^^ OJorn^U Slam ^rlioal ^library CORNELL UNIVERSITY LIBRARY 3 1924 084 1 99 672 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084199672 THE APPEAL REPORTS FOR 1872, BEING REPORTS OF CASES ARGUED AND DETERMINED IN THE SUPPEME COURT OF CEYLON SITTING IN APPEAL. EDITED BT S, GRENIER, Esq., ADVOCATE. PART I. CONTAINING THE REPORTS OF POLICE COURT CASES. COLOMBO: PRINTED BT FRANCIS FONSEKA, PKINTEK, CHATHAM STREET, PORT. 1872. ADVERTISEMENT. THE APPEAL REPORTS FOR 1872, (iNCLUDIKG THE AEGUMENT3 OF COUNSEL IN ALL THE IMPORTANT CASES DECIDED BY THE COLLECTIVE COURT.) Edited by S. GtRENIBR, Advocate. Part I. — Police Courts. Part II. — Courts of Requests. Part III. — District Courts. Part 1, with a full and complete Index, will be ready for delivery to subscri- bers on the 10th of January, 1873. Parts II & m will be published shortly after. The Appeal Reports will be continued to be published annually in 3 volumes similar to those for 1872. [Having resolved somewhat late in the year to publish these reports in their present form, I have had to contend with the disadvantage and delay attend- ant upon procuring from outstation courts copies of a large proportion of oases the facts of which were not recited in the Supreme Court judgments or included in my own notes. I hope, however, to be able to avoid this inconvenience in future, by consulting the original records before they are dispatched from the Registry. I have undertaken this work with a sincere wish to serve the Profession ; and no effort will be wanting on my part to make the Appeal Reports for 1873 more full and complete than those for the current year. — S. tt.] Colombo, December 31st, 1872. THE APPEAL REPORTS. 1872- POLICE COURTS. January 10, Present Ckeasy, C. J.- P. C. Colombo, 32513. The defendant was charged with hin-ing License to slaughtered a bullock, within the police limits of'Mulhiriyawa, without slaughter a license as required by the Ordinance No. 14 of 1852. He appeared, however', to have acted bona Me under a license, which he believed to-be sufficient, fi-om the Police Vidahn of Buttegammo, and the Magistrate thereupon acquitted him. In appeal, the judgment was affirmed. cattle. P. C. Matara, 69556. Held that a Diver was not a servant within A Diver not the meaning of the Ordinance No. 11 of 1865. a "Servant." January 17. Present Ckeasy, C. J. P. C. Kurunegala, 17032. The defendant was charged with hav- Obstructing a ing prevented the Deputy Coroner (the complainant) from holding an Coroner, inquest, by locking up the buikling in which the dead body was (^'^J'"'^^ hanging and by refusing to allow the Deputy Coroner and jury to have access to it. The evidence in the case was conflicting, but the Magistrate having recorded a verdict of guilty, his decision on a question of fact was held to be irreversible. January 24 , Present Ckeasy, C. J. P. C. Colombo, 33018. The defendant had been convicted, under False clause 166 of the Ordinance No. 11 of 1868, of having wilfully given information, false information to a police officer with intent to support a false accusation. It appeared that the defendant untruly told the police officer (complainant,) that he had been robbed of three boxes. He did not mention any one as the thief, nor did he name any one as suspected by him ; and it also appeared that no person had been charged with the theft by any one whatsoever. In appeal, the Chief Justice set aside the conviction in the following terras : " I have distussed the case with my colleague, Mr. Justice Temi-le, and his opinion agrees with mine. I think that in a case where no one has POLICE CODKTS. been or is accused, there is no accusation at all, and this conviction for supporting a false accusation must consequently be set aside." Receiving stolen property. P. C. Colombo, 33383. The plaint charged the 1st defendant with having stolen certain pr-operty, and the 2nd and 3rd defendants with having received the same with guilty knowledge. The Magistrate found that there was no evidence against the first defendant and discharged liiin. Tlie 2nd and 3rd defendants were found guilty and sentenced to one month's imprisonment at hard labor. In appeal, the judgment was affirmed ; and per Creasy, C. J. — " The appellants' guilt consists in having knowingly received stolen property, not in having received property which had been stolen by some particular person." Pica. License to possess firearms. Jurisdiction. P. C. Galagedara, 17753. Held that it was irregular to take a pica (if guilty in a Police Court case, subject to the opinion of the Supreme Court ; and that the exemption in the firet proviso in sec- tion 2 of Ordinance 22 of 1 848 should be taken to extend to the defendant, who had been proved to be a licensed " manufacturer of or dealer in arms," for as such the word " armourer " used in the record must be undcretood. P. C. Galle, 79709. Held that where, according to the evidence, a " severe wound with a knife " had been inflicted, the case ought to have been sent before the District Court. 1 January 30. Present Creasi, C. J. Maintenance P. C. Mallakam, 2\ 442. Held that it would be a good defence, in a case ot maintenance, for the defendant to prove that his wife had lett him and was living in adultery. See R. v, Plintan, 1 B. & A, 227. Mnintenance. Effect ot adinission by cleft. Gambling. February 6. Present Creasy, C. J. 7'. C. Matara, 69858. The defendant, in a maintenance case, in Com-t and in tjje presence and hearing of the Magistrate, added to his pica ot not guilty a statement that he had transferred property for the support of the child. This statement was regarded as evidence against him, and as an admission that the child was liis and that he was legally bound to support it. A conviction in this view, after a regular trial, was, in appeal, affirmed. P. C. Galagedara, 17336. There was no cross-examination to show that a witness, whose sole evidence s\ipported the charge (o-amb- ling,) spoke only from hearsay, when he said in his exandnation in chief •' I knew that shed was used for gambling and I have previoiisly complained about it to the Tolice." A conviction on such evidence was, therefore, upheld. POLICE COURTS. P. C, Colombo, 33677, Where a defendant was charged with hav- ing stolen a certain number of bricks, the property of the complainant, and the Magistrate, having heard only the complainant's evidence, ac- quitted the defendant, holding that no theft was disclosed, the Supreme Court set aside the judgment and sent the case back for further hear- ing, pointing out that the complainant had a right to have his witnesses examined, especially if he could prove, as he ofiered to do in his petition of appeal, that the defendant had sold the bricks as his (the defendant's) o-wn and appropriated the money. P. C. Colombo, 31707. The defendant was charged, under clause 23 of Ordinance 4 of 1867, with having resisted and obstructed the complainant in the execution of his duty as an officer of the Fiscal, by forcibly removing five pieces of jackwood, which had been seized and sequestered under writ 53512 of the District Court of Colom- bo. The evidence for the prosecution disclosed that the jackwood had been entrusted by a Vidahn Arachchy (who had originally effect- ed the sequestration at the instance of the Fiseal) to complainant, who in turn had given it for safe keeping to a third party who stated that he had left the timber on the ground where it had been seized and that he had not seen the defendant removing it. The de- fendant, subsequently, admitted the removal by himself but questioned the right of the Fiscal to have sequestered. The Magistrate found the defendant guilty, and sentenced him to pay a fine of Ks. 20 and to be imprisoned for one day. In appeal, the judgment was set aside; and per Creasy, C.J. — " The defendant may be punishable for having received goods which were in the custody of the law, but it would be a dangerous straining of a penal statute to hold that the defendant's conduct in this case amounted to " making or inciting resistance or obstruction" under the 23rd section of the Fiscal's Ordinance." Theft. Resisting a Fiscal's officer. February 13. Present Creasy, C. J. P. (\ Kegalla, 3Z5\2. Held that charges of forcible entry were Forcible entry, not afieoted by section 119 of Ordinance 11 of 1868. P. C. Matara, 69894, The defendant was charged with having left some gunny bags on the road, in breach of section 4, clause 53 of the Police Ordinance, He pleaded not guilty, but added that the bags were his and that they were on the drain. The Magistrate thereupon held as follows ; *the drain is a part of the road, so this (the plea of not guilty) must be recorded as a plea of guilty, and defendant is fined Rs. 10." In appeal, the judgment was set aside and case scut back for trial ; and per Creasy, C. J, — " No Judge has any right to order a defendant's plea of not guilty to be recorded as Pica. POLICE COURTS. a plea of guilty, against the defendant's will. What the defendant said may be evidence against him, but the Police Blagistrate ought to ti-y the case regularly, and hear such witnesses as may be brought forward on both sides." Toll. Trarling on Sundays.' P. C. Colombo, 329. Defendant having admitted that he had demanded and received halt a rupee as toll on complainant's bicycle, the i\IaG:istrate held him guilty of an unauthorised act in the following judgment : — "The defendant considers he was entitled to demand toll for the bicycle, as coming imder the description ' every vehicle not enumerated above' given in the 4th clause of the Toll Ordi- nance. I was certainly at first inclined to take this view, as it seemed to be borne out both by the definition given in the 3i'd clause of ' vehicle for passengers,' and by the fact that no species of vehicle is particu- larised in tlie 4th clause, the only limitation or qualifying words being according as the conveyance was drawn by horses, oxen or elephants. But on referring to the Chilaw Police Court case No. 7788 (quoted by complainant's counsel,) I find it laid down by the Supreme Court that the words " vehicles not enumerated above," in the Ordinance No. 14 of 1867, must be construed with reference to the use of the w(rrds in the former part of the Ordinance, and taken to apply only to vehiclts drawn by horses, oxen, elephants or other beasts of burden. Following that construction, therefore, defendant was not entitled to demand any toll in the present instance. He is accordingly found guilty and adjudged to pay a fine of fifty cents." In appeal, per Creasy, C. J. — " Tlio Magistrate wks quite right in his interpretation of the Ordinance. According to the appellant's con- struction, a man might be made to pay toll for passing along on a pair of crutches." P. C. Galle, 79864. The defendant, who was a licensed wine- seller, was charged, under the 88th clause of the Police Ordinance, with having publicly pursued his trade on a, certain Sunday, and with having received into his shop some drunken sailors who created a disturbance during the hour of divine service in an adjoiniuo- church. He was convicted and fined Rs. 20, the Magistrate holding that " the defendant was carrying on his hearing of a place of worship during service." judgment was set asitle ; and per Crkasy, C. J. — " dence whatever that the defendant, business within III appeal, the ' There is no evi- or any one actuig under his orders, was present. All that is provedmay have taken place with- out his knowledge and against his will." Defective P- ^- Colombo, 270. Wliere a plaint was defective on the face of plaint. it and could not be amended, consistently with the facts, so as to bring it within the Ordinance luidcr which it was laid, the' Supreme POLICE CODETS. Court set aside the Magistrate's conviction and directed that a iudgment of acquittal be entered up. Held, also, that " an open lane" was not such a place as the 6th section of clause 4 of Ordinance 4 of 1841 applied to. P. C. Gdlle, 78929. This was a charge by a wife against the Maintenance, husband for maintenance. The evidence for the prosecution shewed that the wife had left the defendant's house, because she had been " ill-treated," and further that,the defendant had a mistress. The IMagistrate found as follows : " It appears that complainant left defendant (her husband,) subsequent to which he took to himself a mistress. This mistress defendant is ready to give up, if his wife will return. She refuses to do so. Defendant is discharged." In appeal, the judgment was set aside and case sent back for further hearing ; and per Creasy, C. J. — " There Is no evidence to show that the de- fendant had oiiered, before the period of desertion for which this charge was brought, to put away his mistress and take back his wife. The witnesses should be closely qxiestioned, as to the real extent and nature of the ill usage which made the wife leave the house." P. C. Galle, 72263.— The following judgment of the Chief Justice Maintenance, fully sets out the facts of the cose. " That the judgment of the 12th day of January, 1872, be set aside, and the case sent back for further hearing. The Supreme Court observes with regret that this Police Court case has been ponding since April 1870, that is for nearly 2years. It has come on for trial three times in the Police Court. On the fii'st occasion, the defendant was convicted but no plea was recorded and no witnesses were heard. On the second occasion, the complainant only was heard ; and even the whole of her evidence was not record- . ed, as appeared from a letter of the Police Magistrate in answer to inquiries made by this Court. The decisions of the Police Magistrates on both of those occasions were appealed against, and on both occasions this Court sent the case back. It came on, for the third time, on the 12th of January last, and the Police JMa^^istrate, instead of regularly trying the case, only re-examined the complainant as to some evidence given by her on the former trial ; and then, because she failed to ex- plain it, he refused to hear her witnesses and acquitted the defendant. A third appeal was the inevitable result, and the case must now go back a third time. I have no doubt but that all the three Magistrates, who have thus hastily and imperfectly dealt with this case at various times in the Galle Court, were actuated by a laudable wish to save public time; but such "compendia" are almost always " dispendia," and the surest waiy to administer speedy as well as true justice is to try cases regularly, and to h?ar the witnesses on both sides fully and patiently. In sending this case back for a fourth trial, I shall endeavour to add such du-ections as may ensure the fourth trial being a final one. The complaint is brought under Ordinance 4 of 1841, roLICE COURTS. clause 3, by the mother of an illegitimate child, charging the defendant, as the father, with leaving the child without maintenance, so that it requires to be supported by others. It is necessary that the Police Magistrate should, before he convicts the defendant, be satisfied as to the paternity, and also as to the child requiring the support of others, that is to say of its being uuable to support itself. It appears from the record that when the case first came on for trial, the defendant, on being called on to plead, stated in open court that the child was his, but that as she was grown up the Ordinance did not apply. It furthfci* appears from the record, that the girl was produced and that the complainant stated in open court that the child was fourteen years old and full grown. Neither of these statements is to be taken as con- clusive against the party making !t. To do so would be to try a criminal case upon admissions, a course which this Court has frequently censured as improper. But proof of what the parties to the case said, respectively against their respective interests, is evidence against them ; and as these things were said in open court before the Judge and judicially recorded, judicial notice may be taken of the parties having said them, without caUing witnesses to prove that they heard them said. It would at first sight appear, then, that there was good evidence against the defendant as to the paternity ; but when the case came on for trial the second time, the register of tlie child's birth fas then under- stood) was put in evidence, with intent, I presume, to shew the child's refd age, and so to bear upon the question whether the child was able to support itself That register describes the child as the child not of defendant but of one Adrian, and the complainant then said that when she registei-ed this child (that is defendant's alleged child,) she gave tlie name of anotlier man as its father. This seems naturally enough to have surprised the Police Magistrate who then was trying the case, but unfortunately, instead of taking down the whole of com- plainant's attempted explanation, or hearing any more witnesses, he at once acquitted the defendant. On the third trial, the complainant asserted that defendant's child was not the child registered as Adrian's child. As the case stands at present, on the question of paternity, there is, on the one side, the defendant's own recorded statement that the child is his, and, on the other side, there is the recorded conduct of the complainant about the register which, coupled with the contra- dictions in her stories, is calculated to throw suspicion on her case It seems (after the defendant's statement) difficult to believe that he had not a child by the complainant, but there may be some question whether his child is the one in respect of which complainant now charges him. It is possible that the defendant may not have seen the child tor several years, before he saw a child said to be his in the Police Clourt, and though he must have known the sex of his child he may have been mistaken as to the identity of the girl then produced It is possible (I say nothing about probabilities) that the complainant may have a motive in pa«sin„^ ofl Adrian's child as defendant's child. rOLICE C0X3RTS. Defendant's child may be dead or may be earning its living, and she may be seeking to get money out of defendant by saying that Adrian's child is the defendant's. The Police Magisti-ate is request- ed to hear and consider the proofs on this subject which are already recorded, and also all further evidence that may be adduced by both parties on this question of paternity, and to state by his judgment what he believes to be the fact. Next, as to the question whether the child requires to be supported by others. It seems certain that it is not a young child, but it would appear not to have attained majority ; though, if the register produced at the second trial really applies to it, it must have been at least eighteen years old when this case was brought, and it may be useful to observe that we have to consider what was the said child's condition in April 1870, and not what it is at the present time. No absolute rule can be laid down as to the liability of a father, under this Ordinance, in respect of a child that has attained puberty but is still under 21. I think, on mature consideration and in accordance with the opinion previously intimated by this Court, that in the eye of the law a child continues to be a child until it attains majority, so far as regards the relationshiji of pai-ent and child under this Ordinance, But in pi-oportion as a. child's age increases, the probability increases that it supports itself or that it could do so, if proper means were taken to obtain employment. And if a child, whether girl or boy, works indoors or outdoors for its mother at home and renders services commensnrate with the cost of its keep, I should be disposed to consider that it earned its keep and was self-supporting. On this principle, in the Matara case in 1860, where a man was convicted for neglecting to support several of his children, this Court set aside the conviction and the fine so far as regarded the elder children who appeared to be able to support themselves. This question, as to a child being able to support itself or really requiring the support of others, is one which must be determined in each case according to the circumstances of the case. Considerable regard must be had to age ; but regard must also be had to sex, health, strength, locality and the numerous other matters which will occur to the good sense and observation of the Magistrate as he tries the case. He is requested to hear fully all the evidence that may be adduced on both sides, in addition to the materials already supplied by the record ; and the Supreme Court feels no doubt but that his judgment, on both the questions of factwhicharisehere, will be satisfactory and conclusive." February 20. Present Ceeasy, 0. J. P. C. Jaffna, 33. Held, under the provisions of the Ordinance 1 Headman's of 1842, that if the defendant (a headman) had any reason for not schedule granting the Schedule therein referred to, he should have given a writ- *'° ^^'^ '^"''• ten statement of his reasons. POLICE COURTS, Secondary P. C. Jafna, 23212. Before any secondary evidence of a license evidence. gould be legally admissible, the party possessing it should have had notice to produce the original and proof should be given of the service of such notice. Arr.ick BaZopjftmorfara,— Held that a person might "dispose of" aTrack ni Ordinance, many -prays without there being any sale, and might so bring himself within the operation of the Ari-aok Ordinance 10 of 1844; Labor p. c. Nawalapitiya, 17357. The plaint in this case was as follows : Ordinance, citjiat the defendants, being servants and canganies, did without reasonable cause neglect and refuse to attend, on the 1st of April, 1871, at Chrystler's-farm Estate, when and where they had con- tracted to attend in comniencing work, in breach of the 11th clause of the Ordinance No. 1 1 of 1 865." Mr. Martin, who was the com- ])lainant, stated that the defendants had come seeking to be employed under him and had engaged themselves to work from the first of April. He added " they were to receive wages' from me which are usual in the district (Dimbulla) and were to have weeding contracts.'' The Magistrate acquitted the defendants in the following terms : "In this case defendants are canganies who, according to the statement of complainant, promised to leave the estate on which they were work- ing and go with a fixed number of coolies to work on complainant's estate, and failed to act up to their promise. They are charged under clause 11 of Ordinance No. 11 of 1865. Defendants received lio advances. Complainant's case discloses the most irregular and shadowy agreement with defendants. Such a contract was essentially one to be reduced to writing. Defendants were never servants of complainant, so as to be liable to the punishment laid down in the clause imder which they are charged. Defendants ai-e found not guilty and are accordingly acquitted." In appeal, the Supreme Court set aside the judgment and sent the case back for further hearing and con- sideration ; and per Creasy, C. J. — " The accused appear to be Can- fiMnies by occupation, and as such to Be servants within the meaning ol the Ordinance. It is not necessary that at the time of the contract made, or at the time of the breach, they should have already become actually working servants of the complainant. To hold that would be to nullify the parts of the 11th section, which, impose a fine on a servant who neglects to attend when and where he has contracted to attend in " commencing " work. But part of the consideration, for which these accused were to come to work for the complainant, was that they were to have weeding contracts. The agreement for the weeding formed an essential part of the agreement to come and work on the estate. If the weeding was to go on for more than a month (cither according to express arrangement or according to usao-e and the customary nature of such work,) the conti'act between the parties POLICE COURTS. was a contract which, according to the 7th section of the Ordinance ought to have been in writing, so as to make the accused liable under the 1 1th section. The Police Magistrate is requested to investigate the matter. The plaint ought to be amended by describing the accused as servants and canganies." P. C. Colombo, 429. The defendant was found to have been in possession of an umbrella belonging to the complainant, within four months after its loss. There was evidence of an addition havino- been made to it, since the loss, which would partially alter its appearance- This was held to be proof that the finder (supposing the umbrella to have been merely lost and found,) took it and dealt with it with a dishonest purpose, so as to constitute a theft. The Magistrate having further believed that the defendant had set up a lying story to account for his possession, the conviction, in appeal, was affinued. February 28. Present Ceeasy, C. J. The B. M. Colombo, 7644. Held that the Fort Canal did not come within the meaning of the terms " stream, tank, reservoir, well, cistern, conduit or aqueduct," specified in clause 1, section 7 of the Nuisances Ordinance, 1862 ; but that any one who created a public nuisance, by polluting the water of the Canal, was liable to be indicted for a criminal ofience at common law. P. C. Kaipitiya, 3838. Held, under a charge for maintenance, that if a husband beat his wife and brought an adulteress under his roof, it would be legally equivalent to an act of desertion ; that the wife, however, in such cases, was not a legal witness against the husband ; and, further, that the Magistrate had no power to d ecree future alimony. Theft. Nuisance. Desertion. Future alimony. P. C. Panadure,\^\9Q. Held that the Supreme Court would not t, ■• „ .,„,.',. , . , K , . Police Court interfere with Police Magistrates judgments, either on mere questions judgments.. of value of evidence, or on account of the sentence, if the sentence were authorized by law. March 7. Present Temple, J. P. C. Negombo, — Held that, under the 1st clause of Ordinance 1 1 a Dhoby is a of 1865, the word " servant" had a very extensive meaning, included a Dhoby employed to wash for a family. and " Servant." March 15. Present Temple, J. P. C. Putlam, 5606. Where, apart from certain evidence which had been illegally received, there was sufficient proof before the Magistrate to justify a conviction, the Supreme Court, in appeal, declined to interfere with his finding. Evidence, 10 POLICE COURTS. March 27, Present Temple, J. Postponement. P- C. Matara, 70075. Held that there was no appeal against a Magistrate's order allowing a postponement, and that the Supreme Court would not interfere in such cases to issue a Mandamus unless on good cause shewn. Autrefois. P. C ilfatora, 70091. Held that the plea of autre fois acquit in acquit. tjjg gJ^gg ^^j^g of maintenance) had been improperly received ; and per Temple, J . — " A charge against a man for deserting his wife or child IS a continuing oflence and he cannot plead a former acquittal." Toll P. C. Oampola, 22656. Held that a certificate from an "overseer," certincate. instead of from the " superintending officer," is insufficient in a defence to a prosecution under clause 7 of the Toll Ordinance 14 of 1867. April 13. Present Ckeast, C. J. Evidence of P. C. Galle, 79499. Held, in a prosecution under the Malicious title. Injuries Ordinance, that something more than the bare assertion of the defendant was necessary to justify the Magistrate treating the case as one of bona fide disputed title. Refusing P. (7. Colombo, A. Held that a delay of fourteen days, in pre- process, ferring a complaint, might be a reason for watching the evidence with special vigilance, but did not justify the rejection of the case without a hearing. Refusing P. C. Avisawella, 15652. A charge of assault had not been process. entertained, because the complainants could suggest no reason for the offence. In appeal, the order was set aside and the case sent back for trial, the Chief .Justice remarking that to hold as the Maoistrate did, would be to give impunity to wanton and unprovoked insolence and brutality. April 29. Present Creast, C. J. Irregularity P. 0. Oalagedara, 17965 The charge in this case was "that the in Plaint, defendants did, on the iSth of March, 1872, at the Galagedara Court- house compound, arrest complainant on a warrant No. 11086 (Kandy ) and remove him to Kadugannawa, without producing him before the Justice of the Peace at Galagedara, where he was arrested, in breach of clauses 155, 156 and 163, and did detain him in custody beyond 24 hoiirs in breach of clause 167, of Ordinance No. 11 of 1868." The complainant appeared to have been in attendance at Galagedara as a POLICE COURTS. witness in a civil suit and also for the purpose of opening up a judgment which had been entered against him by default. The Magistrate held as follows: — "In this case defendants had ar- rested complainant in this Court-house. They then hurried him ofl, with indecent haste, without producing him before the Justice of the Peace at Galagedara in terms of the 155th clause, and very unnecessarily handcufied him. They did not take him to Kandy, as they should have done, but took him to his village and then to Ka- dugannawa, where they used great unnecessary violence, by putting him in the stocks, which was in no way ca,lled for. They have actu- ally not detained him quite the 24 hours, though had they been left to themselves they doubtless would hav«, as there only remained one and a half hours to gp nine miles in. The disgraceful disregard of the intention of the 165th clause, which it is clear they only avoided as they wished to prevent complainapt'a giving the b?il taken by the J. P. in 4003 yesterday ; the gross contereiipt of the ordinary respect due to a court of justice and the presiding Justice of the Peace ; the violence used, and the unnecessary delay in goi,ng to Kadugannawa instead of to Kandy directly ; all lea,d ^»e to consider it a case requir- ing a severe penalty. I believe they only went by Kadugannawa ta evade being called back, thinking their route would not be traced. The first and second defendants, as Fiscgl's ciiicers serving warrant 11086, and third defendant, as their ^si&tant, afe found guilty of a breach of the 155th, 156th and 163rd clauses, and acquitted of a breach of the 1 67th clause, of Ordinayace No. U of 186d. I allow them the benefit of the doubt in the case of the 16Zth clause. The defendants are severally sentenced to six weeks' imprisonment with. hard labor." In appeal, it was urged that the Kandy Justice wha had issued the warrant (Mr. Steveaj: t), h9,d jujigdictipn over Galaged- ara, and that the requirements, of the 155th clause of the Ordinance would have been met by the com,plajn?pit being produced before him as " the Justice of the District within whose jurisdiction the arrest was made.'' The judgir^ent of ^e Polfce Court, however, was affirm- ed ; and per Ckeasx-, C. J. — " This conviction fe substantially right, though the charge against the 3rd defendant" — (a private person and not a Fiscal's officer) — " ought to have been laid under the 155th, 156th and 161st clauses of the Ordinance ; but this irregularity has not prejudiced the substantial rights of the party, and it is therefore the duty of the Supreme Court not to alter the sentence on that account. (See 20th clause of Ordinance 1 1 of 1868.) The objection about the summons is frivolous. The record shows that the parties appeared and were ready for trial." P. C. Matara,702S6. Held that " cases of assault where the knife was used, but no dangerous wound Inflicted, might be properly sent to the Disti^ict Court, but were beyond the jurisdiction of a Police Court." Jurisdiction. 12 POLICE COURTS, Refusins; P. C. Cohmho— An order of the Magistrate refusing process tras process. ggt ^side in the following terras : " It might be very useful if Police Magistrates had power to refuse process in cases that appeared to be frivolous, but the Legislature has not given such power. Here the plaint and the preliminary examination of the complainant both dis- close an ofienoe recognizable by the Police Court, and the Police Magistrate was tl^erefore bound to entertain tl^e cha,rge." May 17. Present Stewart, J. Conviction P- ^- Oalle, 80403. Held that a person charged only with theft not consistent could not be convicted of receiving stolen property with guilty with charge, knowledge, ' Postponement. P- C. Co?07nSo,] 61 8. Held that where complainant desired a postponement, he stovtld supply to the Magistrate on an affidavit. Wife pre- P- C- Panadure, 19471. Where a husband and wjfe had both been sumed to have convicted on a charge undertime Ordinance 10 of 1844, the Supreme acted under g,,^.^ gg^ aside the finding as to the wife in the following terms : husband " the second defendant must be presumed to. have acted (unless the cputrary be made clearly to appear upon the evidenoe,) under the influence and coercion of her husbaind, the first defendant ; the arrack having been sold in h^ presence and apparently under his authority. See Russell oi^ Criipes, yol, 1, p. 33." May 22. Present Stewart, J. A party bound P. C Jaffna, 308. Held that a defendant having been bound over over niiiy he \a keep the peace upon an affidavit touching an assault on com- ^res^c")-^ f'" plainant, was no bar to a charge in.respect of the same ofltence being same offence, subsequently tried in the Police Court. "Should the accused," added Stewart J., " be found guilty, the fact of security for the peace having already been given will be a proper circumstance to consider, and make allowance for, in determining the punishment." Admission by P. C- Panadure, 19,453. A frivolous objection to the reception of deft. j.[r. Tonseka Modliar's evidence in the case having been upheld by the Court below, the Supreme Court set aside the judgment and remanded the case for further hearing, pointing out "that, even if Mr Fonseka held an office of magistei-ial authority, any admission to him by the defendant would be admissible in evidence, if made freely and voluntarily." POLICE COURTS. 13 P. C. Colombo,— Held that the Ordinance No. 18 of 1871 did not Refusing empower a Pohce Magistrate to refuse process merely because he piocess. thought the case frivolous, and that to justify such refusal it was necessary that the plaint, or the examination of the complainant, should disclose that no legal crime or offence or one not cognizable by a Police Court had been committed. P C. Matara, 70243. Held that the Ordinance No. 18 of 1871. Plaint, did not make it necessary, where the Police Magistrate took down the plaint himself (as was done in this case,) that it should be signed by the complainant. P. C. Matale, 672. Held that husbands and wives were legal wit- Evidence, nesses against efvch other in proseputions for bodily injury inflicted by one upon the other. P. C. Campofa, 23123. An order of the Magistrate, requiring the P. M. cannot defendant to give security for his good behaviour, was set aside as demand bail illegal: arid per Stewart, J.— "The 104th section of the Ordinance 11 .*"/ ^?°^ J. , . -n. i- X, ■ ■ ■ behaviour, or 1868 authorizes a Police Magistrate in certain cases to bind over parties to keep the peace ; but no such power is given to a Police Magistrate as to good behaviour." May 31. Present Stewart, J. P. C. Galagedara, 1 7892. Held, in a prosecution under the ];4th offence and and 26th clauses of Ordinance No. 10 of 1844^ that the offence was punishment single and the penalty should, accordingly be single. See B & V, I, 189. single. Keg. v. Clark, 2 Cowp., 612, P. C. Panadure, 19177. Where it did not appear, in aprosecution Damages for for trespass under the Ordinance No. 2 of 1835, that the assessment trespass. of damages had been made by the "principal resident headman of- the village," and that three respectable persons had assisted at the assess- ment, as contemplated in the 3rd clause by which the attendance of such persons, if procurable, was made neeessary, the Supreme Court re- manded the case for further hearinsr. Jv,ne 4. Present Creasy, C. J. and Temple and Stewart, J. J. P. C. Matara, 70406. The defendants were charged with having unlawfiiUy cut and removed timber from a crown chena. Their crownTand proctor, on the case for the prosecution being closed, declined to call any evidence, relying on the fact that the complainant had omitted to Timber on 14 POLICE COtritTS. prove that the chena was crown property. The Magistrate, however, found the defendants guilty, and fined them in the sum of Rs. 50 each. In appeal, by the 3rd defendant, the judgment was affirmed ; and per Curiam,— "The burden of proof is thrown on the defendant, as to the land being or not being crown property. See Ordinance No. 24 of 1848, section 12. There was legal evidence that the appellant took part in the removal of the tree." June 6. Present Creasy, C. J. and Temple and Stewart, J. J. Jurisdiction. P. C. ( olomho, 1587. This was a charge against the defendant, for not maintaining his illegitimate child. The complainant was clearly proved to be a resident of Wattepittewelle, a place out of the jurisdiction of the Colombo Police Court. According to her own account, she " went to live at Pettiagodde in order to bring this case in the Colombo Court ;" but there was evidence to show that she had always been seen in her village after each postponement. The de- fendant was a resident of Haogalle. It was evident, therefore, in the ab.sence of any evidence that the child was ever at Pettiagodde, that the desertion, if any, took place at Wattepittewelle, within the juris- diction of the Pasyala Court. The Magistrate, however, found the defendant guilty, but expressed his doubts as to his jurisdiction. In appeal, the judgment was set aside. June 12. Present Creasy, C. J. and Temple and Stewart, J. J. Contempt. P- C. Matara, A. In this case the defendant had been found guilty of contempt, and sentenced to fourteen days' imprisonment, for having addressed the following letter to the Magistrate : " Tangalla, 15th March, 1872, 5 p. M. " Sir, - I herewith give you notice that I'll sue you for 990 Rupees for damage sustained by me in consequence of your having assaulted and falsely imprisoned and caused to be so on the 13th ultimo for the space of 15 minutes. I further beg leave to suggest for an amicable settlement on payment of above amount within 48 hours from date and time hereof in default of so doing I'll take legal steps to recover same. I beg leave to remain Sir, your obdt. servant, (Signed in Singhalese.)" In appeal, the judgment was set aside ; and per Curiam.—" In this case the appellant, who seems to be a foolish and ignorant man, sent the Police Magistrate, by post, a letter which is in the nature of a notice of action.- We do not think that the Police Mao-is- trate was warranted in dealing with it as a contempt of Court." " POLICE COUKTS. 15 P. C. Mafale, 690. The defendants had been convicted of gam- bling, in breach of section 4, clause 4 of Ordinance 4 of 1841. The offence, as disclosed by the complainant's evidence, was that the 1 st and 2nd defendants were playing a game oi " breaking «oooanuts and betting rupees," and that the others were sitting in a ring playing at a game called " Zyplese," and betting on the game. In appeal, the judgment was set aside and case remanded for further hearing, " in order that evidence may be taken, as to the kind and nature of the games that were being played, to see whether they fall within the Ordinance." Gambling P. C. Kaluiara, A727 5. Held that the full toll of six pence was leviable on a relieving horse passing a toll bar unharnessed to any vehicle, and that such animal did not come within the description of " every additional horse used in drawing such vehicle and attached thereto," contained in the schedule appended to clause 4 of Ordinance 14 of 1867. June 26. Present, Ceeast, C. J. and Temple and Stewart, J. J. P. C. Mullaittivu, 7851. WherC) under an agreement, the defend- ant was to be compensated for his labor by a share in the proceeds of a certain fishery, and it was specially stipulated that for any negli- gence on his part " the proprietor might bring an action in the Court," it was held that no criminal prosecution could be maintained against him undei* the penal provisions of Ordinance ll of 1865. V. C, Kandy, 90534. Where, in a prosecution for crimping, under the 19th clause of Ordinance 11 of 1865, the offence disclosed on the evidence was that of forcible abduction and rape, the Supreme Court held that the Labor Ordinance did not apply. Toll Ordinance. Labor Ordinance. labor Ordinance July 3. Present Cbeasy, C. J. and Temple and Stewart, J. J. P. C. Nuwarahalawiya, 7534. The judgment of the Magistrate on a question of fact was affirmed ; and per Creasy, C. J. — " The Police Magistrate's letter shows that the assertions in the petition of appeal are false which complain of the defendant's having not been allowed suflScient time and opportunity for defence. Let the peti- tion-drawer be informed that, if he draws up any more such false and scandalous documents for presentation to the Supreme Court, he will mak'e himselt liable to be punished by that Court for contempt." Petition Drawers. P. C. Balapitimodara, 43072. Held that "giving false evidence as False infor- a witness" did not come within clause 166 of the Administration of mation 16 POLICE COURTS. Justice Ordinance, but that " giving false information, whether by affidavit or not, whereon to found a charge", did com(? within the clause ; also, that to try two defendants together on one plaint, but for distinct charges, was " a very irregular and inconvenient proceed- ing." Maintenance, Jurisdiction. P. C. Oalle, 72263. The defendant in this maintenance ease (which is fully reported in page 5,) was acquitted at the fourth trial in the Police Court. In appeal, the judgment was affirmed ; and per Creasy, C. J, — " The complainant was bound to make out a case of adulterine bastardy and has entirely failed to do so. The Police Magistrate's judgment on fact is conclusive, but, as there has been so much litigation between these parties, it may be useful for the Supreme Court to state that we fully agree with the Police Magistrate in believing the child to be Adrian's child and not the defendant's child." P. C. Galle, 80405. This was an appeal, against a conviction for assault, on the ground of jurisdiction. The finding of the Magistrate, however, was affii'med ; and per Ckeast, C. J. — " A defendant who wishes to object to the jurisdiction of a Police Magistrate, on account of the aggravated character of an assault, should make the objection in that Court, and before the Police Magistrate has given his decision as to guilty or not guilty. In very extreme cases, and where the defendants had no professional adviser when before the Police Magis- trate, the Supreme Court may allow and may even itself take and maintain the objection arising out of the aggravated character of the assault. But this is not a case of this kind." Evidence. Defective plaint. P. 0. Kegalla, 34279. . Held that, under clause 7 of Ordinance 6 of 1868, imregistered sannases were not inadmissible in criminal proceedings, even though the criminal judge should be incidentally obliged to enquire into title. P. C. Matale, 845. The charge was laid in the following plaint: "that the defendant did, on the 10th of April last and during several days previously, grossly misconduct himself, whilst in the employ of the defendant, in breach of the 11th clause of Ordinance 11 of 1865." The defendant having been found guilty, an objection was taken in appeal, that the plaint had been too vague to allow of a proper de- fence being prepared. The Magistrate's judgment, however, was affirmed; and per Curiam. — "The objection as to the vao-ueness with which the charge is laid in the plaint (if the objection be a good one) should have been taken before conviction." POLICE COURTS. 17 July 9. Present Cbeasit, C. J. and Temple and Stewart, J. J. P. C Colombo, 2120. The plaint in this case was as follows: " that the defendant did, on the 24th January, 1872, at the Fort, Colombo, sufter a large quantity of sour and offensive beer to be emptied into a drain leading into the Fort Canal, whereby the water in the said Canal was fouled in a manner prejudicial to public health." The Magistrate found the charge proved, but held that the fact pleaded in defence — that the accused was ignorant that the drain in question emptied itself into the Canal, — might go in mitigation of the sentence The defendant was accordingly fined only 50 cents. In appeal, the judgment was affirmed ; and per Cdriam. — "The Supreme Court thinks this conviction right. It is difficult to suppose that the defend- ant did not know that his drain communicated with the Canal ; and even if such ignorance existed, it must have been the result of such crassa negligentia, in not ascertaining the course of the drain before he poured the ofiensive matter into it, as would make the defendant legally liable for the consequence. With respect to the supposed necessity of a mens rea. we refer to our decision in P. C. PanwiUa, 1 3999,* where we pointed out that, in prosecutions for nuisances, it is no defence to shew that the accused had no design to break the law." Nuisance. ("NewrnHn's case.) July 23. Present Temple, J. P. C. Galle, 76783. Held that a husband, although legally divorced Maintenance. from his wife, was bound to maintain his children by her. July 30. Present Temple, J. P. C. Panadure, 19806, Where a Division Officer had been con- victed under section 3, clause 46' of the Thoroughfares Ordinance of 1861, without a Queen's Advocate's certificate authorising the trial, the proceedings, m appeal, were quashed. Division Officer. P. C. Kalutara, 46237. An order of the Ma^strate, requiring Security to security to keep the peace, was set aside in the following terms : " the keep the peace, defendants having been acquitted, no sufficient reason appears for binding them over to keep the peace." ' August 6. Present Temple, J. J. P. Kalpitiya, 490. This was an appeal against an order of the gegnritv to Justice of the Peace, binding over two defendants, under a charge of keep the peace. » Vide Civil Minutes, 3rd October, 1871. 18 POLICE COtJRTS. riot and assault, to keep the peace for twelve months. It was argued tor tlie appellants that the evidence showed that the complainants and the accused were equally to blame, and that the Justice had no i-ight to demand security only from the defendants, contrary to the direc- tion of the Deputy Queen's Advocate (to whom the proceedings had been duly referred,) that both the parties to the case should be bound over. For the respondents, it was contended that appeals of this kind were restricted, by the 229th clause of Ordinance II of 1868, to orders "requiring" or "refusing" security, and were made subject to the ridea and regul ations relating to appeals from Police Courts. It was for tlie Supreme Court, therefore, to say whether the present order sliould stand or fall by itself, totally irrespective of the complainants, and whether the finding of the Justice on a' matter of fact could be legally interfered with. Sed per Temple, J. — " It is considered and adjudged that the order of the Justice of the Peace be amended, by the Justice of the Peace being directed to bind over both pai'ties to keep the peace." Autre fois P- C. Avisawella, 15853. Held that the plea of autre fois acquit acquit. was not available where the previous proceedings had been quashed, the quashing of an indictment having the same effect as if the case had been abandoned. Avgust\^. Present Temple, J. n^nMsSil ^' ^' P<'"""''<''«' 19448. Where, without sufficient evidence ■*to show that the charge was not one of theft, the parties had been prematurely referred to a civil action, the Supreme Court set aside a verdict of acquittal and sent the case back for further hearinu. Dismissal. August 20. Present Temple, J. Nuisance. j> (^ Batlicaloa, 5087. The plaint was to the following efiect : (1) " that the defendant did, on the 29th of June and three followin Galle, 81955. Where a Magistrate had fined a defendant, under the 18th clause of Ordinance 17 of 1867, the Supreme Court, in appeal, altered the sentence to one of imprisonment for fourteen days, the Ordinance not allowing the imposition of a fine. Wrong Disiuissnlt Illegal Sentence. August 27. Present Temple, J. P. C. Qalle, 81566. In a prosecution under the 118th clause of Ordinance 17 of 1869, it was held that proof of payment of Customs duties, in respect of the goods' seized, rested with the defendant, and that the complainant was not bound to lead evidence as to non-payment. Customs Duties. P. C. Colombo, 2582. The defendant was charged with not having Maintenance, maintained his wife and child. The following entry was made by the Magistrate on the day of trial : " the defendant states he is ready to support his wife and child. Complainant states she cannot live with*" him. Defendant is fined Ks. 10. He is ordered to make monthly pay- ments into Court,— in default one month's hard labour in jail." In appeal, the order was set aside and case sent back for hearing ; and per Temple, J. — " The complainant must give evidence of her inabi- lity to live with her husband. The Ordinance 4 of 1841 does not empower the Police Court to award future maintenance." P. (7, Panadure, 19804. Where a Magistrate had convicted a de- fendant under the 11th clause of Ordinance 7 of 1848,, in the absence of proof that the vehicle in question was a hired one, the Supreme Court set aside the judgment and quashed the proceedings. CariiJige Ordinance. September 4, Present Creasy, C. J. and Temple and Stewart, J. J. P. C. Kandy, 90663. In a prosecution under the 4th clause of Ordinance 24 of 1848, the Magistrate acquitted the defendants on the ground that he was not convinced that the land in question was crown property. In appeal, the judgment was set aside aiid case sent Timber Ordinance. 20 POLTCE COURTS. back for further hearing ; and per Oueiam. — " Ordinance 24 of 184S, section 12, makes it necessary for the defendants to prove that the land is not crown land. This certainly has not been done in the present case. If the burden of proof lay on the Crown, we should not interfere with the Police Magistrate's decision as to the insufficiency of the evidence for the Crown ; but, by the Ordinance, the defendants cannot succeed unless they prove positively, either by cross-examina- tion or by fresh evidence, that the land is other than crown land." • September 5. Present Creasy, C. J, and Temple and Stewaet, J. J, Obstructing a ' P. C. Panadure, 19464. The defendants had been charged with . thoroughfare, having obstructed a public thoroughfare, in breach of the 94th clause of Ordinance 10 of 1861. The Magistrate having acquitted them, with- out assigning sufficient grounds for his judgment, the case had been sent back on the following order made by the Chief Justice : — " Re- quest the Police Magistrate to state the reasons for his judgment. It does not appear at present whether he thinks that in point of fact there has been no obstruction, or whether he thinks this not to be a thoroughfare within the meaning of the Ordinance. The evidence for the prosecution on both points seems to be very full and conclu- sive." The Magistrate's reply having this day been read, the judg- ment of the Supreme Court was recorded as follows. — " The letter of the Police Magistrate shews that he finds, as a point of fact, the path to be a private path and not a public one. We cannot review his decision on facts. If it is really important to have the long con- tinued dispute as to the path authoritatively settled, it would be beat to take proceedings in the District Court. Our affirmation of this case would be no bar to such proceedings." Toll. September 11, Present Creasy, C. J. and Temple and Stewart, J. J. P. C. Kegalla, 4692. Held that when the Governor, by proclama- tion, appointed a particular place at which toU was to be taken, the toll-keeper had no right to take toll at another place. " When lie does so, he comes under the 15th clause of the Toll Ordinance of 1867, by taking toll in a case in which toll is not payable under the provisions of the Ordinance." Maintenance, ^- C. Galle,?.\1\9. Held that it was competent for the complainant, in a maintenance case, to prove that the amount offered by defendant was insufficient for the maintenance of her two children and that he was liable to pay a larger sum. September 18. Present Creasy, C. J. and Stewart, J, Gnmblinc P. 0- Matale, 9S7. Where the evidence shewed that the defend- ants had gambled amongst some coffee trees in a garden belonging to POLICE COURTS. 21 one of them, and there was no proof that the place was kept or used for the purpose of common or promiscuous gaming, or that it was such a public place as contemplated in the 4th section, 4th clause of Ordinance 4 of 1841, it was held that the defendants could not be convicted. September 27. Present Cbeast, C. J. and Stewart, J. P. C. Trincomalie, 23377. Where the defendant had been sen- tenced to pay a fine of Rs. 50 and, in default, to be imprisoned for a certain period, the Supreme Court amended the order by striking off the alternative of imprisonment. " If the accused does not pay the fine, imprisonment will follow as provided for by Ordinance 6 of 1855." P. C. Galagedara, 18005. The defendants were convicted, under clause 23 of Ordinance 4 of 1867, of having resisted the complain- antin the discharge of his duty as a Fiscal's officer, while engaged in watching a granary under sequestration. In appeal, the con- viction and proceedings were quashed ; and per Cobiam, — " The Police Court had no jurisdiction to try the charge without the election of the Queen's Advocate. See II 9th section of Ordinance 11 of 1868. Besides, the writ of sequestration should have been produced." Wrong sentence. Fiscal's OrdinaQce. P. C. Panadure, 19965. Where no discretion as to the amount of fine was allowed by Ordinance, the Supreme Court would alter the Magistrate's sentence and award the full penalty prescribed by law. P. C. Jaffna, 912. Held, in a prosecution under the Malicious Injuries Ordinance, that the defendant was not to be convicted if it appeared that he did the act complained of under a bona fide, though possibly mistaken, claim of right to do it, and that the whole matter in such a case should be determined by a civil tribunal. P. C Colombo. — Held that the fact of there being a counter charge against the complainant was no ground for refusing process, though it might afiord good reason for hearing both the cases on the same day. Sentence • altered. MRlioious injury. Refusing process. October 2. Present Cbeast, C. J. and Stewart, J. P. C. Colombo, 3417. The plaint charged the defendant (a Police Serjeant) with having, on the 26th July, 1872^ at Maharagama, know- ingly and wilfully and with evil intent, exceeded his powers an a Police officer, by entering complainant's house and searching it without a search warrant, in breach of clause 70 of Ordinance 16 of 1863. On the case for the prosecution being closed, the defendant Searching without a warrant. 22 POLICE COURTS. Dismissal. Notoriously livulihood. Malicious inj ary. called, as his only witness, the party at whose instance he had made the search, and who deposed as follows : " on the 26th July last my maid servant ran away with two strings of gold necklace and a gold ring belonging to me. I enquired at the Slare Island station. I went to defendant and I complained to him. We went to com- plainant's house and had it searched. The woman was not there. I saw her coniboy there, — the same that she wore at our house. Defendant asked me for a warrant. I said I could not get one.'' The Magistrate's judgment was to the following effect. — "It is quite clear that defendant acted bona fide in this case. I consider he acted quite right in proceeding as he did under the circumstances. Besides, he was justified under clause 7 of Ordinance 4 of 1841. He is accordingly acquitted." J71 appeal, the finding was affirmed. P. C. Colombo, 3615. The defendant had been charged with dis- orderly conduct, but on the returnable day of the summons, the com- plainant being absent, the case was struck off. In appeal, it was urged that the complainant had been prevented from attending in conse- ([uence of the recent floods having interrupted railway communica- tion with Colombo, and that this fact had been duly represented by petition to the Magistrate. The order, however, was affirmed. J. P. Jaffna. 10773. The defendants (five in number) were charg- ed, on an affidavit by the Inspector of Police, with being by repute of notoriously bad livelihood. The complainant, who had been not more than six or seven months at Jaffna, deposed that he knew the accused by repute, as " violent men" and " robbers," and that frequent complaints had been made against them, although he couhl not say by whom. He called only one witness, the District Ceurt Mudaliyar, who stated : — " I know 3rd, 4th and 5th accused, the 3rd and 4th are by repute bad men. The 3rd accused was concerned in a dis- turbance at a comedy once, accnrding to my information. From what I heard, the 3rd and 4th accused are men of bad livelihood, who fight and disturb thi^ir neighbom-s. I know nothing about the 1st and 2nd accused. I heard that 2nd accused is a man of bad character. I know nothing about him personally. The 2nd accused was convict- ed of assault by Mr. Campbell. I heard that 4th accused was con- cerned in robberies. I know nothing against the 5th. I know nothing personally. I only talk of repute. " The Justice having required security from all the accused for their good behaviour for six months, they appealed to the Supreme Court. And per Curiam. "Affirmed as to the 3rd and 4th appellants, but set aside as regards the 1st, 2nd and 5th appellants, against whom there is not sufficient evidence to bring them within the operation of the 233rd section of Ordinance No. 11 of 1868." P. C. Oalagedara, 18123. A conviction in a case brought under the Malicious Injuries Ordinance was set aside, in appeal, and a further POLICE COtFRTS. !^3 hearing ordered in the following terms. "From the evidence of one of the vritiiesses of the complainant, it would appear that there is a dispute about the boundary. To justify the conviction of the defendants, the Magistrates should be satisfied beyond reasonable doubt that the act complained of was malicious, within the meaning of Ordinance 6 of 1846, section 17. If the fence was cut bona-fide, under an honest though it may be a mistaken claim of right, the defendants will not be liable. Enquiry should be made regarding the civil case in the Court of Requests referred to in the petition of appeal," P. C. GaWe, 81464. Held that where a plaint was technically in- plaint, correct but the defendant had not been prejudiced in any substantial way, the Supreme Court would not interfere with the Magistrate's finding of guilty. P. C. Panadure, 199'37. The defendant was charged with a breach Division of the 3rd section of the 46th clause of Ordinance 10 of 1861, in hav- Officer, ing fraudulently, and in the execution of his office as a Division Officer, forwarded, on the 4th day of July 1872, to the District Committee, the name of the complainant as a defaulter, in respect of the commu- tation rate due for 1870, whereas the defendant had received such rate from the complainant on the 10th of April, 1871. The evidence disclosed that the defendant, who was a Division Officer of one of the divisions of Panadure, fiu-nished the Kalritara District Road Com- mittee, in June 1870, with his first list of commutation^ defaulters, including the name of complainant. Warrants issued through the Police Court, and the complainant was obliged to pay the road tax to defendant in April 1871 ; but notwithstanding such payment, the complainant's name was again inserted in the final list, supplied in June 1871, to the Committee, and, consequently, in the final warrants, under which complainant was arrested aad had to pay the tax a second time to the Deputy Fiscal. The Magistrate (who had the Queen's Advocate's authority to try the case) held as follows. " By defendant's act of omission, complainant was illegally ai-rested and had to make a payment to the Deputy Kscal, in default of which he would have been forthwith imprisoned. Whether defendant en- tered complainant's name as a defaulter, in the list furnished in June, 1871, designedly or no, the Court is not in a position to say, but it has no difficulty in finding that defendant has, in his capacity of Division Officer, been guilty of a crimin,r plaint : " that the defendant did, on the 20th October, collect filth and dirt into a heap, opposite to his boutique on the drain of the high road at Pattia, and burn them, without removing the same as requir- ed by Ordinance, to the grtat nuisance of the complainant who oc- POI.TCE COURTS. cupies- the adjoining boutique, in breach of the 94th clause of Ordi- nance 16 of 1865." The Magistrate found the defendant guilty and fined him Bb. 2. In appeal, the judgment was set aside ; and ppr Coriam. — " The burning of rubbish is not an offence under the 94th clause of Ordinance l6 ot 1865." 31 P. C. Nuwara Eliya, 861'2. The defendants were charged with having cut 115 trees from a certain Crown forest at Sita Eliya, with- out a proper license, in breach of clause 5of Ordinance 24 of 1848. The Magistrate gave judgment as follows : " This case is dismissed. There is nothing to shew that the defendants had anything to do with" the felling of the timber. Let the timber be seized and sold." The defendants appealed to be allowed to remove the timber. Per Curiam. — " Appeal dismissed. The order in question appears to be surplusage, but as the defendants have been acquitted, on the sole ground that they had nothing to do with the timber, they cannot be prejudiced by such order." Timber Ordinance. P, C. Gampola, 2.3839. The defendants were charged with having assaulted, and with ' having incited others to assault, complainant. The 2nd defendant having gone to survey a land for the 1st, was op- posed by complainant and his wife. An angry altercation ensued; and the complainant was very severely beaten and would probably have been further assaulted but for the coach, with the Magistrate as a passenger, passing the place at the time. The Magistrate having found the 1st and 2nd defendants guilty — the others being acquitted — proceeded to pass sentence as follows . " And whereas what I per- sonally saw is not evidence, and cannot criminate defendants, but legally may and equitably should influence me in awarding penalty or sentence, I place on record, as further explaining cause of severe pen- alty, that I found 1st defendant white and trembling with passion, apparently directing a number of coolies who were dragging from a house on to the road, with brutal violence, the complainant, who was much injured and tied with rough cords which I removed from his legs and either his neck or shoulders. » * . gnd defend- ant was a little way off, some five yards or so, and, when I saw him, •watching the approach of the coach but making no effort to intercede. The 1 st and 2nd defendants are severally sentenced to. ten days' im- pi'isonment." In appeal, it was urged that when the defendants had attended the Police Court on the 19th of November on a J. P. sum- mons, a P. C. plaint for assault had been entered and the case tried on the same day without any further process ; that they were refused a postponement, although granted the indulgence of summoning their witnesses for the following day when evidence for the defence was received ; that these were irregularities which could not but have Assault. 32 POLICE COtJKTS. prejudiced the defence ; and that the Magistrate was not justified in im- porting into the case his own evidence. The Supreme Court, however, affirmed the Magistrate's finding and sentence m the following terms : " The defendants had full opportunity to prepare their defence. The Magistrate decided the issue of guilty or not guilty on strictly legal evidence. He had a right, when apportioning the punishment, to avail himself of his own personal knowledge." December 10. Present Crbast, C. J. and Stewart, J. Gambling. P. C. Colombo, 5109, The defendants were charged with having " gambled, by betting at a cock-pit in a public place, in breach of Ordinance 4 of 1841, clause 4th." The Magistrate found them guilty, and sentenced the 1st, 3rd and 4th to pay a fine ot Rs. 10 each, and the 2nd to be imprisoned at hard labor for one month. To the judg- ment, however, was appended the following order, — "the game cocks produced to be forfeited and sold." In appeal, it was urged that In- spector Andree's evidence, as to the character of the 2nd accused, in connection with previous cases of gambling, had been improperly re- ceived before conviction, and that the forfeiture of the cocks was illegal. Per CuKiAM. — "Affirmed. The Supreme Court has to point out that enquiry as to the bad character of the accused, or whether he is an old offender, should not be made until judgment of guilty has been pronounced. The order for the forfeiture and sale of the game cooks was beyond the power of the Magistrate, and must be regarded as surplusage, no such power being given by the Ordinance." December 17. Present Ceeast, C. J. and Stewaet, J. Judgment of P. C. Oalle, 82865. Where, under a charge for assault, the com- " not guilty." plainant had adduced sufficient evidence, if believed, to prove the offence, but the Magistrate's judgment on the record was merely " not guilty," the Supreme Court set aside the finding and remanded the case for further hearing ; and per Creasy, C. J. — " As the record now stands, there is evidence of an assault, and there is no statement by the Police Magistrate that he disbelieves that evidence. No justification is at present proved." Costs. P- C. Matara, 71 124. The defendant was charged with having unlaw- fully received a quantity of kitul fibre, knowing the same to have been stolen. After hearing complainant's evidence, the Magistrate gave judgment as follows : " Defendant is acquitted with costs." In appeal, per Stewart, .T. — " Affirmed, save as to costs, which part of the judgment is set aside. The complainant may have been mistaken in supposing the fibre in question to be his, but there is nothing to shew that he did not bona fide believe that it belonged to him." POLICE COURTS. 33 p. C. Panadure, 20182. The defendant was charged with having Eye-witnesses, maliciously thrown stones into complainant's house and broken his furniture, in breach of the 19th clause of Ordinance 6 of 1846. An admission made by him to an Aratchy was duly deposed to by that officer at the trial, but the Magistrate declined to be bound by it in the absence of the evidence of certain alleged eye witnesses whom the complainant failed to call. In appeal, the judgment was set aside and case sent back for furth<^r hearing and consideration ; and per Creasy, C. J. — " A the record stands, the defendant's admission was legal evidence ; but, as it would be very more satisfactory to hear the evi- dence of the alleged eye-witnesses, the case is sent back for further hearing. It will be the duty of the complainant to call them." P. C. Panwilla, 14151. This was a charge against certain can- Opportunity ganies and coolies, for refusing to work and for behaving insolently for defence, to their employer, in breach of the 11th clause of Ordinance II of 1865. The defendants were convicted, but all of them, save the present two appellants, elected to go back to their estate after sentence, and were allowed to do so ; the Magistrate taking upon himself to cancel his own judgment so far as it affected them. In appeal, it was urged (independently of the merits of the case whii'h were not gone into by 'counsel,) that the appellants having; been taken up on a , warrant were brought into Court and tried on the same day, although a postponement had been specially applied for, to secure the at- tendance of a witness named, but had been refused ; and that, in ^dew of the heavy punishment which had been awarded, and the want of facilities generally for immigrants who- were arrested on Coffee estates to secure prompt legal advice, the equities of the case demanded that an opportunity should be given to the defendants to call evidence. Per CuMAM. — " These appellants had a professional adviser acting for them ; and strictly speaking when he claimed a postponement (which ought to have been claimed when the case was first railed on,) he ought to have satisfied the Police Magistrate, by affidavit or other sufficient means, that there were witnesses in existence who could prove facts material to the defence in the present case, and that no reasonable means of securing the attendance of these witnesses in the first in- stance had been neglected. But we are always anxious to guard against the possibility of any man being convicted of a criminal offence without having had full means of making and proving his defence, if such rheans exist. We, therefore, send the case back for further hearingand consideration, so far as regards these appellants. And in so doing, we draw the Police Magistrate's attention to clause 4 of Ordinance 18 of 1871, which will authorize him, if he ultimately con- vict, to make the defendants pay the expenses of the complainant and the coinplainant's witnesses." 34 POLICE COURTS. Municipal Magistrutes. Security to keep the peace. B. M. Kandy, 5873. The defendant in this case, having been found guilty of a breach of clause 8, chapter 1 9 of the Bye-laws of the Municipal Council of Kandy, appealed on the ground that only two Magistrates had presided at the hearing of the case, and that, there- fore, the judgment was void in view of the requirements of section 32 ot Ordinance 17 of 1865. Per Curiam. — "Quashed. The conviction shews that only two councillors were present at the hearing. By the 32nd section of the Ordinance No. 17 of 1865, three or more council- lor* are necessary to form a Bench of Magistrates."* P. C Colombo, 1649. The complainant having sworn an affidavit charging the defendants with constantly abusing and annoying him and threatening to do him bodily harm, the Magistrate, without hear- ing any evidence, made the following order : " both parties are bound over to keep the peace for six months in Rs. 100 each." In appeal, by the complainant, so much of the judgment as required him to give security was set aside ; and per Curiam.—" The case discloses nothing to require or justify such an order. So much of the order as binds over the other parties to keep the peace is affirmed," Crambling. Autre foia acqait. P. c. December 23. Present Stewabt, J. Panadure, 20085. The defendants were charged with gam- bling on a land called Galawattemoderawatte. In the course of the evidence, it transpired that the gambling had taken place in a ditch on the sea beach ; and the Magistrate thereupon held that the of- fence came within the meaning of clause 4 of Ordinance 4 of 1841. In appeal, however, the judgment was set aside ; and per Stewart, J.—" The plaint is defective, in that it is not alleged that the de- fendants were gaming in any street or other open or public place. According to the evidence, the gaming took place in a ditch ; but whether it was an open one, and in an open or public place, it doe« not clearly appear." P. C. Kegalla, 35127. The defendants, having been convicted of assault, appealed chiefly on the following grounds : (3) « the case is one which should properly come under the Village Communities Or- dinance. Respondent cut down an old boundary dam between his fi eld and that of the 1 st appellant and brought the present case • In B M. Colombo, 4991, the defendant, who had pleaded euiltv underacharge of Naisance, andbeen fined £2. appealed on the Iround that the penalty had been imposed by a Bench consistino- of on! v two Magistrates, and that the signature of the third Councillor appearine on the record had been obtained " long afterwards." This statement was duly supported by affidavit, but the Supreme Court offirmerf the iuds- ment.-Vide Civil Minutes, 20th July, 1869. »" lae juag POLICE COURTS. against appellants ; (4) under the directions of the Assistant Go- remment Agent a " Gansabahawe,'' presided over by the Ratta- mahatmeya, was held touching the matter, and a verdict returned in favor of the appellants ; (5) appellants humbly prayed the Court below for a reference to the report in which the verdict is embodied, but the prayer was refused." The petition to the Magistrate, referred to in paragraph 5, was of record, with the mere endorsement by him — " file in case." Per Stewart, J. — " Affirmed. There is nothing to shew that the charge was enquired into and adjudicated ufJfn by the Gansabahawe." p. C. Urugalla, 4147. The plaint was as follows : " that the d?- Cruelty to fendants did, on or about the 12th day of November, cruelly iU-treat, ammals. abuse or torture, oi cause or procure to be cruelly ill-treated, abused or tortured, a bullock belonging to him, in breach of 1st clause of Ordinance 7 of 1 862." On the evidence for the prosecution being closed, the defendant stated in defence — " the bullock is mine. The medical men gave orders that it should be branded, as it was sick. I can prove it is usual for animals to be so branded. Its sickness was cold fits.'' The Magistrate held as follows : " This animal was pro- duced before the Court at the time, and the poor brute was in a horrible state from branding. Flourishes, rings and ornamentations of every kind were described all over its body, and the opinion of the Court is that the branding was excessive and unnecessarily severe in the meaning of the Ordinance. If the defendant is such a pig- headed idiot as to imagine that by treating a creature in such a way he can do its health good, he must be taught better sense by the punishment of a fine. Defendant is fined Ks. 10 and warned." In appeal, it was urged that defendant should be allowed an opportu- nity (which apparently had been denied him at the trial) to prove that he had acted bona fide and under medical advice as alleged. The judgment, however, was affirmed, Stewart, J. remarking that he would send the case back for further hearing, to enable the de- fendant to call his witnesses, if not that he was of opinion, in view of the nature of the branding deposed to, that the question of intention could not affect the verdict. i:ndex. APPEAL. Paoe A Magistrate's finding on facts is irreversible ... . ... ... 1, 9 Where a plaint is so defective that it cannot be amended, consistently with the facts, so as to bring the charge within tlie Ordinance quoted, the Supreme Court, will set aside a conviction , . . . 4 A sentence! if authorized by law, will not be interfered with by the Supreme Court ... .. ... ... ... 9 There is no appeal against a Magistrate's order allowing a postpone- ment ... ... ... ... ... 10 Wbere the substantial rights of either party have not been affected by any irregularities disclosed on the record, the Magistrate's finding will be affirmed ... * ... ... ... ... 10,23 Where the parties are prematurely referred to a civil action, without sufficient evidence on the record to justify the order, the Supreme Court will direct a new trial ... ' ... ... ... 18 The Supreme Court will alter a sentence from fine to imprisonment, if the Ordinance allows no discretion as to the punishment ... 19, 21 Where a judgment had been delivered vmder a mistake as to dates, a further hearing was allowed ... ... ... ... 24 A further hearing, applied for on the ground that the Magistrate had evidently prejudged the case, refused ... ... ... 30 Appeal dismissed ... ... ... .. ... 31 A new hearing ordered on a judgment of " not guilty " ... ... 32 A complainant may be compelled, in appeal, to call his alleged eye- witnesses, even although there be sufficient legal evidence on the record to support the charge ... ... ... ... 33 The Supreme Court is most anxious that every opportunity should be given to an accused to prove his defence ; and where a postponement in a cooly-case had been applied for, though not strictly in due form, but refused, a further hearing was granted ... ... ... 33 ARRACK ORDINANCE.— CiVo. 10 0/1844.^ A person may " dispose of " arrack without selling it ... ... 8 In •prosecutions under the 14th and 26th clauses, the offence being sin- gle the penalty should accordingly be single ... ... 13 ASSAULT. An assault being proved against a person who enforces a warrant which is not directed to him for execution, the onus is on him to justify the arrest and to show that no more violence was used than was necessary 24 In awarding punishment after a legal conviction, the Magistrate may avail himself of his own pex-sonal knowledge ... ... 31 AUTRE FOIS ACQUIT. In a prosecution for maintenance, the defendant cannot plead a former acquittal . . ... ... ... ... 10 The plea is not available where the previous proceedings have been quashed ,.. ... ... ... ... ... 18 The mere plea, without proof, ot a previous acquittal before a Gansa- bahawe is insufficient ... ... „. 34 'VI INDEX. BENCH OF MAGISTRATES.— (Orrfmance 17 o/ 1865) Page. Piocc'edinss had before only two Municipal Magistrates quashed ... 34 CARRIAGE ORDINANCE.- (JVo. 7 0/ 1848.) A conviction under clause 11, without any proof that the carriage in question wab a hired one, quashed ... ... ... 19 CONTEMPT. The fact of a foolish and ignorant man sending a Magistrate a letter, in the nature of a notice of action, cannot be treated as a contempt... 14 Petition-drawers preparing false documents for presentation to the Supreme Court are liable to be punished for contempt... ... 15 A pei'son cannot be coiivirted of contempt without being called upon, and allowed an opportunity, to shew cause... ... ... 24 COSTS. A complainant should ijot be cast in costs if he prosecutes bona fide... 32 CRUELTY TO AmMAh&.~{Ordinance 7 of 1862.) Evidence as to intention is immnterial for the defence ... ... 35 CUST01\rS DVT \'ES.— {.Ordinance 17 of 1869.) Where goods are seized at the Customs, the onus is on' the defendant to prove payment of duty ... ... ... 19 DISORDERLY CONDUCT.- (Orrfmance 4 o/184I.) A Magistrate may simply bind over parties charged with disorderly conduct .. ... ... ... ... ... 29 EVIDENCE. Proof of what the parties to a case said against their respective interests is evidence against them ... ... . . , ... 6 When said in open Court and judicially recorded, it is not necessary to call witnesses to prove that they made the statement ... 6 Before secondary evidence of a license can be admissible, it should be proved that the holder thereof was duly noticed to produce the original .. ... ... ... ... . 8 A wife is not a legal witness against her husband in cases of maintenance 9 The mere admission of illegal evidence will not vitiate a judgment, pro- vided there be sufficient legal pi-oof to support it ... ... 9 An admission by defendant to a third party is admissible, if made freely and voluntarily ... .. ... ... ... 12 Husbands and wives may be witnesses against each other in prosecutions for bodily injury inflicted by one upon the other ... ... 13 Unregistered sannases are admissible in criminal proceedings ... 16 Witnesses who remain in Court, after being ordered to withdraw, are not incompetent to give evide^ice ... ... .. 24 Evidence as to the bad character of the accused should not be received until after conviction ... . ... ... 32 FALSE INFORMATION,— COrrfmawce 11 oj \868.J Where no particular person has been accused, a charge for false infor- mation, under clause 166, will not lie ... ... ... 1 Giving false evidence as a witness is not punishable under clause 166, but giving false information whereon to found a charge is ... 15 FISCALS' ORDINANCE.— CiVo. 4 o/ 1867. J A clandestine removal of goods seized by the Fiscal does not amount to " making or inciting resistance or obstruction," under the 23rd clause ... ... ... ... 3 A charge under the 23rd clause cannot be entertained without a certi- ficate from the Queen's Advocate ... ... 21 INDBX. Page. A Magistrate has no power to convict a defendant, under the 64th clause, for resisting a Piscal's officer in the execution of a decree tor land ... ... ... ... ... ... 27 FORCIBLE Vj^TRY.— (Proclamation of 5th August, 1819.) A certificate from the Queen's Advocate is not required to enable Police Courts to try charges for forcible entry ... ... ... 3 The question of title is immaterial ... ... ... 28 QKMEhmGi.— (Ordinance 4 of 1841. J The unsupported evidence of a witness, who said " I knew that shed was used for gambling and I have previously complained about it to the Police," considered sufficient to warrant a conviction ... ... 2 An open lane is not such a place as is contemplated in section 6, clause 4 of the Vagrant Ordinance ... ... ... .. 5 In the absence of evidence as to the kind and natiu-e of the gambling complamed of, the Supreme Court directed a further hearing ... 15 Gambling in a private garden is no ofience ... ... ... 20 A Magistrate cannot order the forfeiture and sale of game cooks ... 32 Gambling in a " ditch " is not punishable, in the absence of evidence to show whether such ditch was an open one and in an open or public place ... ... ... ... ... 34 HUSBAND AND WIFE. In an action for maintenance by the wife, the husband may prove in defence that she left him and is living in adultery ... ... 2 If a husband beat his wife and bring an adulteress under his roof, it is legally equivalent to an act of desertion ... . .. 9 A wife is not a legal witness against her husband in cases of main- tenance ... ... ... ... .. .. 9 A wife must be presumed to have acted under the influence and coercion of her husband, unless the contrary be clearly shewn ... 12 Husbands and wives may be witnesses against each other in prosecu- tions for bodily injury inflicted by one upon the other ... ... 13 Where a wife seeks to justify her having left her husband's house on the ground of having been ill-treated, she should adduce evidence as to the real extent and nature of the ill-usage ... ... ... 5 A husband though divorced from his wife is bound to maintain his children by her ... ... ... . . ... 17 Where a wife pleads " inability " to live with her husband, she should satisfactorily prove it before she can secure maintenance ... 19 JURISDICTION. Where a " severe wound with a knife " is inflicted, the case ought to be tried by the District Court ... ... 2 Cases of assault where the knife is used but no dangerous wound inflict- ed may be properly sent to the District Court, but are beyond the jurisdiction of a Police Court .. ... ... ... 11 A Magistrate cannot demand bail for good beha^aour ... ... 13 Where a complainant changes her place of residence with the avowed object of carrying her case from one Court to another, the Supreme Court will discom-age the proceeding as vexatious ... ... 14 The plea of jurisdiction, on account of the agjiravated character of an assault, should be taken in the Police Court and before the Magis- trate has found a verdict ... ... ... ... 16 A Police Court has no power to try a charge of resistance under the 64th clause of the Fisoals' Ordinance ... ... ,,. 27 LABOR ORDINANCE.— fiVo. U 0/ 1865 J Tage. A Diver is not a servant ... ... ... _ • ■ ■ 1 A prosecution for breacli of contract in neglecting to attend in com- mencing work can be maintained, tinder the 11th clause, against persons who by occupation are servants within the meaning of the law, although such persons may not have alreaily become actually working servants of the complainant ... ... . ■■■ ^ Where weeding contracts form part of the consideration for which a Cangany binds himself to work, and the weeding is to go on for more than a month, the engagement should be in writing ... ... 8, 9 A Dhoby employed to wash for a family is a servant ... ... 9 A party who was to be rewarded for bis labor by a share in the pro- ceeds of a fishery, was held not liable to be prosecuted as a servant... 15 Where in a prosecution for crimping, the offence disclosed on the evi- dence was that of forcible abduction and rape, the Ordinance was held not to apply ... ... ... ... ... 15 A servant who is convicted under a charge of theft cannot be mulcted in his wages ... ... ... ... ... 27 A bona fide employer of coolies who are boimd to another cannot be convicted under the 19th clause... ... ... .. 29 LICENSEkS. Where a party using an insufficient license to slaughter cattle acts bona fide, he is not liable to be convicted ... ... ... 1 A licensed " armourer " need not obtain a separate license to possess fire-arms ... ... ... . ... 2 MAINTENANCE.— (OrcJmance 4 of 1841.) In an action by the wife, the husband may prove in defence that she left him and is living in adultery .. ... ... ... 2 Legal efieot of statement by defendant that he has transferred property for the support of his child ... ... ... ... 2 Where a wife seeks to justify her having left her husband's house on the ground of having been ill-treated, she should adduce evidence as to the real extent and nature of the ill-usage . ... 5 A parent is liable to support his child until it attains majority ... 7 What circumstances should be considered in determining whether a child is able to support itself or requires the support of others ... 7 If a husband beat his wife and bring an adulteress under his roof, it is legally equivalent to an act of desertion ... ... ... 9 A Magistrate has no power to decree future alimony ... ... 9 Desertion is a continuing offence, and the defendant cannot plead a former acquittal ... ... ... ... ... 10 A husband thouj>h divorced from his wife is bound to maintain his children by her ... ... ... ... ... 17 Where a wife pleads " inability" to live with her husband, she should satisfactorily prove it before she can secure maintenance ... 19 Complainant may prove that a sum offered by defendant i.s insuflScient and that he is liable to pay more ... ... 20 Maintenance awarded to a married woman against the father ot her illegitimate child ... ... ... .__ ___ 30 MALICIOUS INJURY.— (;Or*?iarece 6 of 1846.) The bare assertion of title is an insufiicient defence .. ... 10 Where the act complained of is done under a bona-fide though mistaken claim of right, the defendant cannot be convicted .. ...oj 22 27 Where the complainant contributes to the injury by his own unlawfiil act, he has no right to prosecute.. ... .., _ .ig INDEX. IX NUISANCE.— COrAnoMce 15 0/ 1862.) Page. Polluting the water of the Colombo Fort Canal, so as to create a public nuisance, is an offence at common law, although not indictable under the Ordinance ... ... ... ... ... 9 17 In prosecutions for nuisances, it is no defence to shew that the accused had no intention to act unlawfully ... ... ... 17 Nuisance caused by the storage of salt fish ... ... ... 18 The Dog case ... ... ... ... ... 25 The burning of rubbish is not an offence under the 94th clause of the Police Ordinance ... ... ... ... ... 30 POLICE ORDINANCE.— (No 16 of 1865.) A licensed wine seller cannot be convicted, under the 88th clause, of trading on Sundays to the disturbance of a christian congregation, if there be no evidence that he or any one acting under his orders was present at the shop in question . ... ... ... 4 A Police officer acting bona fide is justified in searching a house without a warrant ... ... ... ... ... 21 Police officers may be tried under the 70th clause, for illegally exceeding their powers, without a certificate from the Queen's Advocate ... 27 Negligently leading a hand-cart on the road is an offence under the 85th clause ... ... ... 29 The burning of rubbish on the road-side is not indictable under the 94th clause .. ... ... ... ... 30 PRACTICE. It is irregular to take a plea of guilty subject to the opinion of the Supreme Court ... ... ... ... 2 No Magistrate has a right to record a plea of not guilty as guilty, even although the defendant while pleading should make a state- ment impliedly admitting the charge ... ... 3 To try a criminal case upon admissions only is improper . . . . 6 A delay of 14 days in entering a charge is no reason for refusing process .. ... ... ... ... 10 The apparent absence of a motive will not justify a Magistrate in declining to entertain a plaint ... ... ... .. 10 Where the plaint and preliminary examination of the • complainant disclose an offence cognizable by the Police Court, the Police Magis- trate is bound to issue process ... ... ... 12, 13 A postponement should be applied for on due affidavit - ... ... 12 A party having given security to keep the peace may be prosecuted in respect of the offence on account of which he has been bound over . 12 Where the Police Magistrate takes down the charge himself, the com- plain.ant need not sign the plaint .. . . ... 13 A Magistrate has nn power to demand bail for good behaviour ... 13 To try two defendants on one plaint but for distinct charges, is very irregular.. .. .. ... ... ... 16 Where the plaint is too vague to allow of a proper defence being pre- pared, the objection should be taken before conviction ... .. 16 Defendant being reported not to be found is no reascm for dismissing acase ... ... ... ... ... .. 19 A Magistrate cannot award imprisonment as an alternative for non- payment of a fine ... ... ... ... 21, 27 It is desirable to enquire into counter-charges on the same day ... 21 A complainant's absence, though accounted for in a petition which is unsupported by any affidavit, may justify his case being struck off... 22 No case can be reinstituted without special leave ... ... 29 Page. A Magistrate has a right, when apportioning punishment, to avail him- self of his own personal knowledge ... ... -.• 32 QUEEN'S ADVOCATE'S CERTIFICATE. A certificate is not required in charges for forcible entry ... ... 3 A division officer cannot be tried for a fraudulent act, under the Thoroughfares Ordinance, without a certificate. ... .. 17 A charge under the 23rd clause of the Fiscals' Ordinance cannot be entertained without a certificate from the Queen's Advocate ... 21 Police officers may be tried under the 70th clause of the Police Ordi- nance without a certificate ... .. .. .27 RECEIVING STOLEN PROPERTY. A person may be convicted of this offence, although a co-defendant chiirged wiih the theft itself is found not guilty ... ... 2 Under a charge of theft, a defendant cannot be convicted of receiving stolen property ... ... ... ... ... 12 SECURITY TO KEEP THE PEACE. Where the defendants are acquitted, they cannot be boimd over ... 17 On an appeal by defendants against a J. P. order requiring them to furnish security, the Supreme Court directed that complainant should also be bound over ... .. ... ... 17, 18 A party having given security may be prosecuted in respect of the same offence ... ... ... ... ... 12 When a Justice may bind over persons of notoriously bad livelihood ... 22 A Justice has power to bind over an accused who is charged on oath with riotous and forcible entry ... ... ... 28 A Magistrate may simply bind over parties charged with disorderly conduct... ... ... ... ... ... 29 A complainant cannot be bound over on liLs own affidavit .. ... 34 THEFT. A Magistrate is not justified in entering a verdict of not guilty after hearing only the evidence of the complainant, if there be proof offered that the defendant sold complainant's property as his own and appro- priated the money ... ... ... ... 3 A finder of lost goods, who deals with them with a dishonest purpose and who sets up a lying story to account for his possession, is guilty of thelt ... .. ... ... ... ' ... 9 A person charged with theft cannot be convicted of receiving stolen property... ... ... ... ... ___ j.^ THOMBO EXTRACTS. Where a headman declines to grant a schedule, he should furnish his reasons in writing to the applicant ... ... ___ 7 THOKOUOIIPARES ORDINANCE.— (iVb. 10 0/ 1861.) A division officer cannot be tried for a fraudulent act, under the Tho- roughfares Ordinance, without a certificate from the Queen's Advo- cate ... ... ... __ j» The affirmation, in appeal, of a finding that a path is a private and not a public one, pronounced no bar to a ci^il suit to try the question 20 A division officer whose misconduct does not amount to fraud cannot beconvictedofabreachofsec. 3, cl. 46 ... iraua cannot INDEX. XI TIMBER ORDINANCE. • (No 24 of lh48.) Page. The burden of proof is always on the defendant to shew that the land on which the timber wa'? cut is not crown property ... 13, 19 A Magistrate has no power to order the seizure and sale of timber ... 31 TOLL,.— (Ordinance 14 o/1867.) A bicycle is not liable to payment of toll .. ... 4 A certificate from an '• overseer" is insufficient to entitle a party to claim exemption under the 7th clause ... ... ... 10 The full toll of six pence is leviable on every relieving- horse passing a toll-bar unattached to any vehicle ... . 15 It is illegal to receive toll at any place other than that fixed by procla- mation ... ... ... ... ... 20 TRESPASS.— (Ordinance 2 o/18.S5.) Damages should be assessed by the principal resident headman of the village, aided, if practicable, by a jury of three or more respectable persons... ... ... .. ... ... 13 GRENIER'S APPEAL PEPOPTS. VOLUME II FRO.M JANUARY TO DECEMBER 187.}. ERRATA. Part I. Part II. In C. R. Panadure, 14635, read " defendant" for " plaintiff" in the 7th line, and "for" instead of " a^ai«i^" in the 2nd line from bottom Page. In P. C, Galle, 82759, read " their employment" for "•whose employment" in the 14th line from bottom t2. In P. C. Matale, 3172, read " tivo hours" for " tied and hound" in the 6th line from top ... ... 33. Part III. In D. C. Kandy, 54761, read " I do not think" for " I do think" in the 7th line from bottom ... ... 102. In D. C. Galle, 32979, read "privity of contract" for "priority of contract" throughout the judg- ment of the Supreme Court ... ... ... ... 145. THE APPEAL REPORTS. 1873. PART I.— POLICE COURTS. January 3. Present Creasy, C. J. and Stewart, J. P. C. Kaluiara, 47352, The facts of the case were briefly as follows. The Government had, by a Proclamation dated the 28th January, 1869, * established at Bentota, in the Southern Province, a Police Force, the cost of which was met by levying an assessment tax from the inhabitants thereof. In 1871, the Government Agent, W.P., having discovered that the boundaries det the place being used for common or promiscuous gaming, is necessary under clause 19 as under clause 4, section 4. It may, however, be useful to repeat in this judgment, what has often been stated from the Bench of the Supreme Court, that, though generally necessary, it is not invariably neoessary,-to prove gambling more than one time. The gambling on the occasion of the seizure may have been such as of itself to prove that the place where it was going on was a place ' used tor the purpose of common or promiscuous gam- ing.' The instance has been more than once suggested, of a man coming to a race-course with a.booth and a roulette table, to which any body and every body on the course has free access and ready welcome, for the purpose of gambling. It is self-evident that this would be common and promiscuous gaming. The Police would do their duty by pouncing on the parties at once ; the gambling boolh- keeper would be liable to be convicted under the 19th clause, and the players would be liable under the 4th clause, section 4 of the Vagrant Ordinance. But the reason why I should in this case have reversed the judgment (had it not been for the jurisdiction difficulty) is, that the Police Magistrate, in giving his judgment, totally over- looked the evidence of Abraham Perera, which is clear and distinct to his having seen gambling on previous occasions, and which evidence was not in the least modified or impaired on cross-examination. If it appeared that the Police Magistrate had disbelieved this evidence, I should of course have not interfered with his decision on a matter of fact ; but where a Police Magistrate forms a judgment in manifest forgetfulness of a material part, and a not discredited part, of the evidence, an error in law is committed, which the Supreme Court may properly correct. There would be fewer faihu-es in prosecutions of tavern keepers, who encourage gambling, and of gamblers at taverns or in their appurtenances, if proceedings were more frequently taken under the 16th clause of the Vagrant Ordinance, which imposes a fine of two pounds for the first offence. In prosecutions under the 16th clause, it is enough to prove gambling on the occasion for which the prosecution is instituted. This Court has recently decided in Police Court, Kandy, No. 92987 (judgment given in Supreme Court on 14th February, 1873) that the 16th clause applies to the persons who are playing, betting and gaming, as well as to the keeper of the tavern and those acting ur>der him. The great thing to "iiard POLICE COCRTS. 