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LAW LlbKAKY 
 
Courts of Recjuests ofCey\of\ 
 
 their 
 
 Constitution and Mode of Ffocedure 
 
 inciuding 
 
 Decisions of the Supreme Court 
 
 on 
 
 Rev'iei^sSLAppeah 
 (846-1555. 
 
 
 Colorrhho. 
 
'^f/G 
 
INf:R6DUCTlON. 
 
 The plan .of. this work, and the nature of its, contentSj are 
 more appropriately laid open and explained in the Tahle 
 of Contents and index|!S. .1 purppse in this Introduction, 
 to point opt, a few matters, vhich could not be convefliently 
 introduced in the body of the 'work j and,' also, to ofiFer a 
 few remarks on Courts of Bequests, with regard to the 
 general administration of Justice ip Ceylon.. 
 
 The period of the establishideut of Courts of .ReqfuiSsts 
 .in Ceylon, ushered in great changes in the system of ad- 
 ministration of justice,, as already settled by ^the Charter 
 o.f 1833. Without entering into the question, whether 
 any departure from that system was advisable, it may be 
 stated, that the original constitution of Courts' of Requests 
 was radically defective. 
 
 The attempt to make these Courts decid^' acfcording to 
 , equity and good conscience, asdiwtjnfl^hedfromla'w; the 
 vague exception -to the jurisdicljicmj, Where 4h^ matter in 
 question related to anything whereby lights in future' 
 might be bound j the prohibition x)f: the a^peayarice of 
 coiiasel^to assist Ihe unlearned stfttpr; and the lii^itation 
 of the Tight of appeal; were the leading objecu^nable fea- 
 tures in the constitution of C(!)urts,'bf Requests under the 
 Ordinance No. ,10 of 1843. ' 
 
 These error9,of legislation were repealed by the Ordi- 
 nance No. 22 of 1852; which ha.«,, however, given jurist 
 diction to these Courts in l."idoases,-r-and has restored the 
 
IV. INTRODUCTION. 
 
 right of appeai-ing by counsel to the suitor, without giving 
 the right to recover his legal expenses from his adversary. 
 There is a growing feeling against these two objectionable 
 features in the present system of our Civil minor Courts. 
 
 Another objection exists, which applies to all small 
 cause Courts; but it relates to the general policy of the 
 administration of justice, rather than to any hardship of 
 every day practice. It is stiU, however, an objection; 
 since, arising from no sound principle of legislation, this 
 peculiarity of a small cause Court is not unlikely to cause 
 some practical hardship to suitors. The distinction drawn 
 between causes above and below £10 in value, is certainly 
 founded on no philosophical principle. However advan- 
 tageously it may have been drawn, with regard to cheap- 
 ness of litigation and simplicity of procedure, it is to be 
 regretted, that it has operated to divide the original local 
 jurisdiction, which stood previously established. A suit 
 for £1 might involve a point of law as|[difficult as one for 
 £100. In the prosecution of the former, the simple pro- 
 cedure of the Court of Requests is most desirable; — ^in 
 the latter, the system of the District Courts is more 
 advantageous: but why divide the jurisdiction? How 
 great the advantage to the poor suitor, to present his claim 
 before a learned tribunal which adjudicates on more 
 weighty matters! 
 
 Considerations of this kind will always present them- 
 selves in enquiring into the judicial system of this Island. 
 On the other hand, it should be considered, that a more 
 philosophical principle would bring but few advantages, 
 so long a's the distinction between the judicial and revenue 
 establishments of the Colony 'is not preserved. The Go- 
 
INTRODUCTION^ V. 
 
 vernment has, however, avowed a sincere wish to establish 
 that distinction, as far as practicable. This is the first 
 law reform required in the Island. 
 
 With regard, also, to the present system of judicial 
 Courts, hasty legislation should be deprecated. The con- 
 stitution of 1843 was properly reformed in 1852; and it 
 would be well, now that the natives are beginning to un- 
 derstand the present system, to give it a fair trial for a 
 few years more. The existing enactments and rules seem 
 to be very well suited to the requirements of the Courts 
 of Requests. 
 
 With regard to the two objectionable features of these 
 Courts, it may be remarked, that by a recent decision of the 
 Supreme Court, the suitor may bring his action regarding 
 land below £10 in the District Court, without incurring 
 any penalty, under the 5th section of Ordinance No. 12 of 
 1843.* 
 
 When this is properly understood, and more popularly 
 known, the native will be able to select his own Court, 
 and it might be profitable to the legislator to observe the 
 choice. 
 
 With regard to legal expenses, it may be observed, that 
 legal assistance is generally obtained by suitors, where 
 procurable. It is therefore hard, that the successful party 
 is not allowed, if awarded costs, to recover a certain per- 
 centage as legal expenses. 
 
 I shall now notice a few matters, which could not be 
 conveniently introduced in the body of the workt. 
 
 • District Court Colombo, 17,962. See p. a. 
 
VI. INTRODUCTION. 
 
 Proclamtiiions of Courts. The proclamations of Courts 
 are not to be obtained in a complete state. I have given 
 a list of them in Chapter I. (pp. 17, 18.) During the 
 progress of the work, the following proclamations were 
 
 published: — 
 
 15th July, 1857. 
 5th September, 1857. 
 19th November, 1857. 
 14th January; 1858. 
 
 Territorial Jurisdiction. These proclamations have, 
 of course, introduced changes in the territorial or geo- 
 graphical jurisdiction; a subject which I have treated 
 very fully in Chapter I., (pp. 18 — 23.) 
 
 The territorial jurisdiction is not exactly settled; and 
 it is surprising that many difficulties have not arisen in 
 consequence. They probably would, if natives were suf- 
 ficiently intelligent to avail themselves of the plea to the 
 jurisdiction. As an illustration, I may cite the case where 
 no Court of Requests happened to have jurisdiction; and 
 the Supreme Court was obliged to refer the parties to the 
 District Cou»t having territorial jurisdiction; (see Korne- 
 galle, 2,438, p. 163.) 
 
 The changes introduced by the four proclamations before 
 given, may be noticed in connexion with the new Courts. 
 
 New Courts. These must be added to the number of 
 Courts given in Chapter I., (p. 17.) 
 (15th July, 1857.) 
 
 Kakebawb. Jurisdiction: — Ondorqowe, Kalagam, Marmi- 
 niya, Kirolowe, and Negampaha Corles ; forming the Southern 
 Division of Nuwerakalawiya. 
 
 Kalpe. Jurisdiction : — The Kalpe, Konchittoo, Mahapo- 
 tana, Oodiyancoolam, Matoomboowa, and Oolagalla Coiles • 
 formingtheEastern Division of the District of Nuwcrakalawiva. 
 
(5th September, 1857.) 
 
 Kaeencotetive. Jurisdiction :— Within the Pattoos of ¥a- 
 docadoo, Nindoor, Panoa, and Akerepattoo. 
 
 Calmona. Jurisdiction : — ^Within the Pattoos of Nadene, 
 Nadocadoo, Carewagoo, Poretive, Erovil, and Samantorre. 
 
 (19th November, 1857.) 
 Plopallb. Jurisdiction: — The District of Patchelepalle, 
 including the parishes of Mogomale, Tambogammo, Plopalle, 
 and MuUepattoo, and over the Karatchy. 
 
 (14th January, 1858.) 
 
 Dambool. Jurisdiction: — Parawaka and Kahala Corle, 
 Kirolowe Corle, Oondooroowe Corle, Neygampaha Corle, Ke- 
 legam Corle, Maminiya Corle, Matomboowa Corle; in the 
 District of Anaradjapoora: 
 
 Matelle North ; in the District of Kandy. 
 
 Tamankaduwe ; in the District of Trincomalie. 
 
 Ehehala Ototte Corle, Diwigandahaye Corle, Nikewagam- 
 paha Corle, Tittewelgandahaye Corle, Hatalispaha Corle; in 
 the District of Kornegalle. 
 
 The Circulars and Correspondence given in Chapters 
 X. and XI., (pp. 70 — 77,) are now, for the first time, 
 published. In the former Chapter are included two forms 
 for plaints in land cases, which are not to be found in the 
 schedules to the Kules and Orders, provided for the old 
 constitution. 
 
 The notes to the first part of the work shew the opinions 
 of Advocates, on points which suggested themselves dur- 
 ing the compilation of the Practical Treatise. 
 
 With regard to the Reports, it may be remarked, that 
 the Decisions, as given from 1845 to 1855, illustrate the 
 history of our Courts of Bequests ; and many have been 
 retained with that object, which would otherwise have 
 been rejected. 
 
 Other cases, apparently unimportant, have been pub- 
 
Vlll. INTRODUCTION. 
 
 lished in their present form, for the benefit of those who 
 may have access to the original records. Such cases will 
 generally be found to involve some valuable question, 
 though not fully stated in the Minutes of the Supreme 
 Court. 
 
 Decisions upholding clear points of law, wiU be useful 
 to unprofessional Judges. They are, also, calculated to 
 illustrate the law by example to the Public, and to make 
 it more distinctly understood by the Profession generally. 
 
 The Eeview cases have been distinguished from the 
 Appeal cases, and separately indexed. 
 
 The original authorities for the decisions, and, in some 
 cases, additional authorities, are given in the form of illus- 
 trative notes. And it may be mentioned, that though the 
 reports close with the year 1855, the leading decisions of 
 the period subsequent have been incorporated in this work. 
 
 A few District Court cases have been also introduced, 
 to illustrate the Courts of Requests decisions. 
 
 The reports have been made fuller and more interesting, 
 loj reference to the original records, and from materials 
 supplied by several obliging correspondents. This re- 
 mark does not, of course, apply to all the cases. Delay 
 in some cases, and, in others, the loss of original records, 
 caused disappointment; nor was it generally practicable 
 to obtain information in the manner described, during the 
 progress of the work. 
 
 The Appendix, which contains what is usually appended 
 to a law book, adds to the completeness of the work; which 
 thus makes the law relating to Courts of Requests easily 
 accessible to the Reader, with the advantage of having all 
 
INTUOBCJCTION. IX. 
 
 the information obtainable on the subject, collected in a 
 portable and well printed book.* 
 
 in the last respect, I wish to record in this place my 
 great obligations to Mr. Skeen, for his able and intelligent 
 superintendence of the work through the Press. 
 
