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 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. Jogeswar Narain Deo (( 1893) I. L. R. 20 Calc. 758.); Oriental Government Security Life Assurance Co. 265.); Ram Chandra Dutt v. Jogeswar Narain Deo (( 1893) I. L. R. 20 Calc. 758.); Oriental Government Security Life Assurance Co. v. Narasimha Chart. (( 1901) I. L. R. 25 Madr. 183.) The illustrations should be treated as relevant; they are equivalent to decisions of the Legislature as to the construction of the section. Owing to the absence of a compulsory system of registration of births in India it is probable that it was intended to make family records of this kind, which are common in the East, admissible as evidence of the date of birth recorded. If the appellant was an infant, the facts disclose no case of fraud ; but even if he acted fraudulently he could not be made liable in damages R. Leslie, Ld. v. Sheill. ([ 1914] 3 K. B. 607.) E. M. Pollock, K.C., and A. M. Latter, for the respondent. It is conceded that upon the case of fraud set up in the reply the respondent could not recover damages in this action, though he may have rights in equity. Upon the issue as to infancy the onus was upon the appellant, but except the book entry there was no evidence of his age. That entry was not admissible under s. 32, sub-s. 5, as evidence of the appellants age. The statement as to the date of his birth is not one which " relates to the existence of any relationship by blood." Illustrations should not be read so as to extend the effect of the statute Koylash Chunder Ghose v. Sonatun Chung Barooie (( 1881) I. L. R. 7 Calc. 132.); Nanak Ram v. Mehin Lal (( 1877) I. L. R. 1 Allah. 487.) ; Kamalammal v. Peeru Meera Levvai Rowthen. (( 1897) I. L. R. 20 Madr. 481, 483.) The effect of illustration (l) is that the letter there referred to is admissible as evidence of the date of birth so far as material to the matters referred to in s. 32, sub-s. 5, but no further. The Indian decisions were wrong. Where s. 32 differs from the English law of evidence, as for instance under head 1, it does so in clear terms ; the intention was to reproduce the then existing English law subject to those clearly expressed variations. [Stephens Digest of the Law of Evidence, art. 31, notes to Price v. Earl of Torrington ((1703) 2 Sm. Where s. 32 differs from the English law of evidence, as for instance under head 1, it does so in clear terms ; the intention was to reproduce the then existing English law subject to those clearly expressed variations. [Stephens Digest of the Law of Evidence, art. 31, notes to Price v. Earl of Torrington ((1703) 2 Sm. L. C., 12th ed., 294.), and Haines v. Guthrie (13 Q. B. D. 818.) were also referred to.] Sir Erle Richards, K.C., replied. July 20. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal from a judgment and order of the Court of Appeal of the Supreme Court of the Straits Settlements, dated March 2, 1915. This judgment and order affirmed the judgment and order of the Court of first instance, pronounced on September 19, 1914. The action was brouht by the respondent, who is a money-lender, against the appellant for certain sums of money, amounting in all to 29,521 dollars. To this action the appellant lodged a defence that at the time of the transactions sued upon he was an infant. The facts briefly stated are these On March 21, 1912, the appellants father died, the appellant being his second son. On October 16, 1912, December 13, 1912, and January 17, 1913, respectively, he executed in favour of the respondent three mortgages over his one-twelfth share of his late fathers property. The amounts in the mortgages were 6000 dollars, 8000 dollars, and 10,000 dollars. Interest was stipulated for at 15 per cent, per annum for the first six months, and thereafter at 18 per cent. The respondent swears that at the date of the transaction he " suspected he (the appellant) was under age." " I thought," he says, " his mother would prove his age or, perhaps, his brother. I was in doubt even after the doctors certificate was produced. It may be wrong. There was still his mother or brother. He wanted the loan, so I did not go to see his mother or brother." Later in his evidence he stated "I lent because of the high interest, 15 per cent., which was arranged between us." The doctors certificate was obtained for the following reason. The respondent swears " I asked him " (the appellant) " if he were of age. He said, Yes. I asked him for proof of majority. The respondent swears " I asked him " (the appellant) " if he were of age. He said, Yes. I asked him for proof of majority. He said he would bring a doctors certificate." The so-called certificate was " This is to certify that in my opinion M. S. Ariffin is of the age of twenty-one years." Dr. Bright, on examination, says that he formed the opinion that the appellant was twenty-one, judging by his teeth, his appearance, and his voice. In their Lordships view such a certificate is worthless. It is in truth not a certificate, but only an assertion of opinion. A formality of making a declaration before a magistrate was also gone through, but the declaration was merely this "By the certificate of Dr. W. H. M. Bright, hereto annexed and marked A, I believe I am over twenty-one years of age." Such a declaration, in their Lordships opinion, is of no greater value than the certificate itself. Proof on the subject is not advanced by such documents. When the evidence in the case came to be taken, the appellants elder brother, one Che Ariffin, proved an entry relating to the appellants birth in a book containing a record of births, deaths, and marriages in his family, kept by his late father. Entries were contained in the book of the births of three members of the family, and the entry regarding the appellant was this "A boy by Fatima, alias Pusi, on Tuesday, 27th Rabi Lawal, 1313, exactly at 4 p.m. on September 17, 1895 ; name, Syedol Ariffin." The sole question in the case is whether this entry is admissible in evidence. It was not contended before their Lordships that it was not in the handwriting of the father or a genuine document. Both of the Courts below have, however, held that the entry was not admissible, and, this being so, they also held that the defence of infancy has not been made out. There is no question that the entry was made by one having special means of knowledge, and