Robert Wigram Crawford v. Richard Spooner (India)

CRAWFORD ‘U. BPOONER [ 18461 I V MQORE IND. UP., 179

[179J R ~ B ~ R ~ RAM C R A ~ F O R D , - ~ ~ e ~ f f ~ ~ ; R I C ~ R D SPOONER,-

Bep&end* [Dec. 11 and 15, 18461.

012. Appenl fmm the Supreme Qm$.it at 3 v n ~ ~ ~ ~ .

A ship built in a foreign port in India, in 1817, within the limits of the Conipany’s

Charter, by foreigners, and which sailed under foreign flags, until 18:3$,

wlien it was then and thereafter owned by, and belonged to, British subjects.

resident at Bombay, is entitled, under the Proclamation of the Governor-

General in Council, and the Act of the Legislative Council of India, No. S.

of 1841 (passed in pursuance of the powers, granted by the Statute, 3 and 4

Vict., c. 56), to be registered at Bombay, as a British ship, for the purposes

of trade, within the limits of the Company’s Cfiarter.

This was an action on the case, brought by the AppelIant (the owner, to it^

extent of eight sixty-fourtll parts, of a vessel, called the Generrrl WOOCZ’), against the

Respondent, the registering officer of ships, at the port of hn ibay . appointed undcr

the Act of the Legislative Council, KO. X. of 1831 ; for refusal to register the ship.

at that port. To the declaration, the Respondent pleaded, that the ship was not, on

the 11th of September 1844 (the day named in the decIaratioii, wlieit the refusal

was made), or before, had not been, or was then, entitled to the privileges of, or to

[lSO] be registered as, a British ship; and thereupon issue was joined. It was

afterwards agreed between the parties that the following special case should he

stated for the opinion of the Court.

‘‘ In the ycar 1816, a ship was laid do%-n, and in 1817, was conipleted and built

at Dainaun, a Portuguese settlement in India, within the limits of the C o m ~ a ~ y ’ s

Charter (as those Iiniits are defined by the 3 and 4 Vict., c. 56), for and as the

property of one Manoel Pereira, a Portuguese subject, and resident at Xacao, ~ h o

co~t inued to own the ship, and navigate her, under the flag of ~o r tuga l , untiI the

pear 1824, when he sold and assigned the ship to one John Hudson, British subject.

a master mariner resident at Calcutta.

“John Hudson owned the ship, and navigated her under the British flag, untiI

1826, when he sold and transferred her to Francis Mendez, Portuguese, a merchant

of Calcutta, who, in 1827, transferred her to Antonio Pereira, also a merc~iant of

Calcutta. The vessel was shortly afterwards transferred to subjects of Portugal,

at Macao, and, in 1832, was transferred by then) to John Burd, a master niariuer,

resident at Singapore, but a subject of Denmark.

“ In 1833, John Burd had the vessel registered as a Danish ship at Altonu, and,

in 1838, he sold and transferred her to Mr. Henderson, a British subject and

merchant, then resident at Bombay, by whorri the ship was, in 1838, sold and

transferred t o Messrs. Jardine, Matheson and Co., British subjects, and merchants

of Canton, in China, by whom the ship waR, in the same year, re-transferred to

John Burd.

“In 1841, John Burd sold and transferred the ship back to Messrs. Jardine,

mat he so^^ and Co., who. in the present year, sold and transferred the ship to Sir

[la11 Jamsetjee Jeejeebhoy, Sons and Co., British subjects and merchants, resident

and carrying on business in Bombay, and who had since sold eight sixty-fcPurth

parts or shares in the ship, t o the Plaintiff in this action, a British subject$ residing

in Bombay.

“ The ship was navigated under Danish colours whilst owned by John Burd ; hut

on being transfeired to Mr. Henderson, a pass was granted bg the Master Attendant

at Bombay, under the provisions of Act No. XIX. of 1538, of the Legislative Council

of India, entitled, ‘ An Act for prescribing the rules to be observed, in order that

ships or vessels belonging to ports within the territories under the ~ o ~ c r ~ i m e n t of

the East, India Company, or belonging to Native Princes or States, o r their subjects,

niight become entitled to the privileges of British ships, under a Proclamation o f

the Governor-General in Council, in India, iiiade in pursuance of tlic Statute, :I itrid

* Present : Members of the Judicial Co~~nittee,-I,ord Brougham, Lord Lang-

dale, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh.