 I am grateful, also, to the Goyernment, for having been 
 allowed to print the book at the Government Press, 
 which, though it has delayed the publication for a long 
 period, has resulted in this work being one of the best 
 specimens of typography this Island has yet produced. 
 
 I have given, after this Introduction, two cases, on the 
 concurrent jurisdiction of the District Courts in land cases, 
 and on the privilege of Proctors to sue for costs in the 
 District Courts. 
 
 Besides the typographical errors, which are noticed in 
 the table of errata, the Reader will observe, that various 
 explanations or corrections are given at the ends of the 
 Chapters. He wUl kindly excuse those errors which 
 might have escaped observation. 
 
 In conclusion, I may remark, that no one can be more 
 conscious of the imperfections of this work than myself. 
 It should, however, be considered, that it is the first book 
 on the subject, and that I have not improved on any pre- 
 decessor. Whatever credit may be due- in consequence, 
 is more than counterbalanced by the disadvantages: I beg, 
 therefore, to borrow for this little book, the motto adopted^ 
 by the eminent Chitty for his great work on Pleading: — 
 
 NIHIL SIMUL ISfVENTUM EST ET PEKFECTUM. 
 
 LOUIS NELL. 
 
 * The form for the Record Book, given in the Schedule (B.) to th« 
 Rules and Orders, was procured ivith some difficulty, 
 t From Coke, Lit, 230. a. 
 
LAND CASE. 
 
 COMCCERENT JURISDICTION OF DiSTKICT CoUKT. 
 
 Colombo, D. C, 17,962. 2nd December, 185^. 
 
 In this case, the decision of the District Judge was affirmed, 
 except as to costs ; and the Supreme Court {Rowe, C. J., Ster- 
 ling, J., and Temple, J.J was of opinion, — " That the 5th clause 
 of the Ordinance No. 12 of 1843,* applies only to such cases, as 
 Vrere cognizable by the Courts of Requests at the time of the 
 framing of that Ordinance ; namely, cases in which the title to, 
 or right of possession of, land was not in dispute. 
 
 " No such provision as to costs, in land cases, has been made 
 since the passing of the Ordinance No. 22. of 1852, which first 
 gave jurisdiction in land cases to the Courts of Requests ; and 
 that being so, and the election of suing in such cases in the 
 District Court or in the Court of Requests being left to the 
 plaintiff without restriction, costs, as ip the ordinary course, 
 piust follow the event." 
 
 MONEY CASE. 
 
 Jurisdiction or District Court. Privilege op Pkoctoh?. 
 
 Colombo, D. C, 11,438. 25th February, 1850. 
 
 The plaintiff in this case is a proctor, who seeks to recover 
 from his client, fot professional services in the case 7,729, be- 
 fore this Court, the sum of £4, being the amount of his taxed 
 bill of costs, and the costs of suit. 
 
 The defendant being in default, he is liable in the principal 
 sum ; but the difficulty felt by the Court is, whether it can de- 
 cree him to pay the costs of the suit, the principal sum claimed 
 being under £5. 
 
 ' See Appendix, p. 279. 
 
The Court of Requests has jurisdiction in all " actions, plaints, 
 and suits for the recovery of any debts, demands, damages, or 
 matters not exceeding £5 in value, except where the matter in 
 question relates to the title of any lands or tenements, or to 
 anything whereby rights in future may be bound." The amount 
 is here under £5, and the question for consideration is, whether 
 Courts of Requests have jurisdiction in cases where proctors 
 sue as such, and for recovery of their professional dues ? 
 
 In England, — and our Court of Requests Ordinance uses 
 the same words as the English Act, — it has been held, that 
 where an Act created an inferior Court, as a Court of Requests, 
 with absolute jurisdiction in certain cases, but no express men- 
 tion is therein made of attornies suing as such, they are not 
 included, but still retain their privilege to sue and to be sued 
 before the Court in which they practise. 
 
 The Acting District Judge is inclined to think, that a simi- 
 lar construction should be given to our Ordinance, and that a 
 similar rule should prevail here. As to the expediency of it, 
 if it be competent for the Court to enter into such a considera- 
 tion, there cannot be a second opinion. No Court can better 
 adjudicate in cases by or against a proctor suing or being sued 
 as such, than the Court before which the services were rendered 
 which gave rise to the action. 
 
 Taking this view of the question, the Court of Requests has 
 no jurisdiction in the case, and the Proctor is entitled to his 
 costs. 
 
 It is decreed, that the plaintiff do recover from the defendant 
 the sum of Four pounds sterling, with interest thereon at and 
 after the rate of nine per cent, per annum, from the commence- 
 ment of the suit until payment in full, and costs of suit. 
 
 (Signed) K. E. Mokgan, 
 
 Act. District Jvdsre. 
 
xu. 
 
 ERRATA. 
 
 Page. 
 34,/or " "Vanderlinden," read " W. Grotius." 
 
 46, line l,for " Court," read " case." 
 
 92, line S9, for " Dobinet," read " Uobniet." 
 
 94, note, for " ferae natura," read " feree naturae." 
 
 94, note, for " mansuetse natura," read " mansuetae naturae." 
 
 110, line l,for " honorem," read " bonorum." 
 
 110, line 9, for " fendis," read " feudis." 
 
 123, note, for " No. 13 of 1843," read " No. 10 of 1843." 
 
 144, liv£ 18, read " as there was no evidence." 
 
 ■ 156, line 35, read " set aside for judgment de novo." 
 
 190, line l,for " therefore," read " therefor." 
 
 220, line 55, for "presumption," read " prescription." 
 
 222, line 11, read "by defendant, instead of going into the title of parties. 
 The Commissioner," &c. 
 
 234, Zine 34, i-eflti" loss of the vessel. Neptune \. Hag.^Tl. GrotiusSSO." 
 278, Schedule, line li, for " abeehven," read "have been." 
 
CONTENTS. 
 
 PAGE. 
 
 Iktroduction ... ••■ ■•• "'•■ 
 
 Colombo, D. C. 17,962, and Colombo, U. C. 11,438 ... x. 
 
 Part I. 
 Chapter 1.— The Jurisdiction of Courts of Requests. 1 
 
 ^ 1. — Ad valorem Jurisdiction ... ... ib- 
 
 2, — General Proviso ... .-. ■■■ 2 
 
 3.— In Land Cases ... ... ■■• ib- 
 
 4. — In other Actions ... ••■ ■■■ ib. 
 
 S— Right of Appeal ... •■■ ••• ib- 
 
 6. — Oyect of the establishment of Courts of Requests ^ ... ib. 
 
 7. — Authority for their institution ... ... ib. 
 
 8, — Original Constitution ... ... ... 'b- 
 
 9. — AuQjority of the Governor ... ... .4 
 
 lO.^-Powcrs of the Supreme Court ... ... ib. 
 
 11. — Injunction ... ... ... ^ 
 
 12.— Mandate ... ... ... ib. 
 
 13. — Nature of the English Writs of Mandamus, Procedendo, 
 
 and Prohibition ... ... ... ib- 
 
 14. — Master Attendant's Ordinance ... ... 7 
 
 15. — Assessment Tax ... ... ... ib. 
 
 16. — Paddy Tzix and Commutation ... ... 8 
 
 17. — Extension of Jurisdiction ... ... 9^ 
 
 18. — Abolition of a Court ... ... ... ib. 
 
 19. — Transfer of Cases to another Court ... ... ib. 
 
 20 — Penalties within the Jurisdiction ... ... 10 
 
 21.— Contempt ... ... ... ib. 
 
 22. — Prevarication. ... ... ... ib. 
 
 23.— Peijury ... ... ... ib. 
 
 24. — Disobedience to Summons ... ... ib. 
 
 25. — ^Purging Contempt ... ... ... 11 
 
 26. — ^Evidence of Contempt ... ... ... ib. 
 
 27. — ^Evidence and Penalty of Prevarication ... ... ib. 
 
 28.— Splitting the Action ... ... ... 12 
 
 29. — ^Abandoninff the Excess... ... ... 13 
 
 30. — Action for Share of Crop where title to the Land is disputed 14 
 
 31. — Where the Land was alleged to have increased in value 
 
 after institution of Suit ... ... ib. 
 
 32.— Future Rights ... ... ... ib, 
 
 33. — Abatement of a Nuisance ... ... ib. 
 
 34. — Commission to examine Lands ... ... 16 
 
 35. — Process out of the District ... ... 17 
 
 36. — Personal Arrest ... ... ... ib, 
 
 37. — Number of Coturts ... ... ... ib. 
 
 38. — Proclamations of Courts... ... ... ib. 
 
 39. — Territorial Jurisdiction ... ... ... 18 
 
 40. — Manner of pleading Jurisdiction ... ... 23- 
 
 Chapter U.— The Commissioner and Officers. ... 24 
 
 5 1. — Competency of Commissioner ... ... ib. 
 
 2. — Joint Commissioner ... ... ... ib. 
 
 3. — Oaths of Office and Allegiance ... ... ib. 
 
 4. — Duties of Commissioner ... ... ... 25 
 
 5. — Privileges of Commissioner ... ... 2& 
 
xiv. CONTENTS. 
 
 § 6.— Officers ••• ■■• ■•■ 28 
 
 7.— The Clerk ■■• ■■• ■•■ 'b 
 
 8. — Interpreters ••• •■■ •■■ -^ 
 
 9. — Translators ■■• • ■• ••• 31 
 
 10. — Process Servers ... •■■ ... 22 
 
 Chaptek III.— Of the Parties to A Suit and their Re- 
 
 PKESENTATIVES. ... ... ... 34 
 
 A 1. — Of the principal and accessory parties in a suit ... ib. 
 
 2.— Of the Plaintiff ... ... ... ib. 
 
 3.— Of the Defendant ... ... ... ib. 
 
 4. — Of Intervenients ... ... ... 35 
 
 S What jjersons cannot sue ... ... ib. 
 
 6. — In what actions persons not of full age may sue ... ib. 
 
 7. — Of the right of a wife under coverture to sue third parties ib. 
 
 B._Of the right of a wife to sue her husband ... 36 
 
 9. — What persons can be sued ... ... ib. 
 
 10. — Of Advocates and Proctors ... ... ib. 
 
 11. — Substitutes ... ... ... 37 
 
 12. — Who may represent the Crown ... ... ib. 
 
 CHAPTER IV.— Of Witnesses and their Examination. ... 38 
 
 § 1. — Competency of Witnesses ... ... ib. 
 
