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Present: Mr. Justice Wood Renton.
SCOVELL v. MOOTAMMAH.P. C. Hatton, 1861.
Indian labourer—Desertion—Non-payment of wages for over 60 days—
Payment to kangany—Impliedassent—Subsequent . statute on the
same subject-matter as a previousstatute—Freshdesertion—
Ordinances Nos. 11 of 1865, 3 of 1889, and 7 of 1890.'
The accused, an Indian labourer, was charged under section 21ot Ordinance No. 11of 1865 with quittingservice withoutleave or
reasonable cause. It appeared that at thedate of the deser
tion a sum of 60 cents due to her as wages had remained unpaidfor over60 days;it also appeared that thissum was' paidbythe
Superintendentto thekangany inreductionofs debt dueby the
accusedto thekangany, in respect ofcertain advances made by
him to her,withouther expressassent; theaccused alsoaccepted
subsequent payments without demur.
Held, that the assent of the accused to the appropriation abovestated ought to be implied, and that the circumstances, in view of suchimplied assent, and in view of section 6 (3) of Ordinance No. 13 of1889, did notaffordher a validdefencetothe prosecution under
section 7 of Ordinance No. 13 of 1889..
WoodBentonJ.—An implied assent to an appropriation ofdebt
is good both under the English Law and under the Roman-DutchLaw.
WoodBentonJ.—Equally with impliedassent, section 6(3)
of Ordinance No. 13 of 1889 is decisive of the present point.
WoodBentonJ.—Sections 6 and 7 ofOrdinance No. 13 of1889,
covering ' as they do the same ground as section 21 of OrdinanceNo. 11 of 1865, supersede that section entirely where Indian cooliesare concerned.
Welayde.n v. Perumal (2 N. L. R. 210) followed.
WoodRent jnJ.—If the accused hasillegally deserted herwork,
she cannot- go back to the estate and make the fact that throughher own unlawful act her wages are in .arrears for more than theprescribed period a successful ground for a fresh desertion.
PPEAL from an acquittal with the sanction of the Attorney-General.'.
The complainant, Mr. T. Scovell, Superintendent of Derryclareestate, Kotagala, charged the accused with quitting service inNovember, 1905, without notice or reasonable cause under section 21of Ordinance No. 11 of 1865, as amended by Ordinance No. 13 of 1889and Ordinance No. 7 of 1890, sections 1 and 2. The defence wasthat at the date of the alleged desertion the wages due to theaccused for June, 1905, had remained unpaid for over sjxty days, and10-
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1906. that the desertion was justified under section 7 of Ordinance No. 13 ofMarch 8.1889. It appeared that there was a sum of 60 cents due to accused as
balance wages due for June, and that this sum was paid by the Super-intendent to the kangany, in payment of a debt due by accused tothe kangany in respect of advances. The Superintendent did notget the express assent of the accused to such payment, but he wasinformed by the kangany that he had the consent of the accused toreceive the same, and the accused accepted subsequent paymentswithout protest. The Police Magistrate acquitted the accused,holding that the circumstances afforded a good defence under section7 of Ordinance No. 13 of 1889.
C. B. Elliott, for the complainant, appellant.
H. Prim, for the accused, respondent.
. 8th March, 1906. Wood Kenton J.—
This case comes before me as an appeal, with the sanction of theAttorney-General, against the acquittal by the Police Magistrateof Hatton of a Tamil woman, named Mootammah, on a charge ofhaving quitted Derryclare estate, on which- she was working as acooly, without leave or reasonable cause, in contravention of theprovisions of section 21 of Ordinance No. 11 of 1865, as amendedby Ordinances No. 13 of 1889 and 7 of 1890, sections 1 and 2. Onbehalf of the accused it is contended that, as at the date of herdesertion a sum of 60 cents due to her for wages had remainedunpaid for over 60 days, she was justified in leaving the estatewithout further parley. It is admitted 'by the complainant thatthis balance of wages was outstanding.
