as to the costs incurred in the Court of Appeal although they had been tendered rather late (as they ought to have been paid at once) still they had been tendered before judgment, he would therefore give judgment for the amount of the costs of Appeal (nearly £10) with costs in this action up to the time of the tender,-observing also that as the money had been tendered and refused it ought to have been deposited in Court.

COURT OF ASSIZES.

Ord. No. 29 of 1853-Art. 33.

In this case the criminal information contained two counts one for a felony and the other for a misdemeanor. The Court using its discretionary power, restrained the prosecutor to the proof of either the felony or the misdemeanor

THE QUEEN

versus

LUCHMUN, RAGHOO & ORS.

Before

His Honor Mr. JUSTICE BESTEL, First Puisne Judge.

Hon. G. B. COLIN,-Of Counsel for the [Crown. W. NEWTON,-Of Counsel for Accused.

26th September 1874.

Newton before prisoners pleaded—took an exception to the criminal information. He said the information contained two counts: one charging the prisoners with committing a larceny at night by means of breaking, and the other charging them with inflicting wounds and blows upon the persons robbed.

The first charge was one of crime and the second a misdemeanor. He quoted from Archbold to show that you could not include a fe lony and a misdemeanor in the same indictment. Now in Mauritius we had not what was properly called a felony, but a felony answered

to what our law called a crime. The word felony was found in our Criminal Procedure Ordinance but only there, but still he thought it was a sound argument to say that if in England a felony and a misdemeanor could not be put in an information, here a crime and a misdemeanor ought not to be put in the same information. It might embarrass the defence, if different sorts of offences were put in the same information. It was true that under our Criminal Procedure Ordinance the Crown had the right to charge different crimes in the same information. This only showed that the law was against the including of several offences in one information, and when it allowed it, it did so in express terms.

The Procureur & Advocate General in answer pointed out that the only effect of this objection if allowed would be that a separate information be filed for each offence, although they might be connected the one with the other, thus there would be two trials which would create great expense and inconvenience. He admitted that practically speaking a felony and a crime must be considered as the same in Mauritius, and added that the word felony had crept in our law probably by error. The law did not prohibit what had been done in this case, and there was a dictum of Archbold on the matter, that even in England there was no absolute decision declaring this illegal. Besides in England the circumstances are different, for indictments for crimes came before the Grand Jury, but informations for misdemeanors were filed ex-officio by the Attorney General, and therefore it was quite right not to mix them up because it might give rise to confusion. Here there was nothing of the kind and nothing to prevent a jury trying both matters. Since our law allowed the same information to include two different crimes there could be no possible reason why a misdemeanor and a crime should not be included also. English precedents were very useful as a general rule, but as our system differed from that of England what might be good there would not always apply here.

JUDGMENT.

Our Criminal Procedure Ordinance (Art. 33) allows several counts for felony to be put in one information, but the Court at its discretion could restrain the prosecutor to the proof of one at the trial, a fortiori then the Court has the same power when the information charged not two crimes, but a crime and misdemeanor, in this case therefore without deciding upon the points arguel, he would in the exercise of his discretion confine the prosecution to the proof of one of the charges.

1874.]

THE COURT.

As Article 2 of the new Law, 14 of 1872, says that an action shall not be entered till five years after the desertion and says nothing about waiting for five years after the coming in force of the new Law, the case may proceed.

BAIL COURT.

STIPENDIARY LAWS,-ORDINANCE No. 7 or 1865 ARTS. 1 & 2,-REGULATIONS OF EXECUTIVE COUNCIL SEPTEMBER 1869,ART. 7.

The Court decided that the contract of service entered into between the Appelants and Respondent, a job-contractor, was null and void, because lo. the general bond to be given by the job-contractor and his surety had not been signed by the job-contractor, the principal obligant. 20. The general bond ought to be signed by the job-contractor before entering into the contract of service with Immigrants, and not after, as in the present instance.

The Court ruled further that Regulations by the Executive Counsel being regulations under an Ordinance ought to be read alongside with it.

CATHAN VELLEN & ORS,-Appellants.

versus

ARDE-Respondent.

Before

His Honor Mr Justice GORRIE,-Second Puisne Judge.

WILSON,Of Counsel for Appellants. ACKROYD,- -Attorney for the same. GALEA, Counsel for Respondent.

