Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http ://www. arch i ve . o rg/detai Is/cu31 9240249641 02 Cornell University Library KF 1569.31875 Decisions of the Supreme Court on ai 3 1924 024 964 102 .»,..,. Cfcrn^U ilam ^rljaol Slifaratg DKCisfoisrs OF THE iS'PSlcMS COUiET' ON APPEALS PEOM POLICE COURTc AND COURTS ;0F .REQUE'STS, EDITED BY rJlOTOR, I»THTK!.«1' COUKT, ^KAKUy. ■- KANBY: JKf\TE» AT THE INDUSTRIAL SCHOOt.. 1378. -The folloivlng publication consists of a miscellaneous collec- tion of important judgments of tlio Supreme Court sitting ia appeal, chiefly during the years 1875 and 1876, on cases from the Police Courts and the Courts ef Eequests of Kandy and Dumbara, It has been deemed desirable, in order to render the present work more interesting and useful, to add several valuable de- cisions of previous years settling important questions of law. Georgb Fernando. Kandy, January, 1878, iisriDiE^. POLICE COURTS. Ad'i-inistration of Tnstice Ordinance Arnick Ordinance "- Arrest without WaWant A'.v.:.vt .... Blocking up^ road . . - Bribery ^ - -- . Cattle TrespT)':5 . . - Coiiductor of Es-tate. when criminally liable undser labor Ord, Disturbance' of public rapoSe Exemptions xincter I'imber Ordinance False informs lion Farrier is a skilled laborer MndJDg unoTTiied goods Forcible entry Forcibte reraoral of cattle Gambling houses Husband and wife - Insubordination Jurisdiction of P.C - EanakapuUe is a servant under the Ordinance Kangani refunding adrances and removing coolies Keepers of Gambling Houses Labor Oi'dinanoe ■ ticensing Ordinance lioitering on Estate - - - Maintenance Malicious Injury . . - Police Magistrate not a Police Officer Possession of Arrack Proclamation ... Eejecting Plaint > Eemoval of Arrack - Removal of Cattle - Seducing Coolies - - - , Supeilntendent, when criminally liable Theft .... Timber Olrdinance - 8, 11, 12. 10, 11. 1. 1«. 5. 6,. 3, 6, 7. 6. 2,3. 10. 1, 11, 12. 1. 17 to 20. 9, 10. 6,7. 8. 16. 15, 16. 5,8. 15 to 16. 12 to 18. 4. 6, 8, 12 to 16. 8,9. 4. 9. 7. 11, 12. 11. 9, 19, 17. 16. 10.11. 6,7. 5, 6, 12. 14, 15; 17, L3- !<>• COURTS OF REQUESTS. Administration, when not necessary Agent may be appointed by parol - Agreement written or parol Alimony ... Application for post-ponemeat 25. 21. 51. 42, 48. 28, 50. (continued.) Arbitration . . . - Assignment, right cf - ■ ■ Award. . . - - EndhistB ransnlas . - - - Bluden of pro'f . - - - Csncellation of lease ... Claim in execution C^aim "when admitted Claimant ia possession of land CompeBsation - ■ Costs in appeal . . . - C«iirts of Bequests - Culpa - - " . ." . Damages, when witlun G. R. Jurisdiction - Detention of Cattle by Headman - Double Costs . - . - Evidence, when meagre and in-conclusive Evidence of criminal proceedings when admissible Execi'fion, claim in Forfeiture of inheritance Il'orgery must be pleaded Headman, when liable Husband suing on b-. half of his children Joint and sevei.il no'.e Judgment mufcc be defijdte. Juiiadiction ... Leape Lessee's light apair.tt trespasser Liability of pro; liei ITS Liability on jcict aLd seveial rote List of witnessef, when nectssaiy to be filed Malicious prqseoution . . - Mortgagee's right to the mortgiiged property Mortgagee, when erlitleJ to conipciisaiion Pansairs exempt from tax - Promissoiy note Poptpo' ement . . - Presciii'tion should be pleaded Proceedp. sale ' - Proctor, when he nir'.v represent another rioctor Ecmoui' of catile v, i'.Lci t peiiuit Transjaior, wbcn lir.ble Toluntaiy reference Sale, what nie its reqnifites "iVitnesses, when list should be filed 23, 24. 27. 23, E7. 2.t. "~ 35. 58. "- ii, ■47, 56 '. - 48 54. 40, 41. 25. - 28, 44, 43. 37. 63. 48. 28. 52. e 21. 47. 36. 57. 48. 25, 26. , 55. 42 ,43. 58. . ■26. i^ ' • 26. , 50. 46 47. „ 50. „ 54- 29. 26 . 66 Ifc ,57. . 39. . 50. _ 4S. 49. 23. 24. 45. . 50. Eeeata. Page. JAce. ' 5 2 For plantation read " plantation." 16 3 „ simlar (footnote) read similar. 26 15 „ read 946 re^id 2-16 36 15 „ 8'j7 read 879. 40 ? (, a loan read alone. ^POLICE COUET, PANWIHA. No. 6,075. HOBBTELA Ve. HORBTELA. This IB a case of false information, preferi-ed by conSplaia- It is esseiitial ■«nt against defendant, in breach of the 29th clause of the to prove affi- 'Ordinance No. 1 of 1864 * a*'1h°°'I^o^ The Court below conTictod the defendant, but in appeal. the m-fn^fijein- xoriTiction was set aside, on the ground that the af&davit, on formation is which the false informatioa was bafeed, wa« not proTed. based ; mere Plaint 6th June, 1865. The complainant complains that production of tiie defendant did on the 20th day of March last, by a certain ^ient ^"^ affidavit by him s'STorn before Lionel Leo, Esq., a Justice of the Peace for the District of Dumbara^ wilfuDy give false in- formation to the said Justice, agaijist Welaygadera Horetela (the complainant) and others, with intent to support' a false accusation, jri breach of the 29th clause. Ordinance 1 -of 18:<54. (Per Magistrate Lee.) Defen4ant is found, guilty^ This is the firstcaseofthekindinmy jurisdiction, although the offence IB common, and that the man be an example to his fellows, I fine him £5, and sentence him to one month's imprisonment at hard labor. . Cayley for appellant. — In appeal — set asid&. Held : The affidavit in the Justice of the Peace case No. 463, on which the. present charge is based, was not proved. This pro,of was essential and ought to have been given. It was not enough ■merely to produce the case. 4th July, 1865. POLICE COUET, PANWILA. 1!f0. 9,428. Hawedia vs. MiseiN Bawa. ^he complainant in this case, a Kandyan headman, Vidahn , . , Kaha Dureya, charged the defendant, a Police, Constable, with po]i"e^^officer falsely imprisoning and hand-ciiffing him against his will of other than without a warrant. It would appear from the evidence, that those named ohe Pitche Muttu, swore an affidavit before Mr. Clarke, a Jus- in search war- tice of the Peace, alleging that he had lost some property ''' ' ^"^S^l. and obtained a search warrant, which was entrusted to de- fendant for execution. In that seareh warrant, the com-' plainant's name did not appear. The defendant notwith- standing, searched the complainant's house and took up two i_ — ^ . — " * This has been repealed by the ,3rd clause of the Grdiij^nce Ho. 11 of 18p,.and the^oSence is provided for by the 166th clause of this ordinance. ■s articles, a mamotie and an axe, which were claimed by the informant Pitche Mutto. The complainant wa» thereupon airested by defendant, who hand-cu£fed him and brought him to the Police Station, Panwila. Hence the present action. It may be well to add, that the informant Pitche Mutto, did not prosecute his case, which was dismissed owing to his absence. 7th January, 1868. Judgment per Magistrate Withers. Held that the defendant did falsely imprison (by securing his person and hand-cuffing him) complainant, on the 28th of September last, without legal grounds or without la^vful war- rant. He is therefore sentenced to pay a fine of ten shillingB. The appellant urged : — 1. That although in the search warrant complainant's name was not mentioned, yet he the defendant was justified in the line of conduct he pursued under the Police, as well as the J. P. Ordinanoe. 2. That Ordinance 16 of 1865, clause 52 enacts : " It skall be the duty of every Police Officer, and he is hereby authorized to arrest' without warrant any person,_who is charged on credi- ble information, or whom he has reasonable ground to suspect of having been concerned in any grave or forcible crime or outrage." That Ordinance 1 of 1864, clause 7 enacts : Every Fiscal and his Deputies and others his Officers, and all Headmen, Con* stables, &c., within the limits for which they are respectively empowered to act, are hereby authorized and required to arrest, every person who shall commit any crime, &c. 3. It was urged that hand-cuffing a prisoner wa» a matter discretionary with the Police Officer. In appeal. Affirmed. 