 2. — On the obligation of a Witness to give evidence ... 40 
 
 3. — Absence of a material Witness ... ... ib. 
 
 4. — Witnesses who have not been subpoenaed ... ib, 
 
 6. — Examination in Chief ... ... ... ib. 
 
 6. — Leading Questions ... ... ... jb. 
 
 7. — Cross-Examination ... ... ... 4i 
 
 8. — Re-Examination ... ... ... ib. 
 
 9. — Calling witnesses to disprove defence ... ... jb. 
 
 10. — Recalling a Witness ... ... ... 43, 
 
 11. — Evidence of Parties to Suit ... .. ;(,. 
 
 12. — Witnesses guilty of Contempt, &c. ... ... j),. 
 
 13. — ^Expenses of Witnesses ... ... ... Hy 
 
 14. — Of Interrogatories ... ... ... 43 
 
 Chapter V. — Proceedings before Trial. .._ 44 
 
 § 1. — Preliminary Considerations ... ..' jjj 
 
 2. — Stating the case to the Clerk ... .'" jj,' 
 
 3. — Names and Description of the Parties ... " jj,' 
 
 4. — Plaintiff suing in a representative capacity '_' ^ 
 
 6. — Bill of Particulars ... ... "* jj^ 
 
 6. — Entry of the Plaint ... ... ''^ ^ 
 
 7. — Fixing the Day of Appearance ... . _' ;[, 
 
 8. — Issuing the Summons, &c. ... .'" jij" 
 
 9. — Copies for service ... ... |" jf^* 
 
 10. — Pointing out Defendant or Witness ... ."" n,' 
 
 II. — Subpoenas to Witnesses ... ... 47 
 
 12. — Copy Subpoenas ... ... ... j[, 
 
 13. — Postponement or Suspension ... ... jb. 
 
 14. — The Day of Appearance ... ... ji, 
 
 IS. — Proxy to a Proctor ... ... . 43 
 
 Chapter VI. — The Day of Trial. ... ... 4,9 
 
 § 1. — The case is called ... ... '_ jl, 
 
 2. — Joining issue ... ... ,"J ijj" 
 
 3.— Production of Evidence ... ]" j),' 
 
CONTENTS. XV. 
 
 PAOK. 
 
 ib. 
 50 
 ib. 
 ib. 
 
 §4. — PuUingf in liecords in Evidence ... v 
 
 5— Defendant appearing, Plaintiff in default 
 
 C. — Plaintiff appearing. Defendant in default 
 
 7. — Both parties appearing ... ... •• . 
 
 8._When the Plaintiff is to begin ... • ■ . '"• 
 
 9. — When the Defendant is to begin ... ... °' 
 
 10. — Recording the Evidence ... ••■ 9J' 
 
 11. — Ordering Witnesses out of Court ... ... ib- 
 
 12. — General course of Proceedings ... ... ib. 
 
 Chapter VII. — Or Judgment and Appeal. ... 54 
 
 § 1. — Delivery of Judgment ... ... ... ib. 
 
 2. — Interlocutory Judgment ... '• ... ib. 
 
 3. — Judgment made final ... ... ... ib. 
 
 4. — Judgment opened ... ... ... 55 
 
 5, — Absolving from the instance ... ... ib. 
 
 6.— OfAppeals ... ... ... 56 
 
 Chapter VIII. — Of Execution. ... ... 58 
 
 § 1. — Execution ... ... ... ib. 
 
 2.— The Writ of Execution... ... ... 59 
 
 3. — Execution in failure of Appeal ... ... ib. 
 
 4. — Execution in case of Appeal ... ... 60 
 
 5, — Surrender of Goods ... ... ... ib. 
 
 6. — ^Attachment .of Property ... ... 61 
 
 7. — Inventory of attached Goods ... ... ib. 
 
 8. — Custody of the attached Goods ... . ... ib. 
 
 9. — Bail to produce Property ... ... ib. 
 
 10. — Execution out of the District ... ... 62 
 
 11. — Sale in Execution ... ... ... ib. 
 
 12 — Extension of the Writ ... ... ... ib. 
 
 Chapter IX Of the Process of the Court of Reiiuests. 63 
 
 $ 1. — Summons to Defendant... ... ... ib. 
 
 2. — Subpoena to Witness ... ... ... 64 
 
 3. — Notice of Interlocutory Judgment ... ... 66 
 
 4. — Writ against Person ... ... ... ib. 
 
 5. — Writ against Property ... ... ... 68 
 
 6. — Summons to Intervenient ... ... 69 
 
 7..r-Notice to be examined viva voce ... ... ib. 
 
 Chapter X. — Official Circulars, etc. ... ... 70 
 
 § 1. — Specimens of Plaints ... ... ... ib. 
 
 2. — Petitions of Appeal ... ... ... 71 
 
 3. — ^Possessory Actions ... ... ... ib. 
 
 4. — Transmission of Processes ... ... 72 
 
 5. — Writs of Execution ... ... ... ib. 
 
 Chapter XI. — Selected Correspondence. ... 74 
 
 5 1.— Supreme Court Stamp ... ... ... ib. 
 
 2. — Translators of Courts of Requests ... ... 75 
 
 3.— Ordinance No. 6 of 1863 ... ... ib. 
 
 4. — Copies of Documents served with Summons ... 76 
 
 5. — Records of transferred Cases ... ... 77 
 
 Chapter XII. — Stamps and Expenses. ... ... 78 
 
 ^ 1. — Unstamped instruments inadmissible in evidence ... ib. 
 
 2. — Court may postpone trial to allow instruments to be stamped ib. 
 
 3. — Exhibits of unstamped Documents ... ... ib. 
 
CONTENTS. 
 
 § 4._Dulies in Courts of Requests 
 5. — Poundage 
 6. — ^Exemptions ■•■ 
 
 7 Proviso as to Government Omcer 
 
 8. Proviso as to Pauper Suits 
 
 9. — Re-issuing Process 
 
 10. — Stamp in Appeal 
 
 1]. — Translators' Fees 
 
 12. — Fees of Advocate or Proctor 
 
 13. — Fees of Substitutes 
 
 14. — Expenses of Witnesses ... 
 
 
 Part II. 
 
 Decisions in Review. 
 
 
 1843 
 
 
 1816 
 
 
 1847 
 
 
 1848 
 
 
 1849 
 
 
 1850 
 
 
 1851 
 
 
 1852 
 
 
 
 Part III 
 
 Decisions in Appeal. 
 
 
 1853 
 
 
 1854 
 
 
 1855 
 
 
 PAGE. 
 79 
 
 ib. 
 80 
 ib. 
 ib. 
 ib. 
 81 
 ib. 
 ib. 
 82 
 ib. 
 
 85 
 93 
 107 
 123 
 129 
 149 
 165 
 184 
 
 197 
 
 226 
 243 
 
 APPENDIX. 
 1. — General Rules and Orders ... 
 
 Schedules to ditto 
 
 2.— Ordinance No. 10 of 1843 ... 
 
 3.— Ordinance No. 12 of 1843, S 5 
 
 4._Ordinance No. 17 of 1844, § 54 
 
 5.— Ordinance No. 2 of 1847, §§ 27 and 55 
 
 6 Ordinance No. 19 of 1852, (part of Schedule) 
 
 7.— Ordinance No. 22 of 1852 ... 
 
 8.— Ordinance No. 4 of 1847 ... 
 
 9.— Ordinance No. 6 of 1853 ... 
 10.— Ordinance No. 11 of 1852 ... 
 11. — Expenses in the Supreme Court 
 
 257 
 264 
 271 
 279 
 
 ib. 
 
 ib. 
 280 
 282 
 285 
 288 
 289 
 290 
 
 Inijex to the Review Cases 
 Index to the Appeal Cases 
 
 291 
 
COURTS OF REQUESTS. 
 
 CHAPTER I. 
 
 THE JUKISDICTION OF COUKTS OP REQUESTS. 
 
 CONTENTS. 
 
 1- 
 
 2.- 
 3.- 
 4- 
 5.- 
 6.- 
 
 7.- 
 8.- 
 9.- 
 10.- 
 11.- 
 12.- 
 13.- 
 
 14.—. 
 
 15.- 
 16- 
 17.- 
 18.- 
 19.- 
 
 20.- 
 
 Ad valorem Jurisdiction. 
 
 ■General Proviso, 
 
 ■In Land Cases. 
 
 In other Actions, 
 
 Bight of Appeal. 
 
 ■Object of the establishment of 
 Courts of Requests. 
 
 ■Authority for their institution. 
 
 ■Original Constitution. 
 
 •Authority of the Governor. 
 
 ■Powers of the Supreme Court. 
 
 ■Injunction. 
 
 ■Mandate. 
 
 •Nature of the English Writs 
 of Mandamus, Procedendo, 
 and Prohibition. 
 
 ■Master Attendant's Ordi- 
 nance. 
 
 ■Assessment Tax. 
 
 Paddy Tax and Commutation. 
 
 Extension of Jurisdiction. 
 
 ■Abolition of a Court. 
 
 ■Transfer of Cases to another 
 Court. 
 
 ■Penalties within the Juris- 
 diction. 
 
 21.— 
 
 22.- 
 
 23. 
 
 24.- 
 
 25.—. 
 
 26.—. 
 
 27.—. 
 
 28.— 
 
 29.- 
 
 30. 
 
 31.— 
 
 32.- 
 33.- 
 34.- 
 35.- 
 36.- 
 37.- 
 38.- 
 39.- 
 40.- 
 
 Contempt. 
 
 ■Prevarication. 
 
 ■Perjury. 
 
 ■Disobedience to Summons. 
 
 ■Purging Contempt. 
 
 ■Evidence of Contempt, 
 
 Evidence and Penalty of 
 Prevarication. 
 
 Splitting the Action. 
 
 ■Abandoning the Excess. 
 
 ■Action for Share of Crop 
 where Title to the Land is 
 disputed. 
 
 Where the Land was alleged 
 to have increased in value 
 after institution of Suit. 
 
 ■Future Rights. 
 
 ■Abatement of a Nuisance. 
 
 ■Commission to examine Lands. 
 
 •Process out of the District, 
 
 •Personal Arrest. 
 
 •Number of Courts. 
 
 •Proclamations of Courts. 
 
 • Territorial Jurisdiction. 
 
 •Manner of pleading Juris- 
 diction. 
 