Privy Councillors,-Assessors,-Sir E. East, Bart., and Sir E. Ryan, Knt.

__I - -- ~- __

667

Jv EBOOIbE IND. APP., 182

4 Vict., C. 56.” The ship vas navigated under British colours, and it was trans-

ferred back to John Burd, when it was again navigated under Danish colours, and

on being transferred to Messrs. Jardine, ath he son and Co., a sailing letter of

licence was granted to them by Sir Henry Pottinger, the chief superintendent of

the trade of British subjects in China, under which the ship sailed with British

colours.

“The name of the vessel has been several times changed, and it i s now the

Gerreral Wood.

“ The survey required by section vii. of the Act of the Legislative Council of

India, NO. X. of 1841, has been duly made by the ~ovei.nment officers, and the Plain-

tiff, and other part owners, have also made to the registering officer the declaration

contained in section v. of the Act, and all the requisites of that Act have [182] been

c o ~ p l i e d with; but the Defendant, as the Registrar of Shipping for the port of

B o ~ b ~ y , refused to register her, under Act No. X. of 1841, or to grant her a certificate

of registry, for the purposes of trade, within the limits of the Company’s Charter,

on the following grounds :--First, That the vessel has been sold to foreigners. Second.

That she has sailed under foreign flags and under foreign names. Third. That a t the

time of the passing of the Act X. of 1841, she was not sailing under a pass, within

the meaning of the said Act. The Plaintiff, 0x1 the other hand, contends that the

ship having been built within the limits of the Co~pany’s Charter, as those limits

are defined by the Statute, 3 and 4 Vict., c. 56, and being exclusively owned by

Her Majesty’s subjects, for whom the Governor-General in Council has power to

legislate, i s entitled to registry at the port of Bombay, under the Act of the Legis-

lative Council, 30. S. of 1841, for the purpose of obtaining the benefit of thc Pro-

clamation of the overn nor-General in Council, annexed to the said Act, and that

inasmuch as nothing is contained in the Act, excepting or tending to except, from

the operaiion and benefit thereof, vessels which had a t m y time previously belonged

to persons not subjects of Her ~ a j e s t y , for whom the Governor-~enera~ Council

has power to legislate, the Defendant cannot lawfully refuse to register the vessel in

question, under the Act and Proclamation, by reason of her not having been

formerly owned by subjects of a foreign state.

“The question for the opinion of the Court is, whether the Plaintiff, and the

other owners of the ship, are lawfully entitled to have the ship registered, under the

provisions of the Act of the Legislative Council in India, No. X. of 1541, and the

Proclamation annexed thereto.

[183] ‘‘ It is agreed That all documents referred to in this case may be referred

to fully on the argument.

I ‘ If the Court should decide in favour of the registry, a verdict is to be entered

for the P l a i ~ i t i ~ , with nominal damages, the Defendant undertaking to register the

vessel accordingly;. and if in the negative, a verdict is to be entered for the Defen-

dant, with costs, either party to be a t liberty to appeal; and should, pending the

appeal, the vessel be registered, and allowed to sail and trade under the register,

in the event of the decision of the Appeal Court being against the Plaintiff, then

the registry of the vessel shall bp delivered up to be cancelled.”

The special case was argued on the 21stt of Septemher 1844, before the Supreme

Court, consisting of the Chief Justice, Sir Henry Roper, and Sir Erskine Perry,

and the Court gave an interlocutory judgment, in the nature of a verdict, in

fatvour of the ~espondent.

Judgment was afterwards signed for the ~ e s ~ o n d e n t , and from this Judgment,

the Appellant brought this appeal, which now came on for argument.