28th January, 1868. Diaturbanos of the repose of a family, a- mountg to a disturbance of the public re- pose under the Ord'inance. POLICE COURT, KORNEGALLE. No. 9,716. Charge : That the defendant did during nightrtime at Kornegalle make a great noise and otherwise disturb the repose of the complainant and his family in breach of the 90th clause, of the Ordinance No. 16 of 1865. In appeal. This was an appeal from a conviction of the Police Court of Kornegalle (Pargiter, P. M.) under the 90th clause of the Ordinance No. 16 of 1865. The defendants were charged with distm-bing the repose of the inhabitants, and the evidence showed that during the night of the 11th instant, the defendants were sing- ing, playing on the flute and concertina, and (in the words of one of the witnesses) "carousing." The Magistrate found them guilty, and sentenced them to two weeks' im- g prisonment at hard labor. The defendants having appealed', Ferdinands for the appellants contended that the plaint dig- closed no offence. The Ordinance contemplated a distm-bancs of the inhabitants generally, and not of one or two particular individuals. [Temple J. That would be a disturbance of the " inhabitants."] But the plaint is defective in this respect. It states that the complainant was disturbed. [Temple J.^ The evidence supplies the defect.] In a case where the punishment is so severe, — I may almost say unparalleled, would not your Lordship allow me the benefit of even a technical objection ? [Temple J. I must confess the punish- ment was severe, and a iine would have been a more proper punishment.] That is the ground of my objection to the plaint'.. [Temple J. The case discloses an amount of feeling. I think it is a case in which the Governor * will reduce ths punishment to a fine.] Affirmed. 22nd September, 1868; POLICE COURT, PANWILA. No. 9,857. Francis Peekra vs. Odbappbn Chbtty. Plafnt : That the defendant did on the 20th of May, 1868 allow three head of cattle belonging to the said defendant to trespass in the Panwila Court. P. M. Pennycuick convicted defendant and fined him Es. 50. In appeal. Ferdinands for appellant. The plaint discloses no offence. If it was intended to charge the defendant under the Cattle Trespass Ordinance, it should have been so laid. 10,658 P. C. Battiealoa B. and V. p. 79. Temple J. And if laid under that Ordinance the ine is excessive. Creasy 0. J. That Ordinance applies only to cultivated and enclosed lands. Judgmeat.- Per Temple J. Set aside and accused is discharged . Held. The plaint discloses no legal offence, and it is im- possible to tell from the proceedings under what branch of the CdmBion Law, or under what Ordinance the Magistrate in- tended to deal with the case. 24th September, 1868. Ctarge for- cattle trespass, not being laid under the Or- dinance does notdislcoaean. ofEence. POLICE COURT, PANWILA. No. 10,493. E. M. L. DuMBARA vs. PuNGHiKALLB and Other*. Under Or- This is an action for felling Timber on Crown land in breach f^^^^^^^f of the 5th clause of the Ordinance No. 24 of 1848. ^ land is ' 4th March, 1869. Per Magistrate Pennycuick. The com- shewn to be pkinant has not proved in the slightest degree that the land forest, it is pre- * Vide Ordinance 7 of 1874, clause 6, by which the Supreme Court is now empowered to alter any sentences imposed by Polioo Courts. mimed to be- in question belongs to the Crown. The former decision iii' long to the ^j^jg ^^gg applies to a different part of seTeral chena lands aH the°^oXi^ ■^°^'^^ ^^^"^ ^'^^^''™*' ^^''^"^®'^*- , :, ,. ^ 1)6 (hewn. There bting no STidence to prove the land to be Crown pro- perty the case is dismissed. The appellant urged the folloTring:^-There being e-viden«e to shew that the land was forest, the presumption of Law it that the same is Crown property, and it was for the defendant to shew the contrary in terms of the 6th.clause of the Ordinance No. 12 of 1840. In appeal. Set aside and, case sent back for furlier hear^ ipg and consideration. As it stands at present there is express proof that the land was Crown Land, and the Police Magistrate ought to have borne in mind the presumption of Law on this subject which is created l»y Ordinance 12 of 1840 sec. 6. But the record looks, as if the Polio* Magistrate had hjm-r self stopped the case, so that the defendants had no opportunity of calling their witnesses, if they had atiy. ' Instead, therefore of directing a verdict of guilty to be entered, the Supreme Court sends tlie casei)ack. 27th May, 1869. POLICE COUET, PANWILA.. No. 10,899; SUSAY VS. CaRPEN. A person Inthiscasedefendantwaschargedwithbeing found onHuaas- {outtdonacof- garfa Estate for some unlawful purpose, aad withdut being Mtbe^uuiSsh- "^^"^ *° S^^^ ^ satisfactory account of himself in -breach of sec cdasava'^xant 6; clause 4, of the Ordinance No. 4 of 1841. cudcr Ori- nanoe 4 of 1841. 6th April 1869. Per Magistrate Pennycuick — Held that the plaint is an illegal one. The defendant is'accused of being on Hunasgaria Estate, and unable to give a satisfactory: account of himself. The 6th sec. of clause 4 of the Ordinance No. 4 of 1841, under which the plaint was laid,'only applies to housei, premises, or enclosed places, — a large Coffee Estate, which in not enclosed, does not in my opinion, come within either the letter or the spirit of this section of the Ordinance. * The case is struck off. The appellant urged : — 1. That the sec. in question is as comprehensive as lan- guage could make it, and the legislature in reciting placei of every conceivable kind, evidently intended that all properties belcSiigiilg to private individuals and not abandoned, are to be protected from the invasion of yagraats. * But see clause 4 of the Ordinance No. 8 of 1874 which proyide* for such cases. • •-' "' '-' s: 2. That ft» far as the facts of this case are concerned',, an- Estate can he included in the word plantation occurring in the section in question. Ferdinands for appellant. In appeal. Per Steward J. Affirmed. If, as has been suggested at the bar, the defendant was really found in a place which would come within the description given in the Ordinance, there is no objection to a fresh plaint being entered, charging the offence in accordance with the erms of the Ordinance. 22"nd April, 1869. offqur Bribing* Pq^ POLICE COURT, URUGALLA.. P. C. l^ALHAijy VS. KiBY Banda. 2,387. The defandant w.as charged with offering a biihe shillings to oomplaiiiant a Police Constable to suppress a offence at charge of nuisance instituted by complainant against on« common law. Weyrawaljie. Per Blagis irate Boake. So far as I know, there is no Or- dinance under which tlus charge is brought. Bribery is an offence at Common Law, but Iain not aware that bribing a Policeman is. I, dismiss the charge for want of jurisdiction,* In appeal. Set asid*. Hel^'that bribing a Police Con- stable is an an offence at Common, Law. 15th Nor., 18.70... EOLIPE COURT, PAIfWILA. Nq. 12,749. Kalua vs. Bcngkis. E«fen.d^;nt. was charged' with 'assaulting complainant' and blockin.g up the road leading to complainant's premises. 5th December, 1870. Per Magistrate Boake. The . de- f^dant is acquitted of the charge of assault, but found guilty of blocking the road up. He is fined one pound for so doing, and the Aratohi is ordered to see the obstruction remored. "In appeal. Set aside. The defendant is found not guilty cf th^ assault, the rest of the plaint discloses no legal offerice.f' 20.th December, 1870. "" ' POLICE COURT, PANWILA. No. 12,647. Paynj; vs. Frasee and twe others. In thii case complainant charged three defendants with seduo- The charge' of simply blocking .up a road disclosei no legal o£eace.. _ »In P..C. Colombo 4,197, S. CTield that Pojiqe" Courts haye no jurisdiction to try the charge of bribing a Policeman. Eamanathau v-M. ' . . - - t yid« p. CPanwila Na 13,399, reported b^ y«nd.^rstra»^ Aperai^i oaua- feg coolies to be arrested on a warrant for desertion without pro- bable cause, cannot be convicted of ■educing tbem. ing coolies under the 19th clause of the Ordinance No. 11 of 1865. Tht facts are as follows: — The coolies ill question had contracted with Payne's^ Agent Oft the coast to serve under Payne. On their arriral in Cey- lon, Eraser at the instance of the other two defendants took out warrants against them on a charge of desertion, and had them arrested. The cooHes pleaded guilty in court and .expressing a willingness to go to Eraser's Estate were allowsi to do so.- Payne claiming these coolies as his own, instituted this action. At the first trial (29th»November, 1870) Magistrate Boake convicted the 2nd and 3rd defendants, and postponed the case as regards the first. No appeal was taken from this finding. The following order was made (January 4th) by Magistrate Boake. First defendant present and pleads not guilty. As it is not certain that I have any longer jurisdiction to try this case it is postponed to the 19 th January. Defendant and witnesses are warned to attend. 