Caspersz and Ryves, JJ.
1. This is a Rule on the Chief Presidency Magistrate and on the opposite party to show cause why the conviction and order under Act XIII of 1859 passed against the petitioner, should not be set aside. We have heard the learned Counsel against the Rule on behalf of the employer and the learned vakil in support of the Rule. It appears that, on the 20th April 1907, the petitioner entered into an agreement with the firm of Messrs. Khan & Co. to work for them for a period of three years as a grinder and polisher of surgical instruments on a salary of Rs. 30 per mensem. He received an advance of Rs. 54, and he agreed to repay it by monthly instalments of Re. 1-8. He continued to work in the firm for about 18 months, and then he left his employment. If the agreement stopped short at the point mentioned, it is possible that the case would come within the provisions of Act XIII of 1859. But it seems to us, having regard to the agreement in this case, that that Act has no application. We have read the agreement, and it is quite clear that there are provisions in it under which the petitioner was entitled to privileges far above those of an ordinary artificer or labourer. For instance, he was entitled, if he chose,'to get the work done by contract. He was also entitled to get a statement of accounts annually, and to receive a certain percentage on the profits. In the event of the Company being wound up, he was entitled to a percentage of the reserve fund. Having regard to all these circumstances, we are of opinion that the Act in question has no application, and, even if it does apply, it seems to us that the condition precedent to the operation of that Act is wanting in this case. The preamble to the Act sets out that it is intended to prevent fraudulent breaches of contract. It may be that the preamble of an Act is not to be considered as part of the actual Statute. Hut, although the word' fraudulent' does not appear in the body of the Act, the words used there are' shall wilfully, and without lawful or reasonable excuse, neglect or refuse to perform or get performed such work according to the terms of his contract.' The words are for all practical purposes equivalent to the expression' fraudulent breach of contract' mentioned in the preamble. There is no finding in this case that the petitioner wilfully and without reasonable excuse refused to perform his contract. It is hard to see how such a finding could be arrived at. The petitioner left his employment, he says, because his employers failed to perform their part of the agreement. We think the remedy of the parties, if they have any, lies in the Civil Court. For these reasons, the Rule is made absolute. We set aside the order of the Presidency Magistrate.