Skip to Content

Colonial Cases

Moung Shoay Att v. Ko Byaw, 1876

[sale of goods, timber trade]

Moung Shoay Att v. Ko Byaw

Judicial Committee of the Privy Council
4 February 1876
Source: The Times, 5 February, 1876

(Present - Sir James Colville, Sir Barnes Peacock, Sir Montague Smith, and Sir Robert Collier.)
  The respondent, Ko Byaw, was plaintiff in the Court of First Instance. Both appellant and respondent are merchants of Moulmein, dealing in timber grown on the banks of the Salween and its territories. The conditions of this trade, so far as the produce of the Salween being British territory is concerned, are peculiar, by reason of the rocks and rapids which have hitherto hindered rafting on this part of the river impracticable. The Moulmein merchant or his agent, accompanied by workmen and necessary attendants for the elephants, proceeds to the forest, and there, under permit from the Chief claiming the property in the soil, kills a certain number of trees by "girdling," and when these are fit for felling, fell them. Sometimes the merchant finds timber already felled and seasoned, and awaiting a purchaser. Having got his timber in a condition fit for floating, the merchant has now to remove it to the market of Moulmein.
  The first stage of this removal is effected by elephant power.  Each log is pushed and dragged from the spot where it has been felled into one of the ravines intersecting the forest, where it lies until the rising of the waters during the rains it floats, and eventually finds its way into the Salween. At the Rope Station above Moulmein the logs are caught by salvors, who raft them down to Kadoe, the timber depot of Moulmein. Here, being recognised by the marks the merchant has put upon them at the time of his purchase, they are taken away to the merchant's yard. All the disbursements while he is in the forest for the purchase of timber, payment of royalties to the Chief, and for the wages and maintenance of his establishment, have to be made in rupees, and, as the forests are at a great distance from Moulmein, the communications difficult, and the districts to be traversed infested with dacoits, merchants usually take up with them when they go the sums they are likely to require for the purposes of their speculation.
  In the autumn of 1870 respondent and appellant were both engaged in procuring timber in the province of Zimmay, part of the Kingdom of Siam. Appellant was there in person; respondent had sent his agent, Nga Douk. Of the amount which Nga Douk had with him for the purpose of the adventure, he deposited with the Bhinyakin, a Siamese official, in order to meet royalties, the sum of 3,000 rupees; the rest he retained in his own keeping. He had also four elephants, with the usual attendants and equipments. Nga Douk entered into contracts for timber, and marked 152 logs. Two days after the timber had been thus marked, appellant and his servants, meeting with Nga Douk, at a spot between the town of Mhineloonghee and the villager of Dienboo, fell upon him and beat him until he was insensible. On his recovering his senses appellant took him before the Bhinyakin, and charged him with having fraudulently put the respondent's mark upon the timber. Nga Douk was then put in irons, and loaded with an iron collar, and kept a prisoner. Fearful of further ill-treatment, and obtaining no protection from the Bhinyakin, whom he believed to be in collusion with appellant, Nga Douk signed, as a means of obtaining his release, a document, which was tendered to him by appellant, and made over to appellant the elephants with their accoutrements and the 3,000 rupees which he had, as already stated, deposited with the Bhinyakin.
  Proceedings were afterwards taken at Zimmay to establish the purchaser's right to the logs, and at Moulmein to set aside the contract as obtained by duress, and to obtain the return of the elephants and cash. The Civil Judge of Moulmein dismissed the suit, but the Special Court of British Burma held that Ko Byaw was entitled to the relief in those respects which he claimed.      
  Thereupon this appeal came before the Privy Council and was argued for several days largely on questions of fact as to what occurred in a wild forest of Siam under native Government.
Mr. Leith, Q.C., and Mr. Doyne for the appellant, said there was no duress, and that in any case the contract was ratified, for the respondent took possession of the logs.
  Mr. Lewis Cave, Q.C., and Mr. Coryton raised an interesting question of the agent's power to bind his principal by a contract framed to escape the consequences of his own fraud, assuming that he had fraudulently marked the timber, and that there was no pressure amounting to duress.
  Sir Montague Smith delivered the judgment of the Committee at some length, and affirmed the decision of the Special Court that there was duress. The Committee, therefore substantially upheld the decree; but it appeared the Special Court had made no provision for payment by the respondent for the 152 logs which had been marked. The decree was, therefore, varied to that extent, and each party bore his own costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School