Mr. Serjeant Channell, and Sir John Bayley, for the Appellant.-The ship

Genera2 Wood having been built within the limits of the Company’s Charter, and

owned by British subjects a t Bombay, at the time of the issuing of the ~roclamation

and passing of the Act of the Legislature of India, No. X. of 1841, the AppelIarlt was

entitled to have it registered a t the port of Bombay, and a certificate of registry

granted to him ; as a British ship, for a11 the purposes of trade, within the limits

of the Company’s Charter. We do not dispute that the English Registry Acts, or

that meet of the [If%] provisions of the maritirne code niay have formerly applied

to India ; what we contend now is, that the 3 and 4 Vict., c. 56, enabled the Governor-

General to extend to a new class of ships, the privilege of British registry ; and that

having satisfied the terme of the Proclamation and Act of Legislature of India, the

668

C R A W ~ O ~ ~ 21. S ~ O O ~ ~ R [1846]

CRAWFORD v. SPOONER [ 1846l IV MOORE IND. APP., 1 s

English S h p Registry Acts had ceased to have application to ships or vessels built

within the h i t s of the Conipany's Charter, which were British owned a t the time

of the issuing of that Proclamatio~~. It was no necessary ingi~edie~it in t i le title of

a British ship to registry, that her ownership should have been continuously Britisli

from the t i m e of her build, until the time of tlie application of her registry. Nor

did it make any diff'erence, under the 3 attd 4 Tict., e. 56, that tlie ressel had beelk

previously owned by a foreigrier. The policy of the law appliealde to slriips of this

ciilss is disclosed in the Act, 55 Geo. III., e. 116, and confirmed by re-enactinent after

repeal, by tlie Act, 3 and 4 Vict., c. 56 ; i t is favourable to the exclusion of the con-

dition of continuous British owuership, imposed temporarily on Elast Indiaii

shippir~g. The Act, 55 Geo. HI., e. 116, having declared e~ei1iption from the

English registry Acts, in favour of all ships built before tlie 1st January 1816, in

ports within the limits of the Company's Charter, and the Act, 3 und 4 Will. IFT,, c.

59, having restricted that e ~ e ~ p t i o n to ships co~~~inuous ly British owned, the Act,

3 and 4 Vict., e. 56, in a more liberal policy, repealed the restriction, re-enacted

the pr idcges to their fornier extent, and permirted tlie Governor-General irk Council

to confer priTileges of equal degree on ships built after the 1st January 1816, as

s h i p theretofore built o r tlten ~ u i l d ~ n g . T l i e provisions requiring continual

British [l85] ownership were eipressly repealed by the Act, 3 and 4 Vict,, G. 56.

The intention of the LegisIature was to exclude that provision of the General

Registry At t , and to give po3yer to the ~ o v e r ~ ~ o r - ~ e i i e i ~ a l 111 Coiiirc4, to confei-

analogous pririleges on ships built after the 1st January 1816.

Mr. Wigram, Q.C., and Mr. Forsytli, for the Respondent.-It is a general rule,

that tlie Registry and Navigation Acts must be construed with reference to the

maritime code a t large. The argument of the Appe~lant. that you are to look to the

3 and 4 Vict., e. 56, and tlie Act of tlte Legislative Council of India, No. X. of 1841,

alone, cannot prevail. These Acts are in p w z nzaterirc \a.ith the code, being applic-

able to tlie same subject. Tlie same co~istruct~on was put upon the Legacy Duty

Acts, It cannot be

doubted, that the Registry and Navigation Acts extend to India. S t n k y e r v.

Murrny (2 Bar. and Ald. 248). The Recovery (6 Rob. Adni. Rep. 341, 346), though

it was doubtful a t one time. Tlic 3 and

4 Vict., c. 56, sec. 3, declares, that it shall be lawful for the Governor-General in

Council, in India, by Proclamation, to declare ships built within the limits of the

Co~puny's Charter, to be British ships, for the purposes of trade, within the limits

of the Charter. This Act of Parliament, however, gave no power to the Governor-

General in Council to abrogate or restrict that part of the Registry Laws which

disqualified a vessel which had been once owned by a foreigner, from being registered

as a British ship. It cannot be taken as a repeal of the former Bets: i t i s [186]

in the a ~ r n ~ a t i v e only, and cannot be a repeal of those Acts, unless there be negative

nords, or a plain contrariety between the two Acts. .@ddf&u.n v. Crofts (2 Atk.