 1. Ad valorem,'] Courts of Requests are declared to be 
 Courts of Record, having full power to hear and determine, in 
 a summary way, all actions, in which the debt, damage, or de- 
 mand 'does not exceed the value of Ten Pounds ; or, in which 
 any land, the title to which is in dispute, does not exceed that 
 value.- Or(/. 22 o/1852, § 3. 
 
2. Oeneral Promso.'\ This general definition must be un- 
 derstood with the proviso, that such Courts cannot have cog- 
 nizance of actions for malicious prosecution, libel or slander, 
 criminal conversation, seduction, breach of promise of marriage, 
 separation, or divorce. — Ord. 22 o/"1852, § 3. 
 
 3. In Land Cases.~\ In all actions, in which the title to, or 
 right of possession of a land, is in dispute, the same, or a part 
 thereof, must be situate, or the p^rty or parties defendant must 
 be resident within, the territorial jurisdiction of the Court in 
 which such action is brought. — Ord. 22 of 1852, § 3. 
 
 4. In other actions.'] In other actions, the party or parties 
 defendant must be resident within the territorial jurisdiction 
 of the Court in which the action is brought ; or, the act, matter, 
 or thing, in respect of which any such action is brought, must 
 have been done or performed within such jurisdiction. — Ord. 
 22 0/1852, §3. 
 
 5. Right of Appeal.'] It is lawful for any party to an action 
 before a Court of Requests, to appeal from any final judgment, 
 or against any order made in such Court, having the effect of 
 a final or definitive judgment, for any error in law or in fact, 
 committed by such Court of Requests in that action. — Ord. 22 
 0/1852, § 10. 
 
 6. Object of their establishment.'] The Legislature thought 
 it expedient to establish Courts of Civil causes, exercising ju- 
 risdiction in suits of less importance, and divested of the tedious 
 formalities observed in the District Courts ; with the view of 
 placing within reach of litigants, a cheaper and more speedy 
 process of obtaining a legal decision. 
 
 7. Authority for their institution.] These Courts of Small 
 Causes were not contemplated by the Charter of 1833. The 
 Queen, however, by Letters Patent, dated 28th January, 1843, 
 had made it competent for the Administrator for the time being 
 of the Ceylon Government, with the co-operation of the Legis- 
 lative Council, to provide for the more economical, prompt, and 
 effective administration of justice in Ceylon, by the enactment 
 of new laws and ordinances, calculated to effect such a desirable 
 end. — Letters Patent, iSth January, 1843. 
 
 8. Original Constitution.] By virtue of the power thus vested 
 in him, the Governor, finding it was expedient so to do, estab- 
 lished Courts of Requests, with the assistance of the Legislative 
 
Council. This was done by the Ordinance No. 10 of 1843. 
 This Ordinance was passed in Council on the 2nd November 
 of that year. The clauses of the Ordinance recited the au- 
 thority above mentioned, and declared the establishment of 
 Courts of Requests. The right of appointing the Commission- 
 ers to these Courts was vested in the Governor. The oaths of 
 office were regulated. The appointment of officers to the Courts 
 was provided for. The jurisdiction was fixed in all actions, 
 plaints, and suits, for the recovery of any debts, demands, 
 damages, or matter, not exceeding Five Pounds in value. The 
 exception of Land cases, and cases in which Eights in Future 
 were affected, deserve special mention ; and so does the equit- 
 able nature of these Courts as originally established. To 
 continue the general description: these Courts were endowed 
 with the power of carrying their judgments into execution, by 
 attachment and sale of the goods and effects, or by corporal 
 arrest of the party or parties against whom such judgments 
 were awarded. The necessary power to summon parties to the 
 suit, was, of course, given. It was regulated, that no written 
 pleadings should be used in Courts of Requests ; thus giving to 
 them one of their most characteristic features, and assisting the 
 furtherance of that summary procedure which was sought to 
 be attained. In securing against the improper avoidance of a 
 superior Court, and, at the same time, allowing every facility 
 to the suitor desirous of preferring his claim before a Court of 
 Requests, the Ordinance guarded against the splitting of actions ; 
 but allowed the abandoning of excess. It also provided for the 
 case of a disputed balance of an account originally exceeding 
 the ad valorem jurisdiction. Minors suing for wages, or the 
 value of piece-work, were made competent to bring actions on 
 their own behalf. Parties were, however, forbidden to employ 
 substitutes to appear for them; an exception being made in the 
 case of the Crown. Process of the Court was allowed to be 
 issued and executed beyond the jurisdictory limits. Penalties 
 were enacted for disobedience to summons. The prosecution 
 of perjuries committed in these Courts was provided for. As 
 the then existing Stamp Ordinance had not anticipated the 
 establishment of these Courts, the stamp duties leviable on 
 written instruments used in them, were published. The cases 
 of the abolition or change of limits of these Courts, were pro- 
 
vided for. Certain duties, previously exercised by the District 
 Judges, were vested in the Commissioners. The Supreme 
 Court was empowered to grant Injunctions, and to issue Writs 
 of Mandamus, in restraint of the authority of these Courts, in 
 certain emergent and necessitous cases. No appeal was allowed 
 from the decisions of the Commissioners ; but suitors were al- 
 lowed to petition the Supreme Court for "review" of the 
 proceedings below. The authority of framing "Rules and 
 Orders " for Courts of Requests, was vested in the Judges of 
 the Supreme Court. And lastly, though it is hardly worth while 
 mentioning, the time for the Ordinance to come into operation 
 was fixed. The above will give a good general view of the 
 original Courts of Requests, and of the Ordinance by which 
 they were first established. 
 
 9. Authority of the Governor.] By Ord. 10 of 1843, it was 
 declared competent in the Governor to establish Courts of 
 Requests by Proclamation; to appoint Commissioners to them; 
 and to alter, amend, or revoke such acts. His Excellency has 
 also vested in him the privilege of appointing and removing 
 the officers of these Courts. This does not deny to the Com- 
 missioner the necessary authority to suspend an officer for 
 sufficient reason, excepting in so far that such suspension awaits 
 the final decision of the Governor. — Ord. 10 of 1843, § 4. 
 These are the privileges of the Governor which are specially 
 recited in the Legislative Enactments for Courts of Requests ; 
 but, of course, the higher power vested in him by Letters Patent, 
 of establishing these Courts, exists independent of any Ordinance. 
 A Court of Requests once established, however, the Governor's 
 authority over it becomes limited to the matters at first stated. 
 
 10. Powers of the Supreme Court.'] The Supreme Court 
 has the power and privilege of framing the "Rules and Orders" 
 of the Courts of Requests.^-Or«?. 10 of 1843, § 23. 
 
 The Supreme Court has the power of hearing and deciding 
 cases in appeal from these Courts, by affirming or reversing the 
 judgments below; by remanding for further evidence or new 
 trial.— Orrf. 22 of 1852, § 10. 
 
 By the old Ordinance, as before mentioned, parties were 
 obliged to petition, to have the cases reviewed. Such applica- 
 tions were to set forth the particular grounds on which review 
 was applied for. Though the old Ordinance stands repealed 
 
in this part, it may be useful to mention, tliat the grounds 
 specified were: — 1, incompetency of the Court in respect of 
 excess of jurisdiction; 2, that the cause had been already tried; 
 3, that the cause formed the subject of a trial pending in 
 another competent Court; 4, that the Commissioner or his 
 kinsman had an interest in the cause ; 5, malice or corruption 
 on the part of the Commissioner ; 6, admission of illegal evi- 
 dence; 7, rejection of legal evidence; 8, other gross irregu- 
 larities. But, now, a party may appeal from any error in law 
 or fact, and the Supreme Court is a Court of appellate juris- 
 diction for the correction of such error. — Ord. 22 o/ 1852, § 10. 
 
 11. Injunction.'] The Supreme Court, or Judge thereof, 
 exercises an original jurisdiction, to prevent irremediable mis- 
 chief in urgent cases, by granting injunctions. This relief is 
 provided for cases, where the mischief intended to be guarded 
 against might ensue before the completion of an action in the 
 Court of Requests, which might otherwise be instituted with 
 the object of preventing that misehief.^Ord 10 of 1843, §20. 
 
 12. Mandate.] In a similar manner, in cases, where the 
 Supreme Court or Judgethereof is satisfied, that in a particular 
 cause justice would not probably be done in a Court of Requests 
 in which such cause had been commenced, the Supreme Court 
 or Judge thereof has full power to issue a Mandate against the 
 Commissioner or other ministerial officer, ordering the transfer 
 of the cause to some other Court of Requests, or even to a 
 District Court.— Orrf. 10 of 1843, § 21. 
 
 In every case of transfer by Mandate, the Court to which 
 such cause, suit, action, matter or thing, shall be so transferred, 
 shall take cognizance thereof, and shall have power and juris- 
 diction for the hearing, trial, and decision of the same, as fully 
 and effectually to all intents and purposes as if such Court origi- 
 nally had such power and jurisdiction. — Ord. 10 of 1843, §21. 
 
 13. Mandamus, Procedendo, and Prohibition.] As the Man- 
 dates of the Supreme Court to be thus issued, are described as 
 Mandates in the nature of writs of Mandamus, Procedendo and 
 Prohibition, some suitable extracts may here be added describing 
 the English writs of Mandamus, of Procedendo ad judicium, and 
 of Prohibition. 
 
 " The grand condition of obtaining a writ of Mandamus is, 
 that the applicant has a specific legal right with no specific 
 
legal remedy for a deprivation of that right. The writ issues 
 to judges of inferior courts of judicature, corporations, public 
 bodies, and others on whom the law casts a public duty : alleg- 
 ing that complaint has been made to the Court of a refusal to 
 perform that duty on a particular occasion, and commanding 
 them in the Queen's name, to do it, 'or shew cause to the con- 
 trary thereof, lest, on default, the same complaint should be 
 repeated' to the Court. When a proper case for such an 
 application has been made, the following is the course adopted. 
 On a full and accurate statement of the facts by affidavit, the 
 Court will grant a Rule, calling upon the party whose conduct 
 is impugned, to shew cause why the Mandamus should not 
 issue. If no sufficient cause should be shewn, the rule is made 
 absolute, and the Mandamus issues accordingly in the alterna- 
 tive form given above. To this writ, a Return must be made : 
 and if it be deemed by the Court insufficient, then they will 
 issue a Peremptort Mandamus, which must be obeyed under 
 pain of attachment for the contempt : and the Court will permit 
 no return to be made to this peremptory mandamus, except 
 that what had been commanded to be done, has been duly done. 
 When this writ is applied for in a matter of mere private right, 
 — e. g. of admission or restoration to an office, — it is a matter 
 of discretion with the Court to grant or withhold it : but when 
 sought for to enforce obedience to Acts of Parliament, or the 
 Queen's Charter, it is demandable as of right." Warren's Law 
 Studies, ed. of 1845, p. 604. See also, Blachstone, iii. p. 110. 
 