25 againat, in enforcing the clauses against gambling in the Vagrant Ordinance, is the unfairness of using this Ordinance to punish a party of friends and acquaintances in humble life, who, for once in a way, may have a game, into which chance. enters, for moderate stakes, in a place not specially prohibited by the Ordinance. They are no more to be punished, under the Vagrant law, than a party of persons in higher station would be, who have a game at vingt-un or loo in the bungalow of one of the party. But gambling, such and under such circum- Btances as the Vagrant law clearly forbids, is a very serious offence both in itself and on account of the numerous crimes of which it is the cause. It is an offence lamentably common in the Island ; and when clear proof can be obtained, it ought to be promptly prosecuted and sharply corrected." Feb. 28. P. C. Avisawella, 16368. The complainant, on the first day this Contempt. case came on for trial (February 1 8,) stated that he was not ready, as his subpoenas had not issued. On an immediate enquiry by the Magistrate, it was found that the necessary stamps had not been sup- plied by the complainant, who, on being questioned, replied that he had meant to say he had no money to supply stamps. He was there- upon ordered to give bail, to appear two days after, to shew cause why he should not be punished for contempt in having endeavoured to mislead the Court. The complainant duly appeared on the 20th, and, although all his witnesses, save one, were in attendance, he declined to go to trial, alleging that he did not wish the case to be tried by the present Magistrate (Jumeaux) against whom he had recently given evidence before a Commission of Enquiry. The Magistrate allowed a mouth's time, to enable the complainant to apply to the Supreme Court for a transfer of his case to some other district, and proceeded to adjudicate on the charge for contempt. The complain- ant having denied that he made the statements on which the con- tempt was founded, the evidence of the Court Interpreter and of a Proctor (^Marshall) was received, confirming the record in the ease- book ; and he was found guilty and sentenced to fourteen days' im- prisonment. In appeal, (Kelly for appellantj the order was affirm- ed ; and per Cbeast, C. J. — " I think that in this case a contempt of Court was committed in the face of the Court, which the Police Magistrate had jurisdiction to punish by sentence of imprisonment." P. C. Galle, 83983. The plaint in this case was as follows: Police Orrti- •' that the defendants did, on the night of the 11th Februaiy, nance, at Galle esplanade, have or use music, so as to disturb the repose of inhabitants, in breach of the 90th clause of the Ordinance No. 16 of 1865." The Magistrate convicted the defendants and fined 26 PART I. — them each Rs. 10. In appeal, the judgment was set aside and charge dismissed ; and per Cebast, C. J. — " The plaint is informal, as not following the words of the Ordinance; but the serious objection is, that the evidence itself does not establish the commission of any offence within the 90th clause of the Ordinance No. 16 of 1865. It does not appear that the defendants ' had or used music calculated to frighten horses' (see the words of the clause) or that they 'made any noise in the night so as to disturb the I'epose of the inhabitants.' The averment that the disturbing noise was made ' in the night,' is very material in such a charge." March 7. Present CaEisY, 0. J. Receiving P. C. Panadure, 20573. The plaint was as follows: "that the stolep pro- defendant had on this day (20th February) two earrings, the proper- V^^^y- ty of the complainant, in his possession, knowing the same to be stolen." The defendant was acquitted, but it was ordered that the earrings be given over to complainant. In appeal, Morgan, for ap- pellant, contended that there was sufficient evidence in the case to fix the accused with guilty knowledge. The defendant had taken' the jewels, the very day after the theft, to a goldsmith (who was called as a witness) and had asked him to convert them into studs. This cir- cumstance, coupled with the fact that the defendant had not led any evidence to show how he had come by the earrings, ought to be taken as conclusive of his guilt. Per Ceeast, C. J. — Affirmed. There was no need on this plaint to prove that the defendant was the thief. He is not properly charged as receiver ; but I should not have set aside the proceedings on a mere technicality, if the Police Magistrate had convicted the defendant on this evidence. But the sufficiency of this evidence, in point of fact, was for the Police Magistrate's judgment, and it is not for me to interfere with it." March 14. Present Creasy, G. J. Toll. P- C. Tangalla, 34349. Defendant, who was a toll-keeper, was charged, under the 15 th clause of the Toll Ordinance, with having improperly demanded and received 12J cents, on account of an " un- loaded bullock which passed the toll -station of Sinimodera." The Magistrate convicted him, holding that the defendant "would have been justified in making the increased demand, had the animal been yoked to the cart and lent its strength to the draught." In appeal, it was urged by defendant, in his petition, that the established practice POLICE COURTS. 27 had been " that every addititional bull attached to a cart, whether it were properly yoked to the shaft or tied behind the cart or led be- hind it, was liable to the payment of 1 2 J^ cents." Per Creasj, C. J. — " Affirmed. The bullock was not ' additional ' to the pair drawing the cart which were paid for, inasmuch as it contributed no additional drawing power. There is not even satisfactory proof that it was in any way attached to the cajt." Mar. 14 P. C. Balepitimodara, 43719. This was a charge of assault. The New trial. Magistrate discharged the accused, holding that the evidence was not " satisfactory." In appeal, the judgment was set aside and case sent back for farther proceedings ; and per Cbeast, C. J, — " There is clear proof of an assault ; there are no material variances in the evi- dence given by the witnesses ; and nothing appears against their character. The Police Magistrate gives judgment in these words: 'The evidence is unsatisfactory, accused discharged.' This may merely mean that the Police Magistrate is not satisfied as to the ownership of the land, about which many questions have been asked. But that does not touch the question of assault, unless indeed the defendant proves clearly that the land and trees are his, and that after due request to the complainant not to trespass, he moved the complainant away, using no unnecessary violence. No evidence whatever on the part of the defendant has been taken. Unless he adduce such evidence as materially shakes the c/omplainant's case he ought to be convicted." P. C. Colombo, 6229. The defendants, who were described at the VagrantOr- trial as " hawkers," " out-door proctors," " brokers to proctors," etc. dinance. were found guilty, and fined Rs. 10 each, on the following plaint: " that the defendants did, on the 18th of February, 1873, at Colombo loaf about the Police Court premises, without any ostensible means of subsistence, in breach of clause 3, section 4 of Ordinance 4 of 1841. In appeal, (Brito for appellants,) per Cbeast, C. J. — "Set aside and proceedings declared null and void. The plaint does not, in terms of the Ordinance 4 of 1841, clause 3, section 4, charge the defendants with ' wandering abroad, or with lodging in any verandah &c.'; but it charges them with ' loafing about the Police Court pre- mises.' We consider this substitution of American slang for the English of the Ordinance to be extremely improper ; and the term 'loafing,' so far as we understand it, is by no means synonymous with either ' wandering abroad ' or ' lodging.' Moreover, the evidence in this case does not show that these defendants were persons ' wan- dering abroad, ' and it does not show that they were ' lodging ' in any ' verandah ' or other place mentioned in the Ordinance," Mae. 14 1 ^^ ''^^'^ "— CofEce P. C. Kandy, 93141. The defendants were convicted of theft and Btealing. ^f having received stolen property with guilty knowledge, and sen- tenced each to tliree months' hard labor. In appeal, (^Beven for appellants) the judgment was affirmed ; and per Creasy, C. J. — " The appellants in this case were charged with stealing a bag of coftee the property of H. Thompson. They were also charged with havincr received the same with guilty knowledge. The appeal is on the evi- dence ; and, unless it appears that there was no evidence at all, such as should have been left to the jury if the case had been tried before judge and jury, no error of law has been committed, and the eonvie- tion must be affirmed. The appellants were proved to have been taken after dark, on the road near the Peradeniya station, carrying this bug of cofltee and another bag. They told the person who took them that it was purchased cofiee. Afterwards, they told the Police Serjeant 'that they had purchased the cofiee from traders, and when asked to point out the sellers, they said they were not near at hand. They gave the names of some Moormen. They said that they got the coffee from Moormen but the bags from cartmen.' The witness adds, 'they told me this when I asked how they got the bags, seeing they were branded with names. I asked them to point out the cart- men irom whom they got the bags ; they said they would not.' This happened on the night of 10th January last. It was further proved by Mr. H. Thompson that, about the 22nd December, he had sent 47 bags of coffee to go by rail to Colombo, the coffee being plantation coffee like the coftee produced, and that the bag found on the prison- ers bore marks showing to whom it belonged, and also that.it formed part of that particular consignment. He stated, on cross-examination, that he had received a receipt from Colombo, stating that the consign- ment was correct, and that the bags in which the consignment went down had been returned in bulk. This is treated, in the petition of appeal, as absolute proof that all the coffee and all the bags sent by Mr. Thompson had got safe to Colotnbo. It is not to be considered as amounting to anything of the kind. In the first place, it is all hearsiay evidence ; and, even if that blot be over-looked, it amounts to nothing more than that no deficiency or substitution had been detect- ed, which is a very different thing from proof that all the very cofiee which Mr. Thompson consigned, and all the very bags which he sent, had come safely to the proper hands. As Mr. Thompson stated in his evidence, ' it is quite possible, that at the Railway store or at our store in Peradeniya, the coolies might have exchanged a ba<' ofgood coffee for rubbish or indifferent coffee.' There wa.s, therefore, in this raie not only evidence, but very strong evidence, such as would have been left to a jury." roolies. P. C. Matara. 7 1 470. The defendants (59 in number) were char-r- dZilaanL"'' "' ^ ^°""''' ■ " ^^) "^"t "'^ defendants Sid, on the Ist of February, POLICE COURTS. 29 y^j^j, 14 at the cofiee estate called Craven Estate, without reasonable cause, neglect and refuse to work on the said estate at the usual time, and wilfully disobey the ordersof complainant, their employer, and grossly neglect their duty, contrary to the 11 th clause of Ordinance 11 of I860 ; (2) that the defendants did, on the said 1st of February, at the place aforesaid, quit the service of the complainant, without leave or previous warning of one month, contrary to the 3rd and 11th clauses of the said Ordinance." The complainant, (^Lecocq) while being cross-examined, said, " the defendants have been paid their wages in part, not in full. They have received their rice weekly. The total amount due to them is Rs. 884. This is the balance due after debit- ing them with the rice given. They never asked me for their waj;es. At the request of the kangany, I did not pay them * * The amount of Rs. 884 is the, wages of the defendants for five months ; not their full wages, but part of their wages." The Magistrate delivered the following judgment: " The defendants left the service of the com- plainant on the 1st of February. The complainant states upon oath that no notice was given to him as required by the Ordinance. * * The evidence does not prove that any application was made for pay- ment of the wages due. The complainant supplied the defendants with rice weekly, and was ready at any time to pay them what was due, but retained the wages at the request of their kangany, and they tacitly acquiesced in this arrangement. I have no reason to doubt the truthfulness of complainant's statement. The defendants are found guilty, and sentenced to be imprisoned at hard labor for two months and to have their wages due for one month forfeited." Dias, for appellant, would not trouble the Court on the question of notice, the Magistrate having found as a matter of fact that no notice had been given. But he would draw attention to the passage in the petition of appeal, in which it was stated that one plaint had been submitted against all the accused, including some 30 men, 12 boys, and 1 women, (some with infants) with the view of preventing one accused frfim giving evidence for another. There was clearly a misjoinder of defendants ; and as each could only be held responsible for his or her individual acts, it was extremely irregular to have lump- ed them up together, to answer jointly to four distinct charges laid in one plaint. But apart from the legal objection, lie contended that the coolies were justified, under the 21st clause of the Ordinance, in leaving, as several months' wages were in arrear, and the only excuse for this pleaded by complainant was that the kangany had asked him not to pay. Ferdinands, for respondent. — The legal objection should have been taken before plea. In cases before the Supreme Court, objections of this nature were required to be taken before the jury were sworn. (Ordinance 12 of 1852, clau.se 19.) No substanlial injustice had been done, and the Court would not therefore intcrfci-o. If the Magistrate Mar. 14 30 PART I. had gone on with the trial, after the accused had intimated their wish to call some of the defendants as witnesses, the proceedings would have been irregular. This was a case in which the argumentum ab inconvenient! clearly applied. Per CuEASY, C. J.— "In this case 69 defendants have been charged and convicted together under the Labor Ordinance. The " first count of the plaint, charges them all with neglecting and refusing to work : the 2nd count charges them all with desertion. There are no other counts. The defendants pleaded not guilty. At the end of the complainant's case, but not before, their Proctor took an objection about misjoinder, not alleging that some of the defendants required the. evidence of others, but saying that 'there ought to be 59 plaints, one against each cooly.' Evidence was then called for the first defendant, about an alleged convei'sation with the complainant, during which the first defendant, a kangany, gave notice. It did not appear that any of the other defendants were present, or took part in this. The complainant had positively denied this notice. The Police Magistrate gave judgment in favor of the com- plainant, and convicted all the defendants, sentencing them all to the same imprisonment and stoppage of wages. The Police Magistrate's finding; against the 1st defendant's evidence, and in favor of the com- plainant's evidence about the notice, is of course conclusive. No other notice was attempted to be proved. There had been no demand of wages, so as to let in the defence of wages being in arrear ; and there is nothing in the case in favor of the defendants"(who have all ap- pealed) except the enormous and certainly inconvenient number of accused parties who have been lumped together in this single prosecu- tion. Our present Ordinances about Police Court procep.dings con- tain nothing, and the older Police Court Ordinances and Rules con- tained nothing, aboutjoinder and misjoinder'in Police Court prosecutions. If we are 1o follow the analogy of the English Law as to indictments, the present would beheld a clear case of misjoinder ; for here several persons are jointly charged with breach of duty, the duty as to each individual arising out of his own separate contract with the employer, ■ and not from anything agreed to by them jointly and in each other's behalf. See .Tervis' Archbold's Practice, IGth edition, p. 63, citini; 2 Hawk. c. 25 s. 89, and other authorities. See also the late Mr. Justice Talfourd's edition of Dickinson's Quarter Sessions, page 169. As to hnw advantage of this defect is to be takc-n, the English authorities . draw distinctions scarcely applicable here ; but they all a:;ree that, even where a number of offencps or of offenders are joined in one in- dictmi-nt, s(] us lo make the collective trial of them highly inconvenient and probably unfair, the Court has power to quash the jndictment. The objection of misjoinder taken in this case, though not very for- mally at the trial, and more fully in the petition of appeal, is, I believe, neiv in our Courts. It is also, f believe. „ novelty to find more than POLICE COURTS. 31 f., ,, i Mar. 1-1 silf a hundred accused persons put to trial together on one such barge. But it is certain that ever since Police Courts have existed I this Island, that is since 1 843, it has been usual to try several de- indants together for a joint offence, when they have, by the same ransaction and acting in concert with each other, broken duties of lie same kind, the breach of which is criminally punishable, even bough the duty as to each offender originated in something personal B himself. I feel bound to regard this coustant usage of 30 years, as stablishing a consuetudinary law allowing such joinder ; subject ne- ertheless to the power of the Court to interpose and to amend or ^ [uash the proceedings, when it is manifest from the inordinate lumber who are jointly accused, or from other circumstances, that to ry them in a heap will be inconvenient : and the inconvenience fhioh the law regards in these matters, is not as to the interest of the )rosecution in obtaining a wholesale conviction, or of the officials in retting the work soon over, but it is as to the interest which each jrisoner has in securing a full and careful investigation of the case, as it effects himself individually ; and in not being deprived of any probable peans of defending himself. It is stated in the 1st volume of Thbm- ion's Institutes, when speaking of Police Courts, that ' if an improper iiumber of persons are made defendants, in order to exclude them as (fitnesses, the Magistrate should exclude [that is strike out of the plaint] those so made, and allow them to be called as witnesses.' K reference is given to Beling and Vanderstraaten's Police Court ;ases, p. 126. In the present case, the petition of appeal urges that the defendants lost the advantage of each other's evidence. But no distinct application to strike out names from the plaint, so that spe- sified parties might give evidence for specified other accused, was made at the trial. Such application ought to be distinctly made and jught to be supported by affidavit. Still, the Police Magistrate's ittention was to some extent drawn to the objection of misjoinder ; and it is obvious that there must be always a great risk of shutting out evidence, where a multitude are put on their trial at once. There ire other incoriveniences in such a, practife. Here a whole gano- of Boolies is charged and tried together. According to the usual state of things, there must be among them married women whom the law ■Jl consider as acting under marital control, and who therefore ought to be acquitted. There would also be. children, who mi'ist naturally be taken to have trusted their parents about proper notice having been given, and who ought to be held innocent, as a matfer -)t common sense as well as a matter of law. But no discrimination Ifes been exercised ; nor can effective discrimination be possible, if fifties md sixties of coolies are thus to be tried in a. lump. I shall not de- Sne the exact number that may be joined in one charge. Whatev'er number might be fixed on, the old quibbUng objection of the Sorites would follow ; — the next highest number would be mentioned; aftd Mar. 19 32 PART 1. it would be asked, where was the magical diflereiice between that and the number permitted. But I will say that, in my opinion, more than ten such accused should seldom be tried together, and more than twenty sliould never be. I shall not set aside the proceedings as to the 1st defendant, the kangany. His case has been fully investiga- ted ; and it is clear that none of the other defendants had anything>to do with the notice alleg^ed by him. With regard to the others, I shall quash the proceedings. Judgment affirmed with respect to the 1st defendant. As to the others, the conviction is set aside, and the proceedings are delared null and void." Ordinance. March 1 9. Present Cbeast, C. J. nTd1n?nr» ^- ^- '^"'^«' 83608. The defendant, who had been legally di- vorced from his wife, was convicted, for the third time, of not main- taining his children by her, and sentenced, under the 5th clause of Ordinance 4 of 1841, to be imprisoned at hard labor for four months and to receive fifteen lashes on the buttocks. In appeal, (Dim, Grenier with him, for appellant) per Cbeasy, C. J. — " Case sent back for the Police Magistrate to re-consider the legality of the sentence, and to alter and amend the sentence at his discretion. The Police Magistrate has sentenced this man lo be imprisoned at hard labor for four months (which is lawful under the Vagrant Ordinance 4 of 1841, clause 5, and Ordinance 1 1 of 1868, clause 97 ;) and he has also sentenced the man to receive fifteen lashes on the buttocks. The usual way of flogging convicted prisoners in this Island, is by inflict- ing the lashes on the back ; and I strongly incline to think, that to inflict the lashes on the buttocks (especially on a full grown man) would be a cruel and unusual ' punishment,' such as our Courts, act- ing in the spirit enjoined by the Bill of Rights, never ouglit to order. If the Police Magistrate, on reflection, adheres to his sentence, I will not set it aside without first consulting my colleagues ; but I strongly advise him to think it carefully over ; and as the whole question of the punishment will be open to him on this review, it may be well for him to consider whether the demerits of the case may not be better dealt with by ordering the term of hard labor and imprisonment already imposed, and by adding to it not lashes, but a requirement to give security for good behaviour for a year, under clause 6 of the Vagrant Ordinance 4 ot 1841. Such are- cognizance will be forfeited, if the man fails to supply proper mainten- ance for the children during the yeax\" POLICK COURTS. 33 ( ^^^^6 March 26. Present Creasy, C. J. P. C. Galle, 84931. The defendant, who was a toll-keeper, was Toll, charged, under the 15th clause of Ordinance 14 of 1867, with having illegally demanded and received toll on a hackery from an Overseer of the Public Works Department. The Magistrate found the accused , not guilty in the following judgment : " A novel point has arisen in this case, which turns altogether on the construction to be placed on the 7th clause of the Toll Ordinance. By that clause ' all persons, vehicles, animals or boats employed in the construction or repair of any road, etc. shall pass without payment of toll on production of a cer- tificate of such employment from the officer superintending the work.' Here it is questioned whether the vehicle of the complainant, such vehicle being used for the convenience of the complainant and not in the construction of the road, is exempted. I am clear that it is not, unless a construction other than that the words naturally bear is to be placed on them. If complainant were passing a ferry, the certificate of employment produced by him would exempt him from the ferry toll ; but as he was not liable to toll for passing this road toll, no ex- emption is conferred on him. Turning then to the certificate filed, it is to be observed that that certificate covers D. C. Jayasurya, but does not cover the cart employed in conveying him. It cannot be said to be employed in construction, etc. when it simply conveys a workman and is neither going nor returning with materials. The vehicle then, not having been employed in the construction or repair of any road, is not exempt from tolls." In appeal, per Ceeast, C. J.— " Judgment of guilty to be entered and defendant to be sen- tenced to pay a fine of Es. 10. Persons employed in repairs of roads, etc. as mentioned in the 7th clause of the Ordinance, are exempted from the toll in respect of the animals and vehicles that take them to such work, though the animals and vehicles are not used in the work itself." P. C. Matale, 3 1 72. The defendant (Mr. Anton) was charged with Assault, having, at Appollagolla Estate, on the 21st February, assaulted and beaten the complainant and falsely imprisoned him. The following is a record of the proceedings at the trial: "Defendant pleads guilty of having pushed the complainant into his stable and kept him there tied and bound, because he would not hand over a gun belonging to Mr. Gray (who died on an estate of which Mr. Anton had charge.) The gun was afterwards handed over to the Police, the complainant promising to give it over to Mr. Anton if he would let him go. Mr. Anton had letters from Murray, Robertson and Co., asking him to look after Mr. Gray's property, and simply detained complainant with the object of getting hold of Mr. Gray's gun. I think the slight detention justifiable, and I cannot fine defendant. Doubtless if he ) 34 PART I. — Mar. 26 ,"- had not taken active measures, complainant would have appropriated the gun. The case is dismissed.' In appeal, (Beven for appellant) per Creasy, C. J. — " There are no grounds for criminal proceedings against the defendant." Toll. P. C. £^andt/, 93455. The judgment of the Magistrate explains the facts : "In this case the complainant, the proprietor of the Matale coach, charges the defendant with having, on the 29th January last, at Katugastota, demanded and received toll from a passenger vehicle, (the Matale coach) the said coach having previously paid toll on the morning of the same day on its way from Matale to Kandy, in breach of the 15th clause of the Ordinance No. 14 of 1867. In view of the fact that the coach had new passengers in it when it pass- ed the toll-bar the second time, the Court was inclined to think that the taking of the toll might be justified, as complainant benefited by such passengers. But on further consideration, it is felt this should not affect the question ; and seeing that the great object in all legis- lation of this kind is the levying of what is equivalent for the wear and tear of the road by the plying of carts or vehicles for the con- veyance of goods (which the coach in question is not) rendered des- tructive to roads by the heavy loads they generally carry, the Court cannot help doubting whether the toll was properly levied. By the 9th clause, it is only the vehicle that has a different load in it when it passes the toll bar a second time on the same day that is required to pay toll again, and by the 3rd clause a load is defined as including all description of goods, but not passengers who are not required to pay toll at all but go free. So that passengers could form no load, and therefore whether the coach had any passengers in it or not would be quite immaterial. Again, the express mention of a different load in the 9th clause and the non-allusion to passengers therein, is significant of the fact that passengers do not count. With regard to what Was elicited from complainant in his examination as to luggage and parcels of passengers, the Court would quote a passage from Mr. Justice Thomson's work, page 60. * * The above cfeai-ly shows that the carrying of luggage or parcels does not necessarily convert a vehicle for passengers (which the coach is) into a vehicle for goods ; ' nor does the circumstance that the coach is (in the words of the interpretation clause) 'capable of carrying goods and commonly used tor such purposes ' render it, as was contended for, liable to the impost. The defendant is found guilty and fined Ten Rupees." In appeal, the judgment was affirmed; and per Creasy, C. J. -"The Supreme Court a^ee" — -'■^ j.t-- -r* i- i.-- . . . _ ^ Ordiuance/ Court agrees with the Police Magistrate in the construction of" this n'Mlliai-irtrt " "\> r\PRIL 2 POLICE COURTS. April 2. Present Creast, 0. J. P. C. Colombo, 6790. The 1st defendant was charged with Theft. theft and the 2nd with having knowingly received the stolen property. The 1st pleaded guilty and was sentenced to three months' hard labor. The 2nd accused's house appeared to have been searched and some paddy and planks were found. He said he had got the planlts . from one Carolis Appoo, who on being called and examined by the Court denied having given them to him. No evidence, however, having been led to shew that the paddy and planks had been stolen from the alleged owner, the Magistrate acquitted the 2nd defendant in the following terms : "I cannot convict him before it is proved that a theft has been committed." In appeal, by the complainant, (Ferdinands for appellant,) per Cbeast C. J. — " Affirmed. The confession and the conviction of the thief are not legal evidence against the receiver. I cannot take it on myself to overrule the Police Magistrate's decision that the other evidence of theft was insufficient, though I might myself have come to a different conclusion." P. C. Matara, 71564. The defendant was charged, under the 75th clause of Ordinance 16 of 1865, with having assaulted, resisted and obstructed the complainants (-two Police constables) in the execution of their duty. The Magistrate (l''empler) found the de- fendant guilty and fined him Rs. 100. In appeal, {Dias for appel- lant,) the judgment of guilty was affirmed, but the fine reduced to Rs. 50.* Resisting the Police. P. C. Hambantota, 6292. The defendants were charged, under clause 5 of Ordinance 24 of 1848, with having felled seven Kohambe trees on Crown land, whereas the license authorized the felling of only five. The defence was ttiat the accused had acted under the direction of the holder of the license, (a priest) who however was not called but whose version of the story was deposed to by the Modliar who was the complainant. The Magistrate (Steele) found the de- fendants guilty and fined them Rs. 10 each. In appeal, (Grenier for appellant) per Creasy C. J. — " Set aside and proceedings declared null and void. The Ordinance 24 of 1848, clause 5, has been repealed . by Ordinance 4 of 1 864 ; and the combined effect of clause 2 o4 this last mentioned Ordinance and Ordinance 11 of 1868, clause 119, takes the case out of the jurisdiction of the Police Court, unless the • It was held in P. C. Nuwfira Eliya, 8475, that the words " Magis- terial Officer "in the 75th clause of the Police Ordinance appKed to a Police Magistrate. See Civ, Min., September 5th, 1872, Felling Timber. April 8 36 PAKT I. — Queeii's Advocate's certificate had been obtained. I should have probably sent back the case, and given an opportunity for these informalities to be set right, but I have grave doubts about the merits. Instead of calling the priest to prove that the defendants (his servants) did not fell extra trees by his authority, the prosecutor gave mere hearsay evidence on the subiect." April 8. Present Cbeast, C. J. Lnhor Or- P. C. Pusselawa, 9219. The defendant (a cangany) was charg- diiiivnce. ed, uiifler the 19th clause of Ordinance 11 of 1865, with having seducpd a cooly who was bound to work under the complainant. The gist of the complaint was that the cooly in question had been arrested at New Forest Estate, of which complainant (Armstrong) was the Superintendent, on a false charge preferred by defendant that the cooly had deserted from West Delta. The Magistrate (NevilU) held as follows : " The issuing of a warrant for a cooly, without any right whatever to cause him to be arrested, is not seduction in itself, strictly speaking ; but it is clearly an attempt to seduce, and renders the person applying for the warrant mala fide, in order under a simu- lanoe of law to misappropriate the services of a man bound to another employer, subject to the penalties prescribed. Defendant* is found guilty and fined Es. 30. Defeml ant to pay complainant's expenses at maximum rate in force." /n op/ieai, the judgment was set aside and a verdict of acquittal entered ; and per Cbeasy, C. J. — "Taking a man up under warrant without reasonable or probable cause is a highly culpa1)le proceeding, but it is neither an act of seduction nor an attempt to seduce." Eestorinc -f- ^- Matale, 27.50. The defendants were charged with having property. stolen some jeweh'y and clothes belonging to complainant and also with having received the same with guilty knowledge. The Magis- trate ( Zejw/iZe) entered a verdict of acquittal but, believing that the property in question belonged to complainant, ordered that it be restored to him. In appeal, per Creasy, C. J.—" The order to give the property to the complainant is declared null and void. It is only the Supreme Court that possesses such power in cases of acquittal. See Ordinance 1 1 of 1 868, clauses 49 and 50." Evidencfi. -^ • '- Maiurata, 7222. Pour defendants were charged with assault. The case went to trial on the 23rd December, 1872, ao-ainst ihe 1st. defendant who was found guilty. On the 25th of March 187.) the POLICE COUKTS. 37 4th defendant was brought up on a warrant, and the Magistrate (Hartshorne) proceeded to try him by reading over, in the presence of the witnesses, the evidence which had previously been recorded and giving him an opportunity of cross-examining them. In appeal, by the 4th accused, the judgment was set aside, and case sent back for evidence to be regularly taken and for a proper trial ; and per Ckeast C. J. — " The course taken here of reading over the old notes, instead of taking the evidence of the witne.-.ses ov''er again in a crimin- al trial, is precisely that which is strongly censured as improper and illegal in the very valuable judgment of the Privy Council in Keg. v. Bertrand, Moore's Privy Council Cases, N. S., iv, 380. It is to be remembered that the present is a case of actual trial, and not of preliminary proceedings before a Justice of the Peace to which these remarks would not apply," April 8 P. C. Maiara, 23126. This was an appeal against a conviction for Contempt. Per Creast, C. J. — "The order of committal against this appellant is set aside. This appellant, in giving his evidence, stated that he was not present when the cut was actually inflicted. For him, when recalled and asked who cut, to answer ' I do not know,' was in my opinion no contempt of Court, and it was no refusal to give evidence. The circumstance of another witness having stated that this appellant was present when the cut was given, ought not to be taken as conclusive against the appellant, so as to fix him with con- tempt of Court. I observe also that this appellant was not called on to show cause why he should not be committed, which always ought to be done, except in extreme cases such as an attempt to assault the Judge, or the like." Contempt, p. C. Oalle, 83608. The judgment in this case (which is reported Corporal in page 32) having been reconsidered by the Magisla-ate, the following punishment. order was recorded, under date the 29th March, 1873. " This case has been sent back to me ' to alter and amend the sentence ' at my discretion. The Hon'ble the Supreme Court is disposed to recom- mend me not to impose lashes at all, but to pursue the course pre- scribed in clause 6. That recommendation, emanating fi-om the highest judicial authority in the Island, would receive from me the utmost deference, if it were not that the 5th clause oi the Ordinance renders the convict liable to imprisonment ' and to corporal punish- ment, etc' 'And' being used and not 'or' renders the imposition of corporal punishment imperative. I must therefore sentence to corporal punishment, but, having a discretion as to the number of lashes, I shall only impose one lash. My Lords also incline to the opinion that a sentence imposing lashes on the buttocks, and not on the back, is illegal, as not being in the spirit enjoined by the Bill of April 22 38 PART I. — Rights. A sentence to a like effect has recently been afBrmed .(vide P. C. Gallo, No. 84277 ;) and in my experience as an executive officer, I have frequently known lashes inflicted on the buttochs, the object being, as it was the object of the Court in this case, not to place the scars where they were always visible. Acting, however, in strict obedience to the wishes of the Appellate Court, the sentence in this case will be modified and amended accordingly. The accused is sen- tenced tci be imprisoned at hard labor for four months, and to receive one lash on the back; and he is required, at the expiry of the aforesaid four months, to find security in the sum ofEs. 1500 for his good behaviour for one year. The record will now be forwarded, in accord- ance with the minute of the Executive Government as to corporal punishment, to His Excellency the Governor, with a recommendation that the corporal punishment imposed be remitted, in view of the opinion of the Hon'ble the Supreme Court." In appeal, ( Oreriier for apellant) the judgment was afltened, but the sentence was amended by omitting so much of it as ordered the defendant to receive one lash ; and per Creasy C. J. — "The Police Magistrate states that he ordered this lash under the impression that it was compulsory on him to inflict corporal punishment as well as imprisonment. But the Supreme Court does not think that such compulsion exists. The clause C5 of Ordinance 4 of T841) directs that a person convicted under it shall be liable to imprisonment at hard labor and to corporal punishment. The clause does not say positively that the convicted person ' shall suflfer imprisonment and shall sufier corppral punishment.' The Ordinance does use this posi- .tive language in clause 19, where it evidently meant to leave the Court no discretion as to inflicting both kinds of punishment. But in the clause which we are dealing with, the Ordinance merely says that the offender shall be liable to imprisonment and to corporal punishment. I think that the wo?d ' liable ' may be taken distribu- tively, and that it is in the discretion of the Court to enforce that liability as to one of the punishments or as to both of them. If the words had been ' imprisonment or corporal punishment,' the Court could not have inflicted both. But as the clause stands, the Court may inflict both or either. The judgment and sentence in this case are in all other respects correct, and are fiiUy warranted by the facts, and also by the law which is to be found in Ordinance 4 of 1841, clauses 3, 4, 5 and 6, and in Ordinance 11 of 1868, clauses 96 and 97." Shooting dogs. April 22. Present Creasy, C. J. /. C Matale, 29:'5. ' The defendant was charged with having unlawfully and maliciously shot and killed the complainant's dog, in appeared to breach of clause 1 9 of Ordinance 6 of 1846. The do. POLICE COURTS. 89 have been shot while trespassing in the garden of the defendant, On whose part, however, no malice was proved. The Magistrate (Temple), found the defendant guilty and fined him Rs. 3. In appeal, per Creasy, 0. J. — " Set aside. Express malice against the owner is not essential ; see clause 26. But I do not think this Ordinance w;is meant for the case of a man who shoots a pariah dog, which annoys him by infesting his premises. Observe also the 20th clause. No wanton cruelty was practised here." A.PB1L 22 P. C. Galle, 84167. This was a prosecution for a breach of Jurisdiction the 32nd clause of Ordinance 10 of 1844, for illegally keeping and possessing 2 gallons and 2 quarts of arrack. The defendant was found guilty and fined Ks. 100. In appeal, the judgment was set aside ; and per Creasy, 0. J. — " These proceedings are null and void, being beyond the Police Magistrate's jurisdiction." P. C. Puttalam, 6166. The charge was " that the defendant did. Pelting on the night of the 30th March, 1873, at Tuttalam, pelt stones at the complainant's house." The Magistrate (Power) rejected the plaint, holding that " if was not a common law offence, nor could it be brought under any Ordinance," and referred the complainant, if he had suf- fered any damage, to a civil action. In appeal, the judgment was affirmed; and per Creasy, C.J. — "If the defendant's conduct airounted to any criminal offence, it should have been properly stated in the plaint." stones. P. C. Colombo, 6429. The charge was that the defendants did, Toll, on the 28th day of February, 1873, pass the Hendala canal toll sta- tion with two loaded pada boats, without paying toll, in breach of clause 17 of Ordinance 14 of 1867. The 1st defendant was a con- tractor employed by the Public Works Provincial Assistant -to effect certain repairs to the retaining wall ef the Hendala canal, and was provided with a pass from Mr. Byrne to secure e^jemption from toll. He had entered into a sub-contract with the 2nd defendant who, in conveying materials for the work, claimed exemption from toll by virtue of the pass he had obtained from the contractor. The Magis- trate (Fisher) held that " despite the sub-contract, the materials being admittedly for the repairs of the canal, the accused have not been guilty of any improper and unauthorised conduct in passing the toll without payment ," A verdict of acquittal was thereupon recorded, and the complainant was condemned to pay the defendants Rs. 10 as reasonable expenses. In appeal (Kelly for appellantj per Crba.sy C. J. — " Affirmed. The decision of the Police Magistrate "was right, and it was reasonable to order the expenses of the defendants to be paid by the person who wrongfully summoned them." A ,„ I 40 PART I. April 22 ^ Resisting P. C. Randy, ^'ilTl. The charge was laid under the 60th therolicc. clause of Ordinance 10 of 1844, in that the defendant did obstruct, resist and molest complainant in the execution of his duty as a Police officer. The complainant stated in his evidence that he had not his imiform on when he went to seize the arrack in respect of which the resistance was made, and that he had concealed the fact that he was an officer of the Police. The Magistrate (Stewart) dismissed the case, holding that to conslitute resistance to a Police officer he should show himself as such at the time of resistance, and that, in this in- stance, the complainant should have disclosed his official character wlieii the seizure was made. In appeal, per Creasy, C. J. — " Affirm- ed. The complainant's own words, in which he says ' we purposely concealed the fact that we belonged to the Police,' make it impossible to convict the defendants of obstructing an officer of Police or Peace officer in the execution of a duty imposed on him by Ordinance 10 of 1844. The defendants could not possibly have the mens rea to commit this oiience, in the absence of all knowledge or means of knowlei!ge that the person whom he interfered with was a policeman in the execution of his duty. This is not to be regarded as a deci- sion that a policeman is not under the protection of clause 60 of the Ordinance unless he is in uniform. It would be enough if the defend- ant had notice, in any shape and by any means, of the official character and ftmotion of the person whom he obstructed. It would, for in- stance, be enough if the officer told him at the time who and what he (the officer) was and what he (the officer) was about to do. But here the ofKcer, according to his own statement, altogether concealed his official character." L.ihnr Or- -P- C. Haldummnlla, 2125. This was a charge, under the Labor (linance. Ordinance, against certain coolies for desertion. The Magistrate (Reid) held as follows : — "I have read over the evidence of the complainant to him, after taking it down, so that there may be no mistake in my notes, as the system described by him seems unusual and oppressive. 'J'he accused is charged with deserting from the service o^ Mr. Pineo on Berogalla Estate, without giving notice or without reasonaljle cause ; but the only witness called swears distinctly that Mr. Pineo does not accept notice from the coolies on this estate. This seems a very serious state of affairs and very unreasonable conduct, aa Mr.Pineo must have been aware of this when complainant (Davidson) swore the affidavit before himself, charging these coolies with this offence against himself, and complainant knowing he did Jiot accept notice. Mr.Pineo is not present. Again, in the absence of >.. written contract, notice should be accepted at any time. Under these circumstances, I think it must be a serious matter for coolies to obtin'n leave from t\\v Horo-iiiUa Estate. If this accused was in Mr.PiiU'u's si rvice, as stated in (lie plaint toOCE COURTS. 41 1 and in the affidavit, I cannot understand his not receiving notice from him. Clause 3 of Ordinance 1 1 of 1865 re(iuires notice from either party. I do not see sufficient ground for convicting accused of leaving the Estate without notice or reasonable cause, and he is therefore dis- charged. This accused and others were brought on a warrant fromNuw- ara Eliya. As I understand there are many deserters, and that there is difficulty in procuring coolies, I do not decree accused any compen- sation, though he is entitled to it. It might have a serious effect on others. Complainant, through his Proctor Mr. Keyt, gives notice of appeal, so the accused is detained in custody. Mr. Keyt, for com- plainant, submits that accused's statement ' I did leave the Estate to see my brother and was arrested coming back' is not taken down. It is quite true that accused made this statement, after the case for prosecution was closed, but I did not think it necessary to take it down." In appeal, {Brown for appellant) the judgment was affirmed : — and per Ckeast, C. J. — " This was a charge, under the Labour Ordi- nance 11 of 1865, against the defendant for leaving the service of R. E. Pineo, Esq. on Berogalla Coflee Estate, without notice or reasonable cause. I consider the Police Magistrate to have found that the fact of the defendant having left the Estate without notice has not been sufficiently proved : and I might at once affirm the judgment on this ground only, as being a decision on a question of fact, but I think it desirable to go more fully into the case, inasmuch as the Police Ma- gistrate's words as to finding on mere fact are not absolutely unam - biguous, and also because there are some strange circumstances in the case. I may remark also that the petition of appeal is drawn in an unusual style of vehemence, and it is my duty to notice and censure the grossly improper and illegal course which has been taken of publishing through the press, while the appeal was pending, a letter written in a tone of violent partisanship against the judgment of the Police Magistrate. The sole witness in the case was the com- plainant and appellant, Mr. Davidson, the Superintendent of the Estate. I will read his evidence. ' I am Superintendent of Berogalla Estate. The defendant was employed on that Estate as a cooly, and he left in February last. I pro- duce my Check Roll, from which it appears this man, Mardun, left in February. _ When a man wants to leave the Estnte, he must come himself and give his name at the beginning of a month, if he wants to l^ave at the end of the month, ^ye accept notice only at the end of the month. The coolies know this. If a cooly comes about the middle of a month, say the 15th of a month, and gives notice that he wants to leave within a month from that date, such notice is not accepted until tlie be(;inning of the Jbllowing month. This is the rule so lonir as I have been on that Estate. It was the rule made by Mr. Pine:° I think. It is 1 he rule Mr. Pineo insists on. If a coolv wants t'l leave the Berogalla Estate, he must give notice to me and" not to Mr. Pmeo. This man gave me no notice, or else it would be nut down in the Check Roll.' ' April •22 Cross-examined by Police Magistrate. — ' I can swear that accu- sed did not give me notice, I understand Tamil tolerably well. I have been in this covmtry over 15 months. Accused is in my service. I am in charge of Berogalla Estate and accused is a Berogalla cooly, so I thint he is in my service. I never pay the coolies on that Estate, Mr. Pineo pays them. I am under Mr. Pineo : he is my Peria Dora. I swore this aiiidavit before Mr. Pineo himself as .T. P., charging these coolies with leaving his service. Mr. Pineo pays his coolies once in two months or so. Mr. Pineo goes to the Estate, sometimes once a week, and sometimes once a month Mr. Pineo does not receive notice from the coolies oh the Estate. He tells them to come and tell me.' Cross-examined by accused. No question ; says ' I am willing to return to the Estate.' Complainant adds, ' This cooly met with an accident and was sent to Dr. Moss and paid and provided for until he got better, and as he is uagrateful I do not wish him to come back to the Estate but want him punished-' '' Mr.Davidson, in his appeal, asserts that the Police Magistrate was in error in making allusion to the 3rd clause of the Ordinance 11 of ] 865 in his judgment, ' for that had no bearing on the case.' On the contrary, the 3rd clause is all in all important for the correct decision of the case. The 3rd clause, especially when read in connexion with the 4th, shews clearly that a cooly can, at any time and on any day of his monthly service, give a valid notice of his intention to leave ' at the expiry of a month from the day of giving such notice.' If he does not leave before the end of that term of warning, he is not pun- ishable under the 11th seotion as a deserter. Mr. Davidson says that it is a rule on Berogalla Estate to accept no notice from coolies which is not given at the beginning of a month. He also, states that Mr. Pineo does not accept notices from coolies on this Estate, but that notice must be given to him, Mr. Davidson, the Superinten- dent,— although the prisoner is described in these proceedings as being in the service of Mr, Pineo, who pays the coolies, who comes to the Estate sometimes once a week, and sometimes once a month, and of whom Mr. Davidson says,' I am under Mr. Pineo, he is my Peria Dora.' The obvious answer to all this code of Berogalla rules.is, that Mr. Pineo and Mr. Davidson have no authority to alter the law of the land. A notice given to either of them by a cooly, at any period of the month, is a good notice, whether Mr. Pineo or Mr. Davidson think fit to receive such notice or not. The Police Magistrate had to deter- mine, not what Mr. Pineo or Mr. Davidson thought fit to accept, but whether it was sufliciently proved before him that the~cooly went away without having given a mouth's notice to either Mr. Pineo or Mr. Davidson. In dcf.mlt of Mr. Pineo appeiiring to give evi-, dence on the subject, though Mr. Pineo was evidently in the neigh- bourhood, and though he was evidently aware of the proceedings in- asmuch as he had (very improperly) signed the warrant for his own servant's, this cooly's, apprehension, the Police Magistrate was quite right in holding the evidence insufficient. The complainant, in his peti- POTJCF. COURTS. 43 I ^^^^^ 22 tion of appeal, endeavoura to make up for the defects in the e\ idenoe against the prisoner by supposed admissions of the prisoner during trial. During the proceedings, the prisoner said ' I am willing to re- turn to the Estate.' The appellant somewhat oddly asserts that this statement was a taoit admission of guilt. I do not think that it was anything of the kind. Finally, the appellant asserts that ' when de- fendant was called on to make a statement, he admitted that he left the Estate without notice or reasonable cause." To support this as- sertion nothing appears on the record, except an entry that the accus- ed made this statement ' I did leave the Estate to see my brother and was arrested coming back.' There is not a syllable here about leaving without notice. The appellant concludes his petition with remarks about the importance of upholding the Laborers' Ordinance. Unquestionably it ought to be upheld. It is a very salutary enact- ment, and was framed with great care and consideration. But it is a very different matter to uphold alterations and additions which indivi- dual proprietors may think fit to introduce for their own convenience. This it is which the Police Magistrate has refused to do in the pre- sent case, and in so refiising he has acted quite rightly." P. C. Tangalla, 34965. The defendant was charged with hav- Toll, ing evaded payment of toll, by driving in a hackery from Tangalla to Sinimodera, crossing the toll-station at the latter place on foot, • and using another hackery on the other side. In appeal, against a conviction, Orenier for appellant quoted the judgment of the Appel- late Courtin P. C. Balepitimodera, 28,118,'* and invited attention to the evidence (not expressly disbelieved by the Magistrate) of one of thewitnesses for the defence, who proved that he had offered a seat in his own hackery to the accused, who was jom-neying homewards on foot, and that the offer had been accepted. Per Creasy C. J. — " Set aside. The Police Magistrate does not state that he disbelieves Dines Hamy's evidence, which completely negatives the idea of au intent to evade the toll." "' Per Curiam — " The defenchmt ia charged with evading the pay- ment of Toll, in breach of the I7th clause of the Ordinance No. 22 of 1861. The evidence shows that the defendant, who is a clerk in the Balle- pitty Court, drove his Hackery up to about 10 or 15 fathoms from the toll- bar; that there he got down, without paying toll, walked over the bridge to the Court House which is close by ; and in the afternoon that he re-cross- ed the bridge to the spot where he had left his vehicle and drove Borne. The Magistrate was of opinion that the charge was not maintainable, and we think the dismissal correct. The tolls imposed by the Ordinance are expressly declared , by the 4th clause, ' to be levied in respect of the roads, bridges, ferries and canals specified in the schedules A, B, C and D,' The bridge at Ballepitty is included in schedule B..But it is admitted that the vehicle passed neither bridge nor toll bar, The first portion of the 17th clause is inapplicable. The latter part, within the operation of which it is sought to bring this charge, enacts ' that if any person shall do any other act whatsoever in order to evado the payment ot any toll, Falseand fri- P. 0. Oalle,%i\\H. Held that a Magistrate was competent to Tolous charge, p^njgjj ^ complainant at the close of the trial for having brought a false and frivolous charge, and was not bound to adjourn the adju'lication unless special application for time were made. The finding and sen- tence Y^ould be sufficiently regular, if the party were formally called upon to shew cause. May 2. Present Stewart, J. P. C. Navalapitia, 17943. In this case a Toll Renter had been convicted of levying toll on certain Carts conveying muriate of po- tash. In appeal {Orenier tor appellant) the Magistrate's judgment was affirmed ; and per Stewart, J. — " The muriate of potash was being conveyed to be used as, manure for land, and as such is exempt from toll. This substance is obtained from burning vegetables, and though it contains saline propei'ties, cannot be deemed salt in the popular and general signification of that word within the meaning of the Ordinance." Appeal re- P. C. Galle, 8.^)630. The appeal lodged in this case, was rejected jected. in the following terms. " There is no provision in the Rules for the Police Courts for allowing an appeal which has been lodged after the time prescribed. There is, besides, in the present case a delay ■ of more than six weeks." MayQ. Present Stewart, J. Labor Or- P. C. Panwilla, 14322. The defendants were charged with having dinance. wilfully and knowingly seduced from the service of complainant (JMacartney) certain coolies who were bound by contract to serve him. In appeal against a conviction, (Brown for appellants) Stewart, J. delivered the following judgment which folly sets out the facts of the case. — "Affirmed. The defendants are charged with seducing from the service of the complainant certain labourers, who were bound by contract to serve the complainant, in breach of the 1 9th clause of the Ordinance No. 11 of 1865. According to the evidence, the labourers and whereby the same shall be evaded, shall be gnilty of an offence.' The above provision is similar to that in sec, -11 of 3 Geo 4, c. 1211. In the Stntute, however, in addition ti the reslrictions contained in the pri'ceding portion of the 17th clause, there is the following passage, ' or shall leave upon the said road any horse, cattle, beast or carriage whatsoever, by reason whereof the payment of any tolls or duties shall be avoided or les- sened' - words not occurring in our Ordinance. Further, the i 9 th clause prohibits goods brought upon anj- animal or vehicle to any bridge, &c., to be transferred from one side thereof to the opposite. There is no pro- vision, however, affecting such an act as the one now complained of, and consequently it may fairly be held that the present is a case in Which the • rule of construction, expressio unius est exclusio alterius, should be allowed to prevail.'" Civ. Min., April 4, 1865. POLICE CODRTS. 45 ] j^j^^ jg referred to had not actually entered the service of the complainant but were on their way to his estate from Kornegalle, when they were met by the defendants (who were at the time employed on tlie com- plainant's estate) a short distance from their destination and induced by them, on false pretences, to take service on another estate in the neighbourhood. It appears that on the 29th January two men, Sangalingem and Caderwalo, came to the complainant to ' offer labour,' i e. they offered to bring coolies to the complainant's estate, and asked the complainant an advance of Rs. 120 for thai; purpose. A cheque for that amount was given by the complainant, and a receipt granted by the men in exchange. But shortly after, it occurring to the complainant that there might be some difficulty about his event- ually getting the coolies, the cheque was returned to him, he however being allowed to retain the receipt. The arrangement did not end here, the Kanacapulle (2nd witness) being directed by the complainant to pay the two menRs. 30, the complainant promising to return the money after- wards. It is proved that this money was paid to the two men through the 3rd defendant. Accordingly, the former proceeded to Kornegalle, obtained the coolies, gave them advances out of the Rs. 30, engaginor them to go to LeangoUa, complainant's estate. On the above facts, it has been urged, on behalf of the appellants, that there was no binding agreement between the coolies and the complainant, that the return of the cheque shows that the complainant withdrew from the agreement, and further, even allowing that he still continued a party to it, that the contract was incomplete being only executory. It appears to the Supreme Court that, though the complainant received back the cheque, he did so merely in prudence, and that this does not materially a.lter the aspect of the case. That there could have been no intention to abandon the agreement is evidenced, not only by the complainant's being allowed by the two men to retain their receipt, but also by Rs. 30 having been advanced to them on complainant's account and for the same purpose, payments out of which money are proved to have been made to the coolies for their expenses to carry them to LeangoUa. The Ordinance contemplates two kinds of contracts— a verbal contract of service under the 3rd clause, and, secondly, written contracts under the 7th and 8th clauses. There was no written contract in the case ; but, as a verbal contract entered into by the coolies with the complainant's agents, it was a good con- tract for a monthly service within the meaning of the 3rd clause, rendering the coolies who entered into it bound to serve the com- plainant." May 16. Present Stewart, .J. P. C. Batticaloa, 5822. The defendant (who had previously been Arrnck acquitted in case No. 5554, reported in page 21) was c-liarged " with Oiilinance. Laving unlawfully drawn toddy , without having first olitained the permit May 16 46 PART I. — required by law, which is an oftence punishable by clauses 39 and 40 of Ordinance No. 1 of 1 844." The Magistrate ( WortUngton) held a? follows: "The Court cannot hold that the license referred to (fi-om the tavern-keeper) was sufficient, since the grantor was neither the Go- vernment Agent, nor ' some person authorized in writing under his hand to grant such pei'mit,' nor • the licensed retail dealer in toddy for the (whole) district '; and, therefore, since there is trustworthy evidence to prove the drawing of toddy by defendant, a conviction must follow. But on considering what punishment is to be imposed, the Court is also bound to take into account ■ the fact, also brought out to its satisfaction, viz., ttat practically the local retailers of arrack and toddy have been recognized, for several years past at least, as the persons entitled to issue licenses tor drawing toddy, and that defend- ant evidently acted ibonii-fide considering he had a right to draw under such a license. Defendant found guilty and fined R 1. In appeal, per Stewart, J.—-' Set aside. The 'licensed retail dealer in toddy for the district within with such palm shall be situated,' referred to in the 39th section of the Ordinance 10 of 1844, must, under the cir- cumstances, be taken to be the person licensed to retail toddy under the 38th section. Unless this is the retail dealer meant, there is no other person connected with the practical working of the Ordi- nance to whom the above quoted words would apply. The license produced, marked C, is in the form prescribed by the 38th section;, and it would also appear that the trees from which toddy was drawn are situated in the district and village where the witness Gabriel SantiagopuUe has a license to keep a tavern as therein stated and to retail toddy. The permit D, under which the defendant drew the toddy, is admitted to have been issued by the licensed retail dealer Gabriel SantiagopuUe." False P- C. Oalle, 84032. The defendant was charged with having information, given false information to a Justice of the Peace, with intent to support a false accusation. Defendant had instituted a case 15475, J. P. Galle, against the complainant and others, for cattle stealing, but had subsequently withdrawn it. He was convicted. In appeal, Dias, for appellant, submitted that the defendant's knowledge of the falsity of the accusation should have been clearly shewn, and that complainsint should not have merely relied on the fact of the with- drawal as i)r(]ving such knowledge. Per Stewart, J. — "Affirmed." Counter cases. P- C Panadiire, 20919. The defendant was charged with assault. The iMagistratp ( Morgan)\\c\A as follows : " This is a case of assault brought against the Police Serjeant, who, complainant alleges, pushed him first into the Police Station and then into the room. On reference to thi' casi. No. -20918 of this Court, it will be seen why complainant was pushed into tlip .Station house. Defendant is acquitted and POLICE COURTS. ^'7 ) j^,j^Y 23 discharged." Ferdinands, for appellant, submitted that the efiect ofthe proceedings in the Police Court had been to give the accused the advantage of his own examination on oath, and that it was irregular to have put in evidence under the present charge the depositions in the counter case.* But Stewart, J. affirmed the judgment, remarking that the complainant could not raise such an objection as, when he was defendant in the counter case, he had full opportunity of cross- examining his adversary's witnesses. P. C. Tangalla, 352.39. The question in this case was whether. Toll, under the Toll Ordinance of 1867, bullocks which were lied behind a cart could be charged for as " additional oxen attached thereto." The Magistrate (Campbell) held as follows: '-'The accused (toll- renter) is adjudged guilty and fined Rs. 50. It ii clear that the toll- keeper was wrong in making the increased demand, because although it is admitted that the animals were tied behmd they were not ad- ditional and did not contribute to the drawing power through the toll. The defendant could only have been justified in maliing the demand, had the four bullocks been yoked to the cart at theytime of passing through." /k a/ipeaZ, ( Grereier for appellant) per Stewaet, J. -" Afiirmed, for the reasons given by the Magistrate." P. C. Batticaloa, 58fi6. The defendant was charged under Ordin- Arrack ances 10 of 1844 and 8 of 1869 with having (1) sold arrack without a Ordinance, license and (2) sold less than one gallon of arrack for Rs. 1,34, con- trary to the tenor ofthe license held by two retail-dealers, who were his employers. The license itself was not produced at the trial, but the Magistrate held that the evidence established that the quantity sold was short by one gill, and sentenced the accused to three months' hard labor. In appeal, (Bias and Grenier for appellant, Clarence for i-espondent,) the judgmeut was set aside and case remanded for further hearing ; and per STiiWABT, J.— "There has been no distinct findino' upon either of the two counts in the plaint, though it %ould appear fi-om the terms of the jiidgment that the intention ot the Ma- gistrate was to find the defendant guilty upon the second count. To sustain, however, a conviction upon the second count, viz : that the defendant sold arrack contrary to the tenor of his license, the license itself should have been produced or its absence duly account- ed for." May 23. Present Gbeast, C. J. and Stewabt, J. P. C, Newera Eliya, S825. The plaint was " that the defendants Commutation did not pay poll-tax for the year 1872, in breach of the 63rd clause Rate, ofthe Ordinance No. 10 of 1861." The Magistrate (flartsAorne) * A c unter charge by defendant against complainant for being drunk and disorderly. May 30 48 PART I. — found the accused guilty and sentenced them to six days' imprisonment at hard labor. In appeal, {Orenier for appellant) the conviction was set aside and case dismissed ; and per Creasy, C. J. — " The plaint does not set out any offence under the 63rd or 64th clause of the Ordinance referred to, nor is there evidence of any oftence." Miiinteiiance. P. C. Battiealoa, 5768. The defendant was charged with not maintaining his family. He pleaded a divorce, under the iMohame- (lan law, in respect of his alleged liability to support his wife, and led evidence ; but the Magistrate ( Worthmgton) held the plea not proved and convicted him. In appeal [Orenier for appellant) per Stkwaiit, J. — "The judgment of the 31st day of March, 1873, is set aside, and altered as to so much thereof as finds the defen- dant guilty of not maintaining the complainant. The sentence is affirmed as regards the charge against the defendant for not maintaining the child. The appeal is only as regards the convic- tion of the defendant for not maintaining. the complainant. The Po- lice Magistrate seems to have considered (hat the alleged divorce was not made out, inasmuch as there was 'an absence of proof of either of the delivery of the 3 to Hocks to complainant, as required by the Kegulation of 1806, clause 87, or of the knowledge of complainant that the 3 toUocks had been written.' The evidence establishes that 3 tollocks were written and issued at the intervals required by the Mo- hamedan Code. One of these notices is not forthcoming, but this is immaterial, there being proof of that notice as well as of its subsequent . loss. Though there was no actual delivery of the tollocks into the hands of the complainant, the evidence shew_s tiiat the Priest went to the complainant's house, and that when he began to read out the do- cument the complainant ran away. It is manifest that she was awai-e of the proceedings that were being taken, and that it was owing to herself that the Priest did not more formally communicate the divorce to Ler. Another witness says on this point that the complainant ' concealed herself.' The Magistrate remarks ' it may be true, doubtless is so, that the complainant may have become aware of the divorce.' Under the circumstances appearing in the evidence, the Supreme Court thinks the complainant was legally divorced by the defendant." May 30. Present Creasy, C. J. and Stewart, J. Fine reduced. P- ^- Oalle, 84654. The defendant was charged with having resist, d and obstructed the complainant (the Deputy Fiscal) in the execution of Lis duty, in broach of clause 239 of Ordinance 4 of 1867. The MaLristiate (Zee) held the defendant guilty merely of assault and fined him Rs. 10. In appeal, ^er Crkasy, C. J. — " Affirmed as to judgment of guilty of assault but fine reduced to 50 cents. The Police jNfagistrate seems tn us to have rightly held both that the com- 1 May 30 POLICE COUUTs 49 plainant was not acting in the exeoution of his duty, and that there was an assault, inasmuch- as the defendant was clearly not acting in defence of his property. But the assault is a mere nominal one, and the fine ought therefore to be nominal and not substantial." P. C. Galle, 84824. The plaint was as follows : " that the defend- Prisons ants, being officers of the Galle prison, did, on the 13 th IMay, fail to Oidiuance. exercise a proper vigilance over the prisoners committed to their charge, in bleach of Ordinance 18 of 1844, clause 20 ; and that the defendants, being officers employed as 'aforesaid, did wilfully neglect the rules of such prison in that they did absent themselves from a working party of prisoners entrusted to them for custody, on the day aforesaid, in breach of the clause of the Ordinance aforesaid." The defendants were found guilty, under the first count, and sentenced each to one month's hard labor. In appeal, the judgment was affirm- ed ; and per Stewart, J. — " Though there were other peons, the defendants had no right to leave without permission duly obtained." P. C. Kalutara, 48342. A Mohamedan husband was charged with Appeal post- not maintaining his wife, a Singhalese woman. The defendant denied poiied on the alleged marriage ; but he was convicted and sentenced to fourteen "ttiQavits. days' hard labor. In appeal, Kelly, {Grenier with him,) for appellant, submitted two affidavits, — one from the defendant impugning the Kadutam produced at the trial as a forged document, and another from his Proctor {HepponstalV) to the effect that the Jlagistrate had, subsequent to his judgment, declined to entertain a charge of forgery preferred by the defendant ; that he (the Proctor) had examined the defendant's witnesses ; and that, to the best of his knowledge and be- lief, his client had a good case. On these affidavits, Counsel requested that the Appellate Court might not deal with the finding until the re- sult of the proposed J. P. investigation was known. Ferdinands, for respondent, urged that the course suggested was unusual ; and that, if the defendant had really been taken by surprise, the Supreme Court might perhaps have been induced to give him a further hearing. But the record shewed that the case had been once postponed, in conse- quence of the non-production of the Kadutam in question, and that a warrant had issued to the priest in charge of the document. [The evidence being legally sufficient, if true, I doubt whether the Supreme Court has the' power to remand the case. — C. J.] To allow the de- fendant to institute proceedings for forgery against complainant and her witnesses, would be giving a convicted defendant an advantao-e over a complainant who had proved her case. Per CKEAsr, C. J. Let the case stand over for three weeks. The appellant should either prove the charge of forgery or stand his trial before the Supreme Court for perjury. In the event of his proving his case, we shall affirm the Magistrate's finding on facts, as we are bound to do, but the Governor may be induced to grant a fi.-ee pardon. June 17. j °^ ^^^'^ '"^ June 6. Present Greasy, C. J. and StewaeT, J, Cattle !'■ C. Panwilla, 14330. This was a charge of cattle trespass under trespass. the 3rd clause of Ordinance No. 2 of 1835, the complainant claiming damages to the amount of Rs. 100. The Magistrate, {Smart) after hearing the evidence for the prosecution, struck off the case, holding that he had no jurisdiction. In appeal, (Kelly for appellant) the judgment was set aside, and defendant adjudged to pay complainant Es. 95 as damages; and per Stewart, J. — "The Ordinance No. 5 of 1849 authorized Police Courts to award any damages and impose any fines as fully and efiectually to all intents and purposes as the District Courts could or might have had ; and this Ordinance further enacts that ' the several District Courts shall cease to have and exercise the powers, jurisdiction and authority vested in them by the said Ordinance No. 2 of 1S35.' The Pohoe Court has therefore jurisdiction to deal with the case. The ownership of the goats is established by the complainant, as well as by the Aratchy who proves that the defendant claimed the goats. The Es.* 5 paid to Mr. Wylie is deducted from the Rs. 100 claimed as damages." Gambling. P. C.Kaluiara, iSeSi. The plaint, as filed on the 28th of Febru- ary, 1872, charged the defendant with having gambled on the 20th November, 1872, in breach of the Vagrant Ordinance. It appeared that a previous case had been instituted in time against the defendant, but that the prosecution had lapsed for some reason or another ; and this circumstance had apparently been considered by the complainant as having interrupted Prescription, which was pleaded by the accused for the first time in his petition of appeal. In appeal, against a con- viction, thejudgment of the Magistrate (Jayetilehe) was set aside, and per Creasy, C. J. — " This plaintis bad on the face of it as not instituted in proper time." June l7. Present Creasy, C, J. and Stewart, J. Theft. P- C. Galle, 85020. The defendant was. charged with having stolen a sum of Es. 25, from the drawer of the Head Clerk's table at the Galle Police Station. It was proved that the accused was an office orderly ; that he had access to the Clerk's room ; and that, after the detection of the theft, a key was found in his haversack which opened and shut the drawer in question. The Magistrate {Lee) held as fol- lows : " the possession of the key in my opinion fixes the guilt of the accused." In appeal, {Grenier for appellant) per Creasy, C. J.— " Set aside and judgment of not guilty to be entered. There is such a want of evidence in this case, that a judge would not have left it to a jury ; and it is therefore competent to the Supreme Court to reverse the Police Magistrate's finding," POLICE CODETS, 51 Junk -27 Jnne 24. < Present Creast, C. J. and Stewart, J. P. C. Colombo, 7263. The defendant was charged with assault. Bail for good 'i'he Magistrate (Fisher) held as follows. " The accused is acquitted, b^hayiour. I disbelieve the case. " Both parties to give bail, in lis. 50 each, to be ot good behaviour for three months." In appeal, by the complain- ant, the order as to bail was set aside ; and per (jREASif, C. J. — " The lo4th clause of Orduiance 11 of lb6!J gives Police Magistrates a discretionary power to bind over to keep the peace ' whei'e he shall he satistiud that the ends of justice will be suiHciently met ' by such a course. That is to say, he may, if he thinks fit, do so in causes where he finds that no law has been broken, or that there is reason to aj)prehend a breach ot the law ; and he should find expressly that such is the case before he proceeds to bind over. But in a matter like the present, where he adjudicates that he wholly disbelieves the case brought before him, and does not find that there are circum- stances which make it proper to bind the parties or either of them over to keep the pt- ace, he has no authority in his capacity of Police Magistrate to do so." June 27. Present Creasy, (J. J. and Stewart, J, p. C. Kalutara, .48342. On this case (which is reported in page Mainten.itict 49) being called this day, the Chief Justice delivered the following judgment. " Affirmed. This case, as it came before us, was simply an appeal as to facts, and in the regular course the judgment of the Police Magistrate would at once have been affirmed by us, as being one which we have no authority to sot aside. But the facts were peculiar. The Police Magistrate had sentenced the appellant to im- prisonment with hard labor for 14 days. The defendant had been allowed to stand out on bail pending [he appeal, and consequently the execution of the sentence was deferred until we should have affirmed it. When the case came before us, the appellant put in a positive affidavit of his own, supported by another affidavit, that a document, pn which the case against him was to a great extent based, was a forgery, and that the case against him was got up by means of con- spiracy and forgery. He prayed us to pause, so as to give him time to institute criminal proceedings against his guilty accusers. Had the sentence been one of fine, we should have proceeded to affirm the conviction ; inasmuch as compensation can be obtained for having had to pay a fine wrongfully. But the actual undergoing of imprison- ment and hard labor may be, especially to a man in the defendant's rank of life, a permanent stigma and injury, such as no money pay- ment can compensate a man for, in the event of his innocence beinc demonstrated by his obtaining a conviction of his accusers for forgery July 1 52 PART I. — perjury and conspiracy. We therefore directed this Police Court appeal to stand over, so as to give the appellant an opportunity of bringing before a Justice of the Peace his charges against his accu- sers, so as to put them on trial if the Justice of the Peace or the Queen's Advocate should think it fitting. His charge has been pressed, — his witnesses have been heard before a Justice of the Peace,- and the proceedings have been laid before the Crown Officers. It is now reported officially to us that the Justice of the Peace disbelieves the appellant and his witnesses, and hfis refused to commit the parties charged by the appellant ; and also that the Queen's Advocate sees no cause to interfere with the decision at which the Justice of the Peace has arrived. Under these circumstances, it is our bounden duty to dispose at once of the appeal, which we do by affirming the judgment of the Police Magistrate as based on full legal evidence." July 1. Present Creasy, C, J. and Stewart, J. Gambling. P. C. Panadure, ^W^l. The defendant was charged, under the 19th clause of Ordinance No. 4 of 1841, with keeping a house tor the purpose of common and promiscuous gaming. The Magistrate (^Morgan,) who had the authority of the Queen's Advocate to try the case, found the defendant guilty and sentenced him to six weeks' im- prisonment at hard labor. In appeal, by complainant, Dias, for appellant, contended that the Magistrate wa-s bound to inflict the full penalty prescribed for the oiience, as had been held in P. C. Colombo, 5400, Grenier's Reports, 1873, p. 23. Per Creasy, C. J.—" Affirmed. Clause 99 of Ordinance 11 of 1868 is to be read in conjunction with clause 95." Labor P- C- Kandy, 94293. The defendant was charged, under clause Ordinance. 11 of Ordinance 11 of 1865, with having left the service of the com- plainant, to whom he was bound under a written contract stipulating service for twelve months. The Magistrate {Stewart) held as follows: " By the Ordinance every contract or engagement, when the service is for a longer period than one month, should not only be in writing but should also be sigiied before a Police Magisti-ate or Justice of the Peace. This contract was not so signed. Defendant is found not guilty." In appeal, per Creasy, C. J. — " Affirmed. The 7th clause of the Ordinance distinctly exempts such a servant from the opera- tion of the 1 1th clause." Labor P. C. Matara, 72024. The plaint was " that the said defendant Ordinance, did, on the 7th June, at EUewelle within the jurisdiction of this Court, without any reasonable cause, grossly neglect his duty and quit the service of the complainant without leave, in breach of the 1 1th clause POLICE COURTS. 53 ) j^^^ J of Ordinance 11 of 1865." The Magistrate (Jumeaux) found the accused guilty and sentenced him to one month's hard labor. In appeal, per Creasy, C. J. — "Judgment set aside and judgment of not guilty to be entered. The real charge intended in this case is a charge of a servant under the Laborer's Ordinance quitting service without leave or reasonable cause, and without a proper term of notice to quit hav- ing expired. The plaint does not state the defendant to have been a servant ; and it says nothing about the want of notice to quit. If the evidence had shown a clear case against the defendant on the merits, we would not have reversed the judgment for errors of law which might have been amended. But to our mind, the evidence shows a case of great suspicion and hardship, in which we shall not interpose to cure the complainant's legal blunders. It is desirable for us to explain that we cannot admit the objection founded on the defendant's minority,*' though the fact of his being a mere boy is to be considered in other matters, Nothwithstanding the vague assertions of two of the witnesses that the defendant knew of the bargain be- tween the complainant and the old cangauy, the distinct facts seem to show at least a strong probability that the old cangauy sold the boy's services to the complainant for the benefit of the old cangany and the complainant only. The complainant's claim to detain the boy on account of the money paid to the old cangany is monstrous. We consider that we are at fuU liberty to review the facts of the case, in order- to see if it is one in which we should have sanctioned an amendment of the plaint. We should not have sanctioned an amend- ment in the present case, and without an amendment the plaint does not warrant the judgment," P. C. Colombo, 4S61 . This was a charge, under the 166th clause False of Ordinance 1 1 of 186b, of having given false information to a Jus- information, tice of the Peace. The sole evidence in the case was that of the complainants. The Magistrate (Fisher) acquitted the defendant in the following terms : " I am inclined to believe that the information given to the Justice of the Peace was false, but in the absence of any corroborative evidence of the statements of the complainants I acquit the accused." In appeal, (Orenier for appellant) per Cebast, C. J. — " Set aside and case sent back for further consideration and also for further hearing and evidence, if they are thought by the Police Ma- gistrate to be desirable. The PoHce Magistrate seems to think that evidence corroborative of the complainants' is necessary m point of law- No such legal necessity for it exists, but the absence of it may be a fair matter for the Police Magistrate to bear in mind when he is con- sidering the case as a question of tact. It seems doubtful from the record whether the defence has been gone into. If this has not been * It was contended in the Pourt below that the accused was a mere boy and as such could not enter into, a contract under the Labor Urdinance. Jri.Y 8 54 PART I.— done, tlie defendant must of course have an opportunity of belntr heard and of his witnesses being examined before any judgment is entered against him." Maintenance. P- C. Tangalla, 35!i97 . Tliis was a charge against defendant for not maintaining his illegitimate child. On the sole evidence of the complainant, (the mother) who was believed by the Magistrate, the accused was found guilty and fined Rs. 10. In appeal, Grenier, for appellant, contended that there was insufficient evidence to go to a jury, and that it would be a dangerous precedent to allow a complain- ant to father her child on any accused party without some norrobo.. rative proof of her statements, Sed per Stewaet, J.— " Affirmed, The evidence of the complainant was legally admissible, she not being the lawful wife of the accused." Jnly 8. Present Creasy, C. J. and Stewart, J. Cattle ti-cs- p (-1. Gampola, 24577. The defendant was charged, under clause P'lss- 4 of Ordinance 2 of 1835, with having allowed two head of cattle belonging to him to trespass on a Coffee Estate in charge of com- plainant. The cattle had not been seized but merely identified ; and there apiieared to have been no a,ssessment of damages as contem- plated in the Ordinance. The Magistrate (Penney) found the accused guilty and fined him Rs. 10. 7n appeal, Cooke, for the appellant, quoted the judgment of the .Appellate Court in P. C. Matale, 23709, 2 B, 74, which was to the following effect: " the requirements of the Ordinance not having been strictly complied with, inasmuch as uo notice was given to the principal headman of the village or district, and no report made as required by the 3rd clause of the Ordinance No. 2 of 1835, the dismissal must be affirmed, but the complainant has his civil remedy for damages." This was a similar case, and the con- viction must therefore be set aside. [But under the clause specified in the plaint, a criminal prosecution for trespass may be maintained ' whether any damage shall be proved to have been sustained or not.' Stewart J.] There was besides no proof that the estate was fenced or that by any local custom it did not require to be fenced. [You will find a case reported in Lorenz, * in which we held that Coffee Estates need not be fenced to entitle the owner to the benefit of the Cattle Trespass Ordinance.— C, J.] Per Stewart, J.— Affirmed. • P. C. Matale, 11998. Per Curiam — "The Supreme Court is of opiniim that the evidence already adduced on this point" ("as to how far Coffee Estates are required to be fenced by local custom with reference to clause 2 of Ordinance 3 of 1835) " tends to show that Toffee Estates do not fall within the class of lands alluded to by the witnesses under. the term ' cultivated lands,' which seems to designate a class of lands other than Coffee Estates, and shows that according to existing custom Coffee Estates are not fenced a« ordinary ground." Ill Lor,, 21 j Civ, Min., Feb. 19, 1858, POLICE COURTS 55 July 15. Present Stewaet, J. P. C. Mallakam, 1440. The plaint was as follows: "that the defendants did unlawfully, wilfully and maliciously prevent, obstruct and hinder the complainant from digging up and removing coral stones from the Crown land called " Tannyerincham '', for the public use, at the direction of the Government Engineer, in breach of Or- dinance 10 of 1861, clauses 72 and 83." The complainant was a mason in the employ of the public works department, and was engaged iu building a house for the sub-collector of Kangasantorre. On his proceeding with a number of coolies to quarry coral in a certain land which had been pointed out to him as Crown property by an Udeai', tlie (lff(?ndants resisted him claiming the land as their own. The "^Miijrisirate (Mjfj-ray) having convicted the defendants fined them 1 ni \\ Ks. 30, In appeal, per Stewart, J. — " Set aside. The 72nd Lrn.l 73rd sections of the Ordinance 10 of 1861, under which the de- ic'iidants are charged, have reference to materials, etc. taken for mak- n^' or r( pairing thoroughfares or buildings, etc. required in connec- li'i?! with making and repairing thoroughfares. According to the evjilence of the complainant, the coral stones in question were reqxur- ed for no such ]inrp. Min., December 29, 1870.' POLICE COURTS. 63 to trespass Jn the garden of the complainant, to his damage of Rs 25 . The verdict of the Magistrate {Temple) was recorded as follows: "Guilty. To pay damages Rs. 25." In appeal, per Oatley, J.— " Set aside and a verdict of acquittal entered. Complainant has not proved that, within 48 hours from the time of seizure or trespass, he gave notice to the nearest constable, police vidahn or local headman ; nor has he proved that the damages were assessed in the manner re- quired by the 3rd clause of the Ordinance No. 2 of 1835 ; nor has he proved either that the garden was fenced or that the local custom did not prescribe any fence. Before a defendant can be convicted under the Ordinance in question, the requirements of that Ordinance must be strictly complied witL." Aug. 19. P. C. Matara, 72067. The plaint was " that the defendant did, on False infor- the 18th October, 1872, at Matara, before W. J. 8. Boake, Esq. .T. P., mation. wilfully give false information, with intent to support a false accusa- tion against the complainant and others, in the case No. 22906, J. P., contrary to the 166th clause of the Ordinance No. 11 of 1868." The Magistrate ( Jumeaux ) refused to issue process, holding that the charge did not come within the clause quoted, and referred complain- ant to a civil action if he had sustained any damage. In appeal, per Catlet, J.—" Affirmed. The plaint is defective by reason of its not stating the nature of the false information. If the plaint had been properly firamed, the Police Magistrate ought to have entertained it, and not to have referred complainant to a civil action." I'. C. Colombo, 5498. Forty defendants were charged, in one Gambling, plaint, under the Ordinance 4 of 1841, in that they did " game, play and bet at cockfighting in a garden kept by the 2nd accused for the purpose of common and promiscuous gaming." In appeal, by the 26th and 29th accused, against a conviction, {Brown for the appel- lants) per Catlet, J. — " Set aside and verdict of acquittal entered. There is no proof that the place where the gambling was going on was a public place or one kept or used for the purpose of promiscuous gambling. The evidence taken at the trial of the other defendants, at which the appellants were not present, cannot be taken as evidence against these defendants." P. C. Colombo, 8911. This was an appeal against the conviction Licensing of the defendants for having behaved in a riotous and disorderly Ordinance, manner in a tavern, in breach of clause 21 of Ordinance 7 of 1873. Per Caylet, J.—" Set aside and verdict of acquittal entered. The appellant is charged with behaving in a riotous and disorderly manner Aug. 19 •} 64 PAKT I. in a tavern, in breach of the 21st clause of Ordinance 7 of 1873. In order to convict a defendant of an offence under this clause, it is necessary to allege and prove that he was drunk. In the present case, there in no evidence that the def ndant was drunk, nor is he charged in the plaint with being so." A decree -P. C. Matara, 71720. On this case, which is reported in page 61, improvide em- being called, the following judgment was delivered by Mr. Justice anavit cancell- Cat let.— " In this case the Supreme Court set aside the conviction, on Substitution of the ground that the charge laid in the plaint was not proved by the complainant, evidence, and that the Police Magistrate had expressly found the defendant guilty ot a different charge from that laid in the plaint. Before, however, the judgment of the Supreme Oourt was carried into effect, by the dibcharge of the prisoner, it was brought to the notice of this Court that the officers of the Court below had by mistake bound up with these proceedings a plaint which belonged to a different charge, also brought against the same defendant and number- ed 71721, and h id bound up with the record of the latter case the plaint which ought tojjiave been forwarded with this case. The mistake in question was partly due to the appellant himself, who attached the No. 71721 to his petition of appeal, instead of the number of the present case. Under these circumstances, I think that the proceedings of the Supreme Court at the first hearing of the appeal must be treated as null and void, there being no charge befo,re the Court upon which any valid judgment could be pronounced. The decree moreover improvide emanamt, and the case, therefore, is open to reconsideration. (See Thompson's Institutes, 1, p 199.) There is, however, .in my opinion a substantial fault in the proceedings of the Court below, in consequence of which I think that the conviction should be quashed. The original complainant having left Matara, an- other complainant was substituted in his place, on a motion dated 21st June, 1873, of which there is no record that defendant had any notice or any opportunity of opposing, until the day of trial when his Proctor took the objection and moved that the case should be struck off in consequence of the absence of the original complainant, in whose name the plaint was instituted. The Police Magistrate decided that this substitution was legal, on the authority of the case No. 1882, Jaffna, (reported in Bfling and Vanderstraaten's Digest, page 178.) In that case the Chief Justice expressed great doubts as to the power of the Police Magisti-ate to amend a plaint by the substitution of a new prosecutor, and his Lordship pointed out how substantially important it is for a defendant to know at once who his adversary is ; and that the Rules require that the summons, which in the first POLICE COURTS. 65 f . ^ 22 instance is served on defendant, should contain the name and resi- dence of the complainant, and that it is useless to give him this informatiou if, when he comes before the Magistrate, another com- plainant is to be substituted. The Chief Justice thought that these errors were not cured by the defendant pleading to the amended plaint, and considered for these and other reasons that the conviction in the Jaffna case should be quashed. The majority of this Court, however, while admitting the irregularities referred to by the Chief Justice, thought that they were- cured by the defendant's pleading, to the charge without objection. i<'or my own part, I fully concur with tlie ouservatious of the Chief Justice relating to the irregularity of substituting one uomplaiuant tor another ; but I should have felt bound to decide the present case according to the opinion expressed by the majority of the Court in the.-Jaiiua case, if the two cases had been in all respects parallel. But there is this important difference between them. In the present case, belore any evidence was gone into the defendant's Procior took the objection that the original com- plainant was absent, and that the case, therefore, ought to be struck off. The defendant cannot then be said to have waived the objection relating to the substitution of a new complainant, as was done in the Jaffna case. And it must be remembered that it was in consequence of such waiver that the irregularities of the Jaffna case were held by a majority of this Court to have been cured. Conviction quashed " August 22. Present Caylet, J, P. C. Matara, 72229. The defendant was convicted by the Carriers' Magistrate (Jumemix) and fined B,s. 25, for having used an unlicensed Ordinance, hackery for taking passengers for hire, contrary to the terms of the 16th clause of Ordinance 14 of 1865. The complainant deposed that the defendant had carried passengers in his hackery for hire without a license ; while one of the witnesses stated that he had seen part of the hire paid, and that defendant had on former occasions carried passengers for hire without a license. In appeal, per Caylet, J.—" Set aside and verdict of acquittal entered. It is not alleged in the plaint, or proved by the evidence, that the hackery in question was a public conveyance, in terms of the 6th and 6th clauses of the Ordinance 14 of 1865." P. C. Jaffna, 2429. The defendants were charged on the 2Cth Appeal May, 1863, under clause 17 of Ordinance 6 of 1846, with having on the rejected, 27th of the previous month unlawfully and maliciously cut and des- troyed a dam on complainant's field. On the returnable day of the Aug. 26. 66 PART I. — summons, the following order was recorded by 'the Magistrate (.l/urraj) — '' The parties agree to settle this case. Issue orders to the Police Vidahn and the Odear to restore the dam and to make their report." A subsequent order (without a date) appeared on record to the following efieot : " Vidahn present. He states that complainant failed to accompany him. Complainant is referred to a civil action." In appeal, by the complainant against what he termed " the order of the 24th June," per Catley, J. — " Appeal rejected. There is no order of the Police Magistra'e of the 24th June dismissing the charge. The charge had been settled on the 4th June by agree- ment of the parties before the Police Magistrate. It must be treated as withdrawn. If the appeal is against the order of the 4th June, it is out of time." appeal. P .C. JafTiia, 11002. The complainant had obtained a search Deal warrant, on an affidavit charging the defendants with fraud and theft, and had caused a certain waggon to be seized in their possession. The J. P. case was subsequently dismissed, as also a Police Court charge by the same prosecutor against the same accused ; but the complainant was allowed to remove the waggon (having given proper security) and referred to a civil action. A reasonable time having elapsed and the complainant having failed to take any steps in the matter, the defendants filed an affidavit reciting all the facts and praying that the wag-gon in question might be ordered to be restored to them. The Justice of the Peace having refused to make such order, the defendants appealed. Per Catley, J. — " Affirmed. No appeal lies from an order of the Justice of the Peace such as the one complained of." August 26. Present Cayley, J. T . J. ,. PC. Balapitimodara, 44163. The defendants were charged with Jurisdiction. ^ , , , , , . ., ■ j j. having beaten and assaulted the complainant on the minor road at Kurudawatte and robbed her of a bank note of Rs. 10. The Magis- trate (^HalUley) disbelieved the case and acquitted the defendants. In appeal, the proceedings were quashed on the ground that the chiirge of Robbery was beyond the jurisdiction of the Police Magistrate. Evidence ^- ^- Kalutara, 49266, The plaint was " that the defendant did, on the 21st day of July, 1873, assault and beat the complainant with hands, and the 2nd defendant tied the complainant by her hands, and then the 1st defendant loosened her cloth and took it away with POLICE COURTS. 67 / \ her, leaving the complainant naked." The charg-e appeared to have been proved, but the Polioe Magistrate {Baumgartner) acquitted the defendants in the following terms : "There seems to have been a general quarrel and confusion, and I cannot believe that one party is more to blame than another." Tn appeal, per Uatley, J. — " Set aside and case sent back for further adjudication. There is ample evidence of the assault complained of, and this evidence does not appear to have been disbelieved by the Polioe Magistrate. He has, however, acquitted the defendants, because he considers that both parties were equ illy to blame. There is no evidence that the assault was committed in self defence ; nor indeed, considering the nature of the outrage, is this view of the case possible. The provocation which the defendants are alleged to have received may be possibly taken into consideration in awarding the punishment ; but the Police Magistrate should also take into consi- deration the public breach of the peace, committed by all the parties concerned in the disturbance of which the assault formed a part." September 5. Present Catlet, J. P. C. Matale, 2587. This was a charge under the 3rd clause of Ordinance 2 of 1835. At the trial, one of the witnesses called for ^.thout plai the prosecution having admitted that one of the bullocks that had quas hed- trespassed belonged to him, the Magistrate (Temple) recorded the foUowino- order : " this witness to be made a defendant. Plea guilty. Sentenced to pay damage Ks. 6. In appeal, per Catlbt, J.