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Colonial Cases

Lebby v. Penembelam, 1839

[sale of goods]

Lebby v. Penembelam

Supreme Court of the Straits Settlements
Norris J., 1839
Source: Straits Law Reports (Stephen Leicester, 1877) 23


Penang Gazette, 31st August, 1839 


In the Cause of




   This was an action to recover damages from the defendants, the Seree Farmers, for refusing to purchase from the Plaintiff 5000 Bundles of Seree or Betel Leaf of which he was the Proprietor.

  The Plaintiff in his Petition  states, that he is the Proprietor of an Estate which produces Seree on this Island, and is also an occasional Importer of Seree within the Farmers limits; that he had become the proprietor of 5000 Bundles of Seree, and being desirous of selling them to Defendants tendered them accordingly for that purpose within the limits; but that the defendants, contrary as the Plaintiff alleges to the Regulation No, 3 of 1830, refused to take them; for which refusal he claims damages.

   The Defendants by their plea virtually admit the facts stated in the petition; but say that the action is not maintainable, because the plaintiff was not the Proprietor of the Seree in question within the meaning of the 6th and 7th Sections of the regulation, contrary to the intent and meaning of the Regulation.

   The Plaintiff by his replication, which on strict principles of pleading would be considered argumentative and bad, inasmuch as it neither denies nor confesses and avoids the allegation of the Plea, insists that the action is maintainable, even though it should appear that he had purchased the Seree for speculation.  But as Mr. Balhatchett for the Plaintiff has admitted that the Seree was in  truth so purchased on speculation from growers in this Island without the farmers limits, the replication  must be viewed in the light of a f=demurrer, and the Court is now called upon to decide what  is the law upon the facts this ascertained?

   A question analogous, but not precisely similar to the present, was decided in the year 1833 by my predecessor, Sir Benjamin Malkin, and I have been referred by the Plaintiff's agent to the judgment in that case [Inchee Karrim vs. Quay Pang, tried at Malacca.] as decisive of the present, with high commendations, at the same time, of the zeal and ability displayed by that learned Judge, in expounding the local regulations.  To the justice of this encomium  I most cordially subscribe, and no man I should imagine, can read the luminous decisions of that most able Judge, but must be struck with his u=intuitive perception, accurate statement and masterly solution of the principal difficulties, actual and prospective, concerned with any question which happened to come before him for decision.  A case, however, precisely such as the present does not seem to have been anticipated by Sir Benjamin Malkin, or, if it were, he was not called upon particularly to advert to it.  Of the two classes of sellers, from whom, as decided by Sir Benjamin Malkin, the farmer cannot refuse to buy, the Plaintiff in this case belongs to neither the one nor the other.  These two classes, as described by the 6th Cause of the Regulation consist of, first Proprietors and Occupiers of estates producing Seree (within these Settlements, of course) and secondly importers in Prows, (that is from abroad.) The Plaintiff does not claim in either of these two capacities, domestic grower or foreign importer, but in a third and different capacity, not recognized in the regulations, viz., as a Purchaser from the home growers.  It is contended, indeed, that as such he is necessarily comprehended within the general term "Proprietor¬£ in the 7th Section which provides that

"for all Seree or Betel Leaf produced within the limits defined the Renter or licensed person shall pay the Proprietor at such rate per Bundle as the Governor in Council may determine, &c."

And had this been all, had there been nothing in the Regulation to quality or restrict the meaning of this general term, it might have been difficult to evade the construction pleaded for.  But such is not the case.  The 6th and 7th Sections  forming parts of the same instrument and the one immediately following the other, must necessarily be construed together to preserve the consistency of both.  If taken separately the 7th Section might seem at variance with the 6th or at least of doubtful meaning; Courts of law will always endeavour, and are indeed bound, to interpret every instrument as, if possible, to give harmony and consistency to the whole because such, it must be presumed, was the intention of those that framed it.  The term "Proprietor," therefore, in the 7th Section, construed with referenced as well to the preceding words in that section as to the more precise terms of the 6th Section,, must, in my opinion, be taken to mean Proprietor in one or other of these two senses, viz. Propreitor as Impiorter in prows from abroad, or propreitor as Prioducer, that is, Proprietor nor occupier of the producing Estate in these Settlements.

   It has been said, that if the Plaintiff could have anticipated the objection that he was neither grower nor importer within the meaning of the Regulation, and so could not oblige the farmer to purchase, he might easily have obviated the objection, as he or other speculators may do in future, by bringing the Seree round by Sea instead of by land.  It might be difficult to say that the Court will determine that question whenever it shall arise.  But as prevention is better than cure, I may as well take this opportunity of intimating that so manifest an evasion of the clear meaning of the regulation would be at the peril of the party attempting it.

   Observations were also made by the Plaintiff's Agent as to the oppressive nature of the Regulation and reference was made to a severe reprehension lately passed upon it by the Right Hon'ble the Governor General.  These remarks, it is hardly necessary to observe, were beside the question; and sitting in this place to determine the legal effect of the Regulation I am not called upon to express any opinion with regard to its practical [efforts] effects upon the morals or happiness of the people; although on the Criminal side of the Court both I and my predecessor have too frequently found ourselves obliged to do so.  It is sufficient on the present occasion to say that in this, as in all other cases of real or imaginary grievances, there is a constitutional mode of seeking redress.  One other remark, however, suggests itself with reference to this particulars case, viz., that whatever may be the hardship on growers of Seree, no mere speculator such as the Plaintiff has any right to say, that his common law rights are invaded by the monopoly; nor can it be imagined that the farmers of the regulation had the slightest intention to provide for such persons an equivalent for contingent losses by speculation, or to afford private monopolies the means of defeating, for selfish gain at the expense of the community, a Government monopoly established for the purpose of Public Revenue ostensibly applicable to objects of public benefit considerations, which might alone have furnished a key to the true meaning of the Regulation in cases like the present, even had its terms been more equivocal than they are.

   Judgment for defendants with Costs.

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