a sum of $4,354.95 to Arthur Wilson in part payment of his claim amounting in principal to the sum of $8,000. And ordering the erazure of those inscriptions for which no allocation was forth coming. Amongst these latter was included the inscription in favor of Corr and his assignee Duhamel.

To this final order above mentioned, Bolgerd was duly called as the party levied on and made no objections to the allocation to Wilson and the erazure of the other inscriptions.

It so happened, however that on 15th November 1846, Wilson and Duhamel transferred to Mrs. Bolgerd their claims resting on the "Hotel du Génie " for the amount of the same, giving her to the year 1847 to pay the amount stipulated in the " transport."

Taking his stand upon this document, Bolgerd for himself, and his daughter Julia, have taken the renewals of the Inscriptions above mentioned in favor of Wilson and Duhamel and insists upon the rights which these creditors had over the "Hotel du Génie."

The attempt by Mr. Bolgerd to open up the question of the authenticity of the final ordre of 1853 by way of Inscriptio falsi upon such vague allegations as he has made, cannot be countenanced or tolerated by the Court.

It is needless to say that such a contention as this, cannot be listened to, being, as it is, directly opposed to the letter and spirit of the law regulating the disposal of real property.

Were we even to assume the existence and validity of the privilege set up by Bolgerd and his daughter, it is self evident that they should have produced their title to be paid by preference to Arthur Wilson and Albert Duhamel when summoned to do so either at the opening of the ordre by the Master, or when summoned to take cognizance of the Master's provisional ordre, and to contradict the scheme of the distribution proposed by the Masters of the purchase price of the "Hotel du Génie" finally adjudged to Dr. A. I errot.

The defendants did neither the one, nor the other. The "cloture" of the ordre was pronounced by the Master, and the crazure of those Inscriptions which did not come "en ordre utile," owing to the insufficiency of funds, were necessarily and legally ordered by the Master to be erased.

No appeal was made within the prescribed time, from this order of the Master whether by Mrs. Bolgerd, or her present representatives, the defendants. She, and they have allowed Dr. Perrot to pay the Bordereaux of collocation delivered upon him by the Master, and they now seek to recover a position which they have lost, through their own laches, to the prejudice of the Plaintiff or purchasers and of the intervening party.

This could not be allowed even were their claim less baseless than we believe it to be, and the prayer to this Court for the erazure of the following inscriptions, viz :

10. An Inscription taken in Vol. 42 No. 470 on 1st February 1842, renewed in Vol. 73 No. 99 on 31st January 1852 Vol. 186 on behalf of Marie Aurelie Collet the wife of Charles Bolgerd as holder of the right, of the said Arthur Wilson and also renewed on January 1872 in favor of Miss Julia Bolgerd 20. An Inscription taken in Vol. 42 No. 470 on 1st February -1842, on behalf of William Corr must be allowed.

The opposition put by the Defendants in the hands of the conservator of mortgages is accordingly set aside and the conservator is hereby authorized to erase the Inscriptions

Le mandat qui a été donné à couvert tout ce qui a été fait dans cette affaire et doitêtre obligatoire pour les plaignants.

L'on ne s'est pas écarté en substance de l'acte de cautionnement, dans cette affaire; lly a peu de cas, ou ces actes ne peuvent être enfreints, on doit donner a ces actes une certaine élasticité en pratique.

Sans le consentement de toutes les parties y eompris celui des laboureurs, donné d'une manière légale, devant le Magistrat le contrat est nécessairement obligatoire pour tous, pendant le temps pour lequel il a été fait.

CERTIORARI,-STIPENDIARY MATTER,-JOBCONTRACTOR,-CONTRACT OF SERVICE, QUARANTEE OF THE PROPRIETOR,-DisMISSAL OF JOB CONTRACTOR,-FORM OF

SCEURITY BOND.

The mandate, that was given, quite covered all that was done in this case and must be binding upon the plaintiffs.

There was no substantial departure from the form of security bond, in this case, there are very few cases were such Schedules cannot be transgressed. A certain amount of elasticity must be accorded to them in practice.