30th September 1874.

the Stipendiary Magistrate for neglect of work. An objection was taken to the regularity of the proceedings on the ground that the contracts of service were invalid as the general special guarantee bonds which are required in the case of job-contractors employing Immigrants were not signed by the job-contractor himself. The Magistrate overruled this objection, and proceeded to hear the case on the merits when the men were condemned to eight days' imprisonment and 15 days' wages forfeited for the benefit of Mr Ardé the job-contractor.

The appeal was made on the ground that the security Bonds were not signed by the job-contractor, that the charge was not precise and positive as to the cause of complaint brought against the appellants, and that the Stipendiary Magistrate in awarding a money compensation had done more than the complainant had asked him to do.

I find that it is only with regard to the general security Bond to be furnished by the job-contractor that the objections of the appellants can be said to have weight. The special bond furnished by the proprietor of the Estate on which the men worked appears to be in the form required by law. As to the general Bond it is to be given by the jobcontractor and his surety, and in this instance, the proper form has been adopted, but the Bond is not signed by the job-contractor, the principal obligant.

The arguments of the counsel for Ardé that it did not require to be signed by him I regard as inadmissible; but the further argument was advanced that even if there had been any blunder it was one which could be cured by having a proper Bond executed anew, and second, that the only Bond really known to the law were the special Bonds by the owners of the Estate on which the men worked and that these were in this case in proper form and valid in every respect. The General Bond it was contended was not required in virtue of any Ordinance but only of Regulations by the Executive Council of 8th September 1869, and that in the case of Bachoo & or. v. de Belloguet, decided by the Supreme Court on 11th December 1879, it was clearly indicated that the law of the Colony apart from the Codes was to be looked for in the Ordinances and not in mere orders of the Executive. As regards the last argument I do not understand the case of Bachoo e. Belloguet to go the length of holding the Regulations above quoted to be generally beyond the power of the Executive. They purport to be regulations under an Ordinance, and so far as they derive authority from that Ordinance, must

be read alongside with it. The Stipendiary Magistrate at all events would certainly not be justified in refraining from putting in force those regulations so long as they remain unrepealed, by any general considerations of the nature indicated by the Counsel for the Respondent, as the Stipendiary Magistrate must obey all lawful orders of the Executive in relation to the duties of his Office I find also that the Respondent himself has taken advantage of those Regulations by having the contracts with his laborers made out for a district and professing at least to give the general guarantee required by the Regulations. He is not able to enter into contracts of service with Indian Immigrants without specifying the Estate or property on which they were to work except under the authority of these Regulations and the contracts before me profess to be for a District generally, and profess also to be guaranteed by the General Bond. The Job-Contractor can scarcely now be heard when he argues against the legality of the Regulations under which he himself professes to stand.

That the special Bonds are good and valid does not do away with the obligation under the Regulations to guarantee the contracts by a General Bond. As to the policy or necessity for having this double guarantee, we, of course, in these Courts, have nothing to do. We can only endeavour to administer the Labour Law as we find it. On looking at the General Bond I find that not only it is not signed by the Job-Contractor as it ought to be, but the labourers have been engaged subsequent to it, and at various times during the year--the Bond thus preceding the Contracts which it professes to acknowledge and guarantee. This is not certainly what the Regulations intended and the Stipendiary Magistrate ought to have noticed such a fact, in addition to the special objection pleaded.

The Job Contractor contended that whether the Bond was given before or after, it was all one if it guaranteed the labourers' wages, but that begs the very question which the Stipendiary Magistrate is bound not to have left in doubt, viz., whether a Bond of this kind not signed by the principal obligant nor made in conformity with the Regulations professing to guarantee Contracts yet to be made and of which the terms could not therefore be known to the guarantor, could be legally valid.

The question however upon which the Counsel for the Job-Contractor chiefly relied was that admitting the General Bond to be bad, does that necessarily invalidate the contracts? He quoted the case of Bachoo v. de Belloguet, already cited, as showing that failure to obtemper Executive Regulations did

not necessarily infer a nullity in the contracts themselves. The want of the General Bond it was argued was not created a nullity by the Executive Regulations and certainly there was no nullity for this reason under the general law of the Colony. Now we cannot expect that questions of this kind will not arise under the complicated labour system which has necessarily grown up in consequence of the Immigration of Indian labourers, and it is by no means casy to find a principle which can enable us to determine individual cases. In that of Bachoo v. de Belloguet, the Court ruled that the question was to be solved by the law of the Codes relating to mandate, aul upou general principles regarding the nullity of contracts where no nullity had been enacted by law. It was not the case of a JobContractor's labourers. Without going the length of adopting the very strong expression of the counsel for the appellants that the jobcontractor is a person abhorred by the law, it is easy to see from the tenor both of the Ordinance 7 of 1865 and the Regulations that it has been considered necessary for the sake of the Immigrants to impose pretty stringent rules upon the job-contractors before they can be allowed to have contracts of service passed before the Stipendiary Magistrate.

