British Guiana. Court of review.om old catalog.

A collection of cases decided in the Court of rewiew of British Guiana, from 1856 to 1872 [i.e. 1873] online

. (page 4 of 27)
Online LibraryBritish Guiana. Court of review.om old catalogA collection of cases decided in the Court of rewiew of British Guiana, from 1856 to 1872 [i.e. 1873] → online text (page 4 of 27)
Font size
QR-code for this ebook


workmen ,^t the respondents' foundry, and for no other purpose.
The Magifetf'ate dismissed the charge.

,Beete, J., gave judgment as follows : —

I confirm the order of dismissal made by the Magistrate in this
esfee, and order the appellant to pay the costs of Review ; because
1 consideft the word " Offices '* in the Ordinance to apply to the
places ofljusiness of Barristers, Advocates, Attorneys-at-Law, and
the like, and the words " Counting-houses " to those of Bankers,
Agents, or Attorneys of absent parties and such like, and not to
the mere places wKiere Mechanics, such as the defendants, keep
their accounts and settle with those whom they employ, and there
is no evidence that the defendants use the place in question for any
other purpose.



HENRY GULLIFER v. JAMES THOMAS YAUGHAN.

TIth Sefiemher, 1858.

(Ordinance 30 of 1856— Section 33.)

Mal'inf/ up l^oads and Repairing Bridges »

Invalidity of part of an Insp)ector'*s Notice no excuie for not complying with

another part.

This was an appeal from the decision of Mr. E. Carbery, S. J. P.
The respondent, an Inspector of Roads and Bridges, for the County
of Esf^equebo, ordered appellant, (the Manager of Plantation
La Belle AUiaTice) to cover his road with hard substance, to put
the rails of his bridges in order and to paint them, and to m^ke
up the approach to the shipping bridge. This order not being
complied with, appellant was summoned. At the hearing before



Digitized



by Google



BASCOM V. RELVA. 21

the Magistrate, the appellant tried to prove that tlie ifirst part of
the order was absurd, and could not be complied with ; but no such
excuse was made regarding the latter part.

Beete, J., gave judgment as follows : —

I confirm the order of conviction made by the Ma^strate in this
case, and order the appellant to pay the costs of Keview. Because,
even admitting that the evidence of the witnesses Canigieter, Light,
and Miller, proved that the covering the road with hard substance
at this time of the year would be injudicious, and that the notice
given to perform that work was unnecessary, it appears that the
appellant neglected to perform the other works required by the
notice served upon him, viz., the putting in proper order the bridges
and hand rails, the painting of the rails, tne proper making up of
the approach to the shipping bridge and the putting new cross
laths to all the bridges ; and there is no attempt to impugn the
propriety of the notice as regards those works, the omission to
perform any one of which, subjects the appellant to the penalty
unposed by Sec. 33 of Ordinance 30 of 1856.



J. E. BASCOM V. ANTONIO IlELVA.

27th Septemher, 1858.

(Ordinance 2 of 1853.)

^ [aster and Servant,

XegJect of duty to he proved^ not inferred.

This was an appeal from the decision of Mr. J. D. Fraser, S. J. P,
The Rum Store at Plantation Haarlem was broken into and a
quantity of rum stolen. The defendant, who was watchman there,
was charged with neglect of duty, hy allowing the theft of this
rum. No evidence of positive neglect of duty was adduced, but it
was argued that it was to be inferred from the fact of the Rum
Store having been entered. The Magistrate dismissed the charge.

Beete, J., gave judgment as follows : —

I confirm the order of dismissal made by the Magistrate in this
case, and order the appellant to pav the costs of the review ; because
the evidence does not support the charge of neglect of duty, to
establish which against a person in the position of a watchman, ^
some proof should be adduced, either of drunkenness, or absence/
from, or ^sleeping on his post, or some other direct evidence of like
nature.