Without the consent of all the parties to the contract including that of the laborers, given in the legal way before the Magistrate, The contract is necessarily binding upon all the parties during the whole term of its endurance.

Before

His Honor SIR C.F. SHAND KNIGHT,
Chief Judge.

His Honor N. G. BESTEL, First Puisne Judge.

ED. DE LAPEYRE,-Of Counsel for Appellants C. ROUSSET,-Appellant's Attorney.

L. Cox, Act. Sub. Proc. & Adv. Gen.-Of Counsel for Respondent. J. BOUCHET,-Attorney for Respondent.

19th June 1872.

This was an application on behalf of Charles Victor Hippolite I anglois and others, the owners of the St. Medard Estate in the District of Pamplemousses for a writ of Certiorari to remove into the Supreme Court a certain Record of conviction or order under the hand of Mr. Charles Renouf the Stipendiary Magistrate of the District made on or about the 18th of last month, and all the proceedings upon which the same was founded, in a matter wherein the Indian Dabedoyal No. 2643 and some 50 others were plaintiffs as complainants and Zoile Charlot and the owners of the said Estate were Defendants. By the conviction or order in question, the owners of the said Estate were condemned jointly and severally with the said Zoile Charlot to issue to the said complainants 15 days rations as due by them in terms of their contract of service, and it was farther ordered that the men do return to their work on the said Estate.

Cox Sub. Proc. Gen. for the respondents stated that he was ready to proceed with the discussion of the case and that all the papers and proceedings were already on the table of the Court.

The Court accordingly at once held the writ as issued, the return as made, proceeded to hear the case and pronounced the following.

JUDGMENT.

From the evidence which has been submitted in this case, it appears that on 6th March last a contract of service was entered into for

the Estate "St. Medard" in the district of Pamplemousses, in the presence of the Stipendiary Magistrate, between Zoile Charlot, à Job-Contractor for the said Estate and 49. of the Indian labourers, the present respondents, whereby it was agreed that the said Charlot should hire the services of the said Immigrants, and the said Immigrants bound themselves to render to him their services in the capacity of laborers for 12 calendar months the said Charlot paying the wages and rations as therein stated with proper lodging and medical care; It was farther covenanted that if the said Charlot should at any time employ the said Immigrants on any other estate than St. Medard and situated within the said District except with the consent of the said Immigrants given in the presence of the Stipendiary Magistrate of the said district, the present contract should ipse facto become null and void. Of the same date Mr. Louis Langlois for the proprietors of the estate granted in the presence of the Stipendiary Magistrate an undertaking under Schedule A. of Ord. 7 of 1865 in the following terms: "whereas certain Immigrants from India, whose names are appended hereto have en"tered into a contract of service as agricul"tural laborers for the period of twelve "months with Zoile Charlot, Job-Contractor, "residing at Pamplemousses, which said contract is dated the sixth day of March "1872."

the former one, mutatis mutandis, and a similar guarantee by the proprietors was given as under the other contract.

Early in the month of May thereafter (10th) the manager of the Estate "St. Medard" intimated to Zoile Charlot in writing that as he neglected properly to superintend his men upon the Estate, and as their work was badly done, from the first of the said month of May he would not consider (accepter) him as any longer Job-Contractor for the Estate. Some attempts appear to have been made to transfer the Band to another estate but this was not accomplished.

On the 6th May the Indians complained to the Stipendiary Magistrate against Charlot and the owners of the Estate "St. Médard" that they were refused work and that their usual rations had been refused on the previous Saturday the 4th May. Before the Magistrate the Job-Contractor admitted his liability to the complainants but stated that the proprietors of St. Medard" had refused to give the men work and rations, tho' he had several times applied for them. hearing parties and taking evidence, the Stipendiary Magistrate on 18th May condemned the Job-Contractor and the securities jointly and severally to issue to the complainants the 15 days' rations due to them, and ordered that the men should return to their work on the Estate."

