KPS 18 Aj 1892 OJnm^U ICam ^rliaal ICibratg CORNELL UNIVERSITY LIBFiARY 3 1924 084 191 372 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084191372 CEYLON IvA^W REPORTS BEING REPORTS OF CASES DECIDED BY THE SUPREME COURT OF CEYLON. Edited by Thomas E. De Sampayo, Advocate, BarriHer-at-Law, Middle Temple. AND James van Langenberg, Advocate, Barrister-at-Law, Inner Temple, VOLUME I. COLOMBO: PRINTED AND PUBLISHBD BY THE "GEYI,ON EXAMINER PRESS.'' 1892. DIGEST OF CASES. VOLUME I. DIGEST Page. Account, action for. See Partnership, i. Partnership, 2. Account, matters of See Arbitration. Act of Insolvency. See Insolvency, i. Action for title to land. See Civii, Procedure, 7. Adding party. See Civil, Procedure, 2. Administration. See Civil Procedure, ii. Administrator. Action against administrator — Plea oj plene administravit— Pleading — Burden of proof- Evidence— Procedure. In an action against an administrator, who pleads j5/e«e administravit, the plaintiff may either confess the plea and take judgment of assets quando acciderint, or he may take issue on the plea, in which case the burden of prov- ing assets is on him. D. C, Colombo, No. 3,245, Don Nicholas v. Mack .. .. .. .. 81 Annual value. See Assessment for Rates. Appeal. Appeal— Transmission of petition by post — Calcu- lation of tim.e — Holidays— Ordinance No. 3 of 1890, sees. 37 & 38 — Holidays Ordi- nance, 1886. Sec. 37 of the Stamp Ordinance, 1890, pro- vides for application, by any person desirous of removing doubts as to the liability of any instrument to stamp duty or as Lo the amount of stamp duty, to the Commissioner of Stamps to declare his opinion thereon. Sec. 38 provides that the person making the application may appeal against the deter- mination of the Commissioner to the Supreme Court within ten days after the same shall have been made known to him. The Commissioner of Stamps having, upon application to him, made a certain decision, the applicant within the proper time trans- mitted by post a petition of appeal to the Supreme Court ; but certain public holidays having intervened, the petition did not reach the Registry of the Supreme Court until after the requisite ten days had expired. Held, that, under the above sec. 38 the ap- peal must actually be lodged within ten days .Page. in the Registry of the Supreme Court, and that the intervention of the public holidays did not avail to extend the time, and that therefore the appeal was out of time and could not be entertained. lu the matter of the Stamp Ordinance No. 3 of 1890, and the application of D. L. Wickranianaike of Galle, Notary Public, under sec. 37 thereof See Arbitration. Criminal Procedure, i. Criminal Procedure, 5. Criminal Procedure, 6. Criminal Procedure, 9. Civil Procedure, i. Registration of Title to L,and. Arbitration. Arbitration — Compulsory reference — Matters of account— Action against partners — Issue of partnership — Ordinance No. 15 of 1866, sec. 55 — Appeal — Practice. Where a case related to matters of account as well as issues which are not matters of account, — Held, that the Court cannot, under sec. 5 of the Arbitration Ordinance, compulsorily re- fer ail the matters in dispute to arbitration, but only the matters of account ; and an award made on such reference is on that ground bad. Held, also, that a party, who has not object- ed to the order of reference by way of inter- locutory appeal, is not precluded from rais- ing the objection upon the motion for judg- ment in terms of the award. D. C, Kandy, No. 2,499, Ramen Chetty v. Abdul Raheman and another . . Arrack Ordinance. Toddy— "Licensed retail dealer"— Drawing toddy —Authority to license— "Tavern-keepsi^'— Ordinance No. 10 0/1844, sees. 26, 39, & 40- Where the Government Agent, acting under sec. 26 of the Ordinance No. 10 of 1844, licensed K., or on his behalf B., to sell arrack, rum, and toddy by retail at a certain place,— Held, that B. was a licensed retail dealer within the meaning of the Ordinance No. 10 of 1844, and had authority lawfully to issue a licence to any person to draw toddy under the provisions of the Ordinance. Held, further, that a "tavern-keeper", i.e., an employe who presides behind the bar of a tavern and dispenses liquor to customers, does not require a licence in order to enable him to sell arrack, rum, and toddy by retail. P. C, Batticaloa, No. 5,246, Ciwray v. Tham- pan Assent. See Executor, 2. 42 DIGEST 01? CASES. [Vol. I. Pagb. Assessment for rates. Assessment — Rating— Annual value— Block of house property— Method of assessment— Ordi- nance No. 7 ofiSST, sees. 127 & 133. The Ordinance No. 7 of 1887 empowers the Municipal Council "to make and assess, with the sanction of the Governor in Executive Council, any separate or consolidated rate or rates on the annual value of all houses and buildings of every description, and all lands and tenements whatsoever, within the Muni- cipality". Sec. 133 provides for the appointment of valuers to make "an assessment of the annual value of every house, building, land, or tene- ment whatever liable to be so assessed within the Municipality". In the case of a block of house property belonging to one owner let as a whole to one person, who sub-lets to actual occupiers ; — JIeld,th.at the question whether, in ascer- taining the annual value for rating purposes, the block should be assessed as a whole or each building separately, must be decided according to the circumstances of each case. Accordingly, where the property to be as- sessed consisted of a long range of 19 small houses fronting a public thoroughfare, having one compound appurtenant to the whole row, with one well and two closets, for the accom- modation of all, and where the whole was let as one property to a tenant who sub-let sepa- rately to actual occupiers ; — Held, that the building should be regarded as separate tenements for purposes of rating, and that the annual value for rating is, for each tenement, the rent for which it can reasonably be expected to be let in an average year by the middleman to the occupier, and the annual value of the whole block is the aggregate of such rents. But held that, in making the computation for the whole block, regard may be had to the circumstance that in the case of small holdings there are periods of non-tenancy occasionally, and that rents are not always to be obtained. D. C, Colombo, No. 1,328, Mourier v. The Municipal Council, Colombo Assignee, action by See iNSOiyVENCY, 3. Mortgage, 7. Autre fois acquit. See Criminai, I/AW, 2 Breach of Promise of Marriage. Jurisdiction — Breach of promise of marriage — Actionyn inarriage agreement — Causeof ac- tion- By a written agreement executed by the plaintiffs, father and daughter, atChilaw, and by the defendant at Colombo, it was agreed, among other things, that the defendant should marry the 2nd plaintiiF at Chilaw within a certain time. In an action brought in the District Court of Chilaw it was alleged as a breach that within the time specified the defendant was tnarried to a third person at Colombo. 92 Page. Held, that the District Court of Chilaw had no jurisdiction, but that, the cause of action being alleged to be the marriage of the de- fendant to a third person at Colombo, the action should have been brought in the Dis- trict Court of Colombo. D. C, Chilaw, No. 77, Paulickpulle v. Casie Chetty .. .. .. ..102 Buddhist Temporalities Ordinance. Buddhist Temporalities — Ordinance No. 3 of 1889 — Temple property — Tenancy created by priestly incumbent — Action for rent by lay trustee —Cause of action — Pleading. The Buddhist Temporalities Ordinance No. 3 of 1889, sec. 17, provides for the election and appointment for every temple a trustee, in whom, by sec. 20, all property belonging to the temple are vested. Sec. 19 provides : "All contracts made before the date of the coming into operation of this Ordinance in favour of any tem.ple or of any person on its behalf, and all rights of action arising out of such contracts, may be enforced by the trustee under this Ordinance as far as circumstances will admit, as though such contract had been entered into with him ; and all persons who at the said date owe any money to any temple or to any per- son on its behalf shall pay the same to such trustee, who is hereby empowered to recover the same by action if necessary." Where a person was in occupation of a tenement belonging to a temple under a tenancy created by the priestly incumbent of the temple subsequently to the coming into operation of the Ordinance ; — Held {diss entiente BURNSIDE, C. J.), thatthe lay trustee of the temple could properly sue the occupant for rent, although the contract of tenancy was not entered into directly with him. C. R, Gampola, Mudalihamy v. Kara- panan .. . . , . . . 88 Cause of action. See Breach of Promise of Marriage. Buddhist Temporalities Ordinance. Impueb Promise. Charge. See Criminai, Procedure, 2. Criminai, Procedure, 6. Criminal Procedure, 7. Maintenance. Trespass. Cheating. See Criminal Ie Partnership, 2. Partition. I.— Partition — Commissioner- Claim fur remit neration— Amount awarded by Court in par- tition suit— Notice to parlies— Estoppel- Separate action — Practice. The plaintiff was Commissioner appointed to partition certain lands in a partition suit, to which the defendant was a party. Upon motion made by plaintiff in the partition suit with notice to all parti es, the Court awarded a certain sum as plaiu- tifTs commission to be paid by the parlies in pro- portion to their respective shares, there being no ^opposition to the motion. The plamiiff brought the present action to recover the defendant's share of the amount awarded. Held, affirming the judgment of the District Court, that the defendant, having notice of the plaintiff's motion and making no opposition was bound by the order of the Court, and that he could not now object to the amount to be paid by him to plaintiff. But, held, that the plaintiff should have pro- ceeded in the partition suit for the recovery of the amount and should not have brought a se- parate action. D. C, Colombo, No. 2,68r. SiLVA v. Guna- Tillake 2. — Partition suit— Intervention— Non-payment of costs of a previous action — Practice. The practice as to stay of proceedings for non- payment of costs of a former action is not appli- Page. H DIGEST OF CASES. [Vol. I. PaGB. cable to interveutious iu partition suits, and such interventions will be allowed and proceedings will not be stayed, notwithstanding non-payment of costs of a previous action for the same interest in land. D. C, Galle, No. 55,488. LEwishamy v. Tambyhamy, Babona, intervenient .. 53 Partnership. I. — Partnership— Action for account between part- ners— Parole evidence— Ordinance No. 7 of 1840, section 21. In an action helwetn partners for an account of the partnership, whose capital exceeded Rs. 1,000, find which was not formed by any deed of partner- ship ; //e/rf (following D. C, Kandy, 52,568, V.ind. Rep. 195) that the prohibition against parole evidence in section 21 of Ordinance No. 7 of 1840 Rpplied only to executory contracts, and that parole evi- dence was admissible to prove a partnership al- ready dissolved, for the purposes of an action for the settlement of partnership accounts. D. C, Ratnapura, No. 2,247^, 6 S. C. C. iig, commented on. D. C, Galle, No. 55,354. Bawa v Moha- MADO Casim . . . . . ■ 53 2 — Partnership— Action for account— Parole evi- dence — Ordinance No. 7 of 1840, section 21 sub-section 4. In an action for partnership account by one part- ner against the other, in which the partnership is denied ; Held, that, notwithstanding the provisions of tlie Ordinance No. 7 of 1840, pnrnle evi- dence is admissible to establish the partnership, if it has already been dissolved, although the capi- tal of the partnership exceeded Rs. 1,000. D. C, Colombo, No. 98,398. Mendis v. PEIRIS .. .. .. ..98 Pleading. See Administrator. Breach of Promise of Marriage. Buddhist Temporalities Ordinance. Civii- Procedure, 7. Civil Procedure, 8. Civil Procedure, io. Lease. Prescription. Plene adniinistravit, plea of. See Administrator. Practice. J.— Costs awarded to several parties— Payment to one—foini judgment— Practice. Where tin order for costs is made in favour of several parties, payment to or settlement with one of them' constitutes a discharge as against all. So held by Dias, A. C. J. D. C, Kegalle, No. 5,946. WaTTEGAME RaTEMahatmEYA v. Pedro PERERa and "tilers .. ■. J . ■ • , c V ^'^ ■2—Jud!rment—Ae:Mnst two defendants— i^ub- stilutioti of plaintiff— "Process to enforce the ju'Jvnoit '—Reissue of writ -Revival of judgment against one defendant— Ordi- Page. nance No. 22 of 1S71, section 5— Pres- cription. Proceedings taken for the substitution of a person as judgment creditor in the room of the original plaintiff do not constitute a "process of law to enforce the judgment" within the meaning of section 5 of the Ordinance No. 22 of 1871, so as to bar the slaiutory presumption of satisfaction after ten years. A writ returned by the Fiscal unexecuted may be reissued, and such reissue within ten years interrupts prescription of the judgment. Ill the case of a judgment against more than one defendant, issue of process or other causes which are operative against one defendant are also eifectual 10 keep the judgment alive against the o! her defendants and a judgment cannot be revived against the one without its being revived against the others also. D. C, Kurunegala, No. 5,476. WEERAPPA PULLE V. MEERA Lebbe and another. Abdul Cader, substituted plaintiff. . . 55 2,.— Costs -Taxation of— Class of the case— Inci- dent d proceedings— Scale of costs— Practice. When costs have been awarded in an incidental proceeding in an action, such as the matter of a claim by a third party to funds in deposit, the costs should be taxed, not according to the amount involved iu the incidental proceeding, but accord- ing to the class of the original action. D. C, Colombo, No. 98,031. AdamjEE v. Cader IvEbbe. Bhay EssajEE, Claimant appellant .. .. •• 66 See Civil Procedure, i. Arbitration. Civil Procedure, i. Civil Procedure, 3. Civil Procedure, 4. Costs. Criminal Procedure, 2. Criminal Procedure, 8. Insolvency. Lease. Mortgage, 1. Mortgage, 3. Partition, 1. Partition, 2. Tort. Preference. See Mortgage, 1. Prescription. Prescription— Acknowledgment of debt— Pro "nse to pay — Ordinance No 22 0/1871, section 13 — Settlement of issue- Pleading. Under section 13 of the Prescription Ordinance of 1871, an acknowledgment, to take a case out of prescrip- tion, must not only admit the debt to be due, but must involve an unconditional promise to pay or a promise to pay on a condition which has been fulfilled. Where, after a plea of prescription had been put in, the plaint was amended by inserting an allegation that the defendant had within the pre.^criptive period ac- knowledged the debt, and promised to pay it, and no further pleading was put in by the defendant by way of answer to the amended plaint; Vol. I.] DIGEST OF CASES. 15 Page. Held, per Burnside, C. J., that although the document upon which the plaintiff relied as an acknowledgment to take the case out of pres- cription did not contain a promise to pay, yet such promise must be taken to have been admit- ted on the pleadings, and the plea of prescription therefore failed. Observations by Burnside, C. J., on the settle- ments of issues to be tried by the Court. D. C, Auuradhapura, No. 13. Appavdpii,- LAI V. FERDINANDO. . . , . . . 69 See Civil, Procedure, 8. Mortgage Practice, i. Proctor. See Joint Stock Company. Promissory Note. I. — Action on promissory note— Agreement to take less than amount due— Release— Con- sideration— Nudum pactum — Compromise- Roman Dutch Law— Ordinance No. s of 1852. The plaintiff brought this action for the reco- very of Rs. 622 on certain promissory notes. The defendant being about to contest the suit, the parties came to an agreement, wliereby plaintiff agreed to take in full satisfaction the sum of Es. 410, of which Rs. 200 was to be paid down, and the balance within a given time. The defendant fulfilled his part of the agreement. Held, th.it the above agfreement was not a bare agreement without consideration, but was in the nature of a compromise, and as such was binding on the plaintiff so as to disentitle him to recover from the defendant more than the amount ao-reed upon. D. C, Kandy, No. 97,649. MuTTu Carpen Chetty v. Forbes Capper . . . . i^ 2.— Jurisdiction— Cause of action— Promissory note— Endorsement— Ordinance No. 11 of 1868, section 81. The endorsement of a promissory note within the territorial limits of a Court gives that Court jurisdiction in a suit on the note by the endorsee. C. R., Colombo, No. 54,714. Cader Tamby v Omer Lebbe See Mortgage, 6. Registration. Registration— Deed of gift— Valuable considera- tion-Adverse interest— Priority— Ordinance No. 8 0/1863, section 39. Under section 39 of Ordinance No 8 of 1863, a deed of gift, not being a deed for valuable con- sideration, does not, by reason of prior registra- tion, obtain priority over a deed previously exe- cuted. D. C, Negombo, No. 15,408. Fernando v. Fonseka ^■^e Trade Marks Oedinance. Registration of title to land. Registration of title to land— Money decree against owner of land— Charge upon land— Ordi- nance No. 5 of 1877, section^,- Appeal— Civil Procedure Code, 755. Ordinance No. 5 of 1S77 provides for the re- 10 82 Page. gistration of title to land, and by section 8 enacts that "every person having or claiming to have any right, title, or interest in or to any such lands, whether in possession, reversion, remainder or, ex- pectancy, except as monthly tenant, and whether by way of mortgage, hypothec, lien, charge, or otherwise", shall deliver a statement of his claim in writing, and other sections of the Ordinance provide for the investigation and registration of such claims. Where a mortgagee of laud, having obtained a mortgage judgment upon his bou 1, sold the mort- gaged property, wliereby a portion only of the amount of judgment was satisfied, leaving a balance still due upon the judgment, and where the mortgage sought to register a claim to other iHiids of the mortgagor in respect of the unsatis- fied judgment ; Held, the mortgaged land having been sold, and the balance amount of the judgm'int being n w due, as upon a mere money decree, the judgment creditor has not right, title, or interest, within the meaning of the Ordinance, in or to any other lands of the mortgagor, and is therefore not en- titled to have his claim registered under the Ordinance. Observations by Burnside, C. J., and Clar- ence, J., on the question whether in an appeal from the Special Commissioner's Court a petition of appeal signed and filed by the party himself is regular. The Special Commissioner's Court (Wella- watte) No. 219. Smith v. Wijeyratne. . Right of private defence. See Criminai, Law, 6. Roman Dutch Law. See Sm,e. Ruinous house. See Municipal Councii,. Sale, Vendor and pzirchaser— Trespass by a third party — Failure of action by purchaser against tres- passer—Notice of such action to purchaser — Action for recovery of purchase money — Aver- ment of want of title pleading—Roman Dzttch Law. Where a purchaser of land has failed in an ac- tion (of which he gave the vender notice) against a third party who withholds possession from the purchaser ; Held, that the purchaser's cause of action a- gainst the vendor, if any, is a breach of contract on the vendor's part in contracting to transfer that which he had no right to transfer. Held, that in such action, as distinguished from the action available under the Roman Dutch Law, to a purchaser who has been sued and evicted by a third party in a. legal proceeding of which the vendor had due notice, the absence of the ven- dor's right to transfer must be averred and proved. D. C, Matara, No. 34,972. Wirasinghe v. DiAS Abeysinghe . . Secretary of the Ceylon Savings Bank. See Civil, Procedure, ii. 44 29 i6 DIGEST OF CASES. [Vol. Stamps. Page. I. — Stamps— Sale of, by tmlicensed vendor — "Forfeit"— Criminal or civil remedy — Ordi- nance No. 23 0/1871, section 49. Sec. 49 of the Ordinance No. 23 of 1871 enacts, that if auy person otber than the commis- sioner or government officer mentioned in the Ordinance shall sell or offer for sale auy stamp without having obtained a license authorizing him in that behalf, as provided in the Ordinance, "he shall for every such offence forfeit the sum of one buudred rupees" — Held, that under the above enactment, a per- son is not liable to be criminally prosecuted but only to be sued civilly and adjudged to forfeit the sum specified. P. C, Badulla, No. 6,418. Fraser v. J. hn Suva and another . . . . . . 26 2. — Stamps— Process— Verification of service- Affidavit of indentity— Stamp Ordinance No. 3 0/1890, Schedule B., Part 11. When process has been served on a person pointed out to the officer serving the process, the affidavit of identity to be sworn by the party so pointing out the person for service is not "an affi- davit for verifying service of process" within the meaning of the exemption mentioned in Part II, of Schedule B to the Stamp Ordinance of 1890, and therefore requires to be stamped. D. C, Kuruuegala, No. 6,831. AppnHAMY V. SITENGIRAI^E . . . . . . 65 See Civil, Procedure, 5. Tatturaaru possession. See Mortgage, 5. Tavern keeper. See Arrack Ordinance. Toddy. See Arrack Ordinance. , Tort. Action in t rt—Plea of minority— Minor appear- ing without guardian ad litem— Nonsuit- Practice. Where a defendant appeared to an action by proctor and pleaded minority; Held, that the plea of minority could not be en- tertained, and a decree of non-suit entered upon such plea was bad, and that it was for the defen- dant, if he so desired, to have taken steps for the appointment of a guardian ad litem. Held, per Burnside, C. I., that a person can always maintain an action in tort against a minor without having a guardian ad litem appointed. D. C, Negombo, No. 15,395. Constantino Vederaitiiined an interim injunction restraining that credit )r and the FiscRl from sellinij the uoffe — reported 4 o. 0. K. 23. The coffee, how- ever, had in fact, us it turned out, been sold before the iiijui.ction issued, and the case came h'ifore us again upon til J incu u rancer's cLiiin to preference over the proceeds SKle — repoi'tcd Wendt 217. The circiimstnn- ees in that case iuv th refore on all fours with those in the pi'esent case. : If we were free of the letter-; imposed upon us by the Roman Dutch Lmv, [ cm see no reason on prinji- ple -why any su h claim on tlie part of the incumbran- cer to the proceed-: of s de of the goods should be sus- tained On the con nir} , it is to my mind unjust that a ci'sditor who lends on t'e security of vhich the Roman Dutch Law originally conceded to theincnm- branci-r of moveable or immoveable property alike — of preference lo the proceeds sale where the property was sold away f om him under writ of some unsecur- ed creditor — is fairly reckoned to have cased so far as concerns mortgages of land when an alt-red prac- tice allnws the mortgagee of land to retain his charge on the land in the treth of the sale, yet when we have ""o do with incumbrances over moveable property created by notarial insti'ument, whose position has un lergone no corresponding alteration, no reason is apparent for now depriving them of the privilege «-hich undoubtedly they have enjoyed. I regret that this matter should at tins day have to be decided in obedi nee to tenets of the law of the United Provinces. It is now more tin a 30 years since Chief Justice Rowe, in the case cited from Lorenz's Reports, ootn- m nied on the inexpediency of questions of this' kind being decid d according to the Roman l~utch Law, perpetuated by vir ue of a cai itulation entered into as far back as 179G with thti Dutch, whose, descend,- ants and whose capitalhad.ashe said at that date with few (xceptions been long withdrawn from the Island. Such law, the learned Chief Justice added, "being as is well known no longer the law of Holland itself and being (save where modified by our Ordinances) en- tirely wanting in those amendments which have within thn last half century be n adopted in other countries to meet the exigencies of society and commerce." We have, however, to take the law as we find it. The Roman Dutch Law governing this matter, the respondent has a right to preference in the proceeds sale of these goods, to the length of the debt remain- ing due to him. The appellant's contention in that respect fails. The appellant also contended that at any rate the appellant's costs of suit should be deducted and paid before the respondent's claim of preference can attach THE CEYLON LAW REPORTS [Vol. 1., No. 1. to the balance. This contention also in my opinion cannot be supported. I am not aware of any instance in which upon a claim either of concurrence or prefer- ence the writho'der, under whose writ the fund in Court was levied, has been allowed to deduct his costs of suit. Nor in principle can such a claim on his part be maintained. The distribution in these miittera is in truth in the nature of a distribution in insolvency in which r11 the unsecured creditors take simply pro rata upon their claims fur debt and costs. The order appe iledfrora must be set aside and the matter lemitted to the District Judge with a declara- tion that respondent is entitled to preference over the fund in Court to the extent of any debt whicli may be due to him by the defendant in this a-jticn under the incumbrance contained in the deed of Sep ember, 1888. And the matter will be remanded to the District Judge in order that those concerned may take such steps as they may be advised to take with reference to that question. The costs nf respondent's iipplication in the court below and upon this appeal will be borne by appelknt and respondent respec- tively, e;ich bearing his own costs, for neither has wholly succeeded in his contention. DiAS, J. — This judgment must be set aside on the ground that the respondent has failed to establish what specific sum is due to him from his debtor ; but as my learned brother has gone into the question involving the right of die respondent to the money now in Court, I huve no hesitation in stating as my opinion that according to Dutch Law a special mort- gagee of immoveable prriperty has a right to discuss that property in satisfaction of his mortgage debt. Hypothecations of moveable property are provided for hy the Ordinance 8 of 1871. According to that Ordinance such a charge can be created by a writing which need not necessarily be notarial, or by delivery of the goods hypothecated, which is the same thing as a pawn or pledge. In this case the pledge has been sold and converted into money, and according to the decisions of the Court (3 Lorenz, 4(5 ; 4 S. C. R. 23) the respondent, or the pledgee did ncit lose his right to follow tin: money. BtJKKsiDK, C. J. — I ciinsent that the case should go back, but I dissent from the proposed order send- ing it back. [N. B. — Jn differing from the judgment of the tSenior Puisne Justice, the Chief Justice stated in Court verbally that he thought the question of fact whether any, and if so what, amount was due from defendant ti respondent should first be decided \ and as it was not now agreed upon, he was for simply sending the case back on that question of fact without deciding on this appeal the question of law as to the l-ight of the respondent to claim the proceeds sale in preference.- -Eeporteh.] Present : — Clakence and Dias, JJ. {September b and \'i, 1890.) S. P. A. '\Valleappa Chetty D. C. Kurunegala, No. 7,244 S. K. Kadek Meera Saibo. Moveables — Mortgage of— safe to a third party by mortgagor — seizure by mortgagee— action by a purchaser against mortgagee. By an instrument in writing a third party purported to hypothecate to defendant "all the right title and interest in respect to all those 25 tons of ebony," which he had acquired a right to cut and remove from a certain forest, and he further covenanted as soon as the ebony was cut to carry and deliver it to defendant to be kept by defendant until redeemed by payment of the debt. He subsequently cut and sold and delivered the ebony to plaintiff, and the defendant having in an action against his mortgagor seized on sequestration the ebony in plaintiff's possession and subsequently sold it under writ the plaintiff sued defendant for tne value of the ebony. Held that defendant had at most only a right as against his mortgagor to have the ebony delivered to him when cut and that he had no right to follow the ebony in plaintiff's possession, and was liable to plaintiff for its value. In this action, instituted on 7th January, 1890, the libel stated in substance that plaintiff wa-i owner of 60 logs of ebony sold to h:m by one Don Juan Perer.i by deed dated 19 November, 1889, and that on 28 Novem- ber, 1889, defendant unlawfully caused the same to be seized by the fiscal under writ of sequestration issued in case No. 7,286 of the same Court, and claimed Rs. 9,000 as damages. The defendant in his answer denied the sale to plaintiff by D m Juan Perera and his ownership, pleaded that the deed referred to was fraudulently and collusively given, and averred a mortgage by Don Juan Perera to himself "f %h tons of ebony of which the 60logs'in question was a part, and justified the St^izurg under writ of sequestration in case No. 7,236 which he had instituted against his tnortgagor. The District Judge dismissed the pUiin- tiff's action, holding that the defendant had a right under his mortgage to seiae the ebony. The plaintiff appealed, Layard, S. G., for plaintiff appellant. Dornhorst for defendant respondent, Clarence, J — One Perera under an agreement with a certain person nnt party to this suit acquired a right to cut (z. ^., fell) and tak- 50 tons of ebony from a cer- tain for. St, an(i having yet to out and tak/ 25 onsof this siipulated amount, Perera purponed by a notarial instrument to hypothecate to defendant this vet uncut timber. After reciting the original agreement creating Perera 's right, the hypot.hecatory instrument purport'^ ed to hyp' theoate to defendant "ailthe right title and interest of (Pe^rera) in respect to all those 25 tons of ebony being the rem..inder port ou or quantity out of the 50 tons appearing in the said deed of agree- ment which is yet to be cut and removed of and fron: the forest land" s6 and i-o. The purport of this seems to be that as yet the timber was not felled. Perera also covenanted as soon as the PRINTBP at the " CEYtON EXAMINER" PrE.SS, NO. i6, QUEEN StrEET, ForT, COLOMBO. VoJ.I.. No. 2.] THE CEYLON LAW REPORTS. ebony should have been cut to carry and deliver it to defendant to be kept by him until redeemed by psty- ment of the debt. The ebony having been felled, Perera sold 60 logs to pLiintiif, and we may assume that the 60 logs so sold to plaintiff included the 25 tons with which the above hypothecatory instrument purported to deal. Plaintiff took delivery of the ebouy so purchased by him and carted it several miles to the nearest railway station when defendant having begun a suit against Perera got the ebony seized on seques- tration, and ultimately sold it in execution of the judgment which he obtained against Perera. TJpon these facts I am of opinion that plaintiff is entitled to succeed in this action. 'This is not the ease of an absolute transfer of the property in moveable goods by way of Bill of Sale followed by a bailment as in Cooper v. Willomat. 1 C. B. 672 and that class of cases. All rhat liefenlant acquired under his deed was at most a right as against Perera to have the 25 tons of ebony given over to him by way of pledge when cut. In the meantime, Perera having cut the ebony sold and delivered to plaintiff. Defendant had no right to follow the ebony in plaintiff's possession ; and having seized it and sold it while in plaintiff's possession, he is liable to plaintiff for its value. The judgment must be set aside and the case sent back to the District Judge in order that the Dis rict Judge may settle the snm to be awarded to plaintiff as damages, viz., the market value of the ebony taken by defendant. Plaintiff must have his costs to date in both Courts, except that having needlessly and nnsuccessfuily tra- vers'id dtfendant's averments contained in the 9th paragraph of the defendant's answer plaintiff must pay defendant the costs of establishing these averments. DiAS, J. — I think the plaintiff is entitled to succeed in this case. He bought the ebony in qnestion fmm Perera who was in possession of it. The plaintiff did not know, and had no reason to believe that the ebony was pledged by Perera to the defendant, and the defendant having allowed Perera to remain in possession of the pledge cannot complain. Present : — Clarence, A. C. J. {October /-i3 ^aia. according to the laws of inheri- tance". The plaintiff claims as a vendee through the donee, the defendant appellant claims in right of certain heirs of the donee's brothers and sisters who they say l)( can. e entitled as the ultimate donees under a fidei-commissum in their favour created by the deed. After the deed of ^ift had been made, the donee Tillekeratne mongaged the premises, and upon his death the property was sold in suit against his ad- ministi-Htor and the plaintiff became the purchaser. 1 quite agree with the judgment of the District Judge that the title which the donee took in the land was an absolute estate, subject only to the right of the donee's brothers and sisters to inherit in lieu of the collateral heirs of his wife, and as the donee did in his lifi;time exercise the right of ownership by dis) osiii,!; ot the estate by mortgage, his having done so defeated the tight of his bi-ntheis and sisters' to any interest in it, and it became liable to the mortgage debt which encumbered it, and was rightly sold in payment of the debt. Judgment aflBrmed. DiAs, J. — The laud in dispute was the property of Dona Maria Tillekeratne, who by a deed of 15th Sep- tember, 1839, conveyed it by way of gift to D. H. Tillekeratne, his heirs, executors, and administrators, subject, however, to the condition that in the event of the death oi the donee without specially disposing of the subject of the gift by will or otherwise or in the event of his death after marriage without lawful issue or their legal descendants, no part of the property should pass to his widow by virtue of the community of goods between husband and wife, but that the same should pass to the brothers and sisters of the donee or their lawful descendants. The object of the donor is very plain. She gave the property to the donee and his legitimate children absolutely and excluded the rights of the donee's widow by virtue of the com- munity of property. The done'e died without leaving either wife or children, aud it was contended for the defendants, who claim under the brothers and sisters of the donee, that the donee having died withotit issue the prope ty passed to them by virtue of the deed of 1839. This contention cannot be upheld, because the gift being an absolute gift to D. H. Tillekeratne, and he having failed to dispose of it during his lifetime, it passed to his administrator on his death and was seized on a creditor's writ against the administiator and sold by the Fiscal and bought by the plaintifTs. vendor. The defendants have entirely misapprehended the effect of the deed of 1S39, but the District Judge took a correct view of it and gave plaintiff judgment, which is aflSrmed. -:o :- Present •.—Qi.KSEscs., A. C. J., and Dias, J. {October 8 and 16, 1890.) D. 0. Kandy, \ Kamen Chetty, v. Abdul Eahbman No. 2,499. i Saibo and another. Arbitiation—compuhoty reference— matters Of account— action against partners — iss7ie of pat t- nership — Ordinance No. 15 raise the objection now. It is not in every case that a party who has a right to appeal from an" interlocutoiy order is bound to appeal or give up the joint involv- ed, and in Catneton v. Fiaser \ Mr ore P. C. 1, the Privy Council p(iinted out the great inconvenience to which a contraiy lule would lead. That case strong- ly resembles the present. We dismiss the appeal with costs, but we express no further opinion, on matters suggested in the learn- ed District Judge's note. DiAS, J^ concurred. Pfesent :— Bubnsidk, C. J., and Cl/ieence and DiAS, JJ. {/uly i and 2b, and August 14, 1890.) p. n, Colombo, I . No. 1266. [ Arunachalam v. Pibris. Fiscal— wt it-holder in his private capacity— writ iisued to Secretary of Court under section 26 of Oi dinanceNo. 4 o/"1867 — duty of such Secretary — negligence by—irregularity^parate execution — reissue of wt it — practice. The judgment creditor, plaintiff, being himself Fiscal, the Secretary of the Court was appointed to execute writ, and the same was issued to him for execution accordingly. Property was seized and sold, but the purcliaser made default but no security was taken from him. The property was then resold and purchased by the plaintiff for an amount less than that of the original sale and leaving still a balance uuder the judgment. No parate writ was applied for in time or issued against the first purchaser. Held, that the plaintiff was entitled to have the writ reissued for the recovery of the balance amouut due uuder the judgment. Held, by Clarence; and DiAS JJ., that the duty delegated by the Court to the Secretary included the incidental power of taking security from any purchas- er and of issuing parate execution. The plaintiff obtained judgment on the 19th March 1889 against the defendant on a mortgage bond for Rs. G90-30, took out execution, and seized the mort- gaged property ; but as the plaintiff was himself the Fiscal, on the 19th June 1889 the Court at the plain- tiff's in-itance appointed the Secretary of the Court under section 26 of the Fiscals Ordinance to carry out the sale. The Secr'jtary held the sale, and the pro- perty was purchased by one Karuneratne for Rs. 66.5-00. The purchaser made a deposit of Ks. 120, but the Secretary failed to take security as requireci for the payment of the balance purchase money. Rp. 108-20 out of the amount paid down was subse- qiientiy diawn by the plaintiff. The purchaser hav- ing made defa.ult in the payment of the balance, the writ was reissued and the Secritary resold the pro- perty when it was purchased by the plaintitf himself for Rs. 50. Tin- plaintiff got credit for this amount and a conveyance in his favour after notice to the defendant. The writ having been reissued at the plaintiff's instance for the balance still due, the de- fendant moved to recall the writ which had reissued and under which certain land had been seized, and to release the seizure. The District Judge (C. L. Ferdinands) re-called the writ on the ground that it was plaintiff's duty in his capacity as Fiscal to have taken out parate ex.'cu- tioii against th f defaulting purchaser, and that the de- fendant having been prejudiced by the neglect of the plaintiff was entitled to have the writ re-called. The plaintitf appealed from this order. Dornhorst for plaintiff appellant. Browne {^Weinman with him) for defendant res- pondent. The appeal first came on for argument before ISUENSIDE, C. J., and Clarence, J. on July 4 1890 But their Lordships disagreeing as to the effeciive order to be made, the case came before the Pull (Jl,.,..t .,., T.-r.. nc ,n/^„ I further argument. deUvcrtd^-- '^' ^^^^' "'^^""°^'"gJiogmentswere BuRNSiD,:, C. J.-l do not think the grounds on which this oixler has been made are in accordance with Jo.irton July 25, 1890, when the counsel agreed that )iAs, J. should take part in the judgment without Vol. I., No. 3.J THE CEYI.ON I.A.W REPORTS. the law, which perhaps is all that we have to do with, but I do not think we should. It is not denied that a balance is due on the plaintiff's judgment, and, that being so, ^rima facie the writ should go. Many questions, however, of much importance suggest themselves. The first is, in what position did the Secretary of the Court, who was appointed by the Court to execute the writ of execution issued at the suit of the plaintiff, who was Fiscal, stand towards the plaintiff as Fiscal ? The section 26 of the Fiscal's Ordinance authorises a Court, when for just cause a F'iscal should not be required to serve or execute process, to name and appoint some other fit person to serve, execute, and return the pro- cess. Now, in this case the order of the Court was that the "writ be issued to the Secretary". Was this a compliance with the Ordinance; and if it were, what was the Secretary bound to do ? Was he bound to issue parate execution on the failure of the purchaser, or was he functus officio when he returned the writ after sale ? Then again, was he bound to, or could he, even under authority from the Court, re-sell after he had accepted a purchaser and returned the writ? It appears that not onlv did he re-sell, but he re-sold before the period of credit, which the purchaser is given by the Ordi- nance, had expired. Then, the writ having been returned, is it possible to re-issueit to him without a fresh delegation by the Court? With these points in view, which we cannot decide on the materials before us, I think it best simply to set aside the Judge's order refusing process and discharge the rule, leaving the i\\x^s\xoxi res integra to be dealt with by the District Court, if it is again brought before it, with knowledge of the important points to which we have referred. I would give no costs- Clarence, J.— The plaintiff sued on a mortgage and obtained a mortgagee's judgment and decree for Rs. 690-30 and certain interest and costs in February, 1889. Plaintiff being at the time himself the Fiscal, the District Judge made an order under section zd of the Fiscal's Ordinance, that the Secretary of the District Court should execute the writ issued under plaintiff's judgment. The Secre- tary accordingly held a sale, at which the mort- gaged property was knocked down to a purchaser for Rs. 565. Under section 49 the purchaser should have paid down one-fourth of his purchase money, and given security for payment of the balance within two montfis. The purchaser paid down Rs. 120, rather less than the required one-fourth, but no security was taken from him and he has never paid the balance. The sale took place on the 19th October. On the 14th December the Secretary held a re-sale, at which the property was knocked down to the plaintiff himself for Rs. 50, and the plaintiff on notice to the defendant has had a conveyance. The plaintiff thereupon obtained re-issue of writ for the balance of his judgment debt after deducting sums of Rs. 10820 and Rs. 50 respectively drawn by and credited to him under the above proceedings. The plaintiff now appeals from an order of the District Court made at the defendant's instance re-calling the writ for balance claimed under the judgment. In my opinion this order cannot be supported. No objection was made to the re-sale by the defend- ant on any .score of irregularity under section 53 of the Ordinance. It would indeed appear from the dates above quoted that the re-sale was made about five daj's before the two mouths had run out. No objection, however, seems to have been raised by the defendant on this or any other point. Neither did the defendant or the plaintiff call attention to the Secretary's omission to take security from the first purchaser. The duty delegated by ine Dis- trict Court to the Secretary clearly included the incidental power of issuing parate execution (if necessary) under the writ. He did not issue parate execution, and it is now impossible tuat parate execution should issue, the proper time haviuggone by. The defendant cannot upon tills procecUing avail himself of any contention, that tue plainuti" is responsible lor tfie non-issue of parate execution, the conduct of the writ having expressly been taken by tne Court out of plaintia's Uands. We have, therefore, simply these facts. Tbe piaintiti's judg- ment is unsatisfied, the first writ not fiaviug pro- duced enough. Had tUe first purcUaser been compelled to pay up Uis purchase money lu lull, tne deficit would Ua ve been out small. He made default, however, and it is uow impossible to obtain anything more from him by parate execution. This being so, I can see nothing whatever diseu titling the plaintiff to re-issue his writ for the balance ot his deut. I therefore think that the order should be set aside, plaintiff receiving his costs thereof in both courts, and tliat the case should be sent back to the District Court with directions to compute the balance due to plaintiff" under his judgment, and re-issue the writ accordingly, DIAS, J. — I am of opinion that the plaintiff is entitled to have his writ carried out. The \ udgment is still unsatisfied, and the objection to its enforce- ment by writ are (i) that piaintifi did not issue parate execution against the first purchaser who was in default, (2) that the Fiscal failed to take security from the first purchaser for tue balance of the unpaid purchase money. The plaintiff himself being the Fiscal for the Western Froviuce, the Secretary of the Court was nominated Fiscal to carry out the writ as provided by the Ordinance. So the Fiscal, who carried out tne writ, was the Secretary of the District Court of Colombo. The plaintiff on the record being the Fiscal, is a mere accident. I must look upon the Secretary of the Court as the Fiscal. Now, under section 49 of the Ordinance the security is to be taken by the Fiscal who had charge of the writ, and parate execution under section 50 is to be issued by the same party. The omission to do either of these acts is no fault of the plaintiff, and if the defendant is prejudiced by the neglect of the Secretary Fiscal, he has his remedy against him, but it is no defence against the plaintiff to whom admittedly a balance is due on the judgment. The order appealed from is an order to recall the writ already issued, and to release the property already seized. This order I would set aside with costs. The writ of course will be proceeded with in due course. lO THE CEYLON LAW REPORTS. [Vol. I., No. 3. PreJCK/;— BURNSIDE, C. J. (June 19 and 2^, 1889.) ^■n^o'?4,7S?