A man's guilt is not to be inferred from the. occurrence of what
might have happened consistently with his innocence.



Digitized



by Google



99



GEORGE H. GORING r. W. F. MERCIER

Uh October, 1868.

(Ordinance 15 of 1858 — Section 5.)

Exemption from paying Tax for Cavalry Troop Hone.

This was an appeal from the decision of Mr. S. H. Goodman, S. J. P.
The appellant was convicted for keeping a horse without a license.
His aefenee was that he was a Trooper in the Volunteer Cavarly
Corps of Militia, and that the horse was his troop horse. He there-
fore claimed exemption, but the Magistrate did not allow it.

Beete, J., gave judgment as follows : —

In this case the order of conviction made by the Magistrate must
be quashed. The wording of the Ordinance is too clear to admit
of a doubt, and the tenor of the remarks furnished by Mr.
Goodman along with the case, leads me to conclude that he himself
was quite satisfied of the incorrectness of his decision.



PETER ANDREW CLOUSTON v. JAMES THOMAS ERASER.

nth October, 1858.

(Ordinance 12 of 1846.)

Assault not justified by provoking words — Severity of punishment.

This was an appeal from the decision of Mr. Mc Nulty, S. J. P.
The appellant was fined for assaulting respondent. His principal
grounas of appeal were, that he had been provoked by the language
of the respondent, and that the tine was excessively heavy.

Beete, J., gave judgement as follows : —

In this case, I have carefully read and considered the evidence,
and see no reason to interfere with the decision of the Police Magis-
trate. No words can justify an assault ; and if the complainant
did make use of language, such as would provoke any person to a
breach of the peace, and also malicious and calculated to do serious
iigury to the appellant, as stated by him, the law was open to the
appellant, who might have summoned him for using such language,
ana on- proof of the offence, due punishment would have beea
awarded.



Digitized



by Google



LIVERPOOL V. DALY AND AXOTHER. 23

The assault is clearly proved by all the witnesses examined, both
in support of the charge and for the defence, although some saw
more, others less of what occurred.

As regards the punishment, the Magistrate in forwarding the
papers, states that he tried the case under Ordinance 12 of 1846, by
which the appellant was liable to a fine of Twenty-Four Dollars ;
but that taking into consideration the provocation ^ven, he only
imposed a fine of Ten Dollars, which looking at the violence of the
assault, and the &ct of the appellant having been frequently con-
victed of similar offences, he considered neither oppressive nor
contrary to reason and justice.

I fully concur in this opinion, and confirm the finding and sentence
with condemnation of the appellant in the costs of Review.



DUBLIN LIVERPOOL r. LODOVICK DALY AND
LEWIS DALY.

Ist November, 1858.

(Ordinances 12 of 1846,* and 19 of 1856.)

Assault. ^
Corruption of Magistrate.

This was an appeal from a decision of Mr. A. F. Baird, S. J. P.,
who convicted the defendants of an assault on complainant. The
ouarrel arose about the right to cut timber on a portion of Plantation
InverTiess, of which complainant was part proprietor. The reasons
of appeal sent in by the defendant Lodovick Daly, were as follows : —

I appeal from the sentence of A F. Baird, Esq., S. J. P., in the
matter of complaint made by Dublin Liverpool, of No. 8 Village —
Because I am not satisfied that the case has been tried with im-
partial justice, as it appeared to me that words had been put into
the witnesses mouth to obtain a conviction upon an umbunded
complaint.

That had the evidence been taken down as it was given by the
witnesses themselves, Dublin Liverpool would have been found to
be the party committing the assault, inasmuch as he molested me
and forcibly wrested from my hands a piece of firewood which I had
cut on the front lands of No. 8 Village, belonging to myself and
others.

* Repealed by Ordinance 20 of 18ft2.