673. S.C. Cas. temp. Hardw. 57). There i s K ~ O indication of an intentio~i iii the

3 Riid 4 Vict.. c..56, to repeal the 6 Geo. N., c. 110, and 3 and 4 Will. 117.) e. 55, which

required continuous ownership. In &we Y. G I V ~ (2 Term. Rep. 365)) NI-. Justice

Asliurst field that the bare recital of a Statute, without a clause of repeal, was iiot

sufficient to repeal the positive provisions of a foriner Statute. Even if this vessel

had been a Loiidoii built ship, unless sfxa had been continuously owiied by British

subjects, she c-ould not have the privileges of a British ship; 3 and 4 Will IV., c.

59, sec. 81. TI-te words in the Act. 3 and 4 Vict., e. 56, being owned, is to be con-

strned by the general Registry Laws; and by those laws, continuous ownership is

required, to entitle a vessel to be registered as a British ship. There is another

oK)jection, this vessel has been sold t o foreigners. By the generill Registry and

NuTrigation Laws, a ship that has Ijeon sold to a foreigner is henceforward dis-

qualified fro111 Zlaving t h e ttdvantages of a British ship. The Act X. of 1841, ac-

cording to its just interpretation, does not authorise the registration of a vessel

built ~ r e v i o u s l ~ in a foreign port, by and for a foreigner.

bEr. Serjeant Channell, in reply.--The rule is, in construing an Act o f Parlia-

ment, to take the ~vords in the sense the begislature has used them, and they are to

t1ax-e tllat effect, unless the construction of those words is either by the preamble,

01 hy the context of the words, controlled or altered. There can be no doul)t here,

669

f n flze matter of ~ ~ ~ ~ ~ ~ ~ ~ e ~ e ~ (1 Crorxi. and &fee. 149).

Wilson 1'. Ala73yat ( I 80s. and Pul. 430).

IV MOORE IND. APP., 187 GRAWPORD U . SPOONER, [I 8461

that the Legislature, in E1871 using the words, being owned, in the 3 and 4 Vict.

c. 56, meant them to meet such a case as the present. The words “which shall

~Eiolly belong,” “ continue mholly to belong,“ and which imply a continuous

ownership, are limited in their application to the immediate context, viz., ships

condemned either as prize of war, or forfeited for a breach of the Slave rrade

Abolition Act.

Lord I3rougham.-Their Lordships are clearly of opiiiioii, that the Judguient of

the Court of Bombay cannot stand. The construction of the Act niust be takrii froiii

the bare words of the Act. We caniiot fish out what possibly may have been the

intention of the Legislature ; we cannot aid the Legislature’s defective phrasing of

the Statute; we cannot add, and niend, and, by construction, make up deficiencies

ahich are left there. If the Legislature did iiitend that which it has liot eq’ressed

clearly ; much more, if the Legislature iiitetided something very diffet ent ; if

the 1 , e ~ i ~ l a t ~ i r e i it iided s o ~ i ~ e t h i ~ i ~ pretty nearly the opposite of what is \aid, it is

iiot for Judges to invent something which they do not meet with in tlie words of the

text (aiding their construction of the text always, of course, by the context); it is

iiot for them so to supply a meaning, for, in reality, it would be supplyiiig it: the

true way in these cases is, to take the words as the Legislature have given them,

and to take the meaning which the words given naturally imply, unless where the

construction of those words is, either by the preamble or by the context of the words

111 question, controlled or altered; and, therefore, if any other meaning wab intended

than that which the words purport plainly to import, theii let aiiotlier A c t \upply

that iiieariing, and [I881 supply the defect in the previous Act. We lean vely rrluch

to construing these words in the way which has been pointed out by tlie learned

Sei-jeant in his reply, that these words, which import continuous ownership, are

litoited in their application to the immediate context, namely, ships condemned,

either as prize of war, or forfeited arid condemned as forfeited for a breach of the