°'} ^^^^^ '^^^^Y ^- OMiSRLEBBE. Jurisdiction — cause of action— promissory note — endorse- ment — Ordinance No. 11 of 1868, section 81. The eiidorsemeut of a prouiissory note within the territorial limits of a court gives that court jurisdiction in a suit on the note by the endorsee. The plaintifi as endorsee of a protuissory note for Rs. 9750 brought this action against the defendant as maker in the Court of Requests, Colombo. The defendant was a resident of GaloUowe in the District of Negombo, and the note was made at Minusingoda in the same district. The endorsement to the plain- tiff by the payee was made at Colombo. The defend- ant pleaded to the jurisdiction. The Commissioner held that the Court had jurisdiction, and gave judg- ment for the plaintiff, and the defendant appealed. Pe/-«yi2 for defendant appellant. Cur. adv. vult. On June 25, 1889, the appeal was dismissed : — BURNSIDE, C. J.— The note in question was en- dorsed to the plaintiff in Colombo. This gives the Court of Requests of Colombo jurisdiction in the suit on the note. Present :— CLARENCE, A. C. J. {October 16, 23, and ^o, 1890,) P. C. Panadura, No. 2,918. I '■ ERNANDO V. GiMANIS and another. Appeal— charge on two counts— sentence of one month's im,prisonment on each count — Ciiminal Procedure Code, section 405, Where a Police Court sentences a defendant to im- prisonment for one mouth on each of two counts of a charge framed against him, an appeal lies wt the instance of the defendant uuder section 405 of the Criminal Procedure Code. In this case there were two defendants, husband atid wife. The Police Magistrate formulated two charges against the ist defendant : (i) wilfully exposing his person in an indecent manner under sub-section I of section 4 of Ordinance No. 4 of 1841, and (2) intentionally insulting the complainant under section 484 of the Penal Code ; and one charge against the 2nd defendant— theft of a coconut under section 368 of the Penal Code. The defendants being convicted, the Police Magistrate sentenced Ihe ist defendant to imprisonment for one month on each count of the charge formulated against him, and the 2nd defendant to imprison- ment for one month on the charge formulated against her. Both the defendants appealed. Dornhorst {Peiris with him) for defendants appel- lants. Wendt for complainant respondent. The appeal came on for hearing on October r6, 1890, and judgment having been reserved, Clarence, a. C. J., on October 23, dismissed the appeal. But subsequently the appellants' counsel having drawn the attention of the learned Acting Chief Justice to the double sentence passed on the ist defendant, the following judgment was deli- vered on October 30, 1S90 :^ CLARENCE, A. C. J.— In this case the appeal of the 2ud defendant is rejected, the sentence being under the appealable limit, tiiere being no point of law, and tuc lUagistrate not having noted that he gave leave to appeal. The ist defendant has been sentenced to a month's rigorous imprison- ment on each count of the charge — two mouths in all. That is an appealable sentence, 1 see 110 reason wnatever to intei fere witii the sentence on the second count, but I am not prepared to affirm a sentence of one month's rigorous imprisonment on the first count, viz., that lor stealing one cocoa- nut.* The sentence on the first count will be a fine of Rs. 10, or in default one month's rigorous imprisonment. /'r«s«^:-Cl,ARENCE, A. C. J., and DiAS, J. {July 17 and 24, 1888.) D. C. Kandy, ) MuTTU Carpen CheTTY v. No. 97,649. j Forbes capper. Action on promissory notes— agreement to take less than amount due— release— consiUeration-~n\xiX\im pactum compromise— Roman Dutch Law— Ordinance No s 0/1852. ■ ^ The plaintiff brought this action for the recovery of Rs. 622 on certain promissory notes. The defendant being about to coutest the suit, the parties came to an agreement, whereby plaiutitf agreed to take in lull satisfaction the sum 01 Rs. 410, of which Rs. 20j was to be paid down and the balance within a "iveu time The defendant fulfilled his part of the agreement. Held that the above agreement was not a bare agreement without consideration, but was in the nature of a compromise, and as such was biudiug ou the plaiutiif so as to disentitle him to recover from the defendant more than the amount agreed upon. The libel was instituted by plaiutitf on October 6 1886, for the recovery of Rs. 622 then due on three promissory notes and for further interest and costs. The defendant was in default of answering, and plaintiff took out a rule nisi for judgment by de- fault returnable on 21st February, 1887. On Febru- ary 18, however, the parties entered into the agree- ment hereinafter mentioned. But on February 21 plaintiff moved to make the rule absolute, and de- fendant not appearing, the rule was made absolute accordingly and judgment was entered for Rs. 622 with further interest and costs. Thereafter plaintiff issued writ and seized defendant's property. On November 6, 1887, the defendant submitted an affidavit to the effect that on February 18 the plaintiff hadagreed in writingto reducehisclaim to Rs.4Toia consideration of Rs.200 then paid tohim by defendant, • This is an error, the first count being one for in- decent exposure of persons as noted iu the above report — RBporTBR. ^ * Vol. I., No. 3.1 THE CKYI^ON I,AW REPORTS. and a further sum of Rs. 210 agreed to be paid on or before May 15 ; that in April the plain- tiff purchased from defendant ceriain caltle for the prict ol KTs. 95, which plaintiff credited to defendant iu reduclioii of the said sum of Rs. 210; and that on ;vay 15 defendaut tendered to plaintiff the remain- ing buiu ol Rs. 115, which plaintiff refused to accept. The agreement referred to was signed by plaintiff and wai as follows, " I argee to receive the sum of Rs. 410 for the claim, interest, and costs, out of which amount I have received by cash Rs 40. by an order of the Ceylon Company Limited Rs. 60, and by S. Mohamadaly Hadjiar Rs. 100— total Rs. 200 — and the balance Rs. 210 to be paid on or before 15th May, 1887, and in failure to pay thi balance amount the wliole amount would be recovered as judgment." Upon thesematerials, defendant, bring- ing into Court the sum of Rs. 115, obtained a rule «/j-/ to shew cause why plaintiff should not accept the sum ofRs. 115 so deposited iu Court in full satisfaction of his claim, and why satisfaction of the judgment obtained by plaintiff should not be entered of record. On December 2, 1887, on the discussion of the above rule, further evidence was taken, the defend- ant deposing, inter alia, that he "was going to defend this action" and that afterwards the parties came to the agreement as above. The District Judge (A. C. Lawrie) held on the facts substantially as sworn to by defendant and made the defendant's rule absolute, but awarded no costs. From this order both parties appealed— the defendant in res- pect of the order as to costs, and the plaintiff in respect of the whole order. Dornhorst for plaintiff appellant. This being an action on promissory notes, the English, and not the Roman Dutch L,aw, will govern this matter. The decision in Grenier (1873) 31 will therefore not apply. Under English Law the agreement is bad for want of consideration, Cwwzierz'. Wane, i Smith's Leading Cases 367 ; Foakes v. Beer, L. R. 9 App. 605. Nor can the transaction disclosed here be brought within the exception engrafted on the law by such cases as Sibree v Tri^p, 15 M. and W. 23 ; and Goddardv. O'Brien L. R. 9. Q. B. D. 37, which are fully discussed in Anson's Contracts pp. 83, 84. Browne for defendant appellant. Under the Roman Dutch Law, which it is submitted governs this matter, a release requires no consideration, Wickremesekere v. Tatham, Grenier (1873) 31. Even under the English Law a debt due on a promissory note may be expressly waived without consideration, Foster v. Dawber, 6 Ex. 851. It is also submitted that the defendant havitjg succeeded in his conten- tion in the Court below the District Judge was wrong in disallowing his costs. Dornhorst in reply. Cur. adv. vult. On July 24, 1888, the following judgments were delivered : — Clarence, A. C. J.— If this appeal had to be de- cided by determining the naked question, which received some argument at the Bar, viz , whether a bare agreement to release a liquid indebtedness, founded on an overdue promissorj' note, on pay- ment of a smaller .sum, is, under the law of this country, nudum factum for want of consideration. I should have desired to hear further argument upou the authorities. If the matter be governed by tue Roman Dutch Law, no consideration would be needed ; but il, uuder the Ordinance No. 5 of 1852, the English Law is to be applied, we should have to consider authorities careiuUy. The decision in Cumber v. Wane, so severely ciiticised m Smith's Leading Cases, and the earlier decision in Finnel's Case,^ Co. Rep. 117, were considered by the House of Lords m Foahes v. Beer, L. R. 9 App. 605, when tlieir lorclsaips defiuitiveiy declined to over-rule tue doctrine laid down in Finnfl's Case. We must take It as now settled EughsU Law that a bare agreement witliout consideration to release a debt ou paymeuL aowu, or by instalment, of a lesser sum (tile case not being one ol a composition with a common debtor, agreed to, inter se, by several creditors, is not binding in law. In Foster v. Dawber, 6 Ex. 839, Lord Wensleydale laid it down as a part of the law merchant that the obligation on a bill ol exchange or promissory note may be discharged by express waiver, and that whetuer tue liabiluy is between immediate or distant parties. In Wickremesekere v. Tatham, Grenier (1873)31, Sir Edward Creasy seems to have regarded this as a luling that no consideration was necessary. In McAlanus v. Bark, L. R. 5 Ex. 63, however, which was an action ou a promissory note, it was^held by the Court ol Excnequer (Kelly C. B. and Martin, Chauuell and Figolt B. B.) that an agreement to accept repayment of ;^S20 due on the note by quar- terly instalments of ^25 with interest, was no de- fence to an action ou the note, by reason of there being no cousideratiou for the agreement. Foster v. Dawber had been cited in that case. But whatever might have been the doctrine ap- plicable, had this been the case of a simple and bare agreement to release a debt due on a promis- sory note upon payment of a lesser sum by a given time, I thiuk the facts are not quite that. In this action the plaintiff sued on three notes aggregating to Rs. 600-12. The action was institu- ted in October, 1886. Defendant did not appear, and plaintiff on February 2, 1887, obtained a rule nisi for judgment by default. Defendant was about to contest the matter, but on the i8th Febru- aiy the parties met and entered into the agreement now in question. Three days after that plaintiff had judgment by default entered up for Rs. 622. I see no reason to duubt the souudness of the District Judge's finding, that within the time allow- ed by the agreement plaintiff bought from defend- ant cattle at a price of Rs. 95, and that defendant tendered, also within time, the remaining Rs. 115 payable uuder the agreement. Plaintiff refused to accept. Now, the case as put by defendant, and in this respect he is not contradicted by plaintiff, is scarcely that of a bare agreement to take a small- er sum in satisfaction of a liquid debt due on promissory notes. Defendant was about to contest plaintiffs claim on the notes, and the arrangement made between them seems rather to have been that of a compromise. In that view the case falls within the principle acted on in Cook v. Wright, I B. & S. 559, and so the agreement is good. There is, of course, the technical difficulty that plain- tiff after entering into the agreement above men- 12 THE CEYLON LAW REPORTS. [Vol. I., No. 3. tioned preceded to enter up judgment for the larger sum. Substantially, however, the District Court has done justice by preventing a plainti£F from recover- ing more than the amount agreed upon ; and this being so, I see no reason to interfere on plaintiflf's appeal. I also think that we should not disturb the District Judge's order as to costs. DiAS J. — I wish to express no opinion on the ques- tion of law raised at the argument. I simply aflBrm the judgment, as the agreement disclosed in the proceedings is good and binding between the parties. : o : Present :— BurnsidE, C. J., and CLARENCE and BIAS, JJ. {June 27, July 25, and August 14, 1890.) D. 0. Badulla ( MUTTAPPA CheTTY and another. No 26 672 ' i ^■ ' ' ' y KiDURU MAHAMADOE and another. Sub-mortgage of mortgage bond— sale and assignment of bond by Fiscal—satisfaction of judgment— Ordinance No. 4 0/1867, section 44.— practice. The plaiutiifs sued 1st defendant as principal and 2nd defendant as surety for the recovery of Rs. 750 due upon a bond, whereby 1st defendant mortgaged as security for the debt a mortgage bond for a similar amouut iu bis favour by A. and M., containing a mort- gage of certain lauds. Upon judgment obtained, plaintiffs issued writ and sold, inter alia, A. aud M.'s bond and became the purchasers thereof for Rs. 100, and obtained an assignment of the bond from the Fiscal. Thereafter plaintiffs received from A. and M. in full satisfaction the sum of Rs. 500, being less than the amount then due on their bond. The judgmentin in this case having subsequently become dormant, plaintiffs, crediting defendants with the amouut of the purchase money of the bond and certain other levies, took proceedings to revive judgment for the balance still due. The ist defendant being present and showing no cause, the judgment was revived according- ly and writ re-issued. //eld,-per Clarence and DiAS JJ. (dissentienet Burn- SIDE, C. J.) that A. and M.'s bond mortgaged by the 1st defendant was properly seized and sold in execu- tion and the plaintiffs were not bound to follow the procedure laid down in section 44 of the Fiscals Ordi- nance for the purpose of realising the money due thereon. Held also that by the sale and assignment of the bond to plaintiffs all the interest of the ist defen- dant therein absolutely vested in plaintiffs, and the ist defendant was neither discharged from his liability under the judgment, by reason of the plaintiffs dis- charging the original mortgagors upon receiving part of the amount due on their bond, nor entitled to be credited with the sum so received. The plaintiffs arrested ist defendant upon the writ issued on the revived judgment aud moved that he be committed. The ist defendant in shew- ing cause submitted an affidavit stating, inter alia, that at th^ time of his mortgaging to plaintiffs the bond in his favour there was due thereon the whole principal {i.e. Rs. 750) and interest amount- ing to Rs. 367, that his right title and interest in the bond was sold by the Fiscal without his know- ledge and was purchased by the plaintiffs for Rs. 100, that thereafter the plaintiffs received from the debtors on the bond the sum of Rs. 500 in full discharge of the debt due by them, and that at the time of his shewing cause against the motion for reviving judgment he " was not in possession of the document by which it could now be proved" that the plaintiffs received from their debtor the sum ofRs. 500 in full settlement. The assignment to plaintiffs of the bond by the Fiscal was in the form of conveyance given in the schedule to the Fiscals Ordinance for the transfer of lands purchased at Fiscal's sales. The bond sued upon referred to the original mort- gage to ist defendant as follows : "I do hereby mortgage the principal amount of Rs. 750 borrowed from me" by S. T. M. Ali and S. Mohideen "by mortgaging the following two allotments of land under mortgage bond No. 3,221." It then described the lands and proceeded to state that in default of payment the creditors were at liberty " to recover the same in full from this mortgage or from us." The District Judge (H. L,. Crawford) disallowed the motion to commit the ist defendant and dis- charged him, holding that the plaintiffs should have adopted the course laid down in section 44 of the Fiscals Ordinance and that by their failure to discuss the property mortgaged to 1st defendant by his debtors the plaintiff's had forfeited their right to have their writ enforced. From this order the plaintiffs appealed. The remaining facts of the case appear in the judgment of CLARENCE, J. VanLangenberg for plaintiffs appellants, ist defendant's acquiescence in the revival of judg- ment estops him from seeking to recall the writ on the ground of the judgment having been satisfied before the revival. It is submitted that what the plaintiffs purchased at the Fiscal's sale w ^°'' registration of a trade mark. No. 68. j SWAMPILLAI V. Manuei,pii,i.ai. and D. C. Colombo) ^"/''^ ™^"^5 °f ?" application (Special) } ^""^ registration of a trade mark. No, 70. j ]VIANUEI,PII,LAI v. SWAMPILLAI. Trade mark— "Prop^-ietor"— User— Priority of applica- tion— Registration— Trade Marks Ordinance, 1888. The user of a mark as a trade mark confers the right of property in it when the article it represents has acquired a general reputation by that mark in the market, and the proprietor of such trade mark is en- titled to have it registered under the Trade Marks Ordinance, 18SS. The Trade Marks Ordinance (No. 14 of 1888), which came into operation on March 25, 1889, by sub-sec. i sec. 3 provided: "Any person claiming to be the proprietor of a trade mark may by himself, or his agent, apply to the Colonial Secretary for an order for the registration thereof." Tobacco, manufactured and unmanufactured, forms class 45 in the classification given in schedule 3 to the Rules promulgated by the Governor on March 28, 1889, under the provisions of the Ordinance, and published in the Government Gazette of March 29, 18S9. Swampillai and Manuelpillai were traders in Jafina cigars, carrying on business in Jaffna and Colombo. On April 11, 1889, Swampillai forwarded to the Colonial Secretary, under the provisions of the said Ordinance, a representation of an oblong box (commonly used for collecting alms) with a slit on the lid, and the inscription "Charity Box" in Knglish, Tamil, and Sinhalese, the device being sur- rounded by his name and initials, and applied for registration of the same as a trade mark for goods in class 45, tobacco manufactured and unmanufac- tured. This application being duly advertised, Manuelpillai on May 31, 1889, gave notice of oppo- sition under sec. 10 of the Ordinance on the grounds : (i) that he, and not Swampillai, was en- titled to register the said trade mark under the provisions of the Ordinance ; (2) that tha said mark was substantially identical with a mark (a representation of which he gave) which he had used ever since the year i860 for the goods in question ; and (3) that his goods had acquired a position in the trade under the said mark. A copy of this opposition having been forwarded to Swampillai by the Colonial Secretary, Swampillai on June 12 made a counter statement to the effect : (i) that prior to March 15, 1889, no other person in Ceylon used as a trade mark, for any description of goods, the mark of which he claimed to be owner; (2) that on March 15, 1889, he commenced to use the trade mark for cigars and cheroots manufactured and sold by him ; (3) that he denied that since the year i860 Manuelpillai used the mark described in his notice of opposition, or that he was sole pro- prietor of the same ; and (4) that he denied that Manuelpillai ever used any such mark prior to May 21, 1889, or that he acquired a position in the trade under the said mark. Manuelpillai then having furnished the necessary security for costs as required by sub-sec. 10 of sec. 3 of the Trade Marks Ordinance, the Colonial Secretary required Swampillai in terms of sec. 11 to apply to the Dis- trict Court and obtain an order that notwith- standing the opposition of Manuelpillai the regis- tration of the said trade mark should be proceeded with by the Colonial Secretary. Accordingly Swam- pillai commenced the proceeding No. 68 in the District Court of Colombo by an application to which he made Manuelpillai respondent. Beyond opposing Swampillai's application to the Colonial Secretary, Manuelpillai also on May 31, 1889, made a separate application on his own behalf to the Colonial Secretary for registration of the trade mark. Swampillai opposed this application, and after proceedings similar to those set forth above Manuelpillai commenced the proceedings No. 70 in the District Court of Colombo, making Swampillai respondent to the application. The respective applications and answers develop- ed substantially the same issues as above noted. The cases having come on for investigation, were by order of Court consolidated, and were heard and decided together. The following is the judgment of the learned District Judge (C. I/. Ferdinands) :^ "These are two applications before the Courtuhder the Trade Marks Ordinance, 1888, for the registra- i6 THE CEYLON LAW REPORTS. [Vol. I., No. 4. tion of a trade mark called "Charity Box". It consists of a wooden box with a slit on the lid to receive charitable contributions in money, and the words "Charity Box" are written on a side in English, Tamil, and Sinhalese characters. The first application was made by one Manuelpillai Bastianpillai Swampillai, the applicant in case No. 68, whom, for the sake of brevity, I shall here- after call the ist applicant. The second appli- cation was made by Savari Muttu Manuelpillai, the applicant in case No. 70, whom I shall call the 2nd applicant. Both applicants are dealers in Jaffna cigars. The cases were consolidated by an order of this Court made on the ,ioth day of December last, and the issue to be tried in each case was settled as one of user by each party of the trademark he applies to be registered. It is in evidence, and I find it as a fact, that the 2nd applicant was the first cigar trader who kept a "Charity Box" in his boutique for the collection of alms. He was followed by the ist applicant and several others in this practice, but the appella- tion "Charity Box cigars" was confined to the and applicant's cigars, which thereby acquired a distinctive value and reputation in the cigar market. But the keeping of a box for the receipt of alms will not entitle either party to call it his trade mark for the purpose of registration, unless it was accompanied by user of the device on his cigar boxes in the course of trade. It is admitted by the ist applicant that he first began to brand his boxes with the device he claims to be regis- tered one or two months after March, 1889 ; and it was only on the nth April that he applied to the Colonial Secretary for an order for its registration. It is clear, therefore, that he had no user, and consequently no right of property in the trade mark at the date of his application. The 2nd applicant has adduced abundant evidence, which I see no reason to disbelieve, of the user of this device on his trade boxes for the last 18 years ; and if the user conferred a right of property, he, and not the ist applicant, is entitled to have the trade mark registered. "It was contended by the ist applicant's counsel, that a trade mark in use before the Trade Marks Ordinance (14 of 1888) confers no proprietory right, and that the ist applicant by right of priority of application is entitled to preference in regictration- The Ordinance is but a transcript of the English Statute 46 and 47 Vict. Cap. 57 Part 4. The definition of a "trade mark" in our Ordinance is piecisely the same as in the English Act, with the omission, however, in our Ordinance of a provision in the Act, that a trade mark in use before the operation<|)f the Act may be registered under it. This provision was necessary in England, as trade marks were protected by previous enactments, 38 and 39 Vict. Cap. 91 with two amending Acts of 1876 and 1877, all which virere repealed by the last Act of 1883. "There was no similar necessity for the provision being inserted in our Ordinance. I take it that the general user of a trade mark for a length of time confers the right of property when the article it represented had thereby become a vendible article and acquired general notoriety and reputation in the market. (This has been proved to be the case with the cigars of the 2nd applicant indicated as the "Charity Box cigars".) S&& M' Andrew \. Basset, Zi L. J. (n. S.) Ch. 561. In the case of Leather Cloth Co. V. American Leather Co. 9 H. L. 538, I/ord Kingsdown puts the case thus: "that a man marks his own manufacture either by his name or any symbol or emblem, however unmeaning in itself; and if such symbol or emblem comes by use to be recognised in trade as the mark of the goods of a particular person, no other trade has a right, to stamp it upon his goods of a similar description. This is what I apprehend is usually meant by a trade mark. Just as the broad arrow has been adopted to mark Government stores, a mark having no meaning in itself, but adopted by and appro- priated to the Government. "I hold that at the date when the Trade Marks Ordinance came into operation the 2nd appli- cant had by general user acquired the right of property in the Charity Box uevice, and the ist applicant had not the right to appropriate it by prior application or otherwise." Thereupon the District Judge dismissed Swam- pillai's application and made order that the Colo- nial Secretary do proceed with the registration of the trade mark applied for by Manuelpillai. From this judgment Swampillai appealed. Browne {Morg-an with him) for appellant. The question under the Trade Marks Ordinance, 1888 is, whether appellant is "proprietor" of the trade mark. How will such proprietorship be acquired ? The Ordinance does not define "property" or "proprietor". It is submitted that user does not confer the right of property. The case here is in a similar position to the cases in England before statute, when Chancery interfered. The true ground of such interference was not to protect rights of property, but to prevent fraud on purchas- ers. {Milltngton v. Fox, 3 Myl. & Crg. 338; Perry V. Truefitt, 6 Beav. 66.) The right to protection of the Court of Chancery did not depend on any exclusive right to a particular name, but on the right to be protected against fraud. {Graft v. Day, 7 Beav. 84 ; Morison v. Moat, 9 Hare 241.) Even in M' Andrew v. ^aw^// and the Leather Cloth Com- ^any case referred to by the District Judge, pro- perty in a mark was said to exist only in a qualified sense,. very different, for instance, from the sense in which copyright exists. In Singer Machine Manufacturers v. Wilson, I,. R. 3 App. 396 and 400, Lord Blackburn was "not prepared to assent either to the proposition that there is a right of property in a name or that it is not necessary to prove fraud". So English cases do not establish conclu- sively that user gave a right of prooerty. It is submitted therefore that such right will be acquired by first invention and first application for registration, which appellant undoubtedly did Even if user confers a right of property, in order to deprive appellant of the right to register, it should be established that such user on the part of res pondent existed prior to that of appellant. Refer- ring to the evidence, counsel argued that the respondent failed on that point, and also that the trade mark claimed by appellant differed materially from that claimed by respondent. "Vol. I. No. 5.] THE CEYLON LAW REPOETS. 17 Dornhorst {/. Grenier and Wendt with him) for respondent. The issue settled by the District Judge, viz., as to user, is the only issue developed by the pleadings. The appellant does not claim to be "pro- piittor' on the ground of having invented or devised tie mark, but only of havini; begun to use it from March 15, 1889. The respondent based his right on both grounds : (1) of having invented and devised the mark, and' (2) of having used it for the last 18 years. The parties acquiesced in the order of Decem- ber 10, 1889, settling the issue as one of user, and the District Judge tried that issue. It is not there- fore open to the appellant to go behind that order and seek to establish " proprietorship" on grounds other than that of user. The English Act, 46 and 47 Vict. Gap. 57 Pt. 4, especially recognises the rights of proprietorship acquired by user, [See proviso 3 of Bection 64.] On the question of fact the District Judge has found that the respondent has used tlie mark for a series of years. The cases cited by the other side might apply if the appellant had put his case on the footing that the mark was common to the trade, .because then it might be argued that the respondent could not claim property in a common mark. Counsel cited Leather Cloth Co. v. American Leather ClothlCo., 9. H. L. 523 ; M' Andrew v. Bassett, 33 L. J. (N.s.) Ch 561 ; Leonard v. Wells 50 L. T..(n.S.) 23; L. R. 26 Ch. D. 2S8;//yde & Co.'s Trade Mark, 38 L. T. (n.s.) 777 ; L. K. 7 Ch. D. 724. Cur. adv. vult. On August 21, 1890, the following judgment was delivtred: — DiAs, J.— This is a proceeding under the Registra- tion of Trade Marks Ordinance No. 14 of 1888. The trade mark in disput^^ between the parties is a brand or a label with the figure of a charity box in the cen- tre. The first applicant, who is the appellant, made application to the Colonial Secretary to register the above mark, when the second applicant appeared and opposed the application, and these proceedings were instituted by the parties as directed by the Ordinance above referred to. The parties are sellers of cigars, and each claims a right to the paricnlar brand. The facts proved and found by the District Judge are these : that the second applicant was in the habit of using this mark for raoie than 18 years, and that this opponent only began to use it in the beginning of 1889. This find- ing is fully borne out by the evidence adduced, and I see no reason to interfere with the conclusion of fact arrived at by the District Judge'. So I shall confine myself to a consideration of the legal aspect of the case. It was contended for the appellant that before the Ordinance of 1888 came into op^ ration no exclusive right to any particular trade mark as representing a certain class of goods, as in this case cigars, was recognized by law. This is a very broad proposition, and requires some strong authority to snpportit. Jb amounts to this, that there was no right of property in a trade mark before the Orrdinanoe of 1888 came into operation. To see the utter fallacy of this con- tention we have only to consider the meaning and effect of what is called a trade mark. A sells cigars for a number of years under a particular brand or mark. Under that brand the cigars acquire a name and reputation in the market. B appropriatea the brand and sells bis own cigars under it. This simply is a fraudulent misappropriation of the name and reputation of A's cigars as represented by his trade mark and selling his (S's) own cigars under a false name. That the right of property in a trade mark existed before the Ordinance of 1888 is shewn by the Ordinance itself. According to section 8, the applicant for a registration is supposed to be a person claiming to be propnetor of a trade mark, and section 20 contemplates trade marks which were in existence before the Ordinance. This evidently was the view which the District Judge took when he made the order of 10th Decem- ber, 1889, settling the issues to be tried. In pursuance of this order evidence was gone into on both sides on the question of user by the parties of the trade mark, with the result that the user of the mark by the second applicant has been established to the satisfaction of the District Judge. I do not think it necessary to refer to the several cases cited by the District Judge, as I think we have enough in the Ordinance itself to shew the existence of the common law right before the Ordinance was passed. I affirm the judgment of the District Court with costs. :o: Present; — Claeence, J. (January 17, 1890.^ P. C. Colombo, \ (Additmnal) Smith v. Ahamado. ^°-TT67. ) Criminal trespass — remaining on board a steamer when ordered to leave — defective charge — Ceylon Penal Code, section 427. A charge agaist a defendant, that he did at the Colombo harbour on board a steamer "commit crimi- nal trespass by unlawfully remaining there when ordered to leave the ship by the chief officer of the said ship" — Held to disclose no offence. The respondent was a money changer and vendor of jewellery, and used to goon board the steamers in the Colombo harbour for the purpose of such business. 18 THE CEYLON LAW REPORTS. [Vol. L, No. 5. The evidence disclosed that on Decembers, 1889, the defendant and other persons doing similar business went on board the s. s. " Orient", then in the harbour, and a passenger having complained that he had been cheated by a trader (not the defendant), the Chief Officer ordered the vessel to be cleared of all the traders. The complainant, who was a sergeant of the Harbour Police, proceeded tn carry out thia order, and all the traders left tlie vessel with the exception of the defendant, wh) evaded the order, alleging that he had to get some money from a passenger, and at last, on leaving the vessel, abused the complainant. Camplaint was then made to the Additional Police Magistrate at the Customs, who, after evidence, framed a charge for criminal trespass as above under sections 427 and 433 of the Ceylon Penal Code. Upon being convicted on this charge the defendant appealed. Dornhorst for defendant appellant. The charge does not disclose an offence. To constitute criminal trespass there must be proof of intention to commit an offence, or intimidate, insult, or at noy any person, which is entirely wanting here. Claeence, J. — The charge framed by the magis- trate is a bad charge. It does not aver any act amounting to a criminal trespass. It only avers that the defendant unlawfully remained on board the steamer when ordered to leave, and that is not necessarily criminal trespass. My order simply is — that I quash the charge framed and, of course, the conviction un'er it. -: o:- Present: — Claeence and Dias, JJ. (^Decembet- 16 and 20, 1889.) No" 2171 I Seyadu Ismail v.MohamadobAssen. Malicious prosecution — actio7i for damages — "dis- charge" — determination of the prosecution. The discharge of a defendant in a criminal case by the magistrate under section 168 of the Criminal Pro- cedure Code is a sufficient determination of the prosecution for the maintenance of a civil action for damages for malicious prosecution. The libel in this case averred that the defendant maliciously and without reasonable and probable cause charged the plaintiff in the Police Court of Matale with criminal breach of trust, and that "the said charge was inquired into by the Police Magis- trate oW the 16th April, 1889, and after evidence the plaintiff was acquitted, wheieby the said prosecution was determined". The answer, inter alia, denied "that the prose- cution against the plaintiff has been determined or that the plaintiff was acquitted of the said charge". In evidence it appeared that the Police Magis- trate, after examining the complainant in the Police Court case (the present defendant)", held that the evidence disclosed no offence, and discharged the defendant (the present plaintiff) under section 168 of the Criminal Procedure Code. The acting District Judge (0. W. 0. Morgan) held on the facts that there was no reasonable and probable cause for the said charge, but -was of opinion that the prosecution had not determined, stating his reasons as follows: — "The charge was not triable summarily by a police court, and the inquiry in P. C. Matale 4297 was under ehap. xvi. of the Procedure Code, with the view of trying the plaintiff, if there were sufficient grounds for a committal, be- fore a superior court. The magistrate under section 168 of the Procedure Code discharged the accused as the facts did not disclose a criminal offence. A dis- charge under that section is not an acquittal, and the Attorney-General may yet under section 254 of the Procedure Code take steps to have the accused treid before a superior court. If a charge had been framed by the magistrate and the proceedings for- warded to the Attorney-General under section 175 of the Procedure Code, a discharge directed by the Attorney-General under section 242 of the Procedure Code would oporae as a d* termination of the prosecu- tion; but, as the proceedings now stand, the accused may yet at any time be put on his trial and his discharge under section 168 of the Procedure Code would not avail him as a pica of autrefois acquit." The learned Judge thereupon dismissed the plaintiff's case, and the plaintiff appealed. Wendt for plaintiff appellant. Dornhorst for defendant respondent. Cur. adv. vult. On December 20, 1889, the following judgments were delivered : — Clarence, J. — There is no reason whatever to disapprove of the District Judge's finding that there was no reasonable or probable cause for the criminal prosecution which defendant instituted against plain- tiff. '] he learned District Judge, however, was quite wrong in holding that that prosecution had not been terminated so as to enable the plaintiff to sue the defendant for damages. The judgment must be set aside and judgment entered for the plaintiff with costs in both courts, and the case must go back to the District Court in order that tlie District Judge may assess the damages. Dias, J.— The District Judge has taken an erroneous view of the effect of the order of the Police Magistrate discharging the accused in the criminal case. H e thought that the accused was still liable to be prosecuted as the order of discharge did not terminate prosecution. As between the accused Vol. 1., No. 5.] THE CEYLON LAW REPORTS. 19 and the complainant the srder of discharge is a final act which put an end to the proceedings. No doubt the accused is liable to be put on his trial again, but that would be a new proceeding. If the reasoning of the District Judge is good, a person in the position of the plaintiff will be remedyless, as he is liable to be proceeded agiiinst at any future time at the discretion of the prosecutor. I think the judg- ment must be set aside, and the case sent back to the District Juilge to assess the damages. Plaintiff must get all costs in both courts. Present: — Dias, J. {November 14 and 21, 1890.) P. C. Colombo, ) Savabiel v. Bastian Appu and No. 12685 bo, j others. Police Court— discharge of the defendant— fresh inquiry at the direction of the Attorney- General — Criminal Procedure Code, sections 152 and 25^— plea of autre fois acquit — jurisdiction— practice. The Criminal Procedure Code, chap. xvi. section 152, inter alia, enacts that a police court shall pro- ceed to try an offender or to inquire into the matter of an alleged offence and commit for trial or otherwise dispose of any accused person "whenever it appears to the Attorney-General that an offence has been committed and he shall by his warrant under his hand require the magistrate to inquire into the same". Section 254 enacts:— "Whenever a police court shall have discharged an accused person under the provisions of chap. xvi. and the Attorney-General shall be of opinion that such accused person should not have been discharged, the Attorney-General may file an information against such person either in the Supreme or a district court", &c. In a previous criminal proceeding in the Addition- al Police Court of Colombo, upon a complaint against the defendants for an offence not summarily triable, the Police Magistrate, after investigation, disbelieved the evidence and discharged the defendants. Sub- sequently the Attorney-General, acting under chap. XVI., section 152, of the Criminal Procedure Code, required the Police Magistrate of Colombo to inquire into the same alleged offence. Held that section 254 of the Criminal Procedure Code was not imperative, but that the Attorney-Gene, ral may proceed under that section or under section 152. and that the Attorney-General having issued the warrant under section 152 the Police Magistrate had jurisdiction to inquire into the same offence not- withstanding the previous discharge of the defend- ants. At the comnaencement of these proceedings the defendants took exception to .he jurisdiction of the Police Magistrate, on the ground that the previous discharge was a bar to this prosecution. The Police Magistrate overruled the objection, and ths defendants appealed. Dornhorst for defendants appellant. The Attorney-General could not act under chap, xvi., section 152. That chapter is headed "Of Com- mencement of Pr.jceedings before Police Courts — Institution of the Inquiry," and clearly refers to proceedings initiated for the first time. \_Dias,f.r— But a discharge is no bar to a second prosecution, and these are fresh proceedings.] True, but the offence has already been disposed of in the preTious case, and the magistrate in this case exercised jurisdiction solely under the warrant under section 152, which it is submitted the Attorney-General had no power to issue. The Procedure Code itself (section 254) points out the course that should be adopted by the Attorney-General in a matter like this, viz., procedure by way of criminal information. It is submitted that the Atcorney-G-eneral should have proceeded under section 254, or have app, aled from the order of discharge in the previous case. Layard, S.-G., for the Crown. The provisions of section 254 are not compulsory. Ir is open to the Attorney-General to proceed under section 162. The first prosecution had determined by the dis- charge of the defendants, and this was "the commencement of proceedings" in a new case and therefore chap. xvi. applied. It is submitted that the Police Magistrate had jurisdiction to inquire into the charge afresh in these proceedings. Cur. adv. vult. On November 21, 1890, the following judgment was delivered : — DiAS, J. — The question for decision in this case is whether, under the circumstances, the Attorney- General can direct an inquiry under section 152 of the Procedure Code. The accused, ten in number, were tried in a previous case P. C. 1424 and discharged in these words: " The accused are all discharged." After this the Attorney-General, by his order of 8th August, 1890, authorised and directed the Police Magistrate to inquire into the same offence. Accordingly these proceedings were instituted, and on the day of trial the accused objected to the jurisdiction of the court, and the Police Magistrate overruled this objection. Hence this appeal. It was contended for the appellant that section 152 only applied to cases which have not been previously dealt with, by the Police Court, and this charge having been already investigated and dis- posed of in a previous proceeding, the only eourse open to the Attorney-General was that pointed out by section 254. I see no reason why section 152 should have such a limited operation. The words of sub- section 5 to section 252 are " whenever it appears", etc., that is, when at any time it appears to the Attorney-General. The time is not limited within which the Attorney-General is empowered to act. All that is necessary is that an offence has been 20 THE CBYLON LAW EEPORTS. [Yd. I., No. «. committed and the offender haa not been dealt with accoi'ding to law. A mere discharge of the accused da6s not amount to a verdict of not guilty, and the accused stands in no better or worse position than any accused person who has not been dealt with by a competent court. The proceedings taken against the accused by the direction of the Attorney-General are altogether new, and have no reference whatever to any previous pro- ceedings. With regard to the argument drawn from section 254, all that need be said is that it is open to the Attorney-General to present an information against any person who has been discharged by the Police Court. The provision is not imperative, and the Attorney-General is not bound to take the course pointed out by that section. On the whole, I think the order appealed from is right, and it should be afSrmed. -: o: Present: — Clabbnoe, J. f/une 26 and July 3 and 10, 1890. J D. C. Kandy, \ In the matter of the insolvency of (Insolvency") > No. 1292. ) PlTCHE MUTTTT KaNOANY. Insolvency — lying in prison /or 21 days — imprison- ment for debt — eommittal upon warrant in mesne process — act of insolvency — Ordi- nance No, 7 ^1853, section 9. K, being a defendant in a certain suit, was arrested under warrant iu mesne process, and was, on February 4, 1890, committed to prison for default of giving se- curity under Ordinance No. 15 of 1856. On February 28, 1890, K., being still iu prison, petitioned for the sequestration of his estate, and prayed that he be adjudicated insolvent. ' //eld that this was not a commitment for debtor non-payment of money or a detention for debt within the meaning of section 9 of the Insolvency Ordinance, and that consequently K's lying in prison for 21 days under the above commitment was not such an act of insolvency as entitled him to be adjudicated insolvent. Pitche Muttu Kangany, the respondent, was defendant in case No. ;1092 of the District Conrt of Kaody, in which Abdul Raharann Saibo. the a|ipel- lant, was plamtijff. The respon^'ent was arrested under vlhrraiit of arrest in mesne proc ss issued in that case at the instance of the appellant, iind havino- been unable to find security as required by Ordinance No. 15 of 1856 was commiDted to prison " until he give good :ind sufficient security in the sura of 1(3. 