Lease . . 

Unlawful possession, — Costs, — Appeal from Conviction of 
District Magistrate, — Information,— Omission in the 
copy thereof of a substantial word,— EiToneous head- 
ing, — Bemit to the Magistrate 

Fire, — Responsibility of the Tenant .... 

Landlord and Tenant, — Damages, — ^^ Mise en demeure, " 

Slander, — Action for defamation, — Apology, — News-^aper, 
— Raffle, — Lotterj', — Damages 

Delay, — Nullity, — Subrogation 

Partition in kind, — Appeal from a Judgment of the Master, 
— Succession , 

Bankruptcy ...... 

Merchant Sliipping Act, — Appeal from a Conviction of Dis- 
trict Court, — Assault, — Master and Mate 

Slander, — Action for defamation, — Apology, — News-papers, 
— Raffle, — Damages, — Libel ...... 



44 



M 



Malicious Prosecution . 

Marriage C(iNTRACT. . . . 
Master ....••• 

Master and Mate .... 

Merchant Shippikg Act 

MrNORs 



'^ Mise en Demeure 
Do. 

Mortgage 



>) 



• . 



Action in Damages, — Reasonable and probable cause,— 
Plaintiff's misbehaviour in the former Action 

Donations , ...... 

Report of, — Appeal therefrom ' 

Of a ship,-»Official Log-Book, — Merchaqt shipping Act, — 
Appeal from Conviction of District Court, — Assault . . 

Appeal from Conviction of District Court, — Assault, — Mas- 
ter and Mate, — Official Log^Book, ... 

Partition, — Homologation, — co-Partageants, — Inscription 
of Privilege, — " Droit de suite " • . . . 

Landlord and Tenant, — licase, — Damages. 

Damages, — Cross- Action, — Work and labour done, — Con- 
tract and Obligations. ...... ...... 

Erasure of Inscription, — Assignor and Assignee, — Costs . . 



N 



Negotiorum Gestor, . ,'• 



News-Paper 



Notary's Clerk . . .^ . . 
Notice of Defence . r. . 

iSToVATION ...... 

Nullity 
Do. 



• • . •••• 



Agency of a Sugar Estate, — Account Current, — Principal 
and Agent, — T,acit power of Attorney 

RaffleJ — Lottery, — Damages, — Libel, — Slander, — Action 
fox defamation, — Apology , 

Privileged Communications, — Evidence, — Oral proof, 

Delay, --Plaint , 

Cautioner, — Subrogation ...... 

Subrogation, — Licitation. — Delay .....'. 

Error in law ...... 







58 
14 
4* 

41 

91 

2S 

llO 
(5 



56 
28 

42 

110 

110 

80 
44 

99 

1^8 



121 

G 
25 
85 
96 
41 
123 



Oath And Solemn affirmation,- -Action in payment against the 

Company, — Dismissal, — Fire Insurance, — Buildings 
purposely set on fire, — Insured guilty knowledge and 
fraud, — Evidence direct and circumstantial, — Witnes- 
ses' veracity •....• 63 

Opening of Credit .... Balance of Account Current,^ — Interest thereon ...... 59 

Oral EVidence ...... ^^ Kes Judicata " — Fire Insurance Company ...... 13 

Do. Notary's Clerk, —Privileged Communications •.•♦.. 25 

Do. .....•' Commercial matters, — Appeal from the Judgment of a Dis- 
trict Magistrate .... .•••-.. 39 

Do. «;.... Seizure of moveable Property, — Interpleader,— £egistered 

title deeds •••••• ».•... 125 






p 



• • • • • 



Homologatign,--fPrivilege of Co-Partageants, — Minors, . . . 
(Deed of), — Homologation, — Contestations, — Principal Ac- 
tion •••••• 

In kind,— Appeal from a Judgment of the Master,— ^uqces- 

sion, — Licitation .... ■» , • % •'• 

(Civil). -•Judicial proceedings entered against the Payther-; 
ship, — Appeal from a judgment of District Magis- 
trate , 

do, Sugar Estate, — Violation of Covenant, — Action 

in dissolution thereof •••••• 

do. Arbitrators .... • 

Contestations between partners, — Report of the Master ap- 
pealed from 

Management, — Contestations between partners, — Sequestra- 
tion ... • • • . •••••• 

Part Payments Sale,^ — Action in Cancellation thereof .... 



PARTiriONS 

Do. 
Do. 

Partnership 



Do. 

Do. 
Do. 

Do. 



• • • • • • 



• • t • • • 



•••••• 



Personal Answers 
Do. 



• • • • 



Do. 

Plaint 
Possession 



• • ■ • • • 



Do. 



•••••• 



• • • 



Evidence, — Interrogatory ••••.. 

Interrogatory of party, — Examination and cross-examina- 
tion 

Aveu Judiciaire, — Action in restitution of an Immoveable 

Property ^ ...... 

Notice of defence, — Delay * 

(Unlawful), — Costs, — Appeal from Conviction of District 

Magistrate, — Information, — Omission in the 
copy thereof of a substantial word, — Erro- 
neous heading, — Remit to the Magisgrate . , 
Do. . Evidence of co-accused, — Acquittal, — Convic- 
tion,— Costs, — Appeal from Conviction of 
District Magistrate,— Receiver of Stolen goods 
Succession, — Deed of partition, —Homologation, — Contes- 
tations 

Tacit power of Attorney, — Negotiorum gestor, — Agency of 

a Sugar Estate, — Account Current . , . . . • . 