If matters had rested there, the defence would clearly have beengood under section 7 of Ordinance No. 13 of 1889. But it appearsthat at the time when this balance of 60 cents was struck theaccused was herself indebted to the kangany of the estate in respect ofcertain advances made by him to her, that Mr. Scovell, the Superin-tendent of Derryclare estate, paid (with other wages) foe balance dueto Mootammah to the kangany, and that he in turn set it off againsther indebtedness to him. The Superintendent states that he had nopersonal dealing with Mootammah in the matter, and had no know-ledge as to whether or not she assented to the manner in which thebalance of her wages was disposed of; and the learned Police Magis-trate has held that she did not, in fact, expressly assent to if. Taccept the finding of the Magistrate on this point.
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The question that has now to be dealt with is, whether the absenceof such express assent entitled Mootammah to an acquittal. ThePolice Magistrate has answered this question in the affirmative on theauthority of a decision by Mr. Justice Browne in the case of Farqu-harson v. Muttu (1). This decision was previously followedby the same learned Magistrate in P. C. Hatton, No. 416, S.C.,No. 325, in which an attempt was made to challenge its soundness onappeal to the Supreme Court, but the appeal was decided on thefacts sflone, and the important legal problem raised in the presentcase was left unsolved (see S. C. Minutes, 12th May, 1905).
I have had some difficulty, in making out what it* was that Mr.Justice Browne in Farquharson v. Muttu (ubi. sup.) actually intendedto decide. It was a case of three-cornered indebtedness with a doubleappropriation of debt. The estate owed wages to the cooly. Thecooly was in debt to the kanakkapulle. The kanakkapulle on hisside was in debt to the estate. Accordingly the Superintendent setoff the wages due to the cooly against the debt due to the estate bythe kanakkapulle. No express assent to this appropriation by thecooly, (to confine our attention to him) was proved. Mr. JusticeBrowne held that the set off was bad, even although the cooly wasshown to have accepted payment of subsequent wages withoutmaking any reference to the previous balance due. “ In any civilaction ” he says, “ I would require clear proof of the actual' amountset off by whoever alleged it—debtor or creditor—ere I allowed it,and I will require no less in such a case as this, when it was a defenceagainst a criminal charge. ” If we are to infer from this passage thatthere was some uncertainty as to the amount due by the cooly to thekanakkapulle, I can. quite understand the decision. It must alwaysbe open to a labourer, under such circumstances, to raise any ques-tion as to the wages due to him, or his own indebtedness, and the factthat he had no opportunity of doing this might in a particular casego far to negative his assent to an appropriation. But if Mr. JusticeBrowne intended to lay it down as a rule of law that no such appro-• priation can take place, unless it is expressly assented to by the coolyin the presence of the Superintendent of the estate, I can only say,with the greatest respect, that I think he is wrong and that I am un-able to follow his decision. An implied assent to an appropriationof debt is clearly good by English Law: Newmarch v. Clay (2);Young v. English (3), and there is strong Roman-Dutch authorityto the same effect (see Nathan’s Common Law of South Africa,vol. H, p’. 596).
(2) (1811) 14 East 238, 243.(3) (1843) 7 Season 10.
0) (1897) 3 N. L. R. 23.