20th January, 1871. Magistrate Wragg in a somwhat lengthy judgment recorded in the first place his disbelief of the testi- mony of complainant's witnesses : and secondly he held that the circumstances did not amount to a case of seduction* con- templated by the ordinance, and consequently he acquitted the first defendant. In appeal — affirmed. (27th January, 1871.) It haying been found in eridence that the first defendant is not guilty, the Supreme Court has no power to interfere. POLICE COUET, MATALE. No. 44078. Mbtappbn vs. Cornelius. The defendant who was a Conductor of Wanarajja Estate was charged under the 14th clause of the Ordinance 11 of 1865, ACondnctorof with having refused payment of wages due to certain canganiee. anEstateisnot (^p j^ Templer) 9th May, 1871, convicted the defendant ani S)le'for non- ^^^ tim £5, and ordered him to pay £1.7 to complainant payment of the wages due. wages to cool- In appeal. Ferdinands for appellant. Set aside and de- ^*^' fendant acquitted. Held, that defendant is not an employer of labor within the meaning of the 14th Section of Ordinance 11 of 1865, under which this prosecution is brought. 1871. POLICE COURT, PASYALA. No, 69. Forcible re- The defendants were charged with entering complainant's- Milmal °* i™ i^«ii*ed garden and forcibly removing therefrom a bull whi«h pounded for complainant had impounded for trespags ; and secondly, trespass is not with assaulting complainant. «• V de P. C. Pusselawe 9,219, p. 36, Grenier. No. 2 Report for 1873. -7 Magistrate l)«vids acquitted the defendant! of the charge ef assault, but eonvicted one of the defendants of a misde- meanour at common law, and fined him ten shillings in these termg : — Now there is no doubt that the pl«intiflf h»d a right to ieize •nd distrain the bullock ; (see Herbert's Grotius 458. 1 Thorn* son 428) and that therefore the defendant had no right to take away the animal against the plaintiff's wish. If the dam- ages demanded were excessive, the defendant should have offered reasonable amends, and on being refused should have had re- course to a court of law. I find no similar case mentioned ia the text books, or in the -published reports of decided cases, but vibi jus remedium, if a man kas a right he must of necessity have a means to viadi- cate it.* 2 Thomson p. 20. Lorenz for appellant. — In -appeal — Set aside. The first part of the plaint does not disclose a criminal offence. As re- epects tha charge of assault the Magistrate did not consider it proved. The complainant would have been ju»tified in pre* venting the removal of the bullock, and if the assault had been proved, the defendant would have been liable. 'fc orminW oSenos. POLICE COUET, PANWILA. No. 13351. Don AjS'dris vs Noris and others. The defendant! were charged with maliciously and unlaw- fully cBtting and destroying the fence of complainant's garden in breach of the 7th clause of the Ordinance No. 6 of 1846. Per Magistrate Smart — The land appears to be complain- ant's — Defendant had no right to knock down his fence as he has avowedly done without his permission. Second defendant is fined sne pound, the other defendants are too young to be punished and being merely second defendant's instrument!, they are warned and discharged. In appeal — Set asid*. Held. To render the defendant criminally liable, ft should be shewn that he maliciously injur- ed the fence. It would appear that there is some bond fide dispute in re- gard to the land. The fact of the parties having previously been referred by the Magistrate to a civil action confirms sueL a conclwsion. 8rd July, 1872. To ren^eJ a person amen- able to the 7th clause of Or. dinance 6 of 1846, it must be shewn that he acted ma- liciously. But a question of ■ title, bond fide raised, nega- tives malice> •The new cattle trespass ordinance 9 of 1876, clause 12 applies to sneh cases. A. Faniftr is a sldlled la- 'borer,aaddo6s not come with- ' in the meaning of tlie words " servant or journeyman artificer" in the Labor Oi- 'dinance. •Under clause. 96of the Ordi- nance No.ll of 1868, Police Courts have no juriidiction to try persons ■charged with keeping gam- bling, houses. In such a case proceed- ings were quashed not- withstanding a plea of "guilty." ^POLICE COUET, KANDY. No. 100,595. Newman vs Silva. 14tli January, 1875. In this case Magistrate Withers hell that a Farrier comes under the denomination of a servant oi journeyman artificer and convicted defendant. In appeal — Set aside, in these terms : Farriers working for so much a day, have not been held to fall under the operation of the labor Ordinance. , . The work of a Farrier is one requiring special manual skill, and the relation of master and servant cannot be fairly said to exist between the keeper of the farrier's shop, and the farriers whom he employ?:, and pays for by the day. 23rd Feb., 1875. POLICE COURT, KANDY. No. 102,039. Inspector Dunuvcille vs SetuA. The defendant was charg-ed under the 19th clause of the Ordi- nance No. 4 of 1841 withkeeping &c., a kouse for the purpose %t common or promiscuous gaming^ &c. Defendant pleaded guilty tothe charge, and was sentenced bythe Police Magistrate Withers to sis months' imprisonment at hard labor, and to paj a fine of Es. 50. "The defendant is advised to appeal, judg^ ment was given in forgetfulness that this was beyond the jurisdiction of the Police Court, and there is no certificate from the D. Q. A., even if such a certificate could be presented in a case wheire a sentence of six months' imprisonment ihust "be passed." The appellant urged the plea of jurisdiction. In appeal — Set aside, and the proceedings quashed, for th^ reasons given in the Colombo Police Com-t Case No. 5,400 reported in Gren- ier's Police Eeporfcs of 187S page 23, as to Police Court hav- ing no jurisdiction to try keepers of gambling houses under Ordinance 11 of 1868, clause 96 which apply to this case. 11th May, 1875. license to sell liquor to be consumed on the premises, covers license to sell liquor to be consumed off the prem- ises. POLICE COURT, KANDY. No. 25, J. DE LaHarpe vs- ANPnis Peheea. This was an appeal from acocvictionunder the Licensing Or- dinance No. 7 of 1873, clause 10, by Police Magistrate Boake who held that defendant committed a breach of the 10th clause by selling a bottle of hquor to be consumed off the premises al- though defendant had a lieehse to sell intoxicating liquors gen- erally to be consumed on the premises by the payment of a duty of El. 50. In. appeal— Set aside.' Held that the; license to sell liquor to be consumed on the premises for which a duty of Bs-50 is payable, covers the sale of liquor for consumption, eff the pre- mises for which only B.s-25 is payable. The defendant has committed no breach of the 10th clause, and it is clear from clause 13th, that though it is made an offence to drink liquor 971 the premises, whea the seller is not licensed to sell liquor to be so drunk on the premises ; the conyerse is not provided for. 8th_Jaly, 1875. POLICE COURT, KANDY. No. 101,452. In this case the Police Magistrate held that the mainte- On a charge nance given by defendant to complainant (who was his wife) for non-maia- was intufficient, and convicted him by sentencing him to pay ten^ice uu- a nominal tine, with a warning. _ ^^^ Clause of Per Magistrate Boake. It is shewn that something has Ordinance No. been done by the defendant towards the maintenance of his 4 of 1841, it is ^i^, but he is bound to see that it is sufficient. I do not ''°p 'j?!'^'^^!"- consider that it is, * but as the defendant through his Proctor fg^i-ate to oou- expresses a willingness to do more, and urges that until sider whether this suit was brought, no complaint was made of its insufficiency the " maiutan- I will only inflict a nominal fine. The complainant is ill, f'"-^ , ^'"^l\ UBable to work, and does not appear to be properly cared for. ^J^^^g wife' is The defendant must do all this. He is now living with an- sufficient. other woman, so I shall listen to no excuse as to the in- sufficiency of his means.. He is fined a rupee. But on'any farther complaint, the Court will punish him with the utmost Tigor of the laW; la appeal. Affirmed : without prejudice to the defendant to show, if he can in any future case, that he has made suffi- cient provision for the complainant. 21st July, 1875. POLICE COURT, KANDY, No. 103,007. PoLiNGURALLE w Kberallb and others. The charge was laid under the Proclamation dated 5th To sustain a August, 1819. Per Magistrate Boake. The case is dismiss- ^^^'^^'^ V^'^'^^ ed. To sustain a charge of this kind, it is necessary to prov% tion datedTth •actual physical force. August 1819, In appeal, set aside, and case remanded for further hearing, proof of a ac- Ileld. Actual physical force, by which expression the S. 0. *""'^^ physical concludes the -Magistrate mean* an assault, is not absolutely °^'!