 " A writ of procedendo ad judicium issues out of the Court of 
 Chancery, where judges of any subordinate Court do delay the 
 parties ; for that they will not give judgment, either on the one 
 side or on the other, when they ought so to do. In this case a 
 writ of procedendo shall be awarded, commanding them, in the 
 King's name, to proceed to judgment ; but without specifying 
 any particular judgment, for that (if erroneous) may be set 
 aside in the course of appeal, or by writ of error or false iudg- 
 ment : and upon further neglect or refusal, the judges of the 
 inferior Court may be punished for their contempt, by writ of 
 attachment returnable in the King's Bench or Common Pleas." 
 — Blachstone, in. p. 110. 
 
 X-viAtoi prohibition h "directed to the judge and parties 
 of a suit in any inferior Court, commanding them to cease from 
 
the prosecution thereof, upon a suggestion, that either the cause 
 originally, or some collateral matter arising therein, does not 
 belong to that jurisdiction, but to the cognizance of some other 
 Court." — Blackstone, iii. p. 112. Or, it is a writ to restrain 
 other Courts from proceeding in a matter over which they have 
 either no jurisdiction, or, having jurisdiction, have attempted 
 to proceed according to rules differing from those which ought 
 to be observed ; and also, where an inferior Court's exercise of 
 its jurisdiction would lead to the defeat of a legal right." — 
 Warren's Law Studies, (1845) p. 317. "And if either the 
 judge or the party shall proceed after such prohibition, an at- 
 tachment may be had against them for the contempt, at the 
 discretion of the Court that awarded it, and an action will lie 
 against them, to repair the party injured in damages." — Black- 
 stone, iii. p. 113. 
 
 14. We shall next consider the exclusive jurisdiction of 
 Courts of Requests. 
 
 Master Attendant's Ordinance.'] As it is desirable that all 
 sums, becoming due, by reason of any of the provisions of the 
 Master Attendant's Ordinance, No. 2 of 1847, should be re- 
 coverable as speedily as possible, such sums are, by the 27th 
 clause of that Ordinance, declared to be recoverable before 
 Courts of Requests. This jurisdiction of the Courts of Requests 
 is analogous to the Criminal jurisdiction of Police Courts, in 
 trying all offences against the same Ordinance. 
 
 15. Assessment.'] K any person considers, that an assessment, 
 in respect of which a notice is served on him, was unduly or 
 incorrectly made or ascertained, it is lawful for him to object 
 to such assessment, whatever be its amount, before the proper 
 Court of Requests, and no other Court is competent to enter- 
 tain such objection. — Ord. 17 of 1844, § 54. 
 
 The Court of Requests decides upon such matter in a sum- 
 mary way, and awards the costs thereof, and no appeal or review 
 shall lie against any such decision. — Ord. 17 of 1844, § 54. 
 
 No objection will be entertained by the Court of Requests, 
 unless the same is made within Ten days from the service of the 
 Notice of Assessment. — Ord. 17 of 1844, § 54. 
 
 No objection will be entertained, unless at the time of making 
 such objection, the party objecting, or some one duly authorized 
 by him in writing, satisfies the Court, by affidavit or otherwise. 
 
that the Government Agent was furnished with a statement in 
 writing of the specific grounds, on which the objection is founded. 
 —Ord. 17 of 1844, § 54. 
 
 Previous notice of action, distinctly setting forth the grounds 
 of action, must be given to the Government Agent by the 
 Plaintiff' or his coun.sel, one week at least before the commence- 
 ment of the action itself.— Or<Z. 17 of 1844, § 55. 
 
 No action will be maintainable against the Government Agent 
 for any act done or caused to be done under the provisions of 
 Ordinance 17 of 1844, unless such action shall be commenced 
 within one month from the time of such act. — Ord. 17 o/ 1844, 
 §55. 
 
 16. Paddy Tax and Commutation.] After those matters in 
 which Courts of Requests have exclusive jurisdiction, actions 
 by the Government or its renter, for the value of paddy tax or 
 its commutation, may be mentioned. These actions come be- 
 fore the Police Court or the Court of Requests — alternatively 
 but not concurrently. The defendants are cultivators or pro- 
 prietors failing to deliver, in the manner described in Ordinance 
 No. 14 of 1840, the appraised share due as the tax, or committing 
 a breach of a special agreement with the Government Agent 
 regarding such share. 
 
 A defaulter could be fined or imprisoned under the provisions 
 of the Ordinance, in an action before the Police Court ; but he 
 is not, after such punishment, liable to any further demand for 
 the same particular instalment of tax or commutation. — Ord. 
 14 o/ 1840, § 16. 
 
 The expiry of two months from the cause of action arising, if 
 the tax shall be rented, or six months if collected by Govern-- 
 ment, prescribes the penal action. — Ord. 14 o/"1840, § 20. 
 
 In case the special action is thus barred, the civil action is 
 the only remedy ; and it will lie for the value of the original 
 
 tax-share, and not for double value, as in the other action. 
 
 Galle, 928. 
 
 These civil actions are brought, practically speaking, exclu- 
 sively before the Courts of Requests, owing to the smallness of 
 the sums generally sought to be recovered. Cases have been 
 known, in the Eastern Province, of suits of this kind, to recover 
 a tax-share of the value of about 2^d. In the Western Pro- 
 vince, plaints have been instituted to recover about 4d. 
 
17. Extension.'] The original jurisdiction of Courts of 
 Requests was not so extensive as that given to them by the 
 
 • Ordinance No. 22 of 1 852. Extension of jurisdiction is there' 
 fore effected by Ordinance. 
 
 18. Abolition.'] It is lawful for the Governor for the time 
 being, by Proclamation, to establish Courts of Requests, or to 
 revoke, alter, and amend any Proclamation which established a 
 Court of Requests. — Ord. 10 of 1843, § 1. The Governor may 
 therefore abolish a Court of Requests as well as establish one, 
 and he may alter the limits of its territorial jurisdiction. 
 
 It will be observed, that the term jurisdiction may be applied 
 to the ad »aforem jurisdiction, or to the territorial jurisdiction. 
 
 It may be useful, to add here a few observations respecting 
 the latter. 
 
 When a Court of Requests is abolished, or the limits of its 
 j urisdiction are changed, all the instituted cases which may have 
 arisen within its jurisdiction, become cognizable by the new 
 Court, to which they would be subject, if instituted after the 
 proclamation which changes the territorial limits. 
 
 The records, muniments, and proceedings should be handed 
 over to the new Court to meet the contingency. — Ord. 10 of 
 1843, § 18. 
 
 19. Transfer.l On the transfer, likewise, of eases from 
 District Courts to Courts of Requests, established within the 
 limits of the former ; or in future, when a necessity may arise 
 for such transfer, from a further extension of the jurisdiction 
 of Courts of Requests, the Court of Requests established within 
 the limits of the District Court, will proceed on with the cases. 
 
 It will also have the power of awarding the costs incurred 
 during the time when the cases were subject to the District 
 Court. But, on the application of any party in such suit, the 
 District Court will stay the transfer, and proceed on as before, 
 until the determination of the suit. The party making the ap* 
 plication will, however, subject himself to a penalty, similar to 
 that incurred by a suitor bringing his action in a District 
 Court, when it should originally have been preferred in the 
 Court of tlequests. For, if the decision be in favour of the 
 party making such application, that party will not be entitled 
 to any costs incurred subsequently to it ; and if such decisiofl 
 be against such party, then the other party or parties will be 
 
10 
 
 entitled to the full costs incurred previously to the making of 
 such application, and to double the amount of costs incurred 
 subsequently thereto.— Orrf. 12 of 1843, § 10. By section 21- 
 of Ordinance No. 10 of 1843, a cause in a Court of Bequests 
 may be transferred to another Court of Bequests or to a 
 District Court. In the latter case, it is to be presumed, that 
 there will be no pleadings, and that the proceedings will follow 
 those of a Court of Beqiiests ; and the costs will not be those 
 of an action in the District Court, but of an action in a Court 
 of Bequests. 
 
 20. Penalties.'] Under the head of Jurisdiction, the authority 
 of the Commissioner in several matters, may be noticed. 
 
 He has authority to impose a fine not exceeding One Pound, 
 or to imprison for a period not exceeding Fourteen days, where 
 a duly summoned witness neglects to attend, or where a party 
 or witness prevaricates, or any person is guilty of contempt of 
 the Court. 
 
 21. Contempt.'] It is provided, that every person guilty of 
 contempt must be committed to prison till the following day. 
 He gives security for his appearance on the next day, on his 
 own recognizance or that of another person, as the Commissioner 
 may consider necessary. And if, on the following day, such 
 party fail by his answers to sajtisfy the Commissioner that no 
 contempt was intended, it will be lawful for the Commissioner 
 to sentence such party to a fine not exceeding One Pound, or 
 to imprisonment for a term not exceeding Fourteen days, as 
 before stated.— Orrf. 10 of 1843, § 15. 
 
 22. Prevarication.] Any person guilty of prevarication, is 
 liable to the same penalties as a person guilty of contempt, and 
 must be committed in the same manner. — Ord. 10 of 1843, § 15, 
 
 23. Perjury,.] If it appear to the Commissioner, that any 
 person examined, or making affidavit on oath or affirmation, 
 has, in any proceeding instituted in or connected with the 
 Court of Bequests, committed wilful and corrupt perjury, the 
 Commissioner must forthwith give information to the Queen's 
 Advocate,, or to some Deputy Queen's Advocate, empowered 
 to act within the distjrict.— Ord. 10 of 1843, § 16. 
 
 24. Disobedience to Summons.] Any person summoned as 
 a witness, and not attending in pursuance of such summons is 
 liable to the same penalties as a person guilty of contempt or 
 
11 
 
 prevarication; such disobedience being a species of contempt. — 
 Ord. 10 0/1843, §15. 
 
 25. Purging Contempt.'] If, when a person is committed 
 for a contempt, he fail on the following day, by his answers, 
 to satisfy the Commissioner that no contempt or prevarication 
 was intended, the Commissioner may pass sentence. — Ord. 10 
 0/1843, §15. 
 
