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EARQUHARSON v. WEERA MUTTU.
P.C., Kandy, 4,954.
Master and servant—Desertion—Wages in arrear—Set-off of coolies'wages against debt due to estate by kangani.
An estate proprietor has no right to set-off the wages due to aoooly against a debt due to the estate by the kangani to whom, theeooly is indebted. The cooly is not liable for desertion when, inconsequence of such set-off, his wages remain unpaid for twomonths.
''THE complainant in this case charged the accused with deser-tion. The defence was that the accused had a right toleave, as his wages were in arrears for two months. It was contendedon behalf of the complainant- that , the wages due to the accusedwere set-off against a debt due to the estate by the kangani, towhom the accused, among the other coolies, was indebted. ThePolice Magistrate convicted the accused, and he appealed.
Van Langenb'erg, for appellant.
Bawa, for respondent.
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1887. 3rd September, 1897. Browne, A.J.—
"When accused in this case sought to excuse his alleged dcser-
tiojx by the facts that his wages for November and December lasthad not been paid to him, it was alleged that these had been setoff against the amount due the estate for advances, as it wascustomary to do on the estate every alternate two months whenwages were computed and settled. The evidence, however, disclosedthat the debt for advances was one by the kanakapulle to theestate, mid that the debt of each cooly was to the kanakapulle.This debt of the estate, on the other hand, would primafacie .be to the cooly direct for the net balance of his wages afterdeducting rice and advances. To this accused was due forNovember-December check rolls the net sum of Rs. 2'20. BeforeMr. Farquharson could pay this to anyone save the cooly, heshould have consent given, which would be (1) by the cooly thatit should be set-off against his debt for the kanakapulle ; and(2) by the kanakapulle that it should be set off against his debtto the estate. The further evidence taken shows that one day inJanuary Mr. Carey told the coolies and kanganies he was goingto set off November and December wages against advances, andthere was no dissenting voice. I suppose if accused had said hecould not afford to go without all or some part of his pay, then hewould have been paid what he required, but possibly he wouldhave thought twice ere he did. so. He has, however, at this furtherhearing, stated his position in very simple language: “What-“ I complain is that the money was not shown me before paying“ to the kangani,” i.e., “ I never knew either that the intention“ to set-off was ever carried into effect, or how much then of my“ pay was set off. When I would come to settle up with my creditor ,“ hereafter, how could I say but he might deny any set-off was“ made at all. He might allege there had been no wages due me“ to set-off, or state some small sum falsely. I had a right“ to be told what my balance was in my creditor’s presence and“ to have my debt so credited in effect by him with that sum.”
All that was done was that, on some date unknown after Mr.Carey’s announcement of his intention, a pay list showing theamount due each cooly was handed to the kanakapulle, and hisdebt to the estate was credited with the aggregate amount so due.He, in Court, says: “ The accused’s wages for November and“ December were brought to account against his debt. I told him“ so, and he agreed. In March I (the word is illegible, it may be“ ‘ reduced ’ or ‘ ended’) his debt.” In remitting the case forfurther evidence, I suggested that this creditor should show how-
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his account with the cooly stood, and that the November- 1897.December net wages, t.e., the Rs. 2'20, had been credited. It was Septembers.but a trifle which this Court could do to see that the cooly hadBrowne
been really given the advantage of his work in a definite sum. A.j.This has not been done. In any civil action I would require clearproof of the actual amount set off by whoever alleged it,debtor or creditor, ere I allowed it, and I will require no less in suoha case as this when it was a defence against a criminal charge.
I do not see it will.be of any practical inconvenience on estatesto require that in matters of this kind the pay list should be readout on the “ set-off ” day, and each cooly told how much he isbeing asked then to agree to set-off. I should not be at all surprisedto find that is what many employers already do. I hold no set-offhere is proved to have been made, even though the accusedsubsequently accepted pay, which the superintendent says wasfor January and February. I acquit and discharge accused.
No question has been raised by the accused as to whether he wasin the service of the estate or of the kangany. But I think it rightto note that I observe his pro. note of 1st September last to thekangany contains the clause, “ and in consideration thereof agree“ to work with ourselves under the said kangany for one year.”
FARQUHARSON v. WEERA MUTTU