—" Set aside and proceedings declared null and void so far as regards the appellant. Two persons were charged under the Ordinance 2 of 1835, and at the trial the appel- lant was examined as a witness. Having admitted in his evidence that the animals which committed the trespass belonged to him, he was at once made a defendant and called upon to plead. He pleaded guilty and was sentenced to pay Rs. 6. Now, although a plea of guilty must be taken in most cases as a waiver of all irregu- larities of the proceedings, in the present case thePolica Magistrate was not justified in calling upon the appellant to plead at all. There was no plaint against him on which any plea could be recorded, nor does it appear from the record on what charge he pleaded guilty. A plaint is neeessary in every prosecution, and here there was none against the appellant, the one filed being against two other persons. It should be observed that in any case it is very irregular to tni-n Sept. 5. b» a witness summavily into a defendant, because of some admissions made by him wlien giving evidence. In Police Court cases, the proper mode is to proceed by summons." Conviction in ^- C. Ralpitiya, i\51. This was an appeal, against a conviction absence of for assauU, on the ground that the case had been tried by the Magis- complainant. trate (Umari) in the absence of the complainant. Per Catlet, J. — " Affirmed. No objection was taken in the Court below as to the absence of the complainant at the trial, notwithstanding that the defendants were represented by a Proctor. Nor is it shewn that the irregularity complained of, which was sot up for the first time in the petition of appeal, has in any way prejudiced the substantial righte of the parties. The Supreme Court thinks, on the authority of the case No. 1882, P, C, Jaffna (Beling and Vanderstraaten's Reports, p. 178) that the irregularity complained of was waived by the de- fendants pleading to the charge without objection." Jurisdiction. ^- ^- Avishawella, 16769. The defendant was convicted by the Magistrate (Byrde) of having burst open the door of complainant's house and attempted to remove a box containing some clothes. In appeal {Orenier for appellant) per Catlet, J, — " Set aside and proceedings quashed. The case is sent back for the Police Magis- trate to proceed against the defendant in the manner prescribed by the 103rd clause of Ordinance 11 of 1868. The evidence discloses a charge of Burglary which is beyond the jurisdiction of the Police Court." _ , , P, C. Matale, 4092. This was a charge of cattle trespass under Ordinance 2 of 1835. The complainant proved the damages as assessed by the local headman, but failed to piove that his land, which was described as a " coffee garden," was fenced or did not require to be so. In appeal, {^Orenier for appellant) per Catlet, J. — "Set aside and verdict of acquittal entered. There is no proof that t'le land on which the cattle trespassed was protected by such a fence, if any, as the local custom prescribed." Timber p. Q. Matara, 71746. The charge, as made on the 17th April, Ordmance. -[^-j^^ was that the defendant had, in the month of November, 1872, cut timber on crown land without a permit, in breach of the 2nd POLICK CODUTS. 69 clause of Ordinance 24 of 1 848, The Magistrate (Jumeaux) dismissed the case, holding that the prosecution was too late, more than three months having elapsed since the date of the alleged offence. Jn ap- peal, per Cayley, J.— "Set aside and proceedings declared null and void. Under the Ordinance No. 4 of 1864, any person cutting timber on Crown land without a license is liable on conviction to such pun- ishment by fine or imprisonment as it shall be competent for the Court, before which such conviction shall be obtained, to award; and under the 119th clause of Ordinance 11 of 1868, the election of the Queen's Advocate is required in order to give the Police Court juris- diction to try offences so punishable. In the present case there is no evidence of such election. Under clause 3 of Ordinance 4 of 1864, the offence is not prescribed until two years have elapsed from the time of its commission," {^ Sept. 5. P. a. Balapitimodera, 44260. A conviction by the Magistrate {RalliLey) on a charge of assault was affirmed in the following terms : "The Supreme Court has no power to interfere with the finding of the Police Magistrate upon the truth of the evidence, although a perusal of the evidence would lead the Court to a different conclusion from that arrived at by the Police Magistrate." Evidence. J. P. Negombo, 8698. This was an appeal against the refusal of the Justice of the Peace {Ellis) to bind over the defendants under the provisions of clause '221 of Ordinance U of 1868. The facts of the ease are set forth in the Supreme Court judgment. {Ferdinands for appellant, Grenier for respondent.) Per Catley, J.—" Set' aside and case sent back for the Justice of the Peace to require the defendants to enter into recognizances to keep the peace, in the manner prescrib- ed by the 223rd clause of Ordinance 11 of 1868,— 1st defendant to enter into a recognizance for six months in the sum of Rs. 500, with two sureties in the sum of Rs. 250 each, and the 2nd and 3rd defen- dants to enter > into recognizances for the same period in the sum of Ks. 300, with two sureties in the sum of Rs. 150 each. It appears from the evidence, which is uncontradicted and which does not appear to be disbelieved by the Justice of the Peace, that the defendants with a crowd of about a hundred persons, many of whom had bill-hooks and mamoties in their hands, and some masquerading in female attire, went with tom-toms beating to coraplainanl's estate and cut a [lath through one of his fences and, having passed through a portion of the estate, cui another gap in the fence higher up. When remonstrated with, the first defendant said ' if any one ti-ies to prevent us we will Secnrit}' to keep the peace. o n 1 70 PART I.— Sept. 9. j- strike liim.' Had it not been for tlie pi'udent directions given by complainant to bis servants not to interfere by force, it is extremely probable that a serious breach of the peace would have ensued. The Justice of the Peace has discharged the defendants, on the ground that they acited from a desire to assert a riglit of way; that they did not use any unnecessary violence; that they refrained from molestiric any of complainant's servants ; that they did not come armed or in any way prepared for committing a breach of the peace ; that, although they came in numbers, it was probably in order to secure themselves from assaults; and that they were prepared to resist but, as the event proved, in no way inclined to provoke a breach of the peace. The Justice of the Peace adds, that they merely asserted a legal right in a legal manner. Now there is no evidence whatever of the right of way claimed; and it appears to the Supreme Court that, whatever right the defendants may have had, they asserted it in a most illegal manner. They went in numbers sufRcient to overcome or overpower any re- sistance that would be likely to be offered; and by their threats, both before and during the occurrence, it is clear that they were prepared to resist by force any interference in their illegal proceedings. There is also ample evidence, that many of the party carried with them bill- hooks and mamoties. The circumstances of the case indeed disclose all the elements of a Riot, which is defined to be a tumultuous distur- bance of the peace by three persons or more, by assembling together of their own authority with an intent mutually to assist one another against any one who shall oppose them in the execution of any enter- prise of a private nature, and afterwards. actually executing the same in a violent and turbulent mauner to the terror of the people, whether the act intended were of itself lawful or unlawful. It is difficult to conceive any act more likely to occasion a breach of the peace than that committed by these defendants; and in view of their conduct, both before, duririg and after the occurrence, the complainant is quite jus- tified in anticipating a repetition of the outrage." Present Cayley, J. P. C. Galle, 85757. Mr. Ahamado Bawa, Proctor, was after due Bawa's"case. notice called upon to answer to the following charges of Contempt of Court: "(1) for having, on the 26th day of July, 1 873, unlawfully, knowingly and wilfully filed a fictitious and false plaint, charging certain persons, to wit, Charles Ondatjie and others, with theft, and obtained an order for summons on such fictitious and false plaint, in contempt of Court and in breach of Ordinance No. 11 of 1868, clause 107; (2) for having, on the day aforesaid, taken the said plaint into his posses- POLICE COURTS. 71 f „ < Sept. 9. sion and kept it, so as to prevent the issue of summons and thereby Contempt, impede the due administration of justice and obstruct and prevent Bawa's c.ise. the due execution of the orders of this Court, in contempt of tliis Court and in breach of Ordinance No. 11 of 1868, clause 107." The facts of the case are fully recited in the following affidavit which was submitted by appellant's Counsel at the hearing of the appeal: — 1 Ahamado Bavi'a, Proctor of the Supreme Court of Ceylon, residing at Galle, now at Colombo, make oath and say, that .on Saturday, the twenty-fifth day of July last, whilst the Police Magistrate of Galle was still on the Bench, the Police Court Bar was occupied by myself, Messrs. Advo- cate Ondatjie, Proctors J. W. Ludovici, W. M. Austin, James Karoonaratna, W. H. Dias, G. L. Jayesekera, and others. A client of mine paid me a fee, part of which consisted of a new Five Rupee Note of the Chartered Mercan- tile Bank, Kandy. Mr. Charles Ondatjie, who was seated near me, took it up and handed it to Mr. W. H. Dias, who sat next to me. He passed it to Mr. Karoonaratna, who in his turn handed it to Mr. Jayesekere, who put it into his pocket, all in jest. In the same spirit, I took up a sheet of paper, and wrote a plaint charging the above-named gentlemen with theft, and after shewing the paper to some of them handed the same to Mr. R. L. Van Buren, another Proctor, saying in the most jocular manner " I appoint you my Proctor." This gentleman, without my consent or knowledge, hand- ed the document to the Court Peon, who later submitted it to the Magis- trate along with other plaints of the day. The learned Magistrate, without enquiring from any of the parties named in the plamt, either from com- plamant or accused, all of whom were at the time in the Court, ordered sum- mons to issue. When the plaint was brought out from the Magistrate's cham- bers by the Peon, Mr. R. L. Van Buren himself took it, and in the midst of the confusion and consternation thus created by his mistake, I took it from him and, declaring my astonishment and regret, intended to explain the matter to the Magistrate at once. At first I thought of submitting a written mo- tion, but not wishing to treat the matter so seriously wished to speak to the Magistrate personally in his chambers as the most proper and appropriate course. Before my doing so, however, the Magistrate left the Court for the day. I did not at the time attach much importance to the mistake, in the hope that the Magistrate himself would be satisfied that it all originated in a joke and the rest was a mistake, and I contented myself with hoping to explain the matter on Monday in chambers. For this reason, and not being in familiar terms with the Magistrate, I did not wish to detain him in the street, where I had met him in the same afternoon, as 1 should otherwise have done, if I had known then that the Magistrate would not at- tend Court on Monday. Unfortunately on Monday, the Court was taken up for repairs by the Public Works Department, and the Magistrate did not at- tend again till the following Saturday (the 2nd August) and 1 allowed the document to remain in the Court itself, with my other papers contained in an unlocked box left in the ' Court in charge of one of its officers, and had no access to it till Saturday next. On this day I attended the Court earlier than the Magistrate, and taking out the paper from the box was waiting to see the Magistrate when that gendeman arrived, and without questioning me at all — though he knew 1 was in the Court — commenced to take depositions against me in his chambers, and issued a Search Warrant to his clerk to search my box. Havmg done so, he came out and in an authoritative man- ner ordered me to bring my box and papers into his room. I did so, and was ■} V2! Sept. 9 rontempt. about to address him on the subject of the plaint which I held in my hand, Bawa's case, when the Magistrate did not want to hear me and warned me against the consequences of any statement, and for the first time informed me that he charged rae with " stealing and abstracting a Record " Though I was cer- tainly astounded at the gravity of the charpe, involving as it does no less a penalty than seven years' transportation or imprisonment at hard labour and corporal punishment not exceeding a hundred lashes, yet calmly and temper- ately, with the expression of a sincere regret for the accident, I explained all about it and offered to prove my statements by the gentlemen concerned. Mr. R. L. VanBuren was then called and materially corroborated ray state, ments as to how he. got and returned the plaint tome. The Magistrate then ordered me to find bail for a thousand Rupees, and would not accept my personal Recognizance till I made affidavit cf being possessed of property to that amount. Requesting me not to leave the Court, the Magistrate took the proceedings to the Deputy Queen's Advocate, and after consultation returned in a couple of hours, and for the first time in the course of the proceedings asked me if I intended to cross-examine the witnesses examined by him be- hind my back. I merely questioned his Interpreter Modliar, to shew by ray 'conduct how astonished and grieved 1 was at the unfortunate mistake and to see that the plaint had been endorsed by the Magistrate and summons ordered by him. At this stage the Magistrate told me that I was then charged with not stealing and abstracting the Record as before, but with concealing it, but under the same enactment and subject to the same penalty, and took my formal statement. On the following Monday or Tuesday I was asked to give in a list of my witnesses, and I did so. Of the names contained in my list 1 had only called two, Mr. Ondatjie and Mr. Karoonaratna, (the ist and 3rd accused) when the Justice of the Peace de- clared that he did not think further evidence on my part necessary, and dis- pensing with it forwarded the proceedings to the Deputy ftueen's Advocate. My two witnesses proved, as the rest would have, that the plaint was a joke, and that I had not concealed it at all. On the 16th August, the Magistrate called upon me to answer certain charges of contempt preferred by him (i) for wilfully and knowingly filing a false and fictitious plaint, and {2) with taking possession of it, and ordered my attendance before him on the i8th August, when I explained the matter as appears on the face of the Record in this case No. 83757, Police Court, Galle. Sworn to, at Colombo, this 23rd day of August, 1873. Before me (Signed) S. Grenier, (Signed) Ahamado Bawa. J. P. The Magistrate {Lee) after hearing the accused's explanation, which was in eiieot the same as disclosed above, held as follows : — "The Court is willing to accept Mr. Bawa's explanation of the circum- stances under which the document was first presented to the Court, and is not disinclined to consider that this unhappy aflair commenofid in a joke, most improper and indecent, but still a joke. The Court is willing to suppose that Mr. L. Van Buren made a mistake, a repre- hensible mistake, when he presented the record for the order of tlie jNIagistrate. The case, however, assumes a very different complexion when the retention of the record is considered. Whether the record was or was not intentionally presented to the Magistrate, after it had POLICE COURTS. 73 ) „ >■ Sept. 9. received the Magistrate's orders and been signed by him, it became Contempt, a record of the Court, the property of the Court and a solemn proceed- Bawa'a case, ing. Mr. Bawa states that he expressed himself sorry, and was so astounded that he could not at the first decide what steps to take ; but it is clear, from his own admission, that he knew that he should speak to the Magistrate, and that from a want of courage, if for no other reason, he did not do so, either at the time or when he met the Magis- trate in the street; and he did not come to see him or write to him. He retained the document in his custody till enquiry was made. Had no enquiry been made, the detention of this Court record might have continued till now. it is clear from Mr. Bawa's own admissions that he kept this case book .to prevent the issue of Summons, to prevent, that is, the due and legitimate execution of the oi'ders of the Magistrate, who would have rendered him liable to punishment for bringing a false and fi-ivolous case. An ollence so grave must of neces- sity be visited with punishment proportionate to such gravity; and however willingly 1 would spare myself, however willingly 1 would spare his brethren, however willingly I would spare the offender him- self from the effect of conduct so reprehensible and disgraceful, I have a duty cast upon me, the duty of upholding the ma,jesty of the law and the dignity of tlie bench. P>om this duty 1 would willingly shrink if it were possible. Ahamado Bawa is found gnil ty of contempt of Court and sentenced to be imprisoned for seven days. Department- ally, Ahamado Bawa will be precluded and prohibited fi-om access to the records for three months." In appeal, Kelly, for appellant. The Police Court could onl pun- ish for contempts committed in facie curia, for the words " to the Court" in Ordinance 11 of 1868 had been held not to confer a larger jurisdiction than the words "before the Court" in the old Ordinance 8 of 1846. (Grenier's Reports, 1873, p. 19.) The Magistrate having accepted Bawa's explanation as to the filing of the fictitious i]laint, the detention of the document, so far from having been disrespectful to the judge, had been in vindication- of justice, by the prevention of innocent parties being illegally summoned ; while no judicial i-ule or departmental order in respect to such documents was proved to have been thereby contravened. The learned Counsel then went into the facts as disclosed in the affidavit and the record, to show that no con- tempt had really been intended. Clarence, D. Q. A., for respondent. The fact appeared to be that Bawa himself removed the document from the fih' of the Court and kept it. Whether or no it was his intention that the plaint should be presented to the Magistrate, having in point of fad been iilaccd on the file of the (Jourt it was thenceforth a record of Court, and no practitioner had any right mere vwtn mo to abstract it. Bawa shouUI Sept, 9. Y4 PART I. — Contempt, have applied to the Magistrate : he had ample opportunity of doin;;so. Biiwa's case. a. very dangerous precedent would be established, were this Court to hold that a practitioner was at liberty, without tlie sanction of the' judge, to remove or' detain a document filed of record. The new Ordinance employing the phrase " contempt to the Court " appeared expressly to contemplate a wider jurisdiction than that under the old enactment, which restricted the jiuisdiction, by the phrase "before the Court," to contempts committed in facie curiae. In the decision cited by his learned friend, the expression employed was -within "the pre- cincts of the Court." The Record Room was within " the precincts of the Court " and a most important portion of what lay within those precincts. Per C.WLEY, J. — ■' The proceedings in this case having been read, it is considered and adjudged that the order of the Police Court of Galle of the 18th August, 187S, sentencing the appellant to imprison- ment, be set aside. In this case the appellant, who is a Proctor of the Supreme Court practising at Galle, has been found guilty of contempt of Court by the Police Magistrate of that station and his been sentenced to imprisonment for seven days. Two charges of contempt were prefeiTcd against him. one for having wilfully filed a fictitio\is and false plaint-a^ainst certain persons, the other for having taken the said plaint into his possession and having ke])t it so as to prevent the i^sne of summons and thereby impede the administration of justice and obstruct and prevent the due execution of the orders of the Court. Ko evidence was taken at the hearing of the charge, except the defendant's own statement, which seems to have been accepted by the Police i'lagistrate as substantially true. Justice of the Peace proceedings had, however, been previously taken against Mr. Bawa; and as they were referred to in the argument before this Court as well as in an affiiiavit filed by the appellant, I sent for them and have read them in connection with this case. It will not be necessary to enter fully into the first charge of contempt, viz., that of filing a false ami fictitious plaint, for the Police Magistrate has in eifect acquitted the appellant on that charge, expressing himself willmg to consider that the plaint in question was drawn vip as a joke, and that it was by a mistake that it was presented for the order oi the Court. The substantial charge, on which the appellant has been sentenced, is the charge of having detained the plaint, after it had received the order of the Magistrate, with the object of preventing the issue of a summons. 'J'lie facts of the case, as gathered from the proceediiigs before me and the affidavit of the appellant, are sub- stantially these. On Saturday, the i;6th July, the ajipcllant was in the Police Court wiih several other ])i'aifitioners. A five rupee note which had been paid to the a])pel!ant was in jest taken from the table POLICE COURTS. 75 ) > Sept, 9. and handed about from one Proctor to another, until it came to the Contempt, hands of Mr, Jayesekere, who in jest put it into his pocket. The ap- Sana's case. pellant then in je.st drew uj) a plaint charging Mr. Jayesekere, two other Proctors and an Advocate with theft of the note. The plaint was then handed to Mv. H. L, Van Buren, who gave it to the Court peon, and it was in the usual com-se presented tu the Magistrate, Tlie appellant in his affidavit states that he said to Mr. Van Buren in the most jocular manner 'I appoint yon my proctor,' It appears, how- ever, from Mr; Van Buren's evidence in the J. P. proceedings, that he treated the matter seriously. However this may be, the Police Magistrate is apparently satisfied that it was never intended by the appellant that the plaint should be presented for the order of the Court. Upon the plaint being presented, the Police ^Magistrate, with- out making any enquiry from the parties concerned, ordered a summons to issue. The plaint then appears to have been placed with several papers on the Singhalese Interpreter's tabic, from which it was taken up by Mr. Van Buren, from whom it was taken by the appel- lant, who put it into his bo.x which he keeps at the Court. There appears to have been no secresy about this. The Interpreter, as appears from his evidence in the J. P. proceedings, was aware that the ap- pellant had taken the paper, and he requested the appellant to give it to the Olerk. The appellant, as the Interpreter sta'es, ajjpcared very sorry and told him (as he thinks) that it was a joke and that he would speak to the Magistrate about it. Unfortunately the appellant did not take immediate steps to inform the Police Magistrate. The Magistrate thinks that he failed to mention the matter from want of courao-e. It appears from the appellant's affidavit and statement, that he was so bewildered at the probable result of his foolish- joke, that he had not made up his miud what course to pursue, until tlie Magis- trate had left the Court, which occurred early, the day being Satm-- day. The plaint accordingly remained in the appellant's box, which was kept in Court, and, as the appellant states, in charge of a Court peon. Unfortunately the Court was closed for repair until the followinn- Saturday, (2nd August) and as the appellant states he had no access to his box during the interval. On the morn- ing of the 2nd August, the Police Magistrate came to his Cham- bers and there proceeded to take J. P. proceedings against the appellant, on a charge of absti-acting a public record in breach of Ordinance 6 of 1846. From the appellant's affidavit, it would appear that he came to Court early on the 2nd with the intention of bringing the matter to the notice of the Police Magistrate, but that, before he had an opportunity of doing so, the Police Magistrate had already commenced to take depositions against him in Chambers. These J. P. proceedings were resumed on 8th August, after which the criminal Sept. 9. 76 PART I.- Contempt, charge appears to have been abandoned, though there is no record Bawa s case, ^^lat it has been dismissed. On the 1 8th August the proceedings for contempt were instituted. Now, there is an irregularity here which should be noticed. It does not appear that the criminal charge had been dismissed before the appellant was called upon to explain his contempt. The criminal charge and the chai-ge of contempt were in effect founded upon precisely the same act; and until the criminal charge had been formally dismissed and that dismissal formally re- corded, the appellant should not have been called upon to make any statement whatever relating to the case, except in the due course of the J. P. proceedings. The question, however, which this Court has to determine is this, did the act of the appellant inputting the plaint into his box, in order to prevent the issue of a summons, and keepinw it there for a week while the Court was closed, without bringing the matter to the notice of the Police IVl agistrate, amount to a contempt of Court under the provisions of the 107th clause of Ordinance 11 of 1868. The Supreme Court thinks that, although in many cases the unauthorised detention of a record would amount to a contempt, un- der the peculiar circumstances of the present case, if did not. In the first place, it is clear that no contempt was intended. A foolish joke had been perpetrated by the appellant and in consequence of the mistake of Mr. Van Buren, (which the Police Magistrate rightly char- acterises as a reprehensible mistake) the joke was likely to be follow- ed by serious consequences which were never intended; and though he acted improperly as well as foolishly in not at once mentioning the matter to the Police Magistrate, he can hardly be considered as guilty of contempt of Court in endeavouring to prevent what might other- wise have led to a more serious contempt, namely the putting in mo- tion of the process of the Court and carrying on a prosecution upon an entirely fictitious plaint, which had been prepared as a jest and presented to the Court by a mistake. Plaving failed to bring the mat- ter before the Police Magistrate at once, he ought, no doubt, to have taken the first opportunity of writing to that officer, although the Court was not sitting; and, by neglecting to do this, he has, in my opinion, laid himself open to much blame. This Court does not think, however, that his failure to write or call upon the Magistrate at his house, notwithstanding that such was the appellant's duty, can be construed into a contempt of Court. The Police Magistrate states that appellant retained the document in his custody till enquiry was made, and that no enquiry being made the detention of the Court record might have been continued to the present time. This, how- ever, appears to the Supreme Coiu't to be by no means certain ; for the appellant had no opportunity of bringing the matter to the notice of the Police Magistrate at the Court, after the first day, until the POLICE COURTS. 77 1 j- Sept. 9, J. P. proceedings were commenced, for during the interval the Contempt- Magistrate did not sit, and these J. P. proceedings were commenced Bawa's case, by him in Chambers before he took his seat on the Bench, on the first day that the Court was reopened for business. The appellant himself in his affidavit swears that he attended the Court earlier that day than the Magistrate, and that, having taken the papers in ques- tion from his box, he was waiting to see the Magistrate, when the latter commenced taking depositions against him in Chambers. The fact that the Interpreter was aware that Mr. Bawa had taken the plaint, and the fact that he had been informed by Mr. Bawa that the affair was a joke, and that Mr. Bawa had declared to him his inten- tion of speaking to the Police Magistrate, lead this Court to give cre- dit to the appellant's affidavit, that it was his intention to bring the matter to the notice of the Magistrate, as soon as the Court resumed its sitting. Under all the circumstances of the cise, this Court does not think that a contempt of Court, such as is punish- able under the 107th clause of Ordinance II of 1868, has been committed. Under that clause, a Police Magistrate has no power to punish for contempt, unless the person chafged shall fail by his answers, when called upon for lug explanation, to satisfy the Court that no contempt was intended; and in this case this 00111*1 thinks that none was intended. The original joke, which gave lise to the unfortunate proceedings, was a foolish one and one unbecoming the professional character of the parties concerned ; and the mistake of Jlr. Van Biiren, in causing the fictitious plaint to be presented to the Magistrate, was certainly reprehensible. Indeed, it is difficult to understand how he could have thought the appellant to have been in earnest. This Court thinks, however, that the Police Magistrate would have displayed a wise discretion, if before issuing summons on the plaint he had, in pursuance of the course authorized by the 3rd clause of the Ordinance 18 of 1871 briefly examined the complainant. The plaint purported to be a charge of theft preferred by a Proctor of this Court against an Advocate and three other Proc- tors, all of whom were in Court at the time. In the case of a charge of this extraordinary kind, it would certainly have been expedient, before it was acted upon, that some brief enquiry should be made. Had this been done, none of these proceedings would have ensued. Ill should be observed that when a contempt of Court has been com- mitted through ignorance, inadvertance or mistaken motives, and has been promptly acknowledged, the dignity and authority of the Court is generally sufficiently vindicated by an admonition. It is only in extreme cases of manifest disrespect or disobedience that it should be Tisited with so severe a punishment as that to which the appel- Sept. 12. 78 PART t. — lant lias been sentenfted ; for to send a Proctor of 15 years' standing in the profession to iail, even for seven days, is a very severe punish- ment. The Supreme Court wishes to observe that this judgment is not to be taken as any authority that the unauthorized removal or detention of a record may not be a contempt of Court. This Conrt thinks that in many instances it might be a very grave contempt in- deed. The present case is decided upon its own peculiar circum- stances, and the facts disclosed do, not appear to the iSupreme Court to establish such an intentional contempt of Court as is punishable under the Ordinance in question." September 12. Present Catlet, J. Labor -P- ^- ^i^tole, 3862. Seventeen coolies were charged on the Ordiimncc. following plaint : " that the defendants did, on the night of the 15th instant, leave the complainant's (Keane'e) sei'vice without notice, in breach of the 11th clause of Ordinance 11 of 1865." The accused appeared to have left complainant's estate on the 15th May, after having given the following written notice to him on the 12th : "we give you notice that we will leave your service on the 15th instant, as you have not paid us for the last three mouths." The receipt of this notice was admitted, as also the fact ttat arrears of wages were due ; but it was explained by the m^inager ( Wilkinson) that when he sent Keane in May to pay Febrnai-y's wages, the defendants refused to receive the money on the gronnd that their Kaugany had been dis- charged. On the day of trial, twelve of the defendants were present; and on their behalf Mr. Prootor Tillekeratne submitted a mo. tion " that the 2nd and 4th defendants be admitted as witnesses for the defence, theii' evidence being material," The motion, how- ever, having been disallowed, the Magistrate (Temple) after hearing evidence found the defendants guilty and sentenced them to one month's hard labor each. In appeal, per Caylky, J. — " Affirmed, The defendants made no demand for their wages, as required by the 21st clause of the Ordinance 11 of 1865, so that the non-payment of such wages did not excuse them from the necessity of giving one month's notice to quit service. It is inexpedient, as a general rule, to put more than 10 persons on their trial at the same time in cases of this kind. But it does, not appear that the evidence of the 2nd and 4tli defendants would have in any way exculpated the others. What they had to prove was not mL^ntioned in the Court below, nor is there any affidavit filed with the petition of appeal." POLICE COURTS. 79 Sui-T. 19. September 19. Present Stewaet, J. P. C. Matara, 71598. This was a charge of false uiformation _ False under the 166th clause of Ordinance 11 of 1 868. Without entering information, into evidence, the Magistrate {Juraeaux) made the following order : "This case is beyond the jurisdiciioii ot the Police Court. Com- plainant and her witnesses were duly sworn or affirmed, and gave their evidence before the Justice of the Peace in favor of the accused. If any charge lies, it is certainly one of perjury." In appeal, per Stewart, J, — " Set aside and case remanded for hearing. If the defendants did no more than give evidence as witnesses, they would not be liable under 166th clause of Ordinance 11 of 1368. But if they or any of them gave false information, whether by affidavit or otherwise, with intent to support a false accusation, such defendants would come within thJA charge. See Grenier's Reports, part I. P. C. Balapitiya, 4307;i, July 3rd, 1873. Kurunegala, P. C. 6828, per Supreme Court, November 28, 1869." P. C. Colombo, B. The Magistrate (Fisher) refused to order Refusal of summons on a charge of theft in the following terms : " Referred to a process, civil action. The accused was complainant's kept mistress and the articles referred to are wearing apparel." Jn appeal, per Stewart, J. — " Set aside and case remanded for further hearing. The Magistrate should record the examination of the complainant. The answers given by the complainant have not been taken down, the Magistrate only noting the conclusion arrived at by him." P. C. Galle, 85583. This was a charge of removing timber with- Timlier out a permit, in breach of the 2nd and 5ta clauses of Ordinance 4 of Ordinance. 1 864. The Magistrate (Lee) held as follows : " The evidence shews a removal after the time specified in the permit, but it is proved that there was a permit. The plaint is defective and the accused is acquitted. It is competent to complainant to prosecute on an amended plaint." In appeal, per Stewart, J. — " Set aside and case remanded for farther hearing. Instead of filing a fresh plaint, it appeai-s to the Supreme Court that the complainant should have been allowed to amend his plaint, by adding a count charging the defendant with the removal of the timber after the time specified in his permit, in breach of the clauses of the Ordinance referred to. The case is remanded accordingly." Sept. 19, | '" ^^^^ ^— Pismissal. p. C. Colombo, 7843. The Magistrate (Fisher) dismissed the charge (which was one of assault; in the following terms : " The accused in this case is not forthcoming. The case has been repeatedly postponed ^nd cannot be allowed to pend any longer. The case is therefore dismissed," In appeal, per Stewaet, J. — " Set aside. According to the Fiscal's report, made on the day the case was dis- inissed, the defendant ran away on seeing the process-server. Under these circumstances, to confirm the order dismissing the case would in effect be to allow the defendant to benefit by his having hitherto successfully evaded an-est. Warrant should re-issue and every ettort be made to arre§t the accuse4." Maintenance. P- C- Kalutara, 49264. This was a case of maintenance against the father of several illegitimate children. The complainant (the mother) led ample evidence to prove the charge, but the Magistrate (Baumgartiier) acquitted the defendant in the following judgment. " Complainant has failed to show by whom the children now require to be supportecV Beyond her own statement, that defendant does nothing to support them, the evidence on this point is all presump- tion. I take it that this is a fact which must be proved specially, and that it cannot be taken on presumption. It is unnecessary to expresa an opinion as to the paternity. In appeal, (Orenier for appellant) per Stbwakt, J. — " Set aside and case renianded for further hearing. It is not suggested that the defendant supports the chiklren or that they have means of their own for their maintenance, It would there- fore almost seem to follow that they require to be supported by others. Even if it be the fact that the children are maintained by the com- plainant, this will make no difference, she being included in the word ' others.' At the further hearing it will be open to the complain-, ant to give fiirther evidence as to how the children are supported.'* Labor ^' ^' Gampola, 24771. The charge was 'Uhat the defendant, Ovdinance. being a servant employed under complainant, was, on the 12th July, 1873, at Maskelya in Dickoya, insolent towards the complainailt, and that the defendant also misconducted himself, in breach of the 11th clause of Ordinance 11 of 1865." The complainant (Oray) deposed as follows : " I own and manage Bunyan Estate. The accused was my Kangany, On July 1 2th, I found fault with him about a contract badly executed, J told him the contract was discontinued, and he gesticulated and POLICE COURTS. 81 ) made much'noise in the store whei-e I lived. He said the Doray was a (Tamil) vagabond, Mrs. Gray was in the store and approaching her confinement." Cross-examined. The Tamil word used means in the Dictionary " a wrangler, a mischievous fellow, etc " The contract was monthly. The accused was to "be paid R. 1 per acre, to be paid monthly. Re-examined He was a monthly servant, besides being a contrac- tor. The abusive epithet was used both to my face in the store and when I was upstairs " The Magistrate (^Penney) found the accused guilty and sentenced him to forfeiture of wages and one month's hard labor. In appeal, Grenier for appellant,— The defendant's misconduct, if any, was in his capacity as contractor, and he could only be civilly liable. [He was a Kangany, and as such was a servant under the Ordinance. — Stewart, J.] But his conduct was independently of his duties as Kangany, and it was with reference to the contract that there was a dispute. The complainant's own words jvere — " he was a monthly servant besides being a contractor." Supposing an Appoo contracted to build a house for his master, could the former be criminally indicted for negligence or disobedience of orders in connection with the work ? [But here the man was paid by the month and was therefore a monthly servant. — Stewart, J.] It made no difference whether he was paid by the week or by the month. The weeding contract was in its very nature such as would extend over a month, and should have been in ^vriting, as required by the 7th clause of the Ordinance, to render the defendant liable to the penalties prescribed by the 11th clause. Besides, the conduct of the defendant did not amount to an oftence. The Ordinance should be strictly construed, *nd where a contractor- servant called his employer a '■^ perehcaren^^ (that was the word used) ^leaning " a qna,rrelsome persen," he could hardly, in fairness and justice, be convicted of " insolence," Perdinands, for respondent. it was impossible to dissever the character of contractor from that of servant in this case. The circumstances under which the language qomplained of was used, apart from the language itself, rendered the defendanr liable to punishment for insolence. Per Stewart, J. — »! Affirmed." Sept. 23, September 23. Present Stewart, J. P. C. Panadare, 21657. The plaint was "that the defendants licensing did, on the 31st ultimo, at their shop at Morotto, sell intoxicating Ordinance, liquors, contrary to their license, in breach of the 10th clause pf Sept. 23. | ®^ ^^^^ I-— Ordinance 7 of 1873." The evidence went to show that the accused although only authorised to sell liquor by the bottle, had sold by the glass. The license itself was not produced, and the Proctor for the defence took the objection that there was no evidence to show what the defendants were licensed to do and that the plaint charged them with selling and not retailing liquor. The Magistrate (Morgan) however convicted one of the defendants and sentenced him to pay a fine of Rs, 20. Tn appeal, the judgment was affirmed.. Maintenance. p. c. Galle, 85710. The defendant was charged with not having maintained the complainant, his wife. The Magistrate (Zee) havin° acquitted the accused, on the ground that the complainant had been legally divorced before the instiiution of the case, the judgment was affirmed. Ordiwi ^- ^- ^""^' **^^°2' '^^^ <=^8'''ge ^as that " the defendant, being the keeper of a tavern, did, on the 18th instant, in the Fort tavern No. 1, allow people to sit and loiter therein, in breach of Ordinance No. 7 of 1 873, clause 1 8th." The Magistrate {Lee) convicted him in the following terms : '< I do not consider that it was intended by the Legislature to make the mere sitting in a tavern an oifence, I appre- hend that the word 'sit' is in some degree governed by the subse- quent word ' loiter,' and that to constitute an ofience there must be either a " sitting and loitering' or a loitering alone. It is quite clear that the defendant, being a tavern keepex-, has on this occasion allowed persons to loiter, and to sit and loiter, in the tavern." In appeal (Kelly for appellant) per Stewart, J. — "Affirmed." Cruelty to P. C Panadure, 21311. The defendant was charged with hfiving animals. shot the complainant's dog, in breach of the 19th clause of Ordinance 6 of 1846. It appeared that the dog had been tied to a jack tree near complainant's kitchen, and that defendant, on the pretence that the animal had killed one of his pigs, deliberately shot at it and killed it. The witnesses for the prosecution admitted that the dog- had been of a ferocious nature. In appeal, against a conviction, per Stewart, J. — "Affirmed. According to the evidence, the pig had been killed fifteen days before the shooting of the dog. The shooting appears to have been both wilful and malicious." Theft by P. C. Colombo, 9101. The charge was " that the defendants did, the Police, on the 22nd July, at Slave Island, unlawfully enter the opium shop of the complainant, who was a licensed dealer, and did steal, take and POLICE COURTS. 83 carry away a handful of money from the drawer of complainant's table. The facts of the case are set forth in the judgment of the Magis- trate (FisAer.)—" I believe the case against the accused. It does not appear that the accused went into the complainant's shop with any deliberate intention to rob him. They asked for money to be lent to them, and the complainant's servant refused to gratify them, upon which the money was taken, apparently only a few coppers amounting to about six pence. The offence would not be a very henious one, if the actors had not been Constables in uniform, but they being Constables must be punished with comparative severity. Prom Inspector Buckley's account, it would appear that a complaint was made to him of the money in question having been taken; but in face of one of the complainant's party being looked up at the time, he deemed it a frivolous one, and sent the complainant about his busi-- ness. The worst point of the proceedings to my mind was the arrest and confinement of Veeracuttie, whom, whatever Serjeant Rodrigo may say to the contrary, I believe to have gone to the station to ask for assistance. It is evident from Inspector Buckley's action as regards him, that he was locked up on some frivolous com- plaint. The 1st accused is an acting Sergeant. The other two Constables were at the time under his command. He must therefore be punished most severely, and he is sentenced to be imprisoned with hard labor for two months. The 2nd accused is sentenced to pay a fine of Rs. 30 or to be imprisoned for one month with hard labor. The 3rd accused appears only to have taken a passive part in the proceedings, and I shall leave him to be dealt with by his own officers. In appeal, (^Ferdinands for appellant) per Stewart, J. — " Affirmed." Sept. 26. P. C. Balapitimoddra, 44307. The plaint, as filed by a Police Defective Officer on the 25th August, was as follows : " That the defendant P ^ did on this day at the Court House of Balapiti escape from custody." The Magistrate (HaUiley) having heard complainant's evidence fined defendant Rs. 5. In appeal, per Stewart, J. — "Set aside. The plaint is defective. It does not allege, nor does it clearly appear from the evidence, that the defendant had been legally arrested and was in lawful custody." September 5J6. Present Stewart, J. P. C. Haldamulla, 2206. The charge was " that the defendant I'.al""' did, on or about the 28th day of May last, at Lemastota, wilfully ^^ 'nance, and knowingly seduce and take away two coolies, named KatnapuUe Sept. 26. 84 tART I. — and Kanagamutti, who were engaged to come and carry on work on Macaldenia Estate under the complainant, while they were en. route to that estate, in breach of the 19th clause of Ordinance 11 of 1865." 7~he complainant (Murray^ deposed that he had on the coast, as his agent for supplying coolies, one Muttyau Kangany, who had once been employed on Meeriabedde Estate but who held a discharge in fidl from the Superintendent thereof (Liston ;) that the coolies in question had bound themselves in writing in India to work on Mac- aldenia ; but that they had beenseduced away to Meeriabadde by the accused, who was Liston's head Kiangany. .He charged on informa- tion received from two other coolies, who proved that the accused had induced the meh to desert by telling thetn that there was severe sickness at Macaldenia. It was also proved that neither Ratnaptille nor Kanagamutti, who had previously woi-ked for Liston, were bound to his estate by advances or otherwise. The writings obligatory alleged to have been executed by thelli in India, in favor of com- plainant's agent, were 1. (B.) A "debt bond" by Katiagamutti, Which Was as follows:— " The sum I received this day from you is Rs. 10, for which sum of rupees ten I will-get coolies to be taken to Macttldenia in Haldamtilla> Ceylon, where I and ttiy coolies will woA under you, not less than A year, and on your demand 1 shall rejiay the sum of rupees ten and redeem this bond; and if I and the coolies fail to go, Ijwill pay one half for one, or half more added to the principal. To that efiect, I have agreed and granted this debt bond." 2 A " debt bond " by Hatnapulle as follows : "On account of necessity I do borrow and receive this day the sura of Es, 84, for which sum of rupees eighty four I will pay interest of one per cent, and will redeem the bond on or before the 30th January, 1874, after paying in full the principal and interest." It was shown at the trial that a copy of the first document had been duly given to Kanagamutti, immediately after the execution thereof. The Magistrate {Beid) qonvicted the defendant and sentenc- ed him to three months' hard labor. In appeal, Browne, for appellant, contended that one of the coolies, Ratnapulle, was clearly not bound, as he had not eiitered into a written contract to serve or received a copy of any such contract, as required by the Ordinance, section 9 ; and that as to the other cooly, who had been subpoened by complainant but not examined, the evidence as to delivery to him of the copy-contract was insufficient. (^Ferdinands for respondent was not called upon.) Per StewarI, J. ^" Affirmed. If the defendant considered the evidence of Ratnapulle and Kanagamutti would have been in his favor, there was nothing to Servant. POLICE COURTS. 85 |_ ggpj, go prevent his calling them as his witnesses. In respect of the cooly Kanagamutti, the document B places it beyond all doubt that he was under engagement to proceed to Macaldenia, complainant's estate." September 26. Present Stewakt, J. P. C. Punwila, 14568. This was a charse against a servant for Master and leaving his master's service without notice and without reasonable cause. The evidence disclosed that the accused had been struck and told •' to go" by the complainant who, however, pleaded his servant's insolence in justification of the assault. The Blagistrate (Power) convicted the defendant, holding that what the master intended by his language was that the servant should leave his immediate presence but not his service. In appeal, (Grenier for respondent) per Stewart, J. — •' Set aside. The defendant, it Would appear, was not only assaulted by his master, but also told to go. Under these cir- cumstances, the charge against defendant, for leaving his service with- out notice, cannot be maintained. In what the impertinence consisted which, it is alleged, provoked the assault is not stated, so as to allow any opinion being formed as to whether it was, under the circum- stances, such as would justify the defendant leaving complainant's service." September 30. Present Stewart, J. P. C. Galle, 85328. The plaint was "that the defendant did, on Cruelty to the 3rd July, at Mipe, beat, ill-treat, cut and torture a cow of the animals, complainant, in breach of the 1st clause of the Ordinance 7 of 1862." The Magistrate (Zee) held as follows : " The defendant is proved to have slashed at this animal with a knife, and to have cut it while tres- passing on his enclosed plantation. The acts inflicted pain on the animal and were unnecessary. Hence there has been a clear infrac- tion of the Ordinance. Guilty. Sentenced to pay a fine of Ks. 30." In appeal, the judgment was set aside; and per Stewart, J. — " The cow, according to the evidence, was trespassing in the defendant's cultivated enclosure, and appears to have been wounded by the de- fendant on the impulse of the moment whilst driving it of}. JN'o cruelty or torture, as contemplated by the Ordinance, has been proved. See Matale, P. C, No. 71183, per Supreme Court, Febraary 4, 1873, Grenier's Reports, p. 9 ; and per Supreme Court, Panwila, P. 0. 14454, August 12, 1873." Oct. 2. Grave digging. 86 PART I.- Security to keep the peace. AVrong dismissal. P. C. Panadure, 21315. The defendants were charged with hav- ing, on the 17th June, 1873, at Remum, " wiclsedly and maliciously . damaged, injured and spoilt a grave, wherein the complainant's mother had been buried, in breach of the 19th clause of Ordinance No, 6 of 1846." At the trial, the defendant's Proctor raised theobjection that the plaint did not disclose an offence under the Ordinance, as the "rave was not the actual property of the complainant. But the Magis- trate (^Morgan) held that " the digging of a grave wherein it has been shown to the satisfaction of the Court that a corpse had been interred where the defendants had no cause or excuse for diirwinor it, is an offence under the 19th clause of Ordinance 6 of 1846," and accord- ingly convicted the defendants. In appeal, affirmed. P. C. Colombo, 8995. The plaint was " that the defendants did, on the 14th day of June, 1873, at iSIahara, assault and beat complain- ant. The Magistrate (Fisher) held as follows : " The first and sec- ond accused are found guilty. As it is impossible to discover who commenced the assault, it is ordered that the 1st and 2nd accused give bail in Rs. 50, and one surety in Rs. 50, to be of good behaviour for three months. Third and fourth accused are acquitted." In ap- peal, per Stewart, J. — "Altered by the 1st and 2nd accused being ordered to find security to keep the peace in the sum and for the period required by the Magistrate, instead of for their good behaviour. The 104th section of the Ordinance 11 of 1868 authorises a Police Magistrate to bind parties as therein pointed out to keep the peace, but no provision is made for a Magistrate binding over for good behaviour." October 2. Present Stewakt and Caylet, J . J. P. C. Panwila, 14566. This was an appeal against the following order by the Police Magistrate (Power-)— " 1 5th September, 1873. Parties present and not ready. Postponed to 15th October, 1873. Complainant now absent. Case struck ofi." Per Stewart, J. " Set aside and remanded for further hearing. The first portion of the entry, under date 15th September, shows that the case was post- poned to the 15th October. This possibly may have led to the ap- pellant's subsequent absence on that day." Fiscal's P- C. Panadure, 21472. The charge was "that the defendants Orilinance- abovenamed did, on the 20th instant, at Rawelawatta, resist and ob- struct the complainant in the execution of the warrant No. 20829, POLICE COUETS. 87 dii'ected to him by the defendant, Fiscal of Panadure, in breach of the 23rd clause of Ordinance 4 of 1867" For the defence it was contended in the Court below, that the plaint was defective in that the complainant was not described as a Fiscal's officer. In appeal, against a conviction, per Stbwart, J. — " Affirmed. The complainant was for the time being employed as an officer by the Fiscal." Oct. 7. di nance. October, 7. Present Stewaet and Caylet, J. J. P. C. Maiale, iSOS. The charge was "that the defendant was. Vagrant Or- on the 14th instant, found on the Spring Blount Estate for an un- lawful purpose and not being able to give a satisfactory account of himself, in breach of Ordinance 4 of 1841, clause 4, section 6." For the defence a witness (Muttoosamy) was called, who deposed as follows: — "I know defendant. He goes about charming people, and curing people of devils. * * * I have seen the devils come out of a man,' The Magistrate (^Temple) convicted the accused and sentenced him to one month's hard labor, in the following terms: "defendant, from his own admission, has remained on the estate after having been told to leave on several occasions, and the fact of his going about curing people is not to he tolerated, as Tamil Coolies believe in it, and I have Iciiown many cases of serious illness being brought on from fright owing to these foolish charms." hi appeal, per Stewart, J. — :" Set aside. The practice of administering charms in order to effect cure, though very absurd, cannot be regarded as unlawful." P. C. Gampola, 24910. The defendant was charged, under the Licensing ()r- 37th clause of Ordinance 7 of 1873, with having kept open his shop, tlinancc. in which intoxicating liquors were sold, at P. 50. p. m. In appeal, against a conviction, Kelly, for appellant, submitted the argument contained in the petition of appeal, which was to the effect "that all that the Ordinance required was that the shop should be closed after the hour of eight at night and before the hour of five in .the mornmg.'' If these words were strictly construed, as they ought to be, occurring as they did in a penal statute, the plaint disclosed no offence. Per Catlet, J. — "Affirmed. Phe words ' shall be closed after the hour of eight at night and before the hour of five in the morning' are am- biguous ; being capable of two constructions. They may either be taken as representing a single act, or as i-epresenting a continuous state ; that is, they may either refer to the act of closing or to the state of being shut np : and as the latter meaning, though not gram- matically the most obvious, is clearly the one contemplated by the O.'T, 7. PART I. Legislature, this Court is bound to adopt it under the general rule that the words of the Ordinance ought, if possible, to be construed in such a manner as will not lead to any manifest absurdity. The words thus taken would mean that arrack shops, etc., shall be kept shut (i. e, shall not be kept open) after 8 o'clock at night and before 5 in the morning.'' Disorderly conduct. Labor Ordinance. P. C. Pamvila, 14645. The charge was " that the defendants did, on the 25th September, at Panwila, in the public street, behave in a riotous and disorderly manner, in breach of the 6th section of the 53rd clause of Ordinance 16 of 1865." The 1st defendant while pleading sought to justify the disorderly conduct complained of (which consisted of a fight in the public road) by alleging provocation on the part of the 2nd defendant, who was represented as having " put his hands to his back and then turned round to 1st defendant's shop and put his fingers to his nose." In appeal, against a conviction, it was submitted by appellant, in his petition of appeal, that the plaint should have been laid under the 2nd clause of Ordinance 4 of 1841, and not under the Police Ordinance of 1865. Per Catley, J.— "Aflii-med. The appellant has pleaded 'guilty under provocation.' No provocation would justify riotous and disorderly behaviour in the public street, and the plea must be taken as one of guilty absolutdy. This plea has cured the defect in the plaint, which is referred to in the petition of appeal." P. C. Naivalapitiya, 18156. Nine coolies were charged on the fol- lowing plaint : " that defendants did, on the 18th August, 1873, leave complainant's service without notice or reasonable cause, in breach ot clause 11 of Ordinance 11 of 1865." It transpired in evidence that Mr. Black, the present superintendent of Wannarajah Estate and the virtual complainant in the case, had succeeded Mr, Kelly from whom he had received a cheque for Rs. 1850 in payment of certain advances which had been made to one Mari Cangany, who had procured the accused coolies for the Estate. The defence appeared to be that the cheque in question had been given and accepted for the discharge of both Mari (Jangany and his coolies, and that therefore the defendants were not liable to be prosecuted. The Magistrate (Penney) held as follows : — " The Court is of opinion that as Mari Cangany is allowedto have received the Rs. 1850 and to have had that entered as a debt against him, even although the coolies' names were entered on the check roll, he (Mari Cangany) was in reality the proprietor, so to speak, of the coolies brought both by him and his agents, his sub- canganies. He had to wipe ofl the debt by means of the coolieS' he POLICE CODETS. 89 ) q^^ y brought. Mr. Black in receiving the cheque from Mr. Kelly, in Labor the opinion of the Court, declared Mari Cangany free to go ; and as Ordinance, it is absurd to suppose that -Ba- 1850 would be paid for the sole pur- pose of obtaining one man, the natural conclusion is that that sum when paid freed both him and those employed by him. Mr. Black gave no intimation that certain coolies intended to stay, and the pay- er of the cheque naturally concluded hewould get all the men ob- tained by Mari Cangany by means of a sum equal in amount to his cheque. The accused are acquitted, and the complainant is adjudged to pay their costs." In appeal, Ferdinands, for appellant, submitted the following affida- vit from Mr. Kelly : I do hereby make oath and swear that on the i8th of August last, I sent to the Superintendent of " Wanne Rajah" Estate the sura of rupees eighteen hundred and fifty, being the full amount due by Marie Cangany and all his under Canganies to the " Wanne Rajah" Estate. In the letter en- closing the cheque, I stated that I sent that amount in settlement of the accounts of Marie Cangany and his under Canganies. My cheque was ac- cepted, and no communication was ever made to me that any Canganies or Coolies would not be paid off t my letter dated August i8th was put in in evidence and should be attached to the case. The Coolies in question belong to under Canganies who all belong to Marie Head Cangany, These under Canganies have all had their accounts settled, I having paid their debts in the round sum of Hs. 1850 sent in August i8th. To my letter enclosing the cheque and stating that it was in settlement of all accounts of Mari Head Cangany, and his under Canganies, I> jiever receivea any reply, and that cheque for payment in full being accepted without any reply or com- ment, I swear that I considered myself entitled to Mari Head Cangany, his under Canganies and all their people willing to come : the sum of Bs. 1850 being the full amount of everything due by them and having liquidated the debts of the Coolies now in question. (Signed) L. H. Kelly. Orenier, for respondent, stated that he would not object to a re- hearing. Cur. adv. vult. Per Stewart, J. — (October 14th)— "Set aside and case remanded for fiirther hearing on both sides, and judgment de novo. Prom the evidence it would appear that the names of all the accused were en- tered in the Check Roll of the Wanna Rajah Estate, and that the defendants were actually employed on that estate immediately pre- ceding the date of their alleged desertion. The circumstance of the defendants having been brought to the estate by Mari Cangany or his Agents cannot aflect the liability of the defendants and their obli- gation to serve their employer, they having once entered his service. The cangany and the coolies of his gang are alike servants within the meaning of the Ordinance, bound to serve the prescribed time ; neither Oct. 14. 90 PART r.— the one nor the other being at liberty to quit the service of his em- ployer without due notice or leave, or reasonable cause. It is evi- dent that the defendants, at any rate the 1st, 2nd and 3rd, were aware of the necessity for giving notice. These three defendants had, along with several other coolies, given notice of their intention to leave the estate. The other coolies who had joined in the notice were duly paid oflf on the 1 8th August, except these defendants who had sometime before withdrawn their notice, and consequently were regarded as if they had given no notice. The remaining defendants do not appear to have given any notice at all. On the above facts the Supreme Court would have no difficulty in coming to a decision, but for the other question raised on behalf of the defendants, whether when the Superintendent (Mr. Black) received the cheque for Ks. 1 850, which was on the same day as that on which the defendants are charged with leaving complainant's service, he either expressly or by reasonable and necessary implication released the defendants from further service on Wanna Rajah. On this point fuller evidence than what is now before the Court is requisite, to allow of any satisfactory conclusion being found. Mr. Black says, ' Mr. Kelly sent me a cheque for Rs. 1850 to pay ofi Mari Cangany's debt.' Was any money then due by the defendants or any of them ? And, if so, was such sum comprised in Mr. Kelly's cheque ? Or was the cheque only received in liquidation of Mari Cangany's individual debt ? Was this payment made and received with the knowledge of the defendants ? And did anything pass between them, Mr. Kelly and Mr. Black with refer- ence to this money ? How came Mr. Kelly to give the money ? All that transpired between the several parties should be ascertained as fully and clearly as may be possible, with the view of determining whether either Mr. Black or Mr. Dunbar in any way assented to the defendants leaving the estate. The letter referred to in Mr. Kelly's affidavit should be produced." October 14. Present Stewart, J. Master Atten- J. P- C. Colombo, 83. The plaint was " that the defendants did, dant's Ordin- in the roadstead of Colombo, on the night of the 27th September, ance. 1873, in the canoe No. 38, go alongside of the barque ' ConiscliSe' before she was visited by the Health Officer of the port, in disobedi- ence of the Master Attendant's order dated 1 1th September, 1873, and in breach of the 24th clause of Ordinance 6 of 1865," The or- der referred to, as filed in the case, was as follows. POLICE COURTS. 91 I hereby give notice that from this date no boat or canoe shall eom- mnnicate or go alongside of any vessel arriving in the port of Colombo, nntil after she anchors in a proper berth and has been visited by the Health Officer of the port, and the vessel reported by him to be free from infec- tion. The tindal and boatmen of any boat disobeying these orders shall be liable to the penalty prescribed by law. (Signed.) James Donnav, Master Attendant, Master Attendant's Office, Colombo, 11th September, 1873. In appeal, against a conviction by the Mao;istrate (^DonnanJ Grenier, for the appellants, contended that the port-rule in question was illegal, as not having reference to any acts ejusdem generis with those specified in the 24th clause of the Ordinance. The power to make such a regulation as that of which a breach was alleged, was vested in the Government alone, under the 6th clause which required a proclamation in due form one month at least before the regulation could take efiect. Indeed, an order identical with that of the Master Attendant had been enacted by the Grovemment and pub- lished in the Grazette of the 27th September, thus impliedly shewing that Captain Donnan had no authority to act in the matter. But even supposing that the rule alleged to have been infiringed was legal, there was not an iota of evidence to shew that the Health Officer had not visited the ship before the defendants went alongside of her. Per Stewaet, J, — " Set aside and case remanded for further hear- ' ing. The words in the early part of the 24th clause of the Ordin- ance No. 6 of 1865 seem sufficiently wide to embrace such an infraction of the order of the Master Attendant as that charged ; but there should be some evidence to prove that the defendant came alongside of the vessel before she was visited by the Health Officer." } Oct. 14. P. C. Mullaittimi, 8301. The plaint was "that the defendant (a road overseer) did on the 30th of July, at Kanakararen Coolem, un- lawfully and maliciously cut and destroy the palmirah olas and fruits of the complainant's garden, in breach of the 14th clause of Ordinance 6 of 1846." The Magistrate (Smythe) held as follows : "Defendant had no business to cut olahs without complainant's permission. There is a bad feeling between the parties. Complainant has very much exaggerated matters, and I think a fine of Rs- 5, which is hereby inflicted on defendant, will meet the ends of justice." In appeal, Grenier, for appellant. — TJie Magistrate in his judgment found that the defendant had cut only olahs, which according to the evidence for the defence (not disbelieved) had been used for patching up Malicious Injuries Or- dinance. Oct. 21. 92 PART I. — water baskets uaed on road work. The 72nd clause of the Thorough- fares Ordinance authorized road officers to remove materials from adjacent lands. [But would olahs come within the meaning of the term materials? — Stewart, J.] The cutting of timber was expressly sanctioned, and if a tree could be cut surely the leaves thereof might be removed. The complainajit was applied to for permission to cut, but it appeared that he neither granted nor withheld such permission. There was certainly no malicious injury proved. Per Stewabt,J. — "Set aside. The Magistrate does not find that the act was malicious, nor is there sufficient evidence that the act was so ; the contrary rather appears from the finding of the Mi^gistrate," Toll. p. c, Matara, 72131. The plaint was " that the defendant (a toll- renter of Akuresse) did, on the 31st March, unlawfully demand and take toll from the complainant after previous payment was made at Talliggawille for the same bandy, contrary to the clauses 9, 17 and 18 of Ordinance 14 of 1867." The Magistrate ( Swettenham) held as follows : " The toll at Talliggawille appears to be one of those autho- rized by Ordinance 14 of 1872, although no proclamation has been made to declare collection at that place. I have searched in vain for any provision that paying toll at Talliggawille should olear Akuressa or vice versa. There is nothing to render defendant's conduct illega|., or even morally wrong. Defendant is acquitted." In appeal, per' Stewart, J. — Affirmed. October 21. Present Stewakt, J, Maintenance. P. C. Galle, 85380. The accused was charged, under the Vagrant Ordinance, with not maintaining his wife and child. The defence was that the husband and wife, who had married in 1 868, had shortly after the birth of their first child separated by mutual consent, when under a notarial deed sufficient provision, it was alleged, had been made for the support of the wife. The complainant's father deposed as follows: " The parties lived together about two years and separated five or six years ago. Complainant's mother is aUve. Defendant is possessed of property, and so is complainant. There was a deed written between the complainant and defendant prior to the separa- tion. Since that deed was written complainant has lived with me. She did not bring back any property. The child was 6 or 7 months old at the time of separation. Defendant went to Anuradhapoora and Colombo." This was the only evidence in the case, the Magis- POLICE COURTS. 93 ) g^ 2]. trate (Zee) recording that " the facts were not contradicted and that the deed was admitted by complainant." In appeal, against a conviction, (Layard for appellant, Orenier for respondent) per Stewart, J. — " Set aside and the case remanded ^ for further hearing. The Supreme Court concurs with the Police Magistrate in holding the deed void. But as by that document the complainant agreed to retain her own property (from the evidence it would appear she has property) separate from her husband, and to forego her right as well as that of her child to maintenance from the defendant, who may therefore have supposed that his wife and child were being supported from the property thus set aside, the Supreme Court considers, under the circumstances, that this case should go back for ftirther en quiry generally, and also as to whether any de- mand was made for maintenance from the de fendant, and whether he was aware that his wife and child were being maintained by others. The value of complainant's property referred to by the 1st witness (father of complainant) is not stated. No doubt in general a demand for maintenance is not necessary, the ofience consisting in the party leaving his wife or child without support whereby they become chargeable to others. If, however, the husband or father has in fact made sufficient provision for his wife or child, and bona fide was under the beUef that they were being supported as had been arranged, the case would both in law and reason stand on a different footing, there being neither the mens rea nor mens conscia necessary to render a party criminally liable. It will be seen that there is no difierence in reality between the judgments of the Supreme Court in the Panwila cases referred to. In 4890 (II Bel. 93) the ordinary rule was laid down. The other case (4577, Ibid 87) was of a special character, the wife having left her husband no less than ten years befor«, taking her child with her." P. C. Puttalam, 6^4:0. The charge was " that the defendant did, Disorderly on the 3rd October, 1873, at Puttalam high road, behave in a riotous conduct, and disorderly manner, in breach of the 2nd clause of Ordinance 4 of 1841." The order of the Magistrate, ( PoZe) refusing a summons on the plaint, was as follows; "Complainant states^defeudant scolded me with filthy words. Nothing else. C!>se dismissed." In appeal, per Stewaet, J. — " Set Jiside and case remanded for hearing. The plaint discloses a legal oftence. The examination of the com- plainant is so scanty that it aftords no sufficient facts to allow of any safe conclusion being drawn. It will be seen that the 2nd section, of the Ordinance No. 4 of 1841 is in the disjunctive, providing for the punishment not only of persons behaving in a riotqua manner, but also Oct. 28. 94 PAET I. — for the punishment of persons behaving in a disorderly manner in the public street. Whether the conduct of the accused, having regard to the language used, his tone, demeanour and acts, amounted to dis- orderly behaviour in the public street, can only be safely determined upon a consideration of all the circumstances as they may be proved in evidence." October 28. Present Stewaet, J. Gambling. P. C. Chilaw, 94G7. The charge was "that the defendants"— (nine in number) — " did on the night of the 7th October, at the house of the 1st defendant in Vattically, which is used as a promiscuous gaming house, engage at a game of chance with dice, in breach of the 4th section, 4th clause of Ordinance 4 of 1841." The Magistrate ( Wragg) found the accused guilty and sentenced them to a fort- night's imprisonment each, excepting the 1st who was sentenced to pay a fine of B»- 50 and to be imprisoned at hard labor for six months. In appeal, {Grenier for appellant) per Stewaet, J. — " AiBrmed, save as to the sentence upon the 1st defendant, which is altered into the same as that passed upon the other defendants. The defendants were all charged with a breach of the 4th clause of the 4th section of Or- dinance No. 4 ofl841, No charge was laid under the 19th section, nor does the plaint distinctly allege in the words of this section 'ihat the 1st defendant kept or used the house for the purpose of commoa or promiscuous gaming, etc." Labor ^- ^- Matara, 72220. The defendant, who was described in the Ordinance, plaint as " a monthly paid servant under complainant as Toddy- drawer, " was charged, under the Uth clause of Ordinance 11 of 1865, with having left his employer's service without notice. The com- plainant in his evidence stated: — "the defendant was employed under me as a monthly servant as Toddy-drawer. I used to pay defendant Jis- 3 a month and f of a penny for every gallon of toddy extract- ed." In appeal against a conviction by the Magistrate (Jumeaitx), Ferdinands, for appellant, contended that the defendant in his capacity as a toddy-drawer would not come within the operation of the Ser- vants' Ordinance. Bed per Stewaet, J. — Affirmed. Paddy-tax. P. C. Balapitimodera, 44456. The defendants were charged by » Government Paddy Renter, under the 14th clause of Ordinance 14 of 1840, with having cut, threshed and removed the paddy crop of a certain field, without giving notice or contributing the 1- 10th share POLICE COURTS. 95 \ due to Government. The complainant in his evidence having stated that he had appointed one Andris, though not in writing, as his Agent to collect the rent, the Magistrate (Gibsan) acquitted the defendants, holding that the complainant had forfeited his right to prosecute under the provisions of the 13th clause of the Ordinance. In appeal, per Stewaet, J. — " Set aside and case remanded for further hearing. It does not clearly appear from the examination of the complainant, whether Andris' appointment as Agent was notified by the renter to the principal headman of the division as required by the Ordinance. The prosecution, however, in this case has been insti- tuted not by Andris but by the renter himself. The evidence should be heard. How the informal appointment (if such it be) of Andris as agent bears on the case is not shown in the present pro- ceedings. If the renter had no duly qualified agent or the renter himself was absent, notice should have been given to the nearest head- man. See 10th section of Ordinance 14 of 1840." Oct. 28. P. C. Batticaha, 6248. The defendant was charged with having Resisting Po- resisted the complainant in the execution of his duty as a Police lice Headman. Headman, in breach of the 165th clause of Ordinance 11 of 1868. The Magistrate ( fVorthiiiffton) held as follows : " The evidence es- tablished the fact that defendant did resist complainant in the lawful execution of his duty, but looking to the acts of complainant prior to the descent of defendants from the house they were thatching, to the illegality of the arrest of Armogam in the absence'of a warrant, etc, I consider that the imposition of a fine will meet the requirements of the case. The question irresistibly presents itself also to my mind, would the complainant have been so zealous had the position been reversed, viz, Setukada people, complainants, v, Valeyurava people. Defendants are fined JRs- 10 each." In appeal, per Stewaet J.— " Set aside. This is a charge for resisting the complainant in the execution of his duty in breach of the Ordinance 11 of 1868, section 165, according to which it is necessary that the resistance take place in the execution of some duty imposed by that Ordinance. The arrest of Armogam was not authorized by any of the provisions of the Ordinance referred to. The charge against him was only one of assault. No oflence was committed by him in the presence of the complainant, nor did complainant find him manifesting any intention to commit a crime or a breach of the peace. See section 144. The evidence accordingly fails to show that the complainant was obstruct- ed in the execution of any duty imposed upon him by the Ordinance 11 of 1868. It should be noted that the plaint is not laid under the Ordinance 4 of 1841, sections 7 and 12." Nov. 5. Mnnicipal Bye-laws. Previous con viction pleaded. 96 PART I.- Paddy Ordinance. Preservation of Game Ordinance. November 4. Present Crbast, C. J., Stewart and Catlet, J. J. B. M. Galle, 2914. The defendant was charged under clause 2 of Bye-laws chapter 22, with having failed to construct a new drain through the premises No. 315, although he was required to do so in writing on the 9th September last. For the defence it was contended that a previous conviction in case No. 2846 was a bar to the present prosecution. In appeal, against a conviction, per Stewart, J. — " Affirmed. The original order was produced, and is now in the pro- ceedings. The oflence now charged is for not constructing a drain as required by notice in writing served on 9th September. The case No. 284fi was in respect of a distinct charge under notice served on the 5 th May. F. C. Kalutara, 49425. The defendants were charged, under the 2nd and 6th sections of Ordinance 14 of 1844 with having cut and threshed their paddy crop without notice. The Magistrate QPower) acquitted the defendants, on the ground that the wrong clause of the Ordinance had been quoted and the amount of the tax had not been stated, adding "that in the absence of the latter the Court cannot punish, as the punishment must be regulated by the amoimt due. " In appeal, per Stewart, J. — " Set aside and case remanded for fur- ther hearing, with liberty to the complainant to move to be allowed to amend his plaint by substituting the correct section and Ordinance infringed. The oflence charged consists in defendants having cut and threshed his crop without giving due notice. The extent of the crop and the value of the Government share, are only necessary to be as- certained for the purpose of punishment and need not in strictness be stated in the plaint." November 5. Present Cebast, C. J. and Stewart and Catlet, J. J. P. C. Puftalam, 6i\ 3. The plaint was -'that the defendant did on the 14th day of September, 1873, at Aramuthuwavakille, kill game without a license and possess meat of game which they could not ac- count for satisfactorily, in breach of the 3rd and 6th sections of the 1 1th clause of Ordinance 6 of 1872." The Magistrate (iSmart) held as follows : " The Ordinance in the 5th clause is thus worded : no person shall kill game out of the division of the Korale Vidahne Arachchi or Udaiyar in which he resides without a license. So that, 80 far as I can imderstand, by this villainously worded Ordinance any one may kill game without license within the division of the Koralle, POLICE COURTS, y. &c., in which he resides. New this elk was shot by 3rd defendant, Era- muthuwewa, within the Wadawutohia Palata (in which 3rd defendant lives) and consequently within the jurisdiction of the Koralle of the Tala- wanne Pattoo ; so that it would seem that defendant has not committed a breach of the Ordinance. The Ordinance is framed apparently with a view to the mode of division of the Western and Central Provinces, for there is no such officer as the Koralle, Vidahne Arachchi or Udaivar in this part ; but if the true intent of the Ordinance is followed, I con- clude that one who kills deer within the jurisdiction of the Koralle- ship in which he resides commits no breach of the Ordinance, It is difficult to conceive the use of the enactment, if this be the meaning of the Ordinance, for natives never travel far from their villages for shooting, and now that they have such liberty granted to them by the Ordinance the preservation of game will not be in the least assisted in the non-close season. Defendants are found ' not guilty' and are acquitted. I hope an appeal will be taken to settle the point." In appeal, per Catlet, J. — " Affirmed. It is not alleged in the plaint, nor proved by the evidence, that the elk was killed out of the division of the Korale, Vidahn Arachchi, or Udaiyar in which the 3rd defen- dant resided. Under the 5th section of the Ordinance No. 6 of 1872> persons are prohibited from killing bufialoes, without a special license, either within or without such division ; but elk and deer may be killed in the open season without any license, if killed within the division of the Korale, Vidahn Arachchi or Udaiyar, in which the tiller resides. It appears that there is no officer with the title of Koralle, Vidahn Arachchi or Udaiyar, in the district within which these defendants reside ; but the Supreme Court thinks that the words Korale, Vidahn Arachchi or Udaiyar may be considered distributively ; and in the present case it was proved that the elk in question was shot within the division of the Korale in which the 3rd defendant, the killer, resided," Nov. 11. November 11. Present Creasy, C. J., Stewart and Catlet, J. J. P. C. Galle, 85877, Five defendants were charged with assault. Costs, The Magistrate (Zee) having disbelieved the evidence entered a ver- dict of acquittal and condemned the.complainant to pay each of the accused 50 cents. In appeal, per Cbeast, C, J, — " Affirmed. The acquittal was clearly right. As to the order on the complainant to pay the defendants 50 cents each, the appeal urges that there was no proof of the defendants having been put to any actual cost, but the loss of a man's time and the trouble which he is put to by having to attend the Police Court come fairly within the term ' reasonable ex- penses ' in the Police Ordinance 18 of 1871, clause 4," ) 98 PART I.— Nov. 11. >■ Informer's P. C. Matara, 72602. This was a charge for a breach of the .5th share. clause of the Ordinance No. 2 of 1836. The Magistrate (Jumeaux) having found the defendant guilty, in that he had used short measures, sentenced him to pay a iine of Rs. 20, of which Rs. 5 was ordered to be paid into the Police Fund, the complainant being a Police Inspec- tor. In appeal, per Stewart, J.—" Affirmed, but so much of the judgment as directs that Rs. 5 of the fine be paid to the Pohce Fund is set aside. The Ordinance does not authorise any portion of_ the fine being paid to the informer." Case struck P- ^^- Joffna, 2985. This was an appeal against the order of the off. Magistrate {Murray) striking oflf the case. Per Ckbast, 0, J.— " Affirmed, The complainant, through his counsel, agreed to give up the case." Labor P- <^- Oampola, 25024. The plaint was as follows : " that the de- Ordinance, fendant, being a journeyman artificer bound (by a written contract executed jh the manner prescribed in the 7th section of the Ordinance No. 11 off 1865. and hereunto annexed, marked A) to .serve the com- plainant, did on the 10th day ot October, 1873, quit the service of the complainant, without leave or reasonable cause, before the end of his term of service, and without working ofi or paying off the advances mentioned in the said contract, in breach of the 1 1th clause of the said Ordinance." The contract, which had been signed by the parties in I he presence of Mr. Pennet, Police Magistrate, was to the following effect : that the defendant, acknowledging the receiptfrom complain- ant of Rs, 83, boxmd himself to work ofl the advance by serving in the capacity of boot and shoemaker at one rupee and fifty cents week- ly or six rupees per month ; that the defendant agreed to accompany the complainant, whenever required, to Kandy, Pussilawa or Navala- pitiya on being paid his expenses ; and that the defendant should have the right of claiming his discharge at any time on paying up the amount due to his employer. The complainant in his evidence stated, "defendant was employed under me to make boots, as I am a boot' maker. He left my service without giving me notice. He was bound under me on the written contract I have filed. I had only recovered from defendant Rs. 15 of his advance. Cross-examined. — On the 8th ultimo, (8th Septembrr) he told me he would leave my service, but did not pay me his advance as agreed before leaving." The Magis- trate (Neville) found the defendant guilty and sentenced him to 3 months' hard labor. In appeal, per Creasy, C. J. — " Affirmed. This case clearly came within the Ordinance." POLICE COTJETS. 99 Nov. 14. p. C. Pussilawa, 9314. This was an appeal against a conviction Arrack and sentence under the 29tli clause of Ordinance 10 of 1844, the de- Ordinance, fendants having been charged with retailing arrack, for the purpose of being consumed on the premises within which the same was sold, without a license from the Government Agent of the Central Province. Per Stewart, J. — " Affirmed. The charge should have been laid under the 26th and not under the 29th section of the Ordinance. The error, however, is not one that could have in any way prejudiced the substantial rights of the defendants." /. P. Jaffna, 11074. This was an appeal against an order of the Security to Justice of the Peace requiring heavy secm-ity from the accused to keep the keep the peace, under the provisions of clause 223 of Ordinance 11 of peace 1868. Per Catlet, J. — " Affirmed. The defendants, four in number, after a previous assertion of their intention, came at night on two oc- casions and twice removed a stile which the complainant had put up to protect his field during the crop season. The stile, after its first demohtion by the defendants, had been restored with the sanction and \ under the directions of the Police authorities. The fact that the de- fendants claim a right of way over the place where the stOe is erected, will not excuse this violent assertion of their supposed right ; and it is difficult to conceive any act more likely to occasion a breach of the peace than those committed by these defendants. The Justice of the Peace was accordingly fully justified in binding over the defendants to keep the peace." November 14. Present Cebast, C. J., Stewart and Catlet, J. J. P. C. Newera Eliya, 8904. The plaint was " that the defendant did, on the 2nd day of September, 1873, at Odupussilawa, sell a bottle oilj'in^nce of intoxicating liquor on credit or trust, in breach of the 25th clause of Ordinance 7 of 1873."* It appeared from the evidence that the accused had supplied Mr. John Findlay with a bottle of brandy on a written order which, however, was not produced. Pindlay's evidence was to the following efiect. " I had dealings with Armugam Chetty, the master of defendant, in general stores, etc. I did not pay for the bottle of brandy, or send the money. I sent for it on my account. The defendant's principal was away at the coast at the time and I do * The defendant had previously been charged in case No. 8899, under the 10th clause of the Licensing Ordinance, for selling the bottle of brandy in question without a license and had been acquitted. Nov. 18, •{ 100 PART I. not know how our accounts stood. I had sold 275 bushels of Coflee of this season to defendant's principal. He had partly paid in cash for the Coffee. He left the Island on a sudden, and did not settle accounts with me, and 1 received goods from him from time to time of which account was to be taken afterwards. 'I have no dealings with defendant, and have no accounts with him, and look upon him as the shopman of Armogam Chetty. I cannot say how my accounts stand with him. There may be a few rupees due on either side.'' The JVIagistrate {Hartshorne) convicted the defendant, and fined him Rs. 50. In appeal, Grenier, for appellant. — There was no credit asked for or given in this case, as it appeared that there were monies in the hands of the defendant or his principal due to Findlay who, according to his own evidence, had agreed to receive goods from time to time in liquidation of the debt. But apart from this, the 25th clause could not be taken to apply to the defendant, who was neither a licensed dealer nor a, tavern keeper. Per Stewart, J. — " This is a charge laid under the Ordinance 7 of 1873, section 25, which enacts that ' if any licensed pei'son or any keeper of a tavern shall sell any intoxicat- ing liquors on credit,' etc. The plaint, however, does not allege, nor is there a word in the evidence to prove, that the defendant was either a licensed person or a keeper of a tavern." Appeal, J p Negombo, 8793. The defendant had been charged on an affi- davit with cattle stealing. The Justice of the Peace (Ellis) after hearing the evidence of the complainant and his witnesses discharged the accused, holding that he believed the case to have been entirely got up by the peace, officer of the village, In appeal, by the complainant, per Creasy, C. J " No appeal lies in a case like this." Appeal. P- C. Galle, 85315. This was an appeal against the following or- der of the Magistrate (Zee) " Complainant not ready. Struck off. The case has been postponed time without end, and I will give no further postponement for any cause whatever." Per Creasy, 0. J. — " It is ordered that the appeal lodged in this case on the 6th Novem- ber, 1873, be dismissed." November 18. Present Creasy, C. J. and Stewart and Cayley, J. J. Ordinance F. C. Point Pedro, 13194. The plaint was "that the defendant preventing did, on the 21st September, at Vallevuttethurrie on the North-eastern ''''^*™fish"' °* ""^^ °^ Parrethurrie, within the jurisdiction of the Court and within a POLICE COURTS. 101 Nov. 26. league from the shore, use a net in the sea commonly called " veele valey" in catching fish, in breach of the 2nd clause of Ordinance 19 of 1866 and the Proclamation of 30th October, 1869." The Magis- trate {Drieherg) held as follows : " The offence with which the defendants are charged is one exceedingly difficult of proof, as is evidenced by the fact that there has been as yet no conviction under this Ordinance. All the facts in the case are clear, and the only point on which there is a conflict of evidence is as to whether defendants were picked up within 3 miles of the shore or beyond 3 miles of the shore. The evidence on the point that the defendants were picked up within a mile of the shore, coupled with all the circumstances of the case, is conclusive to my mind a£ to the guilt of the defendan ts. The ofience in question is one which acts very prejudicially on the fishing trade, and the defendants must be severely punished. The defendants are accordingly adjudged to be guilty and are sentenced to pay a fine of Ks. 30 each." In appeal, per Stewakt, J. — Affirmed. P. C. Matara, E. The defendant was charged, under clause 2 of Ordinance 24 of 1 848, with having unlawfully cut timber on Crown land without a license or permit. The Magistrate (Jumeaux) refused to entertain the charge in the following order. " The Ordinance re- quires that the Deputy Queen's Advocate should grant a certificate that he elects to try the case in the Police Court. There is no certi- ficate from the Deputy Queen's Advocate, but only one from the Assistant Government Agent. See No. 71,746, P. C. Matara, in appeal, dated September 5, 1873." In appeal, per Ckeast, C. J. — " Set aside and case sent back for hearing. In the case in Grenier's Reports, which has been referred to, there was no certificate by any one at all. In the present case there is a certificate by the Assistant Government Agent, which is quite sufficient under the terms of Ordi- nance 11 of 1868, clause 99, in a matter which affects the revenue." Timber Ordinance. Jurisdiction. November 26. Present Creasy, C. J. and Stewakt and Catlet, J. J. P. C. Avishawella, 16993. The defendant was charged, under the 4th clause of Ordinance 2 of 1835, with having allowed two head of cattle to trespass at night in the Police Magistrate's premises. The Magistrate (Byrde) held as follows. " In this case the defence set up is that the prosecution should prove that a fence protected the land or that the land by local custom required no fence. It is obvious that Cattle tres- pass. Nov. 26. 102 PART I. — at the present time there is no fence on two sides of the Magistrate's premises ; bnt inasmuch as the previous Magistrates put up and kept a fence to protect their flower garden (it seems that the fences were put up by prisoners at the Magistrates' discretion for the convenience and pleasure of the Magistrate then residing) and since the with- drawal of the prisoners from labouring on Government grounds, it cannot be maintained that the public have aright to send their cattle to graze on Government premises, disturbing the rest and peace of the resident ilagistrate. " The defendant was accoi-dingly found guilty and sentenced to pay a fine of Rs. 5. In appeal, (^Ferdinands for appellant) per Caylet, J. — " Set aside and verdict of acquittal entered. Before persons can be criminally convicted under the Or- dinance jSTo. 2 of 1835, the requirements of that Ordinance must be strictly complied with ; and no person can be fined for cattle trespass, unless it is proved that the land trespassed on is protected by such a fence, if any, as the local custom may prescribe. In the present ease the land is not fenced, and there is no proof that the local custom dispensed with any fence. Indeed, it appears from the evidence called by the defendants and from the letter of the Police Slagistrate that the land formerly used to be fenced. The Police Magistrate appears from his letter to suppose that, if the owners of trespassing cattle can- not be convicted under the Ordinance, there is no redress for the evil complained of. But any person who has been injured or annoyed by cattle trespass has his civil remedy, including the right of distraining the cattle damage feasant ; for the Ordinance 2 of 1835 has not taken away any civil remedy which the original party may have at common law, (546«, C. R. Batticaloa, S.C. Min. 31 May, 1866) but has merely provided a more summary mode of procedure." Labor P. C. Matale, 51^\. The defendant, a cangany, was charged, under Onl,„a„ce. the 19th clause of Ordinance 11 of 1865, with having seduced away from complainant's service a cooly named Adappen, who appeared to be a boy of about 12 or 15 years of age. The Magistrate (Penney) found as follows. " The Counsel for the defence having stated that the witne,sses he proposed to call are to give evidence only to the fact of Adappen having volunteered to accompany the accused, the Court con.siders that their evidence need not be taken. Considering the facts of the case, the t'ourt does not attach much importance to the statement made by Adappan, that the accused offered him money and other things to accompany him, as this was very probably put forward by Adappen as an excuse for bis own fault of desertion. The fact, however, remains that the accused was found with the boy Adappan PotiCE cotnfrs. 103 in his company in the middle of the night away from that boy's estate, and it is a most reasonable supposition to presume that some encour- agement or at least consent must have been given by the accused to Adappen before he left his master's estate with him. The accused must have been well aware that Adappen had no permission to leave the Estate, and the Court is of opinion that his act came within the operation of the 19th clause of Ordinance 1 1 of 186.5. The accused is convicted and fined Rs. 50 and to pay the expenses of complainant." In appeal, (Gremier for appellant) per Catlet, J. — "Set aside and sent back in order that the proposed evidence for the defence may be heard. If after hearing the evidence the Police Magistrate is satisfied that the accused in any way induced the boy Adappen to leave hia master's service, the accused should be convicted. But mere assent on the part of the accused to allow the boy to accompany him, is not sufficient to render him criminally liable under the 19th clause of the Labor Ordinance." Dec. 2. December 2. Present Stewart, and Catley, J. J. P. C. Panadure, 21911. A charge of assault was disuiissed by the Costs. Magistrate {Morgan) who, believing the case to be a false and frivol- ous one, made order as follows : " defendants are acquitted and dis- charged, and complainant is fined Rs. 15 to be given over to the defendants." In appeal, per Caylet, J. — " Affirmed. The complain- ant is not fined under the 106th clause of Ordinance 11 of 1868, but he is ordered to pay Rs. 15 to the defendants which the Police Magistrate no doubt considered to be the amount of their reasonable expenses. It is competent to a Police Magistrate to award such ex- penses at the trial of the case under the 4th clause of Ordinance 18 of 1871." P. C. Galle, 85539. The defendants were charged, on the 24th Implied sub- July, 1873, with assault. After several postponements, the following stitution of order was made by the Magistrate (Zee) on the 20th August. Complamant. Complain.nnt present Defendants reported to be in concealment. Ex- tended to 17th September. I have since understood that the complainant is dead. Some one has answered to her name when the case was called in the mornine;. Let war- rant of arrest issue to defendants, and let comp'ainanfs brother prosecute. The case came on for trial on the 22nd Novembei', when after the evidence for the prosecution had been closed the defendants' Proctor took the objection that the proceedings were irregular, and that, in the absence of the complainant on the record, the case should have „ „ ("104 PART I. Dkc. 9. -< been struck ofl. The Magistrate, however, convicted the accused, who were each sentenced to three months' hard labor and to pay a fine of Rs, 50. In appeal, Orenier, for appellant. — There had been in point of fact no substitution on the record of a new complainant ; and the leg;al objection had been taken at the trial. The irregularity could not be held as cured by the defendants having pleaded, for even where one prosecutor had been substituted foi another, the Chief Justice was of opinion ( Worthingiun's Case) that the proceedings should be quashed as illegal. That opinion, though not adopted by a majority of the Court at the time, had recently been cited with approval by Mr. Justice Cayley in P. C. Matara, 71720 (August 19th); and it was open to the Supreme Court to reconsider the point. Sed per Stewakt, J, — " Affii-med. The order of August 20, 1 873, must be taken as equivalent to an amendment of the plaint," December 9. Present Stewakt and Catlet, J. J. Maintenance, P- C. Galle, 85580. This case, which is reported in page 92, hav- ing been sent back for rehearing, the Magistrate (Zee) after record- ing further evidence gaveiudgment as follows. "The evidence in this case is very simple, but the points of law which have arisen are of considerable interest. The defendant is indicted, under section 2 of the 3rd clause of Ordinance 4 of 1841, for deserting his wife and ' child. By a deed of agreement, dated the 8th January, 1868, the parties agreed to separate. By the Ist clause of that deed, it was agreed that each party should receive back the dowry presents which are expressly termed jeweh-y and moveables. No turther provision was made by the husband. There is a provision for the dissolution of the community of property and an undertaking on the part of the wife not to prosecute for maintenance of herself and child. In the de- cision given by me on the 25th September, I stated at length my reasons tor holding this deed void in law, and on that point the Appellate Court approves my ruling. It is proved that the defendant has not since the date of this separation made any provision for his wife and child. The Supreme Court reversed my former finding, as I apprehend, on the ground that there was no evidence of mens rea, and that there was evi- dence that the wife had property of her own and that defendant might reasonably have supposed that his wife and child were maintained out of the proceeds of that property. I have re-examined the wife's father, and it ii explained that he has property but that his daughter has nothing but the dowry property she brought back with her, POLICE COURTS. 