 26. Evidence of Contempt.'] Regarding penalties for con- 
 tempt, it must be well understood, what is a contempt. 
 
 The principle, that a day must elapse before convicting for 
 contempt, was enunciated by an old Regulation, No. 15 of 
 1820. It was adopted in the Rules for District Courts; and 
 considering, that in such cases the Court itself is the prosecu- 
 tor, the Supreme Court, whenever it appeared that the requisite 
 respite had not intervened, has never failed to set such convic- 
 tion aside. — MarshaWs Digest, p. 60. 
 
 In a contempt committed before the face of the Commissioner 
 himself, all evidence is obviously superfluous ; unless the Com- 
 missioner, for his own satisfaction, wishes to take the opinion 
 of bystanders.— iWarsAaH, ^. 61. 
 
 As to contempt alleged to have been committed OfUt of Court, 
 as proof would be necessary to establish the charge, the defen- 
 dant must, in justice, be allowed to adduce counter evidence. 
 — Marshall, p. 61. 
 
 But it must be well understood, what is a contempt. There 
 was a curious case which illustrated this. A witness was fined 
 ten shillings, for coming into the witness-box with his handker- 
 chief on his shoulders. The Supreme Court held, that such 
 a mark of disrespect according to native estimation, should 
 not be treated as a contempt, and punished as such. — Matelle, 
 3,734. 
 
 It is to be presumed, that the reason of this decision' was, 
 that, in Europe, such an act would not be considered as an 
 act of disrespect, and would not amonnt to a contempt of 
 Court. 
 
 27. Evidence and Penalty of PrevaJricaUon.] Morgan (K. 
 F.) appeared for a witness, appellant from the sentence below 
 for prevarication^ and contended, that though there was much 
 conflicting evidence, it was difiioult to see where the prevarica- 
 tion lay; and the Supreme Court had held, that the proof must 
 
12 
 
 be clear. 2dly. If guilty, under Ordinance 10 of 1843, § 15, 
 the witness could only be imprisoned, but not with hard labour. 
 Kowe (Chief Justice) Where a part of the sentence is in 
 excess of the power granted, the whole is a nullity. 
 The sentence was reversed as illegal. — Negumbo, 8,884. 
 28. Splitting the action.'] A suitor may waive an excess 
 but cannot split his action. A plaintiff having an action to 
 bring, above the value of Ten Pounds, will not be allowed to 
 split his action into two cases in the Court of Requests, — one 
 of ^10 and the other of less, or each of less than £10. He 
 must either bring his action in the District Court or abandon 
 the excess.— Orrf. 22 of 1852, § 4, 
 
 Under this head, there was an important decision on an 
 appeal from Negumbo. The Proctor for the Defendant moved 
 in the Court of Requests, that the case be dismissed, since the 
 Plaintiff had admitted in his examination, that there was an 
 action for another parcel of lands, which he claimed by the 
 very same right as the land in the instance present. By the 
 Plaintiffs admission it also appeared, that the cause of action 
 had arisen at one and the same time. The value of both lands, 
 put together, exceeded the ad valorem jurisdiction of the Court 
 of Requests. 
 
 The case was argued in Appeal, when Morgan (R. P.) 
 quoted Ordinance 22 of 1852, §4, against the splitting of ac- 
 tions; and contended, that in the present case the cause of 
 action was the same as in the other. The wording of the 
 clause was peculiar. 
 
 Morgan (W.) on the other hand, contended, Istly, that the 
 clause applied to money cases and not to land cases : 2dly, 
 supposing it did, the action could be limited to £10, (by the 
 excess being abandoned) and judgment given ^ro tanto. 
 
 The objection was held valid, and judgment reversed. — 
 Negumbo, 8,894. 
 
 The following curious case may also be cited : — A sum of 
 £6 was borrowed on a Bond. The Plaintiff had already re- 
 covered the principal in a previous action. He now brought 
 the present one for £4, as one year's interest on the sum first 
 named. The Court (below) referred to the first case, and 
 found the claim fully liquidated. It thereupon dismissed the 
 action for Interest on the same claim. 
 
Temple (Junior P. J.) observed :— The splitting of action 
 was suspicious, and the presumption was against the Interest 
 being due. 
 
 Judgment was accordingly affirmed. — Kandy, 20,427. 
 
 29. Abandoning the Excess.^ We now come to consider 
 this privilege of a suitor in a Court of Requests. Though the 
 jurisdiction is limited to sums within £10, a party having a 
 right to more than that sum may use the advantages of a Court 
 of Requests, if he is willing to forego the excess. For it is the 
 demand, and not the right, that is the test of jurisdiction. So 
 the Supreme Court has hinted in Manaar 1,719, and Manaar 
 1,720. 
 
 This is the law by Ordinance 22 of 1852, § 4, and in recover- 
 ing under that enactment, the Plaintiff may, of course, prove 
 the full amount due ; but he gets judgment for not more than 
 ilO ; and when he recovers that amount, it will be a discharge 
 in full of the original claim. The entry should be made on 
 the records accordingly. 
 
 Thus, A having an action for £12, which is within the juris- 
 diction of the District Court, prefers to give up £2 and recover 
 £10 in the Court of Requests. He may prove £12 due; or 
 prove £10 due, which will, be sufficient. He gets judgment 
 for £10, as discharge in full of the £12 really due. The 
 judgment is so entered on the Records. Costs, of course, may 
 be recovered besides the amount of judgment. 
 
 The case of Vines, v. Arnold, (14 Lata Times, 222.) will 
 illustrate the difference of the constitution of the English County 
 Courts from that of our Courts of Requests, in this respect. 
 
 £20 was the limit of ad valorem jurisdiction in a County 
 Court. It was held that the excess could be recovered in the 
 Superior Court, unless there had been a formal abandonment 
 of it in the County Court. It was therefore the interest of the 
 Defendant to have secured a formal rejection of the excess by 
 the Plaintiff. 
 
 But, by our Ordinance, "the judgment of the Court upon 
 such a plaint shall be in full discharge of all demands in respect 
 of such cause of action, and entry of judgment shall be made 
 accordingly."— Ord. 22 of 1852, § 4. 
 
 Where Plaintiff appealed, on the ground that his plaint 
 was erroneously entered for £1 2s. 6d., though his claim, 
 
14 
 
 supported by a Bond, was for £1 17s. 6d.; it was held, 
 that it was too late to alter the claim after judgment, and 
 that the balance must be presumed to have been liquidated. — 
 Galle, 11,294. 
 
 30. In an action for share of crop where title to land was in 
 'dispute.'] The suit was to recover a certain quantity of Paddy, 
 or its value, as "ground-share" of a field valued at £22, the 
 title to which was in dispute. The judgment below was set aside, 
 on the ground, that the Court of Requests had exceeded its 
 jurisdiction. — Kaigalle, 4,680. 
 
 The following is a curious instance of the plea of jurisdiction. 
 
 31. TVhere the land increased in value after the institution of 
 suit."] Defendant had pleaded, that the land was worth more 
 than £10; but on his examination, explained, that the land was 
 waste at the institution of suit, and the value of it within the 
 jurisdiction of the Court; but, that he had since cultivated it, 
 and that it had thus increased in value. The Commissioner 
 rejected the plea of the defendant ; and, on appeal, the Supreme 
 Court affirmed his decision. — Matelle, 24. 
 
 32. Future Rights.'} The question of Future Eights was 
 such a distinctive feature in the old system of Courts of Requests, 
 that it should not be altogether unnoticed. These Courts had 
 no jurisdiction, where a decision on the matter might bind rights 
 in future.— 0?-rf. 10 of 1843, § 5. 
 
 This clause was expressly repealed by the new Ordinance, 
 and nothing expressly re-enacted respecting Eights in future. 
 —Ord. 22 of 1852, § 1. 
 
 There were many judgments of the Supreme Court reversing 
 decisions of the Courts of Requests, which had not taken this 
 question into consideration. 
 
 Thus, the judgment below was set aside, and Plaintiff di- 
 rected to bring his action in the District Court, as it appeared to 
 the Supreme Court, that the claim in question might bar rights 
 in future. — Ratnapoora, 319. 
 
 33. Abatement of a Nuisance.'] An interesting question, 
 connected with the subject of the jurisdiction of Courts of 
 Requests, remains to be considered. It may be stated as 
 follows : — Where it was complained in a Court of Requests, 
 that trees growing on Defendant's land injured Plaintiffs pre- 
 mises, by the falling of branches and fruits, the Court adjudged 
 
damages, with costs of suit; and also ordered, that the trees 
 which caused the damage should be cut down. The question, 
 whether the Court had not exceeded its jurisdiction, came 
 before the Collective Court which then existed. It was there 
 held, that under the words "for the payment and recovery of 
 any debts, demands, damages, or matter," the abatement of a 
 nuisance could not be granted ; and that therefore the Court 
 below had exceeded its jurisdiction in granting the Plaintiffs 
 prayer in that respect. The judgment was accordingly set 
 aside, with the exception of the damages also claimed, and costs. 
 — Matura, 2,849. 
 
 It is necessary to observe, that the above decision was under 
 the old law. By the new constitution of Courts of Requests, 
 they have jurisdiction in "all actions, in which the debt, dam- 
 age, or demand shall not exceed Ten Pounds," but it is not so 
 particularly stated as actions for the recovery or payment of any 
 debts, demands, damages, or matter. 
 .. The question is, therefore, whether, under the present juris- 
 diction, an action for the abatement of a nuisance maybe brought 
 in a Court of Requests, and more so, after these Courts have 
 been given a jurisdiction in land cases? * 
 
 In the case of District and Police Courts, where they may 
 legally exercise jurisdiction in respect of the punishment to be 
 inflicted for any offence, those Courts have also the jurisdiction 
 to abate the act, matter, or thing, complained of. — Ord. 5 of 
 1846, § 6. 
 
 Have Court of Requests therefore, by analogy, a jurisdiction 
 to abate a private nuisance where they can award the damages 
 caused by it ? 
 