500 to stand and abide thejudgmentof theCourtin the premises and to pay all such sum or siinis of money as shall be decreed or surrender himself or be charged in execution". Judgment in the- said ease was obtained by Abdul Rahaman Saibo for Es. 420 with interest and costs on February 12, 1890. The defendant remained in jail under the above commitment until February 28, 1 890, when he present- ed to the Court a petition unde- the Insolvency Ordi- nance and prayed that he be adjudged an insolvent, the act of insolvency relied on being his lying in prison from February 4 to February 28. When this application was presented, it was op- posed by Abdul Ruhaman Saibo, on the ground that the respondent had not committed an act of in- solvency within the meaning of the Ordinance. But the District Judge (Lawrie) overruled the objection and adjudged the respondent insolvent and placed his estate under sequestration, and further ordered the respondent to be discharged from custody. From this order Abdul Rahaman Saibo appealed. Section 9 of Ordinance No. 7 of 1853 enacts: " If any person having been arrested or committed to prison for debt or on any attachment for non- payment of money shall, upon such or any other arrest or commitment for debt or non-payment of money, or upon any detention for debt, lie in "prison for 21day8, or having been arreste ; or committed to prison for any other ciuse shall lie in prison for 21 days, after any writ of execution issued against him and ntifc discharged, every such perison shall thereby b» deemed to have committed an act of inbolvency". Dornhorst for appellant. Browne for respondent. Clarence, J. — The question is, — has respondent committed an act of insolvency by suffering 21 days' imprisonment within the meaning of section 9 of the Insolvency Ordinance? I think that he has not. He was imprisoned on mesne process because he failed to give security "to abide by the judgment of the Court" in a certain action and "pay all such sum or sums of money as should be decreed", and so on. That was not a commitment for debt or non-payment of money or a detention for debt within the meaning of the Insolvency Ordinance. It w?is then arsrued that his case may full widiin anotlifr part of section 9 which declavi'S that a person "having bee 1 arrested and commicted to piison for any othei' cause" and lying in prison 21 days after writ of execution issued against him an 1 not discharged shall be deemed to have committed an act of insolven y. Astothis^ it is sufficient, without g dug further, to say that the requisite number of days had not elapsed. Admitted- ly 21 d.ys had not elapsed when he filed his p.-tition. The adjiKlication is set asi.'e, and the opposing creditor will have hi-i cr-sfs in both Courts. Pkinted ^t the "Ceylon Examinee" Press, No. 16, Queen Street, Colombo, Foot. Vol. I., No. 6.] THE CEYLON LAW EEPORTS. 21 Present: — Clarence, A. 0. J. (October 30 and November 21, 1890.) P. C. Kalutara, \ Hendrick Appuhamy v. James and No. 9982. ) others. Criminal Procedure — compensation — non-summary case— jurisdiction — Criminal Procedure Code-, section 236. In the case of a charge for housebreakiug and theft under section 443 of the Penal Code, the complainant mentioned in his complaint an assault by the defend- ant as an incident of the occurrence. The Police Magistrate on dismissing th,e case ordered complainant to pay compensation to the defendants in respect of the complaint as to the assault. Held, ioWov/ingJayaiillelia v. Davit Appu, 8 S. C. C. 196, that a police magistrate cannot award compensa- tion to the defendant in a case not summarily triable. Held also that in a non-summary case the police magistrate cannot separate from the general complaint an incident of the alleged oflFence as a charge sum- marily triable avid then make it the subject of an order for compensation. The information by the complnimint was to the effect that the defendant broke and entered into his bouiique and "after tying up the person wIjo whs then sleeping in tlie bouiique did steal and carry away" certain property. 'Che Police Magistrate having investigated the complaint framed a chai-sre for housebreaking and theft under section 443 of the Penal Code, and sibsequently upon instructions from Oi'own Counsel he dismissed the case and procwd-d to fine the c mplainiint as follows: — "The complainant is fined Rs. 5 Crnwn cos'^s, and lis. 10 compensation to each accused for bfinging a false charge of assault, of which the accused are acquitted." Prom this order the complainant appealed. Peiris for complainant appellant. The following judgment was delivered on Novem- ber 21, 1890 :— Clarence, A. C. J. — Complainant charged defend ants with houstbreaking and theft < and mentioned incidentally in his information t at the defen 'ants tied up a person who was sleeping on the permises said to have been broken into. The Magistrate after investigating the complaintdischavged thedefendants, and that order is not appealed from, but the Magis- trate also ordered the coroplaiannt to pay Rs. 5 Crown cos's and to pay compensi.tion to each defend- ant for a fal>e charge of assault, and complainant seeks to, appeal agiiinst those two orders. The order for Crown costs is not appealable. With regard to the order for compensation, compensation according to the decision reported in 8 S. C. R. 196 can be awarded only in cases summarily triable. Here the complainant's complaint was of an offence not summarily triable, viz., housebreaking. la my opinion it was not right for the Magistrate to separate from the general complaint the alleged incident of the tying, an incident of the alleged housebreaking and theft, as a charge of assault summarily triable, and thus make it the subject of an order for com- pensation. The principal to be observed is that where the complaint is of a matter not summarily triable, the Magistrate cannot order compensation, though the defendant party of course may have his remedy by action. Order for compensation set aside. : o : Present: — Burnside, C. J. {May 26, and June 23, 1890.) The Municipal Magis- trate's Court, Kandy, No. 1912. GOONETILLEKE V. PhILIP. Ruinous house — '^ owner" — Ordinance No. 15 oj 1862, section 1, subsection 5. Subsection 5 of section i of Ordinance No. 15 of 1862 enacts 'that "whosoever, being the owner of a house, building, or wall, shall aljow the same to be in a ruinous state," &c., shall be liable to a fine. Upon a conviction under che above enactment of a person who was agent of the owner of a house.— Held that the actual owner and not an agent or representative of the owner of a house or building is liable under the above enactment. The defendant, who by himself or his clerk collected the rent of a house belonging to a third party and acted as agent of the owner, was charged under section 1 subsection 5 of the Ordinance No. 15 of 1862 with having allowed the premises to be in a state dan- gerous to the inh ibitants thereof. Upon a convictioa by the Magistrate, the defendant appealed. Dornhorst for defendant appellant. 0(1 June 23, 1890, the defendant was acquitted, the Supreme Court expressing its opinion as follows : — Burnside, C. J.--The Ordinance 15 of 1862 refers to the owner of a house without any qualification. A person who is not owner is not liable to the pe- nalities imposed by section 1 of Ordinance 15 of 186z, notwithstanding that he may be the attorney or agent or representative of the owner or otherwise stand in his place or represent him. '22 THE CEYLON LAW REPORTS. [VoL L, No. 6. Present: — Clakbnoe, A. C. J. {October 16 and 28, 1890.) P. C. HaldumuUa, ) -r, r>.T> No. 3,335. f ^"^™^ ^- Bkien. Master and servant — rice advance to coolies — right of employer — engagement for pai ticulat work — Ordinance No. 11 ^1865 section 19. An employer of coolies bound by ordinary contract of monthly service is under no legal obligation to make rice advances, and the coolies are not entitled to leave service merely because such advances are not made. When coolies are engaged for a particiilar work, the service within the meaning of the penal clauses of the Labour Ordinance ceases when that work is over or given up; and the employer cannot seek to prevent them from leaving until any money due to him for advances be paid, or to pass them on to some other employer who would pay him their debts. The defendant was charged with wilfully and know- ingly retaining in his service coolies boinul under a contract to perve the complainant afcer receiving notice in writing; that such servants were so bound, in breach of section 19 of the Ordinance No 11 of 1865. Upon an acquittal of the defendant by the Police Magistrate, the Attorney-General appealej. The facts of the case sufficiently appear in the judg- ment of the- Supreme Court. Dornhorst for the Attorney-General appellant. J. Grenier {Sampayo with him) for defendant respondent. Cur. adv. vult. On October 23, 1890, the following judgment wa.s delivered : — Clarence, A. C. J. — Mr. Dumphy, a late contractor on the Haputale Railway Extension, charged Mr. O'Brien, another contractor, under section 19 of the Labour Ordinance of 1865, with knowingly, after written notice, retainiug in hii servic a: out 70 coolies bound to complainant as monthly labourers. The Magistrate framed a charge, and afttT recording defendant's statement acquitted defendant; and the Attorncy-Genei-ai, with the view, perhaps, of enabling complainant to obtain from this Court a decision on the legal question involved, has signed an appeal petition. Defendant is charged with harbourin": these coolies in .luly. It is nob denied that he did take tl^m ovef and kept them in spite of Mr. Dumphy's complaints. It appe irs from the evidence that Mr. Dumphy threw up his contract work in June, and thenceforward he had no work to give the coolies. Some of the coolies swid kanganies were called as witnesses ; and there is considerable conflict between them and the camplainant as to the circum- stances in which they found themselves when com- plainant stopped work. Complainant's case seems to be that the coolies were in his debt, and that he wanted to keep them till he could transfer them to some other master or masters who would pay their debts to him. The coolies and kanganits. on the other hand, represent themselves as without rice as well as work. Some complained that they were starving, and defendant was told that the coolies could get neither work nor rice and wished to come to him. They did come to him, and he kept them in spite of complainant's remonstrances. Further, defendant is charged under section 19 of the Ordi- nance, and, if convicted, maybe fined and imprisoned. It is quite clear from the evidence that the coolies were eager to go away from complainant and take service with some one who would give them work and rice. I connot say that, in law, these coolies, bound by ordinary contract of monthly service, would be entitlied to leave it merely because they could get no rice advance. It is almost, if not quite, an unad- visible custom to give eoolies rice advances fcir their weekly food ; and though the coolies would, in most cases, be unable to live without this rice supp'y, the employer is under no legal obligation to made it. The only conclusion at which I can arrive on this evidence is that these coolies were not getting'enough rice to live upon or anything like it, and were alarmed at t'le prospect before them in consequence of complainant having thrown up his work. Com- plainant seems to think that he would have a right (o pass them on to some other employer who would pay what he considered them to owe him. Com- plidnant certainly could have no such rrght rs that ; but he also oonteuds that the coolies were still in his service and were not entitled to leave him as long as their cin tract of serviee subsisted. It appears that a month's notice to quit service had beeniriven complainant by the coolies or some of them, but the month had not expired when the coolies went over to defendant. The case put by complainant is, although ho had no work for rhiise coolies, they were still in his service. It is certainly easy to conceive oases in which the contract of servicj as between coolies and employer may reniain on foot although the employer may have no work for the cooly to do. The employer may Rtill be bound to pay wages, and the coolies may be bound to remain. The position assumed by complainant is, however, a peculiar one. His case seems to be, that he engaged these coJies to work for him on the. rail- way works. He admits that so for as he is concerned there is no more railway work, but he claims that the coolies are still in his service within the meaning of the penal clauses of the Labour Ordinance. The ques- tion simply is, what was the contract entered into between these coolies and complainant? Because, if ib was only a contract work for hira while he had railway Vol. J., No. 6.] THE CEYLON LAW REPORTS. 23 work the coolies would be free [to go when that work stopped. The burden of proving what the con- tract of service was lies on complainant. Neither in complainant's original charge nor in that framed by the Police Magistrate are any particular coolies named or specified as the subject matter of the imputed offence. Complainant in his own written charge describes them as "about 70 of my coolies". All that complainant shows amounts to no more than this, th the Official Liquidator for his own commission and for clerical aid. It seems that the late Official Liquidator, besides paying ap- pellants Rs. 4,782 without any order of Court, drew a sum of Rs. 2,830 for his own commission, and Rs. 3,540 for clerical work. The present learned Dis. trict Judge says that the Official Liquidator should either have paid the proctors himself from his own allowances, or asked leave of the Court to pay them from the assets. A large sum of Rs. 4,782 has been paid by the Official Liquidator without any order of Court to proctors whose appointment the Court was nev^ invited to approve. The District Judge, upon being now applied, to sanction a further pay- ment, refuses to do so. Bearing in mind that it was the proctors' business to advise the Official Liqui- dator as to proper formalities and safeguards, we must decline to interfere with the District Judge's order. Appeal dismissed. DIAS, J., concurred. P/'^j-ewi'.-— BURNSIDE, C. J., and DiAS, J. {October 25 and November 2>, 1887.) °' Si" Colombo, I phebus v. Fernando. No. 82,945. ( Assignee in insolvency— Action by— Leave of Court— Practice— Ordinance No. 7 of 1853, sec. 82. The right of an assignee iu insolvency to sue de- pends on leave of Couit being previously obtained for the purpose, and the fact of such leave of Court having been granted must appear in the pleadings. An action brought b}' an assignee without such leave of Court must fHil, even though the defendant has not taken the objection by way of plea or demurrer. W. M. deKroes, by a codicil to his will, bequeathed Rs. 10,000 to his son, John Gregory de Kroes, for the purpose, as the codicil expressed it, of enabling him "perfectly to clear himself from all his debts", and to carry on the testator's business as a coach builder. John Gregory de Kroes was adjudicated insolvent on October 14. 1879. The testator, W. M. de Kroes, died on December 25, 1879, before John Gregory de Kroes obtained his certificate. The plaintiff was the duly appointed assignee of the in- solvent estate of John Gregory de Kroes, and the defendant was the executor of the will and codicils of W. M. de Kroes, and had proved the same and obtained probate thereof. In this action the plain- tifi" as such assignee sued the defendant as such executor to recover the legacy of Rs. 10,000 left to the insolvent, but he had not applied for or ob- tained leave of Court to bring the action. The defendant in substance pleaded that he had ex- pended a portion of the legacy in payment of the legatee's debts and had paid the legatee the balance. The District Judge (T. Berwick) held that the facts pleaded by defendant were no defence to the action, and gave judgment for the plaintiff. From this judgment the defendant appealed. Dornhorst (Wendt' feudant under section 226 of the Criminal Procedure C )de. The defendant, who was a railway engine-driver, was tried summarily by the Police Court, and con- victed upon a charge under section 32of the Ceylon Railways Ordinance (No. 26 of 1885), for being in a state of intoxication whilst actually employed upon the railway, and was sentenced to two months' rigorous imprisonment. The defendant thereupon appealed. Dornhorst for appellant. Layard, S. G , for respondent. Cur adv. vult. On January 26, 1891, the following judgment was delivered : — Clarence, A. C. J.— Three points were argued before me upon this appeal. First, it was urged, and very much pressed, that if the conviction be upheld, 4his Court should at all events commute the sentence of imprisonment for a fine. I may say at once that if the conviction be upheld, I would not interfere with the discretion exercised by the Magistrate. The offence of which the appellant has been convicted is, that he being a railway engine-driver in charge of a train, was intoxicated while so on duty. For that offence the Magistrate, after taking into consideration what appellant will probably suffer from the loss of his situation, has sentenced him to undergo two months' rigorous imprisonment. A tipsy engine-driver im- perils the lives of a train full of passengers, and I certainly would ^ot, on the score of undue severity, interfere with the sentence which the Magistrate has passed. Secondly, appellant's counsel argued, upon the merits, that the evidence did not establish the charge ; and thirdly, it was contended that the Police Court had no jurisdiction to try the charge summarily. This objection to the Police Court jurisdiction does not appear to have been taken in the Court below, although defendant was assisted then by a Proctor ; neither does it appear in the appeal petition. I am bound, however, to consider it, because if the Police Court had no jurisdiction the conviction will have to be quashed. The charge falls under section 32 of the Railways Ordinance 1885, and the maximum punishment authorised by that section is one year's imprison- ment and Rs. 200 fine, both of which are beyond the ordinary powers of the Police Court. Section 39 of the Ordinance expressly provides for the summary disposal by the Police Court of charges laid under this Ordinance if a certificate be ob- tained from the Attorney- General or Solicitor- General. No such certificate, however, was ob- tained, and Mr. Solicitor, who appeared for the appeal, stated, that although he would, if appealed to, have granted the certificate, no application was made for a certificate until after the conviction which of course was too late. It is certainly to be regretted that the Government Proctor, who con- ducted the prosecution in the Police Court, over- looked this matter. Neither was any formal con- sent obtained from the defendant under section 226 of the Criminal Procedure Code. Before the present Criminal Codes were enacted there was no statutory scale of punishments, save as to a few statutory offences, and many kinds of offences were held to bs within the juris- diction of the Police Court if the criminal dimen- sions of the particular instance in question de- manded no higher punishment than a Police Court could inflict. An assault or theft, for instance, might be of criminal dimensions demanding a penalty beyond the power of a Police Court or even of a District Court to inflict ; but if the criminal dimensions appeared upon investigation to demand no higher sanction than a Police Court could com- mand, the Police Court was held to have jurisdic- tion to try and dispose of the charge. Under the new procedure created by the Codes, all the offen- ces mentioned in the Penal Code are provided for in a schedule to the Criminal Procedure Code, which specially declares by what Courts each Vol. I., No. 9.] THE CEYLON LAW REPORTS. 35 offence shall be triable. The charge in the present case is of an offence not within the Penal Code, but created by a subsequent statute. Section 9 of the Criminal Procedure Code gives the Police Court summary jurisdiction over offences made cognizable by a Police Court by the Code or any law in force in this Colony. Now, I cannot say that the offence now in question has been made cogniz- able by the Police Court by any law here in force. The same section also gives the Police Court sum- mary jurisdiction over breaches of "any enactment making penal any act, not in itself an offence, and which would otherwise not be cognizable by a Police Court by reason of the amount of punish- ment which may be inflicted in respect thereof, if a certificate shall be presented to such Police Court signed By the Attorney-General, to the effect that he is content that such offence or act shall be tried by such Police Court", and no such certificate has been given here. The conclusion I draw from all this is, that when a statutory offence has been created since the Codes, and the statute creating such offence has fixed the maximum of punish- ment at a figure beyond Police Court power, then the offence is not summarily triable in the Police Court, except by leave of the Law Officers of the Crown or by consent of the defendant taken under section 226 of the Procedure Code. This being so, I am bound to hold that the Police Court in the pre- esntcase had no jurisdiction to dispose of the matter under its summary procedure. Section 494 of the Procedure Code does not touch the case, because its operation is limited to orders of "a Court of competent jurisdiction". I have no alternative but to quash this conviction. I therefore quash the conviction and send the case back to the Police Court in order that the Magis- trate may take further proceedings, either by ob- taining the Attorney-General's certificate or by committing defendant for trial before the District Court, or otherwise. I do not consider that it would be proper for me now to express the opinion which I have formed upon the second contention argued by appellant's counsel. Conviction quashed, and case remitted to the Police Court for further proceedings in due course, : o : Prejew/.-- Clarence, a. C. J., and DiAS, J. {December 19, 1890, and January 23, 1891.) D. C, Colombo, \ jjj the matter ofthe insolvency of No 1 728 ) "^^^ SOLOMON FERNANDO. Insolvency— Lying in prison for debt— Discharge from custody—Surrender— Ordinance No. 7 of 1853, sec- tion 36. Secliou 36 of Ordinance No. 7 of 1853 enacts, inter alia: "Where any person, who has been adjudged insolvent and has surrendered and obtained his protection from arrest, is in prison or in custody for debt at the time of his oblaining such protection, the Court may * * • order bis immediate release either absolutely or upon such conditions as it shall think fit". The same section enacts : "Whenever any insol- vent is in prison or in custody* * if he be desirous to surrender," he shall be brought up by warrant directed to the person in whose custody he is con- fined. Where a person was adjudged insolvent, be hav- ing lain in prison for debt over 21 days, and was yet in custody ; — Held, that he could not t>e released from cus- tody before he has surrend red within the meaning of the above section of the Insolvency Ordinance. This was an appeal from an order of the District Court releasing the insolvent from custody. The res- pondent having been in prison for over 21 days under writ for a Crown debt, petitioned for adjudication of insolvency, and was adjudged insolvent by an order of the Supreme Court made upon an appeal from a decisionoftheDistrittCourt {<)S.C.C. 107). Anappli- cation was now made on his behalf that he be released from custody, and the Attorney-General opposed the application. The District Judge considered that he had the power under section 36 of the Ordinance to order the "release of the insolvent from custody to enable him to take the necessary steps to perfect the act of insolvency he has committed by surrender, ing, and otherwise conforming to the provisions of the Ordinance", and he ordered accordingly. From this order the Attorney-General appealed. Layard, S. G., for the appellant. The insolvent is not entitled to be released from custody under section 36 of the Ordinance befoie he has surren- dered, which he has not yet done. He was in custody, and never came before the Court. [DiAS.J : What is surrender ?] Surrender includes coming before Court and submitting to its jurisdiction in the insolvency proceedings. [CLARENCE, A.C. J. : The insolvent has asked to be adjudicated insol- vent. Is that not a submission ?] It is submitted not. According to' English practice, as the object of the discharge is to enable the insolvent to assist the assignee, the proper time for the application is not until after the appointment of the assignee, [Griffith and Holmes {iS()ci) ^12.) Here no assignee has yet been appointed. It is submitted that the order of release under the circumstances is wrong. Canekeratne for respondent. Section 36 contem- plates four distinct states of circumstances: (i) when insolvent is not in custody, (2) when he is in custody, (3) when he is in custody and is desirous of surrendering, and (4) when he is in custody and seeks protection. The present case is one where the insolvent is in cus- tody, and the Court has the power under section 36 THE CEYLON LAW REPORTS. [Vol. I., No. 9. 36 to discharge him from such custody. The insol- vent need not have previously surrendered for this purpose. Surrender means submitting- to be examined, and this is not until the last sitting takes place. Section 30 provides for the appoint- ment of two public sittings "for the insolvent to surrender and conform", the last of which sittings is to be the day limited for his examination. The meaning of the word "surrender" is further shown from section i6[ of the corresponding English Act, 12 and 13 Vict. c. 106, which provides that if any bankrupt apprehended bj' any warrant "shall, within the time allowed for him to surrender, submit io be exami7ied and in all things conform, he shall have the same benefit as if he had voluntarily surrendered". As to the argument that the insol- vent cannot be discharged until the choice of assignee, it is only for the creditors, and not the insolvent, to take steps for the appointment of an assignee ; and if they chose not to do so, the insol- vent could never be released, which was never intended by the Ordinance. Cur. adv. vult. On January 23, 1891, the following judgment was delivered : — Clarence, a. C. J.— The respondent by an order of this Court made on his appeal from a decision of the District Court was adjudged insolvent in September last. He was at that time in custody under writ for a Crown debt. The Attorney-Gene- ral now appeals from an order made at the insol- vent's instance, and purporting to be made under section 36 of the Ordinance, directing him to be released from custody. I think that the order was wrongly made, the insolvent not having thought proper to surrender in the insolvency case within the meaning of section 36. That section makes express provision for the surrender of insolvents who are already in custody, but this respondent has not availed himself of that provision. The order must be set aside and the appellant will have his costs. DiAS, J., concurred. Prejewi?.-— CtAEENCE, A.C. J., andDlAS, J. {December i%,lS<)0, and January 2^, 1891.) I SIRIBOHAMY v. RATTARANHAMY. D.C., Ratna pura, N(*3,753 Usujruduary mortgage— Action to redeem— Right of heirs of mortgagor to sue without adtninistration — Tatiumaru possession — Tender. Any one of the heirs of a deceased mortgagor, who have inherited the mortgaged property, can maintain an action to redeem without letters of administration to the estate of the mortgagor. Where a mortgage is cue with possession in lieu of interest ; — Held that the mortgagee is entitled to have bis interest in the form of crops; and if the mortgagor wishes to redeem at any point of time which would deprive him of his interest iu that form, the mortgagor must compensate him in money. Held, that therefore the mortgagor cannot com- pel the mortgagee to redeliver possession by merely tendering the principal amount of the mortgage at a time when the mortgaged property is under crop, or, in the case of a mortgage of a share of a field cultivated in tattumani, when it is the mortgagee's turn to cultivate. This was an action by the plaintiff to redeem two mortgages, one made by himself and his deceased father and the other by the father alone, with possession in lieu of interest. The plaintiff alleged a tender of the principal amount of the mortgages in March, 1890, and a refusal to accept on the part of the defendant, and the plaintiff brought the amount into Court and prayed for a redemption of the mortgages. The defendant demurred on the ground that the libel did not aver that the plaintiff' had ob- tained letters of administration to his deceased father's estate or that the estate was a small one and did not require administration. The defend- ant also pleaded that there were certain other heirs of the deceased mortgagor who have not been made parties to the action. The defendant further denied the alleged tender and proceeded to plead that the lands in question were possessed in tatiumaru and that the period commencing February, 1890, and ending February, 1891, was his term of possession, and that he was therefore entitled to retain posses- sion till the end of that period. The replication inter alia denied that the lands were possessed in tattumaru, and averred that they were possessed "by the co-sharers jointly every year". The District Judge (L. W. Booth, overruled the objection as to the non-joinder of the other heirs of the deceased mortgagor, and received evidence as to the value of the estate of the mortgagor, and holding upon that evidence that the estate did not require administration proceeded to try the other issues in the case. The evidence disclosed that the mortgaged property was a share of field and a share of owita and other lands. The District Judge found as a fact that a tender was made as alleged by plaintiff, but that the tender included not only the amount of the mortgages but also certain other money due by plaintiff to defendant, and he held that the tender was bad inasmuch as the money due on the mortgages was not separately tendered. He also held that the lands "have been possessed in tattumaru, that the present year [1890] is defendant's turn of possession, and that the Walaowita [one of the mortgaged lands] is now under cultivation by defendant", and that the defendant could not therefore be com- pelled to accept the money deposited in Court. Vol. I., No. lo.J THE CEYI.ON tAW REPORTS. 37 the plaintiff's action was accordingly dismissed, and he appealed. Morgan for plaintiiF appellant. Browne for defendant respondent. Cur. adv. vult. On January 23, 1891, the following judgments were delivered : — Clarence, a. C. J.— This is a suit to redeem two mortgages: one made by plaintiff and his deceased father, and one by the father alone, in favour of defendant. Both are usufructuary mort- gages, with possession in lieu of interest. Defendant has sought to raise the objection that without letters of administration to the estate of the deceased mortgagor plaintiff cannot maintain a suit to redeem. That is not so. Any one of the heirs who have inherited a mortgaged property can redeem, as under English Law one of several joint tenants, or tenants in common, can redeem ; and a fortiori plaintiff can insist on redeeming the mortgage made jointly by himself and his father. There are further questions raised, as to the terms on which plaintiff can redeem, and whether a tender was made, before action brought, of the amount due. Where the mortgage is an usufructuary one, and the mortgagee gets his interest in kind, in the shape of crops, the terms of redemption have to be adjusted accordingly. The mortgagee must either be allowed to take his crop before being redeemed, or must be compensated in money. A fortiori if the mortgaged property is a share possessed in tattumaru, it would be unfair to the mortgagee if he could be forced to accept his bare principal just before his tattumaru turn arrived. In the present case, it is not as yet ascertained with regard to the mortgages in e[uestion how the matter stands in this respect. There are two mort- gages to be redeemed ; and, so far as I understand the evidence, for we have not the mortgage deed before us, each mortgages a half share of land- one a share of kumbure, and the other a share of owita and other lands. Again, there is the question as to the condition of the lands when plaintiffs' alleged tender was made. Plaintiff alleges that he repeated his tender when "the field" was in stubble after crop. This may or may not refer to the kumbure only. Further on in his evidence plaintiff says that one of the lands mortgaged, Walaowita, was at the time of the hearing under a crop, as yet unreaped, sown by defendant in January, i. e., the date before plaintiffs alleged tender. All that we need say at present is, that the plaintiff has not made out his contention that in March last he was entitled to redeem on payment of the bare principal. As to the alleged tender, the fact of which is in dispute, the plaintiffs tender, if made, would not be a bad tender merely because plaintiff at the same time made a separate tender of money due on some other account. We need not, however, go into this matter as the case stands. At present, it is uncer- tain how much the mortgagee was entitled to demand. The District Judge has dismissed plaintiffs suit with costs. The plaintiff is entitled to redeem, but the terms on which he should redeem have to be ascertained. The better case will be to set aside the judgment, declare that plaintiff is entitled to redeem, and send the case back to the District Court for inquiry as to the terms on which the redemption is to be worked out. The main princi- ple on which this matter must be adjusted is, that the mortgagee is entitled to have his interest in the form of crops ; and if plaintiff wishes to redeem him at any point of time which would deprive him of his interest in that form, he must compensate him in money. Probably the simplest course will be to time the redemption at a time when the mort- gagee has had his profits. As to costs, a mortgagee is in general entitled to his costs of a suit to redeem, excepting of course costs arising out of some improper claim or defence on his part. The order upon this appeal will be :— Declare that plaintiff is entitled to redeem the two mortgages mentioned in the libel and answer. Let inquiry be made as to the terms upon which plaintiff is entitled to redeem. Plaintiff will pay defendant's costs of the hearing on August 26, and of this appeal. All other costs left as costs in the cause. DIAS, J.— I am of the same opinion, and think that the plaintiff is entitled to redeem the mort- gages, but he cannot be allowed to do that so as to prejudice the defendant's right of possession in lieu of the interest on the debt. If the property mort- gaged was under a crop raised by the defendant, or any other person acting on his behalf, the plaintiff cannot redeem till the crop is gathered and removed; and in the same manner, if the mortgaged property was subject to tattumaru turn, the plaintiff cannot redeem so as to defeat the defendant's right to enjoy the plaintiff's tattumaru turn. I think the case should go back for further proceedings on the above point, and I agree with the Chief Justice on the question of costs. 38 THE CEYLON LAW REPORTS. [VoL I., No. 10. Present :—Qx,h^U^CS, J. (January 23 and 27, 1890.^ '."'1^895^.' ] ^"'^^ ^- ROMANIS. P. C, Galle, No Criminal procedure— Plea of guilty— Jurisdiction— Appeal — Sentence— Criminal Procedure Code, sec. 403. A plea of guilty admits the jurisdiction of the Court, and therefore in an appeal from a conviction upon such a plea no objection to jurisdiction can be enter- tained. Notwithstanding the provisions of sec. 403 of the Crimiual Procedure Code, an accused person who has pleaded guilty can raise by appeal the question whether any sentence can legally pass under the charge to which he pleaded guilty. Where the defendant pleaded guilty to an informa- tion charging him under sec. 219 of the Penal Code with having escaped from custody after being arrested "as a road defaulter", and the Magistrate convicted hiuj under the said section of having escaped from custody in which he was detained "for au offence with which he was charged"; — Held, that the conviction varied from the charge to which the defendant pleaded, and was therefore bad. The complaint made ag^ainst the defendant v?as to the effect that he was arrested by the complainant "as a road defaulter" under a certain warrant, and that the defendant "while in lawful custody made his escape, and did thereby commit an oflfence punishable under sec. 219 of the Penal Code". To this the defendant pleaded guilty, and the Magistrate preceded to convict him of "escaping from custody in which he was lawfully detained for an offence of which he was charged, punishable under sec. 219 of the Penal Code", and sentenced him to rigorous imprisonment for two months. The defendant appealed. The punishment provided in sec. 219 of the Penal Code is imprisonment extending to two j'ears, or fine, or both. The defendant in his appeal took objection to the jurisdiction of the Police Court. Seneviratne for defendant appellant. Cur. adv. vuU. On January 27, 1890, the following judgment was delivered : — Ci,AKENCE, J.— I am obliged to set aside this sentence and to quash the conviction. The conviction purports to be a conviction upon appellant's plea of guilty. That plea admitted the jurisdiction of the Police Court ; so that I cannot uphold the objection to the jurisdiction. But the conviction entered by the Magistrate varies from the charge to which appellant pleaded. The Magistrate convicts appellant of "escaping from custody in which he was lawfully detained for ^'^ offence with which he was charged, punishable under sec. 219 of the Penal Code". But the information to which defendant pleaded guilty charged him only with escaping from cus- tody after being "arrested as a road defaulter". It did not aver that he was in custody for any offence. Sec. 403 of the Criminal Procedure Code precludes appellant from going behind his plea ; but in my opinion he can raise by appeal the question whether any sentence can legally pass under the information to which he pleaded. -: o:- Present :—Q,\,^ss,^CS,, A, C. J., and DiAS, J. (January 30 and February 6, 1891.^ D. C, Negombo, No. 15,395- Fernando and others v. PERERA and others. Procedure— Action for land— Death of one plaintiff— Sur- viving plaintifs sole heirs of deceased plaintiffs- Continuation of suit — Administration— Civil Proce- dure Code, sees. 547, 392, & 394. In au action for land by several plaintiffs, where the 1st plaintiff died intestate pendente lite, and thesur. viving plaintiffs, who weresole heirs of the deceased plaintiff, became between them the owners of the en- tirety of the land which was the subject matter of the action ; — Held, that the action did not necessarily abate by the death of the 1st plaintiff, nor was it necessary to have an administrator appointed to the estate of the deceased plaintiff, and join him as party plaintiff, but that the surviving plaiutiffs could continue the suit, not as suing on behalf of the deceased plaintiff or his estate, but on their own account for recovering pro- perty which was entirely their own. This was an action in ejectment, originally insti- tuted by nine plaintiffs, the first of whom was father of the rest. The ist plaintiff died during the pendency of the action, and in a previous appeal the Supreme Court, on 19th June, 1890, upon the authority of the cases reported in Vand. Rep. 96, 2 S. C. C. 63 and 5 S. C. C. 90, ordered that the suit should abate, and that the case should be taken off the roll until the legal representatives of the deceased plaintiff be made parties. Thereupon, on July 30, 1890, the surviving plain- tiffs submitted an affidavit stating inter alia that the ist plaintiff was their father, and died intestate leaving them as his sole heirs, and that they on his death "succeeded him in the pos- session of all his property, estate, and effects", and upon this afladavit they obtained a rule on the defendants to shew cause "why the surviving plaintiffs should not be made plaintiffs on the record as sole heirs of the deceased ist plaiu- Vol. I., No. lo.] THE CE;YI.0N I.AW REPORTS. 39 tiff, and why the libel should not be amended on the lines suggested by the Supreme Court". At the discussion of the rule on September 2, 1890, the defendants objected that letters of admin- istration should be taken out to the estate of the deceased plaintiff as the value of his estate was over Rs. 1,000. The District Judge upheld this objection, and discharged the rule, whereupon the plaintiffs appealed. Dornhorsi for appellants. Cur. adv. vult. On February 2, 1891, the following judgments were delivered : — Clarence, A.C.J.— This action was instituted in 1887, and unfortunately this is the third appeal on matters of procedure, the merits of the contest disclosed being as yet untouched. The suit is a suit to recover possession of land of which the plain- tiffs alleged that the defendants had dispossessed them. About a year ago the ist plaintiff, father of several of the other plaintiffs, died, and it appears not to be disputed that those other plaintiffs are his only heirs. This latter circumstance seems to have been overlooked by the learned Judge who made order on the last appeal. The present appeal is from a refusal of an appli- cation made by the surviving plaintiffs, an applica- tion which is not very clearly framed, but the object of which was to obtain permission to continue the suit on the ground that the whole interest of the late ist plaintiff is now represented by persons already parties plaintiff. The matter was discussed in the Court below as though it turned only on the question, whether sec. 547 of the Procedure Code has retrospective operation. I do not think, how- ever, that that question arises. If we are to regard the suit, since ist plaintiff's death, as a suit on behalf inter alia of his estate, then the suit is not maintainable without administration, whether sec. 547 be retrospective or not. For before the Code no action was maintainable to recover pro- perty of the estate of a deceased intestate save by an administrator, excepting in cases where the estate was too small to need letters of administra- tion ; and all that sec. 547 has done is to fix the limit at Rs. 1,000. The burden of bringing an estate under that exception lies on the party suing ; and in this case the party plaintiffs have not so done, for all we know of the extent of the estate is that it is over Rs. 1,000. But there is another way of viewing the matter. This is a suit to recover land. There were nine plaintiffs : one is now dead, and the surviving plain- tiffs comprise between them all his heirs. I am of opinion that under the circumstances the surviving heirs may be allowed to continue the suit on their own account, not as suing on behalf of the deceased plaintiff or his estate, but as suing to recover property which, if their suit be good on its merits, is theirs. UiTler sees. 392 and 394 of the Procedvire Code, if tliose sections apply, they have a right so to continue the case, and without entering upon any technical discussion as to the retrospective operation of those sections I think that under the peculiar circumstances of the case this will be a proper order to make. Set aside the order appealed against, and declare that the 2nd, 3rd, 5th, 7th, 8th, and 9th plaintiffs, being the sole heirs of the late ist plaintiff, the surviving plaintiffs are entitled to continue the suit. No costs in either Court. DiAS, J. — All the parties interested in the pro- perty in question are now before the Court, and I do not see why the case should not be proceeded with. PrMew/f.-— BUKNSIDE, C. J. (June 8 and 15, 1887. > ''■ No^S"^''lSlI.VAv. RAJEUS. Criminal procedure — Charge of retaining stolen property — Acquittal of defendant— Restoration of stolen p7 0- perty^urisdiction — Appeal — Criminal Procedure Code, sec. 478. Sec. 478 of the Criminal Procedure Code enacts : "Wheu an inquiry or trial in auy crimiual court is coucluded, the court may make such order as it thinks fit for the disposal of any document or other property produced before it, regarding which any offence ap- pears to have been committed, or which has been used for the commisiou of any offence." Where a person was charged with dishonestly retain- ing stolen property, knowing it to have been stolen, under sec. 394 of the Penal Code, and the Police Magistrate found as a fact that the property (which was produced before the Court) was the property of the complainant and had been stolen, but acquitted the defendant of the charge against him ; — Held, that, in view of the finding of the Magistrate that the property, the subject matter of the prosecu- tion, was the property of the complainant and had been stolen, the Police Magistrate had power, under sec. 478 of the Criminal Procedure Code, to direct the restoration of the property to the complainant, not- withstanding the acquittal of the defendant upon the charge made against him. The defendant was charged with having dis- honestly retained a stolen bull, the property of the complainant, knowing it to have been stolen. The bull was produced before the Court at the trial. The Magistrate, upon evidence heard, found that the bull belonged to complainant, and had been stolen from him, but he acquitted the defendant, holding that he had not dishonestly re- tained it with guilty knowledge, but had innocently 40 THE CEYLON LAW REPORTS. [Vol. I., No. ID. purchased it from a third party. He also made order that the bull should be restored to the com- plainant. Against this latter order the defendant appealed. Dornhorst for defendant appellant. Cur. adv. •vult. On June 15, 1887, the following judgment was was delivered : — BURNSIDE, C. J.