105 ) _ raluerl at Rs. 4oO. It is clear that this property was not enough to maintain tlu; wife and child for more than five years. Supposing it to have been enough, it is still questionable whether the indictment would not have been sufficiently supported by the evidence as regards at least the child, the wife being one of the "others" in the section un- der which defendant is indicted. This is a point of some importance which still awaits authoritative settlement. The Supreme Court ex- pressly reversed the decision in a Matara Case, while holding that a mistress was comprehended in the word " others." It is further to be remarked that this dowry property was part of the wife's paraphernalia —part of the luxury to which her station entitled her — and 1 am not prepared to hold that it is competent for a husband to throw his wife on her own resources and subject her to menial service for her main- tenance, when his means and her position entitled her to exemption from that service It is true that the words of the Ordinance are "with- out maintenance," but I take it that " maintenance " signifies main- tenance in the station to which she is entitled, and that where the husband has the means he is bound to furnish his wife with those means and not make her chargeable to others for what are to a deli- cately nurtured woman necessaries. In this connection I have referred to Lord Penzance's judgment in Kelly v. Kelly (L. T. R. xxi, N, S. 561), and I think my views in this matter are supported by that hio-h authority. This being so, I am unable to perceive any grounds fur attributing to the defendant a bona fide belief that his wife was not supported by others. He must have known her circumstances. It was his duty to enquire into them, and if he did not enquire his pre- vious knowledge of her as well as a process of ciilculatiDu as to the proceeds of the dowry property would have shown liim that his wife and child could not but be chargeable to others. It has been stated by the learned Counsel who has ably set before me every argument in favor of the defendant that she has her recourse in the District Court for alimony. Truly she has ; but why should she be driven to use the cumbrous and tardy machinery of that Court, when she has a speedy method of bringing her husband to his senses ? I do not forget the danger of this Court being made the scene for a preliminary trial of a suit for the restitution of conjugal rights, but wliera an offence has been committed, it is clearly my duty to punii-h the offender. I may add that I find that complainant had no property of her (;wn beyond the jewelry rendered back to her by her husband ; and that 1 disbe- lieve so much of Janis' evidence as goes to show a demand for main- tenance, I find the defendant guilty. lie is sentenced to pay a fine / D«c. 16. 106 PART I. of Rs. 3, Rs. 4 of which I allot to complainant. I further order that the defendant do pay to the complainant her reasonable expenses." In appeal, (Layard for appellant, Qrenier for respondent) perCATLur, J. — " Affirmed. The Police Magistrate has found as a fact that the complainant's property was not sufficient for maintenance of herself and her child, regard being had to the condition in life of the parties (see 8713, P.O. Harrispatfu, S. C. Minutes, 8th November, 1866); and it is also clear that the defendant must have known this, knowing as he did the amount of the wife's property." December 16. Present Stewaet and Caylet, J. J. ConTiction i'. C. Galle, 86821. The defendant, who wag the driver of a incoiisistent carriage, was charged under clause 8, chapter 23, ot the Municipal wi p amt. Bye-laws with having refused to let his vehicle on hire to complainant. The Magistrate (Zee) gave judgment as follows : " I find defendant guilty of assault. It is clear that Mr. 8cott gave the accused a severe beating after he (accused) had attacked him ; and hence I do not punish him as severely as I otherwise should. Fined Rs. 10." In appeal, (Grenier for appellant) per Stewart, J. — " Set aside. The defendant is charged in the plaint with refusmg to let his vehicle on hire to the complainant, in breach of a Municipal bye-law. The de- fendant, however, has expressly been found guilty of assault, an offence not charged nor even alluded to in the plaint. The conviction is accordingly set aside. The proceedings are also irregular, in that the plaint does not bear the requisite stamp." Theft. P. C. Newera Eliya, 8894. The plaint was " that the defendants (three in number) did, on the 28th day of February, at Nuwera Eliya, steal one table cloth of the value of Rs. 20, the property of the com- plainant ; also that the lit defendant did have and receive the said property, knowing the same to have been stolen." It appeared from the evidence that the complainant (Hawkins) had given the cloth in question to his dhoby, the 2nd defendant, to be washed ; that subse- quently, the 2nd and .3rd defendants were seen selling the same to the Hambodde rest-housekeeper, the 1st defendant. In the course of the investigation, the complainant's Proctor moved to withdraw the charge against the 3rd defeniliint and make him a witness in the case. The Magistrate [Hartshorne) however refused the motion, and, having found the 2nd and 3rd accused guilty, sentenced each of them to POLICE COURTS. 107 ) ^a > Ubc. 16. twenty-one days' hard labour. In appeal, (Grenier for Srd appellant) perSTEWAET, J. — ''Affirmed as to the 2nd defendant ; set aside as to the Srd defendant. The charge against the 3rd defendant is not for receiving, but only for theft. There is no evidence to show that this defendant stole the table cloth. The evidence points to the 2nd de- fendant as the actual thief." P. C. Kandy; 96l}9. The question in this case was whether the ForcibU Agent of a Receiver appointed by the District Court of Kandy was entry, justified, while taking possession of a Coflfee Estate, in using force to the extent of breaking open the door of the Estate bungalow and threatening to kick out the complainant it he did not leave. The plaint, as filed of record, was as follows : . "That the 1st defendant, aided and abetted by the 2nd, 3rd, 4th and 5th defendants, did on the 21st instant take forcible possession of certain moveable property belonging to Mr. H. E A. Yoang, Senior, and also of the Bungalow on the Keremettia Estate, of which the complainant then had the possession and occupation as the Agent of Dr. Dodsworth, who is the proprietor of the said Estate, in breach of the Proclamation of the .5th Augnst, 1819. On the case for the prosecution being closed, the defendant's Proctor addressed the Court, justifying the conduct of the accused, and con- tending that the plaint was defective in that the words " without the authority of a competent Magistrate'' and -'to avenge themselves for an injury," were omitted. The complainant's Proctor, who was heard in reply, moved to be allowed to amend the plaint ; but this was dis- allowed by the Magistrate (Stewart) who held as follows : " It is not denied that the first defendant was employed by Mr. Duncan, a Receiver appointed by the District Court, to take charge of the crops, and of the Keremattia estate, and that to carry out the functions of a Receiver, the 1st defendant on the day in question proceeded to the Estate in company with the 2nd defendant, the former Superintendent, and the Srd defendant, the agent of Messrs Mackwood and Co., the mortgagees of the Estate. Besides the question of amendment lastly raised, a question of law more important, and which is connected with the one of fiict, has also been raised in this case, namely, whether a Receiver has the right also of possession. The Court will first consider this question, as in the consideration of it, it will be necessary to see how far possession, alleged to have been forcible, was necessary or incidental to the exercise of the functions of a Receiver, that office implying competent authority, the absence of which. D.C. 16. {!"« ^^"^^- it is important to remark, creating the offence. For its exercise, it cannot be denied that possession was necessary, and if not expressed it must be implied, as incidental powers need not be expressed. It could not have been expected or intended that the Receiver should receive the crops and without having a place to go to to occupy the estate. Nothing could be more inconsistent with the power conferred. Possession therefore was not inconsistent but aecessary in the eisercise of the power ; and thia, brings the Court to the consideration of the queatioa how far the evidence under the circumstances supports the charge. It is evident that the defendants acted bona fide, with only apparently an hones^ determination of simply doing their duty in as harmless and inoflen-. sive a manner as possible : one and all seem to have been actuated by the same forbearance. There is nothing to warrant the conclusion, that they committed or even meant violence, and intimidation was neither attempted nor effected. On the contrary, it would appear that complainant was anything but intimidated ; for, acting under the advice of his friend, he sought to be ousted, returned to have that formally effected, and actually courted it ; but even then, when a differ., ent action might have b«en excusable, first defendant led him out, according to complainant himself, simply holding him by the arm, and that too after the authority had been produced and read. Such for-, bearance was certainly not consistent with force. It was more consist tent with what appears to be the fact, that they were acting in accor^ dance with the law than at variance with it. That should be the reasonable inference under the circumstances, especially in view of the forbearance that has been proved by complainant's own evidence } the law presuming, where an authority exists, as in this instance, to take possession, that such authority was legally and properly exercised till the contrary has been satisfactorily shewn. It is not like the case without any authority, and it is where parties actwithout even the semblance of one that the proclamation wSs intended to apply. The only witnesses called are complainant and his friend, Mr. Edema. They contradict each other in more than one important point, and the contradiction in regard to the key is as important as it is significant. It negatives the statement that force was used in opening the door, It would also appear that 2nd defendant had property of his in the bungalow. The Court will now consider the question of amendment under the existing rules. It is aware that amendment may be per-, mitted at any stage of a case ; but this rule, it does not think, was meant to operate in a case like the present, where any number of ai]iendments could not help the complainant, could not alter or meud POLICE COURTS. 109 facts, his own, nor make that an oftence which nothing in the case, either in law or fact, could convert it into. As already indicated, the charge of forcible possession is without the least foundation. The rule was intended to prevent a failure of justice where an offence was clear, and hence the wisdom of, and the necessity for, the rule. But in this case, to permit the amendment would be to defeat the object of the rule and to favour oppressive and frivolous litigation. The defendants are found not guilty." In appeal, Orenier, for appellant. — The plaint was no doubt defec- tive, but the motion to amend having been made before judgment, the Magistrate should have allowed it. The 1st defendant (Maitland) had no authority from the District Court, and only pretended to act (ts the Agent of the Receiver (Z)ancaB) of whose appointment, however, no record whatever had been produced at the trial or formally put in evidence! not even Maitland's alleged agency had been legally es- tablished. The complainant had proved the use of such force on the part of the accused as would justify a conviction under the Proclama- tion. The Fiscal, as the ministerial oflScer of the District Court, was the proper party to have placed the Receiver in possession ; and any resistance then by the complainant or others would properly have been punished as contempt of Court. Sed per CA-viiET, J. — *' Affirmed. The Supreme Court has repeated-' ly held that a charge under the Proclamation in question must allege that the entry was made '• without the authority of a competent Ma- gistrate," See 4374, P, C. Ratnapura, Beling and Vanderstraaten, p. 73, The plaint in the present case is defective in this respect. No amendment was applied for until the case for the prosecution was closed, and the counsel for the defendants had addressed the Court j and, in view of the special circumstances of this case, and particularly of the fact that the defendants a,cted under the bona-fide belief that they had the authority qf the District Court, the Supreme Court does not think thsvt the discretion of the Police Magistrate in refusing the amendment at so late a stage should be interfered vvith." Dec. 16. P. C. Matara, 72795. The charge was " that the defendant did, on n f t" the 3rd day of December, 1873, at Matara Oarawe, keep or suffer to plaint, be kept a land or garden in a filthy state or overgrown with rank or poisome vegetation, so as to be a nuisance to, or injurious to the health of, the persons in the neighbourhood, in breach of the 1st clause of Ordinance 15 of 1862." The Magistrate (Jumeaux) held as follows : ''The evidence ah-eady adduced, tojjelher with defendant's second Dbc. 23. (110 PART I.— plea," (of guilty) " put the matter beyond all doubt. The Assistant Government Agent interceded on behalf of ail the parties uited to-day under similar charges, and I consented to let them all oil with nominal fines on condition they pleaded guilty, so that should the thing recur again they could have no excuse. Defendant however refused to plead guilty, and wished to fight out the matter. He is found guilty (beyond all doubt), and sentenced to pay a fine of Rs. 10.'' In appeal, per Stewart, J. — " Set aside, and case remanded for fur, ther hearing. That the defendant is the owner or occupier of (he land in question is sufficiently to be inferred from his being charged in the plaint with keeping the land in a filthy state, in breach of the clause of the Ordinance referred to. The evidence adduced esta- blishes the fact: such an objection is too late after conviction. It does not, however, appear from the proceedings that the land is in w near any road or public thoroughfare. This is a cjrcumslance tb»{ should be established, and the case is accordingly remanded for that purpose, as well as for further evidence generally, Dr, Keith should himself be examined, instead of his opinion being taken second hand, as seemingly has been done. The plaint should he amended by its being added (if such be the fact) that the land is in or near a road, street or public thoroughfare, (in terms of the Ordinance.) We have further to point out that it ia the duty of the Magistrate to try causes laid before him and to adjudicate upon the evidence, and it is no part of his duty, and it is altogether irregular for him, to consent " to let parties off with nominal fines on condition that they pleaded guilty." Accused parties should be quite unfettered, and left to plead guilty or not of their own fipee will, uninflvtejiced by any proniise or expeoi tation of clemency i" December 23. Present Stewakt and Cailet, J. J. Forcible P- C. Galagedera, 19338. A conviction, on a charge offbrcible entry. entry under the Proclamation of August 5th, 1819, was set aside by Mr, Justice Stewart iu the following terms : " The plaint is defective, in that it rloos not state that the land was in the occupation of the complainant. The evidence also on the plaint is of a very uncertaia character. The defendant, it would appear. Uvea on a portion of the land, and it is not shewn that the complainant occupies or resides on any part. Besides, according to the last witness for the prosecution, the six lahas (where the 1st defendant resides) was the portion where the defendant picke 1 cofiee." {Ferdinands for appellant.) rOLICE COXJKTS. Ill Die. 2S. P, C. Puitalam, 6559. This was a charge of assault and cocoanut Wrong stealing. On the morning of the day fixed for the trial, the complain- '^ " ant happening to be absent when the parties' names were called the case was dismissed. Shortly after (on the same day) he tendered an affidavit, explaining that he had been unavoidably delayed ten min- utes, having had to come to Court from a great distance, but the Magistrate (Pole) refused to interfere in the following order: "com- plainant brings an affidavit which is torn up. He was absent when the case was called. The case has been dismissed." In appeal, per Catlet, J. — " Set aside and sent back for trial. Assuming the com- plainant's affidavit to be true, we think that he sufficiently accounted for his absence when the case was called on. He appears from his affidavit to have been only 10 minutes late. The absence of the ori- ginal affidavit having been accounted for, we have assumed the copy filed to be correct." P. C. Kalutara, 49704. Fobr defendants were convicted under Timber the 5th section of Ordinance 24 of 1848, and were each sentenced by Ordinance, the Magistrate (Power) to pay a fine of Rs. 50. In appeal, per Catley, J. — " Altered by the amount of fine being reduced to Es. 50, as one fine for one offence, and it is adjudged that the defendants do pay the said sum. Affij-med in other respects. The offence charged is fell- inp; a tree on Crown land without a license, and is in its nature single, and the penalty imposed by the Ordinance must accordingly be taken to be single. See B. and V., per S. C. Balepitimodera, P. C. 23132, citing Rex v. Clark, 2 Cowp. 612." P.C. Ka/utara, 49991. This was a charge of "riotous and disor- nisorderlv derly conduct" under the 6th clause of .Ordinance 16 of 1865. The conduct. Magistrate (Power) having proceeded to try the defendant then and there without summons, convicted him in the following judgment. " The accused, who is still drunk and has disturbed the Court for the greater part of the day, is found guilty and sentenced to 3 months' hard labor." In appeal, per Caylet, J. — "Set aside and conviction quashed. In this case a new plaint correctly worded should be en- tered and regularly proceeded with after summons to the defendant. The charge is laid under the 6th clause of Ordinance 16 of 186-1, but this clause has no application to the offence complained of. It is, no doubt, a mistake for the 6th article of the 53rd clause. This article, however, has been expressly repealed by Ordinnnce 7 of 1 873, and a Dec. 31. { ^^^ ^^'*^ '— difterent punishment prescribed foi* the oflence in qftestidn. It it however irregular to bring a man to Court for being drunk and dis- orderly and to try him then and there, while he is still drunk, as the Police Magistrate states was the case in the present instance, and consequeiitly unable prcperly to conduct his defence, if he has any." Preserration P. C. Point Pedro, 13321. The plaint was " that the defendants of Fish. ^jj^ pjj tjjg 20th instant, at Katcovalam on the north- esatem side of Pallalethurey within a league Irom the shore, use al net in the sea commonly called " valie valey,'* in catching fish, in breach of the 2nd clause of Ordinance 19 of 1866, and the Proclamation dated 20th October, 1869." The Magistrate (ZJrjeJerg') acquitted the ac- cused in the following judgment: "By the Proclamation of October 1869, (see Gazette of November 6,1869,) the use of the net in question is " prohibited within one leagile of the shore to the East of Pallalethurey on the N. W. coast of the peninsula of JaSna." In this case the defendants are charged with having Used the net called " valie valey " at Katcovalam, on the N. E. of Pallalethurey within one league of the shore. According to the Map of Ceylon published by Smith and Son, Charing Cross, the extreme Eastern limit of Pallalethurey is Point Pedro, or the point locally known as ' Devil's Point,' (sje Tamil map of Ceylon, published at Madras by S. John, 1872,) and Katcovalam is South East of this point. As I interpret the Proclamation, it appears to me that Katcovalam does not come within its operation." In appeal, per Stewart, J. — "Set aside and remanded for hearing. If the net was used within a league of the shore to the East of any part of Pallalethurey, it appears to us that the accused would be liable under the Proclamation. We also think that if the place where the net was used was not more to tlie North than to the East of the Pallalethurey shore, the case would still be within the Ordinance." December 31. Present Creasy, C. J., Stewart and CiTLiiy, J J. Maintenance. P- C. Negombo, 29055. The defendant was charged, under the Jurisdiction. Vagarant Ordinance, with not maintaining his wife and child. The only witness in the case was the brother of the complainant, and he deposed as follows: " The defendant's permanent residence has been Colombo. The complainant used to live there with the defendant, but the defendant struck her. The complainant then went to live POLICE COURTS. 113 I j^^ 3, with her parents at UdugampoUa in this district. 1 am sure Colombo Maintenance . is the head-quarters of the defendant and that he never lived with the Jurisdiction. complainant in this district. He has deserted her for several years, and lives with a mistress." The Magistrate (Leisching) held as follows: " According to the evidence of the only witness called, the alleged oflfence did not take place within the jurisdiction of this Court, and the fact that previous cases were tried in this Court is no bar to defendant's taking the plea of jurisdiction. The defendant takes the objection and pleads want of jurisdiction on the part of this Court. Objection upheld. Defendant discharged." /m a/)peaZ, by complainant, per Stewart, J. — "Set aside and re- manded for further hearing. The complainant, it would appear, has since her separation, several years ago, from her husband (the defend- ant) resided in the district of Negombo, though she had lived before in CDlombo with the defendant who still lives there. It is not sug- gested however, nor is there any ground for supposing, that the com- plainant merely changed her residence to the village where she now lives for Ihe purpose of instituting this prosecution in the Police Court of Negombo with the view of harassing the defendant. The Ordin- ance under which the plaint is laid makes it an oflence for any person, who is able to support his family, to leave his wife or child without maintenance, whereby they shall become chargeable to others. No particular place is specified. We must conclude, therefore, that in whatever place the wife or child of a person is left destitute, such person would render himself liable under the Ordinance and be com- mitting an offence in the place where he leaves his wife or child with- out maintenance. The plea of jurisdiction is accordingly over-ruled, and the trial will proceed in due course. As respects the merits of the case, the Magistrate's attention is requested to the judgment of the Supreme Court in Pantura P. C, 4620, December 3rd, 1863, re- ported in Beling's Handy Book, Part 2, page 40." P. C. Galle, 85468. Twenty-five defendants, who were liable to Comrantation pay the poll-tax and who had not elected to commute, were charged, Rate. under the 54th clause of Ordinance 10 of 1861, "with having failed Irregular con- to attend to perform labor at the time and place appointed for that Y^*:'V™ '""' purpose." In appeal, by the 4th defendant who had been fined "defendants? B» 4, the judgment was set aside; and per Ceeast, C. J. — " This man has been convicted without any evidence having been taken and with- out a plea of guilty. The joinder of this large number of defendants in one charge was seriously improper, there being no proof that they were acting in concert with each other." 7 THE APPEAL REPORTS. 1873. PART II.— COURTS OF REQUESTS. Jammry 14. Present Creasy, C. J. C.'R.Pamdure,\^ 4 PART n.— Feby. 14. j Notarial C. R. Matale, 27994. Plaintiff sued for the recovery of Es. 49, mortgage, being value of the produce of a garden, which said produce defen- dant had, by a notarial deed, specially mortgaged to plaintiii in lieu of interest due on a debt. Defendant denied the execution of the document, and pleaded minority. The deed was duly proved, but the Commissioner (Temple J non-suited the plaintiff with costs, holding •• that the evidence as to damage was too weak to place any reliance upon, and the deeds were, at least, suspicious." In appeal, Morgan, for the appellant, urged that no reason having been assigned by the 7udge for considering the deed suspicious, .the evidence of the notary and witnesses, who were examined at the trial, should be deemed conclusive. If such solemn documents conlcJ be' so arbitrarily rejected, of what use were notarial attestations ? Dias, for the respondent, was not heard. Per Creast, C. J. — Affirmed. Fehruary 14. Present Creasy, C. J. Award under C, B. Avishawella, 8481. This was an action to recover the an arbitra- value of 2 hal trees,- alleged to have been unlawfully cut by "'"' defendant on plaintiff's land. The defendant pleaded that the trees had stood on his own land, and that he had a perfect right to cut them. By consent of parties, the case was referred to arbitration ; and, on the delivery of the award into Couit, the Oommisioner made the following order : " The award o£ the arbitrators is filed. Mr. Marshall raises the objection that the wording of the award, 'I consider that the defendant should pay Rs. 35, being value of 2 hal trees, etc,' is not a final award. This sentence when read in connection with the' one immediately preceding, proves the meaning and intent o£ the award. I therefore hold the award fiaal, and make the same an order of Court." In appeal, the defendant, in his petition, urged that the awai'd was void, inasmuch as neither the original document not its translation was stamped ; and that, as the question of title involved in the case had not been settled, the circumstance of the plaintiff's and defendant's lands being con- tiguous to each other, with the boundaries undefined, woulcl give rise to further litigation. The order was, however, affirm- ed ; and per Cbeasy, 0. J.—" Appeal dismissed. If the ap- pellant had any valid objection to make to the award, he should have done so by application to the Commissioner of the Court of Bequests, either to ref ev back the award under tbe 26th section, COUETS OF REQUESTS. 5 f 1,1^.3^, 21 or to set it aside under the 27th sectioii, of the Ordinance. Neither of these courses was taken. An objection raised, though informally, was properly considered by the Commissioner to be invalid. A new string of objections cannot be brought before the Supreme Court, as now attempted." [fe C. B. Oalagedere, 30091. The plaintiff in this case sued for Depositum. the recovery of certain articles, of the value of lis, 97. 50, which be alleged to have delivered over to defendant for safe custody. The evidence disclosed that the deposit had been made wiih defendant's father-in-law, one Menikralle, some years previously. He having died, and the defendant having succeeded to his pro- perty, plaintiff now sought to enforce bis claim against fcer. The Commissioner held that the delivery of the articles by plaintiff to the father-in-law had been satisfactorily proved ; but that, as the present action had been instituted after the death ot Menikralle, from whom no receipt was produced and who might have lost the goods or returned them to the plain- tiff, the present defendant could not be held liable. In appeal, the judgment was aflirmed; and per Ceeast, C. J.— "Non-suit afiSrmed ; not for the reasons given in the Commissioner's judg- ment, but because the plaintiff has failed on the real and sole issue raised in the case, namely, as to the delivery of the goods to the defendant. Plaintiff has proved a delivery not to her but to one Menikralle, her father-in-law; audit does not even appear that she is Menikralle's legal representative. As to the loss by " dolus" or " culpa lata," for which alone a deposi- tary, who did not ask for the deposit, is responsible, see Thomp. son's Institutes, vol. 2, page 350; Herbert's Grotius, page 316, Voet ad Pandectas, XVI, 3, 7, and Poste's Gains, page 396." February 21. Present Ceeast, C. J. 44059 C. B. Galk, 44895- Plaintiff sued to recover Rs. 50, as Abatement damages consequent on the cloth of his billiard table having of damages. been out by defendant. Judgment in the first instance went by default, but it was subsequently opened up on afSdavits. Plain- tiff in his evidence stated. — "I produce table of rules which was on the wall. The first cut is Rs. 50. At the Oriental Hotel, it is Rs. 100. I said I would^take Rs. 20, if paid Feby. 28. 6 PART ir. — at the end of the month. Defendant was a customer, aacT this was the first cut. I asked for the Rs. 20, but my serrant always brought back an impertinent answer. After judgment by default, defendant wrote and offered me Rs. 35." The Commia- sioner gave judgment as follows : — "Plaintiff having offered to abate a part of the charge, it would be equitable to decree defen- dant to pay plaintiff Rs. 35 with costs. In appeal, affirmed. February 28. Present Ceeast, C. J. Eesistration. C. B. Guile, 151. The law and the facts of the case are fallj- Priority of set forth in the following judgment of the Chief Jastice.— eeds. ,, ggj. ^gjijg^ g^jjij plaintiff's claim dismissed with costs. This is a dispute as to priority between conflicting mortgages. The plaintiff's deed is dated 29th December, 1866, but it was not registered until 18th July, 1871. The defendant's deed is dated May 1871,. and was registered on the 7.th of June 1871, that is,, while the plaintiff's deed was yet unregistered. The plaintiff appears to have issued a writ and to have pointed out this pro- perty for seizure, and the defendant clai^ned it on April ISth^ 1873, The defendant now contends,. that his priority of registra- tion entitles him to pre-pay ment.. The plaintifll contended, and the Commissioner has ruled,, that, inasmuch as the plaintiff's deed was registered prior to the making of the defendant's adverse claim before the Fiscal, the requirements of the Regis- tration Ordinance have been satisfied, so far as this deed is con- cerned, and that the plaintiff is entitled to avail himself of his deed's priority in point of date. The 39th clause of the Ordi- nanee is as follows: ' Every deed, jud;jment, order, or othes ' instrument as aforesaid, unless so registered, shall be deemed ' void as against all parties claiming an adverse interest thereto 'on valuable consideration, by virtue of any subsequent deed, 'judgment, order or other instrument, which shall have been ' duly registered as aforesaid. Provided, however, that fraud ' or collusion in obtaijiing such last mentioned deed, judgment, • order, or other instrument, or in securing such prior registra- 'tion, shall defeat the priority of the person claiming there- ' under ; and that nothing herein contained shall be deemed to ' give any greater effect or diffcu-ent construction to any deed, 'judgment, order, or cither instrument registered in pursuance ' hereof, save the priority hereby conferred on it.' It appears to- ■ me that, according to this Ordinance, when the defendant regis- tei-ed Lis deed on the 7th of June, 1871, the plaintiff's deed, being COUETS CF KEQtTESTS. 7 T jij,,,^ 28 tli«ii unregistered, was a nullity, as against the defendant's registered deed. I think also, that no subsequent registration by the plaintifl could give plaintlH's deed validity, except subject ,to the priority which the defendant had already obtained. Sach appears to me to be the most natural meaning of this somewhat confused and ill-worded clause; and this opinion is much strengthened by a consideration of the purpose of the Legisla- ture iti tbis matter, and by considering which interpretation will effectuate that purpose, and which would thwart it. The clear object of the Legislature was to protect honest purchaseis and creditors. A man, when asked to advance money to another, looks naturally to ascertain what are the borrower's means of payment. If he finds that the borrower is the ostensi- ble owner of any landed property, he naturally searches the register to see what, if any, encumbrances there are on it. If the register shows no encumbrances, he advances his money on a deed which he carefully registers, and thinks himself safe, as lie ought to be, and as he will be, according to the construction which I put on the Ordinance, But if some other man has got a stale old deed of encumbrance in his pocket, which the register does not reveal, and this stale old incumbrance is only suddenly registered when the debtor is about to be sold up, and if this stale deed were then to be allowed to over-ride the deed registered before it, the whole system of Registration would be turned from a security into a mockery and a snare ; and encourage- ment would be given to frauds wbioh the law specially desired to prevent." C. JJ. Jaffna, 736. Plaintiff sued to recover Rs. 22, being Account balance due on an account stated. Defendant denied the debt. stated. Plaintifif, in his examination, stated " my account is headed N. M. Sader Saibo, which is defendant's brother's name. Some of the things included in hia brother's account were given to defendant. He came and purchased himself on some occasions." The Commissioner held that the evidence in the case was "strong against the defendant," and gave judgment for plaintifT. In wppeal, the judgment was set aside, and a non-suit entered with costs. And per Oeeast, C. J.—" The fact that the plain- tiff in his books entered the defendant's brother and not the defendant as his debtor, is so very strong that it requires much more to get over it than the plaintiflf's assertion that he entered the defendant's accounts in his brother's account. He gives no reason whatever for such an unbusiness-like proceeding. The payment spoken to by the witnesses may well have been made by the defendant on his brother's behalf." March 7 8 rjiiiT :i. — Loan. 0. B. Jaffna, 727. Plaintiff sued to recover Ra. 35, being money lent to defendant, who denied having borrowed, The Commissioner non-suited the plaintiff, holding that " ao large a sum of money as Bs. 35 being lent without a written acknowledgement from defendant, is more than the Court can believe." In appeal, the judgment was set aside, and case sent back for further hearing; and per Creasy, C. J. — " There is no law requiring a writing in the case of a loan of Bs. 35; nor does it seem reasonable to reject respectable parol evidence of such a loan. But as the Commissioner reports that the evidence has not left a favorable impression on his mind, the case is merely sent back for further hearing. Let the plaintiff be called upon to produce his memorandum of the loan and the list of his dealings, spoken of in his, examination. Plaintiff could not put such documents in evidence on his own behalf, but the Judge may very properly examine them, and see if they corroborate or contradict what he has stated." March 7. Present Creasy, C. J. Money lent. C. R. Jaffna, 764. The plaintiffs, alleging that they had, on the 15th of June last, paid and satisfied theamount of a debt bond which they bad previously executed in favor of the defendant fox Bs. 80, brought the present action to compel them to grant a valid receipt or refund the money with interest thereon at the rate of 9 per cent per annum from the alleged date of payment. The defendant denied the payment, but the Commissioner held the same duly proved, and gave judgment for plaintiff as prayed for. In appeal, per Creasy, 0. J. — " Set aside and judgment of non-suit to be entered. There is no authority for maintain- ing such an action. The plaintiff ought to tender a stamped receipt, and if the defendant refuses to sign it, he should pro- ceed as directed by the Stamp Ordinance, section 22, Ordinance 23 of 1871." Damages. C. B. Kegalla, 13162. This was an action to recover Rs. 55, being value of a bullock unlawfully shot and killed by defendant. In addition to the evidence of the witness who was disbelieved at the trial, the plaintiff called the Eatamahatmeya's peon, who stated that he saw complainant's bullock lying shot in a ditch below defendant's garden, where he found blood marks indicating that the animal had been dragged across the ground. The a eOXTETS OW BEQUESTS. 9 Commissioner gave judgment as follows : " I do not consider the case is satisfactorily proved. The evidence of the last witness amounts to nothing. The evideaoe of complainant as to the shooting is only supported by his first witness, a gentleman whose evidence can scarcely be thought worth much. Thera remains the peon's evidence, which only proves an animal was killed in defendant's garden. I dare say plaintiff's animal may have been shot by defendant, but I don't believe any one saw him do it. In, appeal, {Grenier for appellant) per CriSast, 0. J.— "Set aside, and judgment entered for plaintiff for Ra. 45 and costs. It is not safe to take an owner's valuation of his own property to the full amount. The Commissioner, in the conclu- sion of his judgment, states, ' I dare say plaintiff's amimal may hdve been sbot by defendant, bat I don't believe any one saw him do it.' But not even in criminal ctises is it necessary to produce a witness who actually saw the accused person do the deed which is complained of. There is evidence here that the plaintiff's bullock was shot; that almost immediately after the report of the shot, the animal was seen lying in defendant's garden ; and that the defendant was seen walking away towards his house holding a gun. On the other side, there is no evidence at all, not even that of the defendant. I cannot see enough in the Commissioner's remarks about the plaintiff and his first witness, or iu any part of the case, to make me think their evidence untrustworthy." MAHCa I C. B. Colombo, 86788. The plaintiff in this case claimed a Crown land, certain land under a bill of sale from Government, dated 17th February, 1866. The defendants supported their title by docu- mentary evidence, supplemented by proof of long possession which apparently was not disbelieved by the Commissioner, who however gave judgment for plaintiff as follows : "This land was surveyed in 1860, by the G-overnmeut Surveyor, as Crown pro- perty. No steps were then taken by any one claiming the laud, to put forward his claim. In February 1861, it appears to have been surveyed by a private surveyor as the property of Henda- drigey Bastian Perera. In 1866 this land was sold by Govern- ment and purchased by plaintiff, and there can be no doubt ha possessed what he purchased. As no claim was made by any one to this land when it was sold by Government, it is hard to suppose that at that time it belonged to any one but Govern- ment." It was urged in the petition of appeal (1) that the circumstance of the defendants having preferred no claim was satisfactorily explained by the 1st defendant in his examination, Hi.BCH 7] ]0 PART li — in the course of which he said " this land was surveyed by Government about 10 or 12 years ago. I was not present at the survey, but after the survey I produced my deed to the surveyor.'' The land sales usually took place at the Outcherry in Colombo, and the defendants were not bound to attend, nor was there any evidence to show that they knew that any portion of their own land had been advertised for sale; (2) that the land claimed by plaintiff and sold to him by Government appeared to have been an old Portugese military trench, lying between the properties of the Ist and 2ad defendants ; and the evidence of the Surveyor who was appointed by the Court, with the consent of both parties, went to show that " the two strips of land on either side of the ditch now claimed by plaintiff, were alike in cultivation and on one flat with the defendtints' properties." (Vide Surveyor's Report of November 21.) In appeal, {Grenier for appellant Ferdinands for respondent,) per Ceeast, C, J. — " Affirmed. Th« fact that this land consists of the bed of an old Portuguese military trench and of the strips of ground 'running along tlie sides of the ditch, is very strong proof that it was Government property." Goods sold. a B. Keyalla, 13049, The plaintiff sought to recover Rs. 47. 25, as balance due on account of goods sjpplied. The claim was fully proved, by parol evl.lence and by the production of an account back; but the Commissioner (Mainwaring) held as follows ; " This is an action for balance found to be due for goods sold to defendant by plaintiff in l871 and 1872. In a ease of this sort, it is extremely difficult for a Court to do otherwise than give for a plaintiff, as the witnesses are always well coached m their parts, and it is extremely diffieslt for a defendant or his counsel to break them down. In this case, the usual evi- dence has been produced, and the witnesses have on the whole stood the cross-examination well. I am nevertheless not satis- faed that the case is a true one, and fancy that defendant gave in his examination the true reason for the case being brought VIZ, a quarrel between himself and plaintiff's brother-in-law. I'laintiff s case is dismissed with costs" In appeal, (Grenier for appellan ) per Cbisasy. 0. J.-« Set aside and judgment entered iZ^ ^-Tu'^ u''^ ''°'''' "' P'^^'y^^- 'T'^'^ i« a claim for goods that the nLh?ifl^''"f°'''''^^ P'"^""^- '^^^ Commissioner states tliat tbe plaintiff s witnesses were not shaken on cross-examina- tion, and nothing appears against their respectability.. On the other side, there is no evidence at all . not even the defendant's own testimony. To refuse a judgment to a tradesman under C0CET3 OF EEiJUBSTS. 11 SBch circustances would be a denial of justice,, and a strong en- couragement to dishonest debtors. The imaginary quarrel to which the Commiseioner alludes, was denied by the plaintiff- when, giving evidence, and was merely alleged by the defendant in his examination as a party." i March. '^ C. B. Jaffna, 39413, This was an appeal affecting rival claims to certain proceeds of a land,, which had originally be- longed to one of tljree dowried sisters named Muttopulle, and which had been mortgaged by her to plaintiff and judgment (jrediior in D. 0. Jaffna, No. 3913-. MuttopuUe having died without issup, ber sister SinnapuUe (Ist claimant) and the son and only child of J,he second sister Tf3'wanepulle (who had pre- deceased ftluttupnlle,) each inherited one half of the land. The plaintiff in this case, having obtained judgment against the son,, eaased his one-half to b<9 sold in execution; and the amount of the writ having been satisfied, there remained in deposit a balance which was seized by a subsequent creditor of the son (Sod claimant) under 0. E. writ. 712. Sometime after the sale under 39413, the plaintiff in 3912, who had previously sold several other lands mortgaged to him by Multopulle, ciiused to be sold the remaining one-half of the property in question, as belong, ing to the estate of his late debtor, and. Beceived the pi'oceeds in saiisraction of the balance due to him.. The Ist claimant,, having thus lost her i-ight to that half,, now moved to be allowed to draw the money in deposit, claiming preference over the 2nd claimant. The Commissioner {Livera) having allowed the 1st claimant's motion, the 2nd appealed on the ground that the. portion o£ land in questian having been sold as Teywanepulle's son's share,, the Ist claimant could have no right to any pan of the proceeds, without having the Fiscal's sale first set aside. Jjt appeal, (Gr.erder for appellant, Ferdinands for respondent) per Cbeast, C. J.r-"Set aside, and motion refused. The claimant ought first to get,, (if she can,) the Fiscal's sale set. Mareh 7. Present Cbeasy, C. J. C. B. Galle, 44570. The law and facts of the oase are fully Bet forth in the following judgment of the Chief Justice : " Set asiJe and judgment to be entered for plaintiff for Rs. 20 and costs. This is a case curious in its lacts, and in which a point of law of some interest has arisen. The parties are Mahomedans residing at Galle j the defendant appeara to be a teacher of children.. Bival claims to proceeds of Fiscal's sale. Locatio cou- ductio. March 7} ^^ part 11— In July 1871, Ihe defendant, in consideration of Rs. 20 paiddovn by plaintiff, undertook to teach the plaintiff's grand-daughter to read 30 chapters of the Koran in six months,, or in default to re- fund the twenty rupees. The parties had a formal notarial agreement drawn up and signed. Its text is as follows : ' Know all men by these presents, on this &th day of July, 1871, before me Ossen Lebbe Abdul Kader, Notary Public, of G-alle district, personally came and appeared Sinne Kakier Tamby of Kutabal- welle of one part, and Pakier Tamby Mahomado Suhib of Kum- balwelle of the other part, and declared that the said appearer of jthe 2nd part do hereby declare to have duly received, in advance for his trouble, the sum of £2 from the appearer of the 1st partd undertaking to teach Marian Manuel, grand-daughter of the appearer of the Ist part, 30 chapters of Koran, and according to the said agreement, after being taught the SO chapters of Koran within six months, and after her I'eading the said 30 chapters in the presence of the said appearer of the 1st part, to be discharged ^ in default then of so doing, the appearer of the 2ad part to forego all his trouble and to return the said £2 to the said appearer of the 1st part. Thus agreeing, this agreement is caused to be writ- ten, signed, sealed and perfected, on the above date, in the presenca of the two subscribing witnesses, Sego Ismail Lebbe Mohandiran Ally and Wappuohie Markar Mohamado Raya, both of Galla- piadde in Galle." It is to be observed, that the agreement does, not say a word about the child being a clever child, or a child of average ability, or a stupid child ; nor does it appear, that any representations were made by the plaintiff about the child's ability, or that the defendant made any enquiry about it. The child attended the defendant regularly, for the purpose of being taught ; no difficulty was placed in his way by the plaintiff, or by any one else. As to the pains taken by defendant in teaching, there is some evidence that he neglected the child after a little time ; but the Commissioner does not seem to have regarded this evidence as a foundation for a judgment, nor shall we do so. We shall take the case as one in which the teacher is certainly not proved to have taken more than average pains with his pupil, but as one in which he is not proved to Lave made default in taking average pains. At the end of the specified time, the child could not read more than ten chapters. As to the facility or difficulty of learning to read the whole 30 chapters in the time, one witness says — ' There are cases in which children can, and ' in which children cannot, read 30 chapters in six months. If ' the child is very intelligent she might ilo so.' Another witness says — ' She is not clever. If she had been, she would have ' known the 30 chapters before now.' Acting, as it seems, on tbia last evidence, the Commissioner baa non-suited the plaintiff. COURTS or KEQUESTS, 13 He says that ' the performance of this contract was subject to ' an implied condition, that the pupil herself possessed the ne- * cessary amount of natural ability, and the plaintiff on his part ' gave an implied warranty to that effect.' The Commissioner has referred to the English cases of Robinson v. Davison, 24 L. T. N. S. page 755 ; and Taylor v. Caldwell, 8 L- T. Rep. N. S. page 350. In one case, a prolessional player on the piano was disabled by illness from performing at a concert according to contract. The manager of the concert, who had contracted for her performance, brought an action lor the breach of contract ; but it was held by the Court of Exchequer, that sbe was excused from performance by reason ot tbe illness which had incapaci- tated her. This would have been an authority in the present Cdse, if the teaching ot the child had been prevented by the illness of either teacher or pupil ; tbough, even then, the defendant would probably have been bound to return part at least of the consideration money. But it does not' touch this case at all. The other English authority cited, Taylor v. Caldwell, was a judgment of the Court of Queen's Bench delivered by Mr. Jus- tice Blackburn. In that case, there had been an agreement to let a music-hall for a series of concerts ; and before the day arrived, the music-hall was burned down. In that judgment, Mr. Justice Blackburn says, ' There seems no doubt tbat wbere there is a positive contract to do a thing not in itselt unlawful, the contractor must perlorm it, or pay damages for not doing it ; although, in consequence of unforeseen accidents, the perlormance of bis contract has become unexpectedly burdensome or even impossible.' He then goes on to say, ' But this rule is only applicable, when the contract is positive and absolute, and not subject to any condition, either express or implied ; and there are authorities which, as we think, establish the principle that where, trom the nature ol the contract, it appears that tlie par- ties must, from the beginning, have known that it could not be fulfilled unless, when the time lor the fulfilment of the con- tract arrived, some particular specified thing continued to exist, so that, when entering into the contract, they must have con- templated such continuing existence as the toundation of what was to be done, there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible irom the perishing of the thing without default of the contractor." "But this case of Taylor v. Caldwell does not touch our pre- sent case, any more than did Robinson v. Davison. If the teacher's capacity to teach, or the pupil's capacity to learn. Maech 7 Makch 7 14 PART II.— which existed at the date of the contract,, bad perished nithoot fault of the parties, before the time fixed for the completion of the contract, Ihere might, according to Taylor v. Caldwellj have been a good answer to a complaint for non-performance of the contract. But nothing of the kind happened here. The child does not appear to have lost any of her wits during the six months -^ and the attempted analogy between her and the burnt music-ball, fails as com pletely as the other attempted analogy between her and the sick musician. We by no means say, that in contracts like the present there can he no implied warranty as to the pupil's aptitude lor learning. Supposing that the child in this case had bten in a very great degree below the average, and greatly deficient in power of apprehension, or of memory,, or of both, so as to make it extremely difficult, i£ nut impossible, to teach her, we think the instruc:or ought to have been made aware of such delects in the child before he made the bargain ; and we ihink that the child's grand-father, who hired the defendant's S(.rvices to teach the child, may be con- sidered to have given an implied warranty of the child's freedom. from such defects,, but not a warranty of intelligence to anj greater extent. " it is well known^ that by Roman Law the vendor,, in a contract of purchase and sale, is held to give an implied warranty of the article being free from serious defects, of which the purchaser had no notice at the time of the purchase. It is enough to cite for this Grotius' Introduction, Book iii, cb. xv^ sec. vii. Kow, the present contract is a contract looationis eonductionis ; tke thing hired being the teacher's labor and ekilL The Institutes and the Digest pronounce that 'the contract ' of letting to hire approaches very nearly to that of sale, and is 'governed by the same rules of law;' 3 Inst., xxiv, I. The Digest says the same ; and there is a dictum in it as to the con- tract of letting and hiring being a contract founded on the law. of nature, which is not immaterial with reference to an authority which I shall cite presently. The Digest xix,. title 2 , par 1 and 2, says,. ' Itocatio et conduct io,. cum naturalis sit et omnium. *^gentium, non vdrbis sed consensu contrahitur: sicnt emptioet ' venditio. Locatio et conductio proxima est emptioni et 'venditioni: iisdemctueJy reason of the oAer party's ignorance of any material fact. Dicero qaotea a dictum of the ancient Roman Jurist, Qnintua Scavola, that there was very great importance in all those I judicial proceedings, in which the formula directed the judge 'to decide according to the requirements of good faith, eayMs ijoni. And he used to think that this expi-ession, ess fide bona, ' was of most extensive operation, and that it was practically •applicable in cases of Guardian and Ward, of Farinership, of ' Trusts, of Commissions, of Pui chase and Sale, of Hiring and 'Letting, which make up the ordiaary system of social life.' 'Quintus Scaa' ola summam vim esse dicebat in omnibus iia ■arbiti-iis inyquibVis adderetur, ex fide bona; fidoique bona ' Domen exiStimabat raanare latissime, idque versari in tutelis, ' societatibus, fiduciis, mandatis, rebus emptis venditi's, con- ' duotis looaKs, quibus ritss societas cintineretur.' A little fur- ther on Cicero pronounces that ' since the law of nature is the 'fountain of law and justice, it is a rule, in accordance with the ' law of nature, that no oue shall act in such a mariner as to filch 'benefit out of another man's ignorance.' 'Quoniam juris ' natura fons sit, hoc secundum naturam esse, neminein id agefe, ' ut ex alterius praeJeiur inscitia.' ^'Considering, thereforcj the contract locationis conductionis to be under the same rules, as to warranty and implied condition of fitness, which govern contracts emptionis venditionis, let us see how far such warranty extends, — merely to a warranty against latent defects, such as make the subject-matter of the contract unfit to a serious degree for the purpose for wbich it is intended. The warranty goes no further. The vendor of a house, when nothing is expressed in the contract about the quality of the house, is not taken to warrant that it is superior ia structure, salubrity or convenience to average houses of the class: he is merely held to warrant that there is no defect in if, which makes it impossible to occupy it without serious detri- 'i ment to health and comfort. The seller of a machine is not taken to give a warranty that it is superior to the common run of such machines ; ho merely warrants that it is free from such delects as would decidedly deprive it of average utility. So in a contract for the hire of work to be done on an article belonging to the hirer, where nothing is said about the quality of the article which is to be worked on, the owner of the anicle cannot be held to warrant that it is of special aptitude for the operation. He cannot be considered to warrant more than that the article is free from such defects, as would render it especially difficult to be worked on. " Applying these principles to the present case, we can find no warranty or condition on the part of the plaintifi', about this child's intellect, which has been broken. As we stated at the Mabch 7 I 16 PABT n>— beginning of this judgment, the utmost that has been prorej against the child's capacity, istbat she is not a clever child. Bat in common language, when we call children clever, we mean that they are decidedly above the average; as we call children stupid who are decidedly below the average as to aptitude for receiving instruction. The great majority of children are of average, or of nearly average, aptitude. They are neither stupid not clever. The young student of the Koran in this case appears to have been a child ol this average standard. Certainly she is not pi'oved to be below it. The result is that the defendant haa failed to prove the breach of any condition or warranty on the part of the plaintiff, and the plaintiff is entitled to have his money back according to the stipalatiou in the contract." March 14. Present CeeaST, 0. J. tTsa and oc- C. B. Batticaloa, ZZ18. This was an action to recover 12 amo- oupation. nams ol paddy, as the muttatu share of the produce of a cer- tain paddy field sub-rented by plaintiff to defendant, who how- ever denied having ever rented, occupied or cultivated the land in question. On the day of trial, the defendant's Proctor having taken the objection that the contract, it any, not being in writing, was void under the Statute of Frauds, the Commissioner dis- missed the case. In appeal, the judgment was set aside and case sent back for further proceedings and for trial ; and per Ceeast, C J. — " The Supreme Court has repeatedly pointed out that in cases relating to land, where the plaintiff cannot enforce his original contract because not in writing and notarially exe- cuted, still, if the defendant has had beneficial use and occupa- tion, he is bound to compensate the plaintiff for the same, by the contract which, in such oases, arises eie re."* ©amages on C.B.Eegalla, 13,185. The plaintiff sought to recover Rs. 98, a Iiease. as damages consequent on not having been placed in possession of three out of seven lands, which defendant bad rented to him, for nine years, on a notarial lease dated I2th October, 1865. The defendant denied the alleged non-possssion by plaintiff, and plead- ed prescription. The Commissioner heldasfollows: "Theevidence is very conflicting, and J have been considerably puzzled in ai- * The law on this subject is fully explained in the Supreme Court judgment in C. E. Kalutara, 17112. See Civ. Min., Jan, 12, 1864. COUKTS OF BE^iUBSTS. ^^JMaBCHU living at b decision, but have come to the oonclasion that, taking Damages on All the circumstances of the case into consideration, the proba- * Lease, bility is that plaintiffs have been in possession of the lands. It is impossible that, had they not been, they could have allowed seven years to elapse before cotning to Court. Plaintiff's case is dis- missed with costs." In appeal, Bias, for appellant. £Yoai' claim is clearly prescribed. — C. J.] Only perhaps to a limited extent. The lease should be taken as a conlinuing contract, and we are entiiled to recover damages for, at least, within two yeara of the date of action. Such has been the rule as to mesne profits. Grermr-, for respondent, was not called upon. Per Cbbast, CJ, " Affirmed. The claim is prescribed. " 0. B. MwUmMwu-, 9815. The plaintiff, as guardian of two Fresorip.> minors, claimed a certain land on a deed, mure than 30 years old, tion.* which had been executed in favor of their grandfather, by the father of 1st deleudaut. The 1st defendant, without traversing the alleged sale, disputed the boundaries given in the plaint as incorrect, and pleaded that " the garden in dispute was the hereditary property of his late father and mother, and after theirdeath he possessed the same." The Commissioner {Withers) gave judgment for defendants, holjiug that they had proved long possessiony which had not been interrupted by such pay- ment of rent or contribution of produce as would affect their prescriptive title. In appeal, per Cbeast, C. J. — " Set aside and plaintiff, on behalf of the minors, to be placed in poss- ession of the garden mentioned in the plaint, on the plain- tiff (as such guardian) making compensation to the 1st defend- ant for the materials and building of two of the houses in the said garden, which are proved to have been built by Ist defendant's father ; the amount of such compensation (unleas the parties can agree to the same) to be settled by the Commissioner of the Court of Bequests, either on his own view, or after hearing such evidence as the parties may adduce on this point. The old law of Prescription by a quarter of a * Held that the whole of the Common Law with respect to pre- serlption and the limitation of actions and suits has been abrogated aad that Ord. 8 of 1834 contains all that is in force on these sub- jects. D. C. Karunegala, 21698. Civ. Min., June 20, 1871. Held that possession of J of a centnry will confer a prescriptive title against the Crown. D. C. Colombo, 1245. Civ. Min., Sep. tember 13, 1870. Held that an adverse possession of 10 years is snfEoient to pre- scribe against a co-parcener or co.tenant. C. B. Batticaloa, 9653, Civ. Min,, April 21, 1870. -. 1 18 PAET II.— March X4. j Presodption. century's possession was abolished in this Island by Regulation 13 of 1822, the effect of which in this respt'ct was continued by Ordinance 8 of 1834, — (See the end of ol-iuse 1.). and by Ordi- nance No. 22 of 1871, and Oi'dinance No. 1 of 1852, clause 3. The only rules of prescription that apply to land cases in Cey- lon are those that are laid down by Ordinance No. 22 of 1871, clauses 3, 14, 15, and 16. It may be taken as a fact, that in this case the Ist defendant and his lather have had natural possepioa (I use the epithet advisedly) of this garden, or of part of it, for much more than ten years before 1865, when the rights of the minors accrued, in behalf of whom this action is brought. But it also seems to me clear as a fact, that the 1st defendant within those ten years had paid rent for this garden, and that he had done so for as many as at least ten years between 1850 and 1870, This affects the period of thirty years mentioned at the end of the 14th clause of the Ordinance, as well as the period of ten years mentioned in the 3i-d clause. I consider the fact of these payments suffioiently proved by the plaintiff's general evidence and the more specific evidence of his witness Sinue Velen. It is the defendant's case, not the plaintiff's, which deserves to be regarded with suspicion, inasmuch as the defendants endea- . voured to set up what the Commissioner has rightly termed a tricky defence by alleging false boundaries. Indeed, the delenoe of prescription is hardly raised in the answer at all. The Com- missioner has treated the evidence of payment of rent as null and void, because the rent was not paid on a notarial lease. But the Pi-eaoriptiou Ordinance nowhere requires that the pay- ment of rent, which will bar the effect of possession, shall be payment of i-ent under such a lease as might be enforced in a Court of law. Indeed, the plaintiff's father might have enforced payment of rent, not under the lease, but by an action for use and occupation, after the tenant bad used and occupied the gar- den. It becomes unnecessary for me to go into the more gener- al and important question, whether a mere tenant on suffrance can ever acquire a right under our Ordinance of Prescription against the owner who has permitted him to occupy. Certainly under Roman law he who, thus obtained and held possessionem precario, had no possessionem civilem sufiicient to enable him to acquire a title by Usuoapio against the Dominus from whom he had begged permission to occupy. But I believe that some difference of opinion exists as to the effect of our Ordinances on this subject ; and therefore sitting alone I will not adjudicate on it, unless the i.ature of the issue compels me." COUETS OP BEQUESTS. 1^ 5 JtJUK 3 March 19. Piesent Ceeast, 0. J. 0. fl. Balapitimodera, 21902. A judgment of non-suit by the Evidanoe. Commissioner (Ealliley) was set aside, and judgment entered for plaintiff, in respect ot a house claimed by him, in the following terms : " The plaintiff has brought forward a body of evidence, the general effect of which is to satisfy the Supreme Court that he is by prescriptive title the lawiul owner of the house in question. This evidence is not eounteraeted by any brought forward on the other side. The Commissioner states that the plaintiff's evidence ' is very unsatisfactory' and non-suits him. This summary way of disposing of eases is very unsatisfactory;, no reasons are given forit, and the Supreme Court cannot dis- «over the grounds for any." (Ferdinands lor appellant-) April 22. Present Ceeast, C. J. C. B. Galle, 45817. A Polios Ofiioer, who was a witness in Contempt, this case, was found guilty of Contempt and sentenced to seven days' imprisonment for not having appeared oh the day of trial, as required by a snbpcena which had been duly served on him. The defendant justified his absence on the- ground that there was severe sickness in his family and that one of his relatives had small pox. The Commissioner {Lee) did not appear to discredit this story, but held that " that was no excuse for not sending in a report." In appeal, per CEEASy, C. J, — " Order amended by directing the appellant to pay a fine of Rs. 5- and by striking cut the sentence of impri-sonment.. The Commissioner states his belief in the appellant's statement about th« sickness in his (the appellant's) family. Under such circumstances, a neglect to attend Court ought not to be severely punished- It is a great stigma on a person ia tbia appellant's condition of life to be sent to jail ; and it would be absolute cruelty to imprison a man who has committed no actual crime, at a time when bis near relatives are dangerously ill and require his personal attendance." June S, Present Ceeast, C. J. and Stewaet, J. C. jB. Batticaloa, 3178. Plaintiff sued to recover Rs.55, which Contract, te alleged the defendants had received from his son for the purpose of retaining Counsel to defend the plaintiff, who at the time was in jail as accused in a J. P. case, but which sum, it was stated, the defendants had misappropriated to themselves. The JUNI! 20 Contract. 20 PAET II- — Damages. defendants pleaded •' not indebted." At> tbe trial, the 2nd de- iendant was absolved from the instance, while judgment was entered against 1st defendant with costs. In appeal, {Grmier for appellant,) per Ckeast, C. J. — " Set aside and judgment of non-suit entered. There is no evidence of any oontracii between plaintiff and appellant ; and thei-e is no legal evidence of faikre of consideration. No costs. The Ist defendant's eandaot is Tery discreditable. If be had employed Counsel, he would have been eager to prove it in defence of his eharaeter. If the son was really acting as the fathei''s agent in employing the defend- ant, and the father in any way directed or ratified the son's acts, a fresh action may be brought in th« present plaintiff's name and further evidence may be supplied. If the boy acted independently in employing the defendant, he ^the boy) can sue by guardian. In either case, some proof should be given that no Counsel appeared for the father." June LI. Present Ceeasy, 0. J. and Stewaet, J. C B. Kegalla, 13282. This was an action to recover the value of a cow which plaintiff alleged had been strangled to death by means of a noose set by the del endants, who however denied having set any noose at all. The Commissioner, having believed plaintiff's story, gave judgment (or bim for Rs. 35 and costs. In appeal, per Okeast, 0. J. — '* Affirmed. It is very difficult to make out from the evidence at what place the noosa was actually set, but it does not appear to have been within the defendant's own land ; indeed, the defendant in bis petition of appeal asserts that it was not. The case, therefore, does uat come within the principle of the law as laM down byGibbs, C. J. in Deane v. Clayton, 7 Taunt., 489, a judgment which was ratified by the Court of Exchequer in Jordin v. Crump, 8 M. and W., 782." June 20. Present Creasy, C. J. and Stewart, J. Moorish Cug. C. B. Colombo, 89417. The judgment of the Commisiioner torn. (j-_ ^_ ^g Saram) explains the facts of the case. "The plaintiff seeks to recover the sum of Rupees 8, being his share of the fee paid to the defendant, a priest of the Marandahn Mosque, on the occasion of a certain wedding. The usual fee on such occasions is Rupees 3. 75, and it is ad- mitted by defendant that in such cases the fee is divided in the COURTS OP BIQUESTS. — 21 f j^j^j, go^ following proportion, 2-5ths to the priest, 2-5ths to the hai-ber Moorish Cus- and l-5th to the sexton, hut he adds that this division is adopted t*""- otily when the fee is Ropees 3. 75 or any sum below that, and tbat when it exceeds that sum tUe excess is taken entirely by the priest and only Rupees 3. 75 divided as already mentioned- The plaintiff, on the other hand, contends that the fee, whether over or under Rupees 3. 75, is divided between the priest, barber and sexton in tlie proportion stated, and that he is therefore entitled to Rupees 8. being 2-5ths of the Rupees 20 paid on the occasion in question. The defendant denied having received any portion of the fee and adduced evidence to prove that the whole snm was banded to the senior pries-t who paid him his share. Prom the plaintiff's evidence it appears only a part of tbe fee was paid to defendaat. Rupees 10. Thg witness Sekadie Warkar Idros Lebhe Markar swears he handed the money to ~ defendant. He can have no object, as far as the Court can see, in stating this, if he did not hand him the money, for if it was banded to the senipr priest the plaintiff would have sued him. As only Rupees 10 were paid to defendant, the question is whether the plaintiff is to get 2-5ths of tbat or of only Rs. 3. 75. The plaintiff is entitled to 2-5ths of the ordinat'y fee, and unless there is something to show that he is restricted to that and nothing more, be is clearly entitled to 2-5ths of any sum that is paid. According to the defendant's statement (but which is not boine out by the senior priest or Assen Lebbe Aiarkar — and I lay stress on it as being a statement made by the defendant) the plaintiff has to accept a smaller amount as bis shave when the lee is below Rupees 3. 75. If this be so, it ia surely no- thing but fair that be should receive a higher amount when the fee is above Rupees 3. 75. The fee is paid with one object, and that is to be divided between the priests, barber and sexton. The Head Moorman has stated how the fee is divided, and be bears out the plaintiff's contention. Tbe defendant and his witnesses each give a different account »s to the manner in which the fee when below Rupees 3. 75 is divided. I do not therefore feel disposed to place any reliance on their statements. Judgment for plaintiff for Rupees 4, being 2-5ths of Rupees 10» and costs." In appeal, Brito for appellant. — Even accepting the evidence for plaintiff, the custom pleaded was not proved to be one which had existed from time immemorial. On a question like this, tho testimony of the Turkish Consul, who was called for the defence, miisht well outweigh that of the Head Moorman. Grenier, for respondent, was not called upon. Per Stewart, J,—" Affirmed. Tbe Supreme Court sees no reason to discredit the evidence of June 2 'I 22 TART II. Sekadie Markar, (the uncle of the bridegroom,) who distinclilT affiims that he paid Rs. 10 to the defendant, and who waa believed by the Commissioner. On a question of custom, sucli as the present, the evideucu of the Headman is entitled to great weight." June 25. ^Present Cbeast, C. J. and Stewart, J. Action C- -K- Panwila, 3597. The judgment of the Commissioner ex ('fifmari) sets forth the issues adjudicated upon. " In this case the delicto. plaintiff' sues for value of buffaloes delivered to deleudant, and for consideration due for their hire. A receipt or writing setting forth the conditions of the transaction is filed in the case. The defendant's Proctor objects that the writing is invalid, inasmuch as it is not on a stamp, and therefore is not receivable in evi- dence, even though the penalty, as proposed by plaintiff's Proctor should be paid on it. I consider the objection good and valid and therefore reject the document in evidence. At the same time, it is perfectly allowable tor plaintiff to prove by parol evidence the delivery of the animals, even were there no writing whatever; and it just amounts, to a question of whether the Court be- lieves the animals were actually delivered to defendant or not. if they were delivered, it is for defendant to shew that they were returned or to prove that there was some set-ofF against them. The Court is satisfied that the animals were actually delivered, the evidence of the fact being good and satisfactory. Plaintiff calls, besides other witnesses, the Aratchy, who affirms to having written the jjoss— permit, and having given it to defendant, and also a man of defendant's own village, who affirms to having seen defendant using the same buffaloes ; and this evidence the- Court considers very conclusive. There seems no reason to doubt the animals were worth £9, and therefore judgment ia entered for plaintiff to the extent of Rs. 90 and costs of suit." In appeal, {Diasior respondent) per Ceeast, C. J.—" Affirmed. The substantial part of the plaintiff's claim is lor the value of Lis buffaloes, which defendant has illegally converted and ap- propriated. This is a cause of action ex delicto, and is unaffected by the writing about the hire to which the stamp objection baa been raised. Even if the Stamp Ordinance applied, the document might have been admitted under tlie provisions of the 46th olausa of the Stamp Ordinance No. 11 of 1861, as to allowing unstamp- ed or insufficiently stamped documents in evidence on taking the proper precaution of payment of the duty and penalty. C0TTET3 OP BEQUESTS. 23 f Tttj,- 07 Moreover, we greatly question the propriety of our reversing proceedings on objections about stamps, when substantial jus- tice has manifestly been doue by the Court below : see the 20th clause of the Administration of Justice Ordinance, No. H of 1868." June 27. Present Cbeast, 0. J. C. B. Colombo, 87694. The plaintiff, as landlord, had given Notice to quit- notice, on the 10th July, 1872, to the defendant, who was a monthly tenant, i-equiriug him to quit on the 10th of the fol- lowing month. The issue in the case was, whether such notice was sufficient in law. The Oommissionev ide Saram) held as follows : " I consider the notice to quit within one month from the 10th July bad, as the defendant was a tenant paying rent from the 1st to the end of every month, and the nutice should have been to quit at the end of one month, such time to expire at the end of any given month." Inappeal, the case had been argued, on the 21st February, hy Grenier, for the appellant, — All that a tenant, equally with a landlord, was entitled to was reasonable notice, and such notice had been given in this case. Huffel v. Armistead, 7 C. and P., 57. The Commissioner's ruling was clearly wrong, as by the Ordinance 7 of 1 840 no lease for any period exceeding one month could be valid except it were in writing. To require there- fore one month's notice to expire at the end of a current mouth, was to enable either landlord or tenant to enforce a tenancy of more than a month, in contravention of our Ordinance of Frauds. The English Statute of Frauds was different in this I'espeot, as it sanctioned a parol lease for any period within three years. [I should like to hear you Mr. Dias on this point. — 0. J.] Bias, for respondent. — The word " month" in the 2nd clause of the Ordinance could only mean a month commencing from the Ist and endin;! on the last day of the month. The contention on the other side, that the month was to be made up of fractions of two consecutive months, was clearly opposed to the monthly tenancy contemplated in the Ordinance, and would practically have the effect of throwing a property on the hands of the land- lord in the middle of a month and depriving him of a fortnighi'a rent. The established local custom in the matter was in accord- ance with the Commissioner's view. The Chief Justice, having directed this day that the case be called, delivered the following judgment which His Lordship said should be accepted as only that of a single Judge. " We must read the Nisi Prius case of Euffel v, Armistead, in JWLTP -^ 24 JARTIl,- -} Notice toquifr connection with the subseqaent case of Jcmea v. MUU, wbich came before tbe Court of Common Pleas in Bane, and whiob U reported in 31 L. 3., (C. P.) 66. I should have been glad of more express authority on the subject, bat as at present advised I think with Mr. Justice "Williams, that the notice musk be one commensurate with the term for which the letting was, that is a month for a month ; and I also think that it must be a notice expiring at tbe expiration of a current month after the date of the notice. Evidence of custom might be given in these casesi and might have the effect of vai-jring the presumption arising from the mere nature of the tenancy." July 8. Present Ceeast, C. J. and Stewart, J. Agency C JS. -K'ami^, 52092. The plaiatiff(D'Bs«e)Te) sued defendant (Wait) to recover Rs.41'5, " being amount due as per annexed particulars," — which wei'e cost of repairs of a gold walcb Rs. 31-50, postage Rs. 4"67, London Agent's chargesi Ra.l'SO, plaintiff's commission Rs. 3'S8. The defendant, in his answer, alleged that he had been always ready and willing to pay items 2, 3 and 4, and disputed the correctness of item 1. Plaintiff ia his evidence said that be had regarded himself as defendant's agent, having been requested to have the watch repaired by Messrs. Sari and Sons, from whom he produced a bill with that part oi it, however, containing the amount of the charges cut off. He explained that he had cut off the amount himself, as be wished no one to know what the repairs had actually cost him in London. The Commissioner {Stewart) held as follows : *' There is no evidence of the cost of the repairs, nor is thefe any thing to shew that the plaintiff was tochai'ge for them irres- pective ol what the cost redUy was. He could not have been expected nor was he asked to do more than to get the watoh repaired, seeing that he is not a watchmaker, and therefore also not competent to make the charge. He has, however, it must be inferred, charged more than the watchmakers in England whom defendant requested him to employ, and hence apparently this cutting away or destroying by him of that part of tbeic bill shewing their chargeb, on the alleged ground that he was not bound to disclose the contents of bis invoice, &o. He has charged besides commission, which clearly shews that he was employed only to get the work done and nothing more. Judg- ment therefore for plaintiff for only the items admitted with costs in that class." In appeal, {FerdimanAa for appellant, Grenier for respondent) per Stewart, J.— Affirmed. COURTS OF REQUESTS. 25 \ ^^^^^ j, August 12. Present Catlet, J. C. R. Panadure, 15312. One Thomis Pieris, being the owner of M-tg«gei|«^^ a land called Delgahawatte, mortgaged the same, m February 1865, ^.^^^^^ ^^_ to Harmanis Bias. In May 1870, Pieris' brothers and sisters (his minigtration. sole heirs) sold the property to the Plaintiff. In January 1872, another creditor of Pieris, who however held no special mortgage, having obtained judgment on a bond dated ISovember 1865, issued writs and caused this land to be sold, when the 6th defendant be- came the purchaser. The Commissioner ( Morgan) having given' judgment for plaintiff, the 6th defendant appealed. In appeal, Dias, for appellant.— The heirs could not sell their ancestor's property without paying his debts, whether secured or unsecured. It was alleged by the heirs, that they sold the land to pay off a debt secured by a mortgage on it. But they had to prove this. It was true a mortgage bond was filed in the case, but it did not follow that the proceeds of the sale had gone to pay off the mortgage debt. To allow private sales by heirs would be to allow them to defeat the creditors of the deceased, by conveying his property to third parties. Ferdinands, for respondent.— The payment of the mortgage debt was not denied by the contesting defendant, and the bond itself, was produced to prove that the debt existed. Even the petition of appeal did not question the existence and payment of the debt. In NamasevayanCs case, the Supreme Court held that a sale by the heirs to pay off a special mortgage would be valid, although ad- ministration had not been taken out. Per Catlet, J.—" Set aside and case sent back for further hear- ing. If the first five defendants sold the f belonging to Thomis Pieris, tor the purpose of paying off the special mortgage held by Harmanis Bias, and did with the proceeds of the sale satisfy that mortgage, their sale should be upheld and the plaintiff declared entitled to judgment. Evidence of this payment should be adduced." C, R, Gampoh., 28531. The plaintiff, by purchase from the -, • j- ,.■ Crown, was the owner of a land, in the district of Udapalata, in the Central Province, bounded on all sides by the Mahavila Ganga, and as such owner claimed the right " to take and appropriate the fire- wood and other things thrown on the said land by the action of the water of the said Mahavila Ganga." The grievance now complained of was "that the defendant, on or about the 12th October, 1872, Aug, 12. I ^'^ PART "■— unlawfully took and deprived the plaintiff of a quantity of firewood wliic'.i was then on the said land, so thrown thereon by the water as aforesaid, to the plaintiflf's damage of rupees 100." The defendant who was the Ratamahatmeya, denied the phiintift's right to appro- priate the firewood in question, which he admitted having sold, as the property of the Crown, under instructions from the Government Agent. The answer further raised the plea of jurisdiction, on the ground " that the rights involved were of greater valuj than rupees 100." On the 17Lh of March, the Commissioner (Neville) made ihe following order : "plea of jurisdiction being taken as to the vdlue of the rights involved, plaintifi's Proctor contends that the Court cannot entertain the question of the value of the rights involved which are future, but can only try the actual trespass. Laid over for ten days, for plaintift to institute an acti'm to have his title to the disputed right of jetsam established." On the iSth of March, the plaintifi was non-suited in the following terms. " The right to alluvion, accretion or jetsam being in di.9pute, and plaintiff olaimiucr only special damages and not having, as ordered, instituteil action to establish his right to the said alluvion, accretion or jetsam — which may be regarded as usucapio and as immoveiible property, — the right being alleged as attached to the land and part and parcel there- of (equally with trees growing on it, etc.)— this Court is not com- petent to award damages, the title being in dispute and bein* beyond the jurisdiction of this Court, as is clear from one act of trespass alone causing damages rupees 100." In appeal, Dias, for appellant. — The question of jurisdiction should be determined by the value of the thing actually in dispute, and not with reference to any collateral matter which might inoi dentally be drawn into the discussion. The property in dispute in the case was valued at £10 and came within the jurisdiction of the Court below, but the enquiry into the right in respect of which the £10 was claimed, was merely a collateral enquiry, and no decision thereon could operate as res judicata. Per Catley, J. — "Affirmed. The rio'ht to take the wood washed up by the river is claimed as appur- tenant to the plaintiff's land, and this right is put in issue by the defendant's answer, and is the real (piestion in dispute between the parties. The value of this right is far more than rupees 100; and the Supreme Court thinks that the learned Commissioner has properly held the case to be bey"nd the jurisdiction of the Court of Requests." Damages. C.B.Colombo, 90032. Plaintift (W(zWe.s) sued for the recovery Horse-break- of rupees 13-16, being charges for repairing harness and shoeing a ing. COURTS OF REQUESlrs. 27 \ ^^.^ jg. horse belonging to defendant, ( Weinman) who, admitting the debt, claimed rupees 100 in reconvention, as part damage caused to a mare belonging to him, which, by plaintiS's careless and unskilful treatment in training, had depreciated in value. It appeared from the evidence that the animal in question had originally been trained by Pate ; that afterwards she had foaled and had. not been used for 2^ or 3 months. At the end of that period the mare was sent to plaintiff, who, after lunging her regularly for some days on the Galle Face, drove her in his brake. Subsequently, however, he attempted to harness her opposite his house in the Pettah, and what then occurred was deposed to by the horsekeeper as follows : '■ I told him not to, but to lake the animal to Galle Face. He however put her in after strapping her leg first. He then wanted to get into the trap. The mare plunged and fell. Its leg was then strapped. Its knees were injured as well as its side and bind leg. Plaintiff undid the strap, and took the mare opposite the Gas Works, and lunged it and whipped it very much. The mare got timid after that, and did not go as usual. It stopped now and then," Pate stated to the Court that, having' heard the horsekeeper's story, he was of opinion that " the mare was very likely to get very stubborn after such treatment ;" that the mare was, when he knew her, good tempered and free from vice in harness ; and that after the accident he had sold her, at the request of plaintiff, for rupees 300, whereas she had previously been worth rupees 500 or rupees 600, The Commissioner (de Saram) dismissed plainliff's case, and entered judgment for defendant for rupees 100, holding that " in restricting his claim to rupees 100, the defendant had given up a good portion of the loss sustained by him." In appeal, {Ferdinands for appellant, Grenier for respondent) per Catley, J. — " Affirmed. The damages reduced to eighty six rupees and eighty four cents, (Rs, 86"84) as the defendant admits the plaintiff's claim for Rs. 13-16." C R. Colombo, 89922. At the first trial of this case, it was Irregular non- agreed that Mr. Schwallie should make a survey, plaintiff paying for ^""'' it in the first instance, but the expense to be ultimately made costs in the suit ; and a postponement was thereupon allowed. At the ad- journed trial, the plaintiff was iion-suited in the following terms : " when the case was instituted, the plaintiff should have taken care to file a survey, if he required one, with the plaint. He was however allowed a postponement on the last occasion the case (^ame on, to get a survey made ; and now the Surveyor reports that, in consequence Aug. J2 ■I 28 PART n. — of some neglect on the part of the plaintifl, he was not able to survey the land. The Surveyor also reports that the plaintiff did not pro- duce the foi-mer survey of the land — not filed in the case." In appeal, (Grenier for appellant) per Catlet, J. — " Set aside and case sent back for hearing. No sworn report of the Surveyor is filed, and there is nothing in the record to shew that the delay in making the survey was due to plaintiff." Costs. C. U. Mallakam, 201. This was an appeal against an order refusing to recall writs for costs against plaintiff, who^Jaad voluntarily withdrawn his case. A string of objections had been taken ia the Court below, all of which however had been overruled. In appeal, Orenier, for appellant, submitted that the requirements of the 35th section of the Rules and Orders had not been properly complied with. There was no note of the taxation of costs on the record by the Clerk of the Court, and the writs had therefore been irregularly issued. The objection, he observed, had not been taken in the petition of appeal, but it was desirable that the minor Courts, which were inclined to be lax in their practice, should be required lo strictly carry out the law. [The costs allowed were reasonable, and the omission you refer to may easily be supplied by the case being sent back. — Caylet, J.] The objection, however, not being pressed by Counsel, the order was affirmed. Ke-opening C. R. Colombo, 90285. The plaintiff claimed rupees 97, as iudginent,. damages caused by the defendant having his canoe maliciously seized under a J. P. warrant. The defendant justified the seizure, on the ground that he acted under " sufficient and probable cause." On the day of trial, (3!st Mai-ch) the defendant being absent and his Counsel stating that he had received no instructions, judgment was entered for plaintifl with costs. Subsequently the defendant moved ■to have the judgment re-opened on an affidavit which, inter alia, recited that he had been obliged to go to Galle on the 22nd March on private business as dubash to supply ships ; that he had intended to return in time for the trial, but had been delayed by reason of his accounts not having been settled by some ship masters ; and that he had a good and honest defence on the merits. The Court below, however, declined to entertain the motion in the following order: " Re-opening of judgment disallowed, as the defendant left no in- structions with his Counsel and might have telegi;aphed fi^om Calle if he really could not attend." COURTS OF REQUESTS. 29 In appeal, Kelly, for appellant.— The discretion vested in the Commissioner under the 18th section ot the Rules and Orders (Ordinanoe 9 of 1859) was not to be exercised arbitrarily ; and there was sufficient reason assigned in the affidavit to open up the judgment. Sed per Catlet, J.— "Affirmed. The affidavit does not show that the defendant was prevented from appearing by accident or misfortune, or by not having received sufficient infor- mation." Aug. 19. C. R. Colombo, 90011, The plaintiff sought to recover the sum of rupees 12-50, as damages consequent on havino- had to attend at an investigation, held by the Modliar of the Corle, by commarld of His Excellency the (lOvernor, into a charge preferred by defendants and several others in a petition complaining that the plaintiff, who was a division officer, had blocked up a certain road. The Commissioner (Livera) non-suited the plaintiff in the following terms : " I hardly think the defendants are responsible for the e.x.pense undergone by the plaintiff The Modliar was re- quested to report on the petition, and if in deference to him the plaintiff took the trouble to obey the orders sent, he must bear the consequence himself." In appeal, (^Ferdinands for appellant, Grenicr for respondent) per Catley, J. — " Affirmed, but not for the reasons given by the learned Commissioner. If the plaintiff had proved that the defend- ants joined in maliciously signing and presenting to the Governor a petition which they knew to be false and which contained crim- inatory matters against the plaintiff, the plaintiff would have been entitled to damages, and the amount claimed would have been by no means excessive. The petition, however, is not proved, nor is secondary evidence of its contents given, as could have been done if its non-production had been sufficiently accounted for. It is impossi- ble, therefore, to determine how far the btatements contained in it were actionable. The petition mireover, being one to the Governor against a public officer in a matter in which the petitioners had an interest, is in its nature privileged ; and before the plaintiff could recover damages for any defamatory statements contained in it, he would have to give some evidence of express malice." Damages. Privileged communica- tion- A'U^st 19. Present Catley, J. C. R. Ratnapura, 7618. Plaintiff, as widow of Don Simon, sued Construction defendants for the recovery of an undivided one half share of the of a will. Aug. 19, 30 PART II.— land mentioned in the libel as part of her late husband's estate. The first three defendants disclaimed title, while the 4th alleged that, as daughter of Don Simon, she held the property in question for the maintenance of herself and the minor daughter of her full sister Sovitchi Hamy, in terms of her father's last will, the 5th clause of which was verbatim as follows : " All the remainder of the moveable and immoveable property, etc. after the deduction of the above bequests, was assigned to my wife Punchy Manike and my own children Appoohamy, Sobitchyhamy and Muttoo Manike, to be divided and given equally between them, provided however that the property to the worth of £30 or that amount in money be given credit to the estate of her the aforesnid Sobitchyhamy's share on account of the expenses incurred for the hand and neck jewels and ornaments, etc. furnished her at the time of her marriage : nevertheless these provisions ' are to take their course in ihis manner having referrence to the assistance rendered or caused to be rendered to my wife Punchy Manike during her natural life by my aforesaid children Appoohamy, v'^obitchyhamy and Muttoo Manilie, and unless the said Punchy .Vfanike made over as to her own pleasure while she was as yet alive or after her demise the said shares or anything else agreeable to her pleasure, the children whose names ap- pear in this clause cannot use any violence or force by laying to their shares or right of inheritance save and accept the means of livelihood." In appeal, {Ferdinands for appellant, Dias for respondent) per Caylby, J. — "Set aside and judgment entered for plaintifl for the land claimed in the plaint but without damages. The 5th clause of Don Simon's will is not very intelligibly worded, but the Supreme Court thinks that the intention of the testator, as gathered from the entire clause, was that the enjoyment by the children of their shares should be postponed until the determination of the widow's life- interest. The 4th defendant is entitled to means of livelihood out of the estate, but this will not give her any right to a specific share of the estate, much less to any particular land. " Effect of re- C. R. Point Pedro, 784. Plaintiff claimed ^ of certain lands by citals in a right of inheritance from his mother, and complained that defendant deed. ^y^ brother) had unlawfully removed his paddy crop. The defen- dant denied plaintiffs right, and set up title in himself by purchase from plaintifi's mother and co -proprietor. The Commissioner (^Drieberg) after plaintifFs examination dismissed the case, holding that the defendant's deed was expressly recited in a partition deed affecting the parent's estate, to which both plaintiff and defendant were parties. In appeal, per Cayley, J. — "Set aside and case sent back for new trial. The present action not binng founded on the jwrtition deed, the recitals nf that deed, though evidence against the COURTS OP REQUESTS, 31 j plaintiff, do not operate as an estoppel, and the plaintiff should have an opportunity of proving his case." Aug. 19. C. a. BalapUimodera, 22129. The plaintiff sought to recover Loan, rupees 10-32, which he alleged had been borrowed and received by defendant, who however denied the debt. The plaintiff called two witnesses and the defendant none. The Commissioner (^Halliley) held as follows : " In transactions of these kinds, there should always be a promissory note or a receipt passed. Nothing is easier. Now among the witnesses that generally come before me, I always find that plaintiff's witnesses are for plaintiff, and the plaintiff could not state the case bettei* than they, and defendant's ditto. Sf) that I caa hardly ever believe witnesses who come before me. Plaintiff, having failed to get a promissory note or receipt from defendant, is non- suited with costs. In appeal, [Ferdinands for appellant) per Catlet, J. — "Set aside and judgment for plaintift for rupees 10-.32, with interest thereon at 9 per cent, from date of action brought, and costs of suit. Neither a promissory note nor a receipt was necessary to enable the plaintiff to recover the amount advanced by him. He has proved his case, and the defendant has called no evi- dence to rebut it." C. R. BalapUimodera, 22063. This was an action on a bond Burden of against the heirs and representatives of a deceased debtor. The proof, defendants pleaded that the debt had been paid and the bond obtained by the debtor during his life time, "but called no evidence at the trial. The Commissioner (Halliley) non-suited the plaintiff with costs. In appeal, per Cayley, J.—" Set aside and judgment for plaintiff as prayed with costs. The Commissioner has not given any reasons for non-suiting the plaintiff. The burden of proof is thrown on the defendants, and they have called no witnesses." C. B. Negombo, 21634. Plaintiff sought to recover the amount Non-suit. of a mortgage bond from defendants as being in possession of the debtors estate, but having failed to prove such possession, the Commissioner (Dawson) entered a judgment of nou-suit. In appeal per Cayley, J.