 *" It seems to me, that the power given to Courts of Requests by the Ordi- 
 nance No. 22 of 1852, § 3, authorizes those Courts to entertain all suits when the 
 " damage " sought to be recoTered, docs not exceed ten pounds ; and, as a necessary 
 consequence, they have power to abate the particular cause of the nuisance, saving, 
 of course, the exceptions contained in the Ordinance. In the Matura case, decided 
 by the Supreme Court, it is clear that the Court of Requests exceeded its jurisdic- 
 tion in ordering the trees to be cut down, because they were immoveable property, 
 with respect to which these Courts then had no jurisdiction. The later Ordinance 
 givesthem power in this respect, and it is no uncommon thing for actions to abate 
 nuisances to be now.entertained, as for instance. No, 8074, Oalte. — Note by Mr. 
 Barrister Rust. 
 
16 
 
 It will be seen that the argument drawn from the wording 
 of the old Ordinance, " actions for the recovery or payment^' 
 is, though perhaps techpioal, deserving of some weight, as the 
 words recovery and payment seem to have been intentionally 
 omitted in Ordinance 22 of 1852, which gave jurisdiction where 
 immovable property was concerned. 
 
 As the distinction between private and public nuisances is 
 often lost sight of, a few notes regarding it may here be added. 
 
 The Superintendant of Police may order a public nuisance 
 to be abated, and, if necessary, to be removed. The hona-fde 
 expenses incurred in this respect, on being certified to the Police 
 Magistrate, are recoverable in the Police Court from the per- 
 son causing the nuisance. — Ord. No. 17 of 1844, § 45. 
 
 Private nuisances are those by which an individual is inter- 
 rupted in the legal enjoyment of his dwelling or land. Anuisance 
 must take away something absolutely necessary or convenient. 
 
 Public nuisances must be prosecuted criminally, for it would 
 be unreasonable to subject their author to a separate action by 
 every member of the community. But, if a person can shew, 
 that he individually, has suffered a special (or extraordinary) 
 damage, though the nuisance be a public one, he may bring a 
 civil action which, if the damages be within the ad valorem 
 jurisdiction, may be brought in a Court of Requests. — Mar- 
 shdVs Digest, p.p. 444, 446. 
 
 34. Commission to examine Lands.'] It has been declared, 
 that a Commissioner has no authority to issue a commission to 
 examine lands. — Kaigalle, 73. 
 
 The decree of the Court of Requests, which was affirmed in 
 this case, was dated the 6th day of April, 1854 ; and the Ordi- 
 nance No. 22 of 1852 came into operation on the 1st of January, 
 1853. Since by that Ordinance, Courts of Requests were given 
 jurisdiction in land cases, the principle on which the Supreme 
 Court formed the above opinion, claims some enquiry. The 
 practice at present is, to grant such commissions ; and the Ad- 
 vocates are of opinion, that Courts of Requests exercise in 
 this respect, a power similar to that of District Courts.* 
 
 * The Court of Requests can now do whatever the District Court could 
 do under similar circumstances. — Mr. Barrister Loreta. 
 
 I should think, that the Court of Requests can do all that the Distritt 
 Courts do in land cases. — Mr. Advocate W. Morgan. 
 
17 
 
 In the case under consideration, the Supreme Court observed, 
 that a Commission had been appointed to examine the land 
 and report upon the limits, furnishing a sketch; and, if possible, 
 to settle the dispute amicably, and put up a fence with the 
 consent of both parties. The Supreme Court then added, that 
 it did not consider that the Court of Bequests had any power 
 to appoint such Commission. 
 
 It is most likely, that the Supreme Court had in view the 
 principle, that a Commission of the kind could only be appointed 
 by consent of both parties. 
 
 35. Process out of the District.'} In issuing processes, the 
 consideration of jurisdiction may also arise. The process of a 
 Court of Requests may extend into the territory of another 
 Court of Requests. Thus, a writ against property, or a process 
 for examination of a partj^ upon interrogatories, or a summons 
 to a witness, may be issued into another district, or carried into 
 execution there. — Ord. 10 q/" 1843, § 14. 
 
 36. Personal Arrest.'] Writ of execution against person, 
 has become obsolete since Ordinance No. 7 of 1853 came into 
 operation. By the 164th section of that Ordinance, there is 
 no arrest, where the sum due does not exceed £10; and, as this 
 is also the ad valorem limit of the jurisdiction of a Court of 
 Requests, they have practically lost the power of arrest. 
 
 37. Number of Courts.] The number of Courts of Requests 
 at present in existence is thirty, and they are arranged in the 
 alphabetical order of their names, as follows: — Avishawelle, 
 BaduUa, Batticaloa, Bentotte, Calpentyn, Caltura, Cayts, Cha- 
 vagacherry, Chilaw, Colombo, Galle, Gampola, Hambantotte, 
 Jaffna, Kaigalle, Kandy, Kornegalle, Manaar, Matelle, Matura, 
 Maturatta, MuUetivoe, Nawallapittia, Negombo, Nuera Ellia, 
 Nuerakalawiya, Point Pedro, Ratnapoora, Tangalle, and Trin- 
 comalie. 
 
 38. ProchMatians of Courts.'] As already remarked, it is 
 competent for the Governor to establish Courts of Requests by 
 Proclamations.— Or(f. 10 o/1843, § 1. 
 
 The following is, I believe, a correct account of the Procla- 
 mations of Courts of Requests. 
 
 The Proclamation of the 30th November, 1844; that of the 
 1st October, 1845; of the 24th December, 1846; of the 23rd 
 September, 1848; of the 12th September, 1849; the 18th De- 
 
18 
 
 cember, 1852; 20th July, 1853; 13th November, 1854; 6th 
 February, 1855 ; and, lastly, the Proclamation dated the 25th 
 day of October, 1856. 
 
 39. Territorial Jurisdiction.^ The question of what is the 
 territorial jurisdiction of each particular Court is not very well 
 defined. Of all the courts of judicature, the District Courts 
 have their limits defined the most accurately. The limits of 
 the jurisdiction of the Courts of Requests have generally been 
 described by a simple reference to the districts to which they 
 are attached. Thus, the Court of Requests of Colombo is di- 
 rected to be holden, and exercise jurisdiction within and over 
 the District of Colombo. This would be accurate enough for 
 all practical purposes, if not for conflicting circumstances. 
 Thus, the Court of Requests of Negombo is also to exercise 
 jurisdiction within and over the District of Colombo. — Prod. 
 1st October, 1845. The question, then, arises. How is the ju- 
 risdiction of the Colombo Court of Requests to be distinguished 
 from that of the Court of Negombo ? 
 
 There is a more striking instance in the Court of Bentotte, 
 which is directed to hold jurisdiction in the Districts of Galle 
 and Caltura, each of which districts has its own Court of Re- 
 quests. — Prod. 1st October, 1845. Is it to be held, even in 
 theory, that the little Court of Bentotte is to exercise jurisdic- 
 tion to the farthest extremities of the important Districts of 
 Galle and Caltura ? 
 
 The Courts of the Northern Province, however, have their 
 limits very accurately laid down. Thus, the parishes and 
 villages appertaining to the Court of Chavagacherry are enu- 
 merated; the jurisdictions of the Courts of MuUetivoe, of Cayts, 
 and of Point Pedro, are also accurately laid down. But even 
 in the Northern Province, a difficulty arises, though not of 
 very difficult solution. AH the territory divided between the 
 Courts just mentioned, are portions of the District of Jafiha; 
 and the Districts of Jaffna and the Wanny are under the ju- 
 risdiction of the Court of Requests of Jaffna. — Prod. October 
 1st, 184S. It is to be presumed, that Jaffna has jurisdiction 
 jointly with each of the other Courts of Chavagacherry, Mul- 
 letivoe, Cayts, and Point Pedro; and that Jaffna has exclusive 
 jurisdiction in that portion of the Jaffna and Wanny Districts 
 which may remain, after excluding the portions enumerated as 
 
19 
 
 appertaining to the other Courts above mentioned. Where two 
 Courts, agreeably to the above explanation, exercise jurisdic- 
 tion over the same territory, suitors may be supposed to select 
 the nearest Court ; or, if reluctant for good reasons to bring 
 their suit therein, to have the valuable privilege of going to the 
 other Court in search of justice. 
 
 To ascertain, however, the actual practice of Courts and 
 Fiscals, as regards this difficult question, we must ascertain the 
 jurisdiction of the District Courts under the old system, when 
 they were more numerous than in the present day. The divi- 
 sion of the Provinces and Districts for revenue purposes, will 
 only mislead the enquirer ; for, how much soever it may be a 
 matter of regret, the legislature has been obliged to depart 
 from the old boundaries, in their endeavours to facilitate the 
 administration of justice. 
 
 The Court last established was that of Maturatta, and from 
 the beginning of the year 1857, it exercises jurisdiction over 
 the Maturatta, Kohoka, and Gangapalata Corles of Upper 
 Hewahette; and the Medepalata and Oyapalata Corles of Wel- 
 lapane. — Prod. iSth October, 1856. 
 
 The Court of Nuera Ellia, by its amended constitution, has 
 lost jurisdiction within and over the Hangurankette and Gan- 
 newe Korles of Hewahette Eggodatihe, which are now part of 
 the Kandy jurisdiction. — Prod. ISth November, 1855. 
 
 From the 1st October, 1848, the Court of Rikkellegaskede 
 was abolished by the revoking of as much of the Proclamation 
 of the 1st October, 1845, as related to the Courts of Rikkelle- 
 gaskede and Nuera Ellia ; and the Court of Nuera Ellia was 
 established, holding jurisdiction within and over Wallapane, 
 and the Maturatta, Kohoke, Hangurankette, and Gannewe 
 Corles of Hewahette Eggodatihe, Kotmalie, excepting the Tis- 
 pane Corle, and the portion of Uwa contiguous to Nuera Ellia, 
 and to the northward and westward of the Hakgalla range of 
 mountains. — Prod. September 23, 1848. 
 
 It may be here noticed, that the same Hangurankette and 
 Gannewe Corles of Hewahette Eggodatihe, now belonging to 
 the jurisdiction of the Court of Kandy, together with the Ma- 
 turatta and Kohoke Corles of Hewahette Eggod^itihe, now 
 belonging to the jurisdiction of the Court of Maturatta, and 
 the whole of Welapane, made up the jurisdiction of the Court 
 
20 
 
 *f Rikellegaskedde, established by the Proclamation of the 1st 
 October, 1845, and abolished, as just stated, by the Proclama- 
 tion of the 23rd September, 1848. 
 
 Anything in the Proclamation of the 24th December, 1846, 
 to the contrary notwithstanding, the Courts of Requests of 
 Kandy and Kornegalle respectively exercise jurisdiction within 
 and over the Districts of those names. — Prod. iOth Jidy, 1853. 
 