Digitized by CjOOQIC



24 GORDON V. PARKINSON.

That there are other reasons which I will reserve, and which I will
state to the Judge at the hearing of appeal — repeating my dissatis-
faction as to the taking down of tne evidence, I beg you will
forward this along with the other papers for His Honor tne Judge's
consideration.

Alexander, J., gave judgment as follows : —

I confirm the conviction in this case with costs.

Respondent holds land by transport — appellant unlawfully comes
on that land and cuts wood — Respondent as he lawfully migjit,
endeavours to prevent him, when according to the evidence, he is
assaulted by appellant

The grounds of appeal are, corruption and malice on the part of
the Magistrate. I have examined appellant on this point and his
reasons for that charge are simply absurd and founded on malice.
There is no discrepancy between the evidence of the witnesses;
appellant says the Magistrate did not take down the evidence
correctly. How could he tell that. The statement of appellant
corroborates the witnesses, save as to the shoving, and yet he says
the Magistrate did not take it down correctly. I have examined
the chart deposited in the Registrar's OflSce, and the transport
passed by appellant and others to respondent, and it is clear that
respondent, Dublin Liverpool, was owner in fee, of the locus in quo ;
that Lodovick Daly, the appellant, was a wilful trespasser, and that
appellant was justified in all he did, and that Daly acted illegally
throughout.

I think the Magistrate dealt leniently with him.



JOHN GORDON i'. ADAM PARKINSON.
ISth Xoveinher, 1858.

(Ordinance 2 of 1853.)
Employer and Servant

The respondent was employed as a labourer at the Bel A ir (of
w^hich Estate appellant was Manager) by one Laycock, who in the
evidence is spoken of, first as a " task gang driver," and then as a
" general superintendent." He was charged by complainant with
neglect of duty, and the Magistrate (Mr. S. H. Goodman, S. J. R)
dismissed the case, on the grounds that the defendant was not com-
plainant's servant, but Laycock's. This was an appeal from that
decision.



Digitized



by Google



GORDON V. PARKIXROX. 2o

Beete, J., gave judgment as follows : —

This ease having been forwarded in the first instance Avith very
meagre evidence, and that, such as it was, rather bearing out the
decision of Mr. Goodman, I ordered it to be sent back to the pre-
sent Ma^strate for the purpose of giving the complainant an
opportunity of proving a direct hiring by himself of the defendant,
and also for the purpose of ascertainmg tke exact relative position
of Laycock and the defendant as regards one another and the
Estate ; and the case is now returned with some additional, but still
unsatisfactory evidence.

It does not appear that there w^as any hiring of the defendant
by the complainant for the particular work, nor that the defendant
is a labourer under a monthly contract with the complainant, within
the provision of Sec. 7 of Ordinance 2 of 1853, but that defendant
was engaged by Laycock on the day in question to load punts, and
that he did not fulfil his engagement.

There is no evidence of the nature of the contract between these
parties ; wdiether Parkinson was to be paid by the task or by tho
day; whether he Avas to load punts himself along with other
labourers, or whether he himself was to employ others and be paid
for the job.

There is no evidence w^hether Parkinson was to look to the com-

Slainant or Laycock for payment; and although the latter now
enies having called himself a task-gang manager when before Mr.
Goodman, I cannot believe that Mr. Goodman could have been Si>
incorrect as to write the words " task-gang," no less than four times
in less than a dozen lines of evidence, if they had not been used
both by the Overseer and Laycock.

As there is nothing in the further evidence now forwarded, to
remove the impression created bv that formerly sent, that the agree-
ment between Laycock and defendant was made independently of
the complainant altogether, I can only confirm the Order of dis-
missal and order the appellant to pay the costs of Review.



VOL. I. c 2

Digitized by CjOOQIC



26



C. H BURROWES, POLICE CONSTABLE, v. HENRY
CRAWFORD, MANAGER OF PORT MOURANT,

1001 Nmieinher, 1858.

fOrdinances 20 of 1856. 18 of 1858.)

Petty Debt.