Sale of Immoveable Property, — Action in cancellation 

thereof, — Fraud, — " FoUe Enchere ", — Transcription 

Of co-Part ageant, — Inscription thereof, — ^^ Droit de Suite", 

— Minors, — Partitions, — Homologation 

Privileged Communications. — Evidence, — Oral Proof, — Notary's Clerk 

Procujeieur & Advocatb General. — Information, — Certiorari, — Contravention, — 

Crown Prosecutor, — Crown Solicitor 

Promulgation •,,... In Mauritius of the Acts of the British Parliament, — 

^^ Habeas Corpus ", —Jurisdiction. ... ...... 

Provisional Execution . Costs,— Appeal to the Privy -Council • , , , ....•• 

Provisional Seizure . . Action in nullity thereof, — Interpleader , , ...... 



Principal Action 
Principal and Agent . 

Privilege 

Do. 



80 
89 
91 

12 

66 
37 

42 

88 

42 

47 

66 

.85 
87 



59 

89 
121 

78 

80 
25 

31 

132 

112 

44 



a 



Raffle «•..•• I ottoiy, — Damages, — Libel, — Slander, — Action for Defa- 

mation, — Apology, — Newspapers .... ...... 

Real Tenders ...... Deposit, — Consignment, — Interests, — Costs, — Sale of Im- 
moveable Property , . .•••.. •••••• 

'^ Recel " .,...• (See receiver of Stolen goods). 

Receiver of Stolen gpods Evidence of co-accused, — Acquittal, — Conviction, — Costs, 

— Appeal from Conviction of District Magistrate .... 

R:^ER^ • , Equity of Redemption, — Action in restitution of an Immo- 

veable Proi)erty .... ...... ••»..• 

Report op the Master. (Appeal from), — Partnership, — Contestations between part- 
ners. .!.•.•. 

r, Resale By way of *^ FoUe Enchere ", — (see Folle Enchere) 

'' Res Judicata " ...... Fir^ Insurance Company, — Oral Evidence. •..•.. 



6 
93 

59 
85 

42 
74 
IS 




s 

Action in cancellation 4her£f, — Part payments 

By " FoUe EnchSre *',— (see '' FoUe Enchere *') 

Of Immoveable Property, — Action in cancellation thereof, 
— Fraud, — *' FoUe Enchere ", — Transcription, — Pri- 
vilege .• 

Of Immoveable Property, — Real Tenders, — Deposit, — Con- 
signment, — Interest, — Costs r 

'' Poller Enchere ",— Deposit ...... 

Delay, — Appeal from a Judginent of District Court 

(Provisional), — Action in nullity thereof, — Interpleader . . 

Of Immoveable Property,— Interpleader, — ^Registered Title 
deeds, — Oral Proof. . 



••••••• • 



•••••• 



Guano, — Arrears of Wages ...... «••••. 

Civil Partnership for the working of Sugar Estates, — 
Discord and misunderstanding between partncra, — Vio- 
lation of covenant, — Impending ruin of the Estate, — 
Unsworn personal answers, — Competency of Witnesses, 
— C. C. Arts. 268, 283,— Action in cancellation of 
partnership, — C. C. Art. 1871, — Decree of dissolution 

Partncrship,-^Management, — Contestation between partners 

Notice thereof, — Affidavit, — Rule Nisi. ... 

Action for defamation, — Apology, — Newspaper, — Raffle, — 
Lottery, — Damages - ...... 

Of the British Parliament, — Promulgation thereof in Mau- 
ritius 

Appeal from his Judgment, — Proceedings thereon * «... . 

Licitation, — Delay, — Nullity •..••* 

Novation, — Cautioner . . ....•• 

Benefit of Inventory, — Compensation, — Art. 802, C. C. — 
Guardianship, — Accounts 

Minors, — Partition, — Homologation, — Co-partageants, — 
Inscriptio#of Privilege, — ^' Droit de suite " , 

Deed of Partition, — Homologation, — Contestations, — Prin- 
cipal Action ••...• 

Licitation, — Partition in kind, — Appeal from a Judgment of 
the Master. ...... ...... ....*• 



T 



Of Money, — (See Real tender.) , 

Privilege, — Sale of Immoveable Property, — 'Action in can- 
cellation thereof, — Fraud, — FoUe Enchere ...... 



V 



Vindication 



•••••• 



Of a plot of ground, — Question of boundaries resulting from 
Title-Deeds' • ...... 



w 



"Warrant of Arrest . . 
Witnesses ...... 

Do. ...... 

Do. 

Work & Labor done . . 

JLIO. ••«••. 



... 



" Habeas Corpus." 

Oath and Solemn a£Snna,tion, — Action in payment against 
the Fire Insurance Company, — Dismissal, — Buildings 
purposely set on fire, — Insured guilty knowledge and 
fraud, — Evidence, direct and circumstantial 

<;iompetency thereof 

Fees. ... 

Caption of the body 

Contracts and Obligations, — " Mise en demeure," — Da- 
mage8> — Cross- Action 



• • . * 



* • « . 






Pages 

74 
43 



78 

9a 

4 
120 

45 

125 

28 
54 

48 



66 

88 

117 

6 

130 
15 
41 

96 

16 
80 
89 
91 



93 

78 



18 



95 



• •••(• 



63 
65 

85 
50 

99 



.• . 






I 



•^/; 



:' i^-?^.