—" Affirmed. Aug. 19. 32 PART II. — Effect of judg- C. R. Mullaiitivu, 9930. This was an action for damages against ment for land, the defendant, who was charged with having vmlawfully reaped, threshed and appropriated a portion of the paddy crop which had been cultivated by plaintiff. Defendant justified himself on the ground that he had previously obtained judgment in the District Court for an undivided i of the field in question. It appeared that when defendant, as holder of a writ of possession, proceeded to have his right enforced, a crop of paddy which had been cultivated at plaintiff's sole expense and labor was standing on the field, though not ripe for cutting. The Comaaissioner ( Withers) gave judgment for plaintiff in a lengthy jn Igment, in the course of which he held as follows : "Now it was and is the Court's opinion, that with a judgment for land passed, any plantation growing on the land, and by that is meant all the produce of the land which has not resulted from the labor of man — trees and natural grasses for instance as distinguished from corn." In appeal, per Caylet, J. — " Set aside and plaintiff's claim dismissed with costs. The judgment in the case No. 115, being a judgment for an undivided ^ of the land without any reservation, carried with it a right to ^ of the crop growing at the time on the land. It is not clear hat the appellant has appropriated more than | of the crop, and to this he was entitled." p , . C R. Kurunegala, 28350. The following judgment of the Com- to rovHlty on missiouer {J. H. de Saram) explains the case : " The facts of this case Plumbago. are as follows. The land referred to in the plaint was purchased by the plaintiff from a third party, who alleged he had a right to it. The plaintiff commenced digging for plumbago when a claim was put in on behalf of the Ci'own to the land, and it was put up for sale by the Government Agent of this Province on the 4th August, 1871. The plaintiff relinquished all right he had to the land under his first trans- fer, and purchased it from the Crown. The copy of the conditions of sale put in evidence by the plaintiff, is admitted to be a copy of those on which plaintiff purchased the land. There is no mention made in those conditions that the purchaser would have to pay royalty on plumbago dug on the land ; and as the Government At^ent has demanded payment of royalty, this action has been instituted to have the question of the plaintiff's liability or non- liability settled. For the plaintiff it was contended, (1) that the land was sold on the understanding that plaintiff would not have to pay royalty ; (2) that plaintiff is not bound by any clause in the transfer which is not consistent with the conditions of sale ; (3) that the rights of the Crown which were re.served by the 4th clause of the CODETS OF REQUESTS. 33 conditions are those referred to in the Minute of 1st August, 1861. and by which no right is reserved on minerals, but only on precious metals ; (4) that it is not proved that there is any I'egulation or proclamation in existence, authorizing the demand of royalty. On behalf of the Crown, it was urged that, inasmuch as the plaintiff accep- ted a Grant from the Crown, he is bound by that Grant, and as there is a special clause in it, by which the right to all the minerals in the land is reserved, the demand for payment of royalty is valid. This contention appears to me to be well founded. The present action is not one to set aside the Grant given by the Crown, and to compel it to hand plaintiff one in terms of the conditions of sale, but it is one requiring the Court to hold that plaintiff is not liable to pay royalty. It is beyond the power of the Court to do this, as the very deed on which the plaintiff rests his title contains a clause reserving the right of the Crown to all minerals in the land. Had the action been one to set aside the present transfer, the Court would have been in a posi- tion to take notice of any difference that exists between the condi- tions of sale and the wording of the transfer. For these reasons, it is decreed that the plaintiffs case be, and the same is hereby, dismissed with costs." In appeal, (Ferdinands for appellant) per Catlbt, J. — •' Affirmed. Plaintiff has admitted the original right of the Crown to the land by purchasing it from the Crown, and the transfer under which he now holds it expressly reserves the minerals. He complains that the trans- fer is not drawn in accordance with the conditions of sale under which the property was sold to him, no reservation of the minerals having been mentioned in these conditions. How far this might be a good ground for instituting a suit for specific performance of the original contract of sale, or for procuring a new or amended transfer, it is not necessary to determine ; but so long as the plaintiff holds the land under his present conveyance, which expressly reserves the right of the Crown to the minerals, it is not competent for him to dispute that right." Aug. 19. C R. Panwila, 4120. This was an action to recover Es. 100 on a Action on ; bond, the original of which had been lost but a certified copy of Bond, which was filed with the plaint. The defendants, admitting the docu- ment, pleaded part payment, and strangely enough concluded their answer with a prayer that each party might be condemned to pay his own costs. The Commissioner ( Smart ) held as follows : " The original deed being lost, plaintiff to hold up his claim at all should have called the notary and witnesses to give evidence as to the genuineness of the copy. But even with this there is a strong pre- Aug. 19. '■} 34 PART II. sumption that part of it has been -satisfied, by the evidence for defendants. Defendants admitted theii- liability to plaintiff for Rs 15 ; therefore judgment is given for plaintiff for Rs 15, but plaintiff will bear all costs." In appeal, {Grenier for appellant) per Catlet, J " Set aside and case sent back for further hearing. The Commis- sioner in effect holds that the original bond having been lost, plaintiff cannot maintain his claim without calling the notary and Tvitnesses, The defendants, however, admit the bond in their answer ; and con- sequently no proof at all is required of the instrument on the part of the plaintiff. The onus of proof is entirely thrown upim the defend- ants ; and, unless they have proved the payment to the satisfaction of the Commissioner (which from his iudgment is not quite clear) plaintiff is entitled to judgment. Even if the defendants prove the payment of part of the money due, the balance not having been paid into Court, plaintiff should not be condemned to pay defendants' costs." Contract C, fi, Panvnla, 3713. Plaintifl sought to recover Rs 20 alleged to affectmg land, jj^yg been advanced as part value of a land which he had agreed to purchase from defendant, who however denied the transaction. Evidence was adduced to prove the advance, but the Commissioner {Smart) nonsuited the plaintifi, on the ground that the- agreement pleaded was not in writing as required by the Ordinance 7 of 1840. In appeal, per Caylet, J.— " Set aside and judgment entered for plaintiff as prayed. It was decided in 1871, D. C. Walligame ( Morgan's Digest, p. 82 ) and again in 34472, D, C. Colombo, Civ. Minutes, November 10, 1863, that money paid in pursuance of a contract which is void under the Ordinance of Frauds and which is not performed is recoverable." Effect of C. B. Chavakacheri, 17^73. The plaintifl had deposited the sum settling and of Rs 75 with defendant in December 1871, as security for the per- withdrawing formance of certain work the former had undertaken to perform. The a case. money was to be returned to plaintifl in December 1872, if no loss or damage were caused by him to defendant in the interval. In August 1 872, the defendant dispensed with plaintiff's services, without how- ever returning the deposit, to recover which the present action was brought. Three previous suits in respect of this very claim had been instituted and subsequently withdrawn. Plaintifl admitted at the trial, that he had signed the settlement filed in the last case, Nn. 17215, but insisted that defendant had failed to carry out the terms thereof. The Commiasioner {Drieberg) dismissed the claim with COURTS OP BEQUESTS. 35 \ . „„ costs, holding that plaintift's remedy under the circumstances was by an action to enforce the settlement. In appeal, (^Ferdinands for appellant) the judgment was set aside and case sent back for hearing ; and per Oayi,ey, J. — " The mere fact that the plaintift withdrew the former case will not prevent him from reinstituting it, If, however, the Commissioner is satisfied, after hearing evidence, that the previous withdrawal was part of a final settlement which was duly carried out, the plaintiff's claim should be dismissed, as having been reinstituted in fraud of such settlement." C. R. Mallakam, 210. This was a case of encroachment. The Commissioner, (^Murray) after hearing evidence of both parties, gave judgment for defendant for the land in dispute, and nonsuited the plaintiff. In appeal, Grenier, for the appellant, pressing only for a nonsuit, the judgment was modified accordingly. C. R. Kurunegala, 28566. Plaintiff claimed Rs 96 as value of 12 Bond, aiuunams of paddy, being the share of a certain field which had been cultivated by defendant. In defence, it was pleaded that the paddy had been given by plaintiff in part payment of interest due by her late husband on a bond granted by him to defendant's brother, of whom defendant was the sole heir. The bond itself was not pro- duced, but evidence was led to prove acknowledgment by plaintift of the alleged debt and her delivery of the paddy in part satisfaction thereof The Commissioner, (de Saram) having believed defendant's witnesses, dismissed plaintiffs claim with costs. In appeal, (Orenier for appellent, Ferdinands for respondent) per Catlet, J. — " Set aside and case sent back for further hearing. The bond alleged to have been given by plaintifi'a deceased husband to Kirihami should have been produced, and proved in corroboration of the evidence given by the defendant, or the non-production of this instrument should have been properly accounted for." August 26. Present Caylbt, J. C. R. Nuwera Eliya, 3168. The plaintifls in this case had been Contempt, nonsuited in respect of their claim to a certain land. Having subse- quently plucked coffee from the property in dispute, the Commis- sioner {HarUhorne) proceeded to try them for Contempt of Court and fined each Rs 10, holding that "a nonsuit in an action for eject- ment operated as a dismissal." In appeal,— (Ferdinands for appellant Aug. 26. 36 PART II. — was not heard) — per Catlet, J. — " Order set aside. The plaintiffs were not bound to give up possession of the land to the defendants, who have no judgment in their favor, because they, the plain tMs, had been nonsuited in an action brought by them to try their title ; nor can the plaintiffs be punished for Contempt of Court for retaining possession." Jurisdiction. C*. R. Puttalam, 6888. Plaintiff alleged that he had manufactured Damages. .5000 bricks from clay dug out of a portion -of land belonging to 1st and 2nd defendants ; that thereafter the other defendants had maliciously destroyed the bricks, falsely laying claim to the said land, to his damage of Rs 30. The i st and 2nd defendants admitted they were the owners of the land ; that the other defendants weie their lessees ; and that with the full knowledge and consent of such lessees they had licensed plaintiff to make bricks. The 3rd, 4th, 5th, and fith defendants pleaded they were not lessees, but proprietors of the land, and denied the grievance complained of and the right of the plaintiff to sue in the absence of any notarial authority from the 1st and 2nd defendants to occupy the land in question. The Commis- sioner (Pole) gave judgment for plaintiff for Rs 12^j holding that " this is a simple case of damage, although by the pleadings it is attempted to magnify the case into one of title to land." In appeal, Dias for appellant.— The questionof title was undoubt- edly raised on the pleadings, and the right of the plaintiff's lessors to the land was in issue. Per Catlet, J. — " Affirmed. The plaintiff has proved that the 3rd 4th, 5th and 6th defendants destroyed the bricks which he had made; and these defendants have failed to prove any iustification for this act. No evidence as to the title to the land was called by either side; and II the issues upon which the case was tried and decided are within the jl jurisdiction of the Court of Requests." Action on C . R. Kandy, 5111^. The plaintiff sought to recover Rs. 65 and Bond. interest on a bond, which defendant admitted having executed but Husband and the consideration of which she denied having received. The plaintiff, wife. being affirmed, stated " the defendant, I admit, did not receive the consideration, but the husband received it. She (defendant) gave me the bond." The Commissioner (^Stewart) held as follows : "Plaintiff admitting that defendant did not receive the consideration, case is dismissed with costs." In appeal, per Caylet, J.—" Set aside and judgment entered for plaintiff as prayed. The action is one on a bond, and the only defence is want of consideration. The burden of COURTS OF REQUESTS. 37 proof is upon the defendaHt, and she has called no evidence. The Commissioner has non-suited the plaintiff, in consequence of his ad- mission that the defendant's husband, who appears to have since died, and not the defendant, received the consideration. But the fact that the plaintiff gave good consideration for the instrument, whether to the defendant or to her husband, is sufficient to entitle him to main- tain an action against the party who signed the bond in his favor. The plea of coverture has not been taken." Sbpt. 5. C. R. Colombo, 90445. Plaintifi was nonsuited, on the ground Non-suit, that his present claim had been adjudicated upon in a previous suit, in which he had endeavoured to set ofl the same amount against the defendant. In appeal, per Catley, J. — " Affirmed. The Commis- sioner is right in holding that the plaintiff, having pleaded the amount now claimed by him as a set-off in a previous action brought against him by the present defendant, and the issue thereon having been found against him, is estopped from suing the former plaintiff for the demand specified in the plea of set-off. See Eastmure v. Laws, 5 Bingham, 444." Set-ofe. September 5. Present Catlet, J. C. R. Panadure, 14980. The Government had taken up in Way of neces- 1871, under the provisions of Ordinance 2 of 1863, a certain land for sity, •the purpose of enlarging the Panadure burial ground, and had fenced ^,^^'^'' °* ^" in a road that the defendant (who lived to the south) was using. The 1863. defendant (Proctor Jayesinghe) having broken down a portion of the fence over the road on the day it was put up, the Modliar, as re- presentative of the Government Agent, instituted this action for trespass and damages. The defendant pleaded that the road in question was a way of necessity, and deposited in Court Rs 50, being the value of the encroachment as assessed in the libel. It appeared from the evidence that, when defendant purchased his pro- perty in 1870, there was a foot-path (which he subsequently enlarged into a cart-road) running across what was now the burial ground on to the high-road ; that thereafter, certain excavations in the burial ground having interfered with that cart-road, Soyza Modliar, acting under the Government, opened the road now in question for the defendant's use; and that about a fortnight after the defendant had gravelled it, on the plaintiff fencing in the whole of the Government property, the defendant removed the obstruction to his right of way. The Com- missioner (Morgan) held as follows. " The defendant came to his SjiPT. 5. > 38 PART II.- present residence in ) 870, so that he could have gained no prjscrip. tive right to the road, nor has any been shown as on the part of those under whom he claims. In fact, his application is one, as the plaintiff's Proctor described it, ad misericordiam. He admits that he con- verted a foot road into a cart road, and he asks the Court to compel the plaintiff to receive Rs 50, which he tenders, and allow him the use of the cart road. But this the Court has no right to do. The defendant's proper course is to apply to the Grovernment under the Ordinance 2 of 1863. He has further means of securing access to his residence, if he has none at present. Defendant was wrong ia breaking the fence, and he is decreed to pay one Rupee as damages. As the case seems a hard one for him, I will not cast him in further damages. Judgment for plaintiff with costs." Ferdinands, for appellant. — This was a way of necessity, and the defendant was entitled to it. Holmes v. Goring, 2 Bing., 76. [But there the owner had originally held the land himself in parcels — Catley, J.] The principle was the same in both cases, that where there was no other way which a party could use, it was no trespass to make a way of necessity. The Crown having itself allowed the road in lieu of the one destroyed, defendant could not be charged with ti'espass. [It is denied that there was an easemsnt. Defendant's purchase was only in 1870. — Cailei, J.] He did not clairu by prescription, but on the ground that there was no road by which he could have access to his land without trespassing on the lands of other persons. [The evidence on this subject is not sufficiently full.— (.'AYLEr, J.] The Queen's yloliiocate, for respondent. — The defendant had other means of access and could not complain. [It appears across 10 or 15 lands — Caylet, J.] But the area was very small, and from his own personal knowledge of the place, he could say that defendant would sufier no inconvenience whatever. Besides, the plea of necessity could not avail, as there was a statutory remedy prescribed by Ordinance 2 of 1863, cl. 9, and that was the only remedy now avail- able to an aggrieved party. The land m question had been taken possession of by Government for the purposes of a burial ground under the Ordinance, and the defendant's right, if any, was extin- guished by the enactment in the 4 th clause, which vested the land in the Crown free of all mortgages and incumbrances and to the ex- clusion of " all persons whomsoever, whatever right or title they may have or claim to have in the property." Ferdinands, in reply. — The Ordinance did not destroy the common law right of the defendant to a way of necessity, nor could it affect the rights of third parties ivho had neither sold the laud nor shared in the compensation paid liy the Grown, COURTS OF REQUESTS. 39 Per Catlet, J.—" Affirmed. This is, in effect, an action by the Crown to set aside a claim made by the defendant of a right of way over a piece of land taken by the Government for the purpose of a public burial ground. It was admitted, at the hearing before this Court, that the land was regularly taken under the provisions of the Ordinance 2 of 1 863. The right of way is claimed by necessity only. Mow even though such a plea were tenable, (and, in view of the certificate of possession issued under the 4 th clause of the Ordinance, I think it would not be,) the defendant has failed to prove this necessity; and this issue has-been expressly found against him by the learned Com- missioner. It appeai-p, from the rough sketch filed with the proceedings as well as from the defendant 's evidence, that although the burial ground supplies the nearest and moat convenient means of access to the minor road from the defendant 's property, there are other means of access eas'ly available. If the defendant cannot otherwise obtain free and sufficient access to his property, he should, as suggested by the Commissioner, apply to the Grovernment for a road under the provisions of the 9th clause of the above mentioned Ordinance." Sept. 5. C. H. B(dapittmodara,22l35. Plaintifi, who was a special mortgagee. Mortgage, was prevented by defendant from selling the mortgaged property, the hitter claiming it by right of purchase at a Fiscal's sale held six months previously. The Commissioner (^Halliley) held as follows : " There is no bill of sale as mentioned in the mortgage bond in evidence. I can't therefore say the extent of the land. Plaintiff is nonsuited with costs." In appeal, per Caylet J. — " Set aside and judgment entered for plaintiff as prayed with costs of suit. By a deed of mortgage dat- ed 29th September, 1868, Kaluvahakuru Siman mortgaged with plaintiff all his right in the land in question. The defendant claims the property by purchase at a Fiscal's sale held in 1S72, under a writ against this Siman issued for costs. Plaintifi's mortgage must have priority over defendant's purchase ; and, as all Siman's right, in the land was mortgaged, the precise extent of property is quite im- material." C. B. Galle, 46118. This was an appeal against costs which Costs, plaintiff was condemned to pay in an action brought by him to redeem a mortgage bond,*whioh defendant admitted having refused to didiver over. When the case was called, the Commissioner (Zee) made the following order: "the mortgage bond is handed to plaintiff. The defendant to take the money deposited and to have costs." Per Caylet, ,J.— "Set aside, so far as relates to that part of the judgment Sept. 6. | ^« "^^^ "- which condemns plaintift to pay defendant's costs, and amended by ordering defendant to pay plaintift's costs. Defendant admits in his answer that he refused to allow plaintiff to redeem the mortgage, and has called no evidence to justify such refusal. Plaintifl has been un- necessarily put to the expense of bringing this action to redeem the bond, and he ought to have his costs. Moreover, it does not appear that any notice was given to the defendant before the trial, that plain- tifi had deposited in Court the Ks. 20 on the 15th of May, 1873." Arbitration. C. R. Oampola, 28234. The dispute in this case, which affected title to land, was, on the joint motion of the parties and their Proctors, referred to the sole arbitration of Abraham Mohandiram, whose award was as follows: "I having received the letter in case No. 2S234 which was addressed to my name, the plaintiff, defendant and several other respected people proceeded to the disputed land and enquired, but for the following reasons it is difficult to make out to whom the disputed land belongs. On our enquiring we did not find a deed to the said land, nor was the Koralle of the said district, who separated the said land formerly, present. But having enquired from the neighbour- ing headman, it is given to understand that the said disputed land is the property of the defendant but not of the plaintifl." On this award being filed, the Commissioner (Neville) dismissed plaintiff's claim and decreed the land in question to defendant. In appeal, {^Kelly for appellant) per Caylet, J. — " Set aside and case sent back for a new trial. Appellant to have his costs in appeal, but the costs in the Covirt below to abide the final adjudication. The reference to arbitration having been voluntary, no appeal would lie from any iudgment which had been given according to the award ; but it appears to the Supreme Court, that in the present case the judgment has not been given according to the award. In the award, the arbitrator states that it is difficult to make out to whom the dis- puted land belongs, but that, having made enquiry from neighbouring headman, he is given to understand that it is the property of the de- fendant. There is no express finding that the land belongs to the defendant, and nothing more than the statement of the opinion of certain headmen. Such an award will not entitle the defendant to judgment in his favor, nor indeed could any definite judgment be based upon it." Indefinite ^- ^- Galagedera, 30393. This was an appeal against a judgment judgment, of the Commissioner, (Capt. Williams) decreeing, under the Kandyan Prescription, law, one half of a certain land to plaintiff, as one of two sisters, by right of inheritance from her father. I71 appeal, per Caylet, J. — COURTS OP REQUESTS. 41 ) „„ 5 " Set aside and case sent back for further hearing and consideration. Plaintift claima by inheritance from her father Kiri Banda an undivid- ed I share of a certain garden called NaranghamuUe Cattuwa. The learned ComWssioner has given judgment for the plaintifi for half share of the portion of land inherited by Kiri Banda, but he proceeds to observe that it is not clear from the evidence what this portion of land is, but that it must be ^th share of that which descended to his children excluding the portion of land given to the widow. Now the principal issue in the case is not whether the plaintifi is entitled to a shave of Kiri Banda's land (for the fact of her being his daughter is not seriously contested), but whether the land claimed in the plaint was inherited or possessed by Kiri Banda. On this issue there is no finding, and it is impossible to ascertain from the judgment what precise share of what precise land is decreed to the plaintiff. No effectual writ of possession could issue upon a judgment thus fram- ed. The learned Commissioner has observed that prescription cannot avail in the case, because the plaintiff is apparently about twenty two years of age only. The age of the plaintiff is, however, by no means conclusive on the question of prescription. It is possible that a pres- criptive title may have been acquired by the defendant as against Kiri Banda before the plaintiffs right of action accrued, or prescription may have commenced to run against Kiri Banda before his death, in which case the disability oftheplaintiff could not prevent such pres- cription from being completed by the adverse possession of the defend- ' ant for the term of ten years." C. R. Oampola, 28680. The title to a certain land of about two Jurisdiction. seers' sowing extent was in dispute between the parties. The Com- Test of value misaioner (Penney) nonsuited the plaintiff on the following groimd : — of land . "the land is worth 12 or 15 rupees a year, and at 10 years' valuation is worth more than Rs. 100." In appeal, per Catley, J. — " Set aside aud remanded for further hearing and consideration. The case has been dismissed by the learned Commissioner on the ground that, as the value of the yearly produce of the land in dispute is 12 or 15 i-upees and on the assumption that the value of the land is equivalent to the value of 10 years' produce, the case is beyond his jurisdiction. There is however no evidence for this assumption, and it is also to be observed that, in estimating the value of the annual produce as a cri- terion of the value of the land, the expenses of cultivation should be taken into account. When land is cultivated in ande, half share of the produce usually goes to the andekariya. The amount for which the land would rent, or the amount for whicli it would be given out inande, would be a more accw-ate measure of its value." Sept. 5. I ^^^ part ii.- Damages on C. U. Randy, 52134. This was an appeal against a judgment of ''"tlmrT "d'^'^' ^^^ Commissioner (Stewart) awarding Rs, 5 to plaintiff as damages consequent on the breach of an alleged agreement, by which defendant had bound himself to lease a certain land to plaintiff who in goud faith had improved the property. In, appeal, per Catley, J. — " Set aside and plaintiff non-suited with costs. This is an action to recover Rs. 40 damages for breach of an alleged contract, by which 'plaintiff ■ agreed to improve and cultivate a piece of land in consideration of an alleged promise by defendant to give him a lease ot the land for five years.' Plaintiff also claims the Rs. 40 under the common counts for work and labor done and money paid on account of defendant at his request. Plaintiff has called witnesses to prove that he carried out certain work on the land, but there is no evidence of the contract declared upon in the first count of the plaint, the terms of which are \ disputed and which would have required notarial execution. Nor is there any evidence that the alleged work was done and money ex- pended at the defendant's request, express or implied. See 32746, C. R. Kandy, Solomon.s' Reports, part 1, page 23." Stamp ohjeo- C. B, Colombo, 91967. Plaintiff sued upon a document, which he tion. described- in his libel as a promissory note, for the recovery of Rs. 47, being amount of principal and interest due thereon. The defendant pleaded payment. On the day of trial, the defendant's Proc- tor relied on the legal objection that the alleged promissory note was a bond and therefore insufficiently stamped, and declined - to call evidence in support of the plea in the answer. The Commissioner (Livera) entered judgment for plaintiff as prayed for. In appeal, Orenier, for appellant, pressed for a rehearing to prove payment. Per Catlet, J. — " Set aside and case sent back under the conditions hereinafter stated. In this case, the instrument having been expressly admitted in the answer, and a plea of payment being the only defence, it was not competent for the defendant to raise an objection at the trial as to whether or not the document was properly stamped. (See Israel v. Benjamin, 3. Camp., 40.) The defendant is allowed, as an indulgence, an opportunity of proving his plea of payment ; but he must pay all the costs of the day in the Court below and of this appeal, within seven days after a taxed bill has been presented, and must deposit in Court, within seven days of the case being sent back to the Court of Requests, the amount claimed in the plaint, to abide the final adjudication. Upon his failure to comply with any of the above conditions, the judgement appealed against is to be treated as affirmed." C0UKT8 OF EEQDESTS. 43 C, R. Colombo, 90405. This was an arction to recover half the Talue ol fish caught by defendant with the aid ef plaintifl, who led evidence to show that the defendant, having oast his net into the sea to the south, called upon the plaintiff, whose boat was to the north, to enclose the fish and drive it into his (the defendant's) net, pvomis- ing to reward him with half the fish that might be caught. The defendant denied the alleged agreement in his answer, but the Commissioner (Livera) having believed the plaintiff's evidence gave judgment for him to the full amount claimed, Rs. 61. In appeal (Ferdinands for appellant, Grenier for respondent) per Catlet, J. — " Affirmed." Sbi't. 9. Contract, September 9. Present Catlet, J. C. B.. Galle, 4C376. This was an action for goods sold and delivered and for money lost in consequence of an alleged assault by defendant, who pleaded not indebted and not guilty. On the day of trial, both parties being present, the Commissioner (Zee) made order as follows. " Plaintiff ready, defendant not ready. Judgment for plaintiff with costs." In appeal, per Caylet, J. — " Set aside and case sent back for hearing. The defendant appeared on the day of trial, so that the case is not one of default. The onus of proof being on the plaintiff, he was bound to prove his case before iudgment could be given in his favour. " Borden of proof. C R. Galle, 46474. The plaintifl, who had been fireman on board Execution the steamer Leith, sued the defendant (the Captain) for the recovery against person. of Rs 9, being wages for overtime. The Commissioner (Lee) having heard plaintiff's evidence gave judgment for him on the 5th July. On the 8th July, plaintiff's bill of costs was taxed at Rs. 1. 70 cents, and writ against person was allowed and issued. In appeal, per Catlet, J. — " The judgment of the oth July, 1873,13 affirmed, but the order of the 8th July, so far as relates to the writ against person, is set aside. Bach party is to bear his own costs of appeal, if any. It appears from the proceedings and the letter of the learned Com- missioner, that the only issue raised at the trial was, whether the plaintiff performed the work for which he has claimed extra wages; and the plaintifl 's evidence on this point being uncontradicted, judg- ment was properly entered in his favor. With regard to the writ against the person of the defendant, the Supreme Court thinks that it was not competent for the Court of Requests to issue such writ. By the 47th clause of the Ordinance 7 of 1863, a seaman is empow- Sept. 9 } 44 PART II. — ered to sue for wages in a Court of Requests, notwithstanding that the amount claimed exceeds £ 10; and it is enacted that the order of the Court may be enforced by writ against person as well as acainst property, notwithstanding any former law or Ordinance to the contrary. The question must here, however, be governed by the Ordinance 11 of 1868, by the 87th clause of which it is enacted that a judgment pronounced by the Commissioner of any Court of Requests shall, in all cases, be enforced by execution against the property or funder the provisions of the 165th section of the Ordinance 7 of 1853) against the property and person of the party condemned therein. So that, since the passing of this Ordinance, execution against person in all Courts of Requests cases, is subject to the provisions of the 165th clause of Ordinance 7 of 1853, by which imprisonment for debt not exceeding £10 is expressly confined to cases of fraud only.'' Landlord and ''• ^- Colombo, 91943. Plaintifi sued the defendant as his tenant tenant. for rent alleged to be due for the months of March and April, 1873. The defendant in his answer pleaded payment to one Teagappah, un- der a judgment of this Court in N"o. 91575, and disputed plaintifi's right as landlord. It appeared that Tea:;appah had entered into an agreement in 1861 to convey the premises in question to plaintiff, hut had failed to do so. A District Court suit, No. 59,203, had subse- quently been instituted by plaintifl for specific performance, but he had been nonsuited on a technical objection raised against the libeL In that suit, Teagappah in his answer had admitted that he had let the plaintifl into possession and had expressed his willingness to grant a conveyance. Defendant in the pi'esent case had paid rent to plaintifl from 1861, till the date of the nonsuit which was in 1873, but it was contended that such payment of rent had been made at the request of Teagappah. The Commissioner (Liverd) having given judg- ment for plaintifl, the defendant appealed. Grenier, for respondent, on being called upon, submitted that the admissions contained in the answer in the District Court case disclosed an equitable title in plaintiff, which defendant had acknowledged for more than 10 years by payment of rent. Besides, plaintifi having admittedly been placed in possession of the house had acquired a bona fide right by prescription as against Teagappah, in whose favor the defendant had collusively allowed judgment to go by default in 91575 for the amount now claimed by plaintiff. Kelhj, for appellant, in reply. — Plaintifl had clearly no legal title to shew, for if he had he would not have instituted the District CouM case referred to. Defendant had not entered under plaintiff, but COURTS OF REQUESTS. 45 \ g^p^ 9_ under the original owner under whom Teagappah claimed, and the payment of rent to plaintifi had been at the instance of Teagappah. Per Oatlet, J — " Set aside and plaintiff nonsuited with costs. It appears to the Supreme Court that the plaintift has failed to prove her right to recover from the defendant the rent claimed. The defend- ant entered into possession of the house as tenant of one Segapatchy. Upon Segapatchy's death, defendant paid rent for some time to her grandson Teagappah ; who, as appears from the present plaintiff's libel in case No. 59,203, D. C. Colombo, inherited the premises from Segapatchy. Subsequently, at the request of Teagappah, defendant paid rent to the plaintiff. After the decision of the District Court case whicli plaintiff brought against Teagappah for specific perform- ance of an agreement to convey this property, and in which plaintiff^ was nonsuited, Teagappah withdrew his request by suing the defen- dant for the rent then due. Defendant allowed judgment to go by default. Plaintiff now sues for the rent which defendant has paid to Teagappah. Plaintiff has, however, failed to prove her title to the house; and, whatever equitable rig-hts she may have to a conveyance of the property under the deed of the 28th September, 1861, upon which the District Court case was brought, she cannot, until she has enforced these rights, sue the defendant, who did not enter as her tenant and only paid her rent at the request of the admitted legal owner which request was subsequently withdrawn." C. R. Urvgalla, \»Qi1. The defendant had executed a bond, in Unauthorised June 1 870, in favor of Kalu Banda, the father of the minor child on payment of a whose behalf plaintiff sought to recover the amount due theron. Bond Defendant having pleaded payment to Kalu Banda's mother. Rang Menika, the Commissioner {Power) nonsuited the plaintiff in the following terms : " It does not appear that defendant was aware of the existence of the child, or that any demand on its behalf by plaintifi was made to defendant on Kalu Banda's death. He is not supposed to know there was a child, and therefore has paid the money to de- ceased's mother against whom I think plaintiff should proceed." In appeal, (Ferdinands, for appellant, Dias for respondent) per Catlet, J. — " Set aside and judgment entered for the minor plaintiff for Rs. 100 and costs of suit. Kalu Banda's mother, not having taken out letters of Administration to her son's estate, was not authorized to receive a debt due to her son, the latter haviug left a child, who under the Kaiidyan law would be entitled to inherit his personal property. The RslOO mu,5t be paid into Court and deposited in the Loan Board for the benefit of the minor." Sept. 9. ' '^^ ^^^'^ ""- Landlord and C. R. Trincomalie, 2S7 58. The facts of the case are set forth ia tenant. the following judgment of the Commissioner (Templer) — "The defendant occupied the plaintifl's house, payiifg a rent of Rs 12-50 per mensem. On the 7th October, the plaintiff (Buttery) wrote to de- fendant {Hunter) the letter marked A, stating that he wanted a rent of Rs 22.50 per mensem, and telling defendairt that, in case he should refuse to take the house at that rent, he must leave it on the 1st November. Defendant sent the reply marked B, dated 16th Octoher, asking the plaintiff to allow him the occupation of the house until the 1st December at the then rate Rs 12.50 and taxes, and saying that he could not pay the higher rent. To this the defendant replies, by letter C on 11 th November, telling the defendant to vacate his house on 1st December or pay rent at Rs. 30.50. I take this last letter to be a fresh lease granted by the plaintiff at the old rate, but stipulat- ing for the vacation of the house on the 1st December. There is na other explanation of the letter. The defendant made a request to be allowed to occupy the house at the old rate until the 1st December, and the plaintiff tells him he may occupy it until then ; says nothing, it is true, about the terms ; but this avoidance of any reference to terms was, I consider, a tacit admission or acceptance of those pro- posed by Hunter. I hold that the plaintiff is not entitled to any in- creased rent, but is only entitled to what was tendered to him by defendant and refiised. Judgment for plaintiff for the sum of Rs. 26-50, but the plaintiff to pay all the costs of this case." In appeal, ( Gremer for respondent) per Catlet, J.-" Affirmed. The Supreme Court thmks that the construction put upon the letters B and C by the Com- missioner is correct." Mesne profits C. R. Pasyala, 188R. The following judgment of the Commissioner Prescription,' (Byrde) explains the facts of the case: "the plamtiff m this case sues for the recovery of £9 18s., being alleged mesne profits of the land called Kebellegaha Cumbura during the years 1868 andl 869. It appears from the evidence adduced in the Colombo District Court case No 53866, that Andris' father, the owner of the lands in dispute in that case, apportioned his property between Andris and his elder sister the mother of the defendants, i. e., between Andris and Punchy Hamy, the 1st defendant in this present case. The decision of the District Judge incase No. 53866 places the land Kebellegaha Cum- bura definitely in the possession of the plamtiff, Loko Ettena; ana from the evidence of the defendants themselves they possessed and enioved the fruits of Kebellegaha Cumbura for 2 years, i. e, durmg the pendency of the District Court case From I st July, 1868 to 5th December 1 870, there appear to have been only two harvests, that COURTS OF REQUESTS. 47 \ g^^,^ g_ is, the harvest prior to 4th June, 1869, and that prior to 5th December, 1870. The "witness Baronchy states that the crop of the year in which the District Court case was instituted was 40 bushels, and that of the year previous 50 bushels. This is of material value to establish the average crop of the Kebellegaha Cumbura, of which the plaintiff claims the mesne profits. Baronchy states, in District Court case iNo. 53866, that the ground share is about 25 bushels a year at 3s. per bushel, and I do not think this evidence, adduced to prove the value of the land in liispute, can in any way bar the plaintiff from instituting this case for mesne profits for the two years durnig which she was ousted from her lawful possession by the defendants, who, after the plaintiff had commenced the cultivation, took the continuation out of her hands, forcibly retaining possession, and enjoyed the friuts of the land which are adjudged to be hers, and which she inherited, bvit which the defendants cultivated and claimed as theirs by right. I am therefore of opinion that the crop of the Kebellegaha Cumbura was about an average of 35 bushels, and that the Government share was about 9 bushels. Of the balance 26 bushels, I consider the cultivator is entitled, by virtue of risk and labor, to one-half or 13 bushels per annum. I therefore find the defendants liable to the plaintiff for the average value of the ground share for 2 years at 13 bushels per annum or 26 bushels at 3s. per bushel or Rs. 39. Costs of suit to be divided." In appeal, per Catlet, .J. — " Affirmed but amended as herein after stated. In this case, the plaintiff has I'ecovcred mesne profits in consequence of defendants having held possession from the 1st of July, 1868, to the 5th of December, 1870, of certain land decreed to the plaintiff in case No. 53866, D. C. Colombo. During this time there were only two harvests, one ending the 4th of June, 1869, and the other the 5th of December, 1870. The plaintiff brought her action for the land in question with several other lands, on the 4th of June, 1869, and claimed mesne profits accruing both before action brought anA. pendente lite. She obtained judgment for the land in question, but, as to the rest of her claim, was expressly nonsuited. Having been nonsuited as to her claim for mesne profits in the previous action, there is nothing to prevent her from instituting a new action to recover them ; but the question arises how far her claim is prescribed, the present action having been brought on the 20th of July, 1871. It was decided in the case No. 1108, D. C. Kurunegala, (Supreme Com-t Minutes, 7th July, 1871) under the Ordinance 8 of 1834, (by which Ordinance the present case must be determined) that mesne profits are in the nature of damages, and are prescribed in two years ; but that, if an action has been brought to try title to the land, without a claim for mesne profits being luade, and, after the decision of that Sept. 12. 48 PART II. — action, a new action is instituted for their recovery, the two years will be counted, not from the commencement of the action to recover mesne profits, but from the commencement of the former action, which was brought to try the title. The ground upon which this decision is based is that the delay, arising during the pendency of the former suit, is the delay of the Court and that actus curim nemini facit mjuriam. In the present case, however, the mesne profits having been claimed in the first action, the delay is not due to the Court; but to the default of the plaiutiffi who failed to establish her claim to the satisfaction of the Judge ; so that the principle laid down in the case 13080, 1). C. Caltura (Supreme Court Minutes, 18th August, 1 855) would seem to be applicable. In that case it was decided that where an action had been brought upon a bond within 10 years from its date and had been subsequently struck oft for want of prosecution, and a second action had been afterwards brought upon the same instrument, after 10 years had elapsed from the date of the bond, but within ten years from the date of the previous action having been struck ofi, the second action is prescribed. And referring to the language of the Ord inauce 8 of 1834 no distinction can be drawn, so far as relates to this question, between actions on bonds and actions for mesne profits. The claim for the produce taken up to the -tth June, 1869, will accordingly be prescribed ; and the amount of the judgment will be reduced by one half. In other respects, the judgment will be affirmed, Each party will have to bear his own costs of appeal." September 12. Present Catley, J. Paddy tax- C. R. Panadure, 15395. Plaintiff, who was a Government paddy renter, claimed Rs. 40, being the value of 40 bushels of paddy which he alleged were due to him as half share. The defendants pleaded that the field in question was subject to only one-fourth and not one- half duty. The plaintiff, after leading evidence to prove cultivation by defendant, filed an assessment wattoo for 1872 and closed his case, For the defence, it was contended that the action could not be main- tained until it was decided what share of the produce the Government was entitled to. The Commissioner (Morgan) held that the onus was on the defendant (who called no evidence) and entered judgment for plaintiff as prayed for. In appeal, per Caylet, J.—" Set aside and case sent back for further hearing. It is iuouiiibent upon the plaintiff to prove his claim, and for this purpose it is necessary that be should prove to what share he is, as Government paddy renter, en- titled, and should also give some evidence as to the amount and value of the crop taken by the defendant." COURTS OF REQUESTS. 49 Sept. 19. September 1 9. Present Stewart, J. C. R. Kiirunegala, 29-285. The plaintiff sued for the recovery of 0>yner of an Rs. 30, "being value of a bullock, belonging to plaintiff, gored and killed ^^^ ^^: ^^ by a bullock belonging to defendant, on the 17th day of June, 1873." caused by it- On the plaintiff closing his case, the Commissioner (de Saram) held as follows : "It is not proved that the defendant's bullock is of such a fierce nature as to render it unsafe to let it graze about without being secured. The plaintiff is non-suited with costs." In appeal, (i^er(ZiMan.rf5 for appellant) per Stewart, J. — "Set aside and judgment to be entered for plain tiff for Rs. 30 and costs. There was no occasion to prove that the defendant's bullock was of a fierce nature. According . to the general rule of the Roman Dutch law, the owner of a brute animal is liable for the injury it has caiwed. See judgment of Supreme Court, October 29th, ISflO, in Jaffna, 0, E. 25869, Beven and Mills, part 10, page 53. See also as to Kandyan law, Austin, page 51." C. R. Galle, 43083. This was an action by a landlord on a lease Lease, to recover rent due thereon. The defendants pleaded that they had not been let into possession, by the interference of third parties who claimed title to the land in question. On the day of trial, the Com- miasioner, (Zee) without entering into evidence, entered judgment for plaintiff as prayed for la the following terms: "The defendants admit the entry into possession, and the fact of the defendants having been interrupted, if they were so, is no defence, though it entitles them to an action against the interrupters." In appeal, per Stewart; J. — "Set aside and case remanded for hearing. The defendants should have been allowed an opportunity of adducing their evidence and proving that the plaintiffs promised to make an amicable settle- ment of the District Court case, the issue in which would seem, ac- cording to the defendants, to comprise the dispute in the present case." September 23. Present Stewart, J. C. R. Colombo, 92553. The plaintiff sued on the 25th June, 1873, Costs, to recover Rs. 59, as balance due on shop bills. The defendant brought that sum into Court, denying his liability to pay costs on the ground that there had been no previous demand. The defendant stated on his oath that he had made a part payment in March, that wheij the bill was subsequently presented in June he had asked Skpt. 23. {^^ fASTlL- plaintifi to wait till the end of that month ; and that the plaintiff thereupon went away perfectly satisfied. In cross examination the defendant admitted that the bill had been presented in January and March. The Commissioner (Livera) gave iudgment for plaintiff, but cast him in the entire costs of the suit. In appeal, (OnJaatjie tov appellant, Orenier for respondent) per Stewart, J. — " Affirmed. According to the evidence of the defendant, not only was there no NJemand for immediate payment, but he was led by the plaintiff to believe that plaintiff would wait till the end of June. Under these circumstances, the suit having been instituted on the 25tli June, before the expiration of the time agreed upon, the plaintiff was properly cast in costs." Proctor and f^- jR- Urugala, 1,940. The facts of the case are fnlly set forth client. in the foUowingjudgmentof the Commissioner (PowerJ. — " The plain- tiffs in this case seek to recover the sum of fifty rupees (Rs 50) being money paid to the defendant, their proctor (Bartholomews z) in case No. 1499, C. R. Urugala, for the purpose of employing an Advocate in appeal. Three witnesses have sworn to having seen this money paid to the defendant,— that this was on the 9th November, and tiat the defendant told his clients to come on the 13th to sign — what they do not seem to know. But it appears, however, that both of them did come to the Court on the 1 3th November, and on that day signed the security bond in appeal, which is in the defendant's hand writing and witnessed by him. This constitates the case for the plaintiffs. The defendant in the first part of his examination states he cannot say if an Advocate appeared in appeal, as he has lost his books and has not them to refer to. He afterwai-ds admits having received in all from the plaintiffs £3 3s., being £1 Is. his fee for conducting the case, and which was paid him at the time his services were engaged, and £2 29. paid him at the time he wrote the petition of appeal. That of this money £1 Is. was his fee for writing the appeal petition, and £1 Is. the Advocate's fee. That he further paid a pleading drawer 3s. for making a copy of the case to be sent to the Advocate, and that the balance being insufficient for the Advocate's fee, he directed his client to bring him 6s. more and he would engage the services of an Advocate. That this money not having been paid him, he engaged no Advscate. The Court considers that the charge of £1 Is. for writing the petition of appeal is exorbitant. The £1 Is., first paid and accepted, was for conducting the case to its final issue. I cannot believe that £5 was paid as plaintiffs say, for they must have known that it was very much more than was necessary. But at the same COtJKTS Ot' EeqOests. 51 time, I consider that the defendant has retained money which he should have paid to an Advocate, and which was paid him for the purpose of engaging one. I allow the five shillings paid to the plead- ing drawer, though I think it is high, and enter judgment for plaintiifs for the balance of £2 2s., paid at the time of drawing the appeal petition. Judgment is entered for plaintiifs for £1 17s., or Bs. )8'50 and costs of suit." In appeal, per Stewart, J. — Affirmed. Sept. 26. September 26. Present Stewabt, J. C. R. Matara, 27836. This was an action instituted in June, 1 873, Damages on an to recover liquidated damages for breach of a notarial agreement *g''s^'"'^" ° entered into by defendant in 1864 to marry plaintift's sister. Judg- ment by default having been entered, the defendant subsequently moved to re-open judgment on an affidavit which set forth that he had been unable to attend at the trial on account of ill-health, and that he had a true and honest defence on the merits. The Com- missioner (Jumeaux) having rejected the motion, the defendant ap- pealed. Gpenier, for appellant. — The agreement was on the face of it of an immoral character, and could not be legally enforced, it having been stipulated that plaiutiflf's sister should live with defendant for six months, and that thereafter banns were to be published and the marriage was to be consummated. [That is the usual practice amongst natives of that class — Stewart, J.] Bnt no custom could make that moral which the law distinctly declared to be immoral. Apart from this, the laches of the plaintiff, in delaying the action for nine years, should be viewed with suspicion, and it was open to the Supreme Court to afford equitable relief under the 18th clause of the Kules and Orders by allowing the defendant to enter into his defence. [I should have been inclined to do this, if defendant had explained in his affidavit the reason why he had failed to carry out his agreement. — Stewart, J.] Affirmed. 0. R. Colombo, 92153. The plaintifl claimed Rs. 75, as value of a Damages. boundary wall which he alleged defendant had destroyed. The defendant denied the plaintifi'a right to the wall, but admitted having pulled down the same and rebuilt a more substantial one. The Surveyor who had examined the premises with reference to the deeds of both parties, stated that the wall in question stood entirely within plaintifi's land. The Commissioner (de Livera) held as follows : " The plaintift claims the value of his wall which was broken down by Sept. 30. 52 PART II. — the defendant. It appears that the wall raised in its stead is a more durable and substantial one. I therefore think it would be better for both parties to allow the wall to remain as it now stands. The case is dismissed, each party bearing his own costs." In appeal, {Grenier for appellant, Browne for respondent) per Stewart, J. — " Set aside and judgment entered for plaintiff for the land on which the wall stands and one rupee damages and costs. It will be seen from the answer that the defendant claimed the old wall as his property. Ac- cording to the evidence of the Surveyor, the ground on which the new wall stands (the locality is the same) is the property of the plaintiff. The defendant had no right to remove the old wall, which did not stand on his property, or to build a new wall in its place without the consent of the plaintiff, the owner." .September 30. Present Stewakt, J. Tort. ^- f^- Negombo, 2195S. Plaintifi sued for the recovery of certain Damages. Timber, alleged to have been illegally seized and detained by the defendant, and for damages consequent thereon. The answer justified the detention, on the ground that the plaintifi had had a jack tree cut down in so careless and negligent a manner that its fall had damaged two cocoanut trees and a large number of cofiee plants on a land of which defendant was the lessee, whereby defendant had sufterod a loss of Rs 48, which he claimed in reconvention. On these pleadings the case went to trial, when the Commissioner (Dawson) held as follows. " It is not proved that plaintifi sustained damages such as the Court can estimate, nor is it proved that plaintifi is the person Hable for damage caused by the fall of the tree ; nor is it proved that defendant is the person entitled to recover such damages. The claims then for damages on .both sides disappear. The defendant contends that he was iustified in detaining the timber, and that he had alien on it until his damages were paid. In the first place, he has not shown that he is the person who should hold such lieu, supposing such lien existed in law, I invited defendant's Proctor to find me an authority. He has not done so. Judgment is entered for the jackwood timber described in the plaint, (its value is not proved) and costs of suit." In appeal, Grenier, for .appellant. Plaintiff, in his examination, admitted that he had purchased the tree in question before it was felled, and as such owner he was liable to the damage caused by the person engaged by him to fell the same, whether such person was the original owner of the tree, or any other party so employed. As to the question of law involved, the defendant, as lessee, was fully entitled to COURTS OP EEQtJESTS. 53 claim in reconvention any damage sufiered by him, the rule being that the actual occupier of land was the proper party to maintain an action for wrongful acts interfering with the beneficial use and enjoyment of the property, and diminishing the value of the possessory interest ; owners or reversioners suing only where the injury to the property was of a permanent character, which however was not the case here. The detention of the timber was bona fide, and one of the witnesses swore that in his presence, " the defendants called on plaintiff to. pay damages and remove the tree.'' But even assuming that the detention was improper, the Commissioner rightly held that plaintifl had proved no damage as resulting from such detention. The following cases were cited by Counsel in the course of the argument : Dobson v. Blackman, 9 Q. B. 991 ; Hosking v. Philips, 3 Exch : 168 ; «eding- field V. Onslow, 3 Lev. 209 ; Addison, 10, 158. Per Stewakt, J. — " Set aside. The evidence ah-eady shows that considerable damage was occasioned by the falling ot the tree claimed by the plaintiff upon the trees standing in the land leased by defend- ant. For this loss the defendant, although only a lessee, is entitled to recover. (See Addison on Wrongs, page 10.) "Tiie actual occupier of the land is in general the proper party to maintain an action for wrongfiil acts of a temporary character, interfering with the beneficial use and enjoyment of the property, and diminishing the value of his possessory interest." See also 3 Lorenz, p. -.rOg. The tree in dis- pute having caused damage to the property of defendant, it appears to the Supreme Court that defendant is warranted in detaining the tree, on the same principle that the proprietor of land is justified in detaining trespassing cattle until the damage they have committed has been paid. Considering the general evidence of damage, as well as the fact that only one year of defendant's lease for eight years has expired, it is decreed that judgment be entered for the plaintiff for the timber in question on the defendant being paid Ks. 35. Plaintiff to pay the costs of the defendant." ] Sept -30 a. R. Point Pedro, 6370. This was an appeal against a conviction Contempt, for Contempt. The defendant appeared to have been impertinent and to have questioned the justice of a decision which the Com- missioner {Drieherg) had pronounced against him. Per Stewart, J. — " Set aside. The appellant should not have been punished forth- with. See provisions of the 107th section, Ordinance 11 of 1868, which expressly requires that a party charged with contempt shall be bailed (or in default of baU committed) until the following day." Oct. 28 } ^^ ^^^^ "— October 21. Present Stewart, J. Malicious C. R. Colombo, Q'i.TbT. The plaintift claimed Rs. 95-7.5 as damages prosecution, consequent on a malicions prosecution of him by the defendant on a charge of theft, which said charge after a J. P. investigation had been dismissed under instructions from the Queen's Advocate. The de- fendant disclaimed malice, and denied his liability to pay the amount sued for, which included sums alleged to have been paid as Proctor's fees and for refreshments for witnesses. On the day of trial, the plain- tiff besides giving evidence himself called Messrs. Swan and Heyzer to prove that they had received four guineas ior professional services rendered by them, and had on different occasions been provided with a carriage to attend the investigation which took place at the Customs premises before Captain Donnan. The Conmiissioner {Livera) held as follows; "In the opinion of the Court the plaintiff is not entitled to any portion of the m(mey claimed by him. He is non-suited with costs," /h ajo/)ea^, per Stewart, J. — "Affirmed. There is no evi- dence at all of want of probable cause. The plaintiff in his evidence does not even distinctly state the charge against him was false." House-rent ^'- ^- -^"ffna, 1280, Plainliflt, as widow, sued for the recovery of Prescription, Rs, 47"25, being one-half of the rent due by defendant for hiue years' use and occupation of a certain land which had belonged to her late husband. The Commissioner {Murray} having given judg-ment as prayed for in the libel, the defendant appealed. Per Stewart, J. — " Altered by the amount of judgment being reduced to Rs. 18. The plaintiff cannot recover for more than three years' use and occupation before action brought. See 8th and Uth sections of Ordinance 22 of 1871. According to the evidence, the sum agreed upon as the annual value of the produce was Rs. 7. The defendant did not possess after January 1873. Plaintiff can therefore only recover for a period of about 2 years and seven months. Parties to bear their own costs." October 28. Present Stewabt, J. C. Zf. .WataZe, 29775. Thejudgment of the Commissioner (yempfe) in favor of plaintift, explains the facts of the case. "This is a case brought by the Natande Toll-keeper against the defendant, (Fuller) as Road-officer of Matale District, for toll claimed on transport of Government bricks, rice &c., for the road department. The question, is, are these carts free from toll on the passes filed, as the goods were transported over 10 miles, i.e., 14 to DimbuUa, from the Natande COURTS OP BEQUESTS. 55 ) q „ .,s toll-station. The 19th clause of Ordinance 14 of 1867 limits the dis- tance to 10 miles from a toll station." Tbie defendant, in his examin- ation, bad stated as follows: "lam Koad-officer of Matale district, 111 course of business I have had to send road materials, such as bricks, lime, tools and rice, for the support of my coolies to Dimbullii. For these dirts passes were given for Natande toll, a distance of 14 miles. The papers are signed by my clerk. They are correct. The amount claimed in them is Rs. 8"42. I used formerly to pay the tolls on vouchers drawn or made out from these orders. But about 2 years ago, I was ordered to issue passes within 10 miles of my district and not to pay ihem at all." In appeal, per Stewart, J. — " Ailirmed. There is no exemption in the Toll Ordinance of the nature contended for by the appellant. Vehicles employed in the construction of roads, are only exempted from toll within 10 miles of the toll station, no production of a certificate from the Superintending officer." C. R. Colombo, 90194, The plaintiff, as owner and occupier of a Dataages. house in Washers' quarters, complained that the defendant, who was Boundary wall residing in the adjoining premises, had three months ago, in the ab- ^""^ adjacent sence of the plaintiff at Kandy, cut a portion of plaintiff's roof and had ^°° ' placed a new roof on the boundary wall which separated the two houses. The prayer was that defendant be ordered to remove the sai' 1 root and pay lis. 30 as damages with costs. The defendant an- swered that his roof had been supported by plaintiff's wall for 10 years and upwards, and denied that he had caused any damage as alleged. The evidence, however, went to show that defendant's roof had rested for nearly 20 years, "and until the committing of the grievance com- plained of, on posts erected a few inches from the foundation of the wall in question over which the plaintiff's roof had overlapped. Judg- ment was given for plaintiff by the Commissioner {Liverd) as follows : " ttiere can be no doubt that defendant's roof never rested on the wall which separates the plaintiff's house from the defendant's premises, but on posts erected near its foundation. I am satisfied that defen- dant took advantage of plaintiff's absence and committed the damage alleged. Judgment is hereby entered up in favor of the plaintiff with costs, and the grievance complained of to be removed." Subsequently, it having been represented to the Court that the defendant had not fully carried out its decree, although he had replaced his roof on posts, the Commissioner after a personal inspection of the place made order as follows : "Defendant should lower his roof a foot and ahalf : if the plaintiff's rafters had not been cut by defendant, the roof could never rest 50 high as it does now." Dec. 9 } '^^ ^^^^ "- In appeal, Browne, for appellant. — The jude 164 of the Administration of Justice Ordinance will'hardly bear out the charge under which the prisoner is indicted. The Courfr believes that the construction to be put on the words of the said clause, has reference to acts done by any lieadman, in regard to charges to be investigated by Justices of the Peace, on affidaiits made before them ; and the words ' conceal any ottence ' apply peculiarly to such cases, anil not to cases that have alrcidy been fully investigated by a J. P„ and wherein parties have been already i ommitted for trial, such as the present case; for the act complained of is the improper conduct of the prisoner, as headman, enrleavouring to lead witnesses foi- the pro-ii'cution to give a different kind of evidence to that given by them before the J. P., which, Ac- cording to the evidence, discloses almost subornation of perjury, if not altojether so.*' * Therefore the Court rules that the ' concealment of an otfence ' under the lG4th clause, is a bona fide concealment alto- gi'ther of the offence, so that it should not see light if possible and be brought forward for invpstigation bv an v Justice of the Peace; and does not and cannot apply to a case like the present, where the offence has been already bronsht to light, fully investigated and the parties chnrged hronglit to trial. '\A'liat the prisoner has done, ac- cording to the evidence, is that he tampered with evidence, so as to frustrate the ends of justice, which, in the opinion of the Court, cannot be cognizable under the 16)th clause of the Administration of Justice Ordinance." /« appeal, (Dias for respondent) the judgment was set nside and case sent ba"k for further heariun- ; and per Okkasy, C. J. — "After reading the District Jiulije's Letter of 18th 1) 'cember last,"' the Su- preme Court is of opinion that this cas? couifs within the clause 164 of Ordinance 11 of 1S68. The objecti m, as tak?n at the trial, that tlie clause only applies in regard of charges I o be investigated by a Justice of the Peace, is utterly untenable. But the Supreme C"urt had some doubt whether the defendant was proved to have used his official position in order to induce the witu'.sses in case 583 to conceal * The letter was in reply to a rcferonfn m-wlo by tlic Supr:'mc C^nrt, nnrl was to the effect that the District Judge wns of opininn ihittlic »it- ncsses had garbled their st-itements in ./. I', cise :")8 !, li.iviuy been iailiic- eil thereto liv the Vidalni. DISTRICT COURTS. - 3 the fact of the accused parties in that case being the real criminals; but it is now evident that the witnesses were induced to garble their evidence in consequence of the influence exercised on them by the knowledge ofthis defendant's official position and power. The defendant was aware that they knew his official posiiion, and he must be taken to have intended the natural consequence of his conduct. The pvo- ceeding at the trial, of moving to strike ott the ease, was extremely irregular. The proper course was to claim a verdict of acquittal; and the Judge should, after hearing all the evidence, have determined that matter. As it is, we shall allow the case to go back for the witnesses for the defence, if any, to be heard, and the case to be duly proceed- ed with." I- AN. 28. D. C. Jaffna, 2450. Judgment had been entered up in 1847, in Prescription, favor of plaintiff, for a sum of £8 12s. 6d., being value of a ring which defendant had borrowed fi-om him in 1844. In 1851, writs against person and property of the debtor issued ; but shortly afterwards, the plaintiff having died, they were recalled. After a delay of nearly 13 years, diu'ing which time a series of motions and notices were made and issued in the case, for the purpose of enforcing the decree, the plaintiff's widow, in February 1864, moved for and obtained a Rule Nisi on the defendant to shew cause why judgment should not be revived and writs reissued. In September 1864, the defendant attended and pleaded payment to the original creditor, whereupon he was ordered to adduce proof, but did not. No further steps were taken till 1869, when a fresh Rule issued, to which the Fiscal made a return that de- fendant had left the country. In November 1 872, a third Rule issued, at the instance of the plaintiff's widow and heirs, which was argued in December last and made absolute with costs. In appeal, against this interlocutory order, Gmaier, for the respondent, on being called upon, urged that the different Rules which had issued from time to time had saved the judgment from being prescribed. Under the 5tli clause of Ordinance 22 of 187 1 , it would be sufficient to bar prescrip- tion if, in the event of the judgment not having been duly revived, any writ, warrant or other process of law had been issued to enforce the same. A Rule was the only other process, besides a warrant or writ, that could possibly be issued from their Courts, and that process had been availed of, Sed per Curiam. — " Set aside. There has been no actual issue of any ' writ, warrant or process of law ' to enforce the judgment, such as is required by Ordinance 22 of 1871, clause 5." D. 0. Trinc.omalie, 20831 Held that the absence of defenda;it's Postponement. Proctor was per se no sufficient ground for a postponement. PART III. Jan. 28. I "^ Evitlense. D. C. Jaffna, 585. The defendants, who were charged with cut- ting and wounding, were acquittid by the District Judofe, in the following tenns : " The evidence as again.st the prisoners heing, in the mind of the Court, insufficient to satisfy the Court -to conyict them on the charge, it behoves the Court to give the prisoners the benefit of any doubts, such doubts being reasonable ; and only on such grounds are the prisoners acquitted, but not on the evidence adduced by the priso lers." In appeal, the iul^injnt was set aside ; and per Creasy, C. J. -" We are not satisfied with the decision in this case; and we sot aside the judgment accordingly. We further, as empower- ed by Ordinance iNi'. 1 1 of 186S, clause il, order this prosecution to be transferred to the Supreme Court. The case can very well be tried at the .Taftna sessions which will begin in the present week. It is better that it should come on as far as possible as a res nom\ and we therefore abstain from any comment." Trosumption V. C. Manaar, 6543. The plaintiffs, as executors, sued to recover of (layuicnt jjj. 310, being the amount of a bond, dated 1863, in favor of their testator. The defendant prod ed the bond, pleading payment;;,? witliout however any endorsement of cancellation or payment on the document. The District Judge (Baileij) held that, in the absence of any evidence on the part of the plaintiffs of non-payment, there was nothing to rebut the presumption that the debt had been dis- charged, /?( op/jcaZ, (GreHier for appellant,) the judgment was set aside and case sent back for further hearing ; and per Stewart, J. — " The plaintiffs sue in this case as executors. It appears to us that the creditor being dead, it will be more satisfactory that the de- fendant should produce some evidence as to the payment. There is nothing at present beyond the mere examination of the defendant, which does not appear on the first or second occasion to have been, taken on oath. Costs to stand over.'' Absolved from ^- ^'- /^ntoo?-«, -25031. Plaintiff complained of an encroachment the instance, by defendant. The portion of land in dispute appeared to have formed the subject of a suit between the same parties in 1851, when, after evidence heard on both sides, the defendant had been absolved from the instance with costs. In the present case, the Judge "(^rfa)K«) held that, " having regard to the ill-will which the then District Judge refers to in his judgment, the Court would require the strongest evidence to prove that defendant had given up his right to the land, and there is no sucli evi Wallarambe should produce up to that quantity) might depend on whether the contracting purchaser was in any degree misled by the contracting seller making any erroneous representation, either wilfully or innocently, that the article to that quantity was already in existence, or could and would be certainly produced. If there were an erroneous statement, andif nevertheless the former was not and could not by any possibility be deceived about it, and if there was no intention to de- ceive, and both parties knew perfectly well that the production of the article to the certain quantity and of the certain quality contracted to be sold, the growth of a particular estate only, depended entirely on the chance of the weather maturing it during the succeeding two months, and was entirely beyond allhimian control, it is difficult to fix on any principle upon which the contracting purchaser could be said to suffer, or to be entitled to damages for non- delivery of what he himself knew not to be in eitistence as " 3,000 bushels of first parch- ment coffee " at the time of the agreement, and knew there were only certain chances of being in existence as such at the time of maturity — chances he knew to be entirely beyond the seller's good faith or power of control. Such a claim would stand on quite a different footing fi'om a claim founded on an express bond by the contracting seller to pay a certain fixed sum as liquidated damages for any short- Fejj. 11. 14 PART III. coming in the quantity or quality of the article he undertook to sup- ply, which uncertain circumstances in the contemplation of both par- ties might make it impossible for him to produce, manufacture, or pur- chase:— the express agreement to pay such damages shewing that the contract was expressly based on the possible contingency of its principal execution becoming difficult or impossible, and that they were to be paid notwithstanding. It is of importance, then, to determine whether the plaintift was in any respect misled by the defendant, either acci- dentally or designedly, before deciding whether a claim for damages which have not been previously stipulated for can be maintained. And it is necessary to determine, whether it was within the intention of the contract that the contracting seller should pay damages if the Wallarambe Estate should fail to produce 3,000 bushels of a certain quality and whether the Estate did produce more of that quality than was tendered, and the defendant, therefore, broke his promise to the plaintifis. The Court holds that there is no reason to suppose that the defendant has, in any respect, acted otherwise than with good faith, It has been already iound that the crop produced only 1,300 bushels, and only 838f up to sample. It has not been suggested that he sold any of the out-turn at a better price to any body else than plaintifis, to do which would be the only advantage he could possibly get by not letting the plaintifis have it, if it really was produced ; and it has not been suggested that he deceived them by a wilfally exaggerated esti- mate of the probable produce of the Estate. Neither the plaintifis nor any one on their behalf took the trouble to test the reasonable- ness of his estimate by inspection, and the defendant himself had no interest whatever to over-estimate it, for he was to get no advances on it from the plaintifis, and only got the value of his oofiee at the agreed on price, from time to time, as he delivered it. It cannot be said that the defendant's estimate in October was a bad or exagge- rated estimate, for there is no evidence that the crop which would represent that estimate was not on the trees at the time he made it. Nor does the Court think that there was any representation in fact that the Estate would produce ' 3,000 bushels first parchment coffee.' Of course if a man tmdertakes to sell the two chestnut horses now in such and such a stable, he virtually represents that such horses are in such a stable ; but the case of a future crop, the quality and quan- tity of which are necessarily undetermined, is ot quite a different na- ture, and the purchaser of the crop knows as well as the seller, that the quality and quantity are really indeterminate. The Ciiurt, therefore, cannot look on it as a statement of fact, or in any other hght than a statement of estimate, and no doubt it was so intended on both sides. If there wqs no representation still U'ss wa.s there a gnarantce. The (iiicstion principally argued was, ' wlicilicr it was the intention of llio parties that the contracting seller DISTRICT COURTS. 15 should guarantee 3,000 bushels of a certain qiiahty tci be yielded by the Wallarambe Estate: and the del ence particularly relied on was, that the quantity of three thousand bushels was not intended to ba guaranteed, but only mentioned as the then probable yield of tlie estate, and that the so-called sample was only shewn as an example of the ordinary production of the estate. There is nothing whatever in the evidence, either documentary or oral, opposed to this view ; and to take any other would be to presume that both parties were silly en- ough to depend, not speculatively, but as a matter of certainty, on circumstances utterly beyond human control. If there was any con- sideration to the defendant for such a rash guarantee, it must be found in the supposition that the price per bushel (I2s. 6d.) was considered high, and so high as to be tvorth the risk of the guarantee ; but this involves the idea that the plaintiiis had run some reciprocal risk in agreeing to pay so high a price, and some corresponding speculation founded on the October estimate, without the common precaution of satisfying themselves of the reasonableness of that estimate. Before, therefore, the plaintiff's case can be adopted, we must either presume an unreasonable contract, in which the defendant for no additional consideration or advantage whatever — that is to say for no higher price per bushel than he could have got elsewhere without it, — gave a wild promise and unreciprocal claim to the plaintiffs ; or that they incurred some corresponding risk, or chance of disadvantage, of which not a hint has transpired, and this on the mere faith of the defen- dant's unchecked estimate. Surely neither of these is very probable. In the absence, then, of the plainest proof that the meaning of parties was that the defendant should covenant for what he could not possibly fore- tell or influence, namely that the Wallarambe estate should produce 3,000 bushels of a certain quality (for it is perfectly clear that he was not to deliver nor the plaintifis bound to accept any other than Wal- larambe Estate coffee) the only reasoniible conclusion is that there was no such intention. Such a covenant would have provided in ex- press terms that if the estate failed to produce a certain (juantity and quality of coffee that season, defendant would pay the plaintiff a cer- tain sum of money calculated according to the deficiency, or other- wise, as the parties chose to determine. There was nothing of this kind, and in its absence the Court cannot presume such an unreason- able, unlikely, and one-sided, not to say gratuitously foolish, contract as plaintiffs contend for to have been really in the intention of the parties, The defendant has fulfilled the terms of the contract so far as these are proved, both to the extent of his ability and to the extent of its intention. Plaintiffs will be nonsuited with costs." "One will consult with advantage in a ca.se of this kind Pothier's Traite de Contrat de Vente, Premiere Partie, Art iv. — T. B." In appeal, Dias, for the respondent, on being called upon to support the judgment, contended that the contract in question should be so constnaed us to give effect to the intention of the parties. Thedefen- j Feb. 1 1 . I'^EB. 11. 16 PART HI.— dant was the proprietor of a coffee estate called Wallarambe, He entered into the contruet with respect to the coffee of that estate and of no other. To deliver the cofiee of any other estate would be a breach of the contract. It was true that a certain quantity was stipulated for by him, but it could not be supposed that he stipulated for anything beyond that which the estate would yield. The plain- tifis must be taken to have known that crops often fell short of the estimate. They were large dealers in coffee, and if they wished that defendant should pay damages for any deficiency the contract should have been so worded. It was not even suggested in this case, that the defendant had misappropriated the crop of the season in ques- tion. The limitation as to the time of delivery clearly shewed that the crop of a particular season was the subject matter of the contract ; and the District Judge, both legally and equitably, found that the defendant, having actid bona fide, was not bound to do an impossi- bility, viz., deliver coffee which his estate had not yielded. Ferdinands, for appellant, was not heard. Per Creasy, C. J. — " Set aside and judgment to be entered for plain- tiffs for Rs, 810-46 and costs. We do not differ from the learned District J udge as to his opinion of the legal consequences of such a contract as he considers to have existed between the plaintiff and the defen- dant. But we differ from him as to the nature of the contract. He considers the contract to have applied to the crop growing on the Wallarambe Estate at the date of the contract and to that grow- ing crop only. If that were so, the defendant would certainly not be liable for short delivery caused by the failure to a great extent of the crop, in consequence of an unusual rainfall, between the date of the contract and the time for picking the crop. This would come within the principle of the case put by Pothier. (Puthier on Contracts, vol. i, p. 76, Evans' translation, of which we cite so much as applies to the case.) ' If I should oblige myself to deliver to a -n-ine merchant all the wine that 1 shall grow the en&uiug year, but ray wines are frozen so that no wine can be got from them, the obligation fails for want of an object.' The maxim actus Dei nemini fadt injitriam would apply, according to which it was held in i. Report 97 that where a lessee covenants lo have a wood in as good plight as the wood was in at the time of making the lease, and afterwards tlie trees are blown down by tempi St, he is discharged from his covenant. 'Where the cove- nant is limited to a particular growing crop, if the purchaser desii-es the vendor to be responsible for non-delivery of ;i specified number of bushels, he should require a covenant like that of the old Roman Law. Venditorem prastiturum si quid ui vel tempestate factum esset. See Voet ad Pimdectas, xviii, tit. i, ,13. But we must examine care- fully the real contract between the parties in the present case. It is to be found in the written document dated Uth December, 1871, made and signed by Mr. John, acting for the defendant. This note DISTRICT COURTS. 17 f ,, l- Kli. 1 1. ■when first tendered in evidence was rejected, for want of proof of Mr. John's authority from defendant ; but subsequently, on proof be- ing given that thf defendant adopted and acted on it, it became good evidence against him, and it is rightly treated as evidence in the judgment of the DiHtriot Court. That note is as follows: — Contract No. 4,110, Colombo, October 11, 1871. Messrs. Mackwoods and Co., Colombo. Dear Sirs, — I bei; to confirm sale to you for account O. L. Marikar anil — tie Silva, Esquires, of 30uO (three thousanrlj bushels Wallaramdk Estate first Parchment Cnffee, at 12s 6cl, Ctwelve shillings and six pence) per bushel, as per sample handed to you. For delivery, in good merchan- table condition, at your Storesj by 31st December next. Yours faithfully, (Signed) G. John.' "That memorandum certainly says nothing about the coffee contract- ed for being the coffee then growing on the Wallarambe Estate. If the defendant (or those acting for him) meant so to limit his obliga- tion, it would have been very easy to insert word.s to that effect. But that has not been done, and ' contra eum, qui legem dicere potuit, apertius est facienda interpretation The learned District Judge thinks that the restriction to the then growing crop is proved by the time fixed for deHvery, i. e., 31st December 1871, and by the parol proof that the period between the 'date of the contract and the last mentioned date, is the period during which the then growing crop would, in the natural coui-se of things, have ripened, and would have been gathered. We cannot agree with this. Defendant may very naturally have expected to fulfil his contract, mainly or entirely, by means of the then growing crop ; but the' question is not what he expected or hoped for, but ' what must his words have naturally led the other party to expect ?' It seems clear to us that the natural effect of his words must have been to create an expectation of a deli- very of the specified quantity of Wallarambe coffee, without such delivery being dependent ou the yield of the trees during the then current season. The stipulations as to the quality of the coffee, do not touch the point in issue. The contract would have been fulfilled by the delivery of the specified amount of Wallarambe coffee of the specified quality, whether that coffee, or any portion of it, was or was not part of the crop of a preceding year. Not only has the de- fendant failed to shew the impossibility of obtaining and supplying such Wallarambe coffee (as to the effect of which proof, if given, it is not necessary for us here to pronounce an opinion,) but there is evi- dence which leads to the belief that Wallarambe coffee was an article known in the market and procurable in the market, independently of the yield of that particular year. We allude to the defendant's an- swer to a question by the Court, in which he says ' there was no more \ 11 18 PART III. Wallarambe coftee on the Estate when I wrote that letter (i. e the letter of iBth December, 1871,) neither in the store nor on the trees, but .there may have been either in Kandy or in Colombo.' And in another answer to the Court, he says — 'when* the agreement was made, I did shew a .sample to the plaintiffs, but it was only shewn as a snmple of tlie ordinary production of the Estate.' It is exactly out of this, out of the ordinary production of the Estate, that the plain- tiffs had a right to look for their supply, and not out of the yield of one crop only. It is no answer in such a case to suggest, or even to prove, that the article which the vendee demands w.js in the domini- on of a third person. Grotius, book iii, c. i, sect, xxxix, points out , the law that ' an obligation can arise from all matters and acts, and extends even over things of which the dominion is vested in a third person, because these things are attainable." Pothier, vol. I, p. 78, is still more explicit. ' Even things which do not belong to the debtor but to another person may be the object of an obligation, as he is thereby obliged to purchase or otherwise procure them, in order to fulfill his engagement ; and if the real owner will not part with them, the. debtor cannot insist that he is discharged from his obligation under pretext that no man can be obliged to perform an impossibility. For this excuse is only valid in case of an ?-bsolirte impossibility : but where the thing is possible in itself, the obligation subsists notwithstanding that it is beyond the ipeans of the person obliged tn accomplish it ; and he is answerable for the damage occasioned by the non-perform- aiiee of his engagement. The thing being possible in its nature, is sufficient lo induce the creditor to rely upon the performance of the promise. The fault is imputable to the debtor, for not having duly examined whether it was in his power to accomplish what he promised or not.' " Arl.itrafion. /), C. Colombo, 54428. This case, which involved a question of title to several lands, "iiad been referi-ed, by an order of Court dated 4th September, 1871, to the' final arbitration of Abraham de Ahvis Jlohandram. On plaintiff's proctor filing the award and moving that judgment be entered up in terms thereof, the defendant's proctor applied that the arbitrator be noticed to file the notes of evidence y taken by him, preparatory to cause being shewn against the motion. The application was rejected in the following terms : " It is not shewn nor suggested that the arbitrator has done anything wrong, and the object of the defendant is evidently to fish for something wrong. The Court cannot encourage such fisheries.'' The award was thereupon adopted and made a rule of Court." In app eal, the Queen's Advocate, for appellant, contended that the arbitrator was bound, under the provisions of the 23rd clause of Ordinance 15 of 1866, to send in with his award all the ' proceedings, depositions and exhibits ' which had come into his possession. I'he application of DISTRICT COURTS. 19 the appellant had, therefore, been reasonable and should have been granted. The judgment of the Court below was, however, afBrmed ; the Chief Justice remarking that, in the absence of any suggestion as to fraud or misrepresentation on the part of the arbitrator, such as might prejudice the defendants, the appeal should be regarded as frivolous and vexatious. April 2 D. C. Galle, 32341. This was an appeal on an interlocutory or- Priority of der having reference to a question of priority between two cla,imants to the proceeds of an execution sale. Verappa Chetty, the appellant, claimed on a special mortgage bond of the 4th August 1871, on which he obtained judgment on the 6th June, 1 872 ; and Bell, the other claimant, held a judgment of 16th February, 1872, on a promissory, note dated 20th November, 1871. The bond was impugned as fraudu- lent and void for want of consideration ; and the Judge, (GillmaTi) having gone into evidence adduced in support of the document, held Verappa Chetty's claim good only to a limited extent and cast him in costs. In appeal, ( Queer^s Advocate for appellant, Kelly for i-espond- ent) the order was set aside ; and per Stewart, J. — "Having re- gard to the nature of the contest between the two claimants, as to whether the mortgage bond in favor of the appellant was given fraudulently and without consideration, it appears to us that the ques- tion should not have been summarily disposed of. The party im- peaching the bond should be referred to his action, reasonable time being given for instituting proceedings. Costs to stand over.'' March 19. Present Creast, C. J. D. C. Kalutara, 7952. The defendants had been convicted by the Conflicting District Judge (Jayetileke) on a charge of Riot and Assault. In ap- evidence, peal, (Kelly for appellants) the conviction and sentence were affirmed m the following terms : " This is a case of conflicting evidence which has been plainly investigated and adjudicated on with care and atten- tion by a District Judge of much experience and ability." April 2. Present Creasy, C. J. D. C. Kegalla, 150. This was an appeal against the acquittal by p the District Judge (Mainwaring) of two defendants who were charg- transferred" ed with cattle stealing. Per Creasy, C. J.—" Set aside and case sent back for a new trial. Three witnesses for the prosecution, who have not been in any way contradicted, prove that the prisoners, near about the time when the loss of the animal was discovered, were seen driving it away. They said that they had purchased it. No proof May 2 20 PART in.— of that assertion has been produced. The District Judge appears to hare acquitted these prisoners on a suggestion by their Proctor, that the charge had been got up at the instigation of the 1st witness. To give effect to suggestions of this kind, made by the Proctors of the accused persons, without any support from the evidence, would be to ofifer impunity to criminals. On the application of the Deputy Queen's Advocate, (who certified that there wa.s reasonable ground of appeal) this prosecution is transferred to the District Court of Kiiru- negala.'' April 22. Present Cbeast, C. J. Opinion of D. C. Batticaha, 16\5. The District .Judge (Worthingtan) had Assessors convicted all three defendants on a criminal charge, although the upheld m Assessors associated with him at the trial had declared it to be their opinion that the evidence was not conclusive against the 3rd accused. In appeal, the judgment was affirmed as to the 1st and 2nd defendants and set aside as to the 3rd; and per Obeast, C. J. — "I have read all these papers, including the proceedings before the Justice of the Peace. I feel satisfied that there has been an enormous mass of lying and exaggeration on the part of the complainant and complainant's witnesses. I agree with the three Assessors in thinking the ciroum- stanoe very suspicious- that this defendant's name was not mentioned to the Vanyar. The District Judge says that the Vanyar was assist- ing the assaulting party. I cannot find proof of this. Undoubtedly it very often happens in this Island that criminal charges, with a solid substratum of truth, are overlaid by the accusers with a monstrous heap of lies : and it is the duty of Courts, if they can clearly find their way to such truth, to convict on it and not to reject lies and truth in the lump. But I cannot see clearly the truth of any part of the com- plainant's charge so far as regards this appellant, bearing in mind the very important fact that he is proved to be a man of good character. Under all the circumstances, I agree with the three Assessors in think- ing the case against him too doubtful for a conviction." May 2. Present Stewart, J. D. C. Batticaha, 17263. A witness in this case had been found ° " ■ gnilty of Contempt for giving false evidence. In appeal, the convic- tion and sentence were set aside ; aiid per Stewart, J. — '" The con- tradictions between the appellant's evidence and the statements of the defendant are insufficient to establish that the testimony of the appellant was false. No other witness was examined : consequently there was no proof to negative the testimony of the appellant ; the DISTEICT CODKTS. "} June 3 defendant having only been examined as a party and not aa a witness on oath. It ia not alleged-, nor does it appear, that the appellant prevaricated in giving evidence so as to render him liable to be pun- ished for Contempt. The Supreme Court would also point out that, even admitting the appellant's evidence to be untrue, the supposed falsity scarcely was of so flagi-ant and audacious a character as to call for summary proceedings. See judgment of the Supreme Court inC. R. Colombo, 43832, September 17, 1867. If the evidence be false, the proper course to follow is to prosecute in the usual way for Perjury." June 3. Present Creasy, O. J. and Stewaet, J. D. C. Batlicaloa, 17230. The libel set forth that the plaintifi had cultivated certain paddy fields at a large expense of labor and capital, had raised a crop, and had thrashed and stored it ; that thereafter defend- ant had, as Administrator, removed the same by an order of , Court illegally obtained. The defendant demurred on the ground that plaintiff neither disclosed the nature of his right and title nor speci- fied the date of the alleged trespass. The Court ruled that the libel was " sufficient to shew plaintifi's claim as a cultivator only, and not as lord of the soil," and that the demurrer was unnecessary " in that ex- planation of the libel, if required, could have been equally well secured by a viva voce examination of the plaintiff." In appeal, {Grenier for respondent) the judgment was affirmed. D. C. Bafttcaloa, 17206. This was an action founded on the breach of a written agreement which recited that defendant, having undertaken to pay a balance debt due to plaintiffs by a third party on a writ of execution, acknowledged himself indebted to them in Rs. 450, for which sum he stipulated to deliver to the plaintiffs three elephants within three months. The defendant demurred to the libel, on the ground that the agreement sued upon disclosed no valid considera- tion. The Judge held that the document in question was nothing more than a mere promise to pay, for which no consideration was required to be set out, and rejected the demurrer. In appeal, (^Dias for appellant, Ferdinands for respondent) per Creasy, C. J, — " The Supreme Court thinks that the pleadings on the face of them import sufficient consideration." Demurrer, Demurrer. D. C. Galle, 124. A Marriage Registrar had applied to the Dis- Caveat against trietXJourt, udderthe 13th clause of Ordinance 13 of 1863, to adju- marriage, dicate on a caveat which had been entered against a proposed marriage, on the ground that the bridegroom had previously promised to marry June 10 22 PART III. — opponent and had a child by her whom he refused to maintain. Tie Judge (Gillman) made the following order; " Nouo (the opponent) is referred to her action for the breach of promise and for specific per- formance. The libel to be filed within a week from this date. The proposed marriage not to be registered by the Registrar till decision of the said action." In appeal, Dias for appellant. — The breach of a promise to marry, though it might entitle the aggrieved party to dam- aijes, could be no bar to a subsequent marriage. The Ordinance spe- ciiied the different grounds of objection on which a certificate could be opposed, none of which, however, were set forth in the caveat. The learned Judge had clearly misapprehended the present state of the law on marriage contracts, the Roman Dutch law* as to suits compelling marriages having been specially repealed by Ordinance 6 of 1847. Per Stewart, J. — "Set aside, and it is ordered that the caveat be set aside and that the certificate required do issue. .Suits to compel marriages are expressly done away with by the 30th clause of Or- dinance 6 of 1847." June 10. Present Ureast, C. J. and Stewart, J. Eights of a D- C. Kalutara, 24582. This was an action by a purchaser at & mortgagee. Fiscal's sale to have a subsequent seizure of the purchased property by a mortgagee set aside. The defendant pleaded that he was not bound by the previous sale, to which he had objected. The District Judge CJayetileke) held that the defendant (mortgagee) should have claimed the proceeds, and decreed that, if the defendant reimbursed to the plaintiff the purchase money and costs within six weeks, the property might be resold, otherwise that judgment would be enterei for plaintiff. In appeal, jDias for appellant. — The mortgagee objected to the sale and had a right to follow the mortgaged property Ferdinands for respondent. — Every creditor had a right to bring his debtor's property to a judicial sale ; and a mortgagee with notice would be bound by it, and only entitled to claim the proceeds. To hold otherwise would be to enable a fraudulent debtor to evade the sale of his property by mortgaging it to a friendly creditor. It was * Even under the operation of the Roman Dutch law, the Supreme Court (Sir H. Giffard and Sir R. Ottley) elected in the case of Dormiuit V. Kriekenbeek, which was decided in appeal on the 26th April, 1821, not to decree that the defendant, who was sued for breach of promise of mar- riage, should carry out his contract by a marriage celebrated in fore ecde- sia on or before a fixed date under the penalty of imprisonment for disobe- dience, but to award damages to the plaintiff, to the extent of one thou- sand Rixdollars, with a stay of execution until the 1st of July foll6winf, before which time the defendant was allowed to fulfil his contract, if *> disposed. Vide Appeal Minutes, vol. for 1820-21. DISTRICT COURTS. ■ 23 1 the mortgagee's duty to have stopped the proceeds before they passed oyer to the judgment creditor, and not having done so he was not entitled to the equitable relief he claimed. Per Creasy, C. J. — " Set aside and judgment entered for 1st defendant, and the land in question declared liable to be sold in satisfaction of 1st defendant's writ in case No. 23713, PlaiutiS to pay 1st defendant's costs. It is not denied that 1 st defendant is the bona fide assignee ot a valid special mortgage of the land in question. To deprive him, therefore, of his preferent right, it was incumbent on the plaintift to prove either direct fraud against the 1st defendant, or that he acted in such a manner as to make his ponduct amount to what is termed constructive fraud. It appears to us that the evidence altogether fails to establish fraud, either direct or constructive. The Ist defend- ant was not present at the sale in execution on the 26th May, 1869, nor is there any evidence to show that the 2nd defendant was author- ized to act as the agent of the 1st defendant. But even supposing that the 2nd defendant was acting as agent, he in no way acquiesced in the sale, but only gave notice uf the mortgage, and as he says, ' I opposed the sale.' Moreover, as remarked by the District judge, < the plaintift cannot be said to be a purchaser without notice, for he distinctly admits that he heard the 2nd defendant tell the Fiscal's officer that he had a mortgage over the property, and that he had assigned it to the 1st defendant.' The District Judge seems to think that the 1st defendant should have claimed the proceeds of the sale. But he was not bound to do so, the sale having taken place without his sanction, and the amount realised being less than what was due on his mortgage. Neither does it appear that the 1st defendant was in any way remiss : he proves that, a day after he hea'-d of the sale, he went to the Deputy Fiscal with a letter from Lis Proctor and asked the Deputy Fiscal not to grant plaintift a con- veyance as he held a special mortgage of the land." Jdne 10. D. C. Kandy, 56860. Plaintift claimed a field under a lease from Registration, 3rd defendant, who had been declared entitled to a life interest in it in an action against 2nd defendant, the heir at law of her deceased husband. The first defendant (appellant) claimed under a purchase from 2nd defendant which was registered, contending that he was entitled to preference over the unregistered judgment of 3rd defend- ant. The District Judge (Morgan) held that the registration gave no preferential right. Dias for appellant. — The 1st defendant's purchase was from the admitted heir-at-law, and the previous judgment not having been registered, the 1st defendant had a pre- ferent right under the 39th clause of the Ordinance No. 8 of 1863. i^'erdmanrf* for respondent. — Prior registration would avail if parties claimed under one and the same proprietor, but the appellant did not claim from the life renter. Per Cheasy, C.J. — "Affirmed." June 10. | ^"^ p*kt hi.