order to allow the parties to argue the question more fully before us. When the case came again before this Court, the Consular judge left default, but the point was fully argued for the applicant, and we took time to consider. After a careful examination of the Africa Order in Council of 1889, we have come to the conclusion that this Order in Council does not confer upon upon us the general powers of a Court of Queen's Bench over Madagascar. It is true that we possess those powers in Mauritius and its dependencies in virtue of the Order in Council of 1851, but we cannot exercise them elsewhere unless we are clearly authorized to do so by another law. The only law which gives us jurisdiction over Madagascar is the Africa Order in Council of 1889 and we do not find in it any clause sufficient to authorize us to exercise generally such a control over the consular Court there as we may exercise over the inferior Courts of Mauritius and its dependencies.

We must, therefore, refuse to issue the writ prayed for.

30. Sawing logs of wood forming part of a tree previously felled is not, therefore, punishable under the Ordinance.

PROCUREUR GENERAL,-Appellant

and

THE DISTRICT MAGISTRATE OF SAVANE AND

REMY DUVAL,-Respondents.

Before

The Honorable Sir EUGÈNE LECLÉZIO,-Kt., Chief Judge, and

The Hon. JOHN ROUILLARD,-Puisne Judge

Hon. L. ROUILLARD, Subt. Proc. General,Appears for appellant

J. GUIBERT, Crown Attorney,-Appelant's Attorney

Hon. W. NEWTON, Q. C.,-Counsel for Respondents

SUPREME COURT.

ORD. 13 OF 1875, ARTS. 1 & 4-ORD. 27 OF 1883, ARTS. 8 & 9-Ord. 10 of 1881, ART. 58-MEANING OF TREE, TIMBER & WOOD.

10. When felled, a tree is no longer timber, living or dead, but becomes "wood."

20. Ord. 13 of 1875, Art. 4, punishes the destruction of a "tree", but is silent as to injuries done to wood (a).

(a) Ord. 13 of 1875, Article 1, par. 150. : The word Wood shall mean any tree destroyed or removed.

Ibid, Art. 4.-Any person who shall destroy or cause to be destroyed or who shall remove or cause to be removed any tree in any forest or in any plantation of trees belonging to the Crown, without having received the written permission, etc., etc., shall on conviction thereof be liable etc.

Ord. 10 of 1881. Art. 58 Para. 2. The word Tree, in this Ordinance & in Ord. 13 of 1875, shall include live and dead timber, brushwood, shrubs, underwood, and the branches and twigs thereof.

Record No. 25665.

18th February 1892. This Court is called upon to review a judgment of the District Magistrate of Savane on a complaint lodged by Forest Ranger Duval against one Rémy Charles alias Remy Duval under the following circumstances :

On the 7th. November 1891, Rémy Duval was found by some Forest Rangers in the very act of sawing a log of wood which together with several logs of wood, already sawn off, formed part of a tree which had been previously felled. It is not known by whom the tree had been felled. The accused in the Court below was charged with having

destroyed a tree in a forest belonging to the Crown" in breach of Ord. 13 of 1875 Art. 4 Chap. II and 27 of 1883, articles 8 and 9.

Article 4 of Ord. 13 of 1875 enacts that any person who shall destroy or cause to be destroyed a tree... in any forest belonging to the Crown shall be liable to a certain penalty.

By article 1 of Ordinance 13 of 1875 the word" destroy "is defined as meaning

fell, cut mutilate, lop, bark, or in any way whatsover break or damage.

By the same article, the word "tree must be held as meaning live timber, brushwood, shrubs, underwood, and the branches and trees thereof respectively.

The District magistrate was of opinion that the accused could not be held as having destroyed a tree, i. e. live timber, the tree having been previously cut down by some person or persons unknown.

The District Magistrate was, apparently, not aware, at the time of delivering his judg ment, that in Ordinance 10 of 1881, auother definition of the word "tree" had been given and made applicable to Ord. 13 of 1875. By article 58 of Ordinance 10 of 1881, it is enacted that the word "tree" in Ordinance 13 of 1875 shall include live and dead timber, brushwood, twigs &c.

The contention of the learned Substitute Procureur General was that although the log of wood, which the accused was in the act of sawing, could not be considered as live timber, it was dead timber and that in as much as the accused was charged with destroying a tree, i.e., live and also dead timber, the Magistrate ought to have found him guilty of having destroyed dead timber.

After careful consideration of the arguments urged on both sides, the Court is of opinion that the District Magistrate was right in dismissing the charge.

A tree is live or dead timber.

When destroyed, i.e., when felled, the tree comes under the denomination "wood." A tree, i.e. live or dead timber, and wood are therefore distinct objects.

The offence of destroying a tree is punishable under the Ordinances above cited, but they are silent as to injury done to what is defined as being "wood," the consequence is that in presence of the evidence in the Record, the Information in the Court below could not have been sustained.

10. A Report of the Master against which there are objections or exceptions which are admitted by the Court, cannot be considered as correct and,consequently, binding.

20. A Report not binding upon a party who

has made objections, is not binding either upon the other party or parties who have not made any.

30. The silence of one of the parties before the Supreme Court, quoad such a Report, does not deprive him of his right to appeal afterwards to the Privy Council.

