JUDGMENTBY: THOMAS, CJ, HOWES, J, CUSSEN, J

THOMAS, CJ The first question to be considered in this appeal is the admissibility of an order made on the 12th of May 1905 in the Court of the Senior Magistrate at Kuala Lumpur in Administration Suit No. 143 of 1904. This ground of appeal does not appear in the grounds of appeal, but an application was made to amend the grounds of appeal by its insertion. There was no objection to the amendment being made, and the Court of Appeal ordered that the memorandum of appeal should be amended by the inclusion of this additional ground of appeal.

By the order first referred to the Court found that Khoo Chye Cheah to whom I will afterwards refer as the testator was a person of unsound mind and incapable of managing himself and his affairs.

The testator at that time was an alien residing out of the jurisdiction. In fact he resided in China, and a commission of enquiry was held in Amoy as to his sanity, and reports as to his sanity were obtained from doctors in Amoy. The Court acted upon those reports and made the order in question.

In 21 Hailsham page 305, I find the following statement:--

"But apparently there is no jurisdiction to order an inquisition in the

case of an alien both domiciled and resident abroad although entitled

to property in England."

A foot-note says:--

"It is true that the ratio decidendi in Re Bariatinski (Princess)

1843 1 Ph 375, was the necessity of taking charge of the property of

the person of unsound mind with regard to her residence at the time.

None the less the Lords Justices have on several occasions expressed

some doubt as to whether they had jurisdiction in such a case (see Re

Soltykoff (Princess) 1898 WN 77 CA."

In my opinion it is clear that the order of the 12th of May 1905 was made without jurisdiction. In the course of the argument it was urged that the order was not admissible under any section of the Evidence Enactment, and sections 41, 42 & 43 were especially referred to But it seems to me that even if the Order might have been put in evidence under one or other of those sections, there is still the objection to be met, viz. that the order was made without jurisdiction. And in Taylor on Evidence, 11th edition, vol. 2 page 1168, s. 1714 it is stated that every species of judgment will be rendered inadmissible in evidence by showing that the Court from which it emanated had no jurisdiction.

Section 44 of the Evidence Enactment provides that any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under sections 40, 41 and 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it or was obtained by fraud or collusion.

In my opinion it has been shown that the Court of the Senior Magistrate was not competent to deliver any order against a non-resident alien, and therefore I am satisfied that it was not competent to deliver the judgment or make the order. This is the only matter on which the plaintiff and the defendants to the counter-claim rested their case in the substance of the case pleaded in the reply.

At the trial it was sought to give additional evidence as to the testators insanity, but this was excluded, and in my opinion was rightly excluded by the learned trial Judge.

There was, therefore, no evidence of the testators insanity before the learned trial Judge. The defendant Khoo Boo Hooi (plaintiff in the counter-claim) called evidence which, though inadequate to meet a case of insanity found as a result of an enquiry, was sufficient to prove testamentary capacity in an individual who must be considered primarily as sane. This was the only case which was submitted to the doctors who conducted the examination. They were not told anything about the enquiry, but were called in to give their opinion as to the testamentary capacity of the testator. Not knowing anything of the previous medical histo

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