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In the present cose I am at opinion that Mootammah’s assent tothe appropriation ought to be implied. There was no doubt or dis-pute as to the wages due to her, or her indebtedness to the kangany:She accepted subsequent payments without demur. She left theestate without making any claim for the 'balance due to her, and shedid not come forward at the trial to give her version of what had hap-pened. It was not to meet cases of this description that the Legis-lature enabled coolies whose monthly wages were unpaid for morethan 60 days to abandon their work without leave or notice. Onthis question of implied assent see further P. C., Matale, No. 24, 689,S.C., No. 484, and P.C., Matale, No. 24,744, S.C., No. 464. But thereis more. Section 6 (3} of Ordinance No. 13 of 1889 expressly empowersand requires the master to deduct from the wages due to a labourerfor any period of service all advances of money properly made to himduring such period. Unless Farquharson v Muttu (ubi. sup.) isto 'be explained on some such special ground as I have indicatedabove, I cannot understand why this provision was not consideredby iMr. .Justice 'Browne in deciding it. In any event, equally withimplied assent, it is decisive of the present case. The ground onwhich Mootammah claimed the right to quit her work without leaveor reasonable cause was the set off against her monthly wages of anadvance made to her and then outstanding. 'But under the statutoryprovision I have referred to, the master had a right to make the setoff in question. Here again, as in the case of appropriation at Com-mon Law, she might raise any ground of objection as to the amountof the wages due or of the advance. But in the absence of anydubiety on these points, the appropriation took place by the authorityof the statute, and whether she assented to it or not is immaterial.
In view of these findings as to implied assent and the statutory,right of appropriation, independent of any assent, express or implied,there is, strictly speaking, no need for me to go further. But thereare two points on which I ought, perhaps, to say a word: (1) I do notthink that the account between an employer and a cooly with regardto wages is a “ running account.” Ordinance No. 13 of 1889, asamended by Ordinance No. 7 of 1890, not only is of later date thanthe principal Labour Law (No. 11 of 1865), but is an Ordinancespecially defining the legal position of Indian coolies. I am inclinedto agree with 'Mr. Justice Lawrie in Welayden v. Perumal (1), thatsections 6 and 7 of Ordinance No: 13 of 1889, covering as they do thesame ground as section 21 of Ordinance No. 11 of 1865, supersede thatsection entirely where Indian coolies are concerned. It would follow,for instance, that the requirement as to 48 hours’ notice is no longer
a) (1896) 2 N. L. R. 210.
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in force in such cases. But in any event the later Ordinance mustprevail against the earlier one wherever it has introduced new pro-visions inconsistent with those of the older law. Now the OrdinanceNo. 11 of 1865 authorized deductions in respect of advances from “ theamount of wages due at any time.” But section 6 of Ordinance No. 13of 1889, after providing for the payment of wages monthly (sub-sec. 1)says that in computing the amount due ‘‘ for any period of service ”deductions not merely may but shall be made for advances “ during'such period. ” In my opinion each period of service (in the absence-of contractual arrangement to the contrary) is, if I may borrow aterm from the Law of England, a “ rest ” at which the accounts-between master and servant must be finally adjusted so far as pastadvances are concerned. There is nothing that conflicts with thisview in P. C., Haldummulla, No. 5,062 (S. C. Minutes, 2nd July,1879); P. C., Bakwana, No. 2,094 (S. C. Minutes, 2nd March, 1887);and P. C., Nawalapitiya, No. 16,236 (Vand, D. C., 64)—they weredecisions under the Ordinance of 1865—and it is supported by thedecision of Lawrie J. in Sinclair v. Ramasami (1). I must withdeference decline to follow on this point the dicta of Clarence J.in Henly v. Wellayan (2).(2) I observe that the learned Police
Magistrate, at the close of his decision, gives expression to the opi-nion that the prosecution in this case must necessarily be fruitless,inasmuch as, even if Mootammah went back to the estate, unpaidwages more than 60 days in arrears would still be due to her, and she-would therefore at once be entitled to desert again with impunity.I do not see that when a Magistrate is called upon to* decide a pointof law he has any occasion to consider whether, the prosecutionwhich gives rise to it will be fruitless or not. But apart from that,I entirely dissent from the view that if this cooly woman has illegallydeserted her work she could go back to the estate and:, make the factthat through her own unlawful act her wages are in arrears for morethan the prescribed period a successful ground for a fresh desertion.I set aside the acquittal and sentence' the accused to one day’s simpleimprisonment.
a) (1895) 1 N. L. R. 48.
(2) (1892) 1 S. C. R. 136. –
SCOVELL v. MOOTAMMAH