40. The functions of the Supreme Court in matters of Appeal to the Privy Council are more ministerial than otherwise.

This is a petition made on behalf of one of the defendants for leave to appeal to the Prevy Council from two judgments delivered in this case. The motion was resisted by the Plaintiff on the ground that although the sum which the defendants have been condemned to pay is above the appealable amount, the petitioner had by his own acts pending the proceedings reduced the matter at issue between him and the Plaintiffs to a sum below the appealable amount; that he was not entitled to re-open questions which had been settled by a decision of the Master in which he had acquiesced before the final judgment of the Court was given.

This case had been referred by consent to the Master to compute an account of guardianship which had been pleaded by the petitioner as a set off to part of the Plaintiff's claim based upon an authentic deed, and the Master had made a draft report according to

which the petitioner remained the Plaintiff's debtor in a sum of Rs 18537-79c., value of the 13th December 1889. No objections were made against the draft report by the petitioner, but the Plaintiffs made several objections which were overruled by the Master who maintained his Report as it was. The Plaintiffs then filed several exceptions to the Report and when the case came before this Court, both counsel confined their argument to those exceptions alone; some of the exceptions were admitted, others were rejected, and the Report was referred again to the Master to be rectified in conformity with the ruling of the Court.

Finally, the Court gave judgment for the Plaintiffs in a sum of Rs 25,234.81, value of 13th December 1891; the difference between the sum found at first by the Master and the final balance for which judgment was given is about Rs 7,000. Under those cir-cumstances can it be said that the real matter at issue between the parties was only of this last sum of Rs 7,000?

By Rule 148 of the General Rules of Court, where there are no objections to the draft of the report of the Master, it is then considered to be correct and binding upon all parties to the suit, and it was argued that the petitioner having made no objections, the Report was binding upon him, that he had, so to say, acquiesced in it, and that, as a consequence, the real issue had been narrowed to the exceptions raised by the Plaintiffs to the report, the result of which was an addition of Rs 7,000 only to the balance found by the Master.

In the first place, we may remark that by Rule 148, in order that the draft Report of the Master be considered binding, there must be no objections to it, and from the context, if there are objections or exceptions which are admitted by the Court, it cannot be considered as correct, and consequently cannot be binding, besides, if it is not binding upon the party who makes the

objections can it be binding upon the party who does not make any? The text says: binding upon all parties to the suit, and we think that if it is not binding upon one of the parties, it can hardly be considered as binding upon the others. As a fact, the Report has not been found correct by the Court and it has been considerably modified, we must then reject the argument based upon the text of article 148 of the Rules.

It is true that no objections were made by the Petitioner, but is that sufficient to entitle the Plaintiffs who have made objections, to say that the petitioner should be held, on account of his silence, to have acquiesced in the Report in such a way as to debar himself from the right to appeal from the final judgment of the Court when that judgment has awarded against him a sum above the appealable amount. If he had left default, at a given moment, pending the proceedings before the Master and afterwards before this Court, would he have lost his right of appeal from our final judgment? We think not. The attitude of the petitioner after the draft report had been deposited could, no doubt, leave the Plaintiffs under the impression that he had nothing to urge against the balance struck by the Master; but on the other hand, that balance being already of an appealable amount (Rs 18537.79 value, of the 13th December 1889) we require more conclusive evidence than his silence to be able to declare that the Petition has lost his right of appeal to the Privy Council; we cannot construe such a conduct on his part as a complete acquiescense in a procedure which, besides, has not exactly the character of a judgment. The real matter at issue such as it results from the pleadings of the parties, was the final balance to be awarded by the Court, and that balance according to the final judgment is above £1,000. Our functions in matters of appeal to the Privy Council are more ministerial than otherwise and unless it clearly appears from the record

that the matter at issue was reduced to a sum below £1000, we are of opinion that we cannot refuse to allow the appeal when the final judgment is for a sum above that amount; the Plaintiffs will have an opportunity before the Privy Council to urge their objections against the appeal, but we consider that in presence of the record in this case, we cannot refuse the present petition. No costs.

SUPREME COURT.

-

CONTRACT-PASSENGERS INTERPRETATIONEXPLICIT TERMS-FORCE MAJEURE-FAULT -ONUS PROBANDI-CAPTAIN'S RIGHTS-BILL OF HEALTH EVIDENCE.

When a Maritime Company (Appellant) undertook to carry a passenger (Respondent) from Australia to Natal, viâ Seychelles and Mauritius, per first steamer leaving Mauritius, and when all steamers refused to take passengers from this colony, through the existence here of an epidemic of small-pox, it was held by the Court:

10. That as there is (as the passenger knew) no steamer of that Maritime Company plying between Mauritius & Natal, the appellant simply undertook to cause the respondent to be conveyed from Mauritius to Natal by the first steamer leaving soon after the arrival of their boat in this island. 20. That, under the contract, the Company

was not bound to send the passenger to Natal by any circuitous route (through Madagascar or England, etc.)

30. That the stopping of the passengers'

traffic with Natal, as above, was a fortuitous circumstance and a case of " force majeure.”

40. That the fact that the respondent would

have found a steamer conveying passengers to Natal, if he had come straight from Seychelles to Mauritius, did not alter the position, the respondent having consented