*^;^; ^° *Vide Vanderstraaten's Eeport.s part 2, p. 261, Police Court, Pa- faadura, 18,708; also p. 158. Police Court, Matara 68,377.^ 10 A iemonstra- necessary to constitute an offence under th« Proclftmation of in°^cative°^of ^^S^^^ ^th, 1819. A demonstration of fofce by the accused violence is° indicative of violence as would lead to a breach of the peace sufficient. would be sufficient to render them liable. [See B. & M. L. M. No. 16, part 8, F. C Eatnapoora 5163, per g. C, Dec. 14th, 1866.] According to the evidence of the complainant, it appears that he was in possession of the field, and that the defendants in this case, some fifteen in number, forcibly removed the crop of the field, threatening him that if he made any resistance they would fight him. 3rd Auguit, 1875. POLICE COURT, KANDY. No. 101,049 R. M. of Yattinuwaea vs Kiryhonda and two others. Timber of a The defendants were charged with felling and removing kind used for Tjj^jjgj. ^^^^ QrovTO. land in breach of the 5th clause of S^ald ako th« Ordinance No. 24 of 1848. On the 8th June 1874 P^M. for ' posts in Boake acquitted all the thi'ee defendants, holding that the bmldings,does timber in question was of little value, and that it was not come im- exempted, and that it had not been shewn that the forest emption con-" ^^^ «Pe<=i«lly ''f^^''^f\ ....... tained in the In appeal — Amended. Accordmg to the evidence, timber 15th Section of the kind in question is eemmonly used for making of Ordinance charcoal and also for posts and building purposes. The • exceptions contained in the 15th section do not extend to such timber. The acquittal against the 1st and 2nd defendants is affirmed against whom the evidence is insufficient. The 3rd defendant is adjudged guilty and fined Rupees ten. (JOth Aug., 1875.) POLICE COURT, KANDY. No. 386. SiLVA VS. Velayaf. 1.— No per- The defendant was charged with removing three bottles of mit IS required ajjack fi'om Kandy to Lower Hewahetta without a permit, flT /jr^OT ^^ ^'■«»<=^ °^*^^^ ^^^^- clause of the Ordinance;No. 10 of 1844. possession of 26th July, 1875. Per Magistrate Boake. Defendant is arrack where found guilty. He has proved that the arrack was sold to the quantity jjim \,j the Kandy renter. The arrack was in his possession ^°^ed°lwo^' ■^.*^^" *^® Hewahetta Renter's territory. He is fined Rupees quarts, even if Fifty- , „ ._ -j j jf j . the person re- In appeal — bet aside and aetendant acquitted. Ihe moving was defendant in thig case wag geized removing ^wo bottleg 11 of arrack, without a permit in a district other than that found in a dis- in which the tavern is situated, at which he purchased *^°* that in the arrack. which the ar- The 32 Sec, of the Ordinance 10 of 1844 under which rack was sold, the plaint is laid, must be read in connection with the 2.— Section 27, 21 and 33 Sees,— according to which no certificate ordinaSLeNo^ is required for the sale, removal or possession of arrack, jq of 1844 not exceeding two quarts, wherever the person removing should be read the arrack may be. See judgment of Supreme Court, together with Galle Police Court No. 44268, Beling's Reports part 2 *H2J*^i 2^*^' page 1. 17th Aug. 1875. ^L POLICE COURT, KANDY. No 388. Periks vs. Sabacht. The defendant in this case was charged with possess- ing arrack in breach of the 32nd clause of the Ordinance No. 10 of 1844. (SOth July 1875.) Per Magistrate Boake. The defendant is ' found guilty and sentenced to pay a fine of Fifty Rupees. In appeal — Set aside and defendant acquitted. For reasons — See judgment in Police Court Kandy 386. 17th Aug. 1875. No. 519. POLICE COURT, KANDY. This was an appeal from the finding of Magistrate C Lieschiug, who held that in an action for b. breach of the 166th Under ttie clause of the Ordinance No. 11 of 1868 it was not competent ^^j.^ ^^ Police for private individuals to prosecute for false information unless Courts, a authorized to do so. charge for In appeal — Set aside and case sent back to be pro- g"'i°g false ^„j„j „,.xi, ■ information to ceeded with. .aJusticeof the Held- By the 1st rule of General Rules and Orders peaoe can be for Police Courts, it was provided that any person may presented by- complain to Police Courts of any crime or oifence what- " ^^7 person," eoever cognizable by such Courts. 31st Aug., 1875. ^^Zthontj POLICE COURT KANDY. No. 102,226. ' Bastiaw vs, Sotza. The defendant ia Police Court case No. 101,961, was A Police charged with wifuUy giving false information to the Police ^^f^^,%\ '^ 12 021;or' with- Magistrate, an Officer of Police charging tL« complainant in J"" ''T ".°?;"' the present case with a bredcK of the Ordinance No. 4 of 1841 'clause 'of the '^^^^ ^ '"^'^ ** support a false accusation contrary to tht terms OrdinanceNo. of the 166th clause of Ordinance No. llVf 1868. llof]8(.:». 21st Augt., 1875. On complainant being examined he stated as .follows : — I hold no authority from the 'Q, A. to prosecute the present charge. I am not a public ofBcer. The false information . of -which I complain was given to the P. M. It -was a Police Court charge- undet the vagrantOrdin'ance, and I was acquitted. Judgment per Magistrate C. Liesching. Case dismissed for the following reasons. ]. — Clause 166 of Ordinance. No-. 11 of 186'8 does not refer to cli5r;T<^s (true or false) preferred in a P. C. though often the Magistrate may , happen to be also a J, P. 2. — Complainant is not a public 'ofEfc»r, amd holds no authority under clanse 166. Every false information' to a J. P. is a public rather than a private wrong, and this Court is of opinion, that it is not competent to s prn-.-ite incfividual to prosecute for a breach of elaiise 16§ of the Ordinance in question, eKcept under special authority. Complainant to pay defendant's reasonable expenses including those of counsel. In appeal— Affirmed. On the 17th Sept., 1875, for tie first reason given by the Magistrate viz. that.th* alleged false information was given to a Magistrate in a Police Court case. As regards the second ground, the Magistrate was in piTor in holding that only a public officef, or a person holding authority is entitled to prosecute for a breach of the 166 clause of Ordinance No, 11 of 1868. See judgment of S. C. in Kandy P. C. 519 dicided Augt., Slst 1875,' POLICE COUKT, KANDY. No. 3313. ■ A Eari^'ntii This was an appeal from a conviction ly P. M. cannot becon- Swettenham under the'l9th clause of the Ordinance No. 11 of Ticted ot se- 1865. ' ' ' ' auction m res- ^ i t. r. . /-. ■ pect of coolies, ^^ appeal. Per l.ir G. Aiiaerson A. C. J. Stewart J, wlio were re- and Clarence J: — moved by^Mm get aside, and a verdict of acquittal ordered to be entered, ment of his ^^® defendant in this case, a Cangany, was charged part of an ^7 ^'^^'- Waller, the Superintendent of Gakha Estate, agi-esment with having on the Ist iay of May last; wilfully an4 iTith their em- knowingly attempted to seduce from the service of the- thTshouldbe '=°'"1?''''°'"*' certain coolies named in the charge and at liberty to others, who were bound by contract to serve the complainant leave the Es- in breach of the 19th clause of the Ordinance No. 11 of 1865. 