Right to Levy on Wage*.

I

The Complainant in this case went to Port Mourant, with a
distress warrant to levy upon the wages due to one Deserat. The
•defendant ccfiisod to pay such wages to him, saying to him, " I will
not alhyr yoii i o levy on the money," and, in spite of the com-
plairir ^^ ? Vr-v)T'strances, paid Deserat his wages. Complainant
sunj.tAJi e I «if 1 :: dant for resisting him in the execution of his duty,
and the IvLi*^-^] f : ,te, Mr. C. G. H. Davis, convicted and punished the
defend ant. On appeal —

Alexajstdee. J., gave judgment as follows :-*-

I affirm the conviction in this case, with costs.

Defendant admits he prevented the policeman from levying on
the wages he was paying to Deserat ; those wages being a liquidated
and ascertained sum were debts in the legal sense of the word.

At home, they are personally recovered in an action called
indebitatus assumpsit ; but debt is a concurrent remedy for monies,
the amount of which arising out of simple contract and is

ascertained.

Ey Ord. 18 of 1858, Sec. 16, it is enacted—

" That in case a party proceeded against shall not be possessed of
goods and chattels sufficient to satisfy the demand, the Creditor
under the same Warrant to levy on, and attach any debt due and
owing to such party, &c.'*

This process was attempted in this case, and on his own admis-
sion, prevented by him under an erroneous impression regarding
the law.



Digitized



by Google



27



ROSALINE Mc ANDREW v, EDWARD H. NOVEL.

12th Nobember, 1858,

Ordinance 12 of 1846 * 3 of 1858.t
Assault — Inflicting (ictual bodily harm.

In this case, the complainant swore that the defendant had so
severely beaten and kicked her, that she had been ill ever since.
A Medical Certificate tended to show that hemorrhage from tho
uterus had been occasioned by the violence of the assault. The
Magistrate, Mr. C. G. H. Davis, summarily convicted the defendant
of a common assault. On appeal —

Alexandeb, J., gave judgment as follows : —

In this case both parties have applied for a Review. — 1st. The
defendant thinks he should not have been punished at all ; and
the complainant, because defendant has not been punished enough.

I think the grounds stated by complainant, when pressed, must
be allowed, although perhaps it would have been well to let the
conviction stand, tkat the punishment might follow close upon the
ofifence. By Ordinance 3, of 1858, assaults inflicting actual bodily
harm, are classed as indictable misdemeanors, in the same category
with indecent assaults, and assaults not felonious for want of the
intent, but which occasion grievous bodily harm.

If the Magistrate believed this woman in part, he must have
believed all her testimony, for, if false in one particular, it would be
unworthy of credit altogether.

Complainant's charge, if true, involves a brutal, unprovoked,
treacherous battery ; kicking her when she attempted to rise ; striking
her heavily on the face ; knocking her down ; exposing her person ;
beating her on the ground without a previous word of salutation
or provocation.

When I read the evidence, I expressed to the Registrar my inten-
tion, under any circumstances, whether complainant applied for a
Review, as well as defendant or not, to direct him to write to the
Magistrate and call his attention to Sec. 29 of Ord. 12 of 184j6.
and to Ord. 3 of 1858, Sec. 3, 4 and 8.

Doctor Cameron says, he believes the blood was uterine blood,
shed by means of external violence, although it might be from
natural causes.

* Repealed by Ordinance 26 of 1862.
t Repealed by Ordinance 20 of 1862.



Digitized



by Google



28 FYFE V. BRUCE.

Further examination of the Doctor and of the complainant mi^ht
clear that point. She has been takino;* medicine ever since that day,
and has had fever from the effects of the beating. I therefore think
there is evidence of an indictable misdemeanour, under Sec. 8 of
Ord. 3 of 1858, and I therefore order the proceedings and con-
viction to be quashed. The depositions to be sent back to the
Magistrate, to be forwarded to the next Inferior Criminal Court.
The defendant to give bail to appear at that Court, and the com-
plainant and her witnesses to be bound over to prosecute.