— This petition is properly before the Court, as the Police Magistrate improperly re- jected it when it was put in in time. I have examined the authorities on the Indian Code, and they support the right of a magistrate to order the restoration of property produced before him if he is of opinion that an offence has been committed with regard to it. This is an exception which it appears the Code has engrafted upon the general principle of law, that when there has been an enquiry or trial, and the accused is discharged or acquitted by any criminal court, that court is bound to restore the property into the possession of the person from whom it was taken. (See in re Anna;puranabi I. Iv. R., I Bombay 630, and the cases referred to in Agnew and Henderson's Criminal Procedure Code P- 374-) In the present case the bull, the subject of the prosecution, was produced before the Magistrate; and although he acquitted the accused of dishonestly retaining it knowing it to have been stolen, he found that it had been stolen from the prosecutor, and ordered it to be restored to him. It was against this order that the accused appeal- ed. The order will be afB.rmed. Present:— Qx,Ks.iS,-^C-^ and DiAS, JJ. (December 20, 1889, and January 17, 1890.; D. C, Puttalam, ] Mohamadaly Marikar v. No. 260. j AsSEN Naina Marikar. •'Bona" — Construction— Promissory note— Prescription- Ordinance No. 22 o/iSyi, sees. 6 & T. The plaintiff declared upon an iustrument which after acknowledging indebtedness in a certain sum of money, contained a promise to pay the same within six months from the date thereof, and stipulated that in default of payment within that period the amount should be recovered with interest at a certain rate. The instrument was in the body of it called "bond" "debt bond", "debt bond of obligation", &c., and pro- fessed ^ make a general mortgage of the debtor's property. It bore a stamp suflScient to cover a bond of the amount in question. Held, that the above instrument was not a "bond" within the meaning of sec. 6 of the Prescription Ordi- nance, and that an action thereon would be prescrib- ed, in six years, under sec. 7 of the Ordinance. The instrument sued upon was dated February I, 1879 ; and the action was instituted on March i, 1889, the libel averring failure of payment of any part of the principle or interest. The terms of the instrument, which was in the Tamil language, were as follows ;— "To Abdul Hassis Magudu Naina Marikar, Head- moorman of Puttalam, I Alliar Marikar Assen Naina Marikar of the aforesaid place have written and granted the debt bond of obligation, the pur- port of which is as follows, to wit : "That on account of the amount which I have received from the aforesaid person for paying the amount due upon the writ issued from the respect- ful District Court of Chilaw in case No. 23,993, which was instituted against me by Ahamadu Naina Marikar Ibrahim, Notary of Puttalam, and another, and on account of the amount now re- ceived from the aforesaid person in consequence of my necessity, a sum of Rs. 400 is due by me : and whereas I have received the said sum of Rs. 400 cash in full, I shall within a term of six months from the date hereof pay the said principal, and redeem this debt bond, but should I fail to pay the money within the period specified the creditor or his heirs or administrators may sue me or my heirs or administrators as they like for the said principal together with interest thereon at the rate of one per cent, per mensem from this day, and recover the principal and interest so accumulated on all kinds of property belonging to me, and besides, except the payment of the principal and interest endorsed on this bond in small sums, I shall not produce any receipts or other evidence alleging payment in small sums. "Thus being bound I have granted this bond, and set my signature to the knowledge of two wit. nesses. [Two signatures.] [Signature.] "I Segu Naina Wapu Markar have drawn the above debt bond by affixing to it adhesive stamps of one rupee and five cents." [Signature.] The defendant pleaded that the cause of action did not arise within six years of action brought. The District Judge held that the instrument was a promissory note, and that the action not having been brought within six years was prescribed under sec. 7 of the Ordinance No. 22 of 1871 and dismissed the action. The plaintiff thereupon appealed. Wendi, for plaintiff appellant, cited C. R. Bat- ticaloa 16,209, Wendt's Rep. 297. Sam-payo for defendant respondent, Cur. adv. vult. On January 17. 1890, the following judgments were delivered :— o j & uio CLARENCE, J.-This appeal raises a question, which, on various previous occasions, has given this Court much trouble, viz., whether an instru- ment declared on is to be regarded as a "bond" within the meaning of the Prescription Or- dinance. If the instrument now declared on is to be regarded as a "bond", the plaintiff's action IS m time ; if otherwise, the action is prescribed Vol. I., No. ii.J THE CEYLON LAW REPORTS. 41 In the case reported Wendt 296 this Court had occasion to point out the impossibility of reasonably applying the English law term in a country where instruments under seal possess no special attribute. The instrument now declared on describes itself by three different terms, of which si^eewSiL® * is one. In effect it is a simple admission of indebtedness and promise to pay. I do not see how it can be re- garded as a "bond"; and so far as concerns the intention of the parties who made it, as evidenced by the stamps affixed, the stamps are consistent with its being either a bond or an agreement. In my opinion the judgment appealed from should be affirmed. DiAS, J. — ^Judging from the translation of the in- strument, it amounts to nothing more than an acknowledgment of a debt with a promise to pay. The words "bond" and "obligation" which appear in several parts of the document cannot alter its nature. I do not think we ought to interfere. Preseni :—Ct,AKB;NCE, A. C. J., and DiAS, J. (February 20 and 24, 1891.^ D. C, Matara ) In tire matter of the last Will (Testamentary) \ and Testament of AppuhennE- No. 768. ) DIGEY BABAN. Testamentary procedure— "Final account"— Distribution of the estate — Petition by legatee for payment of distri- butive share — Administration suit— Practice— Juris- diction— Civil Procedure Code, sec. 720. In 1882 the executor filed an account, which pur- ported to be a final account, but which showed that there were still assets in the executor's hands. In a certain proceeding the District Judge, in March, 1889, minuted an order that the account filed was thereby passed and the estate closed. In September, 1890, a legatee petitioned under sec. 720 of the Civil Procedure Code praying for an account and payment of the distributive share due to him. Held, that notwithstanding what purported to be a final account and the minute of the District Judge of March, 1889, the estate not being wholly distributed, the testamentary proceedings were still open and would properly be continued under the Civil Pro- cedure Code. Held, that the Court had jurisdiction to entertain the application undbr sec. 720 of the Code for pay- ment of the distributive .share due to the petitioner, and that it was not necessary to institute a separate administration suit for that purpose. The executors having in July, 1879, obtained pro- bate of the will, administered the estate, and on November 21, 1882, purported to file a "final ac- count", which, however, showed that there were assets in their hands undistributed, and there were • i, e., kadan cAitiu,— 'Bo. also subsequent proceedings indicating that the ■estate was not wholly distributed. In March, 1889, the District Judge recorded : "the final account affirmed toon 21st November, 1882, and filed by the executors is hereby passed and the estate closed." On 26th September, 1890, the appellant, a legatee under the will, filed a petition stating that the executors had distributed the moveable property but that certain immoveable property had been sold by them for the purpose of distribution, and that after deducting certain payments to him and also value of property bought by himself there was still a balance of the Rs. 12,191-26 of which he was entitled to a certain share, and he prayed that the surviving executor (one of them having died in the meantime) be ordered "to render an account of his proceedings and to make over to the petitioner his distributive share". Upon this petition the appellant obtained a cita- tion upon the executor under sec. 720 of the Civil Procedure Code. la showing cause the ex- ecutor objected to the procedure adopted on the grounds that the estate had been closed in 1882, that the Civil Procedure Code did not apply in such a case, and that the appellant's remedy, if any, was by separate action. The executor, however, ad- mitted upon examination that the appellant was entitled to the share claimed, The District Judge upheld the objection to the procedure, holding that the final account "having been passed and the estate closed", there was "no case pending before this Court in regard to the administration of the estate in question, which can be continued under the provisions of the Civil Procedure Code". The citation was thereupon discharged with costs, and the petitioner appealed. vanLangenberg for appellant. The so-called final account shows assets still in the hands of the ex- ecutor. The proceedings indicate that the estate has not yet been completely distributed, and the executor in fact admits the petitioner's claim but merely objects to the procedure. It is submitted that the procedure under the Code applies. Sec. 3 provides for "every action, suit, or other matter", pending at the time of the Code coming into opera- tion, being continued and proceeded with under its provisions. The estate not having been wholly distributed, this matter is stil pending. No sepa- rate action is necessary, sec. 720 of the Code being specially intended to dispense with costly administration suits. Cur. adv. vult. The following judgment was delivered on Feb- ruary 24, 1891 : — Clarence, a. C. J.— This is an application by petition under sec. 720 of the Proce- dure Code, petitioner claiming to be entitled to a distributive share of the estate of one Appuhennedigey Baban, who died in 1877. 42 THE CEYI.ON I,AW REPORTS. [VoJ. I., No. .II. The District Judge dismissed the application, being of opinion that by reason of the executor's "final account having been passed, and the case closed", there is no matter now pending in the District Court in which an order under sec. 720 can be made, and the petitioner appeals. The will was proved shortly after the testator's death. In 1882 an account, set up as a final account, was filed. No settlement or closing of the distri- bution was however made at that time ; and in 1883, after various and sundry more or less confused proceedings in the matter, this Court in appeal pointed out that, without having the accounts of the parties entitled ascertained as under an ad- ministration decree, a certain order which the District Court had made directing the executors to bring to Court a sum of Rs. 12,000 could not be supported, and this Court took occasion to point out that the executors must, as the matter then stood, administer the estate on their own respon- sibility without the interference of the District Court. After this one of the executors seem to have died, and for some years sundry journal en- tries occur in the Paper Book of the testamentary proceedings indicative that the distribution of the testator's estate was still incomplete. At length, in March, 1889, the District Judge minuted the follow- ing order : — "Case No. 34,049 of this Court instituted as per order of 22nd March, 1883, having been struck off as dormant, the final account afiirmed to on the 21st November, 1882, and filed by the executors, is hereby passed and the estate closed.'' The case No. 34,049 here referred to would seem to have been some suit instituted on the suggestion of the then District Judge by an heir or heirs of the testator against the executors. I think that the District Judge's reasons for re- jecting the petitioner's application in limine c&nnot be upheld. I do not think that the operation of sec. 720 is restricted to matters in which the right to a distributive share of an estate originated after the Code came into operation. In my opinion all that is necessary to found the jurisdiction under sec. 720 is simply the factum of au estate not wholly distributed. I cannot infer that the estate now iu question has been wholly distributed merely from the minute of March, 1889, just quoted. The account filed in 1889 may or may not have been a correct account in disclosing all the assets, but the question remains whether the petitioner has received his share. His petition is not very clear in its aver- ments, but this may be cleared hereafter. The ex- ecutor, admitting that petitioner was originally entitled to the fractional share stated in the peti- tion, has resisted the application on the technical ground that the special procedure provided by the Code does not apply, and that petitioner's only remedy is by an administration suit. There, in my opinion, the executor was wrong, and tlie matter of petitioner's application must go back to the District Court to be dealt with in due course. It would be premature now to say anything as to the procedure to be adopted under sec. 720. The order of the District Court must be set aside; and the executor having failed in his technical objection, must pay petitioner the costs of this appeal. DiAS, J., concurred. Prej-e^^.-— Clarence, A. C. J. (January 16 and February 6, 1891.^ P. C, Batticaloa, No. 5,246. CURRAY V. THAMPAN. Toddy— "Licensed retail dealer" — Drawing toddy— Au- thority to license — "Tavern-keeper" — Ordinance No. 10 of 1844, sees. 26, 39, & 40. Where the Government Agent, acting under sec. 26 of Ihe Ordinance No. 10 of 1844, licensed K., or on his behalf B., to sell arrack, rum, and toddy by retail at a certain place, — Held, that B. was a licensed retail dealer within the meaning of the Ordinance No. 10 of 1844, and had authority lawfully to issue a licence to any person to draw toddy under the provisions of the Ordinance. Held, further, that a "taveru-keeper", i. e., au em- p1o5'e who presides behind the bar of a tavern and dispenses liquor to customers, does not require a licence in order to enable him to sell arrack, rum, and toddy by retail. The defandant was charged with drawing toddy without a licence. But at the trial a licence was produced which had been granted by one Bastian- pillai. The Magistrate convicted the defendant, who thereupon appealed. There was no appearance of counsel in appeal. On February 6, 1891, the following judgment was delivered : — Ci,ARENCE, A. C. J.— I should have wished in this case to have had the assistance of an argu- ment. The question on this appeal is, whether the de- fendant in drawing toddy was justified by the li- cence produced, granted by the witness Bastian- pillai. Sec. 40 of the Ordinance provides that toddy may be lawfully drawn by a person who has obtain- ed a licence to draw from "the licensed retail dealer in toddy of the district" in which the palm is situate. The question then is, whether Bastianpil- lai is such a licensed retail dealer. Bastianpillai purported to act under a retailer's li- cence granted by theGovernment Agentand couched Vol. I., No. n.] THE CEYI^ON lyAW REPORTS. 43- in these terms :— "I * * * Government Agent » • do hereby license Kasinader Vaitalingam, or on his behalf Bastianpillai and Paulupillai, to sell arrack, rum, and toddy by retail * » * at the tavern No. 25, situate at," &c. The Magistrate has convicted defendant, holding that Bastianpillai is only a "tavern-keeper" and not "a licensed retail dealer", and that he had therefore no power to give a li- cence to draw toddy. I suppose that by "tavern- keeper" is meant an employe who presides behind the bar of a tavern and dispenses liquor to custom- ers. There is no necessity under the Ordinance of a licence to such a person in order to enable him to sell toddy. His sales, under sec. 26 of the Ordi- nance, are covered by the licence of his employer. He is a person "acting for and by the authority, and for the benefit of, and in conformity with the licence granted to such retail dealer". I cannot pretend to say why the names of Bastianpillai and ■Paulupillai were inserted in the licence already quoted ; at any rate I cannot say that they are not licensed retail dealers within the meaning of sec. 40 merely because they are licensed to sell by re- tail on behalf ot Vaitalingam. So far as I can see, the Government Agent may have travelled out of his functions in purporting to record in this licence thatBastianpillai's dealings were to be "on hehalf" of Vaitalingam. Bastianpillai is however licensed to sell toddy by retail. If he was to be a mere bar- man, and not invested with the powers of a "licens- ed retail dealer", there was no necessity to license him at all. I cannot hold that although he has a licence to retail he is not a licensed retail dealer. Conviction set aside, and defendant acquitted. Present .•— DiAS, J . (February 2 and 13, iSgi.^ ^" No. 6,986."^' j RAMLAN V. CADER MEEDIN. Criminal procedure- Charge— Complaint or information — Ordinance No. 22 of 1890. Ordinance No. 22 of 1890 substitutes a new chap- ter for chap. xix. of the Criminal Procedure Code. Sec. 226 of the substituted chapter enacts as follows . — (i) A Police Magistrate may convict an accused of any offence over which a Police Court has summary jurisdiction, which, from the facts admitted or prov- ed, he appears to have committed, whatever may be the nature of the complaint or information. (2) The Police Magistrate, before he so convicts an accused as aforesaid, shall frame a charge in writ- ing, and shall read and explain the same to the accused ; and such of the provisions of chap, xviii. as relate to altered charges shall apply to a charge framed under this section. Held, that since the Ordinance No. 22 of 1890 a formal charge need be framed in a summary case, only where the Police Magistrate convicts the accused per- son of an offence other than that disclosed in the com- plaint or information. The information in this case was dated December 19, 1890, and ran as follows: — "That the defendant abovenamed did on the 19th day of December, 1890, at Vidurupola, within the jurisdiction of this Court, dishonestly retain in his possession stolen property having reason to believe the same to be stolen property, to wit, 6 measures of green and ripe coffee of the value of Rs. 1-50, and thereby committed an offence punishable under sec. 368 of the Ceylon Penal Code, and sec. 2 of the Ordinance No. 22 of 1886." On the day of trial the Police Magistrate explain- ed the above complaint to the defendant, who stat- ed that he had cause to shew against conviction. The Magistrate then proceeded to hear the evi- dence, at the conclusion of which he convicted the defendant, but no formal charge was framed by him, and no plea was taken. The defendant there- upon appealed. Wendt for defendant appellant. The conviction is bad, inasmuch as no charge has been framed or plea taken. [Layard, S. G., as amicus curtce, referred to the Ordinance No. 22 of 1890, which he said iiiaile an alteration of the procedure under the L.riuiliial Pro- cedure Code. Under the substituted chap. xix. the framing of a charge by the Magistrate is dis- pensed with, unless he convicts the accused person of an offence not disclosed in the complaint or information.] rPe«(// contended that the new Ordinance made no alteration in the law as to the necessity of a charge. Sub-sec. i of sec. 226 of the substituted chapter is identical with sec. 235 of the Criminal Procedure Code, and sub-sec. 2 requires the Magis- trate to frame a charge. The distinction referred to by the Solicitor-General does not appear in the Ordinance, If the Legislature intended to draw that distinction, quod voluit non dixit. Further, even if such intention can be said to have been efiected, the complaint or information must at all events constitute a good charge, which it does not in this case. The offence of dishonestly retaining .stolen property is not an offence either under sec. 368 of the Penal Code, or under sec. 2 of Ordinance No. 22 of 1886. The conviction upon the present complaint is therefore bad. Cur. adv. vult. On February 13, 1891, the following judgment was delivered :^ DiAS, J, — The accused in this case was charged by the complainant under sec. 368 of the Penal Code and sec. 2 of Ordinance No. 22 of 1886. The matter of 44 THE CEYIvON I.AW REPORTS. [Vol. I., No. II. thecomplaint was read, and explained to the accused, who stated that he had cause to show against convic- tion. Evidence was adduced on both sides, on which the Police Magistrate gave his judgment and passed sentence. No formal charge was framed, and no plea taken as required under the old procedure. Mr. Wendt, for appellant, objected that the proceed- ings were irregular for want of a formal charge and plea ; but Mr. Solicitor called my attention to Ordi- nance No. 22 of 1890, which amended the Criminal Procedure Code in some respects, and substituted a new chapter for chapter XIX. We must therefore now look to Ordinance No. 22 of 1890 as laying down the procedure to be followed in cases of sum- mary trial by Police Courts. Under sec. 219 of the Ordinance no formal charge need be framed in certain cases ; but under sec. 226, the Police Magistrate may convict an accused person of any offence over which a Police Court has summary jurisdiction, which, from the facts admitted or prov- ed, the accused appears to have committed, but under sub-sec. 2 the Magistrate is bound to frame a charge. The reason for this distinction is obvious, as in the former case the plaint informs the accused of the nature of the charge against him ; but in the latter case, he has no such information till the charge is framed and explained to him. Now, to come to the matter in hand, there were two charges against the accused, disclosed in the plaint, which were read and explained to him. He was convicted on the second charge, viz., that founded on sec. 2 of Ordinance No 22 of 1886. The proce- dure adopted by the Police Magistrate was therefore regular, and the conviction and the sentence must be affirmed. -:o:- Presen^ -.—BVRNSlDn, C. J., and Clarence & Bias, JJ. (February 27 and March 3, iSgi.y The Special Commission- \ er's Court (Wella watte) | SMITH v. WljEYRATNE. No. 219. ) Registration of title to land— Money decree against owner of land— Charge upon land— Ordinance No. 5 of i8tj, sec, S — Appeal— Civil Procedure Code, sec. 755. Ordinance No. 5 of 1877 provides for the registra- tion (M title to land, and by sec. 8 enacts that "ever3' person having or claiming to have any right, title, or interest in or to any such lands, whether in possession, reversion, rein aiuder, or expectancy, except as monthly tenant, and whether by way of mortgage, hypothec, lien, charge, or otherwise," shall deliver a statement of his claim in writing, and other sections of the Ordinance provide for the investigation and regis- tration of such claims. Where a mortgagee of land, having obtained a mort- gage judgment upon his bond, sold the mortgaged property, whereby a portion only of the amount of judgment was satisfied, leaving a balance still due upon the judgment, and where the mortgagee sought to register a claim to other lands of the mortgagor in respect of the unsatisfied judgment ; — Held, the mortgaged land having been sold, and the balance amount of the judgment being now due as upon a mere money decree, the judgment creditor has no right, title, or interest within the meaning of the Ordinance in or to any other lands of the mortgagor, and is therefore not entitled to have his claim register- ed under the Ordinance. Observations by Burnside, C. J., and Clarence, J. , on the question, whether in an appeal from the Special Commissioner's Court a petition of appeal signed and filed by the party himself is regular. The appellant. Smith, was assignee of a mortgage decree obtained by a third party, upon a bond grant- ed by one Wirakon Arachchi. The land mortgag- ed by the bond was sold under writ, and realized less than the mortgage judgment, and there was still a balance due on the judgment. After the death of the mortgagor his widow mortgaged certain other land, belonging to the mortgagor, to Wijey- ratne, the respondent. Wijeyratne put his bond in suit, and having obtained judgment, had the land mortgaged to him sold under writ, and purchased it himself. Wijeyratne, as owner of this land, claimed to have his title registered before the Court of the Special Commissioner for the registration of titles to land at Wella watte, in which the land was situat- ed, under the provisions of Ordinance No. 5 of 1877. The appellant Smith also claimed, as against Wijey- ratne, to have registered a charge upon this land, as an asset of the estate ot the deceased mortgagor Wirakon Arachchi in respect of his unsatisfied judgment. The Special Commissioner rejected the claim of Smith, and he appealed. Dornhorsi for appellant. Fernando for respondent. Burnside, C. J.— In my opinion the Commis- sioner's decree is right, and must be affirmed with costs. The simple question is, whether the holder of a money judgment can be said to have any right, title, or interest in or to the lands of his debtor within the meaning of sec. 8 of the I,and Regis- tration Ordinance of 1877 so as to entitle him to make a claim for registration. The Commissioner says he is not aware of any law which gives such a claim, and he is certainly right. The right to claim registration is conferred by the section I have quoted. It certainly does not put a judgment creditor in the category, and that as it seems to me, is all that is needful to say. I do not favour the contention that sec. 755 of the Civil Procedure Code governs these appeals to the extent contended for, but it is unnecessary to express an opinion on that point. Vol.1., No. 12.] THE GEYLON LAW REPOETS. as Olarenci', J. — The decision o£ the Special Com mishion- «r against which appellant desires to appeal is nnqiies- (iooably ri.tsht. Pat shortly, the case is this : Wijekoon Arachchi, when alive, owned several pieces of land, one of which he mortgaged. The judgmept on that mort- gage is now vested in appellant. The mortgaged land faas been sold under the judgment, and the mortgage is still unsatisfied. Wijekoon's widow executed a mort- gage of SDotber plot of Wijekoon's land, and under a judgment on that mortgage this second plot of land was sold to a purchaser. Appellant is now seeking to recover the balance due on his unsatisfied judgment by a sale of the second plot. That is to say, appellant, as an unsecured creditor, having simply a judgment for a tarn of money dae to him from the estate of the mort- gagor, is seeking to recover the amount due to him by following. up this second plot.of land, as assets of the. mortgagor, into the ownership, of 'its >purcfaaser. Appel- iftc t has clearly no " right, title or interest", within ithe meaning of isection 8 of Ordinance 5 of 1S77, in .this «econd plot, <»ipable of Tegistrationi under the Ordi- . nance.' All thdt aippellant cilaims is a resort to this laud as an asset of hia mortgagor for satisfaction ofiaa unsecured debt due to him. That is clearly not a mauer for registration under the Ordinance. The appeal failing on its merits, it imightbe un- necessary now to say anything on the 'question, whether the appeal should have been rejected. I think it well, however, in view of what passed upon the argument of the appeal, to say that upon consideratioa I am disposed to favour respondent's .Counsel's objectjlpn and to doubt whether the appeal should not have been re- jected, on the ground urged by respondeat's Counsel, viz. that the appeal petition is signed by the appellant himself and not by an advocate or proctor, .and not having been taken down by the " Secretary, or Chief Clerk of the Court". as provided in section 755 of the Procedure Code.' Section 21 of ,the .Ordinance No. 5 of 1877 declares that, save as regards certain partitiilars ntit'tnaterial'to this dedi^ioo, appeals uader that OtdrnaTice shaiU te'de^lt with and disposed of in the" same manner aii'd Siibject to the satne rtiles as appetlls frotn 'Iflteflocntory'o'rafers of Disti'ict 'Coui-ts aredeah tiiila atld disposeld 6t". 'rntefrlocotory ordri-s of District Cotirts as will as Final orders are now governed by section 755 of the Procedure Code, and under that section petitions df appeal are required to bsdtawn and signed 'by an advocate or proctor, with a saving in'fffvour df appeal petitions tdken down'bytbe Chi^f Clerk or 'Secretary df Court. J do not know whether the' Special Ooramissioner is endowed with an officer who uan 'be' Styled Ohitif'OJerk or Secretary,' but assuming that be is not,- then it may 'be that appel- lants are driven to have their -appeils drawn and tigned by advocates or proctors. The Ordinance merely provides for the claimttits appearing personally or bj their " agents." As a matter of fact, advocates and proctors, we know, do appear before the Special Com- missioner; it would at any rate be quite open tpapy intending appellant to retain an advopate or proctor for the purpose of the appeal. Inany view, however, the appeal fails, and respqnd«i>t must.ltave his costs. DtAS, J.— The appellant in this case is the holder of a money judgment-against the estate of the mortgagor; or, in other words, be is a simple contract creditor df the estate. He wanted this claim registered under section 8 of Ordinance 5 of 1877 as a right, title or ittterestin the laortgagor's land. If this right canJss registered landerithe above section, every shopkeeper who has a claim against you for a tfew rupees may set up a ciight to have that Claim iregistered as a dharge oa tbelandedipropesty of the debtor. '■■Q? Present;— Clabencb, A. 0. J., and Dias, J. Partition '.OonumaaBionerr^daim far ttmunermtiomr amownt avtan'disd .hy €omrt lia ipaidUion lauit'^ The platntiS was Commissioner appointed to pa^ti - tion Certain lands in a partition -sttit, "to Whleh 'the defendant was.a.paotjjr. zUpoo.motiflinr'made; by,. plain- tiff in the partition suitj with notice to all parcies, "the Oourt'a/wariied 'a 'Certain sum' as ■plaintiff's eom- mission ,to,lbeipaidlbyitbeipftEtJ69 'ip proportion tio . their respective shares, there heijig np oppositjgn tu the motion. The plaintite brought thepresetit action to recover Ithe ^efaodaptjsiahftiie ef thp amo.iwt ,ajvarded. JJeZd, ,affirming,the,ju(^gmentiof the District Court, that the defendant, navmg notioe of the plainti'jBf'^B motion and'mtilriiigno'Opposition, was boiuiod by 'tib« :Qrdf>rjdf;thieiCQBPC,a.Dd ,tb*t his.icijuld uo^t.now pfejpst [to the,aa>Qu.nt tp Jae ipsid by. him to.plaintitf. Bat, held, tha,t the plaintiff should have p^jogeeded in the partition suit "for the recovery of the anaonno and shotild notchave brought a separate action. The Supreme Court accorditigly disallowed .the plaintiff's costs of the action and of the appeal. The defendant was party plaintiff in two partition suits, Nos. 99402 aud 99403 pf , the Distpiot Court of Colombo, in which by consent of parties theipl^infiff j^_. this action was appointed Commissioner to partition the lands, and he wasiaisoUio clear jand i survey thfiilands with a view to the partition. The defendaat had claiaied and was decreed one half of the l»ada. Subse- 46 THE CEYLON LAW EEP0RT8. [Vol. L, No. 12. quently the plaintiff moved in the partition suita, with notice to all the parties, that " the Court do award to the commissioner [the amouata in question] being bis remuneration for his labour and for the expenses incurred by him in the survey of the property and in and about the partition and the clearing thereof as sanctioned by the Court, and that the same be paid by the plaintiff and defendants in proportion to their raspeetive shares". The motion paper was signed by the proctors of the parties, including the present defend- ant, as having received notice. On the motion being made the District Judge minuted as follows : " Allow- ed, no opposition." Upon the footing of these facts the plaintiff brought the present action, alleging that defendant bad not paid his share of the amounts awarded. The defendant among other things denied that the District Court had awarded to plaintiff the sums mentioned, and, admitting the entry of the motion above referred to and the minute of the District Judge thereon, pleaded that the order was "of no force or avail in law" and no right of action accrued tberenpon, among other grounds, because the said order was "entered up without due taxation of plaintiff's bills of charges" and " because there is no sum awarded in the said order to be paid by defendant to plaintiff." ■ The defendant also denied that the plaintiff had dona . certain of the worfc^or which he had charged, and he proceeded to plead that the sums charged were excess- ive. He also pleaded thatthe plaintiff had been employ- ed upon the terms that he should receive only a sum of fis 100 for all his services and expenses as per certain letter written to defendant by plaintiff. The plaintiff in his replication stated that bo was in- duced to write the letter referred to by the defendant by certain fraudulent representations. At the trial the contention of the defendant was con- fined to the' question whether there had been an award amounting to a decree made by the Court in the partition suits. The District Judge held that the defend- ant had acquiecsed in the order allowing the plaintiff's motion in the partition suits and had thereby incurred a debt, whioh it was oompetent for the plaintiff to re- cover ia this action, and he accordingly gave judgment for the plaintiff with coats. The defeudant appealed. Layard, 8-0,, {Dornhorst with him) for the defend- ant appellant. Brown* for the plaintiff respoodant. Cur, adv. vuU, On January 30, 1891, tbe following judijin^iiia were delivered :— Claeencb, A.OhT.— In this action the plaintiff sues to recover from the defendant two aums amounting to Bs. 574*46 as defendant's half share of two sums of money wkioh plaintiff claims to be due to him as Parti- tion Commissioner. Defendant was plaintiff in two partition suits, Nos. 99402 and 99403 of the Colombo District Court, in which plaintiff was decreed entitled to a half share of the lands in question, and in each case the present plaintiff was by consent of parties appointed Commis-, sioner to carry out the partition. In one of these suits the plaintiff claims Bs. 950'15 and in the other Bs. 255'90 for fees, coats, and expenses as Commissioner. No deposit appears to have been made by any party to the partition suits at the time when the Commis- sioner was appointed, and consequently there is no snm of money in Court out of whioh the Commissioner can be paid, as contemplated in section 10 of the Parti- tion Ordinance. This, however, does not affect the contention between plaintiff and defendant iu the pre- sent case, which is as to the amounts which the Com- missioner should be allowed. Plaintiff claims that in each of these two partition cases the District Court by special order "awarded" to him the sums whioh he claims. It is the fact, although defendant has thought proper to deny it in his answer, that the District Court did make order of the kind alleged by plaintiff. In each case the District Court has minuted that plaintiff moved the court to award him the suma whioh he claims. These motions were made upon notice to the proctors for the defendants, including the present defendant. The District Judge further no^ed that no opposition was offered to the motion and made order that the applications be allowed. The defendant in his answer sets up a contention that the plaintiff by a written agreement made with himself before he was appointed agreed to accept a lump sum of Bs, 100 as his remuneration in the matter, and defendant seeks to support this contention by a letter which plaintiff admits addressing to defendant^ but asserts that it was obtained from him by miarepre- sentatioD. I think it unnecessary to say anything more about this letter, save that it is discreditable ta, both parties. So far as its purport is clear, it seems to be that defendant was to use hia influence to procure for plaintiff the appointment aa Partition Commissioner and that plaintiff should do tbe work for Bs. 100 only and let defendant pocket the overplus of what the Court might allow, or in other words, that in consideration, of defendant obtaining the job for plaintiff, plaintiff, Vol. I., No. 12.] THE CEYLON LAW REPORTS. 47 w.oald . divide the spoil mith defendant. Such an arrangement the Conrt would not of course support. Looking at the bills of charges filed by plain- tiff in the two partition cases in support of the motion already mentioned, we find considerable charg- es made which the Court would not, unless by con- sent, pass without inquiry and production of vouchers. The parties had assented that the Commissioner should be allowed to clear the land in his discretion, in order perhaps to enable him the better to make his surveys and apportionments. In No. 99402 the plaintiff claimed, besides Ss. 172.58 for clearing jungle, Ss, 140 for surveying fees, B«. 46-66 for partitioning and Bs500 as " commission for appraising". Why the Commissioner ibould be allowed to claim such sums, more especially the Ss, 500 commission for appraising, is not apparent. It needs not to be said that a Partition Commissioner is in some sense an officer of Court and subject to the control of the Court as to bis charges. If this matter came simply before us for consideration of the amounts which ought to be allowed to the plaintiff as Commis- sioner, the charges disclosed in his two bills would have to be considered and taxed. But it appears that this defendant, by his proctor, consented to the Dis- trict Conrt fixing in the two partition suits, as theplain- tifi's allowances, the amounts which he claims. The plaintiff's motions to be allowed these sums were made on notice to defendant, and defendant attended by his proctor when the motions came on for discussion and offered no opposition to the motions. The District Judge thereupon noted that he allowed the motions. This was in February 1889, and those orders still atand on the file as orders fixing the amounts Tvhicb the Commissioner was to be allowed. We c. %nnot now allow the defendatat to resile from the <30 nsent which he then gave. Defendant offers no «xp ^ 'bink that we should allow no eosts on either si '^®> '° either Court. DiAS, J.— I see i '" reason to disturb this judgment, «zsept as to costs i^hich I would disallow in both Courts. Present t — Clarence and Dias, JJ. {February 20 and March 3, 1891.) ■ ^jj a^utara,! LoQg ^nd another v. Sohabbnguivel Practice— adding parties— Civil Procedwre Code, sec- tion 18, oMd sections 640 and C48. The procedure under section 18 of the Civil Proce- dure Code for adding a party should be that follow- ed in England in applications under Order xvi of the Orders under the Judicature Acts, viz. a party seeking to bring in a third person should obtain ex parte an order giving leave to serve a notice on the person whom he desires to bring in, and the question whether such person ought to be joined should be eonsidered and dealt with in his presence and in that of the parties already on the record. The plaintiffs were mortgagees of certain lands and had sued the mortgagors (one of whom was one F. S. Thomasz) in a separate action and obtained judgment. Upon writ of execution being issued and the mortgag - ed property being seized, the defendant claimed the same before the Fiscal, basing his claim upon a deed of transfer from F. S. Thomasz of a date subsequent to the mortgage. The plaintiffs thereupon brought this action against the defendant for the purpose of having his claim set aside and the property sold. After summons served, the defendant filed answer alleging his purchase from F. S. Thomasz and fraud and misrepresentation on the latter's part, in that the defendant had been induced to purchase upon the representation by F. S. Thomasz that the property was free from incumbrance. At the same time the defend- ant moved the Court to make F. S. Thomasz an added party in this action. The plaintiffs opposed the motion, which the Distriet Judge (0. Liesehtng) ultimately dis- allowed. The defendant subsequently renewed his motion " in view of the statutory requirements of section 640 of the Civil Procedure Code" (This section enacts that a mortgagee shall sue the mortgagor a.k defendant whether suoh mortgagor is or is not in possession of the property mortgaged at the time of action brought). The District Judge again disallowed the motion, stating that the statutory requirements of section 640 had already been complied with in the mortgage suit brought by the plaintiffs against the mortgagors. From this order the defendant appealed. Withers for defendant appellant. Morgan {H. Loos with him) for plaintiffs respondent: Cur. adv. vult. On January 30, 1891, khe following judgments were delivered :— 16 THE GEYLON LAW EEPOETS. [Vol. I., No. If. ClABENCE, J. — This is a suit to enforce a mortgage, »nd the defendanD is stated in the plaint to be a person ■who acquired the mortgaged property by purchase from the mortgagor after the mortgage. The libel avers that the plaintiffs have sued the mortgagor in awother action, and got judgment and mortgagee's decree in that action. The defendant now wishes to have the mortgagor made an added party in this suit. This must be taken to be an application ander section 18 of the Code, and in iny opinion the procednre under BHch an application should be that followed in Eng- land in applications under Order XVI of the Orders ttnder tbe Judicature Acts, via., that the defendant ■eeking to brin^ in an added party sholild obtain *x parte an order rgiving -Jeave to serve a notice on the person whom he desires to bring in, after which the question whether snob person ought to be joined can be considered and dealt with in the presence of plain- tiffs and defenttant, and such person, as, for instance, in PUley vs. Bohimon L.B.20Q.B.t). 155. In the present case the matter has been discussed mei-ely between the defendant and the plaintiff; and the mort- gagor, whom the defendant seeks to bring in, has had no say ia the matter. I think, rtherefore, that we should dismiss this appeal with leave to defendant to proceed de novo in the manner above indicated. It will be best to leave the merits of the a'pplfc&tiob Untouched at present. We may, fiowe^rer, point out that the circnmstaDce, dwelt 6a by i'£»i)aaidBiitk' Counsel, of the mortgagor having iiitekd^ been 'sned 'in another suit, is not ntoeBsalri'iy an bnsVrer to tkb ■pplioation. ^he dbjeot of 'ftll ptocedtire f6i: bring- ing in third parties is to dbtcfih 'adfadioation in one suit binding On all 'three'pttrtifeS. Thb question, wbe'her, having t-egard tb feec'troh %48, plaintiffs were right in instituting a Separate iiistiob-fclgsiinst tihe defend- ant under the circuiistances, has not at pt-fisent been discussed. Order «ippealed horn set a^it^e, and the case sent back it tfete D}»tri6t fOourt /for further pfopeedings in due eOtfilBb. Wo ^order tiiade 4t presenib as to oosts, but eilhfet ipairty may heirefiifter move, ihjs Coiiirt for an otder bs'to cost^. Bias, J. — In this suit the plaintiffs seek to establish as against a third party their right to discuss a land mortgaged to them by t»o dehtbt-a. Via., ThcftirtiSz aind Cuylenbunfk The pliEiinti'ffs oMained a mortgage decree against their debtors in another suit, and the defendant in this suit moved to be allowed to make one of those debtors a party to this suit. The matter of the appli- oation was discussed as between the plaintiffs and the defendant; and the debtor, Thomasz, who was intended to be added to the suit, had no notice of this motion, though he was the party most interested. The District Judge refused the application, and the defendant ap- peals. The proposed addition of a third party to tba suit was proper, but the defendant did not go to work in the right way. I would set aside the order, and send the case back as suggested by my learned Brother. Present : — Diss, J. {April 15, and May 27, 1887.) 'No. 2S1^V*' } ^™«i« ^' Sambla. M'isehief—" maiming" cattle— Ceylon Penal Gode, seo- tion 412 — co^trwction. Section 412 of the Penal Code enacts: "whoever commits mischief by killing, poisoning, maimitig or rendering 'useless, any -elephant, cameii, horse, asg; Bdatek buffalo, bull, bow or ox &c., shall be punished' with imprisonment &o." In a charge under the above section of committing mischief by maiming certain cattle, where the proof was that the animals had been oat by the defendant but had all recovered, _ Beld, that the word " maiming" in the above sec- tion meant permanently injuring, and that the facts did not sustain tihe charge made. The Police Magistrate convicted the defendant of thexshatge made against him ucder the above section, and the defendant appealed. "W'endt 'for appellant, Our. adv. tniM. . ' On May 27. 1887, the following judgment v /^j, deliviered :— Bias, J.— The accused was charged Under sect jt,n 412 of the Penal Code with cutting, injuring, and i I* „ cattle. 'I'he words " cutting" and " injuring" do /jj^j oc^rr in the Code, and the quesfion is whether tb o evid I'Ce would support a charge for maiming. Ju dtzinf from the context, I am inclined to thinkthatthe n .i_j « maim" is used in the sense of permanently injuri ^„ j.[jg animal maimed. The words are " maiming" ■ ^ W ^^j^aering useless", The evidence is that the at ^ged cut three of the complainant's cattle, but th' u. jj^w- J^ave .ill recovered, so it cannot be said that ^^ i„|^,,y jrifliefced by the accused is of a permanent character. Set aside, ahd the appertaht is ■ dfsohSroea. Pbintkd at ihe "Ceylon Examinbr" Press, No. 16, Queen 3trebt, Fot ^^ Colombo. Vol. I., No. 13.J THE CEYLON LAW REPORTS. 49 P^«e«/ .-—Clarence, J. (February 21 and March 17, 1887.^ P. C, Badulla, No. 1,921. Carey v. db Silva. Cheating— Charge— Obtaining money by a promise— Inten- tion not to carry out promise — Ceylon Penal Code, sec. 398. A charge of cheating should set out the means by which the cheat has been accomplished. Under the Penal Code, in a charge of obtaining money by false pretence, the false pretence need not necessarily be as to existing facts, but may include a promise which the party at the time of making it intended to break. The facts of the case sufl5.ciently appear in the judgment. Dornhorst for defendant appellant. Cur. adv. vult. On March 17, 1887, the following judgment was delivered : — Clarence, J. — Defendant appeals against a con- viction on a charge of cheating. I have had the advantage of reading the judgment of the Chief Justice in No. 856, Police Court, Haldummulla*; and I agree with the Chief Justice that a charge of cheating should set out the means by which the cheat has been accomplished. If the cheat charged is a cheat by false pretence, the charge should specify the false pretence. In the present case the charge originally lodged by the complainant did distinctly specify the false pretence, viz., a pretence that defendant would expend the moneys received in payment of labour- ers employed on a certain work. The charge framed by the Magistrate does not give so much information ; it has not, however, been suggested that the defendant has been prejudiced by this omission in the formal charge, and I think it clear that defendant has not been so prejudiced. The ofiFence which the evidence is directed to establish is the obtaining of money from Mr. Carev by re- presenting to Mr. Carey that he would expend the money in payment of labourers employed on a certain work which defendant had contracted to execute for Mr. Carey, the defendant then and there not intending to make good that representation. Under the old Common Ivawsuch a charge would have been demurrable, the rule being that to sustain a conviction on a charge of obtaining money by false pretence the false pretence must be a pre- tence as to existing facts. The Penal Code goes further, and renders it an offence to obtain money by a promise w hich the maker then and there * 8 Supreme Court Circzdar 56.