13 The Magistrftte conriried the accused f?nd rfntcr.ccd *"*'^ "" P»r- Inm to pay a fine of BslOO. The conviction l^f^s been ^'^'^*^°*^^^|J- appealed against on the ground, chiefly, that the conduct vancos within of the complainant as ehcwn by the evidence adduced in a specified the case, justified the defendant in removing the coolies *™«- Where in question from Galaha Estate, and transferring ihemas !,aia'°'^!f ^^'^ he admits he did, to ODiploym?nt elseivhere. tain ed by the There is no substantial disagreement as to facts. Complainant, From the eudence, documentary and oral, it appears that ^i'' subsequent in the month of February last, the defendant Tvho liad t^^™^g^° ^^* been recommended to the complainant by a Mr. Northway, ^^gg ^^^^ ^_ entered into an agreement ^frith the c&mplainant in con- new the con- sideration of Bs-1000 paid to him, to bring te Galaha tract of ser- Estate 190 coohes, and to keep them there in a like ^^'^' °L^^^% number, for the crop of 1876. This agreement, which was p^^^eg^ ^™ ° reduced to writing and signed by the parties, bears date th« 8rd of Feb. 1876, and in pursuance of it, a number of coolies, not amounting however to the specified number, was brought to the Estate, and they practically, but without any express contract, entered into the service of the complainant. The complainant does not however appear to have been satisfied wiih the conduct of the defendant in the matter, and ii is alleged on tht part of the defendant, that in consequence of this dissatisfaction, he made an offer to the defendant to allow him to leave the Estate, and take away the coolies he had brought, provided, he the defendant returned to him before the end of April, the Bs-1500, which he had advanced him, and in support of this posi- tion, two Ittters were produced and given in evidence on the part of the defence, which had been written and sent by the complainant to his friend Mr. Northway. These letters were certainly understood by Mr. Northway as expressive of a desire on the part of the complainant to get his money -back, and get rid of the defendant and the coolies ; for Mr. Northway, acting ( as he says he thought he was doing) in the interest of the complainant sent these letters to one Mr. Theobold of Little Valley, who he knew was in want of cooliea, and the result was that Mr. Theobold advanced the defendant the ^RrS^1500, wHh the understanding that the coohes on the 1st., of May, should be transferred from Galaha Estate to the service of Mr. Theobold. The defendant having obtained the money, carried it on the 29th., of April, and paid it to the complainant, a fact that is substantiated by the evidence of thjB complainant iiimself, and was acknowledged hy his counsel at " the hearing of this a,ppeal,. together with 4he further fa,ct^that, the money bo r^ceivedby him had been, ?ind still is, retained by him. Having ilius received the money, ihe complainant then gave notice to the defendant, in the hearing it would ap- pear of a number of coolies, that notmthstanding the payment so made to him he would not allow tht coolies to leave Galaha ; but the defendant acting on what he contends was the clear understanding and agreement between the complainant and himself, and on the faith of whioh he repaid the S&-1500, took the coolies away, and entered with them into the service of Mr. Tbeobold. The letters produced in evidence were understood both by Mr. Northway and Mr. Theobold in the sense contended for by the defendant, and having ourselves perused them we can place no other construction on them than that which Messrs, Northwaf and Theobold arrived at, and the question therefore resolves itself into this, whether the Bubgequent retraction on the part of the complainant of his sanction to the departure of the coolies from the Estate, restored to the contract of service its original obligatory character. Thii we are of opinion cannot be maintained. By accept- ing and retaining the ils-1500, the license previously given to the defendant to remove the coolies became an executed contract between the parties which could only be rescinded by mutual agreement : and consequently the charge against the defendant fails, and he is entitled to an acquittal. The judgment of the Police Court is therefore set a- side, and a verdict of acquittal ordered to be entered. 4th July 1876. POLICE COUKT, KANDY. No. 4585, Weeeappen and another, Complainants. vs. NicoL, Defendant. A Superin- . , tendent of a In this case the defendant, under whom the complainants Coflfee Estate served, was charged by them with having vrithout reasonable is criminally cause refused to pay complainants' wages for six months in the 14th *"^^^<'^ °^*^® 1*<^^ ''l^^se of the Ordinance No. 11 of 1865. Clause of the Magistrate R. H. Morgan sentenced defendant to pay a Ordinance No. fine of Fifty Eupees and also to pay the wages due to com- 11 of l?65 piainants. Wages due to 1st complainant being Rs 11. 88. payment ^f -Against this finding the defendant appealed and urged :— wages to cool- 1- — That the defendant being only a Superintendent, and ies. therefore merely a paid servant on the Estate, was not respoc- sible to the eoolles for their wages, so as to he punished crim- inally for their non-payment — the coolies being servants of the Estate. 2. — That the Superintendent could only pay the coolies their wages, whenever he received money from the proprietor for that purpose, se that if the proprietor delayed in sending the money and thereby the wages ran into arrears the only person criminally liable would be the proprietor, and not the Superin- tendent. In appeal — The finding of ihe Court below was affirmed. [8th November, 1876] POLICE COURT KANDY. No. 4536. In this case two defendants were charged with * mis- a Kanaka- conduct, insolence and inciting other coolies to disobedience pulle on a Cof- of orders, in breach of the 11th clause of the Ordinance No. 11 ^ee Estate is , ' not a skilled «>1 loDO. laborer and The first, was a KanakapuUe and the second a - Cangany. comes within 23th Sept., 1876. P. M. E. H. Morgan acquitted the the operation first defendant, and convicted the second defendant. The ^^^^^^^^f^J^g complainant appealed against the acquittal of the first, and ordinance No. the second defendant appealed against his conviction. 11 of 1865. The S. C. affirmed the finding as regards the second- defendant, and set aside the acquittal of the 1st defendant, and sentenced him to be imprisoned at hard labor for three weeks, in the following terms : — The two defendants in this case, the first of whom has the addition in the plaint of "Kana- kapulle" to his name, and the other that of Cangany, were charged with insolent behaviour on Kirimettia Eitate towards their employer the complainant, with inciting the coolies to disobey his orders, and with otherwise misconducting themselves in breach of the 11th clause of the Ordinance No 11 of 1865. The evidence clearly established gross misconduct and in- subordination on the part of both defendants, especially the Ist, who however, was acquitted on the ground that he did not, in the opinion of the Magistrate, come within the pro- visions of the Ordinance. He remarked at the same time that he came to this conclusion vrith great reluctance as the "lat "accused's conduct in trying to incite the eoolies, and his in- "solence towards the complainant deserved a heavy panishment" The 2nd defendant was convicted. He has appealed, and so has the complainant against the acquittal of the 1st defendant. There can be no question that the 2nd defendant was properly convicted. As respectg the 1st defendant it was u ttontended, bath in- ths Court b»low and before ua, that he \Yivs not a servant within the meaning of the Ordinance, and that his duties in the Estate were those of a Clerks We have catefuUy ; considered ; the arguments adduced by the learned counsel on behalf of tlis 1st defendant, and are Unable to come to the same conclusion as the Magistrate. It appears to us, having regard to the position, station, and ihe duties of the 1st defendant on the Estate, as far as they are generally known and are to be gathered from the proceedings, that his employment was of a similar character to th»t of a cangany * or other like servant. He had to attend parade in the same way as oth«r coolies »nd canganies, residing apparently on the Estate, and his name (so far as we can form an opinion there being no express evidence on the point), being borne on the check loll. ■ Under these circumstances, the- mere fa,ct. that, he had to keep the accounts or memoranda of the coolies em^ ployed at work in the field, would not the less make him a servant as defined by the Ordinance. It should be remembered that the word "servant" does not only comprise the several descriptions of servants ex- pressly mentioned : but by the interpretation clause is made to include other servants employed "in otter hke work." The difficulty in this case would seem to have arisen from the complainant using without qualification, the word clerk as the English for KanakapuUe. As we have already pointed out, the duties of the 1st defendant were other than those of an ordin.%ry copying clerk or accountants 20th Ootaber, 1876. POLICE COURT, KANDY. No It is not On the 23th Oct., 1876 when a plaint for assault on irregular for Complainant's wife was submited by the husband to Ma- pro^cute a gistrate R. H. Morgan, he rejected it on the ground charge for au that, the wife ought to present it, and not" the husba«d assault com- on her behalf. mitted on In appeal— Set aside, and the Magistrate was directed to nis wite. entertain the charge in these terms :— The Complainant charges defendant with assaulting complainant's vrife. It , ig perfectly competent to him to perfer the chafffe 7th Nov., 1876. ® '•In 100,861 P. C. Colombo (decided 29th Nov 1867 anrl rpnftrteH ilJT\li,o'^^^ '''^* ^--J.