no suggestion that it was made before any question or dispute between the parties. If in itself admissible, it would go to show that at the time of the transactions in question the appellant was only seventeen or eighteen years of age. There is no question that the entry was made by one having special means of knowledge, and no suggestion that it was made before any question or dispute between the parties. If in itself admissible, it would go to show that at the time of the transactions in question the appellant was only seventeen or eighteen years of age. The law of the Straits Settlements on the point of the admissibility of such a document in evidence depends upon the construction to be given to the language of s. 32 of the Evidence Ordinance, 1893, which is in similar terms to the Indian Evidence Act (I. of 1872). Sect. 32 provides that " statements written or verbal of relevant facts made by a person who is dead .... are themselves relevant facts in the following cases .... (5.) when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage, or adoption the person making the statement had special means of knowledge, and the statement was made before the question in dispute was raised." To this section are appended illustrations, and illustration (l) is as follows " The question is, what was the date of the birth of A. ? A letter from A.s deceased father announcing the birth of A. on a given date is a relevant fact." In the construction of this language in India the practice of the Indian Courts appears to have been uniform. The cases of Ram Chandra Dutt v. Jogeswar Narain Deo (I. L. R. 20 Calc. 758.), Dhanmull v. Ram Chunder Ghose (I. L. R. 24 Calc. 265.), and Oriental Government Security Life Assurance Go. v. Narasimha Chari (I. L. R. 25 Madr. 183, 209.) have been cited to establish this, and in their Lordships opinion they do so. In the Madras case Bhashyam Ayyangar J., referring to the first-mentioned case, observes " The principle of the decision in my opinion is that the time of ones birth relates to the commencement of ones relationship by blood, and a statement, therefore, of ones age, made by a deceased person having special means of knowledge, relates to the existence of such relationship within the meaning of s. 32, clause 5." The Courts below have, however, declined to accept this principle. They proceed upon two grounds. They proceed upon two grounds. In the first place they think that the rule with regard to hearsay evidence, adopted in the English case of Haines v. Guthrie (13 Q. B. D. 818.), should be followed in the Straits Settlements, and that that rule is not varied by the clause just cited from the Evidence Ordinance. And in the second place they hold that the illustration given in the statute does not in fact illustrate the section. On the first point the view of their Lordships is that the rule and principle of the Colony must be accepted as it is found in its own Evidence Ordinance, and that the acceptance of a rule or principle adopted in or derived from English law is not permissible if thereby the true and actual meaning of the statute under construction be varied, or denied effect. The learned Sercombe-Smith J. put the matter thus " I think that it is safer to construe s. 32, (5.), and the illustrations on English lines than to extend the English law of evi dence in reliance upon the language of s. 32, (5.), and the illustrations which it appears to me are construable as enacting in changed phraseology the principles of English adjective law." The Board does not think that such a method of construction is safe or is warranted, and they cannot agree with the view suggested, the true principle being, in their opinion, that above stated. The Board makes no pronouncement upon Haines v. Guthrie (13 Q. B. D. 818.), or the limitation, there affirmed, of hearsay to questions of pedigree ; but such a limitation finds no foundation in this colonial Ordinance, even in the words of the section, and this is made clearer by the illustration given thereto, as will be presently noted. On the second point their Lordships are of opinion that in the construction of the Evidence Ordinance it is the duty of a Court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus impaired. In the present case, however, no special or exceptional case of construction arises. The section admits a statement which " relates to the existence of any relationship," when under all the other conditions as to knowledge, time when made, &c.—all of which conditions it is agreed are fulfilled. The illustration puts the question thus " What is the date of the birth of A. ? " And " A letter from A.s deceased father to a friend announcing the birth of A. on a given day is a relevant fact/ Their Lordships agree with the judgments in the Indian Courts above cited, that there is no repugnance between a statement which relates to the existence of a relationship and the illustration by a statement as to when A. was born, that is to say, when the relationship began. Their Lordships, with much respect to the judges of the Court below, think that the document in question was admissible in evidence. The question as to whether the appellant had reached majority at the date of the mortgages sued on was left most doubtful on the evidence of the respondent himself, but the statement of the appellants father, now admitted, appears to their Lordships to set the doubt at rest, and to establish minority. A case of fraud by the appellant on the subject of his age was set up, but it cannot be doubted that the principle recently given effect to in the case of R. Leslie, Ld. v. Sheill ([ 1914] 3 K. B. 607.) would apply, and such a case would fail. But their Lordships think it right to add that the statement made by the minor as to his age on the declaration before the magistrate, " by the declaration of Dr. v. Sheill ([ 1914] 3 K. B. 607.) would apply, and such a case would fail. But their Lordships think it right to add that the statement made by the minor as to his age on the declaration before the magistrate, " by the declaration of Dr. W. H. M. Bright, .... I believe I am over twenty-one years of age," cannot be justly characterized as fraudulent in short, a case of fraud does not appear to be established. Their Lordships will humbly advise His Majesty that the judgment of the Court below should be recalled, and that the action should be dismissed with costs.