After

We have been asked in this Court to quash this judgment on several grounds. In the first place it was argued that Louis Langlois who acted for the proprietors of the Estate "St. Medard" had authority only to agree to the transfer of the Indians to the Estate, not to their support. The words of his mandate are the following: "Nous propriétaires "de la propriété St. Médard" donnons "pouvoir à Monsieur Louis Langlois, admi"nistrateur de cette propriété de faire trans"férer l'engagement des Indiens de Mr. Zoile "Charlot pour la propriété St. Medard " quartiers des Pamplemousses."

These words are very general and broad. The mandatory in all that he did only took the necessary steps for the legal transfer of the Indians to the Estate as laborers. The mandate quite covered all that he did for accomplishing its object and his acts in such a question as the present must be binding upon his constituents. If Langlois had exceeded his powers, (which we have found he has not) under the exceptional system of contracts with Indian laborers existing among us, the givers of the powers ought to have applied to the Stipendiary Magistrate to cancel the contract between parties for want of

authority. By not doing so it may not unreasonably be argued that they have ratified the act of Langlois and cannot now be heard to complain. Even if there had been want of authority on his part. This objection cannot be maintained.

It was farther contended that the Magistrate had no power to alter the form of the Sond of security to be given by the proprietors under Schedule A. of the Ord. No. 7 of 1865 on comparing what was actually done in this case with the Schedule, we can find no substantial departure from its form. There are very few cases where such Schedules must be so judicially followed as if they laid down hard and fast lines, which cannot be trans"gressed with impunity in the smallest particular, a certain amount of elasticity must be accorded to them in practice, and in the matter now before us the ordinance itself tells us that "the guarantee shall as nearly as may be in the form of the Schedule.” This objection must share the fate of the former.

30. It was argued that the contract was annulled by what passed between the proprietors and the Job-Contractor. The owners were dissatisfied with him, and the work of his laborers and they told him, his and their services were no longer required. There was no contract between the Indians and the proprietors of the Estate. This argument proceeds upon a misapprehension of the law,. It entirely ignores the presence of the Indians in the contract. In law the owners are bound to thein equally as the Job-Contractor is the guarantee required by the law, is a statutory guarantee explained in Art,7 of Ord No. 7 of 1865 to be " by way of a joint and seve"ral obligation on the part of such owner or lessee along with the Job-Contrator for pay"ment of the wages, rations, lodging, and "medical care, of the said laborer during

66

such time (not being longer than that men"tioned in the contract of service) as he shall be employed in working for the said owner or lessee."

That period of duration was, as we have seen 12 months in the one case and 11 months and twenty days in the other, without the consent of all the parties to the contract including that of the laborers given in the legal way before the Magistrate or a dissolution of the contract or cause shewn by before a competent Court of law, the contract is necessarily binding upon all the parties during the whole term of its endurance. No dissolution of the contracts has here taken place, they are still binding upon all the parties during the whole term of their endurance.

The Judgment of the Court below must

therefore be affirmed, the Complainants must return to their work on the "St. Médrrd " Estate and additional rations must be issued to them down to the time when this Judgment shall take effect. With costs against the Respondents C. V. H. Langlois and others.

BAIL COURT.

APPEL D'UN JUGEMENT DE MAGISTRAT DE DISTRICT, PLAINTE MAUVAISE EN DROIT PARCEQU'ELLE A ÉTÉ FAITE ΝΟΝ SOUS SERMENT, MAIS SOUS AFFIRMATION SOLENNELLE, AUTREFOIS ACQUIT, PEINE.

La plainte qui dès le principe a été faite sous affirmation solennelle peut être maintenue, le plaignant ayant été postérieurement assermenté

La première plainte avait été entrée par un Sergent Major de Police & non pas comme dans l'affaire actuelle par un particulier. Dans la première plainte l'agression avait eu lieu avec préméditation et guet-à-pens, circonstances dont il n'a pas été fait mention dans la seconde. Les deux effaires ne sont pas les mêmes. Les accusations ne sont pas identiques.

Il a été clairement établi que dans toute cette, affaire l'Appellant a été l'agresseur & que l'outrage a été commis dans les limites d'une cour de justice.