— • Costs. B. C Kandy. 56814. In this case judgment was entered for plain- tiff (appellant) in £3- 1« as mesne profits, but he was made to pay defendant's costs on the ground that he might have sued in the Court of Requests or recovered the amount in the previous action for the land. Ferdinands ior appellant. — The defendant denied that any damages were due, and put plaintiff to the expense of proving it Plaintiff was therefore entitled to his costs. At all events, he should not have been made to pay defendant's costs. Per Stewaet J.— " Affirmed, but modified as to costs. Each party will bear his own costs. According to the evidence of the last witness, the defendant prevented the plaintiff's getting possession of the garden. Besides, the plaintiff now recovers damages subsequent to the adjudication in '!so. 50434." Copy decret. D. C. Matara, 26128. This was an action to recover a land which the plaintiff had got judgment for against the defendant in a previous suit the record of which was lost. The plaintiff now proceeded on a copy decree, which did not, however, set out the boundaries of the land in question. The District Judge ( Templer) considered the decree too indefinite in the absence of the libel and non-suited the plaimifi. In appeal, Ferdinands for appellant. — The defendant in his examina- tion supplied the boundaries, and in a connected District Court criminal case 22671, there was a writ of possession filed, which had evidently been overlooked in the Court below, setting out the boundaries as given in the lost case. Per Stbwabt J. — "Set aside and the case remanded for further hearing and consideration. Attention does not seem to have been directed to the writ of possession in case No. 22671. Appellant to pay costs of appeal." Partition. D- C. ilfatera, 26496. This action arose out of a previous parti- tion suit between the parties. The libel stated that the land then in disp^ite had been sold, under an order of Court, and purchased by plaintiff (appellant) who now sued the defendant for an encroach- ment. The defendant denied the sale of the alleged encroachment The District Judge {Templer) held that the "features" of the disputed portion were against the appellant's contention that it was part of the land purchased by him, and that Commissioner Kemp's evi- dence was too indefinite as to what he had sold. Plaintiff's case was therefore dismissed with costs. Bias for appellant.— The evidence showed that the Commissioner sold all that he had preifiously appraised, which included the disputed portion; and, by the 9th clause of Ordinance 10 of 1863, the respondent was estopped from claiming the land thus sold. [But the respondent disputed all along the right to appraise or sell the disputed portion under the partition decree. Stbwabt J.] Ferdinands, for respondent, was not called upon. Per Stew.\rt J.— "Affirmed." DISTRICT COURTS. 25 1 j ^. D. C. Kandy, 56750. The question in this case was the right of Rights of a a childless widow to claim both life interest and maintenance from Kandyan the acquired and parveni property, respectively, of her deceased husband. The District Judge (Morgan) put the widow to her election, on the ground that she could not claim both. In appeal, there was no appearance for appellant. Ferdinands, for respondent. — The District Judge's ruling was supported by a clear authority from Armour, p. 18, that the widow could not claim both maintenance and life interest, and there was no appellate decision that he knew to the contrary. The point was a new one, but Armour was a safe authority on such questions. Per Ceeast, C. J. — " Affirmed. The defendant has not thought fit to appear to support her appeal. On hearing the Counsel for respondent and on examination of the case, it seems to us that the District Judge did right in following the authority of Armour. The Ratnapura case reported in Legal Mis- cellany, decisions of 1866, p. 33, differs in its facts from the present widow. June 11. Present Ceeast, C. J. and Stewakt, J. D. C. Kandy, 56528. In this case the District Judge {Morgan) Service awarded the plaintiff, as incumbent of the Malwatte Viharre, damages f? j""'^ ' for three years against defendant, a temple tenant who had failed to perform services. The defendant appealed, chiefly on the ground that under the provisions of the Service Tenure's Ordinance 4 of 1870, clause 24, he was only liable to be cast in the value of one yearls services, and was entitled to his costs. Ferdinands, for respondent, conceded that, under the Ordinance which had apparently been lost sight of in the Court below, the value of only one year's services could be claimed; but the action had been pending another year, so that the damages would have to 'be reduced only by 1 s. 3d. He maintained that the judgment was correct in other respects. Per Stewaet J. — " Amended by Judgment being reduced to Rs. 43 and 50 cents. Under the 24th section of Ordinance No. 4 of 1870, plain- tifl cannot recover for arrears of service beyond a year. The judg- ment must therefore be amended accordingly, and will stand at the amount stated, viz. for one year before action brought, and for what has become subsequently due. As to costs, we see no sufficient reason to interfere with the judgment in this respect. Though the plaintifi was in error prajang for eviction of the defendant, yet he could not anticipate the defence the defendant might set up, involv- ing possibly the question of jurisdiction and title if he had pro . ceeded in the Court of Requests. The 76th clause of Ordinance 11 of 1868, leaves it to the Judge to make such order as justice may Jdne 17 j 26 PART III.— require in suits brought in the District Courts that may have been brought in the Court of Requests. In the present case we see no reason to difier from the District Judge." June 17. Present Okeast, C. J. and Stewart, J. Deed of ^' ^' ^°^'''^^"' ^^^- '^'^^ appellant applied for administration Gift. (with the will annexed) of her father's estate, and was resisted by the widow (respondent) who questioned the validity of the will. The document produced was termed a " gantalpot," signed by the grantor before 5 witnesses ; and the disposition was in these terms ; " all these I have given to Punchy Menica, ' my begotten daughter by my deceased first wife Dingen Menica, to possess by her in parveny." Possession had been given with the document, and the grantor had survived eight months. The District Judge (Gibson) held that the document was a deed of gift and could not be admitted to probate, and granted administration to the widow. The Queen's Advocate for appellant. — The document was to all intents and purposes a will. The testator was on the point of death, and the paper was signed before five witnesses who proved that it was meant to operate as i will. Extrinsic evidence was admissible to prove the intention of the testator. Even Bills of Exchange had been admitted to probate, where the intention was cleai\ Jones v. Nicolay, 2 Ebb. 288 ; 14 Jur. 675 [Is not the fact of your having possessed during the eight months of the donor's survivorship conclusive against you ?— C. J.] Ferdinands for respondent was not called upon. The judgment was affirmed. Government D. C. Badulla, 19003. In this case plaintiff having obtained defaulter, judgment against the defendant ( Vanderwall) on a mortgage bond dated November 1, 1870, for Rs. 860, seized and caused to be sold the mortgaged property, and was about to draw the proceeds when the Crown intervened and claimed them as a preferent creditor. The District Judge (Gibson) upheld the claim and hence the appeal. It appeared that the plaintifi had originally sold the mortgaged land to the defendant, received part of the purchase money and taken the bond in question for the balance. Both the bond and conveyance had been executed on the same day. The Crown claim was based on the 4th clause of Ordinance 1 4 of 1 843, the defendant having been appointed a revenue officer in 1868 and continued as such to 1 87 1 , when the said claim accrued in respect of certain monies found to be due by him to Government. Dias, for appellant.— The bond and conveyance in favor of plaintin having been executed on the same day, there was not such an uncon- District coukt3» 27 \ ditional title in the defendant as to subject the property to tho hypothec of the Crown. As soon as the conveyance was executed, the plaintiff's legal hypothec for the balance purchase money attached to the land ; and, in view of there having been no interval between the purchase and the mortgage, the property had not so vested in the defend- ant as to give the Crown a right to discuss it. The Queen's Advocate, for respondent, submitted that the vendor's lien for the balance pur- chase money had been destroyed by the mortgage ; and as the transfer to defendant had been absolute and had vested a good title in him, the Crown had a preferential right under Ordinance 14 of 1 843. Per Creasy, f!. J. — "Affirmed. The words of the 4th clause of Ordinance No. 14 of 1843 are so very strong and explicit, that it is im- possible to withdraw this case from their operation by reason of the 61st clause. The first branch of that clause (which alone can apply here) refers to mortgages of a prior date to the claim of the Crown ; but the 4th clause makes the claim of the Crown date from the day of the defaulting officer's first appointment. That was anterior to the day of the creditor's mortgage." June 17 D. C. Kandy, Vi'iW. In 1847, one Jayetilike Mohandiram had ' Half im^ agreed to pay half the improved Value of a certain garden, whiih he proved value " was then in possession of, and to obtain a grant from the Crown. He *" ^'■°"'° lands, foiled to do this and so did his heirs, until the property was sold for Rs. 6000 in 1872, under the writ of a mortgagee, subject however to the claim of the Ciown, The District Judge (^Morgan) having, on the motion of the Government Proctor, allowed Rs. 3000, being half of the proceeds of the sale, to be drawn, a second creditor, who held an assignmenf of a secondary mortgage over the land, objected. In appeal, Dias for appellant. — The party in possession having be- come entitled to the land, under clause 8 of Ordinance 12 of 1840, so far back as 1 847, the value at that date should be taken as the amount of which the squatter should pay one-half. The Crown claim for one- half of the present Value was not only inadmissible upon a true con- struction of the Ordinance, but there was evidence in the case that the land had been actually appraised in 1847 fi)r £50 and that Government had received £3 in part payment. If there had been default in the payment of the balance £22, the Government should have recovered it with interest. Besides, the present contest was not with the orisi- nal squatter but with innocent purchasers and mortgagees ; and inde- pendently of the construction of the Ordinance and the act of the Government in 1847, the Crown was barred by its own laches in hav- ing allowed Jayetilike and those claiming under him to deal with the land as their own and thus impose upon innocent creditors. 2'Ae Queen's Advocate, for respondent, was not called upon, Jvm 18. { ^^ ^^«^ '«;- Per Creast, C. J.— "If the claimants or those whom they represent had tendered the sum originally fixed as half vahie, and the Govern- ment Agent had accepted it, the case might have been difterent. But the payment has not yet been made, and the Ordinance contemplates the right of the Crown to payment of half value at the time of pav. ment, and not at the date of some petition, probably many years be- fore. It does not appear to the Supreme Court that the payment of the sum of £3, which has been relied on as a part payment of the old valuation, is anything of the kind. The entry respecting it is merely the expression of a Government Officer's opinion about a matter which had occurred many yeai^ previously. It is far more probable that the £3 was paid to cover the expense of the valuation. The Government would not, in the common order of things, have had the valuation made unless the petitioner had supplied the money.', Jtme 18. Present Creasy, C. J. and Stewart, J. FideiCommis- D. C. Colombo, 59578. One Ahiimadoe Lebbe Constable Sinne sum amongst Lebbe Marikar, by a deed dated 12th November, 1853, gifted to his brother, Aydroos Lebbe Marikar, an allotment of Crown land in the Marandahn Cinnamon Gardens, subject however to a restriction against alienation. The defendant having seized the property under a writ against Aydroos, the plaintifis (the widow, children and son-in-law of the debtor) brought the present action to maintain their title and to have the FLscal's seizure set aside. The defendant pleaded that the said land absolutely vested in Aydroos, and that the restriction contained in the deed of gift was illegal,, void and inoperative.* The learned District Judge (SericicA) held as follows : " This is a question of the law to be applied among Moors. The case was argued solely on the validity of a clau-e of entail or quasi-entail, and the effect of it : though another point is also raised ou the pleadings. The clause in question occurs in a deed inter vivos, whereby the grantor transferred certain landed property to his brother Aydroos Lebbe in these words, 'as a gift absolute and irrevocable unto the ' said Aydroos Lebbe, his heirs, executors, and administrators ' ; and the * Where a widow had' accepted as her portion a certain house allotted to her by the Executor of her hushand's estate, it. was held that she took the property incumbered with the restrictions against alienation provided in the. codicil "to the will. Held, also, that the evidence (corroborated bv Mac- naghten) disclosed that a restriction similar in principle to the law of legitima portio of the Civil L:iw existed in the Moh^mmedian Code, and that a testator could only divert from his legal heirs or incumber with restrictions ^ of the wh le estate left by him » the heirs being entitled absolutely to the remaining f. Per Lawson, D. .)., in. D. C.Colombo, 52418. Affirmed in appeal on the 2'ttb June, 1S69. DISTRICT COURTS. 29 ' habendum clause is as follows: ' To have and hold, &c. unto the said ' Aydroos Lebbe, his heirs, executors, administrators and assigns for 'ever, subject however to the conditions and restrictions following, that ' is to say that the said Aydroos Lebbe shall not sell, mortgage or other- ' wise alienate the said premises hereby conveyed to him, or any portion 'thereof, but that the same shall be held and possessed by him during ' his natural life : and after his death, the same shall devolve on his ' heirs in perpetuity, who shall likewise hold the same under the like 'restrictions as aforesaid.' The defendant has seized the property on a writ of execution against Aydroos, whose heirs claim as plaintiffs against the defendant, his iudgment creditor. Defendant contends that the restriction against alienation [wrongly styled condition] is illegal, void and inoperative, aiid rests his proposition on the Mohammedan Law. It is argued for the plaintiffs, that this question, being one affecting real property, must be governed not by Mohammedan Law but by the Lex Loci : and for the defendants, that in this instance the Mohammedan Law is the Lex Loci. Both contentions ate just. The latter was irrev- ocably guaranteed by the Charter of 1801, which provided that 'inher- itance and succession to lands, rents and goods and all matters of contract and dealing between party and party should be determined in the case of Mussulmen by the laws and usages of Mussulmen' ; meaning, of course, their laws and usages in this part of the world. True that after enduring for many years that Charter was in general terms repealed, when a new and purely "judicial" Charter, for the establishment of new Courts, was granted ; but no new provision or alteration was ever made as to the laws to be administered to the people. That provision, therefore, even if it has ceased to have force as by virtue of the Charter of 1801 which contained it, (which I doubt) has at all events force as consuetudinary law, the origin of which can be traced up to that Charter at least, if not further. But while it is true, in a sense, that Mohammedan law is part of the common law of this country, it is not to be supposed that the whole immense body of Mohammedan jurisprudence is law here ; or that the dealings ofMoormen in Ceylon are solely or even principally regulated by it. Only such parts of that system are law here as have been specially introduced into the Island, either by express legislation or by ancient, continuous and inveterate custom or usage, which is all the Charter of 1801 meant It is in (nearly) the same position, in this respect, as the common and statute law of England here, and equally with purely English law must give place to the ordinary law of the country (which in the last resortisthe Eoman-Dutch) whenever there is no inveterate and established practice to the contrary, applicable to the particular case. Now the question raised in this case concerns that part of the Mohammedan jurisprudence which is called by the name of Wukf ; being analogous, in some degree, with fidei commissa and entails of private property, as June 18. Juke 18 | ^'^ ^^«^ "'■— well a8 with trusts for charitable, religious atid public purposes. This branch of Mohammedan jurisprudence named Wukf, in respect at least to its analogies with fidei coninsissa for private uses, has not been introduced into Ceylon, and neither has the connected branch of 'usufructuary wills.' They form no parts of constant and 'perpetually recurring practice of the inhabitants,' (which is one of the proper characters of a custom as stated by the Civil Law writers to be necessa- ry to give it the force of law ;) and are therefore not known to the Courts of law here nor recognizable as law. Even if occasional exam- ples could be brought forward, such will not constitute nor prove a. custom : for nee ex aetvAim frequentia consuetudo .JiuiLYoet, at 1, .*!, 29, has collected in one sentence some of the numerous descriptive epithets; given in the Digest and Code to a custom having the force of law, among which are not only longisvi uxus but inveterate consuetudinis, diuturnce, inveterato usu stahihtce, and servatoe tenacitef ; none of which can apply to Wukf, in respect to entails forprivate uses, nor to the Mohammedan law of usufructuary wills. The clause in question would be valid by the ordinary law of Ceylon, and must therefore be held valid in this case, however the Mohammedan law may vary in this regard in distant parts of the world. So also as to the old contended question, on which there is so much variance in different systems of jurisprudence, viz. whether a void condition voids the transfer or the condition only lapses, — Cas to which the Roman Law, for instance, applies an opposite rule to testamentary bequests from what it doe& to deeds inter vivos,) —foi the same reason the rules of construction and validity and efiect of such conditions, as also indeed the construc- tion, etc. of deeds and wills (^generally) including entails and fidei commis^a must be governed by the ordinary law of the country, because this part of the Mohammedan, system of jurisprudence (viz. the construction of wills, etc. and the effect of void conditions) has never become part of the law of Ceylon. An exception may be found in the case of pyre donations, as to which see the decisions in Colombo, D. C. 55746 and 29129 ; but the case in question is not oneofjoare- donation, but of ^dei commissum. By the ordinary law of trusts or fidei commissa, the owner had a right to dispose of his property and to annex to a grant of the use for life a prohibition against alienation, which restriction is valid, and the real sense of which is that the grantee was only to have a life use and was to be a fidei commissary for his heirs. As the property did not vest in the first grantee abso- lutely, but only as a fidei commissary, it cannot be taken in execution for his personal debt. Although the Mohammedan law has in no degree proved to be the basis of this decision, it is satisfactory to note that, as far at least as my acquaintance with that law extends, (and I do not pretend to a very accurate acquaintance with it) it appears to be substantially similar to the Roman Dutch Law on DISTRICT COURTS. the question to wTiich the latter has been just appli- ed. See Baillie's Diprest of M6hammedan Laws, the whole of Books ix, X and xi, and particularly sections second and third of Book ix. It may be added that, even if the Court had been compelled to find that the condition, or rather restriction and prohibition of alienation, was void, it would have been very sorry if it had found itself compelled to hold also that, if a Moorman intends to create a trust which fails, the intended trustee is to take the intended trust property absolutely to his private use, instead of its lapsing to the grantor himself, or at his death to his heirs. In this case, the fidei commissary was only one of four heirs of the grantor. J udgment will be entered for the plaintift in terms of the prayer of the libel, save as to damages." In appeal, Ferdinands, for appellant, contended that the law appli- cable to the case was the Monammedan law, which did not recognise restrictions against alienation. 3 Hedaja, 309 ; Baillie, 507-8, 557, 570. The Queen^s Advocate, (Dias and Kelly with him) for respond- ent, was not called upon. Per Curiam. — "Affirmed forthereasons givenby the District Judge. The Supreme Court has before held that the Mohammedan law of India or other places does not necessarily obtain in Ceylon. The laws of the Mohammedan inhabitants of Ceylon, when not regulated by enactment, must be determined byusage and their laws as existing here." '} June 20. June 20. Present CKEAsr, C. J. and Stewart, J. D. Q. Colombo, 60701. The plaintiff ( Wichremesehere') joined certain creditors of the defendant (I'o^Aam) and accepted a compo- sition of five shillings in the pound, and, unknown to the other creditors, took a letter from the defendant, that he would pay plaintiff in full in the event ot his paying in full any other creditor. The defendant subsequently paid certain creditors (who i were not parties to the com- position) in full ; whereupon plaintiff' instituted this action to recover the difference due to him. The District Judge {Berwick) entered judgment for the plaintiff, on the ground that there was no consi- deration to forego a part of the debt. In appeal, Ferdinands, for defendant and appellant, relied on the case of Norman v, Thompson, 4 Exch., 759, in which it was held that consideration was not necessary. (He was stopped by the Chief Justice who wished to hear the respondent.) Kelly, for respondent.— The appellant entered into a conditional arrangement with respondent, and the condition having been broken he had a right to be placed in his former position. He was one of the first to sign the composition and the letter was a contemporaneous document which threw light upon the real meaning of the parties, Composition with creditors. June 20 { 32 PART I.I.- namely that all the creditors must join or it should not be bindinor on those who did. As some had refused to join and had been paid in full the condition upon which the plaintiff joined had not been observed and he was remitted to his original rights. It might be conceded that no consideration was necessary to release a claim, any more than to make a gift, but in either case the act must be unconditional or the condition must be fulfilled. Per Ckeast, 0. J. — "Set aside and judgment entered for de- fendant with costs. In this case the defendant, being in pecuniary difficulties, compounded with the greater part of his creditors for fire shillings in the pound on or about the loth of August, 1871. The exact date of the Memorandum of Agreement, and of the plaintifi's assent thereto, has not been proved, though very material. But from the plaintiff's receipt for his share of the composition being dated the 16th of Au.gust, 1871, and from that being the date of the letter by defendant to plaintiff, (which will be presently cited,) it seems probable that the assent to the composition deed, the writing of the said letter by defendant, and the plaintiff's acceptance of the composition money, were contemporaneous acts. The agreement to accept the composition Is headed as follows : " We the undersigned creditors of Tathain and Company do hereby agree to accept five shillings in the pound on the amount of our claims, and to give Mr. Tatham a discharge in full of all claims : this dividend to be paid within three months." Here follow the signatures of a number of creditors, including that of the plaintiff. The letter referred to is as follows : Colombo, 16th August, 1871. P. N. Wiokremcsekere Aratchy. Dear Sir,— It is understood that should I pay eventually to any'of the creditors of Tatham and Company more than 5 shillings in the pound, you are to be placed in the same footing as regards time and money. Year's faithfully, Chbistb. Tatham. It was proved (by admission) that the defendant paid two creditors in full, neither of such creditors being among those who signed the composition : but the very important fact was not proved, whether those payments in full were befoi'e or after the date of the composi- tion agreement. It was argued in the Court below, that the composi- tion agreement was in itself bad in law for want of consideration. The short answer to this underRomau Dutch law would be, that there was no need for any consideration. A creditor may make a release of the whole of his debt without consideration ; and the release will be operative, unless obtained by foul means. Vanderlindeu, page 269, and Grotius, page 461 , might be sufficient authorities for this pro- position. If it be desired to trace the growth of the Roman law on this subject, this may be done by refen-ing to Justinian's Institutes, Book Hi, title xxix, 2, where will be found the form of the " aecepti- DlStfttCr C0DRT8. 33 1 lalio" of the legal ficton introduced, in the interests of equity and common sense, by Cicero's friend Gallus Aquilius, by which without any writing or consideration a release from any kind of obligation whatsoever could be given. Next the Prstors held that a " pactum nudum liberatorium," though no action could be founded on it, gave a o-Qod defence against an action to enforce the claim which the cred- itors had agreed to forego. See the Digest, book 2, title xiv, and Voet's comments. If a creditor can make a valid gratuitous release of the whole of his debt, a fortiori he may do so for part. Indeed the Roman law i.s express on the subject. See the Institutes, lib, iii, xxix, Sect. 1 . Now in the case before us, the creditor had consideration for the release so far as five shillings in the pound. We will suppose it to be have been gratuitous as to the residue, though, for reasons to be oiti'd presently, such was not the fact. But for the sake of the argument as to this part of the case, we will assume that the release as to fifteen shillings in the pound was gratuitous. Still the release was not the less eflective on that account, unless the transaction was tainted by illegality. It may, however, be thought that, inasmuch as the plaintiff claimed on an overdue promissory note, we must (under Ordinance 5 of 1 852, sec. 2) look to English law and not to Roman Dutch law in this case. Many Knglish cases were quoted and relied on in the Court below, as invalidating this composition, none of them being very recent ones, and all banging on the case of Cumber v. Wane, reported in 1 Strange, 426, and also in 1 Smith's Leading Cases, where it is ably commented on by the late Mr. Justice Willes (one of the greatest legal authorities whose loss this age has to deplore) and Mr. Justice Keating. They say of Camber v. Wane that ' its doc- trine is founded on vicious reasoning and false views of the office of a eom-t of law, and that it has in modern times been subjected to modification in several instances.' They state that ' there is au- thority for saying that a liquidated demand founded on a bill of ex- change or a promissory note, even though overdue, may be forgiven by word of mouth ; and, if this be law, such a demand might, with consent of the creditor, be discharged by payment of a less amount than that secured by the note. See Poster v. Dawber, 6 Exch,, 839.' We have referred to Lord Wensleydale's (then Baron Parke's) jiudgment in that ease, and we find it to be clear and explicit. Baron Parke (p. 851) treats as unquestionable the rule that the obligation on a bill of exchange or note may be discharged by express waiver, and he states that in this respect the contract on a bill or note stands on a different footing to simple contracts, in general ; inasmuch as (by English Law) an executed contract cannot be discharged except by release under seal, or by performance of the obligation, or by pay- ment, where the obligation is to be performed by payment. He points out (p. 852) that the probable reason for the anomaly is that when the Law Merchant as to bills of exchange was introduced into June 20 June 20 34 Paet 111.^- England, at the same time was introduced, so far as regards bills of exchanse, the rule quoted from civilian writers as prevailing in Europe generally, namely, that there may be a release and dischargee from a debt by express words, although unaccompanied by satisfaction or any solemn instrument. We see, therefore, that as to the plaintiffs claim on the promissory note, the defence set up is good both by English and by Roman law. If he desires to sue on the original cause of action for goods supplied, the answer to this is, that that cause of action is not affected by the Ordinance of 18^2, but must be governed by Roman Dutch law : and under Roman Dutch Law, as already demonstrated, the present defence of release is valid, But fui ther, this case Would fall within the Well-known class of ex- ceptions to the doctrine of Cumber v. Wane, which decide that tha contract or other act of a third party introducing a new consideration may operate in discharge. See the same note to Cumber v. Wane, and see the comparatively recent case of Norman v. Thompson, 4 Exch. 759, where in the judgment of Chief Baron Pollock are found these words, which the learned District Judge has cited and which he properly regards as ' very weighty.' ' The question is simply whether an agreement between less than the whole number of the body of creditors, to accept a composition, is binding upon those par- ties who enter into that agreement. I do not think that there is any ground for doubting that such an agreement is binding. It is a good consideration for one to give up part of his claim that another should do the same.' So decided Chief Justice Baron Pollock, one of the most experienced and able Judges iu commercial matters that Guild- hall and Westminster have seen during the present century. As for requiring formal evidence of a meeting, of a deliberation, and of a solemn compact of the creditors one with another to take this com- position, we look on such proof as by no means indispensable. The memorandum of agreement is proof enough. The words at the com- mencement, ' we the undersigned creditors do hereby agree to accept five shillings in the pound,' show unmistiikeably that each creditor knew that he was co-operating and agreeing with the other creditors, and that other creditors were co-operating and agreeing with him. There remains for consideration the far more serious objection, that the defendant has nullified the composition agreement by paying two of his creditors in full. Unquestionably, if a debtor induces a num- ber of his creditors to take a composition, by a promise, either express or implied, that there shall be no preference shown, but that all of them shall share alike, and he afterwards violates that promise by paying one of those creditors more than the rest, he plays the part of a deceiver, — his fraud vitiates the agreement, and the creditors right to sue him in full revives. But what are the facts here ? The gross amount of the debts due to the creditors who signed the agree- DISTRICT COURTS. 35 ment is over four thousand pounds. The two acoouuts paid in full are one for £18 and one for £!,'>. Neither of the creditors so paid in full had anything to do with the composition agreement : and there is not even proof that the payment of either of them was subsequent to that agreement. If wc thought that the plaintiff could on the whole succeed if he had supplied this proof, we should now merely non-suit him, so that he might have an opportunity of mend- ing his case in this respect, if possible. But even if it is to be taken that these payments were made after the agreement, we still think that the defendant is not liable to this action. Whenever there is to be a composition, it is always well known that there will be one or two stubborn claimants, usually for small sums, each of whom is sure to insist on twenty shillings in the pound. Baron Parke, in the case of Korman v. Thompson, already referred to, observes : ' It is every day's practice that all the creditors sliould enter into a composition, except those whose demands are small.' The main creditors look to each other, and to joint action with eauh other. There is no pi-oof whatever in this case of the existence of any creditors, except those who signed the agreement, and the two small claimant^ who were paid in full. The gross amount due to the signatories exceeded £4000; the total debts due to the two payees in full are precisely £33. Notwithstanding the generality of the wording of the letter of the 16th December, we think that it contemplated the four thousand pounds worth of creditors who signed the composition, and not either the £15 outsider or the £18 outsider. And it seems clear to us, that the agreement has been substantially performed by the defendant, and that he is entitled to judgment." ,fuNE 20 D. C. Colombo, 59987. The plaintiff claimed certain premises at Surviving Cotanohina, as devisee under the will of the Rev. Solomon David The parent's ri^ht defendants, who were the children of the testator by his first marriage, '" 9harge for questioned the validity of the bequest as to an imdivided half share, of'children! which they claimed by inheritance from their mother, who had been entitled thereto under the community of propert •. The plaintiff re- plied that the testator had taken out administration to his deceased wife's estate, had filed his final account in 1853, and had retained the property in question for himself, having paid the debts of the commu- uity. He also pleaded prescription since 1853, The defendants re- joined that the accounts were fraudulent and not binding on them, and that the same had not been accepted and passed by the Court, ilioiigh sworn to. They also denied that prescription applied, the third defendant having been a minor and the testator having continued as administrator in possession. The District Judge {Berwick) gave judgment for the defendiints, holding that the aeeo'ints were false, and that no prescription applied. He also reserved tu the parties the right June 20 ■ 36 FART III.— to move, witliin one month, for the appointment of an administrator de bonis non to the estate of defendant's mother and of a receiver to the joint matrimonial estate. The Queen's Advocate, [Dias with him) for plaintiff and appellant. The accounts having been swom to must be considered as passed un- der the Rules, and it was not competent to question them twenty yearg after. Two of tne defendants were then of age, and prescription would run against them. The proceedings were in accordance with the esta- blished practice of the Courts. Ferdinands, for the )st and 2nd defendants, (respondents) went into details of the accounts and contended that these were false, and that an administrator in possession could not himself alter the character of his possession and plead prescription against the heirs. Kelly, for third defendant, (respondent) urged, in addition to the position contended for by Ferdinands, that the third defendant was admittedly a minor aud could not be bound either by the accounts or by iirescriptiini. [Counsel all agreed that the latter portion ot the District Court judgment, as to the appoim ment of a fresh administrator and of a re- ceiver, was unneces^ary, aui might lead to furtber complications.] Fer CmsAsir, C. J. — " Ailirmed so far as regards that part of the judgment which declares each of the defendants to be entitled to one- sixth of the property in the Libel mentioned : set aside in other res- pects. This judgment to be final and to have immediate effect. The plaintifi to pay the defendants' costs of the action, each party to bear tlieir own costs of appeal. In this case the plaintiff is the son-in-law of the late Kevd. Mr. David ; the plaintiff 's wife being that gentleman's daughtier by his second mai-ria^e. The defendants were that gentle- man's children by his first marriage. The plaintiff claims under a will in his wife's favor by her father. The defendants claim to be entitled each to a sixth share of the property mentioned in the libel, as having formed part of the matrimonial estate of Mr. David and his first wife. The first wife died in 1850. Mr. David took out adminis- tration to her in September 1852. On 28th January, 1853, Mr. David filed and swore to a final account, which purports to be an account of the whole joint estate. Besides the landed property which is the sub- ject matter of this litigation and another small portion of landed pro- perty, that account admitted the existence of personal assets to the amount of £165 13s. \^d. It gave £81 as the value of the landed property. The account took credit for payments and disbursements amounting to £248 15*. I^d. Among them was a sum ot £70 14*. entered as money paid " for the maintenance of the children." This item requires and will receive particular attention. Altogether the accoimt brought in a balance against the joint estate of £2 2*. Gd. If this were correct, the wife's half was insolvent. On the 23rd August, 1853, Mr. David applied to the District Judge for an order to sell the DISTRICT COURTS. 37 ^ r „„ immoveable property. This order was refused. The District Jii(l conclusively proved that the Sombreorum did ao June 27 J 48 PART III ■ The Dodan- good to tbfs panicular estate, and that it was, therefore, not a galla case, necessary or a useful expenditure, or one required for th» gatberiugor fuiiheriag o£ tbe crops, such as may be allowed tO' either a bona fide or a malafi,de possessor according to the autbo- rities belore quoted. This item must therefore be disallowed. " 4. Postage. — The- charges made under this head are objected to as being eKiraacsprarai, being from £4-4 to £7-7 annually, while it is urged that during tbe time the estate was in the first defendant's hands, the item never exceeded £2 or £3. It ig stated in the evidence for tbe plaintiff, that the sums charged were actually expended, but tbe amounts of tbe items (always a certain number oi guineas) would tend to show that they are rather the result of some average — say of the total postage spent on account of several estates — and no reason is aaeign- ed and no custom of merchants is shewn to explain why they should be so much higher with plaintiff and his agents, than, with first defendant and his agents. The excess is certainly not shown to be an impensa neaessaria or utilis,. and therefore disallowed. "5. Brokerage, — This is a charge of one per centum on the sale of the crops in the London market. It is objected to on the same grounds as the pi-eceding item, the charge of de- fendants' agents being but ha,lf per cent. The excess is dis. allowed for tbe same reasons as those mentioned in regard ti the last item. " 6 and 7. Vegetables and Rain-gauge— The charges under these heads are small and the objections to them' were not pressed at the trial. They are therefore allowed. "8. Interest— Thia is one of th« charges of plaintiff's agents, Messrs. Wall and Company, and explained in the evidence to be made by them "^ when out of money, a charge on the balance of account as tbey went oh; tbey allowed interest when they had money in band.' It is objected to however on the grounds that, as the estate was worked by money raised by bills drawn on England, the agents here, Me.-8rs. Wall and 06.,. should have taken care that they kept themselves in funds by that means, and that they had no right to advance money them- selves, the interest on which is double the amount payable on that raised by the Bills on England, It is in fact ooor tended that, according to the custom in such cases, there should not enter into such accounts as are now under consideration, any item for interest in Ceylon, and that it could only creep in because of tbe laches of the Ceylon Agents in keeping them- selves in funds. These objections seem to me to be well found- ed, and there does not appear to be any valid reason why the DISTRICT COPETS. ^^ J JCNE 27. item should appear in tLe accounts, and it is th-erefore dis- ijjjg Dodan- allowed. galla case. ■" 9. Salary of an Assistant SwperintenAent for two years.— This is objected to on the ground that there was no necessi- ty for the employment of an Assistant to the Manager ; that the first defendant had worked the estate without such aid; and that plaintiff's agents, Messrs. Wall and Company, en- gaged the Assistant at a time when ttie estate was yielding small crops . It is urged, contra, that an Assistant is always needed on an estate like Dodangalla, and that in this case the expenditure was the more required because draining, a very important matter, was attended to under the supervision of this -AEsistant ,- and that his pay was saved as weeding was more effectually looked after ; and it appears to be admit- ted in the evidence that the estate, always a weedy one, was less so when plaintiff's agents gave it over to Gav- in. It is not shewn that the Superintendent could not tiave done the work without an Assistant (unless there bo some truth in the suggestion that the time ol the former was occupied with an unusual excess of letter writing) and the extent of the estate is not so large as of itself to indicate any necessity for such aid. Indeed the present manager is stated in the evidence to superintend not merely the Dodangalla Estate, but another also in addition ; and it is not denied that the former property had been regularly weeded once a month before plaintiff obtained possession of it. On the whole looking to the on'i(s^ro&aH<2i, I do not think that the necessity for this charge is made out, and it does not therefore come under any of the various kinds of impensis which our law would allow to the plaintiff, in whichever way bis position is viewed. It is therefore disallowed "lO. London Agent's Commission (£183 odd)— It was not expkin- ecl at the trial what the nature of this charge was ; and the de- cision of the Court in the present enquiry was postponed in order to allow plaintifFs agents, Messrs. Wall and Company, an opportunity of affording the explanation. It is now stated that it is 'a commission of the London Agents for remitting net proceeds of the crops to Ceylon' (see memo, marked M.) On this explanation the first defendant's counsel do not ob- ject to the item, provided that the plaintiff be not allowed to charge also (as claimed in the next item) at the rate ot 3J per cent for cost of transmission of specie to Ceylon. In view of the decision in the next item this one is allowed. 11. Cost of transmission to Ceylon of £17,301 atZi per cent. — I nnd it hard to understand why this item is introduced into the The Dodan- account by the plaintiflfor his agenta. It is stated in evidetwje galla case, by a member of the Firm of Messrs. Wall and Company, that 'the charge was not one actually incurred, but' (he adds) ' not entering into the question ot exchange, we charged what the Supreme Court allowed before, that ia to fiiat defendant wLen his accounts were under scrutiny. The state of facts, however is widely different in the two cases; in that of the first de- fendant's accounts it was held that, as exchange was very high (over six per cent) during the period over which his acuuunts extended) he could be allowed only the cost of transmission of specie then reckoned at an average of 3} per cent ; the prin- ciple being that the least expensive mode of remitting the |.iro- ceeds to Ceylon should be followed. But during the period over which plaintiff's accounts extend, the rates of exchange and cost of transmission of specie are, relatively, the reveras of those in the former period, the average exchange liom lb67 to 1871, being hardly one per cent discount. On the pnaui- pie, therefore, followed by the Supreme Court, i, e., that the least expensive mode of remitting should be adopted, no more can be allowed to plaintiff under this head than the amount of the exchange at current rates from 1867 to 1871, that is to say the cost of exchange actually incurred by him. " The above are all the items objected to by the first de- fendant. The amount of the net proceeds, as estimated by the plaintiff, was lodged in Court on the 22nd March last by the plaintiff's Proctor for the use of the first defendant. The money BO deposited was drawn next day by the first defendant, who, however, reserved his light to question certain items and also bis claim to interest. This latter is, at the trial, explained by his counsel to be legal interest on the money in the hands of plaintiff's Agents after sales of crops and until the money came into first defendant's hands : this claim was not objected to at the trial and it is therefore allowed. It will be ordered that the accounts be referred to such auditors, or an auditor, as the parties can agree on, or failing such agreement, to au auditor or auditors to be named by the Court, for the calcula- tion of the balance of account between the plaintiff and the first defendant after the modifications arising from the foregoing decisions shall have been introduced into the accounts. The first defendant having succeeded in the great majority of the objec- tions raised by him in the present enquiry, is entitled to the costs of this contention, and these will therefore be decreed to him. " There remains the question of taxation of costs of this suit up to the conclusion of it by the judgment of the Privy Council bISTSlCT COURTS. 61 June 27 The biU presented by the first defendant's proctor was in tbe The Do.dan- usual course taxed by tbe Secretary of tbis Court; and t'be ga'la ose. decision of tbis officer is in part appealed from to the Court nnder sec. 1, paT; 40 of the Rules and Orders (civil jurisdiction), the particular instances where the taxation is objected to being detailed in paper marked W. In all others the Secretary's annullations are accepted, even those numerous ones where he has assigned the items as chargeable " against client" and not against the plaintiff. "Item 7i The Secretary allows in this (and other instances not objected to) half lee only, and not whole fee lo the first defendant's second advocate. He reports that this is the usual practice of tbis and other Courts, and refers to Bill in case No. 45,329 as a precedent. The items are however allowed as not being contrary to the rults, and as this case was a very complicated one, and as no sufficient practice to the contrary is satisfactorily shewn to the Court. "Items 9 to 16 and 20 to 21 are properly taxed as against client, as being connected with the amendment ol first de- fendant's answer and for which, therefore, he only should pay. See Rules and Orders, p. 113 No. 9, § 5, 1. Thompson, p. 4734. Item 40 is allowed as against plaintiff. " Items 47, 48 and 66 and 67 : — The Secretary's mode of reck- oning the charge for drawing up briefs viz., at Is, 6d. per folio up to 120, and 9d. for every succeeding folio, is according to the usual practice sanctioned in the Rajawella case. " Item 112, fee to Mr. Adam for valuing the estate, is not properly chargeable against the plaintiff, as tbe valuation was not made upon any order of the Court. Item 116 (£369 odd) is for first defendant's expenses in coming to Ceylon to attend the trial. The plaintiff should not be asked to pay this. The first summons was served on first de- fendant while he was still in Ceylon ; and if he deemed his attendance necessary, he might have remained inCeylon. More- over it is not usual to allow, even in Ceylon, the expenses of a party whose name is not in the list of witnesses. Tbe defend- ant might have beeen examined on Commission in England. "Item 117. £672 expenses of Commission to England as per bill. This Court has no means of judging of the correctness of this charge and no guide by which to tax it. It is suggtsted that it be left to the arbitration of two Barristers, one to be named by each of the parties. "The Secretary will now close his taxation subject to the above orders, omitting for the present the item last mentioned. JCNE 27 I ^2 tAET III.^ / In appeal, (the Queen's Advocate {or appe]] ant, Ferdinands hr respondent,) pek Ctjeiam. — " AflBrmed, except so far as re- gards the plainlifif's claim to be allowed £140 for salary of an As- sistant Superintendent fur two years. We think this claim is to be allowed, and the judgment of the District Court is to be amendeJ accordingly. It appears that the drainage of the estate re- quired attention at this period; that this is a very important matter ; and that the services of a veiy intelligent and active Assistant Superintendent, (such as was the European gentle- man employed), were indispensable. The money thus expended seems tc be an outlay decidedly requisite, and decidedly " utilis," to the estate. "With regard to the other subject matters of the appeal, we find the reasons of the learned District Judge, piven in his judgment, so clear and foil, that it is unnecessary for us to do more than to express onr concurrence with them. There were certain objections to the taxation. So far as they related to matters of principle, we have ourselves considered them j so far as they related to mere matters of detail of charge, we have referred them, as usual, to the Registrtir of our Court. The result is that the real judgment of the District Court is in all respects affirmed, except as to the claim lor tl^e Assistant Superintendent's expenses already mentioned. Each party is to bear his own costs of this appeal. The other costs are to be borne by the plaintiff as directed by the District Court." Adminis- D. C. Colombo, 61760. Plaintiff, as administrator, sued to eject tration. tjig mother and sister of his intestate from portions of certain lands belonging to the estate. The defendants pleaded that they and theiir co-heirs, including the plaintiff, had been and were still in possession, and that a sale was unnecessary. The case came on for argument on a demurrer, that the answer did not disclose a sufficient defence in law, when the District Judge, having specially found that the admin- istrator had failed in his duty, ruled as follows : " An order will therefore be made in the testamentary case, requiring all the major heirs to attend and state whether they desire or do not desire that they should be temporarily turned out of their cottages pending the winding up of the estate ; and, if the majority desire it, then all of them, ifany, andnot the defendants alone, will take care that the plaintiff be evicted with the others, and the administrator required to give out the lands and cottages on lease. In the meanwhile, this case will lay over until those steps have been taken in the testamentary suit. The question of costs in this action will likewise lay over, and will form thesubjectofconsiderationin the audit of the final account as well as in the judgment ultimately to be pronounced herein." DISTRICT COURTS. 53 ) In appeal, per Creasy, C. J. — •" Affirmed. We have carefiiUy examined the proceedings in this case, and we agree in thinking that the administrator has abused his trust. The District Judge points out in his judgment, that he originally refused to grant letters of administration in this case, but that he was overruled by the Supreme Court. We regret the misuse that has been made of those letters ; but we cannot see that, in the judgment then given by us, we acted otherwise than we were bound to act by the law of the land. In the case of Lewis v. Adrian, decided by us in November, 1871, and reported in the Colonial Gazette of 2nd December, 1871, we set out fully our reasons for holding that the English law as to executors and adminis- trators is in full operation in this island, and has been so since, at least, the Charter of 1833.* When an intestate's estate is of very trifling value, we might, in accordance with custom, forbear to enforce the law which requires the taking out of administration. But we could not foUowsucha course in cases like the present, where the assets were substantial, amounting to ^£150, We have no right to set aside the clear law of the land, for the purpose of favoring what we may deem the interest of the heirs in a particular case, and we have no right to deprive the Crown of any part of its revenue. But, though in such a case administration must, (at least if applied for,) be granted, the administrator is always under the supervision of the District Court. He is always to be looked on as a trustee, and he is liable to be con- trolled and made responsible like any other trustee, if he thwarts and violates the purposes of his trust. In the very case referred to of Lewis V. Adrian, while we carefully and explicitly declared the law as to administrators, we treated the then defendant as a trustee thwarting the purposes of the trust, and we, therefore, refused to give her the reversal of the judgment against her to which she would have other- wise been entitled. We follow asimilar course on the present occasion." JuNB 27 D. C. Colombo, 3322. This was an appeal against the follow- Administra- ing order by the District Judge, on an application made by tion. an administrator to be authorised to sell certain immoveable pro- perty belonging to the estate. " Sale allowed, but to be held by the Secretary as auctioneer at the Court house, and to be for cash which is to be deposited in Court." Greaier, for appellant. — The Administi-ator had given security for the due administration of the estate, and nothing in his past conduct justified the implied reflection on his honesty. Besides, to prescribe a cash sale was to ensure the property being sold at a sacrifice. 'See also Staples v. De Saram, D. C. Colombo, 43213. Civ. Min.' July 17, 1867. , , f 54 PAHT III. — July 1 < Per Ceeast, 0. J.—" Affirmed. While we hold that the law is compulsory on District Judges to grant letters of ad- ministration to intestate estates, except where the value of the e-itate is absolutely trifling, we think that we are at the same time bound to support, as far as fairlj possible, the District Judge's power of controlling the conduct of the administrators. We should not interfere with their discretionary exercise of that power, except when it was evident that a District Judge had acted out of mistake, and also that the course directed bj him was calculated to injure the estate. We do not regard the present as a case of the kind. One administrator ofthisestate has misconducted himself, and absconded. The letters of administration granted to him have been cancelled, and the present appellant has been appointed administrator as attorney for the heirs who are absent from the island. The Court may well be vigilant in behalf of the heirs. The sale being by the Secretary of the Court will ensure a bona fide public sale. Otherwise, as auctioneers are no longer required to take out li- censes, any cooly may be made auctioneer for the occasion , and the assets may be jobbed away in a bole and corner sham sale. As for the order that the sale must be for cash, it appears to us that the property is house property in Colombo, estimated at two thousand rupees ; and there is no likelihood of there being a want of cash purchasers for such property at or about such an amount." July I. Present Creasy, C. J. and Stewart, J. Community D- 0. Matara, 26343. In this case the plaintifif claimed 6 buf- of property, faioes and 12 calves, by right of her husband who had died about three years before the date of action, leaving behind a son since deceased. The defendants (mother and sister of the plaintiff's bu=.band) admitted their possession of 5 head of cattle bearing the marks described in the libel, but denied that they were tha property of the intestate. They further denied that the plain- tiff was wife of the deceased, and that he had any issue by her. After evidence heard for plaintiff, judgment was entered for her. for 4 buffaloes and 4 calves which the 2nd defendant in examina- tion had admitted were in her possession. In appeal, Seven, for appellant, contended that, even if the evidence was held to be sufficient to establish the right of the plaintiff's husband to the cattle, it failed to establish the plaintiff's right to all her hus- band's property. No evidence had been led to show that the plaintiff had any issue by her deceased husband ; and, failina DISTRICT COUKTS. 55 issue, the defendants (the mother and sister of the intestate) were entitled to half the property. Per Oee AST, 0. J.—" Af- firmed as to one half in va'ue of the buffaloes mentioned in the judgment of the District Court: the District Judge must settle the question of value. The plaintiff has not thought fit to support the judgment given in the District Court. After hearing the appellant and examining the evidence, the Supreme Court thinks that plaintiff , as wife, was entitled to only one half the property, and the heirs to the other half. There is no evidence that the chile, who is joined as co-plaintiff, is the child of Dingi Appoo and the first plaintiff." JCLT 1 D. C. Matara, 26376. This was an action to set aside a Lgcal age of Fiseal's seizure, the plaintiff claiming the land in question on a majoiity. bill of sale dated 1846, and by uninterrupted possess'on since; and the defendant aseerting that it was the propeity of his judgment debtor acquired by inheritance. The debtor's age was proved to be 30 years, and it was contended that, although under the Mohammedan law he was a major in 1859, yet, by operation of Ordinance 7 of 1865, he did not attain the legal age of majority till 1864, and that therefore prescription had run again'^t him for only 9 years. The Judge (Templer) held that the Ordinance had no retrospective effect, and gave judgment for plaintiff. In appeal, Dias, for appellant, contended that the wording of the Ordinaace distinctly favored the defendant's contention. [Such a construction as yon seek to put would lead to a manifest absurdity, howevar grammatically correat it might be. — O.'J.] Ferdinands, for respondent, was not sailed upon. Per Obbast, C. J. — " AfBrmed. The Ordinance cannot be looked upon aa -retrospective." D. ('. Kandy, S'2439. The plaintiff claimed one-half of a land and Compensation, house at Gampola under the Will of one Appua, while defendant claimed the whole by purchase from Appua's daughter. The house in question had been built by defendant subsequent to his purchase- The District Judge (Oillman) gave judgment for plaintiff as prayed for, holding that defendant, as a mala fide possessor, was not entitled to any compensation for the house. In appeal, Dias, for appellant, restricted his claim to compensation, contending that there was no evidence of mala fide possession on the part of defendant. Ferdinands, for respondent. — Plaintiff was a minor when the house was built : she could not object, and therefore should not he prejudiced in any way. If defendant were entitled to compen- sation for the house, the rents he had received should be set off against the cost of the building. JULT 2 j ^6 Per Creasy, C. J. — " Affirmed, but the case is sent back to be amended as hereinafter mentioned. The Supreme Court thinks it by no means proved that the house was built by a mala fide possessor. It is, therefore, unnecessary to go into the somewhat obscure question as to what, if any, compensation the defendant would be entitled for expenses if the possession had been mala fide. We might on this have had to refer to Voet, lib. vi, tit 1, 36; Grotius, p. 106; Warnkoening, p. 93, and his note thereon, and many other authorities. The plaintift is entitled to recover one-half of the house, but she must pay compen- sation for the value of that half. Per contra in reckoning damages the worth of the land with the buildings must be regarded. It is very desirable that the parties should agree to some amount to be paid, but if they will not, the District Judge must acertain it." July 2, Present Ckeast, C. J. and Stewart, J. Crown land. D. C. Colombo, 58733. The question in this case was the right of the Crown to sell in 1869 to the defendant a piece of ground which plaintift claimed by inheritance from his father, who had originally applied for it to Government in 1821 and made certain payments in respect thereof in 1 845, but who had failed to obtain a grant. Judg- ment having been entered for plaintiff, the defendant, who had pur-i chased from the Crown, appealed. In appeal, Dias, for respondent, on being called upon, contended that the Crown having received from plaintiff's father 5 shillings per acre under the Minute of 1844, had acknowledged his title to the land and its own obligation to issue a grant. If no grant had issued, it was not the plaiutiff's fault. As to the conditions prescribed in the Minute, it might fairly be presumed, after the great lapse of time since 1844, that they had all been duly fulfilled, particularly in view of the fact that plaintiff and his father had possessed since 1821 and had not been disturbed till 1870, after the second sale by the Crown to the defendant. The Queen's Advocate, for appellant, in reply. — The land in ques- tion was waste, uncultivated and imoccupied at the time the action was brought, and as such was to be regarded as CroWn property, under Ordinance 12 of 1840. The fact of plaintiff's father having* appKed in 1821 and made certain money deposits in 1845, was insufficient to create a title, although it might possibly give a right to compensation as against the Crown. Under the Minute of 1 844, the Crown could not be compelled to confer title on every holder of a conditional grant * or * As to the effect of conditional grants and the right of the Crown to summarily resume possession of lands which have never been brought under cultivation, see the judgment of the Supreme Court in C. R. Pana- dure, 13969, Civ. Min., Sept. It, 1872. DlSTKICT COtTRTS. 57 1 -.^^^ 2 ticket of application; and in this particular case, the evidence showed that the original applicant and those claiming under him, so far from entitling themselves to an absolute transfer, had by non-cultivation defeated the very object of Government in the matter of these grants, which was to secure a corresponding increase of revenue by an increase of cultivation. Per Ceeast, 0. J. — " Set aside and judgment to be entered for defendant with costs. This Las been treated in the Court be- low as a clear case of unconditional purchase and sale, of the land between the plaintiff's father and the Grown in 1845, .^o- coiupanied by payment of the purchase money j though, through the culpable neglect of the officers of the Crown, (as supposed by the District Judge,) no formal grant was executed. On ex- amining the facts, the Supreme Court thinks that the case is one of a very different character. There was never any purchase and sale at all, but the plaintiff's father, who had made application in 1821) appears in lS45to have again applied to theCrown, under the minute of the 8th of August 1844. That minute is as follows : — Whereas prior to the advertisement of 11th July, 1833 giants of land were made on condition of paying 1-lOth of the produce, and subject to forfeiture in case ot non-cultivation, and whereas Bueh titles are imperfect and incomplete, notice is hereby given that the holders of such grants who may be desirous to obtain a com- plete title, will be allowed to purchase the same, (subject to a pepper corn rent,) at a fixed price of five shillings the acre, on giving up their conditional grant, provided however that no such title will be given to paddy lands. And whereas that many lands are now held under tictets of application dated prior to 1833, but for which grants have not been issued. It is further notified that holders of land under such tickets will be allowed to purchase so much land aa they have actually cultivated, and to the aliention of which there is no objection at a fixed rate of five shillings an acre, to be held also under the conditions now in force. Any pecsons desirous to obtain such title are required to lodge their application with the Govern- ment Agent, and to pay into his hands the purchase money and re- gulated fees from this date. By His Excellency's Command, P, Anstruihke, Colonial Secretary. Colonial Secretary's OfBce, Colombo, August 8th, 1844.. " Under this minute the plaintiff's father, in order to obtain a grant, was bound not only to bring in a certain sum per acre, but also to piove how much he bad ' actually cultivated,' for which amount only he was to have a grant. Even that grant was not be made, if the Crown had any objection to the aliena- July 2 ( 58 PART III.— ' tion of the land ; and the grant, if made, was to be made subject to a condition for forfeiture in case of non-cultivation. It does not appear that the plaintiff's father ever satisfied the Crown as to his 'actual cultivation' of this land. It appears indeed impossible that he should have done so. According to the evi- dence, the land was never cleared of jungle, and the proof of planting is meagre in the extreme, even after making due allow, ance for the effect of lapse of time in removing possible wit- nesses. Certainly the land, if ever cultivated, was allowed to relapse into a jungle state ; and this circumstance would have of itself invalidated any grant that could have been previously made under the minute of 1844. The learned District Judge quotes a case as 4459, D. C, Uttuankande, Morgan's Digest, p. 155, of which he says that ' it has been decided by the lull Court in appeal, that the mere application for land raises a strong presumption of possession.' On searching for that case in the Court Minutes, we find that it does not in any way relate to our present subject. There is probably an error of the press in Morgan's Digest, and the reference ought to have been No. 2249, D. 0. Negombo, decided on the same day. That case is a decision of a single Judge. It determines nothing as to the rights of the Crown, but it merely declares that when two private persons are disputing with each other about the ancient possession of land which bad been originally Crown land, the party makes out a strong case of possession who proves an appli- cation in his own name for the land, a survey of the land made in consequence of the application, the clearing away of the jungle by his cropping part of the land, and payments by him of the Government renter's share of the crops. Another case cited in the Court below is one reported in Morgan's Digest, p. 85, as No. 83, D, 0. Kumnegala. The learned District Judge, in his present judgment, alludes to that case as a carefully con- sidered judgment of the Collective Court, which establishes that the ■ condition of the land at the date of the passing of the Ordinance No. 12, of 1840,' is to be considered as determining whether the case falls within the enactments of that Ordinance, as to the presumption about waste and uncultivated lands being Crown property. We cannot find that case or any case resem- bling it in the Court Minutes of that period, 18th August, 1853. According to the Report in Morgan's Digest, it was a decision of two Judges only, not of the Collective Court, It was a deoisioa about Chena lands, and as reported is not very intelligible. In any point of view, it would not affect our judgment in the pre- sent case, but we mention it lest we should be thought to assent to the doctrine about the Ordinance No. 12, of 1840, which has been pronounced in the Court below.*' district courts. 59 , . „ July 8 July 8. Present Ceeast, C. J, and Stewart, J. D. C. Colombo, 3627. The facts and law of the case as found by The Mortmain the District Judge (Berwick) are fully set forth in his learned judg- '^''*®" ment which is published in extenso in the Appendix to these Re- ports. The important questions, however, in respect of which the present appeal was taken were — " The validity of Bequests of Land or of the Revenues of Land for the annual celebration in perpetuum of Roman Catholic Solemnities and Festivals j and of other similar Bequests more strictly for Charitable purposes; — and, if intrinsically valid without a Mortmain license,^then the proper application of the Funds when this has been insufficiently defined ; — ^and the mode of executing the Testator's intentions, when either through the omission of the Testator, or any other cause, due provision for this purpose fails." The District Judge, having decided that the Dutch Mortmain Laws were in force in the Island, declared the Bequests for religious uses invalid, but upheld those for cAan'fa J fe purposes and made order for the due administration of the funds arising therefrom. In appeal, the Queen's Advocate (Grenier with him) for the appel- lant, who was the Roman Catholic Bishop ; Dif7s for the heirs benefit- ted by the judgment ; and Brito for the Executor, [The Chief Justice desired to hear respondent's Counsel first.] Bias, for the respondent. — The Dutch law of Mortmain was in full force in the Island, and it was unnecessary to add to the authorities cited by the learned District Judge to show that in the Province of Holland Mortmain laws were in full force at the time this Colony was ceded by the Dutch to the English. [There is no occasion for authorities on that point. The question is whether the Dutch ever brought their Mortmain laws to Ceylon. — C. J.] The law of the Maritime Provinces of . Ceylon was the law of Holland, and the onus was on the other side to show that any particular part of that law was not imported into Ceylon by the Dutch. It was well known that the administration of the possessions of the Dutch in the East was marked by one uniform sys- tem, and the learned District Judge referred to several Batavian Placaats which conclusively proved that the laws of the Province of Holland with regard to Roman Catholics were observed in her East Indian Colonies. There was nothing to indicate that Ceylon had been an exception to the rule. On the contrary, the early Proclamations of the English Government clearly shewed the state of the law during the preceding Dutch Government. The Proclamation of the iSvd September, 1799, after allowing liberty of conscience and the free ex- ercise of religious'worship to all persons in the Maritime settlements, limited that freedom by stating that " no new places of religious wor- ship be established without our license or authority first had and ob- tained." Ti.e reservation of the right of the Crown was quite in T „ ( 60 PART in. — July 8 < Moitmain accordance with the Roman Dutch law, (Voet, 28, 5, 3.) and clearly case. proved that the English Government adhered to the law of Holland against alienation in mortmain without the license of the supreme power. There was nothing in the Proclamation to show that the En- glish had only revived a practice which had fallen into disuse during the Dutch Government : it simply repeated the previous law to pre- vent any possible misunderstanding of the first portion of it which conceded liberty of conscience. Next in order of time came the Re- gulation of iiTth May, 1806. It was intended "for taking oflF the res- traints which were imposed upon the Roman Catholics of this Island by the late Dutch Government." It distinctly affirmed that the Roman Catholics were, by several laws passed under the late Dutch Government, rigorously excluded from many important privileges and capacities, and that though they were not acted upon by the English Government in all cases, they were yet unrepealed. This Regulation was of importance as it shewed (1) that the laws of Holland against Roman Catholics had found their way into Ceylon and were in force during the Dutch Government, and (2) that they had not altogether fallen into disuse during the English Government. The first clause of the Regulation was a mere repetition of what had abeady been conceded by the Proclamation of 1799 ; the second clause admitted Roman Catholics to all civil privileges and capacities ; the third legalised marriages which had taken place according to the rites of the Roman Catholic religion ; and the fifth repealed all laws which contr.idicted the provisions of the Regulation, which, it should be remembered, only dealt with the Roman Catholic laity and had nothing to do with religious establisliments or tneir rights and obligations. That part of the l roclamation of 1799 which enacted that no new place of religious worship should be established without the license of the Crown, was not touched by the Regulation ; and the word " capacities" used in the second clause was clearly insufficient to warrant the contention of the Roman Catholic Bishop, that it was competent for any one of the Churches within his diocese to take and hold real property without the license of the Crown. The obvious intention of tliat clause was to remove civil disabilities from Roman Catholic laymen, and enable them to hold offices of trust or profit which probably they were incompetent to do under the Dutch Government. Then followed the Regula ion No. 5 of the -JSrd November, 1829, which introduced the Catholic Emancipation Act (10 Geo. 4, c. 5) into this Island, but did not profess to deal with Churches or Priests. It had been argued for t!ie Bishop in the Court below, that the Dutch Mortmain laws had fallen into disuse in Ceylon during the English Government ; and the Ordinace No. 2 of 1840 had been re- ferred to as evidence in support of the contention. That Ordiniince, however, had several objects in view, viz. (1) preventing alienation in DISTRICT COURTS. 61 1 ^ > Jolt 8 mortmain ; (2) authorising religious communities to liold land for a Moitnmia limited term without the Governor's license ; (3) .mthoi-ising tliein to '=*'*''• alienate lands already vested in them ; and(4y subjecting such lands to taxation under certain circumstances. It was a comprehensive measure, embracing partly the already existing law and partly several new enactments and modifications of old ones ; and it could not fairly be argued that the mere recital of a law under such circumstances was evidence that that law had not previously existed. The next point made for the Boman Catholic Bishop was founded on the decision of the Supreme Court in Murray's Reports, p. 63. The learned District Judge, had conclusively shewn the inapplicability of that judgment to the present case. The question there was a pui-chase : here, a bequest. Besides, the Judges in that case referred to the Regulation No. 4 of 1806 in support of the statement that the Dutch laws restrict- ing donations, &c., did not appear to have been acted upon by the English, while nothing in the Regulation warranted such an assumption. The Queen's Advocate was not called upon to reply, but stated, in answer to a question put by the Chief Justice, that the Crown had never any intention of disputing the validity of the Bequests which the District Judge had held to be illegal. Brito, for the Executor, would support the contention on behalf of the Boman Catholic Bishop as to the validity of the Bequests in ques- tion. He was chiefly interested in securing a reversal of the District Court order interfering with the rights of the l!Jxecutor to administer the trust tunds. The Chief Justice delivered the following elaborate judgment this day. "In this case the learned Judge of the District Court of Colombo has himself caused questions to be raised as to the validity of certain Bequests in favor of certain Roman Catholic Churches in this Colo^y, and of certain other Bequests for religious and charitable purposes, all more or less connected with the Roman Catholic religion or ritu- al. The most important matter thus brought forward by the learned District Judge for consideration, is whether the Dutch Mortmain laws are in force in this Colony or not. And, as there is an express decision of the Collective Supreme Court on the subject, we should have consid- ered ourselves justified in dealing very briefly with the present rul- ing of the District Judge of Colombo in opposition to that Supreme Court judgment, if it were not that he endeavours to distinguish be- tween the two cases. In order to shew that the same prin ciple, which mrat govern the present case, was determined by our predecessors, we must discuss some of the numerous topics, whicli the learned Dis- trict Judge has introduced and commented on so copiously in his jiidfrnient. We must see what the Dutch Mortmain laws were, and. also, to some extent, what they were not. Almost throughout the f 62 PAKT III. July 8 < Moi-tmrtin judgment of the Court below, the Mortmain laws of Holland are mix- case, ed up with the Penal laws against (supposed) false religions, which the Dutch enacted both in Holland and in their Colonies. The two classes are entirely distinct. The main source of the Mortmain laws in Me- diseval Holland, as in the rest of Mediaeval Europe, was -Feudalism: they were originally enacted chiefly by reason of the desire of Feud- al Lords to keep the lucrative perquisites of their seigniories undimin- ished, and by reason of the desire of Feudal sovereigns to keep the feudal military power of their realms unimpaired. The Mortmain laws are essentially measures of State Policy. The Penal laws are essentially measures of supposed religious duty, of the duty, which rulers considered to be incumbent on them, to repress and to extirpate, if possible, all false creeds and all heresies, and to maintain, by the strong arm of the secular Magistrate, what those rulers deemed to be the one true creed, and the only orthodox ritual. Besides erroneously blend- ing the Mortmain and the Penal laws, the learned District Judge, almost equally erroneously, mixes up the Mortmain laws with the old Roman laws on the subject of Associations, " Collegia." Now we take it to be perfectly certain, that the origin and the governing principle of the old Roman laws about " Collegia " came from the jealous dislike with which the Aristocrats and the Emperors of Rome regarded all combi- nations of any number of the lower classes, as likely to become Politi- cal clubs (Hetserise) and nurseries of democratic faction. Moreover, there is explicit and abundant proof that Justinian, and other Christian Emperors before him, expressly gave full power to the Church and all charitable institulions to receive and hold property; and thus exempt- ed ecclesiastical and charitable institutions from the law which forbade the acquisition of property by associations, if unlawful associations, " illicita collegia'' The doctrine of the learned District Judge on this subject will be found at page 4, column 1 of his printed judgment. He says, respecting the ancient statutes of Mortmain, that "they were founded on the Justinian Code ' Collegium, si nullo privilegio subnixum sit, hereditatem capere non posse, dubium nonest;' a law of Hadrian as old as the 2nd century. Code, Lib 6, tit 24, sec. 8; and the doctrine of prohibited colleges is laid down in the Digest, 47, 22, 1. Mortmain was therefore an essential part of the Common Law of Holland." Suoh are the words of the learned District Judge : and as this matter of the old collegia, and their capacity or incapacity to take by bequest or other- wise, come first in chronological order of the subjects which we have to deal with, we will proceed at once to consider it. The ori^n, which we have already mentioned, of the old Koman laws about collegia, namely, the iealousy with which the ruling powers regarded all com- binations among the lower orders, is pointed out by almost every his- torian who has dealt with the subject of Imperial Rome. Gibbon, vol. 2, note to p. 226; Arnold, in his Essay on the later Roman His- DISTRICT COURTS. 63 \ j^^^ g tory, vol. 2, p. 441 ; Merivale, in his History ol the Romans under the Mortmain Empire, vol. vii, p. 263 ; all refer to it. Perhaps an authority more con- (^use. genial to a legal atmosphere will be that of Matthseus de Criminibus, title XV, " De CoUegiis et Corporibus," c. i. The " Prerogative " instance of this jealousy, is the conduct of the Emperor Trajan in re- fusing to aHow the institution of a self-organised company of volunteer firemen at Moomedia in Bithynia, a city which had sufiered much by conflagrations. The Emperor objected on the express ground that he did not like the principle of association, as it was sure to lead to political clubs. His words are " Quodciimque nomen ex quacunque causa dederimus lis, qui in idem contracti fiierint, Hetaeriae, quamvis breves fient." It was Trajan's friend and successor Hadrian that issued the edict cited by the learned District Judge, that a collegium could not take by will, unless it was aided by some special privilege. Hadrian's successors tempered materially the rigour of this prohibi- tion. They declared that a "collegium" might take by bequest, unless it was an unlawful association. See the Digest, book xxxiv, tit. V, sec. 20. "Cum Senatus temporibus Divi Marci permiserit col- legiis legare, nulla dubitatio est quod si corpori, cui licet coire, legatum sit, debeatur: cui autera non Ucet, si legetur, non valebit, nisi singulis lecetur." The Christian Emperor Marcian, by his Institute cited in the Digest, book xlvii, tit. xxii, sec. 1, authorized religious " collegia." " Eeligionis causa coire non prohibentur : dum tamen per hoc non fiat contra Senatus-consultum, quo illicita collegia arcentur." Matthseus follows Bynkershoek in understanding the special Senatus-consultum mentioned in this law, to be that which was passed in the time of the Commonwealth against the societies of the Bacchanalians which out- raged all public decency and morality. The Emperor Constantine the Great authorized all people to bequeath property " sanctissimo Cathol- ico venerabilique concilio." See the Code, book 1, title 2, sec.'l. Peckius, in his treatise " de Amortizatione Bomorum," c. v, points out that this means any " Ecclesiasticum Collegium." The Emperor Justinian is still more explicit. By the 46 th section of the 3rd title of the same book of the Code, he compels heirs to execute the be- quests of testators who have made any pious dispositions of their pro- perty. Subsequent passages of the same section show that Justinian oomprised under the term " Pia Dispositio," legacies for church repairs, legacies in favor of monasteries, almshouses, hostels for way- farers, hospitals for the sick, children's hospitals, and generally that he meant to include all dispositions for the good of pious societies, at any rate for those that were not such associations of the lower orders as the law prohibits, " coetibus piis, aut omnino non prohibitis ex plebe collegiis." Finally, there is the seventh Novella of the same Emperor, coUatio 2, title 1, which most solemnly confirms ecclesiasti- cal bodies in their possessions, and forbids the alienation of such possessions. It includes in its provisions not only bishops, but the T o f '^^ PART III. July 8 '. Woitiiiiiin heads and managers of chaiitable institutions of all kinds (apparently) case, tiigy, known. It denounces every breaker of its provisions, whether " xenodochum, aut ptochotrophum, aut nosocomum, aut orphanotro- phura, aut brephotrophiim, aut gerontocomum, aut monasterii . virorum, vel mulierum abbatem vel.abbatissam, aut quemlibet omnino prsesidentem venerabilibus coUegiis." After reading these portions of the " Corpus Juris" (and others to the same efiect might be cited) It seems impossible to believe that the Rom^n law, such as the people of Holland and other European countries received it, treated gifts or bequests to x'eligious or charitable bodies as illegal. Unquestionably his orical proof may be found that some of the Byzantine Emperors endeavoured to repress the increase of the riches of the Clergy ; but their edicts for this purpose were not adopted or embodied in the great system of Roman Jurisprudence, as arranged and settled by Justinian : and it is this, the Roman law as settled in Justinian's time, which we have to look to in ascertaining the elements and the foundations of Roman Dutch law of after ages. We must go on to many centuries after the formation of the states of Mediaeval Europe out of the ruins of the old Roman dominions, before we come to regular Mortmain laws. In the 12th and 13th centuries. Sovereigns began to show practically by legislation their jealousy of the vast acquisitions of landed property, which the ecclesiastics had been gradually forming. In England, Magna Charta first restrained them. The Mortmain Acts of Edward the first were more explicit and rigorous. The meaning of the word " Mortemain", which we find under the variations of "Manus Morta," "Amortissement," " Mortifica- tion," and the like in the mediaeval Jurisprudence of Western Christ- endom, is thus explained by Lord Coke. " The lauds were said to come to dead hands, as to the lords, for that, by alienation in Mortmain, they (the lords) lost wholly their escheats, and in effect their knights' ser- vices for the defence of the-realm, wards, marriages, reliefs and the like ; and therefore it was called a dead hand, for that a dead hand yieldethno service." We will add to this the modem authority of Lord Brougham, who says in Giblett v. Hobson, 3 Mylne and Keen, 517, that the obiect of the Mortmain Acts was to prevent land from being placed extra commercivm, upon the feudal principle of protecting the lords againsthaving tenants who never died. We believe also that there is great force in the reasoning of Dean Milman (Hist. Lat. Christian- ity, vol. 5, p. 182) that " one of the objects sought by the Mortmain law must have been that the Crown should be less dependent on ec- clesiastical retainers in the time of War." Certainly other motives co-nperateil with those which have becnjustmentioned, in causing and in extending the operation of Mortmain laws. There was a desire to prpvent ecclesiastics from prevailing on dying landholders to will away the family properties. Duke Philip of Burgundy's rescript of tjie year 1446, (cited by Vott, page 249) is a striking proof of DISTRICT COOUTs. 65 I -r > July 8 this. And laymen in general, though orthodox Roman Catholics, Mmtmain regarded with growing dislike the vast and c nstantly increasing ter- <^"^**- ritorial opulence of the clergy. But the feudal feelings which have been described, were the miiiu, the primary principles on which Mort- main laws were founded. We are accustomed to think of the Dutch, as they appear in modern history, as an eminently commercial nation, justly renowned for maritime enterprise, but by no mc£»ns conspicuous for martial or chivalric characteristics. But we must remember that long before the Dutch were independent, Feudalism had grewn up in the Netherlands as in the rest of Western Christendom. The Dukes of Burgundy of the house of Valois, and the Austrian Archdukes of the house of Hapsburg, who became for some centuries the rulers of those provinces, were genuine feudalists in dominion and in spirit. Above all, the Emperor Charles the Fifth certainly valued military power, knightly ascendancy, and royal privileges, as highly as did any of our Plantagenets : and the Emperor Charles the Fifth was the law- giver who enacted the principal Mortmain Statute of Holland. It ■ is set out in Voet, book 28, title 5, section 3. It forbade the acquisi ■ tion by monasteries or other ecclesiastical ' bodies of immoveable property, or rents, or the like, in any manner, by means of wills, or donations or contracts. " Cautum ne ullo modo, ex testamentis, donationibus, contractibus, monasteria aliaque corpora ecclesiastica acquirant immobilia aut reditus aliaque similia, qute immobilibus accensentur.'" The subsequent Dutch legislation of 1592 and 1655, was a mere developement of this primary Ordinance. The develope- ment was far from immaterial, inasmuch as it brought moveable as well as immoveable property within the scope of the Mortmain law. But Voet describes the legislation of 1592 and 1655 as not entering on any new path, but as keeping in the footsteps of the Emperor Charles. " His Caroli Quinti vestigiis inhaerentes." Indeed on this point the learned District Judge says, (page 4 of his printed judg- ment) that "the Edicts of 1655, though specially directed against Roman Catliolirs, were a mere special developement of the old statutes of Mortmain, enacted by the Dukes of Burgundy and the Emperor Charles V of Holland, long previously.'" The case is now ripe for us to consider, whether the decision of this Court in District Court, Batticaloa, 9523, is a decision bearing on the present case, so far at least as the question of Mortmain law is concerned, and whether, as such, it ought to have been acknowledged as a binding authority by the Court below. We answer these questions in the affirmative. In that case a landowner had sold and transferred, for a sum of money mentioned in the Deed, a piece of land to the Church of St. de Croos ot Batticaloa. The plaintiff was the Presiding Rimian Catholic Mis- sionary at Batticak)a and Manager of this Church and property July 8 { *^^ ^^«^ "'•- Mortmain thereof. His title was disputed ; and the objection mainly urged was CISC. ti^at there was no Trustee named in the Deed. But the whole question of the validity of the contract came before the Court ; and in the considered judgment of the Collective Supreme Court are the following passages. " The Supreme Com't is of opinion that, according to the prevailing law and usage in this Colony, deeds in this form ad pios usus are valid." " The statutes of Mortmain do not extend to the Colonies of Great Britain ; and the Dutch Laws restraining donations of this description do not appear to have been acted on or enforced by the English Government in this Island." The learned District Judge of Colombo says, that the Batticaloa case is difiereut from the present one, because in that case the Church took by pur- chase, whereas here the claim is by bequest. But the Ordinance of the Emperor Charles V which is, as we have seen, the pith and substance of the Dutch Mortmain law, forbids ecclesiastical bodies to take by bequest, by donation, by contract or by any other -method. The subject of the Dutch Mortmain law's applicability to this Colony was fairly before the Supreme Court in the Batticaloa case ; it was carefully considered, and received a full adjudication. We ourselves should hesitate long before we over-ruled a considered and collective judgment of our predecessors : and we should be at least equally disinclined to sanction its reversal by an inferior tribunal. We have been led so far into the consideration of the present case, that we shall now complete it. We have dealt in chronological order with the old Roman Laws about Collegia, and with the Mortmain laws, proper- ly so called. Thirdly come the class of laws which we have called •' Penal laws," enacted in Holland during and after the war caused by the Reformation ; and by which the reformed Hollanders strove to extirpate Popery from their territories, even as Philip H, Alva, and other Roman Catholic statesmen and soldiers had previously striven to extirpate Protestantism. Toleration was almost unknown in those ao-es. If hinted at, it was regarded as a criminal feeling, which, showed the man who indulged in it to be at heart an infidel. The Dutch had embraced the tenets of Calvin, and with them his fierce hatred of Roman Catholics, whose ritual it was thought as sinful to tolerate in a truly Christian land, as it was sinful in the Israelites of old to tolerate the practices of Canaanitish idolatry.' To use the words of Froude, " Fury encountered fury, fanaticism fanaticism, — and wherever Calvin's spirit penetrated, the Christian world was div- ided into two 'armies who abhorred each other with a bitterness ex- ceedino' the utmost malignity of mere human hatred." Hence, and not from any motive connected with feudalism or political economy, came the penal legislation in Holland itself against the Roman Catholics, and also ihe separate penal legislation here in Dutch Cey- lon against the exercise of the Roman (Jatholic religion, against har- blStRlCt COtlRTS. 