JOHN FYFE /;. ROBERT BRUCE.

29th Xovehiber, 1858.
(Ordinance 20 of 1856.)

liesistiiig Rural Constable,

The appellant was charged and convicted for having resisted the
respondent in the execution of his duty, as a Rural Constable, and
also for breach of the peace. The Revi Mr. Straker, on behalf of
appellant, applied for a Review of the Magistrate^ proceedings, on
the gi'ounds that he had not examined the witnesses for the defence ;
whereupon Alexander, J., ordered further evidence to be taken.
This having been done, the Magistrate (Mr. A. F. Baird) returned
the subsequent proceedings to the Court of Review.

Alexander, J., gave judgment as follows : —

In Case No. 495 —

Appellant was convicted of haying resisted, and • assaulted res-
j)ondent, whilst in the execution of his duty, and sentenced to pay
a penalty of $24, or in default, to be imprisoned for one calendar
month, Avith hard labour.

In No. 49G—

Appellant was convicted of a breach of the peace, and sentenced
to be imprisoned 80 days, with hard labour; it being a second
offence for breach of the j^exice.

Having referred the case back to tlie Magistrate, to take the
evidence of defendant's witnesses, and of Clara Cameron and Louisa
Thompson, referred to in the depositions — whose evidence I thought
material— the case is now fully before me.

I have read the evidence, the grounds of the application for
Review, letters from the Revd. Mr. Straker to myself, and letters



Digitized



by Google



FYFE v. BRUCE. 29

tiddressed officially by the convicting Magistrate to the Registrar of
the Court, and it is my belief that the humane and benevolent
feelings of the Revd. Gentleman, have been enlisted on behalf of
appel&nt, by means of misrepresentations made to him, and by
gross exaggeration, whilst the convicting Magistrate has been put
to much labour and inconvenience, which he might have well been



Whether or not the Constable used more constraint than was
necessary, or treated appellant with unnecessary severitv or not,
are questions not now before me to decide ; if guilty, the law is
open to their accuser. Neither have I to decide upon the Magis-
trate's opinion, as to the credibility of the witnesses. He saw their
manner of giving their evidence ; their deportment, aye, and their
countenances too. It was his duty and his right, . to weigh the
evidence, and to decide upon it. All that the Ordinance requires
and empowers me to do is, to review the record of his proceedings,
according to Sec. 5 of Ordinance 19 of 1856, and to try if there
be any irregularity or illegality in them. I must say, however,
that I coincide in opinion with the Magistrate, regarding the weight
of the evidence in this case.

The question in this case is, did Robert Bruce act illegally in
arresting John Fyfe, and was there any illegality on the part of
the Magistrate, in sanctioning by a conviction, a false arrest ?

Before I proceed to decide those points, I would remarlc, that the
blows sworn to by a^)pellant's witnesses, could not have been
heavily dealt. The evidence of Sergeant Elliot, in charge of Fort
Wellington Police Station, satisfies me that after careful examina-
tion of appellant's person, not the slightest mark of injury could
be seen; that he complained of no injuries or blows, but continued
to vociferate, and sing songs till 11 o'Clock. Then as to his having
been dragged naked through a thoroughfare crowded with women
and children, so indignantly set forth in florid language, I have only
to observe, that I do not believe that the Constables tore the clothes
off his back. I believe that the osnaburg trousers fell oft' for want
of buttons, and that his shirt was torn by his own resistance and
violence ; that the Constables were bound to secure their prisoner,
whether naked or not ; that the children had no business there, and
that the modest women might have turned away their heads.

And now, as regards the arrest. It was (in my opinion) lawfully
made, and being of that opinion, for the foregoing and following
reasons, I confirm the conviction with costs.