Slare Trade Abolition Act. It seems to us to be the plain and obvious co~i~tIuctioii

ui that section, and that is not a t all varied by the 8th and 9th sectioiis, having

the word *‘ again ” added, which makes a most material difference in its natural

construction. %%en the words are merely “ owned by British subjects,” can we say

that me are to impart iiito that, a totallj different consideration, aiid niake it as if

it had been, ” then, and up to that time, and all times, continuously owned by British

subjects?” Could the Legislature mean 110 such thing as that expressed in tlie very

words to which we have been referred ; supposing those words to have the largest

possible construction and scope that they can have, and not to be limited according

to the argument of the learned Serjeaiit, to which we lean, and which we think is a

very tenable one; nainely, to vessela condemned by the Admiralty Courts as prizes,

or forfeited under the Slave Trade Abolition Act? If those words are confined to

the cases of prize and forfeitures, under the Abolition Act, cadi,t qzieatw, because

then there is an end of the whole arguiiient with respect to continuous ownership,

for the whole a r ~ u m ~ n t res s entirely upon those words; but if, as we, for the present,

assume for argument’s sake, these words have no such limitation, but that, instead

of being restricted to those cases, are perfectly general, and do not apply inerely to

the cases of prize vessels and slave-trade forfeited Cl891 vessels, supposing them to

be so general, according to the Respondent’s argument, are we to assunie that those

words were added, not having existed before, for the express purpose of making

what?-of making ‘‘ owned,” or rather ‘‘ belong to ” (for that is the expression there),

qualified still further, by the introduction of another requisite, vie., that they should

“ always have so belonged to.” If the Legislature thought i t necessary t o add these

words, because the mords ‘‘ belong to,” in theniselves, were not sufficient, what are

we to say, then, when they leave out these words? \Ye caiinot get over that: they

leave out the \lords in the case in questioir, and say, ‘‘ owned by:” then if ‘‘ belong to ’)

did not nieaii continuous ownership, tlie addition of the further words, ‘‘ which shall

always have belonged to,” we say ‘‘ owned by,’’ in parity of reasoning, does riot inean

~ o n t i ~ i u o ~ i s owneidiip : but \Then those new n-ords, addiiig an additional eoi~dition,

aye taken into ttie account, tlie words “ owned by,” must be cortfilled to ttie pz-eqei,t

itieartirig, viz.? owned by. at the time of tlrc registration.

It appears to their Lordships, therefore, that this is a case, free frorii ntl reaqoIi-

able doubt, and that they must construe the words of the Act, as they fiitd theni.

670

A.-G. e. BRODIE Cl8461

There is 110 difference between the words of the Act and the ~ r o c ~ a n ~ a t i o ~ i : we must,

take them together ; and taking them so, we are of opinion that this ~udgine~i t cannot

stand. It was a judgment upon a special case; the judgment states the facts, in the

nature of a special verdict, and this i s in the nature of a Writ of Error, upon that

special verdict, though it only parports ta be upon a special case. We reaerse the

S u d ~ i i ~ e I ~ t of the Court below, and give ~udgmeiit for the F l a i n ~ ~ ~ , wi th riornrirnl

damages.

[Mews’ Dig. tit, SHIPPING; A. 111, I%EQIMTRATIUN; 1, Vndw ill. S. Act5 ; I). k’ui e i y i i

S.C. 6 Moo. P.C. I . Oir point (i.) as to what i s a British

IV M O O ~ E IND. APP., 190

O m e ? s; For . r igwS~~qns .

Ship, cf. s. 1 of Merchant Shipping Act, 1894 (57 and 58 Vict. c. 60) ; (ii

inability of Court to supply c m w o ~ r ~ i s s i ~ s (4 Moo. Ind. App. 187). vf.