6V f July boUring tlonian Catholic Priests, and other matters mentioned in the Mortmaia District Court judgment. It has been argued before us, that those '^**^' local penal laws are to be regarded as confirming and extending here the old Dutch Mortmain laws. We do not think this. On the contrary, the very fact of this special legislation against Roman Catholics in Ceylon, shows that the ecclesiastical laws of the old country were not considered to be in operation here. But unquestionably these, laws of the Dutch in Ceylon, whatever may have called them into existencei would, so long as they existed, make illegal all bequests, donations and transfers, by contract or otherwise, in favor of Roman Catholic establishments. The analogy of the disabilities of the old " lUicita Collegia" would apply here, though the matter may be rested on the broad general principle that dispositions in favor of what the law has prohibited are in themselves illegal > But we consider that all these Dutch Penal laws against the Roman Catholics have been repealed under the English Kule here. Soon after the English obtained poi-session of the lately Dutch territories appeared the Pro- clamation of 1799, which in its clauses respecting religious liberty breathed the full spii-it of the justly praised Cornwallis Regulations, established five years previously in British India. The words of the Proclamation of 1799 that bear on our present subject are as follows : "And we do hereby allow liberty of conscience and the free exercise of Religious worship to all persons who inhabit and frequent the said settlements of the Island of Ceylon, provided always that they quietly and peaceably enjoy the same without offence or scandal to Govern- ment; but we command and ordain that no new place of Religious Worship be established without our license or authority first had and obtained." The pledge here given to allow liberty of conscience and free exercise of religious worship to all persons quietly and peaceably enjoying the same, was solemnly repeated by the Ordinance of 1835. The Roman Catholics have also special guarantees that, under British rule here, they are subjected to no penal liabilities and to no civil dis- abilities on account of their religion. They have these guarantees in the Regulation 5 of 1829, expressly declaring that the Act of 29 G. IV, c 7, (commonly called the Catholic Emancipation Act) extends to Ceylon. They have such guarantees more amply set forth in the Regulation 4 of 1806, which was by no means nullified by the Re- gulation 5 of 1829, and which retains its beneficial effects so far as regards its creation of rights and its abrogation of old penal laws, notwithstanding its being included in the recent Ordinance 5 of 1869. See especially section 1. The Regulation 4 of 1806 deserves to be cited in extenso. It is as follows : A Regulation for taking off the restraints which were imposed upon the Roman Catholics of this Island by the late Dutch Government. Passed by the Governor in Ceylon, on the 27th of May, 1806. It being His Majesty's most gracious intention, that all Persons, who in- July 8 68 PART III.- Mortinain habit the British Settlements on this Island, shall be permitted liberty of case. conscience and the free exercise of Religious worship, provided they can be contented with a quiet and peaceable enjoyment of the same, without giving offence to Government. — And it appearing, that the Roman Catholics, who are a numerous and peaceable body of His Majesty's Subjects, are, by se- veral laws passed under the late Dutch Government, rigorously excluded from many important privileges and Capacities. And that, altho' these Laws have not been acted upon in all cases by His Majesty's Government, yet, that they are still unrepealed, and a cause of anxiety to those who profess the Catholic Religion, The Governor in Council enacts as follows. First. The Roman Catholics shall be allowed the unmolested profession and exercise of their Religion in every part of the British Settlements on the Island of Ceylon. Second. They shall be admitted to all Civil privileges and capacities. Third. All Marriages between Roman Catholics, which have taken place within the said Settlements since the 26th of August, 1795 according to the rites of the Roman Catholic Church, shall be deemed valid in Law, altho' the forms appointed by the late Dutch Governmennt have not been observed. Fourth. This Regulation shall take effect on the fourth day of June next, that day being His Majesty's Birth Day. Fifth. Every part of any Law, Proclamation or Order which contradicts this Regulation is hereby repealed. The second and the fifth clauses of this Regulation are the most important. That part of the second clause which admits the Roman Catholics to all " capacities" appears to us to be decisive of the question. A "capacity" for taking and holding property is a, " capacity" according to both law and common sease. If this Regu- lation only meant to exempt the Roman Catholics from penalties for exercising their religion here, the second clause must be looked on as superfluous. The first clause had already accomplished that object. Indeed, in that view,, the whole Regulation is a superfluity, as doing what had already been done by the Proclamation of 1799. We now come back to the Mortmain Acts proper, disentangled from the old laws about " Collegia illicita," and the comparatively modern Penal laws. We have now to deal with the general question " did the Dutch colonists of Ceylon, who established themselves here between 1638 and 1 658, while they brought with them, as they undoubtedly did, the general Roman Dutch Law then prevalent in Holland, bring with them this portion also, — the Dutch Mortmain law of the Emperor Charles V, and its developements by the Edicts of 1655? The recent case of Tkurburn v Stewart before the Privy Council, reported in Vol. VII, Moore's P. C. C, (n. s.) p. 333, shews that there may be a question in our Courts as to what parts of the Roman Dutch Law were introduced by the Dutch settlers in. a Colony ; and also that the question is to be considered in the same manner in which si- milar questions have often been dealt with with regard to British colonists and with regard to questions of English Law. In Thurbum v Stewart, the question was whether'the Placaat of the Emperor Charles V of October 1 540, by which the claims of wives under marriage settlements DISTRICT COURTS. ^? I T Y 8 were postponed to the claims of creilitors, is or is not in force at the Mortmain Cape. The Judicial Committee held that this Plaeaat had been in- '^^''^' troduced and was in force at the Cape : and they held this, having regard to the facts that the law in question affected commercial matters, that the Dutch were a commercial nation, and that their settlement at the Cape was mainly for commercial purposes. (See p. 380.) Their Lordships found also that the assertions made before them, that this Plaeaat hud not been observed practii;aUy in the Colony, were wholly unsupported by evidence They had also proof that the Supreme Court at the Gape had, in a case decided in 185«, express- ly adjudged the Plaeaat to be in force in the Colony, and that from that judgment there had been no appeal. How different are the circum. stances of the present case ; except that the Colonists at the Cape and at Ceylon are of the same commercial stock. The law in question here, the Mortmain Law, is one hardly, if at all, connected with commercial matters. If it be said to be natural for traders ta wish that land should not be placed extra commercium, the answer is that the locking up of land in an old European country where the territorial area is small relatively to the amount of population, and is continually becoming smaller, is a very different matter from locking up portions of land in a new Colony, where land is abundant and is really the cheapest thing in the market. We cannot see that in this respect the case of Dutch Colonists differs at all fi-om the case of English Colonists ; and it has been repeatedly held that the English Mortmain Acts do not extend to any of our Colonies, whether settled or ceded ; and this because, in the words of Sir William Grant, " the object of the statute of Mortmain was wholly political. It grew out of local circumstances, and was meant to have merely a local operation.'' These words are taken from Sir William Grant's judgment in the Attorney General v. Stewart, i Merivale, 143. An attempt was made, in the late case of Whicker v. Hume, House of Lords Reports, vol. 7, p. 124, to procure the overruling of this case ; but the House of Lords distinctly adopted and upheld it. See also on this subject the judgment of the Privy ( ouncil delivered by Lord Brougham in Mayor of Lyons v. East India Company, 1 Moore's P. C. C, p. 175, If we look to the spec al facts of the twocases, we find here just the converse of the evidence which induced the Cmirt to regard the Plaeaat of Charles V as in force at the Cape. There, a judgment ., of the Cape Supreme Court in favor of the validity of the Plaeaat was cited ; and there was nothing to weigh against it. Here, the sole decision of our Supreme Court, that in the Batticaloa case, is express, that no Mortmain laws exist here. Above all, we have the iiTefragable proof given by the Ordinance 2 of 1840 of habitual, long- continued, positive and intentional acts, by great numbers of the com- munity, which would have been direct violation of the Mortmain laws, supposing such laws to have existed. The recital of the Ordinance 2 of 1840 says, inter alia " whereas very extensive tracts of land through- Jutir 8 to PAtlt lit.-- Mortmain out this Island are in the. possession, by succession-, purchase or gift of case. Religious communities." It is idle to discuss how or wherefore this Ordinance lost vitality, for want of Royal recognition within the ap- pointed time ; or what particular statesmen thought aboiit it. The sole fact is all important, that it did once come into legislative existence, and that it contained the recital b v the legislature which has just been read. Not a single instance has been produced, nor do we believe that any instance could be produced, of any human being in this Col- ony being proceeded against, civilly or criminally, for the breach of Mortmain laws. Not a single specimen of license of amortization granted by the Crown is forthcoming. Nay, though in this very case the Crown Offi cers have been noticed to defend the rights of the Crown, they take no action : the Crown disclaims its supposed privileges of licensing, it ignores this imaginary branch of its Prerogative, We think also, that we have a right to take in aid our own knowledge of the affairs of the land which we live in. Certainly we may take judi- cial notice iBWacts which may be.«,scertained from our own records. We know judicially that there have been disputes and cases, almost infinite, as to rights of rival parties under grants and bequests to reli- gious institutions : but we never before the present case heard the general validity of such grants and bequests called in question save in the Batticaloa case, which resulted in a judgment affirming the validity of such transfers. We have no hesitation in deciding that neither^ the Dutch nor the English Mort- main laws ever came into force in Ceylon : and we have already decided that the Dutch Colonial Penal Laws against Roman Catholics here have been repealed. It follows, that the whole of this order of the learned District Judge of Colombo is to be set aside, except so far ss it adjudicates against the claims of certain heirs under the in- tended entail by Clara Fernando's parents in the Will of 1 832. On this matter, and on the questions of prescription connected with it, we agree with the learned District Judge. We adjudicate, generally, that the bequests to the Churches, and the other dispositions of property for religious and charitable pm-poses mentioned in the case, are substantially legal and valid. Some of them may be at present prac- tically defective for want of Trustees or of proper schemes of Trus- teeship. We think that we had better make no order on these mat- ters, without hearing the express wishes ot the parties interested. We make it, therefore, part of this judgment, that, any party interest- ed is to have the right to apply further to this Court, and to suggest the names of Trustees and schemes of Trusteeship. Any order made on such application is to be Ireated as part of the present judgment. We also reserve Uberty to the Executor to make application to a Judge of this Court, under section 1 1 of the Property aud Trustees Ordinance, 1871. None of the parties is to be blamed for the stirring of this question : none therefore will bear more than his own costs." DISTRICT CJURTS. 71 fjuLT 8, July 8. Present Ceeast, 0. J, and Stewart, J. D. C. Colombo, 58520.— The facts of this case and the ques- The Wolfen- tions of law decided in the Ooart below, are fally explained in dahl Church tlie following judgment of the learned District Judge {Berwick). ^^^^' This case is so complicated that it is not easy to state it con- cisely ; and for distinctness it will be necessary to divide it with respect botb to the parcels of land and the several defences, after a very brief summary of the origin and nature of the plaintiff's claim. One Abraham de Silva died in February 1850, ^Pter having executed a Last Will in the following terms : *' After the death of me and my lawful wife, Anna Christina Corea, all the moveable and immoveable property with which the Lord has blessed me shall devolve on my son Johannes de Silva, and when the issue of my son becomes extinct any pro- perty that is in my name shall belong to the Wolfendahl Church,'' The whole of the lands in question belonged to the joint Matrimonial Estate of this Testator, Abraham, and his wife. His son Johannes died leaving a widow, but no issue, on 14th May, 1866. Abraham's widow died on 29th November, 1868, after having mortgaged her interest (which would be a moiety of the Matrimonial Estate) to the Ist defendant, Mathes, with certain provisions for payment to " the Charity Fund of ihei Wolfendahl Church" of the balance of the proceeds of the sale or appraised value of the mortgaged property, after discharge of the mortpliecl for, dahl Church against the heii's of the persons condeamed who die before the execution" (Btiglish translation, p. 656 ;) and see also Vatiderlin- den, p, 425. In England, the rale seems to be the same with a difference. For although Baron Parke, in his judgment in ElUi V. Griffith, 16 M. all'd W. 109, and 10 Jurist, p. 1015 says, " it is Clear that, when a defendant dies after a writ of fi. fa, has been issued, the mandatory part of which directs the Sheriff to seize the goods and chattels of the defendant, whatever goods and chattels he had at the time of the teste of the writ [when he was alive] may be seized in the hands of his executors, exCfept bo fur as the Statute of Frauds has effected an alteration in favar of purchasers" ; — he afterwards shews that the rule is just the I'e- verse when the teste of the writ was after his death, and cites for this Thwo'nghgood's case. The Dutch Law required in all cases that the defendant should be ^ersowaZZy charged, to satisfy tlj« judgment within a certain time or to point out goods to satisfy it, before execution could be execwted against either person or property. " The first step in executi'on, (says Vander Lindm,) is Sommation, i. e. a summons in writing served by the Marshall oa the defendant, calling on him to comply with the" sentence withia 24 hours." {Henry's Vander Linden, p. 484.) See also VanLeew wen's Commentaries, English translatioB, p. 662, and Lm-eni'a Civil Practice, p. 43 § 1. Similarly, our local rules in force at the time in question required that "m ewrj^ case of execution against property" the Fiscal should require the debtor to pay the amount of the writ or to point out and surrender sufficient uii- claimed property." The only difference (which was not oae substantially in principle, but only in detail) between ordinary and Farate execution under Dutch plsequentl^, and tbat it was the daty'of the plaintiff in the case (*li«Loan Board) to 'have made the deceased debtor's representatives parties to the .prooeed-" ings in his rodm. Such an irregularity is not cured by the presumption troul exercised by Government — the Public Authority— over the affairs of the Wolfendahl Church even in English times ; and it only remains to cite similar evidence, which, while it accu< mulates proof to the same effect, is now especially noticed in ooa« nection with the public and official functions of the Consistory (e) IMd, p. 15. (/) Ibid p. 41 and 30. Cg) Letter from the Consistory, 3rd September, 1804. Ibid p. 67. Minutes of Meeting of the Consistor;, 24th September, i7S7, and 10th January. 1799 (Ibid p. 36.) Letters from Secretary of Govern- ment to Consistory, aSth February. 1803. (Ibid p. 32.^ (fe) Ibid p. 25. (i) Ibid p. 67 (3rd September, 1804.) IS) Ibid p, 69 (Copy Commission under the seal of the Colony dated 1812.) (fc) Ibid p. 67 (March 1805.) (I) Colonial Secretary's letter, 16th May, 1805. Ibid p. 68. (m) air Colin Campbell's Despatch already cited. Ibid ?■ 74. Minute of Consistory Meeting, 20th June, 1776. (Ibid p. 31.) (m) Letter to Chief Secretary to Oovernmeut and hw reply, 2SrO and 28th February, 1803. Ibid p. 31 and 32. SlSTElCr C0UET3. 87 Jju^y 8> ts Adifiiflistratov of the TvbUc Poor Fund or ' Deaconie,' ailso The WoUen- bowever subject to the controul of Government. In 1758 the dahl Church 'Consistory address the Dutch Gavernor, suggesting means for the improvement of that fund and request His Excellency's in- structions. The Governor replies and, inter alia, fixes the pay- ments and conditions on which corpses may be interred within the Church : the payments are to be for the benefit of the ' Dea- conie' ; the conditions are special permission to be asked and granted in each case by the Governor ; — and similar provisions were made in 1795 by a Resolution of the Council of Ceylon for the benefit of the Deaconie fund (o). In January 1803, by the d'esiie of the English Government, the funds of the Deaconie (Poor fund) and the Leper Hospital with the books and papers relating thereto were delivered over to a body called the " Committee of Supervision" (jp). Previously the [Church] collections and burial charges went to the General Poor Fund of the Giavets, which were administered by a Court (now by the Cutoherry) composed of the Deacons of the Consistory (g-); Fnquestionably at the present day the interference of the Civil Government with the internal afi'airs of the Wolfendahl Church and the Colombo Consistory has slackened;pr become only nom- inal, if it exists at all : and unquestionably also the affairs o£ the General Poor of the City are not now administered by it, (nor for that matter by the Government either) bat it seems to ma that in point of law there is nothing in these facia which has h-ad the effect of either formally or by legal implication destroy- ing the public character and status of that Corporation which have been so abundantly illustrated : and it does still possess a fund from which the poor, if not of the City generally, at least of the Congregation, are maintained or assisted, aad that fund must be considered in the light, to some extent, of a con- tinuance of the fund which ever since the establishment of the Consistory has been administered by its Deacons. Whether or not, either by the operation of a tacit law of Disuetude, or of recognition by the State of other Church Communities, and obiefly in virtue of the legislative enactments of 23rd September, 1799, 4 of 1806, and 5 of 1829 this may or may not have ceased to (o) Ibid p. 3b. (p) Minutes of Consistory Meeting, 4th February, 1803. Ibid p. 32. Letter from President of Consistory to Government, 18th May, 1821. Ibid p. 12, 13. 1(2) Ibid p. 24. July 8. ' ^^ ^^^^ ™-- ,.} The Wolfen- bear the character of an exclusively established Chnreh (that is dahl Church ^^ g^y established by law) it is unnecessary for the Court to Bay in its present judgment ; but I consider that no answer which could be given to that q.uestion would derogate from the legal- rights of the Dutch Reformed Church in Ceylon or of the Colombo Consistory in the acquisition of property,, rights onoe acquired and never either abdicated by themselves nor formally witbidrawn by the Legislature, Finally it may be observed that as by the Civil Establishments Ordinance 1 of 1871 the salary of the Minister of the Wolfendahl Church ia paid by the Civil ©ovei'nment,. he is therefore a Pviblic Servant and his Church a Public Institution,, recognised and sanctioned and pro tantoi maintained by the Legislature under a very recent Act :. — a ciiv eumstance additional to the I'ecognition,. sanction and mainte-* nance guaranteed by the Dutch Legislation, by the Treaties of Capitulation, and by the acts of intimate controwl and govern- ment exercised by the Supreme Public Authority under the- English rule. Its peculiar and intimate relations with the Civil Power and with the State tefere,. at and sinee the British acces- sion make its legal rights stand (I repeat} on a basis remarkably distinct from those of any other religious Community in the maritime provinces,, and are the special grounds of the present decision : but I make this observation without the least purpose of prejudging the legal rights and capacities of other religious Communities,, whether Christian or Unchristian,, which must he- decided as they arise,, and which may probably req.uire to be decided on different and more general grounds. What has been said makes it needless to discuss the argument of Counsel foir the plaintiffs, that the legislation of Holland on this subject was only local in its nature;, or,, if otherwise, that it had by long Disuetude ceased to be law here. The plaintiffs,, the Consistory of the Wolfendahl Church, are, or at leiist include, the Deacons of it, the officers specially charged with the care and support of the poor immediately connected with the administration of this Public Institution, and are therefore rightly the suitors for this bequest : which bequest is now declared valid, being a bequest to an Institution which for the reasons given is, I think, one ' administered hy public authority in the sense in which that expression is used by the Dutch Lawyers in such a case- The opinion in the last paragraph further disposes of the objec- tion taken by the defendants'' Cuuinsel at the further hearing on DISTEICT COURTS. 89 f J-pi,Y S. 18th April, founded on the alleged want of title in the plaintiffs The Wolfen- to represent the ' Wolfendahl Church' in the present suit (r). dahl Church case. II.— As to the Parcel A 2 and the claim of Zrd defendant. The other portion of A, maiked A 2, is in its turn attempted to be split into two, whereof the 3rd defendant claims the one undivided nioioty as Attorney of Sophia Dias» the widow of Johannes, and ascribes title in the other moiety to Johannes' mother as his heir, or rather to the Snd defendant as the ad- ministrator of her Estate. The latter has been sued but has- not pleaded. This claim depends on the validity of the purchase of the whole parcel A by Johannes under the proceeding in Parate execution. It having been held that those proceedings were invalid, both for fraud and for inherent defect in essential form, and that Johannes therefore took no title under them^ it follows that his widow and mother could take no title under him, and in this and all other respects A 2 must follow the judgment as to A 1. It will therefore be decreed that the whole of the Testator's interest in the parcels A 1 and A 2, that is ta say an undivided moiety of the whole of A, is the property of the plaintiffs, as representing the Wolfendahl Church, who are en- titled thereto under the Will of Abraham de Silva i— the other tindivided moiety of A being the property of his widow at the time of his decease by virtue of the matrimonial Communia Bonontm. The claim of the 3rd defendant,, personally or as at- torney of Johanna Sophia Dias, to any part of the lands in liti- gation in this suit will be dismissed. III. — As to Parcel B, claimed by 1st defendant. This is claimed by the Ist defendant by purchase in execution on a judgment obtained by him against Anna, the Testator's Widow, on a Bond and mortgage executed by her in his favor on &th June, 1867, by which she mortgaged this particular parcel with certain special clauses in the deed pioviding tor payment of the surplus value of the land to the ' Charity Fund' of the Wolfendahl Church r after discharge of the Bond debt the land to be appraised by 6 persons and sold for this purpose, with right of pre-emption to the creditor at the appraised value. Now, the first point to be (r) The plaintiffs on the record were "The President and Mem- bers of the Consistory and the Trustees of the Dutch Wolfendahl, Church, genevallj known as the WolfendahlChurch.'" J^tT 8. ] ^<^ PART tn The Wolfen- remarked on as to this parcel is that Abraham's Wide* had ha cas*^ '^'^"'^"'^ title to more than an undivided moiety of it (which she had by virtue of the Commhunio Bonorum) and the mortgage and sale in execution is void for the excess, which for the reasons al- ready given belongs to the plaintiffs as devisees under Abraham's Will, and will be decreed to them accordingly, and the 1st de- fendant's claim thereto dismissed. The sale under the Writ in case 54961 will be eancelled pro tanto. The next point that requires observation is that, although the 2nd defendant in his answer professes to accept an offer of the plaintiffs for appraise- ment of Lot B and to pay them the value thereof minus the amount of the widow's debt to him, — the plaintiffs in fact have made no such offer. Tbey prayed in their libel for appraise- ment not of B only, but of the whole of the widow's moiety in all the lands, which is quite another thing, and therefore the Court is not able to arrive at the summary settlement which would have saved it so much trouble in unravelling the rights of parties. Again, the plaintiffs, when so praying, evidently considered they were only praying for implement of the clause in their favour contained in the widow's bond to 1st defendant t • — but the bond being now before the Court cmd also the survey, in- spection of the two together shew that the plaintiffs were mis- taken in this supposition, — for the Bond only affects the parcel B and not the whole land. The Court must therefore proceed to determine the legal rights of parties. These would have been very simple had they not been complicated by the acts of the parties and the omission to execute the terms of the Bond at the proper time. The Bond, (whicli is a curious medley of Bond and Last Will) contained what amounts to a covenant with the creditor, that if the debt should not be discharged during the debtor's lifetime, the land was to be appraised and taken over at the appraised value by the creditor, who was to pay the same to tbe charity fund of tlie Wolfendahl Church under deduction of the amount of the debt, namely £250 ; then come the follow- ing testamentary words ' should this not take place so during nay lifetime, then my heirs, executors or administrators shall fulfill the same,' the rational and plain meaning of which (though the object is expressed in hazy language) is that, if the debtor shall not during her lifetime have redeemed the mortgage and given tbe surplus value of the limd to the charity fund, then her Executors, &c., are to do so. It has been said that the creditor by having,— after the debtor's death, and in connivance with 1>isi;rict courts. 91 f t itlfe administrator of her estate, the pi'esent 8nd defendant, who The Wolfen- tias wilfully abstained from pleading, — wilfully omitted to dahlChurck ■carry out the covenant with him, and in departure therefrom **se. taken judgment and execution on the Bond in case 54961 and managed to purchase the property himself at a nominal value at a Piscal's sale, under writ in that case, has thus defrauded the charity fund. I entirely take this view, and consider the pro- ceedings in 54961 a fraud on that fund, carried out by ooUusion between the plaintiff and defendant in that case, who were res- pectively the creditor and the administrator of the debtor's estate. I have already decided that the sale in Execution must be set aside to the extent of an undivided moiety for want of title ia the execution debtor. I now decide that the whole sale must be get aside for collusive fraud on the charity fund which was not honestly Tepresented by the Administrator, who to-day keeps back from entering an appearance in the present action. The ist defendant's right to a mortgage or charge on the same for £250 will be protected, and provision made for carrying out tbe covenant in the Bond. I may note that another collusive fraud in this part of the business was judgment being taken and suffered for Interest where none was due. The result of the examination the whole case has now under- gone, has been to shew a deliberate, protracted, and compli- oated conspiraicy for 21 years by every person who by any pos- fiibility could lend a hand in it, to de&aud and cheat the Charity Tepresented by the plaintiffs, and to defeat the charitable dispo- sitions made first by Abraham and afterwards by his wife ;— that conspiracy being for the benefit of persons who are neither kith nor kin to either of them. The result of the conclusions I have arrived at on the various parts of the case and now to be brought together into one comprehensive decree is as follows; Judgment to be entered for the plaintiffs for an undivided moiety of the whole land in litigation comprised in the Parcels A 1, A 2, and B on the Figure of Survey filed with the 1st defendant's answer ; their title thereto being under the will of Abraham. As respects the other undivided moieties of the parcels A 1 and A 2 (which were not claimed by the plaintiffs) claimed respec- tively by the 1st defendant on his own behalf, and by the 3rd defendant as Attorney of Sophia Johanna Dias, the widow o£ Johannes de Silva, it is clear that they belong to the Intestate £»tate of Anna Christina, Abraham's widow, and the said claims JrLT 8. f 52 PAET iir.- The Wolfen- of the 1st and 3rd defendants are therefore dismissed. Aa dahl Church regpgQJjg the remaining moiety of the parcel B (the whole of ®^^®' which was claimed by the 1st defendant) it also belongs to the Estate of the deceased "Widow of Abraham de Silva,.and it will be decreed to belong to it,, subject to the provisions of the Bond and Agreement dated &th June, 1867 : and the claim thereto oi the 1st defendant will be dismissed. And in order to carry the provisions of the said Bond and Agreement into effect, it will be further ordered that such moiety be appraised by six competent persons (to be appointed by tbe Court) ; and on pay-, ment by the 1st defendant to theplaintiffs of the excess, if any,. of such appraised value,, over the sum of £2 50, the 2nd defend- ant is to execute a conveyance thereof to the 1st defendant.. Should the excess (if any) of such appraised v alne not be paid to the plaintiffs by 1st defendant within one month after notice of the appraisement being filed in this case,.his right to a convey- ance is to cease and determine,, and the same is to be adminis-- tered and sold in ordinary course by the 2ad defendant as Adr ministratov of the said Intestate Estate, subject however to a first charge in favour of the 1st defendant for £250, and to the claim of the plaintiffs to the balance of the pr oceeds sale. The- sale in Parate Execution in Case No. 173^3^ and the sale in, Execution in case 54961 of this Court are set aside and cancelled.. The claim of the plaintiffs to mesne profits, damages, and in- terest is reserved. As respects the costs of this suit, the- 2nd defendant^ having failed to plead and in so doing failed to. discharge his duty as Administrator, will pay his own costs (if any) personally and not out of the Estate he administers.. The 1st and 3rd defendants, having either wholly or substantially failed, will also pay their own costs. The costs of the plaintiffs, will be paid by the 2nd defendant (personally) and the 1st and 3rd defendants jointly and severally,, and any deficiency will be paid out of the Estate administered by the 2nd defendant. In a/ppeal, the Queen's Advocate, (Bias with him), appeared for list defendant and appellant, and Ferdinands for respondents. Pee Stewart, J.—" The Supreme Court is of opinion that the conclusion arrived at by the learned District Judge is correct, and that the decree should be afiii med. As respects, the question of mortmain, it is unnecessary to enter upon that point in the present case, the general question,, including that DISTRICT COUETS. 93 f J^.j^y 9 lEVolved in this Buil:, being fully considered in the judgment The Wolfen- delivered by the Supreme Court this day in the testamentary ^^^^ Chuuoh case, D. 0. Colombo, 3627. {sj In confirming this decision °^^^' the Supreme Court desires to state that, though holding the sale under the proceedings in the parate execution case to be invalid, the t^upreme Court does not think there is sufSoient ground for concluding that the purchaser, the administrator and only child of the deceased owner, when he bought the property in 1853, (apparently with the as- sent of his mother) intended to act dishonestly and fraudu- lently ; much less that there was any such intention on the part of the Proctor who obtained the parate execution, aod who, for anything that appears to the contrary, was not aware of the provisioHS in Abraham's will. The District Judge ia in error in stating that the sale to the 1st defendant was efiected within three mouths of the purchase by the administrator. That pur- chase was in 1853. The sale to the 1st defendant, a much more questionable proceeding, did not take place for ten years after,, until 1863. It is scarcely necessary to remark that, if the ven- dor to the 1st defendant had had issue, a i-esult which might have nntnrally been expected in 1853, the right of the Wolfen- dahl Church would not have accrued. Moreover, it is difficult to conceive that the idea of defrauding such distant aud contin- gent reversioners could have entered the purchaser's mind. It was contended on behalf of the 1st defendant, that he has ac- quired a prescriptive title, the purchase by his vendor, (th& administrator), dating so far back as 1853, The obvious and a sufficient answer to this argument is afforded by the fact that^ notwithstanding that the administrator divested himself of the character of administrator and then commenced a personal and independent possession, by the provision in Abraham's Will,. Creating a contingent right of reversion in the Wolfendalil Church, the possessor must be deemed to have held subject to such reversion. Abraham's son did not die until 1863; the widow, who had a life interest, not until 1868, — from the death of neither of whom have ten years expired to the institution of suit." July 29. Present Stewart, J. ■D. 0. Kandy, 58553. This was an action for goods sold and Contempt. delivered. Defendant pleaded not indebted, and in his eyami-^ (s) See ante, p 5,9. nation denied that he had ever purchased any goods from plain» tiff. In the course of the trial, the Court adjourned for half an hour, at the request of defendant's Counsel, to enable his Proc- tor to examine plaintiff's books. On the case being again called. Counsel stated that he had no defence to offer. Whereupon the learned District Judge held as follows : " The defendant has been guilty of a most impudent attempt to evade a just debt by setting up a false defence. His statement as a party is false, and I aoooi'dingly, by virtue of the power given to me by the 29th section of the Rules and Orders, * forthwith sentence him to imprisonment at hard labour for a period of two calen- dar months for making a false statement when under exami- nation as a party to a suit. Judgment for plaintiff as prayed with costs." In appeal, per Stewart, J.—" Set aside as to the sentence parsed upon the defendant and appellant. The appellant should have had an opportunity of showing cause. The Supreme Court has held that in the District Court as well as in the Po- J. lice Court a party should have an opportunity of showing cause before he is punished-. The provision in the District Court Bules that * the Court shall and may forthwith sentence such party, etc,' must be taken to mean subject to giving him oppor- tunity to exculpate himself. See judgment of the Supreme Court in District Court, Negombo, 5648, May 30, 1873." August 5. Present Catlet, J. deceiving t). C. KegaUa, 165. A conviction and sentence of twelve stolen Cattle, months' hard labor and 20 lashes by the District Judge (Main- warm^) against one of three defendants charged with Cattle stealing, were set aside in the following terms ; — " Set aside and 3rd defendant found not guilty. He is charged with unlaw - * " If such party shall in his answers to such questions, or to any questions which may be put to him, either at the commencement or in the progress of a suit, state that which the Court shall be satisfi- ed by other evidence is false, or if he shall by evasive, contradictory or prevaricating answers, attempt to deceive or mislead the Court, and the Judge and two of the Assessors be satisfied that such was his intention, the Court shall and may forthwith sentence such party , to euch punishment as shall be considered adequate to the nature of^e offence, taking into consideration always that there has been no vio- lation of the sanctity of an oath and mitigating such punishment accordingly." — Rules and Orders, Part 1, (Civil Jurisdiction) p. 68. t blSTKlCT COTTETS. 95 fully receiving a stolen buffalo, and has been found guilty and sentenced to twelve months' imprisonment and 20 lashes. It appears by the evidence that the 1st and 2nd prisoners, who have been found guilty of the theft, were seen driving the animal away, and that subsequently all three prisoners were seen stand- ing near the animal, which was tied to a tree with the brands- marks newly altered. When the complainant and his party came up, the prisoners ran away, or, as one of the witnesses states, went in different directions. This is the only evidence against the third prisoner, the appellant. The Supreme Court thinks that it would not be safe to convict him of unlawfully receiving on this evidence.'* Oct. 2. July 8, Present Cebast 0. J. and Stewart and CAtLEt, J. J. t). C. Jaffna, 954. The plaintiff, T^ho was a resident of Madras, Proxy sign- had instructed a Proctor at Jaflaa to prosecute his case in the Dis- ed in India to trict Court. A proxy, stamped in accordance with the provisions of "^ "| '° ^®y' the Ceylon Stamp Act, had accordingly been prepared by the Proctor and forwarded to India for plaintiff's signature. On this document being returned duly sigfted, it *as filed with the libel and summons issued. The defendant's Proctor thereupon moved that the pro- ceedings be quashed, on the ground that the proxy was invalid in that it had not been stamped according to the Indian stamp laws. The motion having been disallowed by the District Judge (de Saram,) the defendant appealed. Per Stewart, J. — " Affirmed. The proxy was signed with the intention of its being made use of in Ceylon. Its validity was therefore properly determined according to the laws in force where it was to be used. See Story on Conflict of Laws, page 376." October 2. Present Stewart and Gatlet, J. J. D. a Batticaloa, 1635. The indictment in this case was to the jurisdiction, efiect that "the defendants did, on the night of the 15th January, Assault to" 1873, in and upon the complainant violently and unlawfully make an commit Kape. assault, with intent her the said complainant then violently and against her will unlawfully to ravish and carnally know." The District Judge ( Worthington) having upheld the plea of jurisdiction raised by the Counsol for the defence and declined to try the charge, the Queen's Advocate appealed. In appeal, {Clarence, D. Q. A„ for ap- pellant, Grcnier for respondent) per Stewakt, J. —" The charge in Oct. 2, | ^^ ^^rt hi.- this case is for an assault with intent to commit a rape, an offence wliich hitherto has invariably been tried only before the Supreme Court, — an offence moreover which is usually punishable by a severer sentence than a District Court is empowered to award. The abjection to the jurisdiction, having been taken before plea, was properly up- held. It is ordered that the plaint be quashed." Sale cancel- -D. C. Galle, 32542. Plaintiff had purchased a certain land from led, as vendor 1st defendant, who was subsequently found to have a bad title to one- ^_"'j'^"°'™^Mialfofit. The District Court having refused to cancel the entire one-half of sale, the vendee appealed. Per Stewabt, J. — "The first defendant the land sold, being able to give a good title for only a half of the land sold, it ap- pears to the Sitpreme Court that the plaintiff is entitled to have the sale cancelled. It is accordingly decreed that the sale to the plaintiff be declared cancelled, and that the plaintiff do recover from the first defendaiit the amount of purchase together with interest thereon at nine per cent from the date of conveyance : 1st defendant to pay all costs." Eight to re- -^- ^- ^"''"■'^Vi ^''6085. This was an appeal from the following inter- arrest in exe- locutory order of the District Court : cution, " In this, and the connected case, TSi). 55,556, the defendant was ar- rested in the Galle District, by virtue of a writ of execution against person, issued by this Court, but which, was not endorsed, either- by the District Judjie of Kandy, or the District Judge of Galle. The defendant accordingly, when he was brought up before this Court for commitment, was discharged. The plaintiffs upon this moved for a a new writ-against person, and the question is, whether the defendant, having once been arrested and discharged, can be re-arrested for the same debt. This case does not fall under the 5th sub-section, of the 59th clause of Ordinance 4 of 18G7. That sub-section, as it appears to me, refers to the discharge of a defi-ndant bv the Court of the Dis- trict in which he was arrested, and not to a discharge by the Court which originally issued the writ. No English or Kandyan authorities can be made applicable to the case, for it is expressly enacted, by the last clause of the Ordinance 4 of 1867, that all questions arising in respect of this Ordinance are to be determined by the Koman Dutch law. ISfow, I can find no Roman Dutch Law authority that an arrest, which is in itself a nullity, and has not been followed by any commit- ment to prison, operates in any way as a satisfaction or extinguishment of the debt for which the prisoner was arrested. The arrest in this case was wholly illegal and void, the Fiscal having no authority from DISTRICT COURTS. 97 Oct. 7, any competent Conrt to effect it; and this Court treated it as a nullity, by refusing to commit the prisoner, when his person was brought be- fore it. I do not think that the debt was in any way discharged by this arrest, and the Rule will be made absolute with costs." In appeal, {Ferdinands iov resp;.>ndent) per Stewart, J.— "Affirm- ed for the reasons given by the District Judge." October 7. Present Stewart and Catlet, J. J. D. C. Galle, 33529. The following judgment of the District Judge {Gillman) explains the case. " The only evidence adduced is that of the plainliff; and the facts proved thereby are these: — plantift bought from the defendant some Sapphires, paying him, as part of the purchase money, Rs. 300. Plaintifi however on examin- ing the stones found that they were not worth the money agreed on (14 or 15 rupees a carat,) and expressed his dissatisfaction to the defendant when he came, a week afterwards, to get the balance of the purchase amount. Defendant thereupon said that he was sure the stones would realize in London more than tlie rate agreed on; and on this plaintifi suggested, and defendant consented, that they should be sent home for sale there on the defendant's account. The con- tract of sale was thus rescinded, and a new one of mandatum entered into. The consideration for this charge moving from defendant to the plaintiff is not stated in the evidence; but the facts proved show that it was the letting plaintiff off his purchase. It was also agreed that defendant should return the Rs. 300, to be settled when the account sales should arrive. The stones sold at a loss as plaintiff" expected: and plaintiff now sues for the difference between the net proceeds and the Rs. 300, and for interest. The defence is purely technical, restiug on the argument that plaintiff, having declared only on some of the common counts in assumpsit, cannot recover on the evidence adduced. But apart from the fact that neither party can have been taken by surprise, as each must have well known the facts of the case, I think the objection is not valid. The Rs. 300, after the rescission of the sale by consent, became clearly a loan to the defendant, and the count of money lent is declared on. The evidence supports also the count of account stated, defendant having admitted a net sum of money due from him (Chitty on Contracts, p. 605, edition 8th, citing Arthur v. Dartch, 8 Jur. 118,) The claim for interest is duly made. It is further objected that the only evidence of the sale account of the stones is a letter from the London salesman to the plain- tiff. But copy of the account was furnished to the defendant on the Contracts of Sale and Agency, Oct. 21. I ^^ paut hi.— 20th June last, and the evidence shows that defendant repeatedly promised to pay the claim, l^et judgment be entered for plaintift as claimed with costs." In appeal, (the Queen's Advocate for respondent) per Catdet, J — . " Affirmed, but the amount of the judgment to be entered for plaintifl is Rs. 166"92, with interest at 9 per cent per annum trom 3rd Octo^ ber, 1872, until payment. There is no evidence of any agreement that interest at the rate of 10 per cent should be paid on the advance; and the claim for interest upon interest is clearly inadmissible. Un- der the circumstances of this case, the Supreme Court thinks that interest accruing previously to the demand made by the plaintifl should not be decreed, and the only evidence of the date of any de- mand is the return to the summons, which appears to have been serv- ed on 3rd October, 1872. With regard to the principal issue in this case, the Supremo Court thinks that the new contract of Agency, by which the plaintift undertook to send the stones to England to be sold for defendant's benefit, was accepted as an accord and satisfaction for any breach of the original contract of Sale; and that the original contract having been mutually abandoned by the substitution of the new one, any money paid under the former would be recoverable un- der the count for money had and received. There is moreover evidence of accounting between the parties, and of a promise to pay on the part of the defendant, which is believed by the learned District Judge. This evidence would support a finding for the plaintifi on the count for money payable on an account stated." Notice of -D- C. Colombo, 60775. Judgment having been entered for defeud- trial. ant in this case, the plaintiff appealed on the ground of insufficient, notice of trial, which he had duly pleaded in the Court below. Per Stewaet, J. — "Set aside. According to the affidavit filed in the proceedings, notice of trial for the 13th March was served on the plaintifi on the 5th March, only eight days before the day fixed for the trial. This case not having been fixed for trial under the 5th section of the Rules of June 17th, 1844, the plaintiff was entitled to 14 days' notice at the least, as required by the 9th section of the Rules of July 2nd, 1842." October 2}. Present Stewart, J. Assignee ap- D. C. Kandy, 520. The insolvent iu this case (Mais) having duly pointed after a obtained a first class certificate on the 20th June, 1873, a motion was *^i^ssue™to lu-*^ ^"'^°^^'^*'^'^' °"' '''^ ^^^'^ of August, on behalf of Messrs. Green and solvent. DISTRICT COURTS. 99 Company, — (^one of the creditors who had proved)— for the appoint- ment of Mr. J. P. Green as Assignee. The motion was disallowed by the learned District Judge, ( VanLangenherg) in the following terms: "This is a meeting specially summoned at the instance of Messrs. Green and Company, proved creditors of the insolvent, for the appointment of an Assignee. The 66th clause of the Ordinance pro- vides for the appointment of assignees at the first public sitting or at any adjournment thereof, and I do not think that such appointment can be made at any subsequent stage of the proceedings, as in this case, after the allowance of certificate," In appeal, (Ferdinands for appellant) per Stewart, J.^"Set aside, and it is ordered that the mo- tion of Mr. de Saram be allowed, and that Mr. J.,P. Green be appointed assignee of the insolvent estate of F. W. Mais. It appears to the Supreme Court, that the provision of the 66th section of the Ordin- ance 7 of 1853 for the appointment of assignees is merely direc- tory ; — and that, having regard to the tenor and requirements of the enactment, there is nothing to prevent assignees being chosen and appointed at any other time as may be necessary at a meeting duly called by the Court for that purpose, before the final settlement of the insolvency proceedings. The above view is confirmed by a reference to the 64th section, which allows of the appointment of provisional assignees at any time after the adjudication of insolvency. On in- quiry, the Supreme Court' finds that the practice in the District Court of Colombo is in conformity with this decision. The fact of the in- solvent having obtained his certificate cannot afiect the question, if the interests of the creditors require that an assignee should be ftppointed," Oct. 28. U. C. Galle, 27558. This was an appeal from an interlocutory jj^^qj -^^ jj q_ order of the District Judge, Mr. Rosemalecocqi (dated 1st August, judgment not 1873) refusing to aUow judgment to be re-opened. Mr. Justice Stewart, appealed while reading the case, having detected a clerical error in the final agan^st^ recti, judgment as delivered by Mr. Gillman on the 6th December, 1872, directedthat the judgment be amended by the substitution of "one fourteenth " for "one-fortieth " part of the land in dispute. The in., terlocutory order was affirmed. October 28. Present Stewart, J. D. C. Negomho, 125. An order granting administration to the Administra- iutestate's widow was affirmed; and per Stewaet, J.—" In the absence tion. Nov. 4. ( ^^^ PART III. — of any special reason rendering it undeairable to appoint the widow, she is entitled to letters of administration in preference to all others," iudgmentf ^' ^' Trincomalie, 209S3. This was an action for goods sold and delivered against ,the Captain (Scaffino) of the barque Maria Louisa. The District Judge (Temple) having refused to allow the answer to be filed out of time and having entered judgment by default, the defendant appealed. The Queen's Advocate, for appellant. — The summons to appear at the Trincomalie Court on the 25th June had been served on the de- fendant at Galle on the 94th June, and the Rule which was return- able on the 21st July had been served on the 11th July. There was clearly no time, under the circumstances detailed in his affidavit, for the Captain to have engaged Counsel to represent him or to have ar- ranged for his defence. The affidavit recited, inter alia, " that at the time the deponent received the said process, he was undergoing much anxiety of mind, as his vessel was, owing to the boisterous state of the weather, in distress; that after he got over his difficulties he con- sulted a Proctor at Galle and had his defence drawn up and sent to Trincomalie, but before the same could reach his Proctor, plaintifE had moved for and issued a rule." The proceedings on the part of the plaintifi had certainly not been in accordance with the Rules and Orders. Ferdinands, for respondent. — The Captain had set up two contra- dictory defences to the action, and in view of his telegram to the plaintifi promising payment, the Judge was justified in not giving him an opportunity of further delaying his creditor, Per Stewakt, J. — " Set aside. It being stated by the appellant's Counsel that the full amount has been recovered by execution, lie judgment of the District Court is hereby set aside, and the case re- manded in order that the defendant's answer may be received. The money to remain in deposit pending the determination of the case. In the event of the defendant not filing answer within fourteen days of this case being received in the District Court of Trincomalie, tha judgment appealed from to stand affirmed with costs," „. , , . , November 4. Eight of de. fendant's Present Creasy, C. J. and Stewart and Catlet, J. J. Counsel in j) q Batticaloa, 1643. This was a prosecution under the 5th to inspect J. P. clause of Ordinance 24 of 1848. There were two oi-ders a.ppeale(J proceedings. blSTElCT COURTS. 101 ] „ , > Nov. 5. from in the case, one refusing the application of defendant's Advo- cate for a view of the J. P. proceedings, the other allowing the de- fendant to have certified copies of the depositions before the J. P. In appeal, (the Queen's Advocate for complainant and appellant, Grenier for defendant and appellant) the first order was affirmed and the second set aside ; and per Creasy, C. J. — "The 2nd section of the Ordinance No. 3 of 1846 enacts that all such evidence' should be admissible in the Com-ts of this Colony as would be admissible in Her Majesty's Courts of Kecord at Westmins- ter. Accordingly in Ceylon depositions before Justices of the Peace, when they are legally admissible in the Courts of Westminster, would be admissible in our Ceylon Courts. Whether an accused party com- mitted for trial is entitled to inspection of the depositions against him, is not a question of evidence, but of general law and practice, and as such to be regulated by local laws. We have no local law or rule of Court allowing a prisoner a view of the depositions, nor is there any law or rule requiring that he should be furnished with attested copies thereof. As a matter of right, therefore, neither the prisoner nor his counsel is entitled to a view of the depositions. But there is a dis- cretion vested in the Judges who, in the exercise of the general authority placed in a Court of Justice, will take care, where he consi- ders justice requires it (as is the practice of the Supreme Court in the course of a trial) to recommend that the prisoner's counsel be allowed reference to either the whole or portion? of the depositions as may be deemed right. The case of Murder is dealt with as an excep- tional case, in which the prisoner's counsel are always allowed full reference before trial to all the proceedings." D. C. Colombo, 817. An order issuing a certificate, in the form Insolvencv. R in the schedule annexed to Ordinance 7 of 1863, against an insol- Certificate E. Vent, was set aside by the Supreme Court in the following terms: "The power of granting certificate "R" is in eflect the pOwer of im- prisoning a man for a year, and it ought not to be excercised until all legal conditions enforced for its employment have been strictly complied with. The learned District Judge records that there has been no refusal of farther protection, and he also records that there has been no refusal or suspension of certificate. Consequently, as it seems to us, the certificate "R" could not be granted. November 5. Present Crbast, C. J. and Stewart and Cayl6y, J. J. D. C. Kandy, 6476]. The following judgment of the learned Priority of District Judge i^Cayley) explains the case. claims in exe- cution. Nov. 5. ) 102 PART III.— This is a special case to determine the several claims made upon the proceeds of the sale in execution of the Heenagalle Estate, the property of the late Thomas Jackson. These claims are (1) The claims of the plaintiff, under whose writ the Estate was sold, for the amount due on two special mortgages of the property, dated respectively the 1st July, 1863 and the 23rd September, I864t (2) A claim of A. Fernando for the value of certain rice supplied by him to the Estate; (.3.) A claim of Mr. VonDadelzen, the Superintendent of the Es- tate, for arrears of his salary, and of the pay due to the coolies, and also for cost of rice supplied to the Estate; (4.) A claim of rhe Executors' Proctors for costs of the Testamen- tary proceedings, in which the defendants took out Probate to the Will of the late Thomas Jackson; (5.) A claim of the Executors of Jackson's Estate for then' Com- mission. It is admitted that, if preference is allowed to the claim of the plaintiff, the. mortgagee, his claim will exhaust the proceeds of the sale. It is also admitted that all the liabilities of the Estate, in res- pect of which the other claims are made, accrued after 1 864, the date of the plaintiff's last mortgage. With regard to the claim for pre- ference made by the Superintendent for his salary and by A. Fernando for the value of the rice, it appears to me that the judg- ment of the Supreme Court in the leading case of Lee vs. Edere' mauesingam (S. C. Minutes, 10th August, 1 862) is decisive ao-ainst the cliiiniants. It was decided in that case that monies spent in the cul- tivation and upkeep of a Coffee Estate enjoy no tacit hypothec upon the property, certainly no tacit hypothec with preference over a prior special conventional mortgage. The claim made in that case was for the regular expenditure, as appearing in the Estate accounts; and in- cluding, no doubt, superintendent's pay, coolies' wages, cost of rice, &c.; and I do not see how any distinction can be drawn in this respect between the claim of a person Who supplies the money for the super- intendent's pay or for the rice, (as in the case referred to), and the claim of the superintendent himself or of the rice vendor himself. Even supposing the superintendent had a tacit hypothec upon the property for the arrears of his salary (which I do think is the case,) it would still have to be shewn that such a hypothec was privileo'ed so as to have a preference over a prior conventional mortgage, in contravention of the general rule that, in a conflict between le^al and special conventional mortgages, priority of time gives priority of right. Next, with regard to the claims made by the Executors' Proctors for their costs incurred in the Testamentary case. These DISTRICT COURTS. 103 , ^^^ g ! claims may, I think, be treated as if made by the Executors them- Priority of selves. It was argued by Mr. Beven that, if the Executors had not claims m exe- taken out Probate, the plaintiff would have been put to the expense of Letters of Administration, before he could have realized his mort- gage, and the Probate was, therefore, in eflect taken out for the be- nefit of the plaintiff. Whatever benefit accrued to tlie olaintifl tr..m the Probate taken out by the defendant, I should require some express authority before holding that, when a mortgagor dies, the testamentary expenses of his estate are to be defrayed from the property specially mortgaged. No such authority was cited, and I know of none. The mortgagee took no part in these testamentary proceedings and had no control over them, and the Executors were not compelled to take out Probate. It does not appear whether there were or were not any assets besides the mortgaged property. If there were, the Executors must be presumed to have taken out Probate for their own benefit or tliat of the Estate; if there were not, there was no use increasing these testamentary expenses at all, and the Executors should have thrown upon the plaintiff the burden of administering as a creditor. This, however, they have not done, and to allow them to set off these expenses nOw, would be in efiect to alter the judgment which the plaintift has obtained against the Estate for the full amount claimed by him, and which declares the property in question specially bound and executable for the payment of this amount. Next with regard to Commission. The right of Executors and Administrators to commission ifl governed by the 10th rule of the Rules and Orders, sec. iv. By this rule they are allowed to charge a commission of 5 per cent., on pro- perty retained by the heirs and on property sold by such Executors or Administrators, and 2J per cent on cash found jn the house of the de- ceased. In the present case, the propei-ty in respect of which commission is claimed is neither property retained by the heirs nor property sold by the Executors nor cash found in the house, but it is property sold by the Fiscal. It appears to me that this claim cannot be up- held. The only claim left for consideration, as conflicting with the plaintiffs claim, is that of the coolies for their wages. This claim is governed by the 18th section of the Ordinance 11 of 1865, which enacts that "all wages due on any contract of hire and service and all liabilities arising therefrom, as respects the employer, shall be a first charge against the Estate and property, in which the servant under such contract shall have been employed and shall be recoverable by snit against the party for the time being in poss- ession of the said Estate or property." With regard to this claim it was argued by Mr. VanLangenberg (1) that the charge thereby created cannot operate to the prejudice of a mortgage effected be- , 1 104 PART III. Nov. 7. > fore the Ordinance came into force; and (2) that the wages in ques- tion must be recoverd not from the proceeds of the sale of the Estate, but from the purchaser now in possession of the property. With regard to the first point, I cannot concur with the plaintiff's Counsel. The words of the Ordinance are plain, and taken in their literal sense mean that these wages are to be a first charge upon the Estate for all intents and purposes, and not merely a charge subject to any prior incumbrances effected before the Ordinance came into opera- tion. If the latter signification had been intended, it would have been expresssd. The second point appears to me also untenable. The coolies who are entitled to this charge, appear to me to be in the same position as any other hypothecary creditors, and to be entitled, when the Estate is sold by judicial sale, to come forward and claim the proceeds in the same manner as the other incumbrances. It is also to be observed that they came forward before the Estate had legally changed hands, for their claim was made before the sale was confirmed and the property conveyed to the purchaser; indeed, be- fore the greater part of the purchase money was deposited. It will be accordingly ordered that, from the proceeds of the sale, the coolies will be entitled to receive, in preference of all other claims, all arrears of wages due to them for a period not exceeding three months. If Mr VonDadelzen has paid any of their wages, he will be entitled to stand pro tanto in the place of the coolies. Plaintiff will be declared entitled to recover from the balance the full amount of his judgment. As this exhausts the fund, it is not necessary to determine the respec- tive priorities of the other claimants. The costs of the coolies and of Mr. VonDadelzen, incurred on their behalf, must be paid by the other claimants, who will also bear their own costs respectively. In appeal, (FerdiTWmds for appellant^ per Stewart, J. —"Affirm- ed for the reasons given by the District Judge in the Court below." Eice Contract. ^. C. Colombo, 6-2066. On the 21st October, 1872, the defendant Failure of (Arunasalem C'hetty) entered into the following contract with the consideration. p\a,i„tifia (Britton, Aitken and Co.) who acted bs ^ents or brokers of Messrs. Armitage Brothers, and who subsequently confirmed the sale in writing on the 7th of November. "I the undersigned (defendant) hereby contract to purchase from Britton, Aitken and Co. and receive Jeliveiy of a cargo of Solai rice, to be laden in the from Calcutta, consisting of about soon bags of fair sample and in the usual gunny bags, delivery to be taken at the wharf; and I agree to pay for the same at the rate of rupees seven cents twelve currency (Rs. 7-12 currency'^ per bag of 164 lbs nett by cash nett or by bill at 4 months wirh interest added at the rate of t clVe per cent per annum. The foregoing is subject to confirmation bv B. A. and Co.'" DISTRICT CODRTS. 105 The rice in question formed part of a car^o of some 21,000 bags, which arrived by two steamers, (the Yeddo and Timsah), and the landing of which, according to one of the witnesses, (Newman) "must have spread over fi-om about the llth of November to about the 11th of December." The defendant having paid for, and removed only 8000 baiiS, the plaintifls wrote to him on the 3rd of December re- questing " an immediate settlement for, and removal of the balance ex Yeildo, which has, been lying at the (.'ustom house at your (the defendant's) risk." On the 10th ot December, the defendant granted, in respect of the balance 2000 bags, a promissory note for -Bs- 4328, and obtained a delivery order from the plaintifls on Messrs. Armitage Brothers, who, however, declined to give up the rice, " excepting on condition that the defendant should pay warehouse rent from the beginning of November." The plaintifls were now sued on the pro- Djissory note, the libel containing also the usual money counts. The defendant admitted the note, but pleaded failure of consideration. The plaintifls replied that they had duly fulfilled their part of the contract, and were entitled to recover. At the trial, Messrs. B. Geindeod, W. D. ScanLTZE and C Todd acted as Assessors, and unanimously concurred with the Judge in the following opinions: (1) " that the words ' delivery to be taken at the wharf,' import that the defendant was to pay all reasonable and necessary chaises for ware- house rent, actually proved to have been incurred between the date of landing and the date of removal ; (2) that the defendant was not liable for warehouse rent on the 2000 bajs in question which accrued previous to the date of the plaintiffs' letter of 3rd December; (3) nor for warehouse rent (if any J which accrued between that date, and the date of the promissory note and delivery orderof 10th December; (4) that there is no satisfactory evidence that the 2000 bags (the balance of a transaction of SOOO bags, which again was part of an hnportation of 21,000 bagsj may not have been the very last bags which were landed, the bags landed on different dates not having been kept separate or distinguished, and, if so, no warehouse rent was due on them on llth December, — further no definite sum is •hewn to hare been demanded as due on these 2000 bags ; (5) that the plaintiffs' claim should be dismissed with costs." In appeal, (Kelly for appellants, the Queen's Advocate, Perdinandt with him, for respondent) per CATLBr, J. — "Affirmed. The plain- tiffs excuse their non-delivery of the rice, for which the promissory note was given, on the ground of the non-payment by the defendant of certain warehouse rent. It is clear, however, that more rent was claimed than was actually due in respect of the rice in question: and Nov. 7. I 106 PART III. Isov. 7. < the defeudaiit was not bound, after the refusal to deliver any of the rice, to accept the plaintiffs' subsequent offer of taking a part of the rice leaving the question of the amount of rent to be settled after- wards. The consideration fol- the note has entirely failed, and the plaintiffs' claim was properly dismissed." November 7. Present Cbeast, C. J. and Stewakt and Catlet, J. J. Ex-parte £). C. Colombo, 52589. The question in this case was the effect Jmlgraent on of proceedings by sequestration against an absent defendant. It ap- " poared that ex-parte judgment had been entered against him on the 9th April, 1869, and that some moveable property belonging to him had shortly after been sold in execution. On the plaintiff moving in 187'3 to have the judgment revived, the learned District Judge re- jected the motion, and allowed the decree against the defendant to be opened up for the following reasons. The Rules require that, before the Court proceeds ex-parte, procla- mations be made on " two several days in open Court, at such intervals " as the Court in its discretion shall consider fit and just towards all " parties, calling on the defendant to appear." The object of the pro- clamations clearly is, that some members of the public, either hearing them or hearing of them, may communicate the fact to a defendant who is believed to be abroad or out of the jurisdiction, so that he may come forward and enter an appearance in the cause. These proclamations are simply in lieu of personal service of summons, and I consider that everything must proceed after tuem precisely as would have been done if personal service had been effected. The course of proceeding in such case is, first, that the summons specifies a future date for the de- fendant's appearance ; and next that the defendant is allowed four clear days, after that fixed by the summons, to enter appearance, and until that period has elapsed the Court cannot proceed to ex-parte trial or judgment. So also the proclamations are meant to fix a future (and reasonable) date for appearance. In the present case, the Court ordered that the proclamations be issued, returnable on the 25th March and 9th April, 1869, and that a day be fixed for ex-parte hearing. As the pro- clamations are to be made in open Court, and by the Court, I am not clear that I understand the sense in which the word "returnable" was used in this order. The proclamations ought to have been made in open Court on these days, and they ought to have specified a future dav certain for appearance on pain of proceeding ex-parte. It is plain that the nature and object of this .system ot proceeding by proclamation has not been undci-stood. The Rules require two distinct modes of call- DISTRICT COURTS. 107 Nov. 7. Proclamation. ing on the defendant to appear : 1st, written notices are to be affixed Ex-parte at the Court House and elsewhere "calling on the defendant to ap- ja. Ja-TSTilbkji. Mr. Thomasz moves that the horse and waggon be delivered over to the defendant on his giring security. Mr. Van Cuylenberg produces Deeds marked A. and B. Motion disallowed. This is an action for wrongful con rersiou of property, and the Ordinance 15 of 1856, Rule iv does not apply to a eise of this kind. Moreover there is no affidavit by the defendant and he has not even filedanswer. There is already aprimafaciica,ai tot the plaintiff. The deeds produced gp to. shew that the horse an J waggoa do not belong to. the defendant. (Signed). Fbed. jATETijjEKi;. In appeal, Ferdinands, for the appellant, contended that the affidavits filed by the plaintiff were inauflScient ander the provi.- sions of Ordinance 15 of 1856,. under the 4th section of which the defendant was entitled to have the seqaeatratiou dissolved on giving the necessary security. Grenier,, for the respondent. — The proceedings were not. under the Ordinance but at Comaaon Law. Per Oatlet, J. — " Affirmed. This is a case of sequestration. at common law. The proceedings by which the pi'operty was- handed over to the plaintiff may not have been altogether regu.- lar, but this Court does not think that any substantial wrong has been thereby done to the appellant. This Court also thinks that, as the defendant produced no affidavit of any kind befora the District Judge,. he was not entitled to obtain possession of the articles whickhad already been handed to the plaintiff, who, had made out a strong prima facie right to their possession and. kad given proper, security." D. C. Negombo, S&4S. This was an objection to the assess- objection to ment for the maintenance of the Police at Kanowane, under the Assessment provisionsof Ordinances I© of 1 86s and S' of i^^?- The plaintiff for Police- (Piachaud), actiiig on behalf of Messrs; Arbuthnot and Co., the proprietors of the " Ekelle Cinnamon Estate," had in the first ihstance unsuccessfully appealed to the Government Agent foe , redress on the following grounds : I. That the assessment,,if legal.Ji excessive in amount.. ., f 114 PART 111— Nov. II. < Objection to *■ That the Police Force in Kanowane has not been quartered or Assessment established under the provisions of the Ordinance No. i6 pf 1865. for Police. g. That the limits within which such Force is quartered have not been fixed in accordance with the provisions of the said Ordinance. 4. That the consent of two-thirds of the proprietors representing the acreage of the alleged limits within which such Force has been quartered has not been obtained. 3. That you have not assessed the proportion in which the cost of the alleged Police established at Kanowane is to be paid by the inhabitants according to their respective means, — the landed property at K.anowane not -being subject to be assessed in respect of the sarid Police. At the trial, the plaintiff relied solely on the objection that the total amount levied on account of the Police was in excess of the actual cost defrayed by Giovernment and that this was illegal under the 34th clause of Ordinance 16 of 1865. The District Judge {Da-wson) however nonsuited the plaintiff, holding that the Government Agent had had no notice of the specific ground On which plaintifFs objection was founded. In appeal, {Grenier for appellant, the Queen's Advocate for res- pondent) per Creasy, C. J. — " Affirmed. Sufficient notice of the nature of the objection was not given." November 14. Present Creasy, 0. J., Stewart and Cayley, J. J. Demanding D. C. Jaffna, 605. This was a criminal charge under tht reward tore. 2nd Clause of Ordinance 6 of 1850; and the indictment, as pre- cover stolen sented by the Queen's Advocate, was to the following effect r " That the defendants did, on the second day of July, 1873, un- lawfully and corruptly demand from one Venasy Valen a certain sum of money, to wit the sum of fifteen rupees, under pretence of helping the said Venasy Valen to recover a certain bullock, the property of the said Venasy Valen, before then stolen, taken and carried away, without having before then procured the appre- hension and trial of the offender, against the form of the Ordi- nance in such case made and provided." The District Judge, (De Saram) held as follows. " The facts of the case appear to be these. The first witness loses his bullock on the 30th April, 1873, and makes search for the animal, but without success. It is clear, I think, the animal was stolen from the field where it w#5 kept tied. After the lapse of about two months, the second wit- ness accidentally meets istprisoner at Chavagacherry, informs him DISTRICT CtJITBTS 115 cover cattle. stokm > Hov. i^ of the loss of 1st witness' bullock, and offers him a reward for Demanding: the finding of the animal. No particular amount seems to have reward to re.- been mentioned. The first witness, on being afterwards informed of this, readily assents to the second witness*^ proposal, and such assent is accordingly communicated to the first prisoner. Then it appears that, about ten days afterwards, the ftrst prisoner comes forward, evidervtiy in pursuance of the reward offered, and pro- mises to find the bullock and restore it to the first witness on being paid the sura of ifelS. It is for making this demand he is- charged. It does not appear that the first prisoner, when first spoken to at Chavagacherry, was aware of the loss of the ani- mal or its whereabouts;, and if he were bent on making money by the alleged illegal proceeding, he would certainly have done so at once and not waited for two months. Under these circum- stances, I doubt very much whether the charge comes under the provisions of the second clause of the Ordinance quoted. The accused is accordingly adjudged to be not guilty, and is dis- charged." In appeal, (^Clarence for appellant, Ferdinands, for respondent), per Greasy, C. J. — " Set aside so far as regards ist accused. Verdict of guilty to be entered against ist accused, and he is sentenced to pay a fine of Es. 200. There is a great difference between being rewarded for taking trouble in finding whose a bullock is, which has been missed^ and between taking or de- manding a reward for procuring the restoration of a stolen bul- lock. The demanding of the reward for procuring such restora- tion is clearly proved in this case.** Deega-mar~ tied daugh- ter. D. C. Kurunegala, 19107. The original owner of the lands in Beena right* dispute in this case was Menihettirale, who died intestate, leaving revived in three daughters and one son. The plaintiff was one of the daugh- ters and the defendant was the widow of the son. The plaintiff's sisters had been married in deega, and the plaintiff, alleging that she had been married in beena, claimed an undivided half of her father's property. Defendant, in her examination, admitted that plaintiff had returned with her deega-married husband to the family property, Migahamulawatte, but added " plaintiff lives in the same garden but in a different housed The learned District Judge {de Saram) held the plaintiff's deega ra.arriage proved and proceeded to give judgment as follows : Thf Court must now consider the next point in the case, and that is. whether the plaintiff has not, by having returned from her Deega village aai Nov. 14. I 116 PART iir. — Beena rights lived on, one of her father's lands for several years, recovered paraweni right* revived in and acquired the rights of a Beena married sister. It is proved that the plain- riedfdaiT^h" '"^ ■^^'"■'"ed '» her father's house after her marriage in Deega, that she was, ter. ' "'^'^ allowed exclusive possession of ^.of one of. the lands in dispute on which- she built a house and in which she has lived ever, since., Tne circumstances under which a Deega daughter acquires Beena rights are stated in Armour, p. 64-68,. and none of them apply to the plaintiff.. The plaintiff will be en» titled to only a life interest in. half the garden, (Armour, p.. 67 j Austin, p. 21, D. C. Kandy, Nu. 5137,) unless it was intended that the gift of that garden was to be an absolute one: she will then acquire a prescriptive title toil. (Austin, p. 82, D. C. Kandy,, No. 166.79). The plaintiff has had exclusive, possession of half the garden Migahamulawatta for 15 or 16 years at the least, and as the Prescriptive Ord. so strictly defines what adverse possession, means, I hold that in the absence of any written agreement regarding the. mode of possession intended when half the garden was given to plaintiff, and considering the length of time that has elapsed, the gift to have been an. absolute one.. Let judgment be entered that the plaintiff be declared entitled to the Northern half of the garden Migahamulawatta described in the Libel, and that her claim to the rest of the lands be dismissed with costs, The defendant to be declared entitled to all the lands in dispute, except the por- tions of Migahamulawatta adjudged to be plaintiff's property. In appeal, (Grenierior appellant, Ferrfi^a^ifi for respondent) per Cayley, J. — " Set aside and judgment entered for plaintiff for an undivided moiety of the lands described in the Libel, but without damages. It appears to the Supreme Court that the case is sub- stantially one in which a deega-raarried daughter returns with her husband to the father's house, and in which the father assigns to them a part ot his house and puts them in possession of a specific- share of his lands.. Incases.of this kind adeega-marrieddaugh-^ ter regains her beena rights. See Perera's Armour, p. 64." November 18; Present Creasy, G. J., Stewart, and Cayley, J. J. a-estamping of D. C. Galle, No. 2376u Plaintiff sued on the following docu- documents. ment (which was described in the libel as a."paper-writing)" to. recover the sum of Rs. 75, with interest at the stipulated rate from 9th January, 1.869. " I (defendant) have borrowed a sum of j^7 'o^- f™™ Perian Chetty,, (plaintiff) on condition to pay the same before the 9th day ot January next without interest, and in failure ot so doing to pay the same with, interest at the rate of 6d per £ per mensem for the time that shall exEire.- kom, such date.." DlSTBICT COURTS. ■^■'^ ]n V 1 8 The defendatrt pleaded " never indebted" and denied Ws alleg- Restamping- of "ed signature. On the day of trial, his Proctor objected to the documents. (document being received in evidence, on the ground that it was ?nsuflBciently stamped either as a bond or as a promissory note : if it were treated as a bond, a stamp of six pence would be requir- -ed, if as a note, a stamp of two pence, whereas in point of fact there was only a stamp of one penny impressed on it. The iplaintifPs Proctor thereupon undertook to pay the deficiency in stamp duty and the prescribed penalty, if the Court held it to be a promissory note. The District J adgefRoosmalecocq), holding that the document in question was a promissory note and not a bond, made order as follows: — " The Court rales it can be so re- ceived. Mr De Vos tenders the deficiency in stamp duty and the penalty required bythe 39th and 40th clauses of Ordinance 23ofi87i. Promissory note admitted."" The defendant''s Proctor having elected to tall no evidence but to rely on tlie legal objec- tion he had raised, judgment was entered for plaintiff with costs. The plaintiff now appealed against the order condemning him to pay penalty, &c., on tTie ground that the document in ques- tion was sufficiently stamped, it being a "note payable on demand •and as such requiring a stattip of only one penny, and that his fight to sue thereon was in no way limited, the restriction as to •time affecting only the liability of defendant to pay or not to pay ■interest. Per Creasy, C. J. — " Affirmed. This is a most impudent appeal." D. C. Kandy, ^3309. The following judgment of the learned Adoption «in= 'District Judge {Cayley) explains the case: — der the Kan- The sniy question in this case is, whether the ist defendant had proved constitute a valid adoption, no particular for- malities or ceremonies are prescribed, but it is necessary that the person adopting, and the child adopted, should be of the same caste, and that the adoption should be public and formally and openly declared and acknowledg. ed. The adoption here was openly declared and acknowledged, but the ques- tion is whether the declaration was sufficiently formal and public In 15,769, D. C , Kandy, (Austin p, 74) it was laid down, that the adoption should be openly avowed : and that it should be clearly understood that the child was adopted on purpose to inherit the adoptive parent's property. This seems to have been the case in the present instance. But the judgment of the Court below in the case, 15,769, held, that there was no evidence of any " public declaration or acknowledgment — no cal ling together of any Head- men, nor even relations or neighbours, but merely of vague expressions made use of in the presence of two or three casual visitors" ; and on this ground it was held that the adoption was not proved. This decision does not go so far as to determine that there must be evidence of a calling together of Headmen, or of relations and neighbours in order to prove a valid adop- tion. This would be opposed to the established principle that no special formalities are prescribed. It merely shows that some kind of public decla- ration and acknowledgment is required and instances n8e beyond the jurisdiction Criminal Jii- of the District Court. Bonds, Bills of Exchange, Promissory f'^''i'="°n- Notes, Cheques, Bankeis' Notes, Bills of Lading, Deed o» other Document, gifting,, transferring, encumbering,, dividing, leasing or creating an interest in any immoveable property, or in any way surrendering or extinguishing the same, Partner- ship deeds. Wills and Codicils, Powers of Attorney, Entries on public Registries, and Certificates of same,, any Process of any Court, Marriage Settlements, Ante-Nuptial Contracts, Deeds, of Adoption, and any other document similar in character and importance to any of those abovemeiitioned. but there is a very large class of cases of forgery, in which the immediate importance of the document forged is small, and in which there is little risk of general mischief being created if the offence ia visited by a sentence not very severe. A forged oider for delivery of goods of very trifling amount is a familiar instapce. Such an offence, if not aggravated by special circumstances,, is essentially a case of obtaining money by false pretences, though in form; it may be promoted to the bad eminence of forgery^ It would be absurd to hold that such a case cannot be adequately punish- ed by a year's imprisonment, with lashes not more than fiftyi or a small fine superadded, if thought necessary. Consequently,, it would be absurd to'deny the District Court jurisdiction over such a matter. It would be easy to suggest numerous other cases of the same kind,, that is, cases where the ofi^ence is not heinous in either of the senses above explained, although the formidable title of forgery is, in the language of the law, applied to it. The charge on the Record now before us is one for- forging and uttering a receipt for the payment of £10. We think that the District Court was fully competent to inflict adequate and usual punishment for it, and that the District Court was consequently fully competent to try it. In the course- of the hearing of this case, there was much discussion both by Bench and Bar as to the effect of the 78th clause of the Ad- ministration of Justice Ordinance of 1868. That clause is as- follows:—" Whenever any defendant or accused party shall have pleaded in any cause, suit or action, or in any prosecution brought in any District Court, without pleading to the jurisdic- tion of such District Court, neither party sl.all be afterwards entitled to object to the jurisdiction of such Court, but such Court shall be taken and held to have jurisdiction over the aame. Provided that where it shaU appear in the course of the pro- Nov. 21. 12:4 PART III- — sisdiction. DistiictCourts. ceedings, that the suit, action or prosecution was brought in st Criminal Ju- Court having no jurisdiction by the mutual consent or conni- vance of the parties, and with previous knowledge of the want of jurisdiction of such Court, the Judge shall be entitled at his discretion to refuse to proceed further with the same and to. declare the proceedings null and void."^ It was urged on be- half of the respondent that the effect of tbe clause is to give full jurisdiction to the District Court over any criminal charge brought before it, if neither party raises m Zimme an objectioa to the j.nrisdictioa, and if the Court does not find in the course of the trial that the case has been brought before it by the collusive action of the complainant and the defendant, such as might occur when both parties desired the defendant to escape the heavy punishment which the Supreme Court might inflict by incurring liabililsy to the minor terrors of tbe District Court. The appellant denied that the effect of the 78tH clause was such as suggested ; and it was asked by way of reductio ad absur- dnim what would be done with the judgment of the District Court on a charge of Murder,, if there had been no objection to the jurisdiction raised in the District Coui't itself ? We think that a rational and substantial effect may be given to the 78th clause without incurring any absurdity such as sug- gested, and we still regard the 66th clause as the foundation of the Distinct Court criminal jurisdiction. It seems to us that the effect of the 78th clause is as follows; neither the complainant who has brought a defendant before a Dis- trict Court on a criminal charge, nor the defendant who has pleaded in the District Court to such a charge without dis- puting the jurisdiction, shall afterwards be allowed, either by appeal or otherwise,, to dispute the validity of the District Court proceedings. As against any objections raised by either party under such circumstances,, the words of clause 78 apply, and the District Couit ' shall be taken and held to have juris- diction in the matter.' The clause goes no further. If the charge was one which the District Court under clause 66 had no jurisdiction to try, the proceedings are bad, though it does, not he in the mouth of eitber of the parties to call them in question. We consider that in sucb a case it would be in the power, and it would be the duty, of the Supreme Court to quiish, the District Court proceedings and to declare them null and void for want of jurisdiction. This power is clearly given to the Supreme Court by the 22Qd section of the Administi'ation ol Justice Ordinance of 1868 ; and it is independent of the powers given by clause ly. Clause IS gives the Supreme DISTErCT COUETS. 125 If^o^, 2j Court an appellate jurisdiction. In addition to thia, clause DistrictCourts. 22nd enacts that ' the Supreme Court, or any Judge thereof, Criminal Ju- shall have full power and authority to inspect and examine the risdiction, records of the Original Courts, and to grant and issue accord- ing to law Mandates in the nature of writs of Mandamus, Cer- tiorari, Procedendo and Prohibition,' The writ of Certiorari is one well known to the English Law, and it cannot be doubt- ed that when this clause bids us issue these writs of Mandamus, Certiorari, Procedendo and Prohibition ' according to law,' it bids us to issue these writs according to English Law ; and it gives these writs validity according to English Law, the only law to which such writs were known. As to tb« power to issue these writs, we are in a position similar to that of the Court of Qneen's Bench in England and of the Judges of that Court. By Certiorari the superior Court can (among other things) bring before it the proceedings of any inferior Court, can quash them if substantially wrongs and can order in its discre- tion what course shall be taken as to their subject matter. Iir any grave case of improper criminal trial by a District Court, {such as the suggested case of Murder) the Queen's Advocate, as the chief legal officer of the Crown, would doubtless bring the matter formally before us. Lest what we now say should encourage a host of private litigants to try to call judicial pro- ceedings in question before us by Certiorari, we will remark that the Court, as a matter of judicial discretion, refuses Cer- tioraris in cases in which an appeal has been given by law. The result of these considerations is that the present appeal must be dismissed, both because the case was within the juris- diction of the District Court under clause 66 ot the Ordinance No. 11 of 1868, and because this accused had under clause 78 lost his right of appeal by pleading in the District Court with- out objecting to the jurisdiction." November 25. Present CeEasy, C. J., Stewaet and Catlet, J. J. D. C. Colombo. 59406. The plaintiff (as payee) sued on a promissory Promissory Note, without however inserting in the Libel the Note. uaual money counts. The defendant pleaded •' never indebt- ed" and that it was an Accommodation Note. The plaintiff had discounted the Note at the Bank of Madias, and on its falling due had retired it himself, the defendant having failed to pay XI . ,- } 126 PART III.— Nov. 25. j Promissory "?■ Tlje Note bore the following eudursements •; Not«- Piiy the Bank of Madras or order p. p. A. Coos Mobamado (Plaintiff) J> F. MnUer. Received paymeut for the Bank of Madras 0. B. MiKUS, Acting Agent at Colombo. The Bistvtct Judge (Berwieh) held that the note, having been ■originally endorsed by the payee to the Bank of Madras or order^ «uuld not pass back to him by mere delivery ; that the memo- randum endorsed by the Bank was a mere receipt foi' payment and not an endorsement in blank; and ikat the plaintiff, there- fore, had no title to sue. Plaintiff was aucordingly non-suited. In appeal, (Browne for appellant, Kelly for respondent) per Ckbasv, 0. J. — " Set aside and case sent back for further hear- ing. The plaintiff's right, as payee of the note, to sue the maker was not taken away by the plaintiflf having discounted and afterwards taken up the note, as appears to have been the case. The plaintiff was the holder of the note when he sued on it. In Older to make the transfer by the plaintiff to the Bank able by death, transportation or banishment,' or by any severer panishment than those hereinafter mentioned; and also all crimes and offences so committed as aforesaid which shall by such law be punishable by no higher punishment than those hereinafter mentioned, that is to say imprisonment fox a period of one year, fine or forfeiture to the- amount of one nundred pounds, and corporal punishment to the extent of fifty lashes.' No. 1515, No. 1752 and No. 2239, are Cattle-stealing cases. District Courts have jurisdiction expressly given to them by Ordinance 6 of 1850 to try cattle stealing cases ; and there- fore these cases come precisely within the words of the 66tb clause of Ordinance II of 1868, which not merely authorise but require District Courts to try all crimes and offences committed within their Districts, which by any law in force within this' Colony are or shall have been made cognisable in a District Court. The test laid down by the Supreme Court, about ascer- taining jurisdiction from the probably adequate amount of punishment, refers to cases of assault, stabbing, and other cases where the jurisdiction of the District Court attaches solely be- Nov. 25. { ^^8 ^^^"^ *"'— DistrictCouits. cause the offence ig one which the District Court can adequately Criminal Jq- punisb. It does not apply to cases where an Ordinance has ex- lisdiction, pressly given the District Court jurisdiction over this offence. In case No. 2239j the indictment charged cattle stealing only, and the District Court was bound by law to try the case. The true effect of clause 78 in Ordinance 1 1 of 1868 has been explain^ ed in the recent decision of this Court in the Negombo District Court case No. 221. The extra charges in the indictment in case 1752 about breaking into a stable and stealing carts as well as cattle, could not elevate that case above the jurisdiction of the District Court. In these three cases, thereforcj the judgments of the District Court are set aside, and the cases are to be sent back for trial in the District Court; Nob. 1466 and 1418 are Stabbing cases to which the abovementioned test applies, of as- certaining the proper amount of punishment according to the case as it appears on the depositions^ and of holding the case to be within, or not within, the jurisdiction of the District Court, according as the amount of punishment which a District Court can inflict, appears to be adequate or inadequate to the case, if proved according to the depositions. There are extreme cases either way, which it is very easy to determine. A knife may have been almost thoughtlessly drawuj and used in a hasty brawl, and the injury done may have been extremely slight. No District Court would consider itself incompetent to deal with such an offence. On the other ha'ndj there may be a stabbing case, so seriousj and attended with circumstances of so much malignity and brutality; that no District Court would think of trying it. But there must be a large middle class of cases as to which opinions may fairly difler : and we never would lightly' interlere with a District Judge's discretion. The two cases now before us come from this kind of debateable ground. If the learned District Judge had tried them, we should not have set the trials aside, or blamed him. But it does not follow that we should enforce their trial before him. We are by no means convinced that they were clear cases for his jurisdiction ; on the contrary, we are disposed to agree with him in holding, that the District Court's capacity for inflicting punishment is not com- mensurate with their heinousness, supposing the depositions to be true: We therefore in No. l-i66 and No. 1418 afftrm the District Court decision." DISTKrCT COUETS. f x, ^ J NOVR. 20. No'vember 26. Present Creasy, C. J., Stewart and Cayley, J. J. O. C. Colombo, No. 60,664. The 1st plaintiff, as proprietor of The Plumbago a certain land in Dedigomuwa, in theHewagam Code, under and case, by virtue of a Crown grantdated 12th October, 1835, and the other plaintiffs, as lessees under him, complained that the Government Agent of the Western Province had unlawfully detained eighty tons of plumbago which had been dug out of the said land, claim- ing a royalty thereon of Hs. 10 per ton, which the plaintiffs refused to pay, denying the right of the Crown to levy such royalty on private lands. The defendant {the Queen's Ad-vocate) in his An- swer alleged that the Crown by its prerogative had the right to levy the royalty in question. On the issue thus raised the case went totrial, and the learned District Judge (fiirrxtizV/f) held as follows : 14th March, 1873. The question at stake in this case is the right of the Crown to exact a royalty on Plumbago dug from private lands. The great increase in the commercial value of this mineral in this country, renders the question one of great importance. The first ground on which thedaim of the Crown is put forward is special to the particular case before the Court; and depends on the terms of the Crown grant by which the Plaintiff has his title to the land : but I am of opinion that the claim on this ground is not tenable. The condition of the grant on which the Crown depended is in these words — " that the said (grantee) shall from and after the (date of the grant) pay or cause to be duly paid to the use of His Majesty one full tenth (i-ioth) part and no more of the produce thereof as the Government share or rent thereof (viz. of the land), subject nevertheless to such general regulations as Government shall hereafter establish." This grant bears date 12th October, 1835, and it does not contain that clause of reservation of mines and minerals which is inserted in recent Crown grants : though, if it did, it would still have remained a question what minerals are comprehended under the general reservation; for example, whether it extends to stone or cabook quarries, kirimittie or por- celain clay, (which exists abundantly in the Island and will pro- bably someday become ot commercial value) — coal, should it ever be found, &c. The words of this grant, " one-tenth of the pro- duce" of the land, must be interpreted in connexion with the rest of the document. Now, the document states the motive for the grant to have been the desire of His Majesty's representative, by whom it was made, " to encourage the cultivation of lands," NoyR.26.] ^ fAETiii.- The Plumbago and it seems to me clear that the reservation to the Crown of one« case. tenth of the produce meant one tenth of the produce of such cul-. ti-uation, namely agricultural cultivation. Further, the real in- tention receives light from the laws which at the time regulated the interest of the Crown in the " produce" of land, or in other words which regulated the Government Revenue from lands. These laws were the Proclamations of 3rd May, 1800 ; 3rd September, l8ol ; 22nd April, J803 ; 14th January, 1826; which (firstly) have never, either by judicial decision or revenue usage, been applied to any other than agricultural or arboricultural produce ; and which (secondly) are all founded on the ancient tenure of land in Ceylon, which never embraced anything beyond the rendering of such produce and of personal services. On the subject of the Government tithes of produce of land, reference may be also made to Grotius' Introd. 