A complaint was made to respondent, asking his protection as a
Constable, by a woman wliose house he had entered, and beaten her
with a stick. Another Constable went to hor house and brought
appellant out from her house on the public road. He did not



Digitized



by Google



30 FTFB V. BRUCE.

arrest him on that charge, as it was not in writing. Bespondent
Bruce then came np ; he had seen the injured arm of the woman,
but as he had not witnessed the assault, he advised appellant to go
home, or he would get into trouble ; thereupon appellant threatened
thrice, the lives of respondent and the two otner Constables ; he
was excited and drunk. Now, the law is, that if a Constable hears
a man threaten the life of another ; or if a man threatens the li£»
of the Constable himself, it is his duty to arrest him.

Again, it was the duty of the Constable to advise appellant to gp
home ; he was drunk and violent. Might he not have renewed his
assault on Julia Thompson ? He was uproarious, and surroimded
by about 200 persons.

Again, if he was drunk and violent, respondent was bound by
the printed* instructions issued from the Government Secretary's
OflSce, (and signed "By Command, William Walker, Gov. Sec") to
arrest appellant. The instructions are in these words —

" Where a drunken man or person in a violent passion, threatens
'* the life of another, the Constable should arrest him.'*

I have already remarked that the authorities extend that right to
the Constable, when himself is so threatened

Now, that appellant was drunk, is in my opinion proved. All the
witnesses for tne prosecution swear he was drunk, and they are
corroborated by Serjeant Elliott, who convinces me that he was
both drunk and violent. Not one of the witnesses produced by
him swear as to sobriety or otherwise, but one, who said he was a
little tipsy, for he fell when he ran, and another witness, his
^'Auntie' or his Mother, advised him to go home, as "his bead
was wrong."

I have been informed that the Constables were implicated in the
recent Portuguese Riots ; I can only say, had I known the fact, I
would not have signed their precepts, except on certificates of
repentant good conduct ; but 1 think the evidence justifies their
conduct in this transaction

The Schoolmaster, John Gyles, has been very active on the part
of John Fyfe. He has written three long statements for him, and
he has given cAddence of blows, that Sergeant Elliott has satisfied
me, inflicted no injury. But his evidience is totally useless in this
case, for he was not present at the original arrest. If mv advice to
Mr. Gyles would be of any avail, I would suggest to tim that it
would be happier for himself, and better for his pupils, should his
voice never again be heard in the streets of a village of bad repute,
interferinjTf with the Constabulary, on behalf of such a character as
John Fyfe — ^a man whom the records of the Magistrate's OflSce,
proves to be a frequent and cruel offender— one of the worst char-
acters amongst many bad ones — a man who within the first six



Digitized



by Google



MCPHEBSON V. THOMPSON AND ANOTHER. 31

months of this year, has been thrice convicted; namely, on tho
12th January, for abusive and obscene language; 9th Pebruary,
assault and battery on his wife, whom he beat until she faintedf ;
22nd June, assault and battery of Polly Garland, an old woman,
his wife's Grandmother, whom he knocked down and kicked in a
most savage manner, and then rolled her into the mud of the trench.
I make these remarks in consequence of allusion to the witness
Gyles, made in an official letter addressed by the Magistrate to the
Rl^trar, which will be filed with the other papers, and because I
feel it to be my duty to throw out any hint that might hereafter
cause the Law and its Ministers to be more respect^ in a place,
speaking of which in his evidence, the Parish Schoolmaster says, a
raw is not a thing of uncommon occurrence.



*



PETER Mcpherson, rural constable v. joshua

THOMPSON AND ROBERT McPHERSON.

111k December, 1858.

(Ordmance 20 of 1856.)

Convicting of one offence^ when defendant is tried for another.



Online LibraryBritish Guiana. Court of review.om old catalogA collection of cases decided in the Court of rewiew of British Guiana, from 1856 to 1872 [i.e. 1873] → online text (page 4 of 27)