Ilotks, etc., Board v. WeitderwrL, 1888, 13 A.C. 602; Green T. FFootl, 1x45, T

c2.B. a l p. 1%; Winteley v. ~ ~ u ~ ~ e ~ ~ , 1866. L.R. 4 Q.B. 1-1.7 : I’mberton v.

Ea&o)2, 1873, L.R. 16 eq. 490, 4!)2; ScoZt v. Legg, 1877, 10 C2.B.U. 238. 2 and

3 Vict. U. 56 was repealed as to all H.34.k d ( ~ ~ n i ~ ~ i o ~ s by X.L.R. (No. 2 ) Act. 18!)0.

Act X. of 1841 was amended by Act XI. of 1P50, Act V. of 1853, and At’; T ’ K

of 1891.1

E1901 EIS ~ A J E S T ~ ’ S A ~ T O R ~ E ~ - ( ~ E ~ ~ R A ~ , , at the relation of GEOIZGE WKST-

COTT, - Informant; WILLIAM DOUGLAS BRODTE, and Others, --

lAjendnn2.5 * [Dec. 15, 18461.

O R dppenl f ro~ j i t?w ~ ~ ~ ~ e ~ ) ~ e C o w t at Jictdrus.

Heard Bs parte ,

The Supreme Court at Nadras ~ e s t a b l ~ ~ h e d by the Madras Charter ot I800) has

an equitable jurisdiction, similar to, and c o r ~ e s ~ o n d i i ~ g with, the equitable

J~I r i sd ic~io i~ exercised by the Court of Chancery in England, over clzarities

[4 Moo. Ind. App. 193, 194, 1991.

By the 53 Geo. III., c . 155, sec. 111, the Advocate-General is entitled to appear ai id

represent the Crown, in i n fo r i~a t~ons for the a ~ i i n i s t r a t i o n of charitable

funds [4 Moo. Ind. App. 2001-

Thc questions raised by this Appeal were, first, whether the Suprcnie Court at

Madras had an equitable jurisdiction, siniilar to that exercised by the Court o f

Chancery in England, over charities ; and, s e c ~ J l d ‘ l ~ , whether the Advor&e-Geueral,

at Madras, had authority to appear on behalf of the Crown, and prosecute a11

~ n f o r ~ a t i o n , filed for the adniinistration of Etinds dedicated to charitable purposes.

These questions arose under the following circumstances : -

Peter Uscan, an Anneiiian merchant, and inhabitaiit of Madras, by !lis Wilt,

bearing date the 19th day of January 1750, ~equeathed the sum o f X000 l)a,aodas,

in trust, to pay out of the interest of such priiicipal sum, s u ~ ~ i e n ~ to keep ir i

repair a bridge and stairs, f1911 which he had built upon the river at St. Thomas’s

mount. The

testator died in the year 1756. On the 8th of Sanuary 1805, an i n f o ~ ~ a t i o ~ was

filed U by H i s Majesty’s ~ t t o r n e y - G e ~ e r a ~ , t and by the relation of George ~ ~ r ~ s ~ c o t t ,

Esq., and others,” in the Suprenie Court of Madras, against William Douglas Srodie,

Alesander Cockburn, and Joseph Baker, the trustees in whoni the sum was theit

vested, praying that the trusts of the Will might be settled and efitnbliihed. a*rd the

above charitable bequest carried into execution. This information was signed as

follows :-“ For His Majesty’s Attorney-GeI~era~, Alexander Anstrtither,” who was

the tfien ~dvocat~Genera1, a t Madras. The usual proceedings haring taken piace

in the cause, the Supreme Court, by R decree made in 1805, referred it to the master,

to take an account and for appointment of trustees. The master made his report,

By a codicil, the testator enlarged the bequest to 1200 pagodas.

Present : Melnbers of the Judieiaf ~ot~niit~ee,-Lord ~ r o u ~ l i a ~ ~ , Lord Lmg-

dale, the Right Ifon. Dr. 1 , u s h i ~ ~ t ~ ~ ~ . and the Right Hon. T. Pemberton TAgh.

Privy Councillors,-Assessors,-Sir E. E. East, Bart., and Sir E. Ryan. Knt.

67 f