Judgement

Appeal from a judgment of the Court of Appeal of the Supreme Court of the Straits Settlements (March 2, 1915) affirming the judgment at the trial.

The respondent sued the appellant in the Supreme Court of the Straits Settlements (Penang) to recover the principal and interest due under mortgages executed by the appellant in 1912 and 1913. The appellant pleaded that he was an infant at the time when he executed the mortgages. The respondent by his reply joined issue, and pleaded further that he was induced to lend upon the mortgages by the fraudulent misrepresentation of the appellant that he was then of age, and that if he was in fact then an infant the amount claimed was recoverable as damages. At the trial before Sercombe-Smith J. the appellants brother proved an entry in a book kept by the deceased father of the appellant and containing records of the births, deaths, and marriages of his family; this entry recorded that the appellant was born on September 17, 1895, according to which date he was between seventeen and eighteen when the mortgages were executed. There was no other evidence to establish the age of the appellant. The witness stated that the entry did not come to the appellants knowledge; there was further evidence, referred to in the judgment of their Lordships, relevant to the alleged fraud.

The learned judge held that the entry was not admissible in evidence under s. 32, sub-s. 5, of the Evidence Ordinance, 1893, the material parts of which are set out in their Lordships judgment, and gave judgment for the respondent. In case he was wrong in so deciding he dealt with the question of fraud. He found that the advances were induced by the appellant fraudulently representing that he was of age, and held that the respondent was entitled to a charge upon the property mortgaged.

The Court of Appeal held that the evidence was properly excluded and accordingly affirmed the judgment without dealing with the alleged fraud.

The acting Chief Justice, Woodward J., was of opinion that a statement of the date of a persons birth was not one relating to the existence of a relationship by blood within s. 32, sub-s. 5. The terms of the sub-section extended the English law in that they applied in certain circumstances to statements made by living persons, but subject to that extension he thought that the intention was to reproduce the English law. Under that law Haines v. Guthrie (( 1884) 13 Q. B. D. 818.)) showed clearly that the statement was not admissible. Where in the section the English law of evidence was altered it was done so in clear terms, and he did not think that an intention to depart from that law ought to be inferred from illustration (l). The learned judge was of opinion that the explanation of the illustration was that given by Sercombe-Smith J., namely, that it was " an attempt to illustrate English law which admits such incidents of family history as are immediately connected with, and required for proof of, issues involving family succession, relationship, and legitimacy, such as the birth, marriage, and death of members of the family with the respective dates and places of those events.” Ebden and Earnshaw JJ. concurred.

1916. June 2. Sir Erle Richards, K.C., and Sir W. Garth, for the appellant. It is conceded that under the English law of evidence the entry in the book would only have been evidence of pedigree, and not of the date of birth. It was, however, admissible under the Evidence Ordinance, s. 32, sub-s. 5, as a statement relating to the existence of relationship by blood ; this is made clear by illustration (l). Sect. 32 reproduces s. 32 of the Indian Evidence Act (I. of 1872) as amended by s. 2 of Act XVIII. of 1872, and the same illustrations are appended. The Indian Courts have held that a family record of this character is admissible under s. 32, sub-s. 5, as evidence of the date of birth recorded Dhanmull v. Ram Chunder Ghose (( 1890) I. L. R. 24 Calc. 265.); Ram Chandra Dutt v. Jogeswa