-^0. deliberately intends to break. To sustain such a charge it is not enough to prove that the defendant failed to cary out his promise: it has to be shown that at the time of making the promise he had not the intention which he declared himself to have. Defendant had contracted to build a bungalow for complainant. For this defendant was to receive Rs. 1,000, payable by instalments. The written agreement says nothing as to the time when these instalments were to be paid, except that the last was to be paid on the completion of the work. The work was to be finished and the bungalow given over to complainant on the ist December, 1886. All .materials were supplied by complainant, except "such articles as coir rope". When defendant threw up the work, leaving it unfinished, he had received in three instalments an amount of Rs. 400, together with rice to the value of Rs. 412 more, making Rs. 812 in all ; and I see no reason to doubt that the work done was far below that value. It is certainly proved that defendant obtained at any rate the last of these cash payments from complainant upon the strength of his promise that he would pay his labourers. A point was made in argument that complainant was bound to make the cash advances under the contract, and that, therefore, they cannot be considered as induced by defendant's represen- tation that he would pay his labourers with or out of the money. But the agreement is silent as to the time when any payments were to be made except the last, and in my opinion complainant was not bound to make advances except in so far as he might be reasonably satisfied with the progress of the work. I think that the evidence does prove that complainant made at any rate the last cash payment on the strength of defendant's represent- ation that he would pay his workmen. It is abun- dantly proved that defendant did not pay the unfortunate carpenters and coolies whom he em- ployed on the work ; indeed, no attempt has been made to prove the contrary, or to meet the over- whelming evidence adduced on this point. But the question remain?, — whether defendant, when he made the representation, was without the intention of keeping his word ; for, as defendant's proctor rightly urged, a mere breach of contract is not an offence. We can only judge of defendant's inten- tion by his acts; and, in my opinion, the only inference which can reasonably be drawn from the facts proved by the prosecution which defendant has made no attempt to meet is that defendant never meant to pay the workmen. I have no doubt that his intention was to make all he could for himself, even to the length of appropriating rice issued for the use of the workmen, and to leave the unfortunate workmen in the lurch. Affirmed, 50 THE CEYI^ON LAW REPORTS. [Vol. I., No. 13. Present :—BVKNSlT)n, C. J., and CLARENCE & DiAS, JJ. (December 16, 1890, and February 27 and March II, 1891.J ''•k''?ir'''J CI.AHKE V. HUTSON. Deed of lease — Breach of covenant— Right of re- entry— "Said" — "Herein contained"— Construction — Pleading:- The plaintiffs, by an indenture of lease, "in consi- deration of the rents hereinafter reserved, and of the lessee's covenants hereinafter contained", demised certain premises to defendant for a certain term of years. The indenture then stated certain covenants on the part of the lessee for payment of rent, and for • repairs, and also certain covenants on the part of the lessors for quiet enjoyment, on the lessee paying the rent "hereinbefore provided", and performing "the conditions and covenants herein contained". The deed then provided that if the rent were not duly paid, "or in case of the breach or nou-performance of any of the said covenants and agreements herein on the part of the said lessee contained, then and in any of the said cases" it shall be lawful for the lessors to re- enter and determine the lease. The deed then provid- ed that the insurance on the premises should be paid by the lessors, but tliat any increased or extra pre- miums payable for insurance by reason of anything extra hazardous brought into or done in the premises should be paid by the lessee. The deed finally provid- ed for renewal of the lease on certain conditions. In an action by the lessors against the lessee for re- entry on the ground of non-payment by the lessee of a certain sum paid by the lessors, as increased pre- miums for insurance, by reason of an extra hazardous thing being brought into the premises.— Held, (dissentiente Cient of KURUKULA- lestamtiiLdiy / suRIYE AUGUSTINO FERNANDO '^' I of Negombo, deceased. Will- attestation— notary pradising- ii: one langttage and instrmnent written in another — Ordinatice No. 7 0/1840, section 14, and Ordina71.ce No. 2 of iStj, section 11, and section 26, sub-section 10. Section 14 of Ordinance No. 7 of ■[840 enacts that no will shall be valid unless (among oilier thiiij^s) the sigiialure "shall be made or acknowledged by the testalor in the presence of a licensed notary public and two or more witnesses," &c. Section 11 of Ordinance No. 2 of 1877 provides that every appointment for the office of notary shall specify "the language or languages in which he is authorized to draw, authenticate, or attest deeds or other instru- ments". Held, that a notary authorized to practise in one language ma}' properly attest an in.stiunjent written in another, writing the attestation clause in the language in which he is authorized to practise. In the case of a will written in the Tamil language and attested by a notary authorized to practise only in the Engish language, the attestation clause being written in the English language, — Held, that the will was duly attested and was rightly admitted to probate. The will propounded was one written in the Tamil language, and purported to be attested by Miliani Henry Sansoni, a notary authorized to practise in the English language only, and the attestation clause, which was in English, and was signed by the notary in English, certified that the testator acknowledged the signature in the presence of the witnesses. The testator appointed two of his minor children as executors, and nominated the respondent to this appeal as curator over them for the purpose of managing the estate until they came of age. The respondent produced the will to the Court with the necessary material, and applied for letters of ad- ministration durante 7ninore estate and for certificate of curatorship over the minor executors, but no respondents were named in the application. On January 16, 1891, the Court made an order nisi declaring the will to be proved and ordering letters of administration durante 7nitiore estate and certifi- cate of curatorship to be issued to the applicant. On January 21, 1891, the appellants, who were two other children, and son-in-law of the testator, entered a caveat and urged that the will was not duly attested. The District Judge (H. W. Brodhurst) overruled the objections and held the will to be proved, and observed as follows : — "It is contended that a notary cannot attest a deed written in a language other than that in which he is authorised to practise, and that a notary cannot attest a deed which he has not himself drawn and authenticated. If the words of the Ordinance were 'authorised to draw, authenticate, and attest', it might perhaps be contended that a notary was compelled to perform all these operations in respect of ever}' instrument with which he l;ad to deal. But as the words are 'draw, authenticate, or attest', it is clear that a notary may either draw a deed, or authenticate a deed, or attest a deed in the language in which he is authorised to practice.'' The opponents thereupon appealed. Withers [Dornkorst and Wendt with him) for the appellants. Browne {Cankcratne with him) for the respondent. Cur . adv. vult. On May 26, 1891, the following judgments were delivered ; — ■ Clarence, J.— Tht question for decision on this appeal is— whether the document propounded as the willofKurukulasuriaAgostino Fernando ought to be 6o THE CEYLON lyAW REPORTS. [Vol. I., No. 15. admitted to probate. Appellants, who oppose the grant, have taken two objections : first, that the document has not been attested as required by the Ordinance No. 7 of 1840 ; and secondly, they seek to found an objection in respect of certain erasures and interlineations said not to have been attested as required by law. We need say nothing on this second point, which does not arise at the present Stage of the matter, though on the document being admitted to probate it may arise when the will has to be construed. The document propounded as the will of Agos- tino Fernando is written in Tamil, which is the language of many of the Negorabo Sinhalese. It purports to be attested by a notary and two witness- es. Admittedly this notary is a notary whose appointment under section 11 of Ordinance 2 of 1877 embraces the Enlish language only, and not the Tamil language. The attestation clause is written iu English. The instrument is signed at its foot in English characters, and there is prijna facie evidence, to rebut which no attempt has been made, that Fernando acknowledged his signature in the presence of the notary and witnesses and declared the instrument to be his last will and that he was then of sound mind, memory, and under- standing. The instrument is written upon more than one sheet of paper, and each sheet has been signed at foot by Fernando, the notary, and the witnesses. Thus there is frima facie evidence that Fernando in the presence of a notary and two witnesses acknowledged his signature to it, and that he was then of sufficiently sound and disposing mind. But it is contended by the opponents that the notary had no power to attest the execution of the document, for that his authority did not ex- tend to the attesting of an instrument written iu Tamil. It is in effect contended that for the purposes of this attestation this gentleman was no notary. If that contention is sound, then the instrument, not having been attested by a notary within the meaning of the Ordinance of 1840, cannot be admitted to probate. Section 11 of the Notaries Ordinance 1877 enacts that "every appointment for the office of notary shall be by warrant under the hand and seal of the Governor, and shall specify and define the district within which alone the person thereby appointed is to practise, and the language or languages iu which he is authorised to draw, authenticate, or attest deeds or other instruments". It is admitted that Mr. Sansoni's warrant extends to the English language only. Admittedly he has no power to draw a will or other instrument in Tamil. Further he can only "authenticate or attest" in the English language, and not in Tamil. If it be asked, what is meant by attesting in any particular language, all I can say is that this uotarj' purports to have done his attesting in the English languaj;e, in whicli language he has written his attestation clause. We need not for the purposes of this appeal speculate as to what details are included in "attestations" as contemplated by the Ordinance, or to what length those details should be transacted in the language named in the notary's warrant. All that I think it necessary to say upon this appeal is, that I can see no impossibility in a Tamil will being attested in English that this attestation purports in facie to have been attested in English, and there is no material advanced by the opposition to the contra- ry. Mr. Saiisoni is authorised for the English language, therefore I think that the opposition to this instrument fails and that the instrument has rightly been admitted to probate as the will of K. Agostino Fernando. The executors appointed by the will are the testator's children of the second bed, Rosa and Manuel, who are minors. The testator having expressed by his will a desire that Istegu Peris should be curator over the children during their minority, the District Court has for the present committed to Istegu administration cum testamento annexo, an order to which no objection is apparent. In my opinion this appeal should be dismissed with costs. DiAS, J.— I am of the same opinion. The ques- tion for decision is, whether the will in question was attested by a duly licensed notary public. Last wills in this colony are executed in two forms : (i) before a licensed notary public and two or more witnesses who shall attest such execution, or (2) be- fore five or more witnesses who shall attest the execution. This will was executed before a notary and two witnesses; it is written in the Tamil language, but the attestation, which is the proper work of the notary, is written in the English language. The Ordinance No. 2 of 1877 deals with the law applicable to notaries, and section 11 enacts that he shall be appointed by warrant under the hand and seal of the Governor, and such appoint- ment shall specify the language or languages in which he IS authorised to draw, authenticate, or attest deeds or other instruments. This section contemplates three distinct independent acts, and the notary may do one or the other of these acts or may do all of them, with respect to deeds or other instruments which he attests. The notary in this case IS licensed to draw, authenticate, and attest deeds or instruments in the English language, and the action of the notary in this case was confined to attesting the testator's signature. This attestation is written in the English language, and therefore fulfils one of the conditions of the hc;nse PKINT^D AT THB "C«VI.ON ExAMINEK" Pk^SS. No. z6, ^^^m^^^^^^^^^^^;;;^:^;^^^ Vol. I., No. i6.j THE CEYI^ON I,AW REPORTS. 61 The body of this will was probably written by the testator himself in his own language, or written by somebody else in his presence and by his authority, and all that the notary had to do was to see that the testator was of sound and disposing mind, and understood the nature of the instrument he was signing, and that he signed the will in the presence of the notary and attesting witnesses, all being present at the same time. All these require- ments seem to have been complied with, and the notarj' appended to the will the attestation clause required by the Ordinance 2 of 1877. If the law were otherwise, a Sinhalese or Tamil testator may have to die intestate much against his will, though a notary was present, who was only licensed to practise in English. In the majority of cases testa- tors do not desire that the disposition of their pro- perty should be known, and write their own wills, and all that the notary need know is that the docu- ment which the testator wishes to sign is one, of the contents of which hs is well acquainted. On a careful consideration of the whole case I am of opinion that the judgment is right and the appeal should be dismissed. o :- Present :— Burnside, C. J., and CtARENCE and DIAS, JJ. (March 13, May 26, and June 9, 1891.^ D. C. Colombo, ) CASI Lebbe Maeikar v. Aruna- No. 2537. chalam. Fiscal — action against — notice— Ordinance No. 4 of 1867, section 21. A letter written to the p'iscal giving notice that the party claims from the Fiscal a certain sum of money as damages for alleged negligence, and without intima- ting that any action will be brought, does not consti- tute a notice of action within the meaning of section 21 of the Fiscals Ordinance. This is an action against the Fiscal for damages. The plaintiff was a writ holder in a previous action and sued the Fiscal for certain negligence and irregularity in carrying out the writ. The libel alleged that "notice in writing distinctly setting forth the grounds of action" was duly given to the defendant by the plaintiff's proctor by letter. The defendant in his answer denied that notice distinctly setting forth the grounds of action was giveu as alleg- ed, and pleaded that, admitting the letter referred to, it was insufBcient in law, in that it did not com- ply with the requirements of the Ordinance. The letter in question was in these terms : — "We have the honour to give you notice that we claim from you on behalf of Uduma Lebbe Marikar Ca.ssie Lebbe Marikar, plaintiff in D.C. Colombo, case No. 285, a sum of Rs. 204-11, as damages sustained by him by reason of your gross negligence irregu- larity of proceeding, and want of ordinary diligence in not carrying out the sale of defendant's property seized by you under writ D. C. Colombo No. 285 on the 28th December 1888, by reason whereof extra rent and other charges were incurred and were de- ducted by you from the monies recovered under the said writ, thereby reducing the amount plaintiff wsa able to recover in satisfaction of his judgment" The acting District Judge {J. Grenier) held this notice insuflScient aud dismissed the plaintiff's action. The plaintiff thereupon appealed. The appeal was first argued on March 12 before Ci,ARENCE and DiAS, JJ., and again on May 26 before the Full Court. Browne for plaintiff appellant. Dornhorst for defendant respondeat. Cur. adv. vult. On June 9, 1891, the following judgments were delivered : — Burnside, C. J.— This is an action against the Fiscal to recover damages for alleged negligence in the performance of his duties. The defendant has denied that sufficient notice of action had been given as required by section 21 of the Fiscal's Ordinance 1867. The District Judge upheld the defendant's plea and the plaintiff appeals. I have carefully examined the instrument relied on as notice, which bears the form of a letter from the plaintiff's proctor to the Fiscal, and I can find no notice of action. It is simply a lawyer's letter in which they claim damages alleged to have been sustained by the plaintiff by reason of the Fiscal's gross negligence. There is not one word of intimation that an action will be brought if the claim is not complied with— there is no notice of action whatever, and looking to the host of cases which are referred to in the text books, it is imperative that the notice should clearly state that the action would be brought. This goes to the whole notice, and it is unnecess- ary to deal with the objection that the notice does not distinctly set forth the grounds of such action as required by the Ordinance. The judgment of the District Judge must be affirmed. CLARENCE, J.- This is an action against a Fiscal, plaintiff claiming damages for alleged "abuse of authority,, gross irregularity of pro- ceedings and gross want of ordinary diligence"^ in the carrying out of the sale under plaintiff's writ. The District Judge has dismissed plain- tiff's action for want of the notice of action to which the Fiscal defendant is entitled, and the que«7 62 THE CEYI/)N I.AW REPORTS. [Vol. I.. No. i6. tion for decision on this appeal is, whether the let- ter of plaintiflPs proctor amounts to a sufBcient notice of action. The arguments upon the appeal before us were directed to the question, whether that letter discloses with sufficient distinctness the grounds of complaint now set out in the libel. But upon iookftig at the letter I agree with the District Judge that it is insufficient for another reason, viz., that it is no notice of action at all. It gives notice of a "claim", but says not a word of any action or proceeding in litigation. For this reason the plaintiffs appeal fails and must be dis- missed, and it becomes unnecessary to bestow pains on consideration of any question, whether, apart from this defect, the letter sufficiently sets out the causes of complaint declared upon, or any of them. It certainly does not disclose them all. DiAS, J., concurred. Present :—V)\KS, J. (December 12, 1890, and March 5, 1891.^ MOHOTTIHAMY V. LEKAM MAHATMEYA. D. C. Kurunegala, ' 22 No. M 13 ; Procedure — decree nisi^fortn of notice— copy decree — Civil Procedure Code, stciion ^$— Stamp Ordinance No. 3 of 1890, Schedule B, Part II. In the case of a decree nisi, it is not sufficient, under section 85 of the Civil Procedure Code, to jiive to the defendant a notice embodying tlie purport of the decree, but the defendant is eutitled to receive au authenticated copy of the decree itself. Such copy decree, before it can be issued, must bear the proper stauip duty as specified in the schedule to the Stauip Ordinance of 1890. The plaintiff having obtained a decree nisi in this action against the defendant, his proctor submitted for signature to the Secretary of the Court a form of notice to be issued to the defendant. The notice, which was stamped as a notice, embodied the substance of the decree nisi, but had no copy of the decree itself attached to it. The Secretary refused to sign and pass the document, and submit- ted his grounds in writing to the District Judge, who thereupon made the following order : — "Mr. Modder for plaintiff having obtained a decree nisi in plaintiff's favour tendered to the Secretary of this Court a notice thereof for issue to defendant in terms of section 85 of the Civil Procedure Code. The Secretary has declined to sign the notice on the ground (i) that plaintiff has taken no copy of the decree, and (2) that if the notice is held to contain a copy of the decree, it is insuffici^tly stamped inasmuch as it bears a stamp only for the notice and not for the copy decree. The Secretary has in support of his contention submitted a copy of the Hon'ble the Colonial Secretary's Circular No. 82 of 8th September last annexing the form of the notice to be used in such cases, and which form provides for a copy decree being annexed to it. The opinion of the Colonial Secretary on this matter has of course no legal effect, but the form is an excellent one, and can hardly be improved upon. The form tendered by Mr. Modder is certainly not so good, but it contains nearly all that is material in the decree. It has been so framed as to evade the making of a copy decree, which, it was believed, would require a fresh stamp. The words in the Stamp Ordinance 3 of 1890 relied upon by the Secretary are ; "No party shall be allowed to take any proceedings on or by virtue of any decree or judgment without first taking a copy thereof." These words are sufficiently com- prehensive to include the issue of a nonce of a decree nisi, but I am inclined to doubt whether this can be considered a proceeding taken by the party. It seems to be rather a proceeding taken by the Court. The concluding part of section 85 of the Civil Procedure Code, under which the proceed- ing is taken, states that when the defendant is in default of appearance on summons and the plaintiff appears "the Court shall proceed to hear tue case ex parte and to pass a decree nisi in favour of plaintiff" "and shall thereupon issue to the defendant a notice of such decree". Compare the words which I have underlined with the words in section 55 "upon plaint being tiled the Court shall order a su?nmons to issue signed by the at:crctary requiring the deiendant to appear and answer the plaint," ifcc. The Legislature appears to me to have intended that the Couit should ex mero motu, without any application from plaintiff, issue to deleudaut notice of decree nisi. In this view, I am of opinion that not only is no copy decree nisi required to be taken by plaintiff, but that the notice itself need bear no stamp, for Fait II of the Schedule to the Stamp Ordinance imposes a stamp only on a notice "applied for at the instance of a party to an action". I therefore direct the Secretary to sign the notice tendered by Mr. Modder and to issue It. I further direct that this record be forwarded to to the Attorney-General for his information and for such steps as he may deem necessary in order to obtain an authoritative decision on the point. (Signed) P. ARUNACHAI.AM, Acting District Judge. The form of notice annexed to the circular of the Colonial Secretary referred to in the order of the District Judge was as follows : — "Take notice that a decree nisi, copy of which is hereto attached, was passed against you in favour of the plaintiff on the day of 189 and that the same will be made absolute unless you appear on the day of 189 and shew sufficient cause to the contrary." The matter having been referred to the Attorney- General according to the directions of the District Judge, Layard, S.G., moved in the Supreme Court that the order of the District Judge be brought up in revision. The record having accordingly been forwarded to the Supreme Court, the matter was discussed on December 12, 1890. Vol. I., No. i6.] THE CKYI^ON I,AW REPORTS. 63 Layard, S.-G., in support of the application for revision. Cur. adv. vult. On March 5, 1891, the following judgment was ■delivered : — DiAS, J. — On the 20th October, 1890, a decree nisi was passed under section 85 of the Oivil Procedure Code, and on the 19th November the plaintiff's jjrocioi submitted to the Secretary of the District Couit loi his signature a written notice purporting to be a notice to the defendant of the decree nisi. The Secretary declined to sign it as he thought that a. copy ol the decree nisi should be attached to the notice, or that the notice itselt should bear the proper stamp. Tlie Distiict Judge, however, thought otherwise, and directed the Secretary to issue the notice, and iorwarUed the record witn liis Older to the Attorney-General lor his consideration. Section 85 of the Code is very plain, and the words "notice of such decree uisi" mean tiie decree itself, and not a mere notice paper tiamed by tiie plaintiff's proctor embudyiug the substance of the decree. The defeuUaut is entitled to receive the decree itself, or an authenticated copy of it ; and the paper which the proctor proposed to issue only contained the proctor's opinion of what the decree is. The District Judge seems to have fallen into the error by supposing that the notice referred to in section 85 is not the act of tue party, but of the Court. Tliis, in one sense, is right enough, as distinguished from a personal notice by the proctor. In all matters of issue of process, such as summons, subpoena, and the like, they are issued by order of the Court; but nevertheless this must be applied for and obtained by the parties interested or their proctors. By the Stamp Act of 1890, Part 2, it is provided that no party shall be allowed to take any proceedings on or by virtue of any decree or judg- ment without first taking a copy thereof. Now, a copy decree is subject to a stamp duty, and what the proctor attempted to do was to avoid that duty by embodying in this notice the substance of the decree, which of course he cannot be allowed to do. I must therefore set aside the order of the 20th November, 1890. -: o :- Prejew^.-— BURNSIDE, C. J., and Cl,ARBNCE & Bias, JJ. [May 12 and June 5 & 9, 1891.) D. C. Colombo, ) Jansz v. Idroos Lebbb No. 1,075. Makikae. Ejectment — title to land-~insolvency of owner — assignee in insolvency— death of owner— right of heirs — Ordinance No. 7 0/1853, section 71. Under section 71 of the Insolvency Ordinance the property of the insolvent vests in the assignee abso- lutely upon his appointment and not merely for the purposes of the trust ; and in order that the property may so vest it is not necessary that a formal sequestra- tion of the property should emanate from the Court. Where the original owner of laud was adjudicated insolvent and died after the appointment of an assignee, and his heirs sued in ejectment a third party in possession who put their title in issue, — Held, that in the absence of a conveyance by the assignee or of prescriptive possession, the assignee was not divested of his title, and the plaintiffs' aclion failed for want of litle in them. The facts of the case sufficiently appear in the judgment of Clarenck J. The District Judge {O. fV. C. Morgan), in his judgment upUolUiug the plaintiffs' claim, inter aha, observed as follows: "It was urged in defence that when Johannes Perera in 1871 was declared insolvent, the property vested in his assignee and Johannes Percra lost all right to the property. I do not think the act of insolvency deprived the insolvent of his right to his property. The pro. perly only vested in his assignee for the benefit of his creditors. But referring to the insolvency proceedings, it does not appear that the property in question was ever sequestered. Before any sequestration was attempted to be made the in. solvent died and no sequestration of his estate was made. This is borne out by the evidence of the assignee that he was in possession of the property in question as administrator of the estate of Rama- uaden, who was Johannes Perera's lessee, and that he was never in possession as the assignee of the insolvent estate of Johannes Perera." The defendant appealed from the judgment of the District Judge upholding the plaintiffs' claim. The appeal was first argued before Cl,AKENCB and DiAS, JJ., on May 12, Grenier,A.-G., appearing for appellant, and Dornhorst ( VanLangenberg with him) for respondent. But their L,ordships having differed in their opinions it was re-argued before the Full Court on June 5, 1891. /. Grenier for appellant. By virtue of section 71 of the Insolvency Ordinance the property of Johannes Perera vested absolutely in the assignee. So held by the English Courts under the corres- ponding section of the Knglish act (12 and 13 Vict, cap. 106 s. 142) Cooper v. Chitty. i Bur. 20; Cannan V. South Eastern Railway Company, 7 Kxch. 843 ; Carlisle \.\Garland 7 Biug. 298. No fact divestitive of the assignee's title has been established, and therefore the plaintiffs, who claim as heirs of Johannes Perera, and who suing in ejectment must succeed on the strength of their title, fail m their action. Dornhorst ( Withers with him) for respondent. It is not contended that the property did not vest in th.i assignee. But to what extent did it vest ? It is sub- 64 THE CEYIvON LAW REPORTS. [Vol. I., No. i6. niitted, only for the purpose."! of the trust and not absolutely. The property not having been dealt with by tue assignee at all, it must now be presumed that that purpose was satisfied, and the property reverted to the plaintiffs, who are heirs of the original owner. Further, it is submitted that the lands in question not having been sequestered in the insolvency proceedings, as found by the Dis- trict Judge, the right of the plaintiffs to them continued, and they rightly claim the same against the defendant, who has no colour of title whatever. Cur. adv. vult. On June 9, 1891, the following judgments were delivered : — BURNSIDE, C J.— I vpas not present when this case was first argued in appeal on the demurrer. The only point raised at the argument before me was upon the question whether Perera's heirs could claim title upon which to sustain ejectment, he having been declared insolvent. On the facts disclosed in the evidence it is abundantly clear that Perera was declared insolvent, and assignees to his estate were appointed as far back as 1871, and there- upon by the operation of section 71 of the In- solvency Act these very lands vested in his assignee or assignees in succession, and not only l^erera himself, but his heirs ceased to have any interest in them. It was argued that as the title of the assignee was only for the benefit of the creditors, and as so long a period had elapsed without the assignee having disposed of or dealt with the lands for the purposes of the trust, it must be presumed that the terms of the trust had beeu satisfied and that the lands had thereupon reverted to the heirs of the original owner. There is no principle of law for such a presumption, and it is against prin- ciple. The title to the land having once vested iu the assignee, it could not be divested except by des- cent or devise or con veyance or prescription . There is no contention that it became divested by either of the first three modes. No doubt the heirs, like anybody else, might acquire title by prescription agaiust the assignee ; but there is no proof of such title, nor is it relied on. It is clear, therefore, that Perera's heirs ^M(Z heirs had no title as against the assignees of their ances- tor's estate; and although the defendant may be a wrong-dier, his possession is good against all the world except the actual owner. I see no objection to the proposed order as to costs, if it be possible to separate them in accord- ance with the issues raised. Clarence. J.— This is an action by the heirs of one Johannes Perera, who died in 1872, to eject the defendants from a house and land in Colombo. It is not now disputed that Perera was the owner of this property in 1854. In January of that year Perera leased the premises to one Kamanaden for a term of 30 years. Ramanaden died soon after his entry under the lease, and the premises were thenceforward occupied by persous claiming un- der Ramanaden. Since the expiry of the lease the premises have been in the occupation of the present defendant and of persons under whom defendant claims, all of whom are eu tire strangers to the title. The plainlilis were minors until recently. No title has beeu acquired as against Perera's represeulatives by prescription. The learned Disirict Judge has uplield tlie plainliflfs- claim, and from this judgment the defendant appeals. The appeal was pressed on the strength of certain technical objections to the averments of title con- tained in the plaint, which, it was contended, the learned District Judge should have upheld upon defendant's demurrer. It is unnecessary for us to expend time upou the consideration of those objec- tions. Assuming for the sake of argument mat they were well lounded, the demurrer would, under the circuiUaLauces, have beeu allowed only with leave to amend, and it was admitted by Mr. Attor- ney upon the argument of this appeal tliat the evidence establishes the chain of tiile disclosed in the libel. It is admitted that Perera owned and that plaintiffs would inherit from him. But there is another point made in defendant's answer and iu the petition of appeal, which we cannot disregard, though it was hardly noticed at the first argument iu appeal. Perera was declared insolvent iu 1871, and it is suggested that the title to this property having passed by virtue of his insol- vency to his assignees in insolvency, the plaintiffs have no title by virtue of which they can eject these defendants. However disinclined we may be to favour this contention raised by persons in the position of these defendants, who are absolute wrong-doers without any colour of title whatever, it is true thas the plaintiffs can only succeed in this action by shewing title in themselves. I cannot agree with the learned District Judge that in order to create title in the assignee under the insolvency it was necessary that any formal sequestration of the property should have emanated from the Dis- trict Judge. Section 71 of the Insolvency Ordi- nance declares that after the adjudication all the insolvent's interest in his lands becomes abso- lutely vested in the assignee. But so far as appears, Perera's assignees, for reasons of their own which might or might not bear scrutiny, seem to have Printed a't the "Ceylon Examiner" Press, No. 16, Queen Stree'J", Fort, Coi.ombo. Vol. I., No. 17.J THE CEYI^ON LAW REPORTS. 65 foreborne to realize this asset of their insolvent's estate. Don Sebastian, a witness called for the defence, deposed that he was assignee under the insolvency up to 1881, when another person was appointed in his room. I fail to gather from the materials in the case anything either in the nature of adverse possession, adverse to the title of the assignee, within the meaning of the Prescription Ordinance, or otherwise, which can serve to revest in Perera's heirs the title, of which Perera became divested by his insolvency. Plaintiffs are put to the proof of their title, and can only succeed by showing title. The insolvency and appointment of successive assignees are proved. The result is that plaintiffs do not establish title. I think therefore that plaintiffs' action fails, and defendant is entitled to judgment; but in dismissing plaintiffs' action with costs I would distinguish costs incurred by plaintiffs in establishing, in consequence of defend- ant's denials, the title of Perera and the status of plaintiffs as Perera's heirs. If these costs can be separated, plaintiffs should have'their costs of this appeal. DiAS, J. — After hearing the last argument 'and reading the opinions of my learned brothers, I agree to reverse the judgment. Present :—V)\kS,, J. [March, 28, 1890.) Jurisdiction — evidence heard by two Magistrates — that for prosecution by one, and that for the defence by the other — decision by the latter— practice— Criminal Procedure Code, section 19. In a summary trial, where one Magistrate heard the evidence of the prosecution, and another Magistrate, his successor, heard the evidence for the defence and decidtd the case upon the whole evidence, — Held, the second Magistrate had jurisdiction, under section 19 of the Criminal Procedure Code, to try and decide the case upon the materials recorded by his predecessor and himself. The defendant appealed from a conviction. The facts relevant to this report appear in the judgment. VanLangenberg for defendant appellant. DiAS, J.— On the merits the Police Magistrate has arrived at a correct conclusion, and the only question which was pressed in appeal was, whether or not the Police Magistrate had jurisdiction to try and decide the case on the materials before him. The proceedings were initiated by Mr. Bell, Police Magistrate, who, after hearing all the evidence for the prosecution, adjourned the further hearing for the evidence of the accused. In the meantime Mr. Bell ceased to be the Police Magis- trate, Mr. Cooke having taken his place. All the evidence for the defence was heard by Mr. Cooke, who finally decided the case. It was objected for the appellant that the Magistrate acted without jurisdiction, inasmuch as he had heard no part of the evidence for the prosecution, and the 19th section of the Procedure Code was cited in support of this proposition. I apprehend that the words of the section relied on are the words "on tlie evidence partl5' recorded by such first-named Police Magistrate and partly recorded by himself". These words do not seem to me to require the last, and the deciding Magistrate to hear at least part of the evidence for the prosecution. This section was evidently intended to avoid a diflSculty which had previously existed by the change of Police Magis- trates, and I think the section is large enough to embrace this case, in which the last and deciding Magistrate had only heard the evidence for the defence. It was mentioned at the Bar that there was some decision of this Court upholding the view of the appellant's counsel ; but no such case having been produced, I am unable to say what that decision is. -: o :- Present .—'DlAS, J. [August z"] and September 18, 1890.) °- ^No^^Msi^.^'"'^' 1 APPUHAMY V. SITENGIRALE. Stamps -process — verification of service— affidavit of identity — Stamp Ordinance No. 3 of 1890, Schedule B, Part II. When process has been served on a person pointed out to the officer serving the process, the affidavit of identity to be sworn by the party so pointing out Ihe person for service is not "an affidavit for verifying service of, process" within the meaning of the exemp- tion mentioned in part II. of Schedule B to the Stamp Ordinance of 1890. and therefore requires to be stamped. A rule to revive judgment was issued, and served by the Fiscal on a person pointed out as one of the defendants by the plaintiff. In moving to make the rule absolute, plaintiff submitted an affidavit of identity of the person so served with the rule. The Secretary submitted to the District Judge that the exemption in the Stamp Ordinance should be restricted to affidavits of service by Fiscal's officers and should not be extended to affidavits of identity sworn to by others. The District Judge [P. Aru- nackalem) however thought the affidavit came within the exemption, and accepted the affidavii and made the rule absolute. Thereupon the Attorney-General moved in the Supreme Court for 66 THE CEYLON LAW REPORTS. [Vol. I., No. 17. revision of this order under section 753 of the Civil Procedure Code. Fisher, C. C, for the Attorney- General. Cur. adv. vult. On September 18, 1890, the following judgment ■was delivered : — DiAS, J. — This case was brought before me under section 753 of the Civil Procedure Code, for the revision of an order of the District Judge of the 22nd August made under the following circum- stances. A rule was issued to the defendants to be served through the Fiscal as usual ; but the Fiscal not being personallj' acquainted with one of the defend- ants, Kiri Menika, he served the rule on a person pointed out to him as Kiri Menika, and made his return to the Court accordingly. On the 18th of August the plaintiff moved that the rule might be made absolute, when he was required to produce an affidavit verifying the service of the rule on Kiri Menika. Accordingly, on the 22nd August, plaiiitiflF produced an affidavit written on paper not dulv stamped, when the Secretary of the Court pointed out that, under the Stamp Act 3 of 1890, the affidavit required a stamp. The District Judge, however, thought otherwise, and accepted the affidavit and acted upon it. The District Judge relied on the exemption under part II. of the Stamp Act, which exempts from stamps all affidavits or affirmations for the verification of service of process. Mr. Fisher, Crown Counsel, contended, as did the Secretary of the District Court, that that exemption only applied to Fiscal's officers, and not to out- siders, such as the person who swore the affidavit in question. I cannot subscribe to this argument; but the objection to this affidavit is quite of a different character. The process was served by the Fiscal's officer, who was not personally acquainted with the person served, and the affidavit of a third party was required to fix the identity of the person on whom such process was served, and in this view of the matter I am of opinion that the order of the District Judge is erroneous and must be set aside. Present .•— Cl,ARENCE, J. % {November 20 and 23, 1888.) D. C. Colombo. 1 Adamjee v. Cader Lebbe. No 08 0^1 ^^^"^ ESSAJEE, Claimant appel- ^ ' ^ ' I lant. Costs— taxation of— class of the case— incidental pro- ceedings — scale of costs— practice. When costs have been awarded in an incidental Eroceeding in au action, such as the matter of a claim y a third party to funds in deposit, the costs should be taxed, not according to the amount involved in the incidental proceeding but according, to the class of the original action. The plaintiff's action was for the recovery of a sum of Rs. 734'97, and was therefore an action in class II. according to the classification of actions in the District Court. There being a sum of Rs. 800 in deposit, there was, in February, 1888, a contest between plaintiff, the claimant appellant, who was execution creditor of defendant in another action, and two others, as to this sum; and the plaintiff having been defeated in this contest, was condemned to pay costs of the appellant and the other claimants. In June, 1888, the appellant, with notice to the plaintiff, submitted for taxation a bill of costs according to the scale of charges in an action of class III; the plaintiff was absent at the taxation, and the Secretary taxed the bill as in a case of class III. Subsequently, in October, 1888, after appellant had issued writ for the recovery for the amount of costs taxed, the plaintiff applied to the District Judge to review tlie taxation. The District Judge (C. L. Ferdinands) ordered the bill to be re-taxed in the second class, remarking that "the sum demanded in the libel at the date of its being filed was one coming under the second class, and consequently the bill should be taxed in that class", and he relied on the decision in D. C. Colombo, No. 92,072.* The claimant appealed from this order. Wendt {Morgan with him) for claimant appellant. Ramanathan {Pereira with him) for plaintiflf res- pondent. Cur. adv. vult. On November 23, 1888, the following judgment was delivered : — Clarence, J.— The first question to be decided on this appeal is, whether respondent, not having attended the taxation after notice, was rightly allowed to have the taxation reviewed by the Court in October. I cannot say that the District Judge was wrong in thus allowing respondent's applica- tion to have the taxation reviewed. No special time is limited by the Rules and Orders for refer- ences from the officer to the Judge in matters of taxation ; and the notice of taxation was framed so as to lead respondent to suppose that the costs were to be taxed in the class of this action, viz., the second class. When respondent discovered that the costs had been taxed in the third class, he brought the matter before the Judge, and I cannot say that the Judge was wrong under the circum- stances m entertaining it. • D. C. Colombo, ) „, No. 92,072. ] WIJERATNE v. MENDIS. isSff^r. ^^' '^5-- ^^*S' J-The intervenient fnto . ^^ff ^^\ ^"^","* °* *»is claim brings him Wll^f "^'f^^'^nt and lower class. The plaintiflPs fLl»^ J f^® *® against the intervenient should be taxed in the same class as the case Vol. I., No. 17.J THE CEYLON LAW REPORTS. 