^ '''^''''^ col-lei>e'court'^d that » Eoa-d Overseer occupied the position eimlar to that of a Can- 17 POLICE COURT, KANDY. No- 4,597. Makosl v$. Vberbn and four others. The defendants were charged with theft and receiving stolen property with guilty Imowledge. The first' and second were convicted, and the other defendants acquitted on the 2nd Nov., 1876. The following is the judgment per. Magistrate R. H. Morgan. It is contended that accused had a right to take the plantain bunch, because Mr. Blaze their employer claimed the land. When Mr. Blaze bought the land, complainant was in possession of this portion on which the plantain tree stood. Whatever right Mr. Blaze may have to the land for which he has not as yet instituted a case, I hold his coolies had no right to go to the land, which was in complaintant's possession and remove a bunch of plantains. Such removal is in my opinion a theft. 1st and 2nd accused are adjudged guilty — the rest acquitted and discharged. The 1st accused is sentenced to be im- prisoned at hard labor for 14 days, and the 2nd accused for one week. The 1st and 2nd defendants appealed against the above finding. In appeal (24th., N«v., 1876.) The conviction was set aside. The question of the innocence or guilt of the accused turns, not on the point of their actual legal right as put by the Police Magistrate, but on whether or no they believed they had some right, and the evidence tends strongly to shew that they acted under a bond Jide belief that they had a right to take the fruit, the taking which is charged against them as an act of theft. The judgment is therifore set aside and the accuse4 ^re acquitted, 24th,, Nov. 1876. In A case oi theft, the question ofthe innocence oi gpilt. of the accused does not depend upon their ac- tual legal right, but on whether or not they acted un- der abonafidS belief of a. supposed right. POLICE COURT, KANDY. No. 5,107. Inspectob Marshall vs. Seyedu Osmait and another. In this case the defendants were charged with a breach of^the Proclamation dated 25th October 1823, were tried and the first defendant was convicted. Plaint,-:— Th^i the defendant^ did on th« 15th October 1876 find a watch and a chain belonging to one Mr. George Kent Deaker, and did not bring the same to the notice of the head- man of the village or the division in which the same was found, or to, any Police oflScer, in breach ofthe Proclamation dated 25th October, 1823, 1, The Proclamation dated 25th October 1823 though omit- ted in the revised Edi- tion of Ordi- nances is still in force in the Kandyan Pro- vincee. 18 2, There- fore amy p6r- »ou finding unowned goods in the said ProTinc.e is liable to punishinent, unlesa he com- plies with the requirements «f the Procla- mation. 3. The 99th olanse of Or- dinance 11 of 1868 confers jurisiiiction on Police Courts to tiy sucli cases with the sanc- tion of the Q. A. The following judgment by Magistrate R. H. Morgan, fully Bets out the facts of the case :— I find some difficulty in coming to a conclusion in this case- If the Proclamation under which tMs charge is brought be not repealed, it certainly seems seldom, if ever to have been acted on. There is, I believe, no Supreme Court decision on this point. I trust therefore an appeal will be taken in this case. As far as I can see, the Proclamation of the 25th- October, 1823, relating to the Kandyan Provinces does not appear to have been repealed. It certainly is not published in the new volume of Ordinances, but this alone is not con- clusive proof that the Ordinance and Proclamations so omit- ted are not law. The Ordinance 7 of 1872, only makes the con- tents of that volume iirimd facie evidence that they are the only lawful regulations. This Proclamation now in question was published in the preface of the second volume of the Ordinances issued in 1854, In my opinion though the Or- dinance 6 of 1833, which vests in District Courts thejm-isdic- tion under the Proclamation, is repealed by Ordinance 5 of 1869, yet the 99th clause of the Ordinance 11. of 1868 con- fers jurisdiction in this sort of cases on Police Courts where the Queen's Advocate's certifircate is annexed. The Pro- clamation makes the offender punishable "by fine or impri- sonment either with or without being employed at hard labour at the discretion, and according to the powers of the Agent before whom such conviction may take place.'.' This jurisdiction was vested in District Courts by Ordinance No. 6 of 1833. The Ordinance No. 11 of 1868, clause 99 provides, "That in case of the breach of any enactment made for the protection of the revenue, or of any entctment making penal any act not in itself a crime or ofience, and which breach would not otherwise be cognizable by a Police Cotu-t by reason of the amount of punishment declared in respect thereof * » * » if a certificate shall be presented to any Police Court signed by the Queen's Advocate,* * * it shall be competent for such Court * * * to take cognizance." * * * The evidence clearly proves the charge against the first accused. The first accused is adjudged guilty and fined twenty- five rupees, and second accused is "acquitted and discharged. The Appellant urged the follawinginiis Petition of appeal : — 1. Whether the Proclamation of 25th October, 1823, is in force ? 2. If in force, whether the ofience created by the Proclama- tion is cognizable by Police Courts ; or whether the machinery for the working of the Proclamation has ceased to exist ? As regards the first point, the appellant submits that the Proslamation in question ized proctor, who has been unexpectedly called away. It would have been desirable, if Mr. Ferdinands, before leaT^ ing the Court of Eequests, had mentioned how ha was situated to the Commissioner. [10th August, 1875.] 50 COURT OF BEQUESTS, KANDY. No. 260. KooTAN Chitty vs. Pakanchy. A list of wit- On the trial day (15th September, 1875) Commissioner nesses. when -Qqi^-^q Bon-suitcd plaintiff with costs, on the ground that filed ele-ren , • .-3. . t days before plamtia was not ready. the trial, was The plaintiff moTed for an adjourntnent, on the g-rotmd that held to be a the sal ipoenas to his witnesses, which were given eleven days before sufficient ^]jg trial, were not served. The Commissioner held, that al- f ostDonement though the witnesses resided in the town, the time for issuing the process was insufficient, as the practice was to give four- teen days time to the Fiscal. On appeal, per (Sir G. Anderson, C J.) set aside, and the case remanded for hearing. "The list having been filed so long as eleven days before the trial, ought to have been held a sufficient ground for a postponement, especially as. the witnesses are residents of the town, and the plaintiff had intimation of ths practice referred to." [2ud November, 1875.] COUHT OF REQUESTS, PANWILA. No. 5,331. SiLVA VS. Meeea Saibu. Mortgagees The plaintiff, as judgment-creditor in C. R. Panwila 4,808, right to the obtained an order for payment of Rs. 54. 35, on the 28th Au- th 'mortt'' °ed ?'"'''' ^^''^' ^^°^ ^- ^- Panwila in preference to the mortgagee pro^rtyf even and claimant, — who is the present defendant, and whose claim, aitei its sale, to preference had been set aside by C. R. Panwila on the 5th June, 1875, in suit C. R. 4808 Panwila, which was affirmed in appeal on the 24th August, 1875. But the said order of^ payment, above referred to, was returned to plaintiff frsm the Kandy Kachcheri with this endorsement, viz : " The sum of Bs. 70 balance in deposit was paid to Mr. Swan, proctor for' plaintiff, in C. R. Kandy 59,427 • upon an order issued from the Kandy Court, payment made on the 7th October, 1875." The plaintiff thereupon instituted the present action against, the defendant, to recover the sum of Rs. 54. 35, for which M held an order of payment from U. R. Panwila 4,808, but which money, defendant liad drawn previously, by obtaining an orderof 51 paTment from C. R. Kandy 59,42^7; but, Commissioner Boak« dismisssd plaintilT's claim with costs. The plaintiff m-gr-d : — 1. That defendant's claim to preference having been set aside as regards the plain titf iu C. B. Panwila 4,808 and af-. finned in appsal, the question of preference between tlie plain- tiff and defendant had been finally determined. 2. The Kandy suit 0. R. 59,427 cannot affect the plain- tiff's right of preference over the defendant, for it is one thing to obtain judgment against a mortgagor, and another thing to be declared entitled to right of preference to the proceeds of the sale. 3. The order of payment in the Kandy suit should never have been issued to recover monies realized under writ of & different Court, nor should the Government Agent have paid the amount, under the 67th cl. of the Fiscal's Ordinance No. 4 of 1867. Iu appeal. Affirmed. [15th Tebmary, 1876.] COURT OP REQUESTS, KANDY. No. 58,618. SnpEHMAKiEN Chitty VS. Menica Dureya. Tn this action, plaintiff sought to recover Rs. 92. 81 from ^^o'^P*^""-* defendant, who in consideration of Rs. 34 said to have received moYe^eiiheT a from plaintiff agreed to supply him with H|- bushels of parch- written or a ment coffee within a specified time, or in default to pay its _ parol agree- eqnivalent in money at the then current rate, and fnrther de- "lent. fendant granted a written acknowledgment for the receipt of Ks. 34. Plaintiff on being examined stated " The defendant gave me a note, this is it." On this, the defendant's counsel objected to the production of the writing, which objection was allowed. Then, a witness was called by plaintiff to prove the grant, ing of the money to defendant, this piece of evidence was also objected to on the ground that it was to prove a fact con. cerning which there was a writing. Commissioner Boake held as follows : — " I am o' opinion that this objection is a proper one. The plaintiff is not only precluded from producing tho writing, bat from calling evidence to prove the agreement. He is non-suit- ed -with costs." In appeal — set aside, and the case sent back to be proceeded with. 82 Held. "It wfts eompetent for plaintiff to prore either s Written or a parol agreement, and the objection of the defend- ant to the evidence shonld not have been upheld." [11th Jan- uary, 1876.] COURT OF REQUESTS, KANDY. No. 222. Sakgoo vs. 1. Waliama, 2. Catamboo. In a ease, Plaintiff sought to recover Rs. 70, viz., Rs. 50 for money where evi- lent, and Its. 20 interest due thereon for 16 months, deuce waa^ p;g„_ jf^,t indebted. irconclusive (20th t^e'jicmber, 1K74.) Commissioner Boake gave judg- nithefirst.aiid ment for plainiiff against the first defendant. no further c'.-i- lu appeiil, sot .".side, and case remanded for further hearing. dence was ad- ^26th October, J875.) K^Jlnd iiff, ^t the second hearing, (12th February, 1876,) it is record- 6. C non-rvit- ed : — ed the plain- " February 12th, parties present. *^ " The Ciiitty produces the mortgage bond, but it does not mention the exact sum borrowed, it contains a clause renouno- ii'g the necesr-iiy of setting forth the conFidoration. I sm of the same opinion r.s I was before. Judgment for plaintiff for the amount claimed against the 1st defendant." (Signed) W. J. Boake. In anpeal, set aside in these terms, (14th March, 1876) :— " This was an action for money lent and for interest there- on instituted in July 1875 in the Courts of Requests of Kan- dy, in ■^-ihioli jw-gment for the amount claimed was given in favor of pliiintifi"'. The defendant appealed, and on hearing the appeal on the 26th October, the Supreme Court aJjadged, that the judgment be Bet aside and the case remitted for a further hearing, the recorded reason ^5 for such decision being, that the evidence ad- duced on behalf of the plaintiff was meagre and inconclusive, and did not satisfactorily establish any liability on the part of the defendants, or either of tlieni. In objJience to the forogoing order, the case was re-heard "in February, when after re-examiiiing the parties to the action, , and inspf'cting/a mortgage-bond, which it is admitted, does not mention the exact sum alleged to have been borrowed by, the defendants, the Commissioner gave judgment for the plain- tiff against the first defendant." iS "The evidence adduced at the second hearing, in no way ■trengthened the case for the plait>tiff, which remains as mea- gre and inconclusive, as when it came before the Supreme Court in October last, and the judgment of the Commissioner must therefore be set aside, and a judgment of non-suit entered with costs to be paid to the first defendant. The judgment in fa- Tor of the second defendant will stand as originally given." COURT OF REQUESTS, KANDY. No. 1,539. BoDiA VS. KiBA and Nandua. The plaintiff sought to recovei- Rs. 37 damages sustained by ^^ l^ag^^ him, by reason of the defendants having diverted a water-course sustained be from the plaintiff's field. proved to be The Court below, held the damages proved at Fb. 25, but ?^.t^n the C. dismissed plaintiff's case for want of jurisdiction, on the ground ^ny "^^"^^^-f"! that " a field to produce Es. 25 worth of paddy and stravy can- calculation of not be cultivated for Rs. 2. 50. the cost of cul- In appeal, set aside, and case remitted for further hearing tivatingapad- and decision on the merits, in these terms : " The Commission- ^^J'^ straw er was in error in holding, that the Court had no jurisdiction, oust the Court The plaintiff only claimed thirty-seven rupees for the damages, of its jurisdio- which he alleged he had sustained, and any fanciful calculation diction, of the cost of the cultivation of a paddy or straw field cannot oust the Court of its jurisdiction, when the plaintiff himself esti- mates the amount of his damage at a sum within the jurisdic- tion of the Court." [14th March, 1876.] COURT OF REQUESTS KANDY. NO. 1,216. Ismail Sally vf. W. Tambt Cahdo. Plaintiff's claim was for Bs-SO value of a bullock sold to titlS*^o"the defendant. amount ad- 1st Defendant pleaded not indebted, and Jnd admitted his mitted by the liability to the extent of Ss-5. defendant, _ On the trial daj, (February 17th 1876,) plaintiff was present ^^p^of "f on with his witnesses, bixb jihe Commissioner refused to hear them, the utter. 54 ton the ground, that his list of witnesses was iiot-Blpd in time, and proceeded on with case, when the defendant was examine^, he stated, "I did not buy abullock,plaintiff gave me one to traiij, it was run over by railway train and killed. He asked me Ks. 20, and I paid him Rs. 15. On this, the Court below gave judgment for plaintiff for Rs. 5 only. In appeal. Amended, by amount of judgment being raised to twenty rupees and costs in that class. Held. "The onus of proving was on the defendant." [9th M^ay, 1876.J COURT OF REQUESTS, ANURADHAPURA. No- 6,680. TThen a mort- This is an action brought on a mortgage bond, the terms 9/ gagee of land ■fpliidj aj-g^ that the land mortgaged shall be held in possession with^ posses- i^y ^jjg mortgagee in lieu of interest, until the principal ( Kb. 25) interest is en- is paid up by the mortgagor. The terms of the bond are not titled to com- disputed, neither does the defendant, the mortgagor, deny her peMation. liability to pay the amount of the bond, but she pleads tender before commencement of action. The plaintiff on the other hand avers, that the amount hj^s not been paid, and that defendant, contrary to the terms of tlw bond, appropriated the produce of the field for both harvests, Yala and Maha. Commissioner Eoosemalecocq, in a somewhat lengthy judg- ment, dismissed plaintiff's. claim ;?'ith costs. In appeal — affirmed in these terms :— " The Commissioner's decision on the facts, which appears to have been carefully considered, is affirmed. But, plaintiff being mortgagee of the land with possession in lieu of interest, would we think, if paid just before the time of reaping the crop, which he had cultivated, be equitably entitled, to some compensation for his labor and expense in cultivating such crop. It would be inequitable, if a mortgagor by paying defendant his mort- gagee (not before crop) could virtually deprive him of six months interest. The case is therefore sent back, in order that the Commissioner may assess and award the compensation due to plaintiff, for. the raising of Maha crop, which the Coromis- Bioner fipdg, that the defendant took after his tender of th« iiiortg:ag;e debt had been refused." ": 55 "Plaintiff having failed in his attempt to dispute the fact of tender will pay all costs to date in the Court below. No cost» in appeal." (Decided 5th September, 1876.) . COURT OF REQUESTS, KANDY. No. 987- Appuhamy vs. Kieihamt. Plaintiff sought to recover Rs. 75 with interest thereon at ^- ^- J"''^' 25 cents per Rs. 1 per month, from 1st January 1871 till pay- deTnitTij! iu ment, due on a bond dated 10th January 1866, granted by terms and defendant to one Menic Ettana, who assigned it to plaintiff cannot exceed by deed, dated 9th J.anuary, 1875. BslOO, be- Plea. 1. General denial. _ 2. Payment to Menic Ettena. cws'S'e^. On the 14lth January, 1876, judgment was entered for plain- questshaveno tiff as claimed, by Commissioner Boake. jurisdiction. On the 1 6th May 1 37 6 writs were issued. On the 5th July Mr. Swan for defendant deposits Rs. 122. 