66

If those requirements have not been observed in the manner and mode set forth by the Regulations it is the duty of the Stipendiary Magistrate immediately upon his attention being called to any irregularity, to recall the contracts, and have the irregularities put to right by a new arrangement of consent of parties.

Here the job-contractor comes before him with a complaint and asks that his men be punished for neglect of duty and their defence a defence be it marked to an action with penal consequences-is that the contracts are not good because the formalities required by the Regulations have not been observed or not validly observed-in short that they are not subject to the penalties of the Stipendiary law, because they have not been engaged under the formalities required by the Stipendiary law.

I think the plea of the labourers that the General Bond (which is an essential part of the transaction by which the job-contractor is enabled to hire labourers to work throughout a district) was bad from the want of signatures, ought to have been sustained, and I think the Bond is also bad from the contracts having been made at various dates subsequently. The Stipendiary Magistrate cannot hold the contracts to be good for the purpose of trying and punishing the men under the complaint, and then immediately afterwards cancel them,

as it is his duty to do, in consequence of these departures from the Regulations. Still less can he have the irregularities put to right, pending the case, so as to make contracts good which formerly were challengeable. When Masters enter complaints against their men they must be prepared for any defence. on the part of the labourers which may tend to destroy the legal status of the Master, and Job-Contractors are especially open to this kind of defence from the regulations which have been established in regard to them, and the peculiar position in which they themselves stand to the Immigrants.

Holding these views it is unnecessary for me to go into the other grounds of appeal. The Judgment of the Stipendiary Magistrate appealed from is quashed and I remit the case to him to have these contracts recalled and renewed in conformity with the Regulations or cancelled, according to the wish of the Master and men. I am disposed to give costs against the respondent, but I must see a bill both for the costs before the Stipendiary Magistrate and in this Court before fixing the amount to be granted.

SUPREME COURT.

In this case, the Court, using its discretionary power, allowed the creditors and official Assignees of an insolvent estate to enter, on behalf of the creditors, on action for fraud, against the Insolvent and his son, without giving previous security for payment of costs.

Before

His Honor Sir C. FARQUHAR SHAND, KT., Chief Judge and

His Honor Mr. JUSTICE BESTEL, First Puisne Judge.

EDWARDS & ANOR, -Plaintiffs.

versus

FABRE & ANOR,-Defendants.

E. PELLEREAU,-Of Counsel for Plaintiffs. C. RODESSE,-Attorney for same.

P. L. CHASTELLIER,-Of Counsel for DefenF. VICTOR,-Attorney for same. dants.

7th October 1874.

This was a motion made by the defendant Hippolyte Fabre that before being allowed to go on with the suit which they had raised against him and his father Arthur Fabre, the plaintiffs Edwards and Herchenroder, the creditors' and official assignees in the father's insolvency, should be ordered to find security for costs. The facts were the following.

Arthur Fabre the father had obtained a decree of discharge in a Cessio Bonorum on 17th August 1865, subject to the usual assignment of all his estate and effects to his creditors and this assignment he had executed, on 20th July of the same year.

In his balance sheet he admitted debts as due by him to his creditors of $252,432. No part of this sum has been paid. The present suit was raised in September of this year, by the assignees of his Insolvency. The declaration set forth that the Estate "Beau Vallon" which formerly belonged to the said Fabre senior and another party was sold by levy against them, on the 11th May 1865, and purchased by a mercantile firm in Port Louis.

That by working the said Estate a large portion of the mortgages have been paid off, and that the Estate itself, with several additional plots of ground forming altogether 1019 acres or thereabouts, was transferred by the said purchasers, on 12th February 1872 to the defendant Hippolyte Fabre, the son of the said Insolvent Arthur Fabre, for the sum of $175,000 with interest at 9 oo. That the said defendant is a mere "prête-nom" for his partner the other defendant, and that the transfer and keeping of the Estate in the name of the son Hippolyte Fabre was a fraud connected by both defendants, with a view to avoid payment to the creditors of Arthur Fabre of their just debts. The assignees therefore concluded their Declaration by asking the Court to declare that the said Estate is the exclusive property of Arthur Fabre with costs against the defendants.