67 This was an action in the second class, in which a sum of Rs. 800 got into Court, to which sum, in the events which thereafter happened, the defend- ant became entitled. Several parties, in the charac- ter of judgment creditors of the same defendant in other actions, have been endeavouring to obtain payment of their judgments from this fund. The application out of which these costs were made payable by respondent to appellant was distinctly made and entitled as an application in this action ; and although it so happens that the fund about which the several parties were struggling is a trifle over Rs. 750, which is the superior limit of ■ the second class, I think the District Judge was right under the circumstances in directing the costs to be taxed in the class of the action in which the application was made. I may point out that although the respondent has taken no objection on that score, the appellant seems to have got more on the taxation than he was entitled to ; for the taxing officer has allowed the costs of two Counsels, when, so far as I can see, the matter would carry only the costs of one. Preseni -.—BVRNSIDE, C. J. {jfune II and 17, 1891.) C. R. Haldummulla, ) No. 17. j MUDAI,IHA.MY V. APPUHAMY Ejectment — issue of title— party in possession — burden of proof^evidence. In an action in ejectment, where the plaintiff is proved to have been in bona fide possession of the land at the time of ouster, the burden lies on the defendant to prove that he is owner of the land ; and in the absence of such proof the plaintiff is entitled to judgment without proof of his title. This is an action in ejectment. The plaintiff alleged title to a chena by purchase, and averred that he was in possession thereof since his purchase, and that defendants on a certain day encroached upon and took possession of a portion of the land. He prayed for a declaration of title and for dama- ges. The defendants denied plaintiff's title and the possession alleged and averred title in themselves. At the trial, the plaintiff, who began, led evidence in proof of his title and possession. But the Commissioner was not satisfied with this evidence, and held that plaintiff had failed to prove his title or possession, and dismissed the plaintiff's case. The defendants led no evidence at all. The plain- tiff appealed from the judgment of dismissal. Wendt for plaintiff appellant. Samfayo for defendants respondent. Cvr. adv. vult. On June 17, 1891, the following judgment was delivered : — BuRNSiDE, C. J.— The Commissioner has gone wrong in this case, because he erred in his judg- ment as to where the burden of proof lay. The plaintiff was in the bona fide possession of the chena in question, and had cleared it for sowing, when the defendant entered upon it, sowed it, and put the plaintiff out. Now, prima facie, the plaintiff having been in possession, he was entitled to keep it against all the world but the rightful owner ; and if the defendant claitned to be that owner, the burden of proving his title rested on him, and plaintiff might have contended himself with proving his de facto possession at the time of the ouster. But he has chosen to give a body of evi- dence going to show that he was not only in possession, but has acquired title by prescription and purchase. The Commissioner does not think his evidence satisfactory as to title ; nevertheless, as I have said, the actual possession being proved, it threw on the defendant the burden of proving title in himself, and he has not attempted to do so. Therefore the plaintiff was entitled to judgment, and the case will be sent back in order to enable the Commissioner to decide the latter part of the first issue as to damages. i'r«««^.-— Clarence, J. {fune 4 and 25, 1891.) D. C. Galle ) (Criminal) I DiSSANAYAKE v. BASTIAN and others. No. 11,861. ' Grievous hurt— permanent impairing of the eye — Ceylon Penal Code, section 311 — evidence. The eye is not a "member or joint" within the meaning of sub-section 5 of section 311 of the Penal Code so as to make permanent impairing of the eye grievous hurt. Nor does the permanent impairing of the eye with- out actual privation of sight constitute grievous hurt within the meaning of the said section. There were five defendants in this case, of whom the first four were charged with voluntarily causing hurt by means of sticks, and the fifth was charged with causing grievous hurt by injuring the eye of a certain person. The medical evidence as to the injury to the eye was that it was permanently impaired. The defendants were convicted of the charges severally made against them, and they appealed. Dornhorst for the first four defendants appellant. VanLangenberg for the fifth defendant appellant. Hay, A. S.-G., for respondent. Cur. adv. vult. 68 THE CEYI.ON LAW REPORTS. [Vol. I., No. 17. On June 25, 1891, the following judgment was delivered : — CiiARENCE, J.— I see no occasion to interfere in this case, save as regards the 5th defendant, James. He has been convicted of voluntarily causing grievous hurt. The evidence, however, does not in my opinion establish that the man, whose hurts Dr. Huybertsz described, had sustained grievous hurt. It was argued on behalf of the Crown that the permanent impairing of the sight of an eye, which Dr. Huybertsz anticipated, satisfied the definition of grievous hurt, and iMr. Solicitor relied on the 5th clause of section 311 of the Code. I do not think that the eye is a "member or joint" within the meaning of clause 5. The eye is dealt with in clause 2, which declares that "permanent deprivation" of the sight of an eye is grievous hurt. As I read section 311, perma- nent impairing of the sight of an eye is not enough. I alter the conviction fn sth defendant's case to one under section 314, and the sentence to the same as that imposed on the defendant Bastian. i'>-«e«^.-— BURNSIDE, C. J. {June 25, 1891.) P. C. Ratnapura, ( ,, No. 6,671. j MODDER V. SENATAMBY. Plaint— charge— possession of false weights-' fraudu- lently"— Ceylon Penal Code, section 2$'^— Ordinance No. II of i&8t, sectioti 1— evidence. Since the Ordinance ir of 1887, in a charge of possession of false weights uuder section 2=iq of the Penal Code, it must be alleged i„ the plaint and proved that the defendant possessed the weights in- tending that the same may be fraudulently used. In a case where the Magistrate has not framed a charge but convicts the defendant on the plaint of the complaining party, the Supreme Court would not amend a defective plaint by inserting necessary words so as to make it disclose an offence. The facts of the case appear in the judgment of the Chief Justice. The defendant appealed from a conviction. Dornhorst for defendant appellant. BURNSIDE, C. J.— This case forcibly illustrates the misAief which is ensuing, and will ensue, from a want of precision and a looseness in summary proceedings before Magistrates. The complaint on which the accused was prose- cuted discloses no offence at all. The Magistrate has not framed a charge, nor has he recorded a conviction of any particular offence, but sentences the accused to rigorous imprisonment for a month I and to pay a fine of Rs. 100 under 25gth section of the Penal Code. The section in question is one which has experienced some vicissitudes. As originally prepared and submitted with cognate clauses to the I^egislature, it made it penal for any one to possess any "weight or measure which he knew to be false and intended to be fraudulently used". In the process of gestation in the Legis- lature, the words "which he knew to be false" and also the word "fraudulently" were deleted, and so the section when it was matured into law made it penal, say, in the owner of a Museum, and for which he waj liable to one year's rigorous imprisonment and indefinite fine, to be in possession of a false weight, although he might not have known that it was false and only lent it as an article of curiosity. However, after the lapse of four years, it would seem to have been concluded that this was not an enactment which the exigencies of crime called for, or perhaps it may have been decided that it was not precisely what the Legislature meant, and an amending Ordinance No. 11 of 1887 was passed, which restored the word "fraudulently" to this and the other clauses wherever it had been deleted four years ago, but yet the other important words "which he knew to be false" were not referred to, and are still conspicuous by their absence. Now, the complaint in this case takes no notice of the Ordinance ti of 1887. Perhaps the Police Magistrate overlooked it, or thought it unnecessary, but he follows the disabled words of the Code, and does not allege that the defendant either knew that the measure which it is alleged he possessed was false, or that he intended that it should be fraudulently used. It is a matter of public con- gratulation to be able to say that the mere poss- ession of a false weight is no longer an offence. Therefore, the accused could not be convicted, with serious penal consequences, of the alleged offence contained in the complaint. The Magistrate has not framed any charge. I cannot amend the plaint by inserting the word "fraudulently", because the complaint is the statement by the complainant of his wrongs, and I have no information upon which I could act as prosecutor and make myself a complainant ; and even if I did, I could not send the case back and tell the Magistrate to frame a charge upon the revivified complaint, because in go- ing through the record I find not a tittle of evidence that the defendant knew the measure to be false, and unless he knew the measure to be false I do not see how he could have intended it to be fraudulently used ; but the Legislature has assumed that he may, and it will be my duty to decide that point with the able assistance of Counsel, when it arises, but happily for me it does not arise in this case, and so it is my duty to acquit the accused, or, rather to say, I remit the sentence because he has PRINTED AT THE "CeyLON ExAMINER" PrESS, No. i6, QlJi^iT^T, FoRT. Coi,OMBO. Vol. I., No. 18.] THE CEYLON LAW EEPORTS. 69 been convicted of no offence, and it ought necessarily to follow that he has incurred no penalty. I find that the prosecutor produced two cases to the Magis- trate in which the accused had been previously convict d, both convictions being after the passing of the Ordinance 11 of 1887, and in neither was any noticu taken of Ordinance 11 of 1887. The defend- ant pleaded guilty in one case and appealed in the other, and I feel bound fco s ly that the sentence of conviction was affirmed, but the punishment was materially miugated by this Court. In neither of these cases, either in the plaint or in the charge, was it alleged that the accused knew the weight to be false, or that he intended to use them fraudulently. Consequently punishment was imppsed on convictions which on their face disci used no offence. -: o:- Present: — Burnside, C. J., and Clabence and DiAS, JJ. {June 30, Mid July 22, 1891.) D. 0. Anuradhapura, ) , „ jsJq |Q ' j Appavupillai v. Ferdinand. Prescription — acknowledgment of debt— promise to pay— Ordinance No. 22 o/"l871, section 13 — seiletnent of issues^p leading. Under section 13 of the Prescription Ordinance of 187 1, an acknowledgment, to take a case out of pres- cription, must not only admit the debt to be due, but must involve an unconditional promise to pay or a promise to pay on a condition which has been fulfilled. Where after a plea of prescription had been put in, the plaint was amended by inserting an allegation that the defendant had within the prescriptive period acknowledged the debt and promised to pay it and no further pleading was put in by the defendant by way of answer to the amended paint.— Held, per Burnside, C. J., that, although the docu- ment upon which the plaintiff relied as an acknow- ledguient to take the case out of prescription did not contain a promise to pay, yet such promise must be taken to have been admitted on the pleadings, and the plea of prescription therefore failed. Observations by Burnside, C. J., on the settlements of issues to be tried by the Court. The plnintiff commenced this action on November 26, 1890, for ihe recovery of money lent to defend- ant in 1883. The defendant pleaded prescription, and thereupon the plaintiff amended the plaint by pleading that by certain letiers written by defendant to plaintifE in July 1889 the defendant had ac- knowledged and promised to pay the debt. The defendant did not amend his answer or file any further pleading. At the trial the District Judge ///■. A. Hellings) recorded that the issue was as to whether or not the claim was barred by prescription under section 8 of Ordinance No. 22 of 1871, and in the result gave judgment for plaintiff. The letters referred to ran as follows : — I am unable to repay you the loan you kindly lent me just now, I shall be glad to give you a pro-note payable three months hence, and I am unable to send you the pro-note to-day as I must go home to refer to your letter for the correct amount to be inserted. I shall be glad to send the note by to-morrow afternoon. The defendant appe led from the judgment of the District Judge. Browne for defendant appellant. Dornhorst for plaintiff respondent. Cur. adv. vult. On July 26, 1891, the following judgments were delivered : — Burnside, C. J. — There cannot be any doubt that the acknowledgment of tlie debt in this c.ise, upon which the plaintiff relied to take the debt out of the statute of prescrif tion, is insufficient for the purpose. The law is too well settled on the point to admit of argument. There must be not only aoknowledo-- ment that the dfbt is due, but an unconditional promise 01 a promise on a condition which has been fulfilled to pay the debt. Now, whilst the letters relied on by the plaintiff ceroainly contain a complete acknowledgment of the debt, there is no promise to pay either conditionally or unconditionally. In fact, the letters appear to me to have been especially guarded, and avoid making an unconditional promise and from the evidence of the def-andant I imply that he intentionally so worded bis letters in order to lull the plaintiff into believing he had made a promise when indeed he knew he was deceiving him. The defendant seems to be utterly unprincipled and dishonest. There is, however, another point which cannot be overlooked, and that is whether the defendant on his pleadings had put himself in a position to contest the ( ffect of those letters. I am sure he had not. After the plaintiff had amended, the defendant put in no further answer. Had he demurred to the amended libel, his demurrer must have been upheld; but he neither demurred to it, nor even answered it at all. Now, take it that the def ndant's plea of prescription was well pleaded to th« plaintiff's claim for money lent in 1883 as set out in the original libel. To that plea the plaintiff by his amendment says : — "Yes, it may have been prescribed, but you afterwards, by your two letters which I produce, promised to pay it." To this allegation the defendant in his pleadings has not demurred, audits sufficiency in law has not been contested ; and not being answered or object d to, it must be taken as admitted on the pleadings. 70 THE CEYLON LAW REPORTS. [Vol. 1., No. 18. I think we should be careful in aid ministering the 'Code not to establish that under it a jndge may settle a?ij/ issues of law or faeb between the parties and proceed to try them. The only issues which he "may settle are those material propositions of law or fact which are affiimed by one si'le and denied by the o;her — I am using the words of the Code— and they must arise on allegations made in the plaint or in the written statements tendered in the suit. iVow, I cannot find that the material proposition of fact made by the plaintiff as to the writing of these letters by the defendant and their sufficiency to take the case out of prescription hns been denied by the defendant or even questioned by him, and I don't think the District Judge had any right to frame an issue of prescription, and in fact there was no issue of prescription tried. The only evidence adduced was that of the defendant, and there is not a word in it on the issue of prescription. In trgth, the Distnct Judge directed his attention to the legal question whether th." letters did not contain a sufficient acknowledgment to take the case out of presci-iption. This was not an issue of fact : it was distinctly an issue of law, and I can't see that the defendant rnised it on his pleadings. It may be that the parties went down to trial to settle whether the debt was prescribed or not, bus that was the fault of the plnintifE's proctor, for which the plaintiff must not be held responsible. Ic seems to me th-it the duty of this Court, now that we have entered upo.i a new era of procedure, is to insist that the recognized system of pleadings, by whi h suit irs sr.ate their wi'ongs and ask for re- dress, and by which defendants are heard in their defence, should be adhered to. The rights of suitnrs have long been seriously jeopardized an 1 too often violated by tie loose and slovenly way in which prooeedi:igs in our minor courts h ive i)een conducted, and for which I am afraid this Appellate Court is not entirely blameless. If it h,id been thought rioht that proceedmgs at law should be free from all the precision and exactness by which alone the parties to a suit may intelligently confront each other before a Court, it would have been easy for the Legislature to have done so. But the Legislature in its latest utterances has prescribed that there should be dis- tinct issues of fact and issues of law in the shape of pleadings: it has given to a particular profession the monopoly of framing these pleadifigs, because of thm- supposed special knowledge of it, and we are thr guardians of the rights of the public in this respect, that whether from the incapacity of those so entrusted or any other cause, no departure should be permitted which lets in uncertainty and confusion in pleading with all its consequent evils to guitors. I would affirm the judgment, not on the grounds stated by the District Judge, but on the grounds which I have stated. Clarence, J. — The plaintiff sues the defendant, who is described as head clerk of the Anuradhapura Ksichcheri, for Rs. 126 money lent. It is admitted that the defendant borrowed this sum from the plaintiff in 1882, and that the money has never been repaid ; but the defendant take his stand upon the Prescription Ordinance, and sets up the statutory bar as his answer to plaintiff's action. Theques'ion which we have to decide upon this appeal is whether two letters which ihe defendant wrote to the plaintiff in 1889 amount to such acknowledgment as can avail to ;ake the case out of the_ O.dinance- There seems to have been some confusion in the pleadings ; hut the plaintiff was allowed to amend his plaint, and the parties ultimately went to trial upon the issue whether there had be.u any acknowledg- ment by defendant, taking the case out of the operation of section 8 of the Prescription Ordinance. The acknowledgment reliel on by plaintiff is contain .'d in two letters which defendant admits having written to plaintiff in July, 1889. Defendant adnaits having contracted this debt and admits that he stil! ovees the debt. He seems to have entertained no scruples as to the means to which he might resort in ordir to defeat his creditor, even to the length of abusing his official poj-ition! He admitted in the witness box that on anoccision when a writ against himself was trans iiitted to Anuradhapura from another court he kept it back f r a year. Ha now, in answer to the present plaintiff's snit to recover his debt, takes his stand upon the ('rescript on Ordinance. If ever there was a case in which we cnuld feel inclined to strain a poinr, t ) overcome the defence of the statuto-y bar, this is that case. But the defendant is within his rights in setting up the Ordinance ; and if the law be in his favour, we a:'e bound to give him the benefit of it. The question merely is, whether the letters which defendant wrote in July, 1889, are enough to take the case out of the Oidinance. As to the kind of acknowledgment necessary to take a case out of the Ordinance, there is no doubt. Under the repealed Ordinance of 1834, which was" based upon the now exploded theory of a presump- tion of payment arising from lapse of time, a mere admission of the existence of the debt sufficed to repel the statutory bar. How the old theory of a presumption of payment was abandoned is a matter of legal history. (See 5 S. C. R. 62.) Under the Ordinance of 1871, section 13 of which incorporates almost verbatim the 1st section of Lord Tenterden's Act, we have to apply the same rule which the ^nghsh Courts apply to cases under the statute of James I, viz., that the acknowledgment, to take a VoL I., No. 18.] THE CEYLON LAW REPORTS. 71 out of the enactment, must iuvolve not merely an admission of the debt, but a promise to pay it. It is hardly necessary to cite authorities upon a matter so well settled. In Tanner v. Smart 6 B. & 0. 603, the well-known case in which the idea of presump- tion of payment was finally abandoned, the words relied on were : " I cannot pay the debt at present, but I will pay it as soon as I can." That was held insufficient to take the case out of the statute with- out proof of the defendant's ability to pay. The late Lord Justice Mellish, in Re River Steamer Company, Mitchell's Claim, L. R. 6 Oh. 828, summarized the law clearly and quoted as accepted authority the exposition by Chief Justice Jervis in his book of "New Rules". There must be some writing containing an express promise on defendant's part to pay the debt or from which an unconditional promise to pay is a necessary inference, or else there must be a conditional promise to pay and p-oof that the condition has been satisfied. If, u& Jervis, C. J., said, the writer, though admitting the existence of the debt, refused to pay it or reserves the matter for future considpration, that is not enough. We must also refer to the late ease of Bethell v. Bethell, I,. R. 34 Oh. D. 565. In the prt!sent case, what took place was this :— plaintiff was pressing dtJ'endant for payment of his debt, and on J'uly 11, 1889, de- fendant wrote to plaintiff : " I am unable to repay you the loan you kindly leui, me just now. I shall be glad to give you a pro. note payable three months hence". The other letter relied on, of date July 29, carries the matter no furt Saunders v. Abeybatnb. No. 135. ) Land acquisition — house or building— compen- sation — Ordinance No. 3 of iSTQ, sections 4 ajid 11— procedure . The provisions of the Land Acquisition Ordinance No. 3 of 1876 are applicable for the purpose of acquiring only land, and not a house or building without the ground on which it stands. In ^ case where the;/ Government had acquired by private contract the site on which a building stood and subsequently instituted proceedings in the Dis- trict Court under the Land Acquisition Ordinance for the purpose of acquiring the building itself— Held that the reference was bad and the Court has no jurisdiction to entertain it. The libel of reference as originally submitted pur- ported to deal with the acquisition by the Govern- 72 THE CEYLON LAW REPORTS. [Vol. I., No. 18. ment of an allotment of 1 md 17 perches in extent, but subsequently it was amended and it then des- cribed the property to be acquired as "a Imilding standing on" the allotment of land in question. It appeared that the Government acquired the land in question by priva'e contract for the purposes of the railway extension, and subsequently wished to acquire also a building which stood thereon. The parties were not aJjle to agree upon the amount of compensation, and these proceedings were according- ly instituted by Q-overnment. The defendant in his ansvver stated that a portion only of the land and building were acquired by Government, and that he and his co-heirs " have sustained considerable dam.ige by reason of this acquisition injnriuusiy affcciing the other portion of the building which have been rendered unsafe and uninhabitable owing to its close proximity to the railway line", and he ple.ided "that the amount of compensation tendered by Government is not fair and reasonable". The answer prayed for a certain sum of money as damiges in addition to the amount of compensation awarded by the Government Agent. The matter was tried by the District Judge with a-sessors. The defendant'cj assessor sustained the contention of the defendant and awarded a higher compensation, but the Govrrnment assessor held that the compensation itwarded by the Governm' nt Agent was correct, and the District Judge agreeing with him gave judgment accordingly. The defendant thereupon appealed, and the Supreme Court set aside the judgment and sent the case back for further inquiry. Clarence, J., before whom the appeal was h ard, after reciting that the property to be acquired was not properly identified in the libel of reference and that it appeared from the proceedings that the property concerned in the reference was in fact a building or portion of a building and that the libel was in the course of the proceedings amended to thateffect, observed, inter alia, as follows: — "The compensation to which this land owner is entitled falls under sub-sections 1 and 3 of section 21 of the Ordinance. He is entitled to the market value of the bungalow and also to damages (if any) sustained by raason of the acquisition in- juriously affecting the building. But this latter head of compensation has to be assigned without reference to aiiy prospective damage arising from the use of tMl acquired land as part of a railway. Sub- section 4 of section 22 is express on that point and in fact merely follows the rulo laid down by the majority of the appellate tribunal in The Hammer- smith and City Railway Compajiy v. Brand, L. E. 4 H. L. 171. We cannot, for instance, take into consideration any contingency for the main premises being hereafter damaged by vibration of the trains running on the railway within a few yards' distance or of any nuisance from the smoke or steam. But if the main premises have been impaired in value by the construction as distinguished from the use of the railway on the piece taken, that would be a proper heud of damage to be assigned under sub-section 3 of section 21." The case having gone back, furcher evidence was adduce.l on behalf of the defendant. But the Govern- ment a'^sessor and the District Juds^e adhered to their former opinions, and the same'order was again made. From this order the defendant appealed. Canekerat7ie {JDornhorst with him) for defendant appcllaiit. Hay, A- S-G., for the plaintiff respondent. Cur. adv. vult. On Juni' 26, 1891, the following judgments were delivered : — BuRNsiDE, C. J. — It is necessary that I shonld state what are the true facts of this case, as there seems to have been a great de 1 1 of misunderstanding, not only as to the position of the Government, but also as to that of the appellant. It appears that a strip of land bfelonging to the defendant, on which a small bungalow stood, had been obtained by the Government for railway purposes by mutual agreement between the defendant, the owner, and the Government ; but for some reason, not very apparent, the bungalow itself was not included in this agreement. Subsequently the Govern- ment pulled down the bungalow, and the parties not agreeing as to its value, this libel of reference was filed by the Government Agent. The libel as origin illy filed referre,d to "land", but it was subse- qu ntly amended by restricting it to the bungalow only, and in my opinion the libel was thus rendered vicious. However, , the defendent appeared and set up several claims for damages as follows. I quote from the answer : — That only a portion of these buildings and of the land upon which ihey stood was required by the Government, tha the defendant had sustained considerable damage by reason of " this ac'pisition injuriously affecting his own part of the building which has br?en rendered unsafe and uninhabitable owing to its close proximity to the railway line— loss of rent from the whole of the buildings since the acquisition — by reason of the acquisition he has sustained loss — and he asks for damages to the extent of Rs. 2,400 in addition to the sum of Rs. 192-50 awarded as compensation for the portion of land acquired by Government. If this answer means anything, it is a claim for damages Pkinted at the "Ceylon Examinee" Peess, No. 16, Queen Street, Fort, Colombo. Vol. I., No. 19.J THE CEYI.ON I.AW REPORTS. n resulting from the acquisition already completed by agreement injuriously aflfecting the remainder of the land, and I. don't think it possible to contend that the defendant in a suit like this can claim such damages. They ought to have been the subject of decision before the land had passed to the Govern- ment. As I have said, in constructing the railway, the building wae pulled down, and ex ;post facto the Government now seeks to acquire it. But the libel as I have said, is radically bad and incurable. The law p-ives the Government no right to acquire buildings without the land upon which they stand, and the libel should have been dismissed with costs, and the defendant left to his legal remedy against the Government fora trespass. Had the Government acquired the land in the usual way, the building would have of necessity gone with it ; but having obtained the land without the building by agreement, there is no provision for obtaining the building alone. Both parties have treated the reference as a good one, and directed their attention to the proof of the actual measure of compensation. The defendant pressed his claim for damages by reason of the severance which had already been accomplished, and further that by the removal of the bungalow the other buildings would be ex- posed to the force of the wind, and would deteriorate in value by loss of rent. Now, even had the bunga- low still been in existence, and this a proper suit to acquire the land on which it stood, I certainly fail to see how the probability of its subsequent re- moval could have been ground for compensation. The claim would come directly within the provi- sions of the Land Acquisition Ordinance, which prohibits taking into consideration "any damage which after the time of awarding compensation is likely to be caused by or in consequence of the use to which the land acquired will be put". The Government would have had a right to pull it down without further compensation, and even to this extent, in my opinion, the defendant had no claim for compensaiion in this suit, and the award of the District Judge on the material value of the building was sufficient. Against this finding the defendant has appealed. I do not see that we can confirm the District Judge's decree awarding any compensation, be- cause all that the Court can award compensation for, is "land", and there is no suit regarding land. I would dismiss the suit altogether, each party paying his own costs, for each has contributed to these misdirected proceedings, and leave them at arms' length to take such regular proceedings as they may be advised ; but we are bound to express our regret that it is possible that such unnecessary expenditure should have been entailed both on the Government and the present individuals which mere ordinary attention would have avoided. Cl^ARENCE, J.— This reference as originally fram- ed purported to deal with the acquisition by the Government of an allotment of land, 17 perches in extent. The libel of reference was afterwards amended, and as amended the property to be ac- quired was described as "a building standing on that allotment of land". That was in facie a good reference. When mention is made of a building being acquired under the Land Acquisition Ordinance, that means the land on which the structure stands plus the structure itself ; but I now learn from the second judgment of the District Judge, which is in question on this apppeal, that the proceedings which have taken place have been of a very extraordinary character indeed. It is almost inconceivable, but it seems that the Govern- ment having acquired by private contract the site on which the bungalow stood, have afterwards resorted to the Land Acquisition Ordinance in order to acquire, as it was supposed, the right to deal with the structure itself. Incredible as it may appear, the judgment of the District Judge shews that this is what has happened, and this in fact is admitted. I should have been glad if we could, by merely dismissing this appeal, and leaving parties to bear their own costs, have ended the matter, but we cannot do so, because only "land" can be acquired under the Ordinance, and there is no laud left to acquire. We can only quash the whole proceed- ings and leave the parties to bear their own costs. When the first appeal was disposed of, all costs were left over as costs in the cause. Our order will now be that each party do bear his own costs throughout in either Court. DiAS, J.— The proceedings in this case are grossly irregular, as pointed out by my learned brothers. I would quash the proceedings, each party paying his own costs. Present :—Qx,^-RS,^Q^, J. (May 21 and June i^, 1891 J C.R. , Batticaloa, ) Brown v. Kantappen and three No 129. j others. Cause of action— usufructuary interest in paddy land- Payment of grain tax by the usufructuary on seizure of land— Liability of owners to repay the amount of tax so paid — Implied premise to pay. The defendants, owners of certain paddy land, to a share of the produce of which the plaintiflf was en- titled, having made default in payment of the grain tax due to Government, the land was seized by Government, when plaintiflf paid the amount of tax due and released the laud. 74 THE CEYLON LAW REPORTS. [Vol. I., No. 19. Held, that the law would imply a promise on the part of defendants to reimburse plaintiff their proportion of the tax so paid, and that the pliiutiflF could recover such amount in an action for money paid. Tlie original owner of certain paddy land gifted it ta a certain party, from whom the defendants de- rive their title, subject to a condition that the plaintiff and his sister should have half of the ••niuttattu" share of the land. The defendants, as owners, cultivated the land for the years 1887 and 1888, but made default in the paylnent of the grain tax due under the Ordinance No. 11 of 1878. The Government then seized the land ia respect of the tax, which amounted to Rs. 64-14, and adver- tised it for sale, when the plaintiff, in otder to save the land from sale, paid the amount to Gbvernment. The plaintiff now sued the defendants for recover- ing the amount as money paid on account of defend- ants. The Commissioner (F. J. De Livera) dis- missed the plaintiff's action on the ground that the payment was not made "at the request of or for the benefit of the defendants". The plaintiff" thereupon appealed. Dvrnhorst for plaintiff appellant. Layard, A. A. G., for defendants respondent. Cur. adv. vult. On June 4, 1891, the following judgment was delivered : — Clarence, J.— Upon the facts admitted by defend- ants, and those proved by plaintiff', I am of opinion that plaintiff" is entitled to judgment. The defend- ants are the owners of the land, subject to the plaintiff's right to a certain share of the produce wliich the parties style the "muttattu" share. The defendants not paying the tax due under the Grain Tax Ordinance 11 of 1878, the land was seized bv the Government and advertised for sale, when plaintiff, in order to prevent the sale of the land paid the tax, amounting to Rs. 64-14. i am of opinion that under these circumstances the law implies a promise upon the defendants' part to reimburse plaintiff. 1 think that the case falls within the principles laid down \\\Exall\. Partridge 8 T. R. 308, SinA Johnson v. Hoyal Mail Steam Packet Co. L. R. 3 C. P. 45. A suggestion, I cannot call it more» appears to have been thrown out for the defence, that defendants deliberately abandoned this land as not worth cultivating or paying tax for. I do not find it necessary to consider hove far such a circumstance, had the fact been established •would have gone to negative the inference of an implied promise to reimburse plaintiff", because no evidence was adduced for the defence to establish any such circura-stance. All that is disclosed is, that this is paddy land in which defendants and plaintiff" were interested, AnAprima facie I take it that the land which appears to have been in cultivation up to the year for which plain- tiff" paid tax, was worth saving. The judgment will be set aside, and the case sent back to the Court of Requests, in order that an apportionment may be made showing the propor- tion of the Rs. 6414 which plaintiff" is entitled to recover from defendants, for part of the Rs. 64-14 is. to be considered as paid on plaintiff's own account. Plaintiff will have his general costs of suit up t6 this date, including his costs of this appeal, but excluding the costs of a postponement made on his, account in which he was specially cast by the Com- missioner at the time. P^ej^w/.-— Clarence & Dias, JJ. D. C. Badulla, No. 115. (August 14 and 18, ilSgi.^ i Sevalingam Kangany Kumarihamy. Civil Procedure— Action to recover debt due by an intestate —Adntinistration— Civil Procedure Code, sees. 547 & 642 — Ititerpretation. Sec. 547 of the Civil Procedure Code, disallowing actions for the recovery of auy property belonging to the estate of a deceased person exceeding in value Rs. 1,000, unless probate or administration has been taken out, refers only to actions on behalf of the estate— actions brought to recover for the estate and those entitled to it anything claimed as belonging to or due to the deceased person, and is inapplicable to actions broijght by a creditor to recover a debt due from the deceased person. The plaintiff" was creditor of one Loku Banda upon a mortgage bond. Loku Banda having died intestate, the Court, on application by plaintiff" under the provisions of sec. 642 of the Civil Proce- dure Code, appointed the defendant to represent Loku Banda's estate for the purposes of action to be brought by plaintiff upon the mortgage bond. The plaintiff" accordingly brought this action, and the defendant being in default of appearance the case was heard ex parte and a deciee «w was en- tered for the amount claimed. But on the day fixed for shewing cause against the decree nisi the defendant appeared, and opposed the decree being made absolute, on the ground that the estate of Loku Banda was above the value of Rs. 1,000. Upon this, some evidence was taken as to the value of the estate, and the District Judge (G. A. Baum- gartner), finding the estate exceeded in value Rs. 1,000, held that sec, 642 of the Code did not prevent the full operation of sec. 547, and that where the value of the whole estate was found to be above the required value, a(}nJinistration must be taken out to the estate, even for the purpose of re- covering a mortgage debt due from the deceased V^l. I., No. 19-] THE CEYLON LAW REPORTS. 75 person, and he proceeded to "absolve defendant from the instance with costs". The plaintiff thereupon appealed. vanLangenberg for plaintiff appellant. Cur, adv. vult. On August i8, 1891, the following judgments were delivered : — CLARENCE, J.— This is an action by a mortgagee to recover the mortgage debt. The mortgagor having died intestate, and no letters of administra- tion given or taken out by any person, plaintiff accordingly seeks to avail himself of the procedure provided by sec. 642 of the Procedure Code. Upon the mortgagee's application by petition under that sec- tion, the District Judge appointed the widow of the mortgagor to represent the estate of the mortgagor for the purposes of the action, the petitioner stating that the value of the mortgaged property is under Rs. 500. The mortgagee then filed his plaint against the representative so appointed, and prayed for judgment on the mortgage. The defendant so sued being in default, the District Judge entered a decree nisi for plaintiff, but afterwards, upon plain- tiff's application to have that decree made absolute, the defendant appeared, and opposed the applica- tion, taking up the ground that the mortgagee's estate is over Rs. 1,000 in value, and contending that that beinjr so the Court was precluded by sec. 547 from entertaining the mortgagee's present pro- ceeding, no administrator having been appointed. The District Judge upheld the objection, and the plaintiff appeals. The District Judge has entirely misapprehended the effect of sec. 547- The District Judge in his judgment interprets that section as follows :— "Sec. 547 says that no action shall be maintain- able for the recovery of a debt from an intestate's estate without administration if such estate exceed Rs. 1,000 in value." The section does not say that. What the section does say is, "no action shall be maintainable for the recovery of any property belongirig to or included in the estate or eflects of any person when the estate exceeds Rs. 1,000, unless probate of a will or letters of administration have been taken out". This obviously refers to actions on behalf of the estate, actions brought to recover for the estate, and those entitled to it something claimed as belonging toor due to the deceased person. The section has nothing whatever to do with actions by a creditor to recover a debt due from the defceased person. This was the only ground of opposition noted as shown by defendant in answer to plaintiffs motion to have the decree nfsimsAt absolute. I have looked through the paper-book, but though I find a journal entry that a decree nisi was entered up on April 14, 1 cannot find the decree itself. The order in appeal may be simply to set aside the order of the District Court appealed from, and remit the case to the District Court for further proceedings in due course. The District Judge will of course bear in mind the provisions of sec. 201 with regard to mortgage decree. The defendant will pay the plaintifTs costs of the opposition in both Courts. In , setting aside the judgment entered up by the District Judge we may point out that since the enactment of the Procedure Code a judgment "absolving the defendant from the instance" is not judgment that can be passed. DiAS, J., concurred. -: o :- i'rwew^:— BURNSIDE, C. J., and CLARENCE & DiAS, JJ. (June 2,oand July 22, iSgi.y D.C., Batticaloa, No. 108. KANAPADIAN V, PlETERSZ. Civil Procedure— Pleading— Averments in pleadings- Action of title to land— Necessary averments in plaint — Civil Procedure Code, sec. ^o—List of documents an- nexed to plaint— Admissibility of— Evidence. Under sec. 40 of the Civil Procedure Code, ia an action for title to laud, it is not enough merely to aver ownership, but the pleadings must particularly dis- close the title by which such ownership is claimed. Where a plaintiff, in an ejectment suit, did not set forth in the plaint the facts relied on as establishing his title or refer to any documents for that purpose, an 1 where he subsequently filed a list of documents relating to his title, — Held, that the documents were inadmissible in evidence in the absence from the plaint of allegations- as to title, to which they were applicable. This was an action in ejectment. The facts of the case are sufficiently disclosed in the judgment of Clarence, J. The plaint alleged that "he was at the time of the grievances hereinafter complained of, and still is, the lawful owner and proprietor of an undivided share cultivated in tattumaru in extent 25 marcals out of the paddy land called Pariakalmunai Veli at Kalmunaikandam in Batticaloa within the juris- diction of this Court, bounded," &c. It proceed- ed to aver that the plaintiff "cultivated the said 25 marcals of the land for 1889, and rais- ed a crop, and that the defendant, well knowing the premises did in the montli of May, 1889, 76 THE CEYLON LAW REPORTS. [Vol. I., No. 19. unlawfully enter into the said land and remove the crop raised, and unlawfully ousted the plaintiff", and it prayed for declaration of title, and for eject- ment and damages. The answer denied that plaintiff was owner as alleged, and denied the trespass. The answer then proceeded to aver title in defendant himself, and possession on his part. The plaint as originally filed did not contain a list of documents, but subsequently plaintiff moveff to be allowed to amend the plaint by inserting such a list, and the motion, though opposed by defend- ant, was allowed by the District Judge. The list of documents so added contained inter alia a deed of transfer in plaintiff's favour, and a deed in favour of the grantor to plaintiff. At the trial the plaintiff called certain witnesses, and tendered in evidence the documents in question, which were, however, objected to on the ground that the plaintiff's title was not disclosed in the plaint. The District Judge upheld the objection and rejected the documents, and in the result dis- missed the plaintiff's action. The plaintiff there- upon appealed. Dornhorst for plaintiff appellant. Layard, A. A. G., for defendant respondent. Cur. adv. vuU. On July 22, 1891, the following judgments were delivered : — BURNSIDE, C. J.— This judgment is in my opinion right, and should be affirmed. The plaintiff alleged that he, being the owner and ■in actual possession of an undivided share in cer- tain land cultivated in tattumaru, and the defend- ants reaped the crops, and keeps the plaintiff dis- possessed. The defendant denied the plaintiff's title and the plaintiff's possession. These are distinct issues on which the burden was on the plaintiff. To get ejectment and a decla- ration of title, he was bound to prove good title. To get ejectment he was bound to prove an ouster from actual possession, unless the defendant could show title. It is unnecessary that we should con- sider th«pleadingsby the light of the Code, because it is clear that the burden of the issues was on the plaintiff, and even with his documents subsequent- ly inserted in his list of documentary proof, he has clearly failed to shew title in himself as a tattumaru owner, and he was clearly disproved that he was in sole and undisputed possession, because he him- self says the defendant cultivated the land last year and took the crop. He has therefore failed to prove title, and he has failed to prove a de facto possession, which put the defendant to any proof of title in himself, and the action has been properly dismissed with costs. The plaintiff has chosen to state his cause of action in a particular way, and I see no reason why he should be allowed to begin again. I would affirm the judgment. Clarence, J.