APPEAL FROM A CONVICTION OF DISTRICT MAGISTRATE, INFORMATION BAD IN LAW, NOT BEING TAKEN UPON OATH, BUT UPON SOLEMN, AFFIRMATION, AUTREFOIS ACQUIT PUNISHMENT.

The information, though at the outset bears to be an information upon solemn affirmation, may be sustained, the complainant having afterwards taken his oath.

The information was preferred by a Serjeant Major of Police the first time, and not as in the present case by a private party-The assault in the first case was said to have been committed with premeditation and lying in wait, and such is not the case in. the second information-the two cases are not the same, the charges are not Identical.

It is clearly established that in the whole affair, the Appellant was the aggressor and that this grace outrage was committed within the precincts of a court of justice.

CONSTANTIN,-Appellant.

versus

THE QUEEN,-Resposdent.

Before

His Honor Sir C. FARQUHAR SHAND, KNT. Chief Judge.

E. PELLEREAU,--Of Counsel for Appellant. J. A. ACKRYOD,-Appellant's Attorney.

L. Cox, ACT. SUBS. PROC. GEN.-Counsel for Respondent.

J. BOUCHET,-Attorney for Respondent.

28th June 1872

This was an appeal from a sentence of the District Magistrate of Savanne condemning the Appellant to two months' imprisomnent with payment of costs for assaulting one F. Lelong.

The grounds of appeal pleaded ́at the bar were three in number :

10 The Information was bad in law as it was laid not upon oath but upon solemn affirmation.

20. "Autrefois acquit." The accused had been tried before for the same offence substantially, and been acquitted, he ought therefore on that ground to have been at once discharged on the present occasion.

30. In any view, the punishment awarded by the Magistrate was excessive and ought to be reduced:

THE COURT.

As to the first contention of the Appellant, looking at section 6 of the Ordinance- 35 of 1852 and Schedule A. of Form No. 1 thereunto appended I think that the information in this case may be sustained, at the outset it bears to be an information, upon solemn affirmation, but then it is afterwards stated that the informant, the party who complains of being assaulted, maketh oath and saith as follows &c.

The information is certainly not consistent in what it states as to the solemnities observed

in its preparation, but the law itself is neither well nor clearly expressed, and I think that the information substantially contains, tho' in. a clumsy way, all the ingredients necessary to give it validity. It will also be noted that the information was duly pleaded to by the accused and the trial proceeded without objection to the form of the writ, the first objection will be repelled.

It is true that the Appellant was tried before, for his connection with the same affair but on that occasion the information was preferred by the Sergeant Major of the Police of the District, not as in the present case, by the private party who complained of having been assaulted. Again the assault as charged in the former case was said to have been committed "with premeditation or lying in wait" whether, therefore, this addition to the information is to be considered in legal logic as of the essence or of the accidents of the offence charged, it is not easy to see how it can be maintained that we have here a case of Bis in idem, for the two cases are not the same, the charges are not identical.

At the same time it is plain that the matter to be inquired into arose generally out of the same transaction, and it was urged by the Appellant with considerable force that as the accused could have been punished for simple assault under the first information, altho' the aggravation of premeditation or lying in wait was not established, he could not now be tried and punished for simple assault as he held an out and out acquittal at the end of the first trial.

There is considerable plausibility in this view. The Crown indeed maintains that whatever the power of the Supreme Court may be to sentence persons for simple assault, when aggravations such as those set forth in the first case have not been established in evidence, the District Courts have no such power but must categorically acquit or convict the accused of the whole charge as laid in the information. I should be sorry to find that this is in reality the law of the Colony for it is very important that District Courts as well as the Supreme Court should be entitled to find a charge established without the aggravations and at once proceed to judgment according to the real justice of the case, and without the delay and expense of a new trial. In the present case I do not find it necessary to say anything to throw doubts on the District Magistrate's power of so acting when the occasion arises, for I do not think that the contention of the Appellant in this part of the case can be listened to, in the peculiar circumstances which present themselves here for consideration. In the first case, it must be: