OF THE SUPREME COURT, VICE-ADMIRALTY COURT & BANKRUPTCY COURT OF MAURITIUS. ARRÊTS DE LA COUR SUPRÊME, DE LA COUR DE VICE-AMIRAUTÉ JUDGMENTS OF THE SUPREME AND OTHER COURTS OF MAURITIUS, EDITED BY A. PISTON, ATTORNEY AT LAW. 1968 SUPREME COURT. CURATEUR AUX BIENS VACANTS. Le Curateur aux Biens Vacants ne peut représenter dans un procès une personne non présente dans la Colonie, et n'y ayant point laissé de biens à administrer. VACANT ESTATES,-CURATOR THEREOF. The Curator of Vacant Estates has no authority to represent, in a law suit, a person who is out of the Colony and has left no property therein to be administered. HARRISON,- Plaintiff, versus DIBBS & ANOTHER,-Defendants. Before: His Honor Mr. JUSTICE COLIN, and Hon. V. NAZ, Of Counsel for Plaintiff. E. LECLÉZIO, Of Counsel for Defendants. 6th March 1868. In this case the Plaintiff sues the Curator of Vacant Estates as having been sent into possession of the Estate of one Dibbs, a captain of a merchant vessel, absent from the colony, and he sues the second Defendant, Hajee Jonus Allarakia, as security for the same Dibbs. The action is brought to recover $1,342.50 for necessaries provided by the Plaintiff to the wife of Dibbs a resident in the colony and pending the absence of her husband. E. LECLÉZIO, Senior. for the Curator of Vacant Estates, says that an Order has been obtained sending his client into possession of the vacant estate of Dibbs, but that he is not in possession of any property of such a person, nor is he aware of there existing any such property in the colony, of which he might be sent into possession. The question for the consideration of the Court is whether the Curator of Vacant Estates can be sued as representing a person absent from the colony when that Officer is not in possession of any property being in the colony and belonging to such a person. This case does not come under the provisions of the Civil Code in matter of presumed and declared absence. These apply to the case when parties are not only absent but have been unheard of for a certain number of years and whose existence is in question; and they dispose of properties left by such parties by giving conditional possession of them to those who might have claimed them in case of death. There the case is different; Dibbs is not an absentee in the meaning of the law, he is away from the colony, that is all. The question is ruled by Ordinance 13 of 1857 as construed in reference to the general principles of our law; under that Ordinance a Government Officer is entrusted : 10. With the duty of representing absent heirs to successions opening in the colony; 2ndly to administer the estates of persons who shall be absent from the colony, and at the same time to give notice to interested parties. The Plaintiff is acting in application of this second proviso; our opinion is that he has stretched out the meaning of this law beyond its legitimate limits. : The Curator is an Agent appointed by law to act for certain parties in a certain contingency, namely that there should be property belonging to absent parties to be administered. Failing the contingency which operates, here, as a condition precedent, there is no power, no agency; and it matters not that there has been given an Order of possession; such an Order implies the existence of tangible property and is delivered on the assumption of such property existing; but it does not convey a power which the law can alone give and which it does give in the case of there being property to be administered. When property exists and the Curator has been put in possession what are the extent and limits of his agency? and can the power to administer given by the Ordinance be construed so that he may be sued, in all cases, as representing the absent owner of the property which he is appointed to manage? These are questions which do not arise from either the facts or the pleadings of this case. We are not called upon to decide them or any of them. We, here, simply decide as to the existence,not the extent of such agency, and in construeing the Ordinance we are satisfied that the meaning of its terms could not be stretched without affecting legal principles of considerable impor tance. What would become of the Rule " Actor sequitur forum rei " if, as it is in the present case contended, it was in the power of every suitor wishing to bring an action against an absent party, simply to obtain an Order of possession and then to sue the Curator, tho' he may not have a farthing belonging to that absent party and tho' he may know nothing whatever of the affairs of such a party? It is to be borne in mind that this local Ordinance, framed to meet requirements more peculiar to our position, is one out of a body of laws which ought not to be overlooked in its application. Taking this case as an instance, the Record shews that the Defendant Dibbs was in the Colony some few months back and that he left the Island after furnishing some security; it was then the right of the Plaintiff, if he had a cause of action against the Defendant, to have compelled him to leave a power of Attorney as to answer his action. Not having done so, we think that he is not justified in instituting his Action against the Curator of Vacant Estates, and we order the latter to be put out of the cause. But, inasmuch as in this case, the Curator having allowed himself to be sent in possession of an Estate which did not exist, is accessory to the error which brought him into this cause, we shall give no costs. SUPREME COURT. PRESSE, LIBELLE,-DOMMAGES. NEWSPAPER, LIBEL,- DAMAGES. WRIGHT,-Plaintiff, versus L'HOMME,-Defendant. Before : His Honor the ACTING CHIEF JUDGE and His Honor Mr. JUSTICE COLIN. J. L. COLIN,-Of Counsel for Plaintiff. 