2,45,4 (Herbert's translation, p. 254). I come now to the other and wider ground on which the claim to royalty is founded, namely the Crown prerogative, and which affects not merely this but aU private lands, whether held under grant irom the Crown or otherwise. It was virtually admitted at the Bar that such a prerogative could not be maintained in England ; (see the case of Saltpeter in 12 Coke's Reports) ; but even if the English law did confer it, it would not matter, as the prerogative of the Crown in matters not essential to the maintenance of political sovereignty, and especially in what are called the "minor regalia," does not extend beyond the realm. See Lord Brougham's judgment in Mayor of Lyons vs. East India Company in i Moore's Privy Council Reports, p. 283. We have, therefore, to consider whetiier it exists as part of the law of the United Provinces, commonly called the law of Holland. Now, at the outset, we meet with a remarkable discrepancy between the English law and the Civil law. Under the English law, it is stated to be " quite clear that by his prerogative the King is entitled to all mines of gold or silver which may be discovered, not only in his own, but even in a subject's lands within his dominions."* Chitty on the Prerogative, p. 145. But the Civil law appears to differ (1st) in not limiting the King's interest (whatever be its amount) to mines of the precious metals : thus Voet, 49,14,3, says, ar- gentarIjE, id est, argenti fodinae ; sed specie posita pro genere, sic ut omnis generis mctalli Jodinae contineantur ; (2) in limiting the quantity of his interest to a certain definite portion, as a * But not mines of other metals and minerals. The expression " domi- nions" is probably too large. See the Privy Council case already cited. The reference in Chitty to the Jth Vol. of Bacon's Abridgment is errone- ous : it should be Vol. VI, B. 8. '{ NovR. 26. fifth or a tenth, &c, of the metals dug from private lands. Voet The Plumbago ad Pand. 49,14,3. At least, Voet supports this as the more correct '^^^^ opinion. But Voet only speaks of metals, — and plumbago is not a metal, but almost entirely a form of pure carbon with very little admixture (and that not a chemical mixture) of iron. But the principle of the Civil law appears to extend beyond metals pro- perly so-called to minerals generally. Thus we find the following passage in the Code, under the title, De melallariis et metallis. " Cuncti qui per pri-vatorum loca saxorum •uenam laboriosU effossionibus persequuntur decimasfisco, decimas etiatn domino re- proesentent : caetero modo propriis suis desideriis •vindicando." Code, 11,6,3. And in another law, under the same title de metal- lariis et metallis, marble is included, 1 1,6,6. Now it is true that I find that Groenewegen, in commenting on this passage, says that this title of the Code has become obsolete, but then he immediately gives the reason, nanrely quia apud nos non sunt metalli fodinae ; wherefore where this reason fails, as where metals or minerals of commercial value arefound to exist, for example in the Dutch Colo- nies, as in Borneo, Sumatra, &c. (and the Malay Archipelago abounds with tin), where the Dutch law does not expressly pro- vide for the case, there can be no doubt that we must be governed by the imperial Civil law ; and according to it, if I put the right construction on this title of the Code, the Crown is entitled to a tenth share not only of metals but of what comes under the same legal (though not chemical) class, namely minerals of special commercial value dug on private lands. I therefore think that I must support the claim of the Crawn as one of its minor regalia in this Colony, and will dismiss the claim of the plaintiff : but as the question was a fair one to try at ' law, and as the whole question of the Crown's rights is by no means free of difficulty and doubt, parties will bear their own costs. I may add that I would strongly recommend that the opinion of the Appellate Court should be taken, and would very much regret if a point of so much difficulty and importance were left on my own single opmion^ 31st October, 1873, Ihavehappenedto light on a passage in Voet which throws some light on the subject of the decision irL the above case, now in ap- peal, viz., the prerogative right claimed by the Dutch Govern- ment in their Colonies, with respect to minerals, and which contains the Dutch text of a Regulation or Ordinance on the subject. I therefore append this Note, contain.^ ing a reference to the passage and my translation of tht Dutch text, in order to assist the Supreme Court in theit decision.' NorR.26.} ^ ^AKT in.— ThePlumbago of the case. In Lib. xli, tit. I, § 13, (Com. ad Pand.) Voet,— deatiirg, case. not witfi the question of 7?(3>ia/^, which is the subjecH of this suit, but of the ownership of minerals, — first states that mines of metal, gems newly found or dug, and the like, belonged by the Civil Law to the owner of the ground in which they were found, and passed to purchasers and usufructuaries, and then adds that now they are in many places claimed by the Fisc, but that it would not be altogether safe to assert that this would be done in the States of the Belgian Federation, if it should ever happen that such things — hitherto unknown there — should be discovered, see- ing (he says) that the distinctions made by the Civil law in respect to treasure trove are generally considered as still approved as law among us, and especially considering that clay adapted for pottery and even sandpits pertain to the owners of the fields con- taining them ; and — passing over stone quarries and fictile clays (fit for making bricks?) — that it does not appear that in the neighbouring Government of Utrecht the Fisc claims the diamonds occasionally found in the hills of Amersfurt, though indeed (this may be owing to the fact that) they are of trifling value compared to those imported trom abroad. But as regards mines of metal and gempits discovered by the subjects of the Belgic Confederation in i?/<;?ia, the rigl»t to these is claimed by Go-vernment, and it is, inter alia, enacted in the order for the Government of the West Indies of the 13th October, 1629, art, 24, 25, 26, (s/ol. 2 of the Ordi- nances of Holland, p. 130) as follows : — (Here follows the Dutch text which I proceed to translate literally) ; — " that all recently found minerals and mines that may hereafter be discovered, whether of gold, silver, copper or any other metal, as also of pre- cious stones, diamonds, rubies, and the like, together with the pearl-fisheries and amber collections, shall only be worked by or on behalf of the Company and for their profit. But if any of the inhabitants or of the garrisons or colonists or others of whatever race or condition shall happen to find any of the foresaids, they, their heirs or representatives shall have, as recompense and reward, one twentieth part of the clear (suyver) proceeds of the said gems, mines or pearl-fisheries, and that for the period of the first five years, reckoning from the day when the Com- pany has undertaken their working, and also the twentieth share of amber, &c." It appears from the above that,in its Colonial possessions,the Dutch Government claimed more than a Royalty, viz., the actual property of ( 1st) all metals, and (2) oi precious minerals and certain other rare and precious commodities : that the law as to the title of any that might be found in Holland it- self was open to question, owing to their absence from the soil of that country, so far as known, having prevented the question DISTftlCT COURTS, < NOYR. 20-- arising ; but that stone quarries and useful days, &c. in Holland The Plgtmbago. belonged entirely to the owner of the soil, without mention of case- royalty. On the other band, all ntines and minerals appertain by the Civil law to the owner of the soil, subject however to a Royalty in favor of the Fisc of one-tenth from all (whether of the p recious class or not) which are regularly worked by labour — as appears from the passage in the Code on which the judgment is based. In appeal, Fitzroy Kelly, for the plaintiff and appellant : — The first question is by what law this matter is to be deter- mined ? The British Sovereign cJaims no such right in her realm of England as that here set up. This is in fact admitted on the part of the Crown. Then what is there in Ceylon to give the British Sovereign a larger right ? What is the prerogative law in regard to dominions obtained by cession ? From the follow- ing authorities, Chitty on the Prerogative, p.p. 25, 26, 32, Blanchard V, Galdy, 2 Salkeld, p. 411, the statement in 2 Peere Williams, p. 75, and the case of the Mayor of Lyons v. East, India Company,. I Moore's P. C. C, p. p. 274, 283, it seems that in the circumstances, mentioned the Crown succeeds to the rights of the ceding ruler» but that English prerogative rights are not ipso facto introduced into the new dominion. iVtany of them would be wholly unsuited to the eharacter and circumstances of the ceded country. Of course they can be introduced by positive enactment. But then they take effect by the statute law, not by the prerogative as part of the common law. In the case cited from Moore, it was argued that the prohibition against aliens to hold land in England, which is considered to be an incident of the English prerogative, applied to Bengal. But Lord Brougham, in delivering the judgment of the Privy Council, rejected this view altogether, holding that the prerogative rights of the Crown would not necessarily attach to a country acquired by conquest, but required to be expressly intro- duced ; excepting, of'course, such prerogative rights as are essen- tial to the sovereignty of the governing power, which are not affected by the present question, as the minor rights^ varying^ much in different countries, are alone being considered. But it does not follow that the point is to be determined, and the rights of the Crown to be measured, by the Dutch Law. Ceylon never formed part of Holland any more than Bengal formed part of England ; both were acquired, so far as they were acquired, by conquest; and the Dutch East India Company held about as pre- carious a tenure in this Island, as the British East India Company in the early days held on the continent of India. The same prin- ciple that forbad the introduction of the English prerogative, .otherwise than by positive legislation, into Bengal, would forbid 'he introduction of the Dutch prerogative, otherwise than by posi- ^, <; 1 E PART HI- — NOVR. 20. > ThePlumbagotive legislation, into Ceylon. Now there is no proof of any such case.. legislation having taken place here,: — no proclamation, placaat, or ordinance, to that effect. In the absence of any such enaclment» the natives of this country, during the Dutch occupation, must, on the principles that have been stated, have remained subject only to such prerogative burdens, as they had sustained under their own Sinhalese Sovereigns. The fact, if it be a fact, that land in Holland was subject to this fiscal imposition, would not render Sinhalese estates in Ceylon Ifable to it, as a necessary consequence of their being under the Government of a Dutch Trading Company. The appellant, however, does not admit that such a prerogative- right ever existed in the seven United Provinces of the Dutch Republic. They were governed by their own laws and customs,, and the Roman law was never bodily incorporated with this local jurisprudence, or substituted for it. The Courts were permitted' to refer to it when the local law was silent,, and as the respect for it! increased, it became usual to apply it to cases for which no pro- vision had been made by the local law. It was introduced, as the Jurists tell us, in subsidium., (see Van Leeuwen's Introd., p p. 5. to 9 ; Vander Keessel, Thes. Sel., xix to xxii.) ; and it was never admitted when at variance with the analogy of the- local law, or depending on a different system of government. There could be no analogy between the Dutch free system of Government and the despotism of the Roman Empire. The introduction by implication of prerogative claims and fiscal bur- dens which had been borne by the slavish subjects of Constanti- nople or Rome, would not have been very cordially welcomed by a people who especially required their Counts to establish no new taxes or impositions without the consent of the States. Grotius, in his introduction. Cap. XIV, sec. 2, tells us that the^'ai decima- rum, or right of the Counts of Holland to the] tenth of fruits, was granted to them for the support of their station, by virtue of the old German Law which was older than Christendom. It is not likely that a nation who announced that " King Philip, in consequence of his having violated the laws of the country, had conformably to the laws truly forfeited his principality" would have patiently submitted to fiscal confiscations unknown to their fathers. The jealousy with which they viewed the governing, power may be seen from the restrictions imposed on the Prince of Orange when chosen to be " the protector of the liberty of the Netherlands." (See Motley's Rise of the Dutch Republic, III. p. 418.) Is it likely that they wculd have viewed with equanimity a claim on his part to prerogative exactions, traced to the Roman, Despots, which would have tended to make him independent of DISTRICT COURTS. F 5 nt r < NOVR. 26, t^e sappfies under the control of the States? Groenewegen in The Plumbago his treatise de Legibus Abrogatis, p. 798, referring to the Code, "^^e. Lib. XI, tit. 6, expressly says that this right of the Emperor to a ■royalty of a-tenth on the produce of mines, &c, is not in force in Holland. He suggests a reason, viz, that there are no mines for it to operate upon. We may accept the fact without regarding the reason as the only one that could be given. Whether, if there had been mines in Holland, the Dutch would have allowed the ■claim, may be open to conjecture ; but at any rate, one thing is Q.txX2Mi,'i!!\sX.theclaimivasnot in force. How then can the Dutch conquests in Ceylon have imposed on their Sinhalese subjects a law which was unknown in both countries, a law which was an historical curiosity, interesting to students like Groenewegen and Voet, when commenting on a system of jurisprudence which had been in a great measure introduced in subsicUum into their own, but which had no significance to the practical world around them ? In the passage referred to by the learned District Judge, Voet ad Pand., xlix, 14^ 3, the author seems to be mentioning the Regalia that anciently belonged to the Emperor rather than posi- tively declaring that they were enjoyed by the Stadtholder. It is for the Counsel for the Crown to produce any positive enact- ment of the law of Holland on the subject, if such there be. In the absence of any, it is submitted that the principle which con- strues penal laws and fiscal regulations in favour of the subject, should reject the implication of a right to confiscate a portion of the subject's property never in force in Holland, whatever it may have been in the Roman dominions. It may be admitted that there are passages in the Roman law books which favour the supposition that some such burden was imposed _ under the Empire. But these are few, and not altogether clear or consistent; and it seems to be daubtful whether the Roman Emperors claimed the whole or a portion of the minerals, and if a portion only, what reference it bore to the whole. The statement of Van Leeuwen, that " metallorum nomine saxum etiara intelligitur" gives the claim such a remarkably wide extent, that the circumstance of its never having been enforced in Holland or Ceylon derives an additional argument against the existence of the right. It is submitted that Sinhalese estates are not liable to all the burdens and fiscal regulations of the old Roman Empire. The Queen's Advocate, contra. — There was no doubt that, under the old Roman Law, the Crown was entitled to a royalty of i-ioth on all mines and minerals. This was clearly laid down in the Corpus Juris Ci-vilis, Code, II, 6, 3. and the learned Editors of the edition he was quoting from— Van Leeuwen apd Gothefred, both ,, ) G PART III NovR 26. j^ The Plumbago eminent Dutch Lawyers, — in their marginal comments, instead case. of showing that this rule was not adopted by the Roman Dutch Law, rather amplified the purport of the p.issage— :" Metallorum nomine saxa etiam intelliguntur" Admitting, therefore, that this right was recognized by the Civil Law, the question remained was it adopted in the Roman Dutch Law ? He contended that it was for his learned friend to show that it was not, rather than for him, (the Queen's Advocate) to show affirmatively that it was. What was the Roman Dutch Law ? Van Leeuwen (Commen- tarres, p. 2) points out that the Roman Law was, in his time, observed as the Common Law of Nations and adopted in all cases in which the special laws of any state made no provision ; that even in such cases the special laws were to be so far restrained " that the Roman Law might be injured as little as possible," — adding " it is so used and observed in our Netherlands, as is testified by Grotius, iVlerula and other writers." So Vanderkees- sel in his Theses Selecta:, p. 6. — " Laws and local customs, whe- ther general or particular, entirely failing, we ought to recur to the Roman Law and seek a decision thence. Nor could it pro- perly be required that the use or adoption of the Roman Law on that particular point should have been confirmed by some deci- sion." So Vandei linden (p. 57) on failure of any general law or local ordinance or custom, " the Roman Law, as a model of wisdom and justice, is called in to supply the casus omissus." A host of authorities might be quoted to the same effect. There being no special law in Holland respecting mines and minerals, the Roman I^aw therefore applied ; — and, if so, it was for his op- ponent to show that it afterwards ceased to be in force. Groenewe- gen was the only authority cited to this effect, and his reason for saying that it was not in- force was that there were no metals in Holland — not that it was repealed or that it was opposed to any law or custom in Holland. The learned writer seemed only to have meant that, as no mines had been discovered, the law had not been put in force. Voet, who always pointed out where the Roman Law did not apply moribus nostris, was silent on this point when he spoke of Regalia. The next question was, admitting that this branch of th*; law was in force in the United Provinces, was it in- troduced into Ceylon ? The old rule was well established that, in countries obtained by cession, the ancient laws continued in force until they were altered by the conqueror. But so far from those laws being altered, their validity and efficacy were confirmed by the local Proclamation of September 1799 and the Ordinance No. 5 of 1835. There was no authority for the distinction drawn by his learned friend between prerogative and other laws. " f Norn. iS. AH the laws and institutions of the. United Provinces came into The Pluraiag* force, unless it was made clear that any branch of them was not *^**" Introduced or introduced only in a modified form. Herein was ihe great distinction between the present case and that of the Mayor 'of Lyons, vs. East India Company, reported in Moore. In that case the question was, wliether that branch of the English ,law which incapacitated aliens from Tiolding real property for their own use, and transmitting it by descent and devise, had ever been introduced into the East Indies i The East Indies was a coun- try which had a government of its own, and the English, like other nations, were permitted to effect a settlement by permission ■of the government, and were therefore not originally in a position to carry this branch of their law with them. The settlement gra- dually gained dimensions, and rights of sovereignty were not as- sumed till lon^ after. But in several Acts passed by the English, reference was made to the subjects of other countries whose rights were reserved. It was clear, tlierefore, that the English did not carry «r mean to carry with them this branch of the law, which after all was only a rule of municipal law and not a right incident to sovereignty. Nothing of the kind could be predicated as respects plumbago. The right of the Crown could not be asserted until the existence of mines was known, and it was only within recent years that such was the case. The Crown had done nothing before to give up its right, and, if it were a right of sovereignty, it was not now too late to declare the law and enforce the right. He would lastly refer to Thurburn v. Stewart (5 Moore) in which the Privy Council held that the Placaat of Charles V, of 1540, which was not acted upon at the Cape, did nevertheless not lose its force there — a principle which to come nearer home this Court had held lately in the Mortmain case. Into the arguments as to how far the free government .of the United Provinces was likely to borrow the iprerogative and fiscal laws of ancient Rome, he, (the Queen's Advocate,) did not Jthink it necessary to enter, as they did not affecst the legal merits of the question before the Court. The following is the judgment of the Supreme Court as delivered by the Chief Justice. Judgment nffirmed. — In this case the Government,as represented by the Queen's Advocate, contends thatit has a right to levy a tithe or a royalty of i-Toth on the produce of Plumbago -mines in private lands. The plaintiffs deny the existence of buch a right. No other point was made the matter of substantial discussion by either party before us. It is a single-qiiEstion that we have to iconsider ; but that question is a very serious one^ inasmuch as Plumbago, though fill lately little noticed or sought for in Cejilon, ie now becoming an article of great commercial value ; and NovR. 26. 1 ^ PArtT III.- The Plumbago mining operations in order to obtain it have been commenced in many parts case. of the island. Agreeing with the learned District Judge as to the question being avery important one, we wish, in consequence of some expressions in the early part of his judgment, to guard ourselves against being supposed to ad- judicate on this occasion on Crown rights generally to a roycilty over all products of the earth (other than living vegetable products), which may be dug or otherwise extracted from the soil. Cases as to many of them (should such cases arise) might have, and probably would have their own special circumstances, which would require special consideration. The facts of the present case are very simple indeed. It is only necessary to observe of the grant of the land in question from the Crown(under which grant the plaintiffs claim to dig and appropriate the plumbago without yielding tithe or royalty) that the grant contains no reservation to the Crown of mines and minerals ; and that, on the other hand, the grant con- tains no words which could divest the Crown of its right to a royalty or tithe on minerals, supposing such a right to exist. The first thing to be ascertained in this case is, whether the question is to be determined according to English Law, or according to Roman. Dutch Law. It is conceded on the part of the Crown, that, if English Law is to rule, the Crown cannot maintain its present claim. But it is contended that the case must be judged according to Roman-Dutch Law ; and we think this contention is right. Ceylon became a Crown Colony of the British by conquest and cession. The usual rule is that the ancient laws of a CoMny in such a case continue, until they are altered by the conqueror. (See the 5 th proposition affirmed by Lord Mansfield in the great case of Campbell v. Hall, Cowper's Reportsi vol. i,p. 2D9). Unquestionably the old laws and institutions of Holland more correctly termed the laws and institutions of the Seven United Provin- ces, were the old laws which the English found in existence here, when the Colony passed from the Dutch to the English. (As the land in question is not within the Kandyan Territories, there is no need to encumber the case with Kandyan law.) Moreover by Royal Proclamation, when the English took possession of Ceylon, it was ordered that the temporary administration of Justice and Police should, as nearly as circumstances would permit, be exercised in conformity to the laws and institutions that subsisted under the ancient Government of the United Provinces ; and in 1835, ^7 Ordi- nance No. 5 of that year (confirmed by - the Crown), it was declared that " the laws and institutions, which subsisted under the ancient Go- vernment of the United Provinces, shall coniiime to be administered, subject nevertheless to such alterations as have been or shall be hereafter by lawful authority ordained." Taking it then as clear that this ease is to be adjudicated on according to the laws and institutions of Holland as they subsisted and subsist here, we look to the Advocate for the Crown for proof chat a claim to the DISTKICT COURTS. J 1 NoVR. 26. royalty in question is maintainable here according to those laws and in. ThePlumbago stitutions. case. To do this, there must be satisfactory reason shewn for believing, ist. That the old Roman Law recognised the existence of such a right as is now claimed ; 2ndly. That such part of the old Roman law had been recognised and adopted in Holland ; and 3rdly, supposing these two first points be allowed, that such part of the Roman-Dutch law was portion of the laws and institutions which subsisted under the Dutch Government in Ceylon. The learned Counsel for the plaintiff has, very fairly, insisted on all these three points being established before the judgment against his client can be affirmed. His chief contention was as to the 2nd and 3rd points. There was not much dispute about the old Roman law itself sanction- ing such a claim. In the 50th Book of the Digest, tit. xvi. sec. 17, Ulpian, as ther»quoted, ranks among the property of the State the duties, tolls or tithes which are levied for the benefit of the public treasury. And he gives, among other instances, the tithe which was levied for the public treasury on minerals. ** Puhlica vecfigalia inielligere debemus ex quibus vectigaljiscuscapit: quale est vectigal portuSj vel venalium rerum : ilem scdinarum et metallorum el piscariarum." We will pause here merely to express our agreement with the learned District Judge in considering that such a. substance as Plumbago is clearly a mineral, a Metallum, within the meaning of the Roman law. It is indeed but doing justice to the Advocate for the plaintiff to say that no time was taken up in disputing this matter. Unquestionably in the scientific language of modern Chemistry Plumbago (technically called Graphite) is not a metal, being a carbon compound; but that it is a mineral, such as would come under the latin word " Metallum," may be seen by looking out the word in Facciolati's Lexicon, and observing the meanings which it embraces, and for each of which good authority is there given. It means not only substances such as gold and silver, lead and iron, but generally materia ilia dura quce ex terrce visceribus effoditur^ Marble and many other things are shown to be " Metaila." The instance of Sulphur, which is one of the recognized "Metalla" in Latin, bears the closest analogy to the particular substance which we are dealing with. We return now to the authcjrities in the Corpus Juris for the State having a right of tithe, a " Vectigal" in the form of a " Decuma" over minerals. Besides the passage in the Digest already cited, there is the Code, book XI, , tit. VI, which by paragraph 3 orders that "^cuncti qui per privatorum loca saxorum venam laboriosis effossionibus perseqmmtur, decimas Jisco, decimas etiam dommo reprasentent." Van Leeuwen in his much valued Commentary says of this passage that " Metallorum nomine saxum etiam intelligitur.'* The wording of this title in the Code is " D« Metallariis et Metallis eb procurafnribus metalUn ?im.'' iV.VR. 26. { ^ '^"^ «I'- Tile Plumbago There is alae a passage in the md book Z>e Audti^ bt. j6, "^Qtueaint '^*" Regalia," which Voet in his commentary on book 49 of the D^est, tit. 14, sec 5, treats as bearing on this subject, and as proving the State's light to a royalty on minerals. The authority of the Libec Feudorum as part of the Corpus Juris, that is as part of the Body of Roman Law received and recognised by mediaeval and modern Jurists, has been impugned by some commentators : but it has been acknowledged by the great majori. ty of Dutch Jurists, as may be seen in the prefatory lemarks on these " Feudorum Consuetudines*^ in Groejiewegeii de Legibus Abrogatis, page goi,. Above all, its authority and the authority of this particular part of it are sufficiently vouched by the fact of its being quoted and relied on by Voet- The Liber Feudorum in its second book, title 56, contains a list of Regalia, among which are enumerated " Argentarise." Voet,, in his com- mentary on the 49th book of the Digest, tit xiv, § 3, cites and explains this passage in the Liber Feudorum. His opinion is that when Argemtariaf,. that is to say silver mines, are mentioned in it, we are to regard the word, as used for all mines of minerals, the species being placed for the genus. ** Proponnniur argentaria;, id est, argenti Jodina, sed specie positd pro- genere,, sie ut omnis generis metaliifodinie-contineantur."^ He goes on^jjo say that he differs from those who claim all minerals, though found in private ground,, as Regalia j and he thinks that the passage either refers to the produce of mines in state-lands only, or that the passage does not mean the mines themselves^ but the certain portion, as a fifth or a tenth, or some other portion which is rendered to the Sovereign Emperor and other Lords- ot Regalia from raines^ in whatever part of his territory they are found and- established. He adds that this last mentioned sense, that is the Sovereign's- or State's right to tithe or royalty in minerals, wherever found, is the true- sense of the passage in the Digest, book go, tit. 17 (which we have already referred to) as to a right to tithe of minerals being part of the State's proprietary rights. He refers also to the passage in the Code already cited), book xi, tit. vi, De Metallariis et Metallis. ffis words as to the passage in book 50 of the Digest, are Eoqite seitsu videntur inter fiscalia jura r^ferri vectigalia metallorum. Lex " Inter Picblica" I Jr Titulus De verboriim significatione. ^ Considering then this position in the argument to be proved, that the right in question would exist according to ancient Roman Law, we come to the next step; and we have to examine whether this part of the ancient Roman Law was in force in Holland. The learned Counsel for the appellants denies this, and says that there is no proof of any edict or ordinance or proclamation, by which the Counts or the Commonwealth of Holland ever introduced this law. But we do not think that any such proof is necessary in order to make us believe that the Dutch jurists and rulers acknowledged any particular branch of Roman law. They acknowledged the Roman law generally, except such articles in it, as clashed with the principles of their constitution, and provided also that it was not overruled by any express law of Holland on the subject, or any custom having the foieeoilaw. We cannot as to this follow a safcc director than Vanderlm- The Plumbago^ dea ; whose guidance is peculiarly valuable, because he live C. C. (N.S.) p. 333, in looking to the nature of the law in question, to the character of the Dutch Colonists, and to the objects of their colonization,so as to guide us in determining whether law about minerals was law, that must have appeared to be suited to the requirements of the Dutch Colonists here, and which therefore was not likely to have been omitted from the laws of their old country, which they brought here with them. Now, if there be a fact peculiarly certam about the motives for European colonization in the East Indies as well as !R the Western world, during the i6th and t^th centuries,, it is the fact that flSTHICT COURTS. N j NOVR. 26. the hope of finding mines of precious substances was one of the most power- The Plumbago ful stimulants of the adventurers ; and the Dutch were (to say the least) <=^==- as susceptible to such influences, as were other European nations. Law about rights over the mineral wealth which was ever desired and hoped for (though in Ceylon, as in many other settlements, such hopes were long deferred) formed a part of the law which would naturally be wanted here, and which we must regard as not omitted from that general body of Roman-Dutch institutions which certainly prevailed here, while the Dutch were tenants of that dominion in Ceylon, which now has vested in the Majesty of Great Britain. D. C. Matara, 25965. This was an action by the plaintiff Right of chil- against his father-in-law, to r ecover specific^ portions of 14 lands, '''^^"gj" ''a- as the share due to plaintiff's wife from her deceased mother's cent's share estate. A Chetty intervened and claimed a mortgage by the de- of the joint fendant over certain of the lands. The District Judge {Sweiten- estate. ham) non-suited the plaintiff, on the ground that he could not h / claim any particular land, his right amounting only to a hypothec /'J 'J (Xi giving him preference over all subsequent creditors or purchasers for the value of the mother's share of the community at her death. The Judge relied on Justice Jeremie's decision in Putlam 1923 and ColoTibo North 2983, Morgan's Dig., 189. In appeal, Ferdinands lor appellant. — The judgment relied upon by the District Judge was over-ruled by the Supreme Court in two Colombo cases: D. C. 54929 and D. C. 60403. Per Stewart, J. — " Set aside, and judgment entered for the plaintiff and his minor daughter for an undivided half of so much of the lands and premises specified and mentioned in the libel and which belonged to the joint estate of the defendant and his deceas- ed wife. The claim of the intervenient is dismissed, so far as it affects the moiety above adjudicated to the plaintiff; but the said claim to be held good as respects lands or premises or shares there- of not hereby awarded to the plaintiffs. The t>istrict Judge will, if necessary, make further enquiry and enter up judgment as above directed. The old case reported in Morgan's Digest, p. 189, and referred to by the District Judge, has been over-ruled by recent collective judgments of the Supreme Court. See Colombo D. C. No. 54929, Novr. 3rd, 1871 i and D. C. Colombo, No. 60403, November 22nd, 1872, in which it was expressly held that the children of a deceased parent succeed at the death ol such parent to a moiety of the joint estate of their parents ; — and consequently to a moiety of the s ever al landsof which the joint estate may have consisted, subject to the right of the surviving parent to alienate or encum ber for debts or expenses contracted during the commu- NOVR. 20. O VAftI lit. — nity as pointed out m those judgments. In the present case there is no evidence, nor is it even suggested, that there wede any debts or liabilities of the joint estate which made alienation necessary. It will be seen that the lands, a moiety whereof is now awarded Vo plaintiff, only comprise such immoveable property mentioned in tbe libel as the defendant and his wife were possessed of at the time of the death of the latter. The jrfSgment in favor of the plain- tiff is not to include any property acquired by the defendant sub- sequent to the death of his wife. The costs of both plaiiitiff and intervenient to be paid by the defendaiit." Construction of D. C. Mafara, 2602,9. The plaintiff, on behalf of himself and a Will. his infant child, sued his mother-in-law, the defendant, for the recovery of certain moveable and immoveable property which had been specially bequeathed to his late wife by her father, who bj the 5th clause of his Will had declared as follows : *' That my s^id eldest daughter Emily shall forfeit the right to , all, and each item of, the property thus left to her, virtually and entirely, in case she contracts a marriage against the wishes of Mr. George Edward Ernst Mrs. Emily Sophia Ernst, and Mrs, Emily Felicia Buultjens, (my father, wife, and sister). It is to be distinctly understood that at any time the opinion of any two of them is to be received tor or against — where all the three cannot agree. If she contracts a marriage according to my above expresseil desire, or if she Chooses to remain single, the property shall be unconditionally hers, at the age of one and twenty." The testator died in 1864. In 1869, the daughter (who was then 17 years of age) married the plaintiff, with the full consent of the abovenaraed persons ; and she died in 1871. The defendant now contended that, under her husband's will, the property was not to vest in plaintiff's wife until she attained the age of 21 years, whether shemarriedornot before that time. The District Judge (S-wet- tenhani) however entered judgment for plaintiff for one-half of the property claimed in the libel, reserving the minor's rights. In appeal {Grenier for appellant, Ferdinands {or respondent) per Cayley, J. — Aflfij-med. Corporal pun- D. C. Anuradhapura, 123. The defendant, an Arachi, was ishment. convicted, under the 2nd clause pf Ordinance 6 of 1850, of having " corruptly demanded and taken a sum of fe. 10 for helping to recover certain stolen cattle, the property of the complainant," and was sentenced, on the sth of November, by the District Judge DI»TRICT COURTS. 130 (Dicksim) " tb receive 50 lashes, 25 to be inflicted in the Bazaar at Anuradhapura on the morning of the 17th instant, and 25 lashes to be inflicted within 45 days thereafter at the whipping post in Kal- lankiga on such day as the Fiscal may appoint : the defendant to give approved security in Hs. 500 to surrender at the above places on the appointed days." In appeal, (^Ferdinands for ap- pellant) per Cayley. J. — " In view of the remarks of the District Judge as to the prevalence of this crime in the District referre d to and of the fact of the defendant being a headman at the time when he committed the oiFencej the Supreme Court sees no reason to in- terfere with the decision of the District Judge as to the infliction of ■corporal punishment. This Court has, however, in a previous case held, and still thinks, that a defendant should not be punish- ed by two floggings, though such a punishment would not be against the strict letter of the law. The judgment is accordingly Affirmed with the modification that the corporal punishment be reduced to 25 lashes." Not. 28. Novenrber 28. i^reseht Creasy, C. J., Stewart and Cayley, J. J. D. C. Matara, No. 26483. This was an action instituted in Administra- july 1872, by the plaintiff, upon an assignment of a security bond tion. which had been executed in January 1848, by John Wetzalius Security Bond Perera, Secretary of the District Court of Matara, as the official P"^^^"^" administrator of the estate of the plaintiff's parents, who had died in 1845-6. The defendants were the sureties of the deceased ad- ministrator and his widow, and were sued for the default of the administrator in not paying to the Iplaintiff Hs. 1300, the share of the estate due to him. Only the two sureties (the 2nd and 3rd defendants) answered, pleading prescription. It appeared at the trial that the plaintiff was born in December 1843 ; that the bond, oh the assigtiVneht of which the action was founded, was in favor of " Charles Daniel Ludovici, the Head Clerk of the Court, and bf the Secretary of the Court for the time being ,■" that the bond required the admirtistrator to pay over the residue of the estate to the heirs'; that the plaintiff was the sole heir of the intestate; and that the administrator had done nothing beyond filing a pro- Visional account on the Sth August, 1848. The plaintiff having waived the widow (the ist defendant), the learned District Judge (I^i//«a»»i) held, that the plaintiff having attained his majority in 1865, his right of action had been prescribed by the operation of the 3rd clause of Ordinance No. 8, of 1834 ; and that there was Not. 28. 131 PART in.- prescribedi Administra- such laches on his part as would not justify the Court in interfering' tion. jt, point of equity. orescribed°" ^^ appeal, AlvJis, for appellant, submitted that the right of the heir to sue accrued only when he beeanie a major 5 that he attained his majority in 1865 5 and that prescription could run only from that date, which had not been ten years before action.- The plain- tiff had no .action until there was 3 breach of the bond, that was until he was denied his share of the estate when he had come of age and was entitled to demand it, Ordinance No. 22 of 1871) and not No. 8 pf 1834, was applicable to the case. Per Cavdey, J, — ^"Affirmed. The Supreme Court thinks that the administration bond sued upon, so far as relates to the lia* bility of the sureties, the 2nd and 3rd defendants, was prescribed be.fore it was assigned to the plaintiff. The Bond, which was in favor of the Secretary of the Court, was executed in 1848, and was flqt assigned to the plaintiff until 1873. The case must be governed by the Ordinance 8 of 1834, by the 3rd section of which Jt ia enacted, that no action shall be maintainfable upon any bond conditioned for the perfornjance of any trust, unless sudh action shall be brought within 10 years from the date of such instrument, or the last payment of interest thereupon.: that is to say, under that Ordinance, prescription began to run, not from the date of breach of the condition, but from the date of the instrument, or tha last payment of interest on it. Under the new Ordinance of Prescription (No. 22 oi 187 1 §6), the breach of the condition in a bond is expressly made one of the points from which prescription begins to run. How far the estate of the deceased adminfetratoi' is liable for his mal-administration, it is not necessary to enquire, the claim against his representative, the ist defendant, having been waived by the plaintiff at the trial." Road Reserva- D, Q. Esmd^, 55764. TWa was an aetion by the Trustee oC the tions. Baptist Missionary Society against the MuwQipal Couaoil of Kandj^p, "'^" to restrain the latter froja ereetipg a wall on a Road ReserYSticoa in M. C. kandy. tcQvit, of the Baptist Chajiel and in front of an adjoining bouse which had been originally built for the accQinmodation and residence of tli« Baptist Mis«onariea, but which had fo* some years past b^ien occupied by tenants under the said Society, The learned District Judge (Caa%) teld as f oilo,ws : " Tke fiist question which arises for deterwinatjen appears ta me to be this: — Have the Mission Soxsiety acquired a p^escr-iptiTte title to the groiBid in front of their house and Chapel> vhich is to he taken V. M, G. Kaniy, DISTRICT COURTS. 132 ) -^^^ 28 for widening the road ; or, if not. have they acquired a prenftriptive Road Reserva- title to the easements of light, air, ingress and egress which they '>ons. have hitherto enjoyed ? As against the Orown they°have, it appears '''"J"'^ to me, acquired a prescriptive title to neither the one nor the other. The prescriptive period of one-third of a century has not elapsed {see 1245, D.' C. Colombo, S. C. Minutes, \Zth Sejitmber, 1870)'; and to far as relates to the ground, the title of the Orown has been ac- Itnowledged by the plaintift applying for and accepting an occupancy ticket from the Government, and agreeing to pay a rent Of one shilling per annum for it. And, although the Municipal Council (assuming the ground to be now vested in them) cannot as grantees of the Crown, claim the privilege of the Crown in respect of the jorwonyBft'o longissimi tefnporis (see Chitty Prerogt 399J; still as the Deed of grant, under which the Society claim their premises, by reference to the Survey attached, expressly reserves this ground for public purposes, I do not think that they can, when propounding the Deed, which makes this reservation, at the same time set up, in contravention of the terms of their grant, a prescriptive right to prevent the reasonable use of the land for these purposes by any person duly authorized in thit behalf. Assuming, then, that the Society have not acquired a prescriptive right either to the land or to the easements claimed, we come to the question : — Have these Road Reservations become vested in the Mu* Hicipal Council? Or, have they acquired right to enter upon them for the purpose of widening the roads or streets to the injury of the occupiers of the adjoining tenements ? This is a question of some difficulty and great importance. It was argued by the defendants' Counsel, that when the roads and streets within the gravets became vested in the Municipal Council, the reservations passed with them ; that they are in fact a part of the roads and streets for which they Were reserved. In point of fact, however, these reservations are not part of the roads and streets. In the present case, for instance, the reservation is some feet below the road ; one portion of it is a garden 9nd the other (that in front of the chapel) was enclosed with a rail and gate for a number of years ; and, according to street lines marked in the plan Z, upon some portions of the reservation the fronts of several substantial houses have been built. The question must be determined by reference to the Municipal Councils Ordinance (17 of 1865J. By the 87th clause of that Ordinance, it is enacted that all public streets and bridges within each Municipality (except such as have been specially exempted by the Governor,) and the pavements, stones and other materials thereof, and also all erections, materials implements and other things provided for such streets shall be vested Nov. 28. { ^33 PART III.- Road Reserva- in tte Municipal Council for the purposes of the Ordinance. Now tions, the expression "otherthin^sprovided/br such streets" mvLSl,lthmh, Car er j^g construed to mean other things of a similar kind with erectionSj M. C. Kandy. materials and implements, and cannot be held to include road reser-. vations, To turn now to the Interpretation Clause, the word Street is there declared to mean any road, street, square, court, alley, or passage, whether a thoroughfare or not, over which the public have a right of way, and also the roadway over any bridge or causeway within the town.^ This clause does not appear to me to include these road reservations. For although they may be liable to be converted into thoroughtares at present, many of them have not been so converted ; as for instance the one in question, nor have the public as yet neces- sarily acquired a right of way over them. Again, it is not probable that it would often, if ever, become necessary to widen any road beyond the reservation, and if the reservations were vested in the Council, or- if the Coimcil had full and unrestricted power to use them, there would be no necessity for that part of the 88th clause which refers to widen- ing streets and by which the Council is authorized, witti the sanction of the Governor and Executive Council, to widen any street mak-. ing due compensation to the owners and occupiers: of the land required for that purpose. At all events, an exception would would have been made so far as it relates to widening the streets to, the extent of the reservations. It is also to be observed that parts of these reservations consist of waste land, and under the 61st clause of the Municipal Councils Ordinance, waste ground or land within a Mu- nicipality does not vest in the Council until it has been handed over- with the sanction of the Governor, Again, comparing the Interpreta- tion Clause of the Municipal Councils Ordinance with that of the Road Ordinance (No. 10 of 1861) which is in pari materia with it soi far as relates to this subject, it will he seen that the word Koad in the latter Ordina,nce is expressly dqflared to include such waste land adjoining any Road as may have been reserved for its protection and benefit. If it had been the intention of the Legislature to includ? these reservations under the words Street or Road in both Ordiu • anoes, it is difficult to see why it shbuld be expressly so stated in the one and left to inference only in the other. There is moreover, I think, a good reason why the Legislature should have placed these Reservations jinder the operation of the Road Ordinance, and yet not intend them to be vested in the Municipal Councils. Complete control over the roads is left in the Government by the Road Ordiuf ance; whereas by the Municipal Councils Ordinance the Government Jiave merely relinquished all control over the property hi^aded ovef DISTRICT COURTS. 134 Nov. 28. to the Councils. If the Legislature had intended to give to the Road Reserva- Councils such unlimited power over the reservations as this, I think i'""®' that such intention would have been clearly expressed, and not left ^_ to doubtful inference only. The Missionary Society are in occupa- j^^ c, Kandy, tion by themselves, or their tenants, of the land proposed to be taker* by the defendants, and in the enjoyment of the easements of light, air, ingress and egress referred to, whether with a good title or not ; and they have been in such occupation and enj oyment for nearly thirty years. It is true th^^t they recently, and probably in anticipa- tion of this dispute, obtained a,ji occupation ticket from Government, which was afterwards withdrawn, for the ground in front of their House and Chapel ■ but the Crown has not resumed possession of this land, nor iutervened in these proceedings. It accordingly appears to me that, it the Co^ncil wish to take this land for widening the road, they must proceed under the provisions of the 88th c'ause of the Municipal Councils Ordinance, which authorizes them to widen Steets, but only with the sanction of the Governor and Executive Council, and on the condition of making due compensation, not only to the owners, but to the occupiers also of any land that may be re-- quired for the purpose. In the present case neither of these condi- tions has been fulfilled. It was pleaded and contended at the trial, that the work in question is a necessary work for the public oonveni.! pnoe and for the due preservation and improvement of tbe road of vhich the Council are nndoubtedly the conservators. It is true that the road would be improved \>y widening, and the convenience of foot passengers increased if a footway were allowed them. But necessary the work cannot be considered. I accordingly think that the plain tifi is entitled to decree restraining the defendants from further prosecu- tion of the work. The plaintifi's prayer is in the alternatiye— either for an injunction or for ^2,000 by way of compensation or damages. There is no claim for the damages already sustained; and I do not think that I can awai-d any, under the prayer for further relief. Any right to recover such damages must be r«servedr The decree will be that the defendants be restrained froni further building the wall which they have commenced in front of the Baptist Mission premises, ^d that they be ordered to remove, at their own cost a.nd within one month of this date, so much of the wall as is already erected. De- fendants will pay plaintifi's costs of suit.'* In appeal {Kelly for appellants, the Queen's Advocate for respondent) per Ceeast, C. J.—" Affirmed. The Supreme Court is of opinion that the Municipal Councils Ordinance has not vested m the Councils land which forms no part of a road ; and that it has given no power Dec. 5. 135 PART in.— to them to build by their own authority on such land, though for the purpose of improving a road," Practice. Effect of striking ofE cases. December 2. Present Stewaht and Catlbt, J. J. D. C. Trincomali?,20S\\. This case, which had been instituted on the 23rd October, 1871, after repeated postponements, had been withdrawn from the Trial Roll on the 29th July, 1872, by order of Court; the psirties having failed to issue a commission to the arbitra" tors to whom they had previously agreed to refer the matters in dis- pute between them- On the 30th July, 1873, the deffendant's Proctor- moved for a rule on the plaintifi to shew cause why the case should not be struck oft and plaintifi nonsuited with costs, a year and a day having elapsed since plaintiff had last taken any steps to prosecute hia suit. * The District Judge {lempler} made the following order: " Struck off. No rule neces.sary-" The defendant appealed, urging that the object of his motion had heeix to recover his costs, the plain-, tiil having put him to the ex;perise of defending an action which had since been abandoned altogether. Per Stewart, J. — " Set aside, The proper course for the defendant to adopt ija to proceed to Imve the cause set down for trial." December 5. Present Stewart and Catley, J. J. Sequestration ^- C- G!a//e, 35342. This was an action by the Casa Marit-. of a Ship. tima Company of Genoa against the Master of the Italian shipi * The rule as to striking off pases on account of a year and a day's laches was laid down in appeal in D, C. Negombo, 69, in the following terms ^ "This Court does not agree with that portion of the judgment which seems to lay down that it is necessary for a plaintiff to institute a fresh act ion, if his original case has been struck off on account of a year and a day 's laches*. The Supreme Court thinks it desirable, on account of doubts that have been expressed on the subject, to record its opinion that the power of the Courts to strike cases off the roll when no steps have been taken for a year and a day is in fall existence and is not affected by the Rale of Court of 1842. The nature of this power and the mode in which it should be exercised, namely, by an order of the Judge, are fully shown in the hag. of Gj-o«h«, p, 301, note; and in Gromewesen de. judicus, ■p. 74. The same authorities show that it is competent for the party to procure the restora- tion of his cause, by shewing tolerably fair excuse for bis delay.. This ough^ not however to be a new motion of course on an ex parte proceeding. Notie* of (he intended application should be given or else only a rule to shewcaus^ should in the first instance be'granted," See Civ, Min,, June 26, 1863, DISTRICT COURTS. 136 ) p^,^ g Maria Luisa, to recover Es. 42,233 for breach of a charter-party. Sequestration in that the defendant, in place of proceeding without deviation to "* ^ Ship. Falmouth or Cork (the port of destination in terms of the charter- party), had taken a clearance for Chittagong. The District Court of Galle, on affidavits to that effect, granted a sequestration of the vessel. In appeal, by the defendant, the Queen's Adtiocaie for ap- pellant. — (l) This is a proceeding against the ship, and recourse should have been had to the Vice Admiralty Court. The District Court of Galle had no jurisdiction. The Rhadamanthe, i Dods. aoi J The Atlas, z. Hagg, 48. In England, a Common Law Court has jurisdiction in such matters, only where fraud can be proved. Maude and Pollock, p. p. 444,445. (2) There was no breach of the bond : an intention to deviate does not amount to a deviation. (3) The proceedings are further irregular in that Messrs. Fowlie Richmond signed the Proxy as Agents of the plaintiff, while having no Power of Attorney to represent thera. Ffrrfiwd'Wi, for respondent. — (i) The vessel being in the Galle harbour, the District Court had jurisdiction over it. Merchant Shipping Act, 1854, sect e^ \ Armitage Brothers v. P and O f/^ Company, 46627, D. C. Colombo, Supreme Court Minutes, 7th January, t868. (2) The intention to deviate was sufficient to justify sequestration, 22,858, D. C. Colombo, Lorenz's Reports, part 2, page 62. If completion of the voyage is prevented by act of master, payment may at once be enforced. The Armadillo, 2 Rob. 2^5. (3) Fowlie, Richmond's agency is admitted by defendant »n the bond, and he cannot now question it. PerCAYLEY, J. — "Set aside, and the sequestration issued be dissolved. As we are not sitting collectively, and as we think that the sequestration should be set aside on other grounds, we shall give no decision on the question of jurisdiction, which is one of inn- portance,and which (in viewof the special circumstances of this case), Is open to discussion. The bond upon which the action is brought, is conditional for the performance of a voyage to Falmouth or Cork for orders, without deviation, and for the payment of a certain sum of money within thirty days after arrival at the port of des- tinatioa. There has been no breach of the bond as yet, and con- sequently no cause of action j for the allegation in the Kbel, that the defendant is about \o. sail to Chittagong, and has obtained a clearance for that port, does not disclose any prese nt breach, tboi^h it may aver an intention on the part of the defendant to Omraft a breach. But, on the other hand, the sequestration which ^ b«en granted, if upheld, will render it impossible for the Dec. 9. / ^^"^ part HI.— Sequestration defendant to fulfil the conditions of the bond. We do not mean to ot a Snip, say that cases might not arise in which the sequestration of a mortgaged ship would be upheld, even though the amount due on the mortgage had not become due, where it was clearly and satis- factorily sheWn thit, if the ship were allowed to sail, the security of the mortgage would be materially endangered. Butj as observed by Rowe, C. J., 'in the case No. ^2,858, D. C.j Colombo, (2 Lorenz*s Repol-tS) page 69), the pi-6cess of sequestration is art unusual and extraordinary remedy, which ought not to be resorted to, unless there be good and valid reasons shewn for its adoption ; and a Court, before g^rantingslich an fextraordinary rertiedy, must be first convinced df its rlecessity. "We Are not convinced of sucH hecessity in the present case ; arid a very strong case indeed would havfe to be made out before we should uphold a seqestra- tion, which would place it out of the power of the defendant to fulfil the conditions of the very bOnd in respect of whith the sequestration was applied for." heceniber 9. Present Stewaet and CAttET, J. J. CoffeeContract ^- f^- Colombo, 62\ 87, The plaintiff sued defendant for the recoT* Fengadasalem. ery of Rs. 1909-54, being balance due on 1571^ bushels of parchment V. Coffee sold and delivered. The defendant, admitting the balance on thes Horsfall. quantity delivered, pleaded that the 1 571^ bushels formed part of 5006 bushels agreed to be Supplied by pl&,intiff, ftud claimed Rs. 3428.75 as damages in reconvention for non-delivery of the total quantity con- tracted for. The plaintiff admitted the contract for 5000 bushels and replied that the parcels were to be paid for as delivered) and that the defendant having refused foil payment for the quantity actually delivered bad committed a prior breach of agreement. The words of the written contract were as follows : I the undersigned Koona Mana Chuna Vengadasalem Chetty hereby coni tract to deliver to C. W. Horsfall five thousand bushels parchment coffee, as per sample deposited with him, wffhin twenty days from this date, it being understood that the coffee is not to contain more than six percent, of inferior (light pulper cut chetry, &c). The said five thousand bushels are to be delivered in Colombo at such place as the purchaser may direct, on receiving payment at the rate Of Es; 6 and Gts. 62 ^ per bushel. [Signed in Tamil by Plaintiff.] The learned District Judge (Ber-wick) held as follows : — Plaintiff is entitled to judgment for the unpaid balance of the value of thi 1571 4; bushels delivered. With respect to the claim in reconvention, which is founded on an apparent breach of contract in not delivering the whole quantity DISTRICT COURTS. 138 ) „ > Dec. 9. contracted for within the specified time, it appears from the evidence that the CoffeeContract plaintiff did not break his part of the contract until the defendant had broken Pengadasalem what the evidence shows to have been an implied part of his contract accord- v. ing to the usage of trade, namely to pay the value of each instalment of coffee Horsfall. on delivery. Certainly, the Court would never find such an implied under- standing in the wording of the contract itself: but this is just one of those cases in which it must view the terms of the contract and the inten- tions of the parties as a whole, and if it is to do justice must act as a tribunal of commerce would act and must annex to the actual terms of an informal written contract those unwritten but well- understood terms which, being in the ordinary course of trade, must in good faith be presumed to be as much part of the mercantile contract taken as a whole as if they had been expressly inserted in it ; and which in all probability are only not specially inserted because they are so much in ordinary course as not to be considered as requiring special covenant. The usage is conclusively proved to be to pay for each parcel on delivery, and the Court cannot for a moment allow that the force or fact or obligation of a mercantile usage is to be permitted to depend on the arbitrary will of one party not communicated to the other at the time the contract is made: nor on his doubts of his customer's solvency or ability. If a well-understood usage of trade is to be departed from, it can only be by express and joint consent, and not at the pleasure of one party only, and still less after per- formance of the contract has been fairly entered on by the person against whom the other party desires to vary the established custom ; unless upon such cause as the law and not he in his private judgment may deem suffi- cient ground for requiring some material guarantee for performance of the rest of the contract. The claim in reconvention must therefore be dismissed. Judgment for plaintiff as prayed for. The evidence as to usage had been given by Mr. James Robinson, Merchant, who deposed as follows: I am in the Coffee trade and have a number of Contracts similar to the one in suit. [The Contract is read by the Witness.] Interpreting this document by the usage of trade, the Coffee should be paid for on delivery of each parcel; and payment for any parcel should not be detained until the whole Jooo bushels contracted for are delivered. Such is the usage of trade with hardly any exception in practice : such exceptions being when sufficient confidence cannot be placed in the person we are dealing with. In appeal, by the defendant, Kelly, for appellant. — The usage of trade cannot over-ride an express agreement if any such usage exists, which is denied. Payment was only due on full delivery, under the terms of the contract . The usage proved was subject to the condition that it did not apply where sufficient confidence could not be placed in the seller, and the evidence brought this case within the exception. Ferdinands, for respondent. — Usage when established cannot be departed from by mental reservation of one of the parties on a ques- tion of confidence ; and usage was proved. The express words "re- ceiving payment " shewed that the payment was to be simultaneous with each delivery, and the judgment was in accordance with this interpretation. The prior breach of contract was with the defendant. Dec. 9. { ^^^ PAHTHI.- Horsftdl. CoffeeContract Per Stkwakt, J,-t-" Affirmed. The plaintifl sues to i-eeorer R.?, rengada^alem \ 909-54, balance due for Cofiee sold and delivered to the defendant npon the contract filed in the case. The defendant admits the recei|)t of the coftee, but pleads that by the contract the plaintiff was bouod to deli- ver 5000 bushels within twenty days from the date of the agreement, that the plaintiff only delivered 1571 J bushels, leaving the residue undelivered at the termination of the stipulated period, whereby the plaintiff became liable to pay the defendant Rs.3428-75, as damages for suchdefault. The defendant claims in reconvention Rs 15'29 as damages, giving the plaintiff credit for the amount claimed in the libel. Twoques- tions arise for consideration: 1 st, as to the effect of the evidence of usage given in the District Court ; 2nd, as to the true import of the contract in itself, 1st, the Supreme Court does not think that the usage relied upon by the learned District Judge has beeu proved to be so certain and so generally acquiesced in as to be taken as engrafting upon every written contract of the kind in c^uestion terms of payment not ex- pressly provided for by the instrument itself Mr. Robinson, 1st witness for plaintiff, certainly states 'interpreting this document by the usao-e of trade, the coffee should be paid for on delivery of each parcel, and payment for any parcel should not be detained until' the whole 5000 bushels contracted for are. delivered.' This, so far, ia very precise. But the witness goes on to add, ' such is the usage of trade with hai'dly any exception ; such exceptions being where suffi- cient confidence cannot be placed in the person we are dealing with.' Now this is the very exception that is relied upon and urged on be- half of the defendant for keeping back the value of part of the deliver- ies of Coffee. The defendant states as to usage, ' there is a, usage but not an invariable usage in the trade, that Coffee is paid for on de- livery of the several parcels to the full value of the parcel delivered.' Upon the above evidence, it appears to the Supreme Court that it' cannot be maintained that the alleged custom or usage was of such a uniform and binding nature' as to have the force of law: Possibly it may be that the exceptions referred to by Mr. Robinson are in reality not exceptions at all impairing or affecting the usage he alludes to, but merely solit;iry instances where the purchaser unjustifiably and ille- "■ally in the particular case sets at defiance the established custom. In this view we should probably have felt it our duty to remand the. suit for further inquiry, if not for the opinion we have formed on the con- struction to be put upon the contract itself. The Supreme Court considers, 2ndly, that the terms of the agreement itself contemplate that the Coftee should be paid for as it was delivered. The words ' receiviniT payment at the rate of Rs. 6 62 J per bushel' seem to us DISTllICT COURTS. 140 ) ^^^ g to imply more than the mere fixing of the price at which the Coftee CoffeeCohtract was sold. If nothing more than this had been intended by the con- '^'^S" '""■ tract, we should have expected it to have simply stipulated for the ij^r.sfAU. deliveiy of the coflee at so much per bushel, or, as the quantity is fixed, fiar a certain lump sum. There is nothing in the contract to prevent the delivery being made in instalments, provided it was com- pleted within the time stipulated ; it is not disputed that the seller was at liberty to do so ; and the words at the end ot the agreement, by which ineiiect the seller stipulates to receive payment at the rate of so much per bushel, seem to have been used advisedly, so as to en- title him to payment for each instalment as it was delivered. The constrnction of this contract may not be free from doubt, but such is the impression which a full consideration of it has left upon our minds. If the seller was at liberty to deliver by instalments, (indeed his not delivering earlier and more frequently is put forward among the reasons which justified the defendant in withholding full payment) it would be consonant neither with reason nor equity to receive the equivalent in money for Oofiee actually delivered to and received by the purchaser. There would in fact' be a want of mutuality in the one party receiving produce which he could at once turn to account, whilst the other was deprived ot payment and possibly of the means whereby alone he would be enabled to carry out his engagement. If the defendant had merely failed to pay for any particular parcel, that of itself migbt not have been a sufficient excuse for the plaintifl delivering no more Coffee ; but the defendant,' as appears by his own admission, twice distinctly refiised fall payment 'when demanded. There is also the letter A by which immediate payment ' was required for the quantities already deliyered;' A<;corditigly, -we think that the plaintiff, after these repeat- ed refusals of defendant, cannot be held liable for ceasing to perform the remaining part of the agreement. See Withers v. Reynolds, 2 B. and Ad. 882," D. C. Jaffna, 1046. The following judgment of the learned Dis- Thesawaleme. trict Judge (de Saram) explains the case. " This is an action on a '^^^^^ °^ ''^1^ Promissory Note brought against the defendant as the representative aigters of the Estate of the laite Cartegaser Ayer Suppyer. The defendant is designated in the libel as the brother of the deceased Suppyer ; but the examination ot parties shews that he is only half brother and the in- tervenients are half sisters of Suppyer. The defendant has in due course filed. his answer. Two parties have since intervened, claiming to be heirs of th* deceased jointly, with defendant. To this intervention, the plaintiff has demurred, on the ground that the inter venients, the {'■ Dkc. 9. ' '"^^ ^^'^^ "'— Thesawaleme. half sisters of the deceased, are not his heirs at law, but that the Eights of half defendant, the half brother, is his only heir, according to the Thesa- siaters waleme. The question thus brought before me for adjudication is, whether the intervenients are to be allowed to come into the case as heirs at law of the deceased. The Thesawaleme has been carefully looked over, both by myself as well as the Counsel appearing in the case, and we are unable to find any decision on the point. There is nothing to shew that a half brother or a half sister is entitled to succeed to his or her half brother's Estate, but there is a decree upholding a half sister's right to succeed to a half sister's dowry property. Thes: p. 27, No. 5005. The point being one of importance, I felt it my duty, when the case first came on for argument, to postpone it, so as to allow the parties an opportunity of calling witnesses to prove the cus- tom of the country. The intervenients alone have availed themselves of it, and called their witnesses : one a gentleman of great experience and practising at this bar, the other also a gentleman of great ex- perience and employed as head clerk of the Kachcherri. Both these witnesses are of opinion tkat the property of the deceased Suppyer, as he has left neither issue nor full brothers and sisters, should revert to his parents, if alive, and failing them to their next of kin. They further add that the property inherited from the father goes bajk to the father's family, and the property inherited from the mother reverts in like manner to the mother's family ; the acquired property being shared by both families, share and share alike. In the case now under consideration, the deceased's parents being dead, the defendant and intervenients, through their common mother, Sethea Letchemy (who was a sister of Subamma) are entitled to suc- ceed to the deceased's property as his next of kin. This, of course, if the intervenients have not been dowried. Mr. Sinnetamby states that he is aware they have not been dowried, and it is not attempted to be denied. It is clear from the Thesewaleme that parents are heirs to their children's property, those children leaving no brothers and sisters. The argument, however, put forward by the plaintiff is, that the defendant, a half brother, is alone entitled to succeed to the Estate of his half brother on the principle adopted by the Thesawa- leme, that a male inherits from a male and a female inherits from a female, I am of opinion, however, that as the Thesawaleme makes no mention of half brothers and half sisters as being entitled to succeed to their half brother's property, and as parents only are specially mentioned as heirs to their children's Estate, the defendant as well as intervenients in this case must be considered the heirs at law of the deceased Suppyer. I further think, that if it were intended that half DISTRICT COURTS. 142 | p^^ g brothers should succeed, special mention would have been made of Thesawaleme. them. It is admitted that the deceased's Estate consisted of heredi- Eights of half tary, dowry and acquired property, but it is unnecessary in this case ^^"^i^Zts to say what each is entitled to of the several kinds of property left. The demurrer is accordingly set aside, and plaiutifi must pay all the costs consequent thereon." Jn appeal, {Ferdinands for appellant, Grenier for respondents), per Catley, J. — "Affirmed. There is no evidence of the alleged custom set up by the defendant. On the other hand, the evidence called by the intervenients appears to us satisfactorily to establish the position thac,according to Tamil law, when a person dies intestate and without wife or issue or any full brothers or sisters, the property which such person inherited from his father devolves upon the children of the father's other marriage equally, wliether males or females, provided that the latter have not been dowered." D. C. Kalutara, 20650. The rights of the Crown, as Intervenient, Dutch Grant, to certain portions of a land having been upheld by the District Judge Evidence as to (Jayetilihe) as against those claiming under a Dutch Grant dated c"lti™t;ion. 1736, the defendants appealed. In appeal, (^Kelly and Ferdinands for appellant, the Queeris Ad- vocate for respondent) per Catley, J. — "Affirmed. The former judgment of the District Court was set aside by this Court, as between the defendants and the intervenient, and the case was sent back to the District Court for inquiry ag to what portion or portions of the land claimed (if any) besides .a cer- tain portion of two amuuams' extent to which the defendants were entitled had been brought into oultivatiou by the defendants or their predecessors. The Supreme Court further held that the Crown was entitled to all that was claimed in the Petition of Intervention, except a certain garden and field, and except also such other cultivated por- tion or portions of the said lands in the petition mentioned as the defendants or their predecessors had brought into cultivation. To these last mentioned portions the defendants were declared entitled on payment of ottu. to the Crown. Against this judgment, which was given in 1867, there has been no appeal; and the only question for consideraSon in the case as it now comes before us is which of the portions of land claimed in the Petition of Intervention have been brought into cultivation by the defendants or their predecessors. With regard to this question no sufficient reason has been submitted to us for interfering with the findinn; of the learned District Judge, who himself inspected the land and whose opinion in a matter of thi» T-, in ( 143 PART III. Dec. 12. } I Datch Grant, kind, from his intimate knowledge of tke country and extensive judi- uvidence as to gj^[ experience, is entitled to the very, jrreatest weight. We agree cultivatiou. . , , , , T^. . , , , , • -ar PRESCRIPTION. ^ ^k.,./ The only rules of prescription that apply to land cases in Ceylon are those laid down in clauses 3, 14, 15 and 16 of Ordinance 22 of 1871: the old law as to prescription by a quarter of a century's i)OSsession was abolished by Regulation 13 of 1822 . ... 17, 1» ■\Vhere prescription has once commenced to run against a party, it will not be interrupted by his death and by the minority of his heirs 40, 41 PliOCTOR AND CLIENT. Exorbitant charges by Proctor against client ... ...50,51 Proctor discouraging a good appeal . ... ... 56, 57 RKGISTRATIOV. The effect if the 39th clause of the Registration Ordinance is to give priority of claim to priority of registration ... ...'6,7 SET-OFF. A party who has expressly failed in a plea of set-off in a former suit, cannot afterwards recover the amount of such plea from the same adversary .. .. ... .,, 37 STAMPS. Where an instrument sued upon is expressly admitted in the answer and the only defence is payment, it is not competent at the trial to raise an objection that the document is not properly stamped ... 42 TOLL. Vehicles employed in the construction of roads ai-e only exempted within 10 miles of the Toll- station ... ... ...54,55 VALUE OF LAND. The annual value of a land may be measured by what it would rent or would be given out in a7ide for . ... 41 WAY OF NECESSITY. A private party cannot maintain an action for a right of way on the ground of necessity only over a land held by Government under clause 4 of Ordinnnce 2 of 1863: his course is to apply for a, road under the ])rovisions of the 9th clause ... ... 37, 39 WILL. Whei-e a provision in a will is not intelligibly worded, tlie Court shfnild be guided by the intention of the testator as gathered from the whole document ... ... ... ... 29, 30 INDEX. Part III. — District Courts. Page, ABSOLVED FROM THE INSTANCE. A judgment of " absolved from the instance " is a mere non-suit where botli sides have not been heard, or where at the second trial new and important evidence for the plaintifi is produced ... . 5 APPEAL. Where the evidence did not support an acquittal, the finding was set aside and the case transferred, under the provisions of clause 22 of Ordinance 11 of 1868, from the District to the Supreme Court ... 4 Where the defendants on a charge of cattle-stealing were wrongly ac- quitted, the Supreme Court set aside the finding and directed the transfer of the prosecution from one District Court to another ... 19, 20 An obvious error in a judgment not appealed against may be rectified by the Supreme Court when the record is betore it ... 99 ARBITRATION. Where an award bears a date corresponding with that of_ the letter under cover of which it is forwarded, the Court has no right, in the absence of any suggestion on the record, to assume that the same had been orally delivered long before such date ... , . . ', ^' ^ The non-production of the " proceedings, depositions and exhibits " which have come into the possession of an Arbitrator will not neces- sarily vitiate his award ... •• ...18,19 Where a judgment is founded on an award resulting from a voluntary reference, there can be no appeal ... ... ••• 41, 42 ASSAULT AND RIOT. Conviction on evidence : judge who tried the case complimented ... 19 ASSESSMENT. . , , In an appeal against assessment for police, proof that (he total amount levied is in excess of the actual cost to Government is inadmissible un- der a o-eneral plea " that the assessment, if legal, is excessive in amount" ... — •■• ...iiJ.ii* ASSESSORS. . , , , , . , The opinion of Assessors in a Criminal case upheld m appeal, as against the verdict of the District Judge .. ••• ••• 20 CATTLE STEALING.— (Orrfinance 6 o/ 1850.) Where the only evidence against an accused was that he was seen stand- ing near a tree with the stolen bullock in the company of two others w£o were found guilty of the theft, and that when the complainant and his party came up he and the two others wont m difterent direc- tions, it was held that it would not be safe to convict him of receiv- ing with guilty knowledge ... ••• — 94, 95 To take or demand a reward for procurmg the restoration of a stolen bullock is an ofience, but not to accept a reward for the trouble of ascertaining the owner of m'issing cattle ... ...114,115 INDEX. Part III. — District Courts. cj:rtiorari. The Supreme Court is in a position similar to ttat of the Court of Queen's Bench in England as to the power to issue Writs of Certio- rari, in respect ot which the practice of the English law will be ob- served ... ... ... .. 125 COFFEE COMTBACTS. In an action for non-fulfilment of a contract entered into on the 1 1th October, 1871 " to sell 3,000 bushels of Wallarambe Estate Cofiee and to deliver the same by 31st December," held th&t it was no defence that the said Estate had yielded for the season a crop less than the stipulated quantity ... ... ... 12, 18 The word.s " receiving payment at the rate of Rs. per bushel " in a coffee contract, would entitle the seller to payment for each parcel as delivered ... ... ... 137, 140 COMPOSITION WITH CREDITORS. If a debtor induces a number of his creditors to take a composition, by a promise that there shall be no preference shewn but that all of them shall share alike, and he afterwards pays one more than the rest, his fraud vitiates the agreement and the creditors' right to sue him in full revives. Not so, however, where he pays two small claimants in full who were no parties to the composition and who were not con- templated at the time of the agreement ... ... 31, 35 Under the Roman Dutch law a creditor may make a release of the whole of his debt without consideration, and the release will be oper- ative unless obtained by foul means ... ... 32 It is a good consideration for one creditor to give up part of his claim that another should do the same ... ... ... 34 CONTEMPT. .... The mere giving of false evidence is not a contempt, unless the falsity is of so flagrant and audacious a character as to call for summary proceedings ... ... ... .. 20, 21 The provision in the District Court Rules that the Court " shall and may forthwith sentence" a party for contempt must be exercised subject to giving him an opportunity to shew cause ... 93, 94 CORPORAL PUNISHMENT. A defendant should not be punished by two floggings, though such a punishment would not be against the strict letter of the law 129 0, 130 CROWN GRANTS— (Ordinance 12 o/ 1840.) The Ordinance contemplates the right of the Crown to half- value of' a laud at the time of actual payment and not at the date at whicli the party in possession becomes entitled under clause 8 ... 27 Mere payments under the Minute of Sth August, 1S(44 will not entitle the holder of a ticket of application to Crown land, in the absence of a grant ... ... .. ... 56, 58 Chena cultivation is not the kind of cultivation and improvement con* templated in a Dutch Grant, containing the expression " bringing into cultivation" ... ... ... 142,143 INDEX. PaKT III. DiSTKICT CODHTS. .r,TT„™ Page. CUSTOMS ORDINANCE. -(iVo. 17 o/ 1869.) Landing several oases of braudy at night without the usual authorily h'om the Customs Officials is not merely an " unloading " but also a " breaking of bulk, " and is an ofteuce punishable by fine under the 20th clause ... ... .., ... 7 DAMAGES. In reckoning damages against a bona fide possessor the value of the property must be regarded ... ... ... 56 demurri:r. Where a libel sufficiently sets forth the cause of action and any expla. nation with reference to it may be secured by a viva voce examina- tion of the plaintift, a deiuurrer is unnecessary ... ... 21 Where the pleadings on the face of them import sufficient consideration, a demurrer will be rejected ... ... ... 21 EXECUTION. Proceedings in parate execution are invalid when the death of the de- fendant on the record occurs before they are instituted and executed. 72 An arrest which is in itself a nullity and is not followed by commitment does not operate as a satisfaction or extinguishment of a debt ... 96 EXECUTORS AND ADMINISTRATORS. The onus of proving payment to the testator rests on the debtor, and the mere production of a bond sued upon without any endorsement of payment hper se an insufficient defence in an action by the executor 4 The English law as to Executors and Administrators has been in fuU operation in Ceylon since the Charter of 1833 ... ... 53 An administrator will not be allowed to vexatiously sell immoveable property in possession of the heirs ... .. 53 The Secretary of a District Court may be appointed to sell immoveable property fur cash at the Court house, when the interests of the heirs demand that the administrator should not be entrusted with the sale. 53 A widow has a preferent right to administer her husband's estate in the absence of any special reason to the contrary ... ... 100 With reference to the liabilities of the sureties, an administration bond executed in 1848 was held prescribed by the lapse of 10 years under the provisions of Ordinance 8 of 1834 ... 130, 131 EX PARTE JUDGMENT. Where a party proceeds to obtain ex parte judgment on proclamation^ ample time should be given to the defendant to appear, an interval being allowed between the second proclamation and the trial .,.106, lit GIFT. j' X. J Where possession has been given with a deed and the donor has sur- vived eight months, the document, though granted in contemplation of (ieath^and attested by five witnesses, cannot operate as a will ... 26 Where the property does not rest in the grantee absolutely, -but only as a fidei commissary, it cannot he taken in execution for his personal debt ... •" ... 30 --The recital in a deed of gift that the donor is dangerously ill with a wound and the fact. th»t the ^lossessiou ut the duucu ii> to be post- INDEX. Part III. — District Courts. Pagk, poned until the donor's death, are not of themselves sufficient to render the gift a donatio mortis eausa ... ... 143, 144 GOVERNMENT DEFAULTERS,— (OrAnance 14 o/ 1843.) The claim of the Oi'own dates from the day of the defaulting officer's first appointment, and is preferential to a creditor's mortgage subsequent to that date ... ... ... .. 26, 2T mS0LVBNCY.-(0rrfma7!ce 7 of 1853.) An assignee may be appointed at any stage of the Insolvency proceed- ings, before the final settlement, provided a meeting is duly called by the Court for that purpose ... ... .. 99 The Certificate R cannot be granted where the insolvent has not been denied further protection and where there has been no suspension or refusal of certificate ... ,„ ., 101 JURISDICTION. Extortion, (corruptly demanding money under a false accusation of cattle-stealing) is punishable by the District Court at common law... \ A charge against a Police Officer of abusing his authority for the pur- pose of concealing an ofienoe is maintainable under clause 164 of Ordinance 11 of 1868, where he is proved to have tampered with the evidence even after the accused partieshad been committed to trial before the District Court ... ... ... 1,3 An assault to commit rape is an offence beyond the jurisdiction of a District Court ... ... ... 95 Where a District Court has improperly entertained a criminal charge beyond its jurisdiction, the Supreme Court has the power by Certiorari to bring before it all the proceedings and quash them as illegal ... 12fi Neither the complainant who has brought a defendant before a District (Jourt on a criminal charge, nor the defendant who has pleaded to such a charge without objecting to the jurisdiction, can afterwards, either by appeal or otherwise, dispute the validity of the District Court proceedings . ... .. 124 Extra charges in an indictment of breaking into a stable and .stealing carts cannot elevate a case of cattle stealing above the jurisdiction of a District Court ... ... 127,128 Cases of Assault and Stabbing may or may not be within the jurisdic- tion of a District Court ... ... ... 12& What cases of Forgery are and what cases are not within the jui'isdic- tion of a District Court defined ... ... ...122,125 KANDYAN LAW. A childless ■widow cannot claim both life interest and maintenance from the acquired and parveuy property of her deceased husband, but may be put to her election ... ... ... 25 Where a deegi^- married daughter returns with her husband to the family property and lives in the same garden though not in the family house and has exclusive possession of half the said garden, the case is substantially one in which she regains her beena rights ...115, 116 1^0 special formalities are required to constitute a valid adoption: it is sufficient if there be a formal declaration of the adoption, even with- out a cftlling together of headmen or relations .„ ..,117,118 INDEX. Part III. — Disttjict Courts. Page. LEASE. The implied warranty arising from the relation ot lessor ami lessee does not extend to the beneiit of k sub-lessee so as to entitle him to sue the original lessor for damages consequent on an eviction 144, 145 MAJORITY. The provisions of Ordinance 7 of 1865 cannot be regarded as retros- pective ... ... ... ... 55 MARRIAGE. Suits to compel marriages are expressly done away with by Ordinance 6 of 1847 ... ... ... ...21,22 MOHAMMEDAN LAW. That branch of Mohammedan jurisprudence (named Wuhf) which relates to entails for private uses, and the connected branch in respect of usufructuary wills, have not been introduced into Ceylon ... 28, 31 The Mohammedan law of India or other places does not necessarily obtain in Ceylon. The laws of the Mohammedan inhabitants of Cey- lon, when not regulated by legislative enactment, must be determined by usage and their laws as existing here ... ... 31 MORTGAGE. An innocent mortgagee has a right to follow the mortgaged property and cannot be restricted to a claim on the proceeds of the sale thereof 22 The mere silence of a mortgagee at a sale of the mortgaged property cannot vitiate a genume and valid mortgage; but if such mortgagee actively induce the vendor to purchase, by representing that there is no incumbrance, an estoppel in pais may be created _ ... 43 Monies spent in the cultivation and upkeep of a cofiee estate enjoy no tacit hypothec upon the property with preference over a prior special conventional mortgage ... ... ...101,102 In determining conflicting claims in execution, Testamentary costs and Executors' Commission are not to be preferred to a prior special mortgage, but Coolies' wages should always have precedence over all incumbrances ... ••• .-• ...103, 104 Where three defendantsjoin in mortgaging as security for a debt certain landed property held by two of thorn under a revocable deed of gift from the third, the proceeds sale in execution should be applied in satisfaction of the mortgage, all three mortgagees being liable for the balance pro rata ••• <•• ...111,112 MORTMAIN. , „ ,. , ,T . • 1 • ^ ^ Neither the Dutch nor the English Mortmain laws ever came into force in Ceylon, where the Dutch Colonial Penal laws against Roman Catholics have been repealed ..- , , ,, •" ,., .-59,70 A bequest of land to the Wolfendahl Church held to be vahd ... 7i. 73 MUNICIPAUTIES, ^ = .v. ht • • 1 n Road reservations are not vested in the Municipal Councils under Ordinance 17 of 1865 ... ... 131,135 PARENTS AND CHILDREN. A father is liable to maintain and educate his children, and his being Yi. INDEX. Part III. — District Codets. Page. administrator to his deceased wife's estate will not relieve him of this liability ... .,. ... .. 38 A surviving parent may maintain his children till they attain their ma- jority frond the usufruct and interest of their property, but up part of their capital can be expeuded without the special leave of the Court 35, 39- Conimunity of property .. ... ... 54,53 The children of a deceased parent succeed at the death of such parent to a moiety of the specific lauds belonging to the ioint estate 129 N, O PARTITION. A partition decree does not bind a party who has all along disputed the appraisement and sale of a specific portion, where the Cpmmissionw'9 evidence is indefinite as to the ex;act limits of the land sold ... 24 POSSESSION. The Dodangalla Case. A bona fide possessor is entitled to the im^* pensse neoessariae, impensse in fruotuum perceptionem factae, and the impensse utiles also, in so far as these have enhanced the value of the propertj and beyond what the possessor has been reimbursed by the pjiotits ... „. ... ... 43, 53 PKAOTICB. The absence of defendant's Proctor is per te no sufficient ground for a postponement ... ... ... ... 3 Where there are two claimants to the proceeds of an execution sale and the bond on which one of them relies is impugned by the other as fraudulent, the question of priority should be disposed of not sum- marily but in a distinct and separate suit ... .. 1ft Where a plaintiff recovers judgment for mesne profits, the fact that he may have sued |br the amount in a previous action for the land is not a sufficient ground for condemning him to pay the defendant's. costs ... ... ... ... 24. In an action for land on a copy-decree (which however does not set. forth the boundaries) the Court, in the absence of the originail record, may be guided as to the limits by a writ of possession filed in a con- nected criminal case ... ... ... 24 The validity of a proxy which is signed with the intention of its being used in Leylon must be determined according to the laws in force here ... ... .. ... 95 A plaiutift is entitled to 14 days' notice of trial, where the case has not been fixed for trial under the 5th section of the Rules of June 17th, . 1844 ... ..._ ... ... 98 A judgment may be reopened on equitable grounds, especially where plaintift's claim has been satisfied in execution ... ... lOO Neither the prisoner nor his Counsel is entitled, as a matter of right, to a view of the J. P. depositions ... ... l6o, 101 A plaintiff, who has not withdrawn his cause a second time from the trial roll, may elect to be non-suited before judgment ...120, 12} Where a case has been struck ofi on account of a year and a day's laches, the defendant should proceed to ha.ve it set down foi trial if be seeks to recover costs ... ... ... 135 INDEX. '^li- Part III. — District Courts. PRESCRIPTION. A " Rvile " does not come within the meaning of the words " writ, warrant or other process of law ' in clause 5 of Ordinance 22 of r87 1 3 Where prescription is not specifically pleaded, but the term thereof is stated in the answer, it is competent for the Supreme Court, in view of the merits of the case, to overlook the irregularity ... 6 It is doubtful whether a person can acquire a prescriptive title by mere usucapio ... ... ... ' ... 7, 8 Under the Ordinance 22 of 1872, prescription begins to run from the breach of the condition in, and not (as under the Ordinance 8 of 1834) from the date of, a bond ... ... ... 131 PROMISSORY NOTE. The payee of a note who has discounted it at a Bank and afterwards taken it up when due may sue the maker, although the tempoi-ary transfer to the Bank has been by full and not by blank endorsement and the Bank has failed to endorse back the note 125, 127 PROPERTY. An owner of coal does not lose his property therein by its accidentally falling, into the sea. and by other persons recovering and appropriatitig the same : the maxim omnia contra spoliatorem prnesumuntur will apply to the latter ..^ ... ... 8, 9 PROVISIOxNTAL JUDGMENT. No provisional judgment can be obtained against a party who is not served with copy of the document sued upon ... ... 6 REGISTRATION. The registration of a bill of sale before a previous judgment will give no priority in respect of land, if parties do not claim under one and the same proprietor ... ... ... 23 A deed of gift executed in 1850 does not come within the operation of the 39th clause of Ordinance 8 of 1863, which applies only to instru- ments executed after the 1st of January, 1864 ... ... 144 RICE CONTRACTS. The words " delivery to be taken at the wharf," in a Rice Contract, imply that the party for whom the rice is iinporled should pay the warohouse rent actually incurred between the date of lahding and- the date of rernoval ... ... ... 105 The nonpayment of ademand for more warehouse-retlt than is actual- ly due will not excuse the non-delivery of the rice' .. 105, 136. Where the vendor refuses to deliver excepting at a higher price than orii^inaUy agreed to; the vendee may rescind his piul-cha^e; and no subsequent ofter by the former to revert to the original contract T*ill give him a right to siie on it ... ... ...119,120 EOYALTY ON PLUMBAGO. The Crown by its prerogative has the right to levy a royalty on plum- bago dug from private lands ." ... 129, A to 129 N SALE. A vendee is entitled to the cancellation of a sale, if it be foiind that the vendor can give a good title- to" only one-half of the lanj'sold ... 96 INDEX. Part III. — District Courts. Page. A contract of agency may be accepted as an accord and satisfaction foi* a breach of a prior contract of sale ... ... 97, 98 SEQUESTRATION. Where a plaintiff nnder a sequestration at common law obtained poss- ession of the property seized, the Supreme Court refused to interfere ■with the proceedings though irregular, as the defendant had suffered no substantial wrong ... ... ...112,113 Where an action was brought On a Charter-party conditioned for the performance of a voyage to Falmouth or Cork for orders without deviation, held that an allegation that the master was about to sail to ChittagoDg and had obtained a clearance for that port disclosed no present breach to justify the sequestration of the ship 135, 137 SERVICE TENURES.— (OrrfjBance 4 of 1 870.) Under the 24th section, a plaintiff can recover for arrears of service for one year before action brought and for what has subsequently become due ... ... ... ... 25 SLANDER, The best Way to meet a pettifogging action for slander is to pay a nom- inal sum of money into Court: if the plaintiff after that goes on and claims higher damages, he does it at his peril .. ... 42 SPECIFIC PERFORMANCE. In cases of fraud parol evidence may be admitted to prove an agree- ment affecting land ... ... ... 39,40 STAMP ORDINANCE.— r-yo- 23 0/1871. J A promissory note which is insufficiently stamped may be received in evidence at the trial subject to the penalties prescribed by the 39th and 40th clauses .. ... ... 116,117 THESAWALEME. When a person dies intestate and without wife or issne or any full brothers or sisters, the property which such person inherited from his father devolves upon his half-brothers and sisters, provided the latter have not been dowried ... ... ...140,142 USUFRUCT. Where a plaintiff claimed by inheritance and long possession an Owitte as against certain defendants who pleaded that the same was part of an adjoining field belonging to them, held that the District Court was justified on the evidence in not decreeing title to either party but in recognizing the respective rights of both plaintiff and defendant ... 5 WILL. Held, on a question of construction, that the Jidei commissum created by a certain clause in a Will extended to the respective properties bequeathed in the three preceding clauses, and that all four clauses should be read together ... ... ... 9, 13 Where a bequest was left to a daughter in the following terms " if she contracts a marriage according to my above expressed desire or if she chooses to remam single, the property shall be unconditionally hers at the age of one and twenty," held that the property vested in her at the date of her marriage although she was then not 21 years of age ... ... ... ... 129 O i i