— in this action the plaintiff sues t6 recover from the defendant possession of an un- divided share of land ; but the action is in the nature of an action to eject, and not a merely possessory action. Plaintiff, on the strength of an averment that the title is in him, and that defendant is in possession, asks to be declared entitled, and to be placed in possession. The action was instituted in November, 1890, and the plaint avers that plaintiff was in May, 1889, and still is the owner of the share in question, and that defendant then unlawfully took the crop which plaintiff had raised, and conti- nues to keep plaintiff dispossessed. The proctors for the parties as well as the District Judge seem to have misapprehended the nature, and effect of the New Procedure Code as to pleadings. The plaint averred merely that plaintiff had title in May, 1889, but did not disclose how that title arose. In this respect the plaint was defective. It is plain that where title to land is a circumstance upon which plaintiff bases his claim to relief the intention of the Code is, that that title should be disclosed in the plaint, so that the defendant may have notice of the case which he has to meet. Sec, 40 of the Code requires the plaint to contain "a plain and concise statement of the circumstances constituting each cause of action and where and when it arose". This amounts to much the same as the requirement in Rule 4 under Order xix. under the Judicature Act, that "a pleading shall contain as concisely as may be, a statement of the material facts on which the party pleading relies", on which it has been held that a defendant sued on the strength of a plaintiff's title to land is entitled to have that title disclosed, so that the defendant may know what case he has to meet, See Philijis v. Philips, L. R. 4 Q- B. D. 127. Sec. 51 of our Code goes on to require that where the plaintiff relies on any documents, other than a document actually sued on, as evidence in support of his claim, he shall "enter such documents in a list to be added or annexed to the plaint". The plaintiff here did not append any such list of documents to his plaint. The defendant might have asked to have the plain taken off the file as not disclosing the title set up. Defendant, however, took no such course, but answered traversing plaintiff's averments as to ownership and possession, and setting up a specific title in himself. Thereafter, in January, 1891, plaintiff moved to be allowed to append to his plaint a certain list of documents. Defendant opposed the application, but VoLT., No. 20. j THE CEYLON I,AW REPORTS. n- , the District Judge allowed it. I think that the ap- plication ought not to have been allowed, for the simple reason that the plaintiff had not disclos- ed what was the title which plaintiff was setting up. The case next came to a hearing, and at the heaf- ringthe plaintiff called some witnesses and tender- ed in evidence the documents comprised in the list already mentioned. Defendant's proctor objected to the whole of that evidence, both oral and docu- mentary. The District Judge upheld the defen- dant's objection so far as concerned the documen- tary evidence, and thereupon dismissed plaintiff's action with costs. Plaintiff appeals. The defect in plaintiff's proceedings was that un- til plaintiff's advocate proceeded to open his case at the hearing, the defendant so far as appears from the record, had no notice whatever of the facts relied on by plaintift as establishing plaintiff's title. Plaintiff's counsel pressed in appeal the circum- stance that the District Court had' already allowed plaintiffs application to append the list of docu- ments to his plaint, and that defendant had not appealed against that order. In reply to this it is sufiicient to say that the list of documents was meaningless in the entire absence from the plaint of any averments disclosing the steps of plaintiff's alleged title. Defendant, however, instead of answering plaintiff's averment of title with a tra- verse, should have taken objection to the plaint at once. I would quash all proceedings subsequent to the plaint, and give plaintiff leave to amend his plaint. No costs on either side. DiAS, J. — In this case I agree with my brother Clarence that the plaintiff should have an op- portunity to amend his plaint. Under sec. 40 of the Code the plaint should contain a plain and concise statement of the circumstances constituting each cause of action, and when and where it arose; and by sec 51, if plaintiff relies on any docu- ment, other than the one actually sued on, as his evidence in support of his claim, he should enter such document in a list to be annexed to the plaint. No such list was annexed here ; but in the progress ofthe suit the District Judge allowed the plaintiff to annex to the plaint a list of documents, but in the absence of any allegation in the plaint showing the applicability of the documents to the title set up by the plaintiff the subsequently annexed do- cuments did riot place the plaintiff in a better posi- tion. The Code requires the plaintiff to give the de- fendant full notice of the case which is intended to be set up against him. Both parties blundered in the matter, the plaintiff in not complying with the re- quirements of the Code, and the defendant in not ob- jecting at the right time. In these circumstances I think the plaintiff should have an opportunity to ' amend. Set aside accordingly, and no costs either side. Pz-fii-ew^.— BURNSIDE, C. J., and Ci.are;nce;, J. (August 25 and Sejitember ir, 1891.J ^iio." 22^52^' 1 ARUNASALAM v. RAMANATHAN. Civil procedure— Prescription of action— Objection ore tenus on ground of prescription— Right of the Court to raise stich objection niero motu— Pleading— Civil Pro- cedure Code, sec. 44, and sec. 46, proviso 2, para (i)— Claim in exeaUion— Effect of non-claim — Civil Procedure Code, sec. i\'i. Prescription may be pleaded to an action ore tenus at the trial subject to the question of costs. After the enactment of the Civil Procedure Code, it is competent for the Court, when the existence of the statutory bar is made apparent at the hearing of an action, to recognize the bar niero motu,and refuse to proceed with the action. In the case of a claim to property seized in execu- tion, — Held, that the order of the Court on the claim binds only the parties to the claim proceedings; but persons who prefer no claim in execution are at liberty to re- sort to the regular process of an action at law in res- pect of any title which they may have to the property seized in execution, irrespective of the provisions of sec. 247 of the Civil Procedure Code. Held, that when one person for himself, and "on behalf of" others claim property seized in execution, the latter are not parties to the claioa proceedings, and are not bound by any order made therein. The plaintiffs in this action, five in number, al- leging title to certain lands, averred that the de- fendants, six in number, "combined and colluded together, and the 3rd defendant having obtained a judgment under No. 17,070, C. R., Jaffna, fradu- lently and collusively against the 4th, 5th, and and 6th defendants caused the said lands to be seized, and sold under the writ in the said case on or about 25th February, 1889, and the and defen- dant became the purchaser thereof" ; and "that in furtherance of the said collusive proceedings the ist defendant, who is brother of the 2nd defen- dant instituted a case against the latter in case No. 21,743 before this Court, obtained a fraudulent and collusive judgment, and sued out execution, and on or about the 22nd December, i8qo, caused the said lands to the seized by the Fiscal". The plain- tiffs prayed for declaration of title and for posses- sion and that the sale in favour of 2nd defendant be set aside. The action was instituted on 9th March, 1891. The answers of the defendants in substance denied the 78 THE CEYLON LAW REPORTS. [Vol. L, No. 20. allegations of the plaint and set up title in the ex- ecution debtors in the previous action, but raised no question of prescription. At the trial the proceedings commenced with this record of the District Judge (P. W. Conolly) :-^"The Court intimates its opinion that the plaintiffs can- not succeed in this action, the same not having been preferred within 14 days from the date of the order disallowing the ist plaintiff's claim preferred under sec. 241 of the Civil Procedure Code in case No. 21,743 of this Court to the two lands now in question, and calls on the plaintiffs to shew cause why this action should not be dismissed with costs." The plaintiffs' counsel, thereupon, submitted cer- tain considerations against such an order, and in reply to the Court admitted that the ist plaintiff preferred a claim to the Fiscal when the lands were seized in execution in case No. 21,743, that the Court after inquiry disallowed the claim on 17th February, 1891, and that the present action was not instituted within 14 days from the date of that order. The defendants then tendered in evidence a cer- tified copy of the claim preferred by the ist plain- tiff in case No. 21,743, with copy of the proceedings of the inquiry into that claim, and of the order of the Court thereon. The District Judge thereupon dismissed the plain- tiffs' action with costs, holding that the action was prescribed, and that in view of sec. 46 of the Civil Procedure Code, it was competent for the Court itself to raise the objection as to the action being barred ; and with' regard to the argument that the order on the claim bound only the ist plaintiff, he alone having been party to the claim proceedings, the learned District Judge observed as follows : — "I cannot agree to this. The other plaintiffs were parties, for the ist plaintiff, in making his claim to the Fiscal as required by sec. 241, claimed for him- self and the other plaintiffs. Besides, when the Fiscal seized the lands in question, that was due notice to all concerned, and interested to prefer their claims. If they do not, they must take the consequences. No doubt the 2nd, 3rd, and 4th plaintiffs did not appear before the Fiscal. As they were females, they left the matter to the male claimaqf, the ist plaintiff. It has been held in India that if a person whose property is attached does not object tinder sec. 278 of the Indian Code (corresponding to our sec. 241), he cannot bring a regular suit to have it declared that the property belongs to him, and not to the judgment debtor. See O'Kinealy p. 293''. The plaintiffs appealed from this judgment. Ramanathan for plaintiffs appellant. Cur. adv. vult. On September 11, 1891, the following judgments were delivered : — BURNSIDE, C. J. — I see no reason to dissent from the judgment of the learned District Judge or from that of my brother Clarence, that it was competent to the District Judge, on the facts of this case, to call attention mero motu to a statutory bar to the action which has not been pleaded, but the existence of which was admitted, and to accept the defen- dants' viva voce objection to the suit proceeding further, and to dismiss the action. What I wish to guard against is any decision that the Judge may mero motu apply any statutory bar, of the existence of which he may be previously cognisant, to a plaint in which the bar does not appear, and then reject the plaint under sec. 46, by which power is given to reject the plaint, where the action appears from the statement in the plaint to be barred by any positive rule of law. In my opinion the plaint itself must disclose the statu- tory bar before the power of rejection can be ex- ercised. I quite agree, and I have already so held, that if a person elects to prefer a claim under sec. 241 of the Code to land seized in execution as not liable to be sold, that order is conclusive against all parties to it, and it is not competent to discuss its merits or to take objection to it, unless an action is brought with fourteen days, as provided by sec. 247 of the Code, But the order is in no way bind- ing on any party who took no part in the claim.: such party is at liberty to resort to the regular pro- cess of an action at law in respect of any title which he may have or claim to the property seized in execution. The order therefore in this was binding on the ist plaintiff, and is res judicata against him, but not against the other plaintiffs, who were strangers to the claim. The learned District Judge's judgment must therefore be affirmed, so far as it affects the ist plaintiff, with costs of this appeal, and be set aside as against the others and the case sent back, in order that the other plaintiffs may be at liberty to go on with the action in which their title should be separately adjudicated on. All costs to abide the event. Cl,ARENCE, J.— Plaintiffs aver that by inheri- tance from one Sinnetamby and Valliar, his wife, they are entitled to certain lands. Plaintiffs also aver a title by prescription. The grievance of which plaintiffs complain in this suit is trespass against plaintiffs' ownership, in that certain of the defendants caused these lands to be seized by the Fiscal under certain judgments obtained bv them against other of the defendants, and the issue which plaintiffs seek to raise is, whether the lands in question are the property of the plaintiffs or of some of the defendants. Vol. I., No. 20,J THE CEYLON LAW REPORTS. 79- The plaint avers the judgment, under which the lands were seized, to have been obtained "fraudu- lently and collusively". We need take no further notice of that averment, which, as plaintiffs' suit is framed, is entirely irrelevant. If the lands are assets of the judgment debtors, plaintiffs can have no concern with any question as to the bona fides of the litigation out of which the judgments arose. The plaint avers that in execution of a judgment obtained by the 3rd defendant against the 4th, 5th, and 6th defendants, these lands were seized by the Fiscal, and sold to 2nd defendant, and that thereafter, in execution of another judgment obtained by the ist defendant against the 2nd defendant, these lands were seized by the Fiscal. Plaintiffs pray for a declaration that the lands are plaintiffs' property, and that plaintiffs may be quieted in possession. They also ask that the sale to 2nd defendant be set aside. The first three defendants only have answered, and they traverse plaintiffs' averments of title and set up title in the other defendants. On the case coming to a hearing, the District Judge pointed out that this action had not been instituted within fourteen days of an order of the District Court made in case No, 21,743, D.C., Jaffna, (the case, secondly above referred to, in which 2nd defendant was sued by the ist defendant) disallowing a claim to these lands preferred by the ist plaintiff. The pleadings are silent as to this claim ; but it was admitted at the hearing that in case No. 21,743 the ist plaintiff made a claim to the lands in question, and that the District Court made an order disallowing that claim more than fourteen days before this suit was instituted. The District Judge, on this ground, dismissed plaintiffs' suit with costs, and the plaintiffs appeal. The question is, whether plaintiffs' suit is barred by sec. 247 of the Procedure Code. In the first place, we have to consider whether, assuming the plaintiffs' case to be obnoxious to that section, the District Judge was right in apply- ing the provisions of the section so far as to bar the suit, no objection to that effect having been raised upon the defendants' pleadings. Upon this point I think that the District Judge's ruling is right. Prior to the enacting of the Civil Procedure Code, we followed in Ceylon the English rule that the statutory bars provided by the Legislature are matters of which a defendant may, or may not take advantage at his own discretion, and are conse- quently matters which the defendant should him- self set up if he desires to avail himself thereof. The Civil Procedure Code— well or ill advisedly we need not consider— appears to be framed upon the principle of regarding these statutory bars as abso- lute bars which every plaintiff has to meet. Sec. 44 declares that "il the cause of action arose bej'ond the period ordinarily allowed by any law for instituting the action, the plaint must show the ground on wh ch exemption from such lawis claim- ed". By sec. 46 the Court is allowed to reject a plaint" when the action appears from the state- ments "in the plaint to be barred by any positive rule of law." Taking all this in connection with the declaration made in sec. 247 as to claims in execution, that an order made under sees. 244, 245, 246 is, subject to the result of an action brought within fourteen days, conclusive, I think that, upon its coming to the knowledge of the District Judge at the hearing that such an adverse order had been made more than 14 days before the institution of the action, the District Jiadge would be warrant- ed in declining to try the merits — warranted in thereupon dismissing the suit. Sec. 44 seems to regard it as a plaintiff's duty, when a ^rtma facte statutory bar exists, to disclose that circumstance and aver the means by which (if possible) it is to be overcome. Where, as here, a plaintiff by suppress- ing in his plaint the previous history of his conten- tion with his defendant, conceals the existence of the bar, it seems to me to be in accordance with the intention of the Code, that if, when the case comes to a hearing, the existence of a statutory bar is made apparent, the District Judge is entitled fnero motu suo to recognize the bar, and unless the plaintiff is in a position to avoid it, may refuse to proceed further with the plaintiff's action. But to sustain the order now appealed from, it is not necessary to go to this length. Prescription may be pleaded ore tenus, subject of course to the question of costs ; and it is plain from the District Judge's note in this case that upon his bringing to the notice of parties (in consequence perhaps of his own personal recollection of the business of his Court) the existence of the previous order, the defendants at once took their stand upon the statu- tory bar and sought to avail themselves of it. Therefore, subject to the question of costs, we have to consider, upon its merits, the issue, whether the order, which admittedly was made in the case No. 21,743, is an order which bars the present action. We have the order itself in evidence. The land having been seized under the ist defendant's judg- ment against the 2nd defendant, the present ist plaintiff claimed the land, and the District Judge after inquiry disallowed that claim. This was an order made pursuant to sec. 244; and an order made under that section is (subject to the result of an action brought within 14 days) conclusive. Plaintiffs' counsel desired, upon the argument of the appeal, to discuss the propriety of the order, and pointed out tons that the District Judge's note, of his reasons for the order, stated, the order as bas- ed on the claimant not having satisfied theCourt that the land when seized was in his possession, where- So THE CEYLON LAW REPORTS. [Vol. I., No. 20. as it was contended the onus was on the execution creditor of showing that the land was in the poss- ession of the execution debtor. But as we intimat- ed at the argument, we cannot enter upou any question as to tlie propriety of the order viewed in regard to the materials before the Court when it was made. Sec. 247 renders the order conclusive, unless an action shall have been brought within 14 days, which has not been done. But there is a furtherquestion,— whether the or- der, though estopping the ist plaintiflf from main- taining this action, touches the other plaintiffs. If the other plaintiffs derive their title through the 1st plaintiff, they are of course equally concluded by the order, but it is at any rate not clear that the title which they set up is so derived. The District Judge, however, with reference to this point, has held that the order concludes the other plaintiffs also. That ruling we cannot, I think, support. It is true that the ist plaintiff, when claiming the land, proposed to do so on behalf of himself and the other plaintiffs ; but we cannot recognize his act as binding on them in the absence of a properly con- stituted representation, as, for instance, by power of attorney. The 2ud, 3rd, and 4th plaintiffs are in this position — they made no claim when the land was seized under the ist defendant's judgment against 2nd defendant. Upon a consideiation of the provisions of the Code with regard to seizures, and sales of land in execution of judgment, I take it to be clear that where a judgment creditor seizes and sells, as the land of his judgment debtor, land the title to which isnotin the judgment debtor, but in a third person, the sale by Fiscal and the conveyance to a pur- chaser will not of themselves deprive that third person of his title. See, for instance, sec. 284, which provides for the setting aside of a sale, on purchaser's petition, upon the ground of no title in the judgment debtor. If the conveyance when granted would avail against all other title, there would be no need for the purchaser to object to the completion of the purchase on such a ground. I I take it, therefore, that if the judgment creditor seizes the judgment debtor's land to which some third person has title and that third person remains silent and prefers no claim under the summary procedure provided by the Code, he will still be at liberty tS assert his title if the purchaser thereafter seeks to interfere with his ownership. The effect of the enactment seems to be, that if a third party having interest elects to prefer a claim before the Fiscal, he thereby incurs a risk of being concluded by an adverse order, unless within 14 days thereof he brines a formal action. But if he chooses to lie by and take no step under the summary procedure, his right remains to him unaffected by any Fiscal's sale which may take plac«. For these reasons, it seems to me, that although ist plaintiff is concluded, so far as his interest is concerned, by the order in case No. 21,743, the other five plaintiffs are not concluded by that order. I therefore think that we should afiSrm the judg- ment appealed from, so far as it dismisses ist plaintiffs action, but without costs, except costs of this appeal, and that with regard to the other plaintiffs we should set aside the judgment, and send the case back to the District Court for further procec'Hngs in due course, leaving all costs as between the defendants and the plaintiffs, other than first plaintiflf to be costs in the cause. -: o ; Present .•— ClaranCE, J. (July 16 and 22 and August 6, 1891.^ Municipal Court '1 Galle, No. 1431. BOGAARS V. KaRUNARATNB. Criminal procedure— revision — Application for Revision of an appealable order — Criminal Procedure Code, sec. 426. The Supreme Court would not in general interfere by way of revision, under sec. 426 of the Criminal Procedure Code, in cases where au appeal might be taken. This was a prosecution under the Cemeteries Ordi- nance, No. 10 of 1854, for burying a dead tody in unauthorised ground within the town of Galle. At the hearing, which took place on June 13, 1891, it was admitted that there was no general cemetery in Galle, and after some argument, as to whether under that circumstance there was an offence com- mitted, the Police Magistrate held, that the defen- dant had committed no offence, and acquitted him. On July 16, 1891, the Attorney General applied to the Supreme Court tor revision of the Magistrate's order, and notice having been directed to be issued, the matter came on for argument on July 22, 1891. Hay, A. S. G., for the Crown. Seneviratne for the defendant. Cur. adv. vult. On August 6, 1891, the Supreme Court disallowed the application and delivered the following judg- ment: — Clarence, J.— I see no reason why I should in this case interfere, by way of revision, with the Magistrate's order. I do not in general consider it proper to interfere by way of revision in cases where an appeal might have been taken. In this ca.se the Attorney-General, who asks, to have the order revised, might himself have appealed. Upou the point of law suggested in the Vol. I., No. 21.J THE CEYLON LAW EEPORT-^. 81 Magistrate's note, I express no opinion. No evi- dence was adduced before the Magistrate, and, so far as appears, the Proctor for the prosecution did not offer any. : o : Present: — Buknside, C. J., and Clarenoe and DiAs, JJ. D 0. Colombo, 1 t. tct ai M on^c ! Don Nicholas V. Mack. Jno. 3,245. ' Action against administrator— plea of plena ad- ministravit — pleading — burden of proof— evidence-^procedure. In an action against an administrator, wlio pleads plme administravit, the plaintiff may either confess the plea and take judgment of assets qudndo acciderit, or he may take issue oa the plea, in which case the burden of proring assets is on him. The plaintiff sued the defendant as administrator of the estate of a deceased person for the recovery of a certain sum of money allege i to he due on a planting agreement enterei into by them with the deceased. The defendant in his answer, among other things, denied the claim and pleaded plene administravit. The plaintiff filed a replication, in which he took issue on the plea of //«;?«■ a^wemw- travit, and further pleaded that a certain land had vested in the defendant as administrator and had not yet been transferred to the heirs in due course of administration. 'I he defendant then rejoined, denying that the land referred to had vested in him, and stating that, before the commencement of this action, the defendant, having recovered all assets of his intestate and paid all debts whereof he had notice, and without notice of plaintiff's claim, had delivered possession of the said land to the heirs of the deceased, who were ever since in possession of the same. At the trial no evidence was called on either side, but it was agreed that no conveyance was executed for the land in favour of the heirs. The District Judge {O. W. C. Morgan) dismissed the plain- tiff's action on the ground that there were no assets in the hands of the administrator, and as the argument that certain properties had not been conveyed by the defendant to the heii s, he said : " This is a matter between the heirs and the iid- ministrator. The heirs do not complain, and are, I presume, satisfied to possess the properties without any conveyance from the administrator." The plaintiff thereupon appealed. Browne {Pereira with him) for plaintiff appellant. Wendt for defendant respondent. Cur. adv. vult. On September 29, 1891, the following judgments were delivered : — Buknside, C. J.— This appeal must be dismissed with costs. The plaintiff on the defendant's plea oi plene administravit could have taken judgment for his claim with costs out of assets quando accider- it. He, however, chose to take issue on the plea and assume the burden of proving assets, and he has not done so. It is not possible to use the defeadent's pleading in denial of plaintiff's claim as any admission of assets, in face of the direct plea of plene adtninistravit ; because if there were such an unqualified admission, it would be matter of estoppel, and the plaintiff, without replying estoppel, cannot take any advantage of it. The plaintiff did not attempt to give any direct evidence of assets, but simply relied on the record. Claeence, J. — I think that this case should go back to the District Court for such proceedings as the partiJs may be advised to take. The defendant has put plaintiff's to the proof of the debt and has further pleaded plene administravit. There are two courses open to a plaintiff suing an administra'or when the administrator pleads plene administravit. He may confess the plea and take judgment of assets quando acciderit, or he may take issue on the plea, in which uase the burden of proving assets is on him. In the present case, ^the plaintiff before he would have any judgment, must prove the debt also. Thrse pnrties have wasted pleadmgs in a replication and rejoinder. The defendant's rejoinder in facie is self- con tradictoiy. He avers in one breath that a certain piece of land never vested in him as adminis- trator and that he conveyed it to the heirs. The parties do not seem to have correctly understood the pruceduie in such a matter. Moreover, the District 'Judge, although there is no note of any documentary evidence being admitted at the hearing before him, seems in point of fact to have informed his mind by a reference to the proceeding in the testamentary matter of the administration. If it be the fact that there is land which the intestate owned at his death, and which consequently became vested in the administrator, and if it be further the fact that the administrator, though lie purported to distribute that land to certain of the heirs, has not yet executed any conveyances in their favour, then that liind is, in my opinion, still land that can be reached under a judgment against the administrator. I dissent fiom the learned District Judge's ruling as to this. I would set aside the judgment and give no costs of the appeal to either side. DiAS, J.^-This is an action against an administrator to recovtr a sum of money due to the plaintiff from the intestate. The defendant pleaded plene adminis- travit, and the plaintiff joined issue. On the plead- ings the onus was on the plaintiff to prove assets, but he has adduced no evidence, apparently relying on the first paragraph in the rejoinder, in which the defendant admits that he transferred a land of the 82 -THE CEYLON LAW REPORTS. [Vol. I., No. 21. intestate to his (the intestate's) heirs. That is no admission of assets to entitle the plaintiff to succeed on the issue of assets or no assets. If the alleged admission had that effect, the plaintiff should have moved for judgment on the pleadings. They did nothing of the kind, for the simple reason that they could not. I see no reason why the case should go back for further proceedings. I dismiss the appeal with costs. :o: Present: — Burnside, C. J., and Dus, J. {February 15 and 16, 1889.) D, C. Negombo, \ ri -c No 15 408 ' ■^^^''•^^'"' '• FoNSEKi. J Registration —deed of gift — valuable consideratioji — adverse interest — priority — Ordinance No. 8 of 1863, section 39. Under section 39 of Ordinance No. 8 of 1863, a deed of gift, not being a deed for valuable consideration, does not, by reason of prior registration, obtain pri. ority over a deed previously executed. The plaintiff sued defendant in ejectment, claiming title to a certain land upon ■ a deed of gift from his father, who had purchased it from the origin J owner. The defendants claimed under a deed of lease exe- cuted, previous to the sale to plaintiff's father, by the original owner for 22 years, which had not expired at the date of the action. The dee^l of gift was registered prior to the lease. The District Judge dismissed the plaintiff's aotiora on the ground that the plaintiff's father, the donor, had notice of the lease and that prior registration could not give to the plaintiff a better tit;e than his donor had. The plaintiff appealed from this judgment. J. Grenier for plaintiff appellant. Dornhorst for defendants respondent. Cur. adv. milt. On February 26, 1889, the following judgments ■were delivered : — D1A8, J. — The facts of this case are these. The admitted owner of the land, one Julis Fernando, by a deed of 15th May, 1876, leased one-half of the land to the first defendant and another for twenty-two years, and by a deed of 29th May, 1877, the two lessees subleased to Gordianu Fernando, who is the father^f the plaintiff, for five years, which expired in 1882; and on the 4th September, 1877, the owner or lessor sold the land to the plaintiff's father, who, in December, 1877, gifted the land to the plaintiff, who is a minor. The lease of 18?6 was registered, but it was registered after the plaintiff's deed of gift; andthequestionis, whether the plaintiff's deed is entitled to preference over the first defend- ant's deed of 1876. The District Judge dismissed the suit, as appears to me, on erroneous grounds. First, he seems to have thought that the plaintiff's •father, when he took a conveyance from Julis, had notice of the previous lease; and secondly, that the plaintiff's father could not convey to the plaintiff more than the father himself had. The answer to the first objection is that notice to the father is not notice to the son ; and with regard to the second objection, the answer is that the effect of registration is to give the deed a wider operation than the grantor himself could give to it. This question has been fully gone into in a case reported in 8 S. 0. 0. Ill, and 1 adhere to my opinion in that case. At the hearing of this appeal, Mr. Dornhorst, for the respondent, contended that the plaintiff is not en- titled to the benefit of section 89 of the Registration Ordinance (No. 8 of 1863), as his interest is not founded on a valuable consideration. The plaintiff is a mere volunteer, his father conveyed the land to him as a gift, and the object of the Ordinance manifestly is to give a statutory title to those only whose claims are founded on valuable consideration. Valuable consideration is a well known term with a well defined meaning — it is such as money, marriage, or the like, which the law esteems as an equivalent given for the grant. (Brown's Commentaries, p. 4S0.) The objection, in my opinion, is fatal to the plaintiff's case ; but as it was taken for the first time in this Court, I will afiBrm the judgment with costs, excf pt the appeal costs, which shall be borne by the parties respectively. Burnside, C. J. — As my learned brother DiAs and I both agree on the point on which the judgment should be affirmed, I am content to express my concurrence in the judgment of the Court on the point only ; but I must not be held as acquiescing in the other propositions of my learned brother. -:o :- Present: — Clarence and Dias, J J. (fune 2 and 23, 1891.) D. C. Kalutara, ) ^ „ _. No 74 EBNANDo V. Veebawaou Pullb. Civil procedure^— splitting of causes of action — seizure of property under writ — claim, in execution — Civil Proedure Code, section 34. Section 34 of the Civil Procedure Code enacts " Every action shall, include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action * * • If a plaintiff omits- to sue in respect of or intentionally relinquishes any;: p6rti6a of his claim, he shall not afterwards svie'^iiii respect of the portion po omitted or relinqntsh^.* *" Vol. I., No. 21.] THE CEYEON LAW REPQj^S. 88 Undef writ of execution 'issued by defendant against a third party, the Fiscal seized ■ certain moveable property, part of which was claimed by plaintiff and another jointly, and part by plaintiff alone. A claim having been made in due course, the District Court rejected the same. Thereupon plaintiff and his co-owner brought one action in r-espect of the- property jointly claimgd by them, and subsequfetitly the plaintiff alone brought the present action: til-res'- ;•• ■ pect of the property claimed by himself. .:\;' Held that the present action was rightly brought, and the claim was properly not included in the pre- vious action, and that therefore there was no splitting of the cause of action, so as to bring the case under the operation of section 34 of the Civil Procedure Code. The defendant in this action as writ-holder in a previous action caused ceriain movable property to be seized as property belonging to bis debtor, but the plaintiflf and a brother of his claimed certain portion of the property as belonging to them jointly, and the plaintiff also claimed another portion as belonging to him separately. The claims having been referred to the District Court, and having ultimately been disallowed, the plaintiff and his brother brought one action. No. 73 of the District Court of Kalutara, under section 247 of the Civil Code, in respect of the property claimed as jointly belonging to them, and subsequently the plaintiff brought this action himself in respect of the property claimed as separately belonging to him. No objection based on section 34 of the Civil Procedure Code was taken by the defendant in the pleadings, but at the trial the District Juge (C Liesching) recorded as follows: — '• I yesterday had occasion to inquire into case No. 73, in which the cause of action «ras identical with the present, viz., a seizare, in satisfaction of a writ taken out by the present defendant, of certain movables the joint property of plaintiff and his brother. The movables, the subject of this action, are the sole property of the plaintiff, but that does not entitle him to brine two actions. It was quite competent for the two brothers to have brought two actions ; that is to say, each brother for the property due to him individually. But it is not competent for the present plaintiff to bring two actions for no better reason than that he was entitled to a half of one set of movables and the whole of another set. As an alternative the two brothers might have joined in one action." He further considered that section 34 of the Civil Proce- dure Code left him no discretion in the matter. He then prrceeded to examine the plaintiff, and eli- cited the circumstances of action No. 73. Thereupon the defendant moved for dismissal of the plaintiff's action, and the District Judge dismissed it according- ly. 1 he-plaintiff appealed. FerdUndo for plaintiff appellant. _/; Grenier for defendant respondent. ~\:^ Cur. adv. vult. : -' On June 23, 1891, the followmg judgments were delivered. Clarence, J. — 1 think that the District Judge has misapplied section 34 of the Code. Plaintiff asks for a declaration that he is the owner of certain moveable property which defendant has seized as assets of a third party against whom de- fendant has a judgment. It would appear that in another action pending in the same District Court the plaintiff and his brother sued for a similar declaration as against the same defeudnut in respect of certain other movable properly which they claimed as their joint property. I infer from the District Judge's note that the seizure was one and the same, all property being seized to.j-ther. If, however, -it is the fact that part of the property was owned by plaintiff solely and part by plaintiff and his brother, there has been no splitting of action within the meaning of s-ection 34. Plaintiff was entitled to maintain a separate action for his own property, and could not have compelled his brother to join. The order from which plaintiff appeals must therefore be set aside. It seems that u|;oii the District Judge's suggesting the point the defendant's proctor moved that plaintiff's action be dismissed. Therefore, since the dismissal was at defendant's instance, plaintiff must have his costs. Judgment set aside and case sent back to District Court for further proceedings in due course, defend- ant to pay plaintiff's costs of the day in the District Court and costs of the appeal. . DiAS, J. — The defeadiint issued a writ of execution and, through the Fiscal, seized some movable pro- perty, and the plaintiff brings this a.:tion to establish his right to that property. Tue defendant justifies the seizure, and the only issue on the pleadings is whether the plaintiff or the defendant's execution debtor is the owner of the goods. On the trial day some objection was taken by the defendant's proctor under section 34 of the Civil Procedure Code, and this objfcction was upheld by the District Judge, and the action was dismissed. The record does not give us much information as to what took place at the hearing ; but so far as I can gather from the Judge's notes of the 20th of February, the ob- jection was that the plaintiff having brought another action to establish his right to some part of the property seized under the same writ and on the same occision, he had no right to maintain this action. From the plaintiff's examination it appears that the Fiscal seized a quantity of furniture, part of which was the joint property of rhe plaintiff and his brothei-, and part of it was the sole property of the pbuntiff. With regard to the joint property, the plaintiff and his brothei' instituted the case No. 73, and the plaintiff instituted this action for his separate property. The District Judge held under section 84 of the Code that the plaintiff cannot split his cause of action. If the Disiriot Judge's reading section 34 is right, the plaintiff ought to have inohided his present claim in the case No. 73 which he instiruted with his brother. Such a libel would clearly be demurrable for a misjoinder of parries and causes of action. Othei-wise the District Judge will h=!ve to give two judgments, one to plaintiff individually. and one for him and his co-plaintiff jointly. The District Judge failed to see the distiction between the seizure and cause of action. He treated them both as one. One seizure may give rise to several causes of action, as in this case. With respect to one, the plaintiff was bound to sue alone, and with respect to the other, jointly with his brother. He cannot blend his two causes of action in one case, as the ru'es of pleading would not allow it. Besidi s, the objection came too late : it ought to have been taken in the answer. 1 must set aside the judgment and send the case back for trial on the issues raised on the pleadings. The defeudMiit must pay plaintiff the costs of the day and of this appeal, All other costs to be costs in the cause. /';'«(?»/ .-—BuRNSiDE, 0. J., and Clarence and DiAS, JJ. {May 26 and June 5, 1891.) In the matter of the Stamp Ordinance Np. 8 of 1890, and the application of D. L. Wick- KAMANAiKE of Galle, Notary Public, under section 37 thereof. Appeal— transmission of petition by post — calcula- tion of time — holidays — Ordinance No. 3 ^1890, sections 37 and S8 — holidays Ordinance, 1886. Section 37 of the Stamp Ordinance, 1890, provides for application, by any person desirous of removing doubts as to the lijvbility of any instrument to stamp duty or as to the amount of stamp duty, to the Commissioner of Stamps to declare his opinion thereon. Section 38 provides that the person making the application may appeal against the determination of the Commissioner to the Supreme Court within ten days after the same shall have been made known to ' him. The Commissioner of Stamps, having, upon applica- tion to him, made a certain decision, the applicant within the proper time transmitted by post a peti- tion of appeal to the Supreme Court, but certain public holidays having intervened the petition did not reach the Registry of the Supreme Court until after the requisite ten days had expired. Held that, under the above section 38, the "appeal must actually be lodged within ten days in the Re- gistry of the Supreme Court, and that the interven- tion of the public holidays did not avail to extend the time and that therefore the appeal was out of time and could not be entertained. The appellant, a notary, who had attested a certain instrum nt, applied in writing to the Com- missioner of Stamps under section 37 of the Ordi- nance No. 39 of ] 890 for a declaration as to the stamp duty required. The Goiiimissioner having made his declaration, which was communicated to the applicant on March 17, the applicant forwarded by post an appeal to the Supreme Court under section 38 within 10 days of the declaration, but owing to the public holidays ac Etster and the consequent postal arrangements the petition of appeal did not reach the Registrar till after the 10 days had expired, viz., on April 2. Objection was taken at the hearing on the ground of the delay. Withers for appellant. Hay, A. S. G.,"for the Crown. Cur. adv. vult. On June 5, 1891, the following judgments were delivered : — BuBNSiDE, C, J. — This petition is out of time, and I am afraid we have no power to receive it. The Ordinance expressly provides that the appeal shall be made within ten days. The appellant gives as a reason for the delay that > the Post Office was closed on some intervening days, they being public holidays. The appellant is res- ponsible for this : he entrusted the petition to the Post Office, and he should have noticed that public holidays intervened. The petitioner's counsel relied on the Public Holidays Act, which made those days dies non. The argument would have been forcible had the petitioner been called upon to do any particular act on any one of those days, but it cannot avail to extend the time in which the petitioner had the right of appeal. Claeenoe, J. — I agree that we have no power to en- tertain this appeal. We cannot consider an appeal aa having been on foot until it is actually lodged in our Registry. It is no doubt true that this appellant posted his appeal petition within the ten days, and that in ordinary course it would have bfeen delivered at the Registry in time, whereas (in consequence, as it is said, of holidays) it did not reach the Registry till after the Printed at the "Obxlon Examiner" Press, No. 16, Queen Street, Fort, Colombo. Vol I., No. 22.J THE CEYLON I.AW REPORTS. 85 ten days. This is appellant's misfortune : he might have sent np his appeal by the hands of some agent ; but since he chose the Post Ofi5ce, which failed to lodge his appeal for him in time, we have no power to accept it. I do not think that the Public Holidays Act helps the appellant. DiAS, J., concurred. Presenf :—Cl,ARnT^cn and DiAS, JJ. [November 27 and December 8, 1891.) ^ S' *^^^'^' 1 GUNEWARDANE V JAYASUNDERA. No. 2S3- ) Procedure— Action to realize a mortgage— Practice of making a co tnortga^ee defendant on his refusal to join in the action as plaintiff— Civil Procedure Code, section l^— Pleading. In an action to realize a mortgage in favour of two persons, where one mortgagee refuses to join the other as plaintiff in bringing the action. Held, that, independently of the provisions of sec. 17 of the Civil Procedure Code, one mortgagee may sue alone, making the other a party defendant. Semble, in such a case the plaintiff is not bound to restrict himself to the recovery of only half the debt, but might sue for the whole debt, leaving it to the mortgagor to protect himself in that respect. Observations as to the necessity of meeting by way of replication new matter pleaded iu the answer. The facts of the case sufficiently appear in the judgment of the Supreme Court. Wtndt for plaintiff appellant. Dornhorst for ist defendant respondent. Cur. adv. vuli. On December 8, 1891, the following judgments were delivered : — CI.AEENCE, J.