6th March 1868. In this case the Plaintiff, an Engine driver, in the service of the Mauritius Railways Department, sued the Defendant, Pierre L'homme, the responsible Manager of the newspaper called La Sentinelle de Maurice, for that on Sunday the twenty-seventh October last, the Plaintiff was the driver of the up train, Midland Line, arriving at Port Louis at 5.30 p.m. and was very sober and performing his duty as he ought to do; that the Defendant inter ding to injure the Plaintiff in his good name, credit, and character, did, in a certain newspaper called La Sentinelle de Maurice, on the 29th day of October last, in number 3,417 of the said newspaper and under the title "Un train de plaisir," falsely, wickedly, and maliciously, compose and publish, and cause and procure to be composed and published of and concerning the Plaintiff, as an Engine driver, a false, malicious, and defamatory libel, in which said libel was and is contained the false scandalous and libellous matter following: "Tous les voyageurs qui sont arrivés Diman"che dernier à 5h. par le train de la ligne du "Un des voyageurs qui était dans le même compartiment que nous, nous disait ceci : Mes"sieurs, j'ai travaillé en Europe pendant dix ans "dans les chemins de fer, et à ce titre je dois être "aguerri, mais je vous assure, néanmoins, que je "serais très-content lorsque je me verrais en gare "de Port Louis, car l'une de ces secousses que nous éprouvons sans cesse pourrait occasionner "la rupture d'une chaîne, et alors, ma foi, je ne "sais pas trop ce qu'il adviendrait de nous.' "Jusques à quand, enfin, l'Administration com"pétente s'abstiendra-t-elle de sévir rigoureuse"ment contre des employés qui se jouent ainsi, "non seulement de la commodité, mais encore "de la vie des voyageurs ? Veut-elle attendre "pour celà qu'un malheur irréparable soit "arrivé ? "Si le chemin de fer au lieu d'être dans les "mains du Gouvernement était dans celles d'une "Compagnie, de pareilles choses n'auraient pas "lieu, car alors les employés ne se considéreraient แ plus comme des fonctionnaires publics, et ne "croiraient plus, à ce titre, avoir droit au respect "de tous, même lorsque par négligence de leur "devoir ou par intempérance, ils compromettent "l'existence d'un grand nombre de personnnes. "Beaucoup de ceux qui voyageaient, Dimanche "dernier, dans le train en question, revenant de "faire des parties de campagne ont eu l'occasion d'expier ainsi, pendant le retour, le plaisir qu'ils "avaient dû éprouver dans la matinée du même jour. Which mean in the English language as translated in the Declaration : "All the travellers who arrived on Sunday "last at half past five by the train Midland Line, hurried, on descending from the carriages, to "return thanks to the Lord who had permitted "them to arrive safe and sound at the Station in "Port Louis. "Throughout the whole journey anxiety and "fright were depicted upon the faces of all, so "much did they fear that at every instant a "terrible accident would occur. "Violent shocks were continually felt in all "the carriages and the progress of the train was "now slow, then of virtiginous speed "Many of those who travelled in the pleasure "train of Sunday last, now in question, return"ing from pleasure parties in the country, have "had occasion to expiate in this manner, during "their return, the pleasure they may have ex"perienced in the morning of the same day." The Declaration, then, set forth the usual averments relative to the loss and damage suffered by the Plaintiff, and claimed damages to the amount of five hundred pounds sterling and caption of the body. The Defendant pleaded: "That he was not guilty of printing and publishing the false, wicked and malicious libel in the Plaintiff's Declaration mentioned. "That he never intended to injure the Plainlift, whom he did not know either by sight or otherwise, in the manner and form set forth in the Plaintiff's Declaration. That the Defendant having been informed by divers good, worthy, and credible persons, who had been, and were passengers, in the up Train, midland line, arriving at Port Louis at 5.30 p.m. on Sunday the 29th October last past, that they had been greatly inconvenienced and put in great bodily fear by the violent shocks they suffered in the Train and by the excessive rapidity with which it travelled, and being further informed y them that its driver was in a state of drunkenness, he as a Journalist and in the discharge of his duty to the public, printed and published the article complained of in the Declaration as a matter of public interest and without any malicious ntention to iniure any one." |