68 in full payment of plaintiff's claim and costs, and moves lor a Bnle on plaintiff to shew cause, why the defendant should not be exempted from paying the amount claimed, which is in excess of the gum here- in deposited. The Kule was argued before Commissioner Swettenham on the 22nd July 1876, when he made the following order : — " In this case I am asked to determine that a former judg- ment was beyond the jurisdiction of a Court of Requests, and to make an order modifying it. I am of opinion, that I have no powe'"to make any such order. The former judgment either was, or was not within C. R. jmusdiction, if the former, there is no cause to modify it, if the latter, both the judgment and the desired modification are alike beyond the jurisdiction of the Court." Against this order, the defendant appealed and urged : — That C. R. having jurisdiction as far as Rs. 100 only, and plaintiff having elected to proceed against the defendant in that Court, must necessarily waive his claim to any sum in excess of it : consequently plaintiff was not entitled to recover beyond the amount deposited by defendant, viz., Rs. 122. 68. In appeal. The S. 6. set aside the order of the Court below dated 2nd July 1876, and made the Rule absolute witbwit costs. Held. "The former judgment was not definite in its terms, »nd must be taken to have passed for a sum not exceeding £10, beyond which, the Court of Requests has uo juri»diction'*. (12th September, 1876;) COURT OF REQUE'STS, KANDY. No. 3,08S. Weeeasinghb vt.' David and other*. tlaintiff la en- This was an action for the recovery of Rs. 44 value of 20 titled to the hushels of paddy, 200 bandies of straw and 12 gnnny bags. . ^te?bv the -P^^"- 1st Defendaiitclaimedthethreshingfloor,aiidadmit- defendaut in ted tl?at 8 bushels of paddy were left there by plaintiff after his answer, al- they were threshed, wbich he claimed by way of compensa- though plain- tiou for the storage thereof, tiff ^''^^^^'^. *'? The other defendants put in a general denial, extent of his At the trial (2nd August 1876) Commissioner Sweetenham claim. non-suited plaintiff. In appeal, the non-suit was set aside, and judgment en- tered for plaintiff agaiust the 1st defendant for the value of 8 bushels of paddy without costs. Per Curiam. "Plaintiff claims Rs. 414 for 20 bushels of paddy, 200 bundles of- straw and 12 gunny bags, which ho alleges defendants forcibly removed from plaintiff's thresh- ing floor. First defendant claims the threshing floor, but«^' admits possession of 8 bushels of paddy, which he alleges | to have been left in his jjossession, in consequence of plain- '• tiff refusing to pay 1st defendant's demand of one bushel for the use of the floor. Plaintiff has not sufficiently made out hiS;Ow;nership of the threshing floor, and for that reason the Commissioner has non-suited him. Plaintiff, however, is' entitled to any amount which defendant has in his answer admitted to be owing to plaintiff. The non-suit is there- fore set aside, and judgment directed to enter for plaintiff, jigainst the 1st defendant, for the valiie of eight bushels of paddy. No costs in either Court." (26th September, ]876.). COtJRT OF REQUESTS, KANDY. No- 22,99. MoHiDlEN Abdul Cadee vs. De Hobn. TTnlees a par- Plaintiff sued defendant to recover Rs. 22 due upon a pro- ty defendant note dated 17th July, 1875. , , - , ; • ' denies that he pie^. 1. Not liable. 2. Defendant denied to havg bor- »igned the , j.i. i. note sued up- rowed any money upon the note. on in. his an- (Jtily iiCthi 1876.) Judgment was entered forpl^intiff, »wer,hecaimot ty Commissioner Swettenham. tj (iSih. September, 1876.) In appeal af55rmea. ' "Defendant did not in his answer deny signing the note, and it was not open to him at "the trial to impugn the note as a for^- gery. The allegation in defendant's answer is not inconsistent ■with the evidence adduced by complainant that the note was ^iven to secure a pre-esisting debt," at the trial impugn the note as a forger/» COUKT OP EEQUEST8, KANDY. No, 2,245. KiBY Bya vs. Eisa. Plaintiff claimed one laha of a certain land and Rs, 5 dama- ges from defendant, for haviiig encroached upon plaintiff's land. The defendant denied it, and pleaded possession and pre- scription. This case was referred to arbitration, and the arbitrator de- 'livered his award on the 8th May 1876, on which day, the Commissioner made it a Rule of Court. It was appealed against, on the ground that defendant was entitled to ten day's time, to shew cause to the award being made BEulecf Court, by the 26 cl. of Ordinance 15 of 1866 : which ■opportunity Trfis denied him. In appeal, the S, C. set aside the order of the Court below en the 18th August 1876, in these terms : " Modified, by the order appealed from, being made subject to any application that appellant may make within ten days after judgment being noti- fied to Bet aside the award. Should such application be made, the Court will proceed to adjudicate upon it, as if the order ap- pealed hom had been set aside. If such application as afore- said, be not made within the time prescribed, the order appealed Irom to stand affirmed. On the lith October 1876, Mr. Vanderwall appeared to shew cause, and urged : — 1. That tfie award was filed out of time. 2. The chief question raised in the case had not been ad- j udicatf d upon. 3. That the arbitrator was guilty of misconduct inrffusing to hear the eridence, tendered. But the Commissioner, (E. H. Morgan) over-ruled all these objections, and made the award a Rule of Court. This order was appealed againts a second time, but the Snprem« Court (on the SOth January 1877) afiirmsd the order of th« Court below (dated Uth October, J 876.) 1. Before an award is mada a Kule of . Court, under the 27 clause of the Ordi- nance No. 16 of 1866, a par- ty is entitled to ten days' time. to riiew cause. When the said reqiurement was not com- plied with, the S. C. remitted the case, to en- able the paify anopportunily to shew cause. 58 ■ COVRt ok ilEQTJEST^, PAffWILA. ^ITO. 5,621, In this action, plaintiffsonght first to ftScorerfrcni'thedfefrn'l- 'Wb«« th« "Bnt forty rupees, dOe in respect of a lease entered into fcetsren amonutasre. stKenr, and seconjlly plaintiff sought to cancel l;he lease. unMoire 1 Gonunis^ioner (C. L. Liesching) gare judgment for plaintiff, terms of a ; in. tliese terms : — ■' . . leMe-hold ex. If V "It is clear, from the term of the lease, that if the instalments oeeds Its. Kiu; ^Itg T\ot paidasthey become d«ie, the leasi!i8ii^iy>e!jd^ared Toid. *?'*?'*"" . •' . The tender of Es. 40 to-day. by defendant's brother, though gQcha leaaeis .not absolutely conclusive,' is a 6tr4Mig>pre»amptiDn'in.&Tor of beyoad C. IJ. aonipayment. ' ' ' jurisdictioa, ■■.'•Jt^ isj decreed" 'tiat pMittiff doreBceEer-lkan defendant the 'im\ uf Rs, 40 ttnd «dBts^ and that the lease as regards the un- ex>^i*^d jfortiou ^thftreof besdeclased «o»hoell6d.," ' '111 a|>peal set aside with costs. - .Sj^g. plaintiff by his plaint Bpnghtft-st to recover^jjesnm of ^•g.^'iO^iag'rent iin arrears due en 'a lease, and seoon«ily>4o haTe ''ftl'ltejfee'cancelled, on the ground that a forfeiture hadjaceriied, '^^efoie of the'oomliticingi of the lease, in consequence of the 'fiOn^jpaymait of 'the rent vhen due. The'proper answer ;-ap» ji^drB to have -been. -filed by the -defendant'^ but on the iaj f"pSinted"for the- hearing, a tender of Rs. 40 was>inade, which C plftiiiKff, refused to' acc*?pt in -sstisfdction' of the action, ;^iKj<}6^ecordingly".'Went-to a hearing; .■wheBitiie Court decreed, Jibftt the plaintiff shotild' recover the snan of Rs. 40 admitted' in ' !lhe'-an»\Ter with costs, and tii!eJ«iBeaas regarded the,.une£pw!ed •tl*nl should bffcancclfed.' -In -^js^ judgment ithas'been (jbjcctei in: appeal ,i.tfi(at as the amount sued vi as Es. 40, and. there wene four years of'tiie lease- hold terins unoxpired, the (OommisBiciaer, by .the latter part . of lis decree, ¥ad in fact dealt with a value of Es. 1€0, and ^e case v?as consf quently- J:ey.ci»d his' jurif diction. This view of the case, the Supreme Court considers a sound one, and the ,;Ija(3g'inen't.of the Court below, so far as itdeak'vath the ca«c«l- i^tion of the lefefiejiie'AjJerefonKB^i-asJdB'with costs of (appeal," fifth October, 1876.]