— This is a singular case ; but I don't think that it presents any difficulty, except such as arises from the circumstance that a hearing seems to have taken place on no issue. Plaintiff's case is that the first two defendants made a mort- gage in favor of plaintiff, and 3rd defendant se- curing a debt of Rs. 500. Plaintiff now sues the mortgagors and makes the other mortgagee a 3rd defendant in the case, averring that he has refused to join in the suit as a party plaintiff. The District Judge has dismissed the plaintiff's suit on the short ground that the plaintiff seeks to recover from the first two defendants half only of the mortgage debt and, incidentally to the relief asked for, prays for mortgagee's decree to sell half only of the mortgaged property. I do not think that the plaintiff ought to be put out of Court on that ground. As at present advised, I think that the plaintiff might have sued for the whole debt, leaving it to the mortgagors to protect themselves in case of plaintiff establishing the existence of a debt. Since in the view I take, the case may go back to the District Court for a finding on facts on the terms of plaintiff paying the costs of this appeal, the plaintiff may, if he pleases, amend the plaint. We must go deeper into the case. The ist defendant only has answered to the plaint. He contends that as matter of law the plaintiff cannot maintain the suit as thus consti- tuted, and further upon the merits pleads in sub- stance that the consideration for the obligation declared on was that it was entered into by the 2nd defendant, and himself as a collateral security to the obligees for the sub-rent of certain arrack rents taken by the obligors under the obligees who were the renters under the Government. First, as to the plaintiff's right to sue alone for the mortgage debt, making his co-mortgagee a party defendant. The 17th section of the Procedure Code declares that "if the consent of any one who ought to be joined as a plaintiff cannot be obtained, he may be made a defendant, the reasons therefor being stated in the plaint." It is conceivable that there may be cases in which a mortgage ought not to be realized except by consent of all the mort- gagees ; and I do not say that in such a case, if such a case there be, section 17 would entitle one mort- gagee to force on a suit to realize counter to the judgment of his fellows. We need not consider such a case until it arises. The circumstances under which the plaintiff sues alone, are disclosed in the evidence. It appears that the 3rd defend- ant refuses to join in suing, holding that there is no debt to recover. Under those circumstances I think that the plaintiff ought not to be debarred from suing. What levy may have to be made in the event of plaintiff succeeding in establishing the ex- istence of the debt may be an ulterior question which we need not consider now. Luke v. South Kensington Hotel Co., L. R. 11 Ch. D. 121 is an authority in support of the proposition that, in- dependently of any such statutory provision as that of sec. 17 of our Code, a plaintiff situated as the present plaintiff is, may sue, making his co- mortgagee a party defendant. Taking it then that the suitis maintainable iu prin- ciple, we proceed to the merits. When we turn to the facts, it appears that the consideration for the mort- gage is as rst defendant says. The ist defendant set up this plea in his answer, and the plaintiff did not in any subsequent pleading traverse the facts so averred or join issue upon the averments. De- fendant in his answer further averred a payment to the mortgagees, before action brought, of the debt secured by the mortgage, which averment also the plaintiff made no attempt to meet. Evidence, how- 86 THE CEYLON LAW REPORTS. [Vol. I., No. 22. ever, was adduced at the hearing as between plain- tiff and ist defendant, witnesses being called on either side. For the defence there was distinct evid- ence that the mortgage was given only as a se- curity for the sub-rent, and this the plaintiff did not attempt to deny. There was also evidence as to satisfaction of the debt secured by the mortgage. In view of the admission of any evidence at all, it may be that the parties were under some misap- prehension as to the effect of defendant's answer. Under those circumstances, I am willing, if plaintiff desires, to send the case back to the District Court for a finding by the District Judge upon the ques- tion whether the debt secured by the mortgage has in fact been satisfied, but plaintiff must pay the costs of this appeal. Plaintiff, if he pleases, may amend the prayer of his plaint. DiAS, J.— This is an action by one of two mort- gagees against the mortgagors to recover half the debt due on the bond, and for a mortgage decree confined to one-half of the property mortgaged. The plaintiff avers that his co-mortgagee refuses to join him as plaintiff, and he therefore makes his co-mortgagee a defendant (3rd) to the suit. The ist is the only defendant who appeared to the action, and he takes exception as a matter of law to the frame of the action and the relief prayed for. On the merits he says the bond was given to plaintiff by way of security for the payment by him and the 2nd defendant of Rs. 100, being the purchase money due by them on account of a right to retail arrack in certain taverns purchased by them from the plaintiff. The ist defendant further avers that he paid and satisfied the said purchase money, and that the plaintiff is not entitled to recover on this bond. At the trial the ist defendant called the 3rd de- fendant, who proved that the purchase money of the taverns had been duly paid to the plaintiff, and the 3rd defendant thus accounts for the 3rd defend- ant's refusal to join in the action. The plaintiff, when called as a witness, gave an evasive answer on the matter of the payment ; but his evidence was contradicted by the ist and 3rd defendants, and that evidence is supported by several other witnesses. The District Judge, however, did not deal with the case on the merits, but dismissed the action, ap- parently on the legal objection taken by the ist defendant. I see no objection to the plaintifi join- ing tjjje 3rd defendant as a party defendant. We have all the parties before us, i. e., the mortgagors and the mortgagees, and the matters in dispute may be disposed of in this case ; but the District Judge gives us no finding on the facts, and I agree with my learned brother that, if the plaintiff desires it, the case should go back for further hearing. The plaintiff must pay the costs of this appeal. Present :—BVBiT^, C. J., and CLARENCE and DiAS, JJ. [January 22 and 24, and Afiril 10, 1891.) P. C, Kandy, ) rankiri v. KIRI HATTENA. No. 10,709. j Maintenance— Charge of non-maintenance of illegitimate child— Question of paternity -Dismissal of previous charge— Res judicata— Ordinance No. 19 0/1889. In proceedings under the Maintenance Ordi- nance No. 19 of 1889 against a putative father for nou-maintenance of a child ; — Held, that the dismissal of a previous charge, whether for insufficiency of evidence or upon any other defect in the case, is a decision upon the merits, and such decision bars a second application. Held (dissentiente Ci,arence, J.), that the lia- bility created by the said Ordinance and the pro- ceediugs thereunder are in their nature criminal. The defendant was charged under the Ordinance No. 19 of 1889 by the complainant with non-mainte- nance of a child, of which the defendant was alleged to be the father. The defendant pleaded in bar the decision in a previous proceeding, in which the de- fendant had been proceeded against and the com- plaint in respect of the same child had been dismissed, the Court not being satisfied with the evidence as to paternity. The Court overruled the defendant's plea, and heard evidence and made order adversely to the defendant, who thereupon appealed. There was no appearance in appeal. On April 10, 1891, the following judgments were delivered : — ■ BURNSIDE, 0. J. — There is in my opinion nothing in this case to distinguish it from that already decid- ed by the Full Court reported in 5 S. C. C. p. 231, which is sufiiciently authoritative on the point. I see no difference in the nature of the proceedings under this Ordinance and the old one, except indeed that tlic present proceedings are more essentially criminal than the former were. I do not agree that the present Ordinance only enforces a civil liability. There is no civil liability on a father to support his illegitimate family. There is no civil liability on him to contribute a sum certain, even for the support of his legitimate family, beyond the liabi- lity created by the express terms of this Ordinance, a liability in the nature of a fine, recoverable under proceedings especially criminal, in which a convic- tion or acquittal must be recorded. Against a conviction an appeal lies by the defendant. Against an acquittal an appeal lies at the instance of the Attorney-General, and rigorous imprisonment may be awarded as the punishment. Vol. I., No. 22.J THE CEYLON LAW REPORTS. 87 It is not possible, I think, to say that the pro- ceedings under the present Ordinance are less criminal proceedings than those under the Ordi- nance for which it has been substituted. In my opinion they are more so, and the authority already decided applies. The order of the Police Magistrate must be set aside, and the defendant's plea upheld- Clarence, J.— This is a proceeding under the Maintenance Ordinance No. 19 of 1889, and the first question for decision is, whether defendant's plea oires judicata should have been upheld. Com- plainant has two children, and the present proceed, ings concern the younger child. In November, 1890, after the Ordinance of i88g had come into opera- tion, complainant preferred a similarcharge against defendant in respect of both children. Owing pro- bably to the woman's ignorance, or that of the petition-drawer, the plaint was not entitled under the Ordinance of 1889, but the matter was one which could be dealt with only under that Ordinance. The defendant then admitted being the father of the elder child; and on his undertakingto take that child and maintain it, the Magistrate noted the admission and made no order concerning that child. The complainant apparently was not desirous to retain the child in her own keeping. With regard to the younger child, the complainant herself depos- ed that defendant was the father of that child, and called only one witness, the village arachchi, whose evidence contained no corroboration. The Ma- gistrate then made the following note : "There is no further evidence. The evidence is insufficient to fix on accused the parentage of the second child. I dismiss the case; accused undertakes to remove and maintain the elder child." This disposal ofthecom. plainant's first complaint took place on November 19,1890. On November 25, 1890, complainant insti- tuted a second proceeding with reference to the younger child. Defendant appeared to summons, and took in substance the objection that the order' made on th^; iirst complaint is res judicata, barring any further complaint concerning the younger child. The Magistrate overruled that objection, and the question which we have to determine is, whether that ruling is correct. A similar question came before the Full Court in the case reported 5 S. C. C. 231 under the now repealed enactment in the Vagrants Ordinance 1841. The question now before us arises under the Ordinance No. 19 of 1889. By the new Ordinance one important change is made. Under the Ordi- nance of 1841, based on the English Act of 5 George IV., these proceedings were distinctly criminal pro- secutions. Under the new Ordinance the proceed- ing is a civil one. The adjudication upon the com- plainant is not a conviction or acquittal of an Offence, but a decision upon a matter of civil liability. It is true that in certain of the proceed- ings, including the mode of enforcing a judgment in the complainant's favour, the procedure under the Criminal Procedure Code is adopted ; but the trial or hearing is essentially an adjudication as to a civil, and not a criminal, liability. In this respect therefore, the proceedings under the new Ordi- nance resembles English bastardy proceedings under 7 &8 Vic. chap. loi, and 8 & 9 Vic. chap. 10. There are several late decisions settling the law on questions of res judicata raised under these statutes, the latest being Regina v. Glynne, L. R. 7 (2- B, D. 16 ; and we may derive from those decisions a rule applicable to proceedings under tae Ordi- nance 19 of 1889. The Act of 7 & 8 Victoria gave to the mother a remedy somewhat similar to that which previously had been allowed to the parish. AfiSliation orders might be made by justices in petty sessions and appeal lay, but for the putative father only to quarter sessions. The appeal amounted in fact to a rehearing ; and an affiliation order either in petty sessions or at quarter sessions could only be made if the mother's evidence was corroborated in some material particular by other evidence to the satisfaction of the Justices. This requirement as to corroboration is copied into our Ordinance. There was no form of adjudication expressly provided in these statutes for those cases in which the adjudication is in favour of the defendant party, and there have been numerous decisions on the point of res judicata in cases where an order against the defendant was refused on the ground of want of sufficient corroborative evidence. Reginna v. Glynne now definitely settles the law to be, that where an order adverse to the applicant is made in petty sessions, the order is not absolutely conclusive, but is weighty evidence, and should be regarded on a seocnd appli- cation as practically conclusive unless there be reason to the contrary. In Regina v. Gaunt, L. R, 2 Q. B. 466, it was shew.i that the former order h.iJ been obtained by perjured testimony of a witness since convicted of perjury in the same matter, and it was held that an affiliation order made on a second application was good. But where the affiliation order has been refused in quarter sessions, "whether upon the ground that the evidence did not satisfy the Justices, or whether they adjudicated that the case was defective in any other way" (I quote Lord Blackburn in Regina v. Glynne) Regina v. Glynne decides that that is to be reckoned a decision "upon the merits", and that such a decision of quarter sessions upon the merits bars a second application. With regard to the renewal of application after a refusal in petty sessions, various reasons were assigned in some of the older cases temp. I,ord Hardwicke, and in Regina v. Machen, 18 L. J. M. C 213, for considering 88 THE CEYLON IvAW REPORTS. [Vol. I., No. 22. that the refusal was not to be deemed final in its nature. These reasons were based upon the views taken by the Judges of the special character of the jurisdiction of justices in petty sessions and the circumstance that right of appeal lay to the defend- ant party only. They were doubted in later cases, e.g., by the late Sir Robert Lush in Regina v. Gaunt ; but ultimately in Regina v. Glynne the Court assent- ed not to disturb the ruling already quoted. Refus- als in quarter sessions for want of convincing evidence were held to be absolutely conclusive. I think that there is no difficulty in applying the principal of Regina v. Glynne to cases under our Ordinance. There is no analogy between the de- cision of a Magistrate under our Ordinance and the decision of Justices in petty sessions under the Eng- lish Acts of 7 & 8, and 8 & 9 Victoria. Kither party can appeal from the Magistrate's decision, i can see no reason for holding that the decision of a Magistrate in such oase, not appealed from, is other than a final determination between the parties. On the contrary, it seems to me that in point of finality the Magistrate's orders, not appealed from, and the order of the Appellate Court stand on the same foot- ing, and we should apply to either the same prin- ciple as the Court in Regina v. Glynne applied to refusals in quarter sessions. In the case before us the Magistrate dismissed the mother's application on the ground that the evidence was insufficient. We ought to hold that decision a bar to her second application. For these reasons I am of opinion that the Magis- trate's order should be set aside, and complainant's application dismissed. DiAS, J.— The question here is, whether the plea of res judicata pleaded by the defendant is good in law. The Police Magistrate I think rightly dealt with the case as a criminal case. Some of the pro- visions of the Ordinance of 1889 are of a civil nature as fixing the amount to be paid by the reputed father, and how and when it is to be paid ; but the bulk of the matter dealt with by the Ordinance is criminal or quasi-criminal. It appears that in a previous suit instituted by this complainant against the defendant for not maintaining this same child, the Police Magistrate ordered as follows: "I dismiss the case." What he meant was to enter a verdict of not guilty ; and this is the matter which is put forward by the defendant as res judicata. In my opinion the plea is good, and the com- plainant's application should be refused. Prej-e«A'— BURNSIDE, C. J., and ClarBNCB and DiAS, JJ. {Se;pteniber 10, November 24, and December 8, 1891.) ^" ■^No^329^°^^' I MUDAtlHAMY V. KARUPANAN. Buddhist Temporalities — Ordinance No. 3(7/"i889 — Temple property— Tenancy created by priestly incumbent — Ac- tion for rent by lay trustee— Cause of action — Pleading. The Buddhist Temporalities Ordinance, No. 3 of 1889, sec. 17, provides for the election and appoint- ment for every temple a trustee, in whom, by sec. 20, all property belonging to the temple are vested. Sec. ig provides : "All contracts made before the flnte of the coming into operation of this Ordi- uauce ill favour of any temple or of any person on its behalf, aud all rights of action arising out of such contracts, maj- be enforced by the trustee under this Ordinance as far as circumstances will admit as though such contract had been entered into with him ; and all persons vpho at the said date owe any money to any temple or to any person on its behalf shall pay the same to such trustee, who is hereby empowered to recover the same by action if necess- ary." Where a person was in occupation of a tenement belonging to a temple under a tenancy created by the priestly incumbent of the temple subsequently to the coming in to^operation of the Ordinance ; Held (dissenttente Burnside, C. J.), that the lay trustee of the temple could properly sue the occu- pant for rent, although the contract of tenancy was not entered into directly with him. The Buddhist Temporalities Ordinance No. 3 of 1889 came into operation on November 15, 1889, by proclamation of that date. The plaintiff in this case, who is trustee appointed under the Ordinance for Niyangampaya Vihare, instituted this action on June 2, 1891, against defendant for rent of a certain tenement belonging to the Vihara for the period from May, 1890, to May, 1891. The plaint, after stating the plaintiff was "lay incumbent and trus- tee" of the Vihara, alleged "that defendant is the occupant" of a certain house belonging to the Vi- hara "at the monthly rental of Rs. 4", and "that the defendant is indebted to the plaintiff as such trustee in respect of house rent in the sum of Rs. 48 at Rs. 4 per mensem". The answer, among other things, pleaded that the plaint disclosed no cause of action against the de- fendant ; and it further averred that the defendant took the house on rent from one Guneratne Unanse a year previously, and that in January, 1891, he ren- ted the houfse from Guneratne Unanse for one year, and paid a year's rent in advance to the Unanse. Vol. I., No. 23. J THE CEYLON LAW REPORTS. 89 The evidence showed that the plaintiff was ap- pointed trustee in May, 1890, and that the defendant had entered into occupation under Guneratne Un- anse, the incumbent of the Vihara, and not under plaintiff. The Commissioner gave judgment for the plain- tiff, and the defendant appealed. The appeal first came before BURNSIDE, C. J., on September 10, and it was by his order set down for argument before the Full Court. The appeal accord- ingly came on for argument before the Full Court on November 24. Wendiiox: defendant appellant. Dornhorst {Seneviratne with him) for plaintiff respondent. Cur. adv. vult. On December 9, 1891, the following judgments were delivered :^ BURNSIDE, C. J.— This is an appeal by the de- fendant against a judgment for the plaintiff on the facts, there being a demurrer to the libel undisposed of. The libel alleges that under the Buddhist Tem- poralities Ordinance the plaintiff is the lay incum- bent and trustee of all property belonging to the Niyangampaya Vihara, and that the defendant is the occupant of a house belonging to that Vihare at a monthly rental of Rs. 4, and he claims that rent for a year from May, 1890, to May, 1891. The defendant demurs to that libel, and in my opinion his demurrer must be upheld. I do not find that the Ordinance in question cre- ates such an ofiice as "lay incumbent"; but even assuming that the plaintiff was duly appointed "trustee" under the Ordinance, he could only re- cover rent from a person in possession of the pro- perty of the Vihara upon a contract to pay rent made with himself as trustee or by virtue of a contract to pay rent entered into in favour of the temple before the coming into operation of the Ordinance, the right of action on which became vested in him un- der the 19th section of the Ordinance. Neither of these contracts is alleged in the libel, and it there- fore disclo,ses no cause of action ; and the evidence at the trial does not supplement the libel, if, indeed, under this peculiar Ordinance it would be permis- sible to give judgment on the facts, irrespective of the pleadings, as we sometimes do. The judgment of the Court below set aside, and judgment for defendant with costs in both Courts. CLARENCE, J.— lam of opinion that this judgment should be affirmed. The plaint filed by a plaintiff suing without any professional assistance is a plaint by a temple trustee, appointed under the Buddhist Temporal- ities Ordinance, to recover rent for a house belong- ing to the temple. It avers that plaintiff is "lay incumbent and trustee of all properties belonging to NiyangainpayaVihara",andclaimsRs. 48, as twelve months' rent at Rs. 4 per month, for a house which is averred to be the property of the Vihara. The plaint is open to objection, inasmuch as it does not aver that defendant is tenant under any demise made by any person on behalf of the temple. It merely avers that defendant is the occupant of house so and so, belonging to Niyangampaya Vi- hara, at a monthly rental of Rs. 4, which is not enough. The defendant in his answer purported to raise in general terms the objection that the plaint is insufficient, but no demurrer was pressed at the hearing. On the contrary, the defendant, both by his answer and evidence, set up a conten- tion that defendant is tenant under a demise made by one Guneratne Unanse who is the priestly in- cumbent of the Vihara. Defendant therefore has himself supplied the defect in the plaint. The plaint avers the plaintiff to be the "trustee" of the Vihara, and that averment having been traversed in defendant's answer is proved by plaintiffs evid- ence. We must therefore proceed to consider such other points as have been mooted. The plaint avers that the house in question is the property of the Vihara, and that averment is not traversed by defendant's answer. Even, however, if it be open to defendant to contend upon this plaint, and answer that this house \s ^udgalika and and not sanghika property, the defendant has sin- gularly failed in such contention. Unquestionably the house in question is sanghika property of the Vihara. As such it is vested, under sec. 20 of the Ordinance, in the plaintiff, the trustee ; and by sec. 19 all contracts made in favour of any temple or of any person on its behalf, even though made after the Ordinance came into operation, are enforceable by the trustee, who may recover all moneys due to the temple. The house in question appears to have beejj demised by the priestly incumbent of the Vihara, Guneratne Unanse, at a monthly rental of Rs. 4, to defendant. The answer indeed sets up a demise for a year, but the the evidence proves only such a monthly demise as can be made by pa- role. Defendant contends that the Unanse in Ja- nuary, 1891, demised the house to him for a year and received a year's rent in advance, and the Unanse endeavours to support the defence. This defence completely fails. The Commissioner entirely dis- believes the story of the payment of rent in ad- vance. If we could suppose that the payment which defendant sets up was actually made by de- fendant to the Unanse, further considerations would arise ; but the finding of the Magistrate renders it unnecessary to go further. It is evident that the defence set up is a dishonest and impudent attempt by the defendant and the Unanse in collusion to defeat the lawful claim of the trustee. go THE CKYLON LAW REPORTS. [Vol. T., No. 23. DiAS, J. — The plaintiff, as a trustee appointed under the Buddhist Temporalities Ordinance No. 3 of iSSg, sues the defendant for Rs. 48, beingf 12 months' rent for a house, the property of the Vihara, of wliicti the plaintiff is the trustee. The right of the Vihara to the house and the defendant's occu- patioi; of the house are not denied ; but the defend- ant sets up a tenancy under a priest who was the incumbent of the Vihara, and says that he paid the rent in advance to the priest, and calls the priest to support the story. It is quite clear from his evid- ence that he has no love for the Buddhist Tempor- alities Ordinance or the plaintiff, the trustee. The priest sets up a right to the house as his private property, which he can dispose of as he pleases. When the priest made this statement he must have well known that the claim which he set up was utter- ly unfounded. It will be news indeed to a Buddhist priest of any respectability to learn that the endow- ments of a Vihara are not sanghika property, not even the images in the Vihara ; and I need hardly add that the claim set up by the priest was the most impudent that was ever set up by any priest. The defendant seems to have got into possession under hs friend the priest; but under section 19 of the Ordinance the defendant is bound to pay the rent to the plaintiff trustee. I think the Commissioner has taken a correct view of the law and facts, and his judgment should be aflSrmed. -: o: P. C N PA«e«2f .•— BURNSIDE, C. J. {June II and 17, 1891.) o."i,?3o"^' j J^^S^ ^- USUBU I.EEBE. Medical pmctitionerSale of "legium"— Opium— Ordi- nance No. 4 of 1878, sections 10 c*" T.^-Int^-pretation. Ordinance No. 4 of 1878, section 10, makes it penal to possess or sell without a license any opium or bhnng, which by section 4 includes respectively any preparation in which opium or bhang forms a component part. Section 13 provides that nothing in the Ordi- nance shall be held to prevent any medical practi- tioner or druggist from selling by retail or possess- ing opium or bhang bona fide for medicinal pur- poses. " 111 a charge under section 10 against a Moorman practising in native medicine, for sale of legium ;— Held, that defendant was a "medical practition- er within the meaning of section 13 of the Ordi nance and was therefore entitled to the exemption created by that section. ^ In answer to the charge, the defendant relied upon theexemption created bysectioni3of the Ordinance; but the Police Magistrate convictedhim, holdingthat the section applied only to qualified medical practi- tioners. The defendant appealed from the convic- tion. Ramanathan for defendant appellant. Cur. adv. vult. On June 17, 1891, the conviction was set aside by the following judgment : — BURNSIDE, C. J.— The charge against the appel- lant in this case is, that he sold legium, being a preparation of opium, in his .shop, in breach of the loth section of the Ordinance No. 4 of 1878. Now, the 13th section of the Ordinance exempts medical practitioners from the operation of its provisious. The defence set up, inter aha, was that the appel- lant was a Moorish medical practitioner. The Ordi- nance nowhere defines to whom the description "medical practitioner" shall extend, and we must give the words their ordinary meaning. Medical practitioner means nothing more nor less than one who practises medicine, without reference to his qualification or the manner or result with which he practises it. Now, the defendant has called a wit- ness, a vedarala, who says that the prisoner prac- tises medicine, and that this preparation is used as a medicine. This is, I think, quite sufficient to bring him within the protection of the 13th clause, and he must be acquitted. /"reje^/.-— BURNSIDE, C.J., and CLARENCE and DiAS, JJ. {August 18, and September i, 1891.) P.O., Jaffna, ( No. 8,529. ( Canthapillai Odyiar v. murugesu. Resistance to a public officer— obstruction— Ceylon Penal Code section i&^— Execution of writ against property —Claim and obstruction ofse:zure—Rtght of private defence— Ceylon Penal Code, sections 89, 90 ^"'?,^^'^^''°P'"^^ claimed by defendant as his. The defendant resisted the seizure, taking the goods out of the hand of the officer and replac- taken them "° "^""'''"^ ^""""^ ""'^"ch the officer had tS, ^?f?i^ r""'^,'' °^i?'"^'i the defendant, under section 183 of the Ceylon Penal Code, of obstructing a public servantmthe discharge of his public functions;- Vol. I., No. 23.J THE CEYLON LAW REPORTS. 91 Held, that the property sought to be seized not being proved to be other than defendant's, the obstruction, not amounting to nn nssault or per- sonal injury, was a lawful act in the exercise of the right of private defence of property, notwithstand- ing the provision of section 92 sub-seetion 2 of the Penal Code, and did not constitute the oflFence con- templated by section 183 of the Code. The facts of the case sufiaciently appear in the judgment of Clarence, J. The Police Magistrate (Arthur Alvis) convicted the defendant, holding that, even assuming that the goods sought to be seized belonged to defend- ant, the obstruction could not, in view of section 92 sub-section 2 of the Penal Code, be justified, as the complainant had actfed in good faith under colour of his office. The defendant appealed from this conviction. There was no appearance of counsel in appeal. On September 1,1891, the following judgments were delivered ; — BURNSIDE, C. J.— I do not agree that section 92 of the Code touches the question before us. Had the complainant been suing for an injury to his person from any act of the accused, it perhaps would not lie in the accused's mouth to say : "I assaulted you in the exercise of the right of defence of my property which you had seized or were at- tempting to seize." But here the complaint is that the accused "did offer resistance to and obstruct" the complainant in the exercise of his lawful authority in breach of section 181 of the Code. I cannot construe that clause to make it an of- fence to offer resistance to the taking of any pro- perty by the authority of any public servant known to be a public servant. That would be most dangerous law, I think. In my opinion it is as much now, as ever it was, incumbent on a person who prosecutes for resistance or obstruction under section 181 of the Code to shew by way of com- plaint that he was acting by lawful authority. The accused cannot be made responsible under the section for merely resisting him. There is a mate- rial distinction between resistance and the aggres- sion to which only section 94 of the Code applies. There is no sufficient proof in this case that the property was the property of the judgment-debtor, and I think the accused in possession of the pro- perty had the right to resist the taking of it. He did no more than resist, and he should be acquitted. Clarence, J.— I have felt some difficulty in this case; but upon consideration I agree with the Chief Justice. Appellant is charged under section 183 with obstructing a public servant, viz., an officer in the employ of the Fiscal, in the discharge of his public functions. The proof is, that the officer, having in his hands a writ for a levy on the goods of one Kartikasoe, proceeded to seize some cloths which he supposed to be Kartikasoe's. The cloths were in a shop in which Kartikasoe had formerly traded ; but appellant resisted the attempt to seize, claiming the cloths as his, and asserting that he, and not Kartikasoe, now owned the shop. The resistance offered by appellant consisted in his taking the cloths out of the hands of the officer and replacing them in an almirah from which the officer had taken them. The Magistrate has not found that the cloths were Kartikasoe's, and the evidence, to say the least, leaves that point doubtful. Had the officer then persisted in his attempt to seize, and had appellant in maintaining his resistance done any- thing amounting to an assault upon the officer, it may be that by the operation of section 92 the appellant would have been open to conviction if charged with the assault. We ought not to impose restrictions on the common law right of private defence of a man's property, except where the Legislature has plainly created such restrictions ; and upon a consideration of those sections of the Code which deal with private defence, I am not satisfied that so much as this appellant is shown to have done in defence of property, not proved to be other than his, has been constituted an offence. I agree that appellant be acquitted. DiAS, J., concurred. :ot Present .-—CLARENCE and DiAS, JJ. {November 17, and December 4, 1891.) D.C., Colombo, ) MouRiER v. The Municipal No. 1,328. j Council, Colombo Assessment — Rating — Annual value — Block of house pro- perty — Method of assessment— Ordinance fsfo. 7 of 1887, sections 127 & 133. The Ordinance No. 7 of 1887 empowers the Municipal Council "to make and assess, with the sanction of the Governor in Executive Council, any separate or consolidated rate or rates on the annual value of all houses and buildings of every description, and all lands and tenements whatsoever, within the Municipality". Section 133 provides for the appointment of valuers to make "an assessment of the annual value of every house, building, land, or tenement whatever liable to be so assessed within the Municipality." In the case of a block of house property belong, ing to one owner let as a whole to one person, who sub-lets to actual occupiers ; — Held, that the question whether, in ascertaining the annual value for rating purposes, the block should be assessed as a whole or each building separately, must be decided according to the circum- stances of each case. Accordingly, where the property to be assessed consisted of along range of 19 small houses fronting a public thoroughfare, having one compound appurte- nant to the whole row, with one well and two closets 92 THE CEYI^ON LAW REPORTS. [Vol. I., No. 23. for the accommodation of nil, aud where the whole was let as one propert}' to a teuaut who sub-let sepa- rately to actual occupiers. Held, that the buildings should be regarded as separate tenements for purposes of rating, and that the annual value for rating is, for each tenement, the rent for which it can reasonab'y be expected to be let in an average year by the middleman to the occupier, and the annual value of the whole block is ihe aggregate of such rents. But held, that, in making the computation for the whole block, regard may be had to the circum- stance that in the case of small holdings there are periods of non-tenancy occasionally, and that the rents are not always to be obtained. The Municipal Council assessed the rov? of build- ings in question for the year i8gi at Rs. 1,104, taking the aggregate of the annual values which they put upon the separate lots. The plaintiff instituted these proceedings for the purpose of reducing the assessment to Rs. 720, which was the amount he received from the tenant to whom the premises had been let as a whole. The District Judge held that the annual value for purposes of rating was that the proprietor received from the immediate lessee, and not what the latter obtained by sub-letting in separate lots to occupiers, aud gave judgment for the plaintiiF. The Municipal Council thereupon appealed. Dornhorsi [Grenier with him) for the appellant. SamJ>ayo for the respondent. Cur. adv. vult. On December 4, 1891, the following judgments were delivered : — Clarence, J. — This is a rating appeal, in which the Colombo Municipality are appellants. The property in question consists of a number of houses or rooms not detached, standing in a row fronting the Grandpass Road, situate in one compound, or having one compound appurtenant to the whole row, and with one well and two closets for the accommodation of the whole. The owner lets all this compound and buildings to one tenant, who pays him Rs. 720 a year, the owner repairing and paying the rates, and this tenant sub-lets the buildings to separate occupants. The Municipality, upon a computation based on the rents ^hich they consider to be thus obtainable by this middleman, assesses the property as being sepa- rate tenements, at annual values aggregating Rs. 1,104 a year. Substantially, the question which the owner and the Municipality are contesting is, whether this property should be assessed, as the owner contends, in one lot, at the best rental reasonably obtainable for it in one lot, or, as the Municipality contend, in separate tenements. Respondent says, and there is no reason to doubt it, that the Rs. 720 a year is the best value he can get for the propertj', letting it in this way. The Dis- trict Court, upholding the respondent's contention, that the basis of assessment should be the rental obtained by letting the property s« bloc, has reduced the assessment to Rs. 720, and the Municipality appeal. Even on this footing the rateable value would be a little more than the Rs. 720, because, according to the interpretation clause of the Ordi- nance, as we have construed it, the annual value for rating purposes means the annual rental reason- ably obtainable j5/«j the outgoings for repairs and taxes. The main question, however, which the application raises is, wliether the appellants are within their right in insisting on rating the property as ig separate tenements. It appears that the appellants have numbered the premises in their books for rating purposes as 19 separate tene- ments under numbers ranging from 208 to 226, but that does not include the matter. Section 133 merely directs, assessment shall be made of the annual value of "every house, building, land, or tenement whatever" which is liable to be assessed ; and the question is, which is the reasonable way of assessing this property, as one tenement or several ? There is a class of small house property in large towns of which it is commonly said that the rents are hardly more than a payment for the trouble of collecting them; and such property is not infrequent- ly let in large lots to a middleman, who sub-lets, and so makes the best profit he can. When the owner of a block of house property finds it convenient to lease the whole to a middleman who makes a profit by sub-letting to actual occupiers, it certainly does not follow as of course that the property is to be assessed in one lot for rating. Neither can there be an.v hard and fast rule that every separate build- ing standing in one compound or curtilage ought to be assessed separately. Each case must be decided according to its own circumstances. In the present case I think that the description of the property which we find in the evidence bears out the contention of the appellants that it should be assessed in these 19 separate lots. The property appears to consist of a long range of building front- ing one of the ma n thoroughfares of Colombo, occupied by a number cf small families and occu- pants, one holding being occupied as an opium store, others as the separate dwellings of families, and one including a garden with 100 cocoanut trees and some plantain bushes. There is evidence that the opium store pays a rental of Rs. 9 a month, or Rs. 108 a year, to the respondent's lessee, and that most of the other lots are let by him at rentals of about Rs. 5 and 6 per month. In one case 5 smaller houses or huts in one range are assessed together. Vol. I., No. 24.J THE CEYLON LAW REPORTS. 93 It is doubtless convenient to respondent to deal with this property by leasing it one block to a res- ponsible middleman who pays an annual rent for the whole, and undertakes not only the trouble of collectijig from the actual occupiers, but also the risk of non-recoveries ; but I think that these are reasonably regarded by appellants as separate tene- ments for rating purposes, and that the annual value for rating is, for each tenement, the rent .for which it can reasonably be expected to be let in an average year by the middleman to the occupier. I do not say that in making the computation regard may not be had to the circumstance that there are seasons of non-tenancy occasionally, and that the rents are not always to be actually obtained . It may be that the appellants have made some allowance of this kind ; but having laid down the principle on which the assessment is to be made, we must leave it to the District Court to carry out the computa- tion. Having decided that the mode of assessment as 19 separate tenements is to be upheld, I think that we should send the matter back to the District Court, in order that that assessment may be revised upon that footing. As the appellants thus succeed in their contention as to the principle on which the property should be assessed, I think that they are entitled to the costs of this appeal, and that all other costs should be left as costs in the matter. DiAS, J. — The question here is, what is the gross annual value of the premises in question, and how it is to be ascertained. The plaintiff is the owner of a garden in the town of Colombo. There are about 19 small rooms on it, built together in a line facing the road. The plaintiff leased the garden and the buildings together to one man at a rental of Rs. 720 a year. The tenant sub-let the buildings separately to small tenants for sums varying from Rs. i to 9. The Municipality assessed the buildings separately, and, taking the rent paid by the sub-tenants, assess- ed the value of the buildings at Rs. 1,104 a year. The plaintiff contends that the gross annual value is Rs. 720, being the amount which he can get for the premises rented as a whole. This, no doubt, is a convenient way of leasing a property such as this ; but the principle on which the plaintiff's assess- ment is based is contrary to the provisions of the Ordinance, which authorizes the Municipality to value every "house, building, &c." for rating pur- poses, and this may be effectually defeated if the plaintiffs method of assessment is followed. An absentee proprietor of house property in the townmay find itanswershispurpose to lease it to one substantial tenant for an amount much below the annual value of the property when leased separately, leaving the tenant tomake what profithe can by sub- letting. These considerations do not concern the Municipality; but nevertheless due allowance must be made for the precarious nature of the income derived from buildings like these in assessing their value, and the District Judge will no doubt take that into consideration. Having thus started the principle upon which the assessment should be made, I agree with my learned brother that the case should go back for further hearing. The appellants will be entitled to the costs of this appeal, all other costs to be costs in the cause. -:o:- /'^fij-ffwif:— Clarence & Dias, JJ. (November 27 and December 8, 1891.^ D. C, Kandy, No. 3065. SOYSA V. PUSUMBA and others. Cauie of action— Mortgage bond— Judgment on bond- Assignment of judgmeit- Action by assi gnee against original debtors and parties in possession of mortgaged property — Procedure. Amortgagee obtained a iiioney judgment against the debtors in an action on the bond. The judg- ment .having become dormant, the plaintiff, to whom it had been assigned, applied in the original suit, making the debtors parties to the proceeding, to revive judgment and reissue writ ; but the ap- plication having been refused, plaintiif brought a fresh action against the debtors for the rcovery 'of the judgment debt, and against certain others, who were in possession of the mort'gaged propejty upon a purchase subsequent to the mortgage, for the purpose of obtaining a mortgage decree. Held, that the refusal of the application to revive judgment in the original suit is a bar to a fresh actiou against the debtors for the recovery of the judgment debt. Held, further that, plaintiff not being able to recover any debt from the original debtors, neither can he obtain a mortgagee's decree against purchas- ers claiming under them. The plaintiff appealed from the judgment of the District Court dismissing his action with costs. The facts of the case appear sufiSciently in the judgment of Clarence, J. Wendt for plaintiff appellant. Dornhorst for defendants respondents. Cur. adv. vult. On December 8, 1891, the following jtidgments were delivered : — CI.ARENCE, J.— In 1876 Horatala anil Pusumba bound themselves to Soysa for a debt of Rs. 1,000 and interest, and as security mortgaged a large number of lands, including three concerned in this suit. lu 1879 Soysa sued Horatala and Pusumba and had judgment for principal and interest, but the judgment was merely a judgment for a sum of money, and did not include any mortgagee's decree 94 THE CEYLON I