 The Court of Gampola exercises jurisdiction within the limits 
 of Udapalata, Uda Bulatgama, and the Tispane Corle of Kot- 
 malie. — Prod. \st October, 1845. 
 
 The Court of Navellepittiya exercises the same territorial 
 jurisdiction, since the beginning of the year 1853. — Prod. ISth 
 December, 1852. 
 
 The Commissioner of Gampola holds a Court atNavellepittiya, 
 and a branch Court at Pusselawa, on alternate Saturdays. If 
 any business remain to be got through, at either station, a 
 Court of Bequests is again held there on the enstiing Monday. 
 
 The Court of Avishawelle has jurisdiction within and over 
 the Three Corles and Lower Bulatgamme, the Kuruwitte Corle 
 of Saffragara, the Oedoegaha Pattoo of Cina Corle ; so much of 
 the Gangebodde Pattoo of the Cina Corle as is situated east of 
 the road from Hangwelle to Attenegalle, and the Oedoegaha 
 Pattoo of Hewagam Corle. — Prod. 24,th December, 1846. 
 
 The Proclamation which established the Court of Requests 
 of Avishawelle, also established the Court of Madawalatenne 
 and Kornegalle, which must not be confounded with the Court 
 of Kornegalle. The territorial jurisdiction of the Court of 
 Madawalatenne and Kornegalle was made up of portions of the 
 jurisdictions of Kandy and Kornegalle, as follows : — Tumpane 
 and Harasiapattoo, taken from the District of Kandy; and the 
 Madura, Wegodde, Hewawisse, Gandahya, and Gannasaye 
 Corles of the Seven Corles, taken from the District of Korne- 
 galle. — Prod. December 24, 1846. 
 
 The Court of Madawalatenne and Kornegalle was abolished 
 in 1853, and Tumpane and Harasiapattoo were given back to 
 the Kandy jurisdiction ; and the five Corles of the Dessavony 
 
 of the Seven Corles, given back to their ancient jurisdiction. 
 
 Prod. July 20, 1853. 
 
 The Proclamation which effected this, in consequence de- 
 clared, that the Courts of Kandy and Kornegalle were to 
 
exercise jurisdiction within and over the Districts of the same 
 name. As regards those Courts, therefore, I have quoted the 
 Proclamation of the 20th July, 1853, as my authority, and not 
 the general Proclamation of the 1 st of October, 1 845 . — See^. 20. 
 
 The Court of Kaigalle has jurisdiction within and over the 
 Three Corles and Lower Bulatgamme. The rest of the juris- 
 diction of this Court, given by the Proclamation of 1845, was 
 taken away and given to the Court of Avishawelle. — Prod. 1st 
 October, 1845. Prod. 24th December, 1846. 
 
 Nuerakalawiya was withdrawn from the Northern Circuit, 
 and was declared to be a sub-division of the Midland Circuit, 
 by a Proclamation in 1 849 ; but its limits were conmmed and de- 
 clared to be the same as stated and set forth in the Proclamation 
 of the 12th day of December, 1844. — Prod. September 22, 1849. 
 
 It should be remarked, that the Proclamation of the 22nd 
 September, 1849, professes to alter and amend the Proclamation 
 of the 12th December, 1844, which had already been revoked, 
 and ceased to have any eflfect from the 1st of October, 1845. — 
 Prod. October 1, 1845. 
 
 Practically, the error has not been productive of much un- 
 certainty, as, while the revoked Proclamation of the 12th 
 December, 1844, declares the District of Nuerakalawiya to 
 consist of the Province and Dessavony of Nuerakalawiya, the 
 revoking Proclamation of the 1st October, 1845, in a manner, 
 confirms that jurisdiction, by declaring that the District of 
 Nuerakalawiya shall consist of the Dessavony of that name. 
 
 The jurisdiction of the Court of Chavagacherry is as follows : 
 — ^within and over the parishes of Nawacooly, Chavagacherry, 
 Warrene, Eludumutual, Catchay, Mogomale, Tambagammo, 
 Plopalle, Mullipattoo, and Caretchy ; and the villages Pulian- 
 pokane, Kallanattatedal, Poonanirarie, Koolundapole, Oootara- 
 poram, Porakadewe, and Valyelademben, of Carnewelpattoo. — 
 Prod. Isi October, 1845. 
 
 The following is the jurisdiction of Mulletivoe : — Karrikatte- 
 moUe North ; KarrikattemoUe South ; MuUiawelle ; Melpattoo 
 North ; Melpattoo South ; Carnawelpattoo North, excepting 
 the villages Pulianpokane, Kallanatedal, Poonanirarie, Eolun- 
 dapole, Oootaraporam, Porakadewe, and Valyelademben, (which 
 pertain to Chavagacherry) ; Carnawelpattoo South ; and Poo- 
 doocoodieruppoo. — ibid. 
 
22 
 
 The Court of Cayts has jurisdiction within and over the 
 parishes of Cayts, Welene, and Alleputty ; and the islands Pun- 
 gertivoe, Aneletivoe, Naynativoe, Carretivoe, and Delft. — ibid. 
 
 The Court of Point Pedro has jurisdiction within and over 
 the parishes of Ooodoopitty, Cattewelly, and Point Pedro. — ibid. 
 
 The Court of Jaflfna has jurisdiction within and over the 
 District of Jaffna and the Wanny. — ibid. This must be pre- 
 sumed to include a jurisdiction in common with those of the 
 preceding Courts which are in the Districts of Jaffna and the 
 Wanny, and an exclusive jurisdiction over that portion of those 
 districts which is not embraced by those Courts. 
 
 The Court'of Jaffma, still having jurisdiction within and over 
 the whole District of Jaffna, a Court was established in Sep- 
 tember, 1849, atMallagam, which exercised jurisdiction within 
 and over the parishes of Atchovaly, Mallagam, Tellipalle, 
 Myletty, Ooodooville, Pandaterippoo, and Sangane. — Prod. 
 12th September, 1849. 
 
 There is now no Court at Mallagam, and it is presumed that 
 the Court of Jaffna now holds exclusive jurisdiction over these 
 places. 
 
 The Court of Manaar, within and over the District of 
 Manaar. — Prod. 1st October, 1845. 
 
 Regarding the Court of Selawatorre, it may be observed, 
 that it is the same as the Court of Manaar, and only removed 
 to the former station by Proclamation, for the convenience of 
 the Public during the Pearl fishery. I am not aware that 
 notice was duly given, of the removal of the Court to Manaar, 
 after the last fishery. — Prod. 6th February, 1855. 
 
 Of the remaining Courts, that of Trincomalie has jurisdiction 
 within and over the District of that name. — Prod. 1st October, 
 1845. 
 
 The Court of Batticaloa, within and over the District of 
 Batticaloa. — ibid. 
 
 The Court of Matelle, within and over Matelle. — ibid. 
 
 The Court of BaduUa, within and over the-District of BaduUa. 
 — ibid. 
 
 The Court of Eatnapoora, within and over the District of 
 Ratnapoora. — ibid. 
 
 The Court of Caltura, within and over the District of Cal- 
 tura. — ibid. 
 
23 
 
 The Court of Galle, within and over the District of Galle. — ib. 
 
 The Court of Matura, lyithin and over the District of Ma- 
 tura. — ibid. 
 
 The Courts of Chilaw and Calpentyn, each have jurisdiction 
 within and over the District of Chilaw. — ibid. 
 
 The Courts of Hambantotte and Tangalle have each juris- 
 diction within and over the District of Tangalle. — ibid. 
 
 The Courts of Colombo and Negombo have each jurisdiction 
 within and over the District of Colombo. — ibid. 
 
 The previous Proclamation of the 30th November, 1844, 
 had given Negombo jurisdiction only over the District of Ne- 
 gombo. 
 
 Finally, the Court of Bentotte has jurisdiction within and 
 over the Districts of Galle and Caltura. — ibid. 
 
 40. Manner of pleading Jurisdiction.'] Regarding the man- 
 ner in which jurisdiction must be pleaded, the following decision 
 of the Supreme Court is worthy of consideration : The plaintiff 
 must clearly shew, that the Court of Requests has jurisdiction ; 
 for no intendment will be made in favour of that proposition. 
 Where the value of a land was not stated to be within £10, 
 the proceedings were set aside for want of jurisdiction. — See 
 Chilaw, 3,888. 
 
 The defendant must object on the ground of want of juris- 
 diction, as early as possible, and before disclosing any other 
 defence. But it is questionable, if the omission of the defendant 
 in this respect authorises, the Court, to entertain a cause where 
 it clearly has no jurisdiction. 
 
24 
 
 CHAPTER II. 
 
 THE COMMISSIONBE AND OrFICERS. 
 
 1. — Competency of Commissioner. 
 2. — J(mit Commissioner. 
 3. — Oaths of Office and Allegiance. 
 4. — Duties of Commissioner. 
 5. — Privileges of Commissioner. 
 
 CONTENTS. 
 
 ' 6. — Officers. 
 7.— The Clerh. 
 8. — Interpreters. 
 9. — Translators. 
 10. — Process Servers. 
 
 1. Competency/ of Commissioner.^ A Commissioner of s 
 Court of Requests, to be competent to act, must hold a war- 
 rant under the hand of the Governor. He must also have 
 taken the necessary oaths before the Judge of some District 
 Court, who is required to administer the same on application. 
 —Ord. 10 of 1843, §§ 2 and 3. 
 
 A Commissioner is, of course, not competent, while under 
 suspension ; but he exercises .undiminished powers when acting 
 together with a joint Commissioner. 
 
 2. Joint Commissioners.^ An additional Commissioner may 
 be appointed to the same Court, sitting apart, and exercising 
 similar and equal power and jurisdiction with the original Com- 
 missioner. — Ord. 22 of 1852, § 2. 
 
 The only difference which will exist in such case, will neces- 
 sarily result from the division of the duties of the Court between 
 the two Commissioners, as the additional Judge is intended to 
 relieve his colleague of a portion of the judicial work, where 
 the number of cases instituted in the Court is too large for the 
 original Commissioner to go through singly. 
 
 3. Oaths of Office and Allegiance.'] The Commissioner, 
 before he begins to execute the duties of his office, must take 
 and subscribe the Oath of Allegiance, and the Oath of Office, 
 before the Judge of some District Court ; and every District 
 Judge, upon application being made to him in that behalf is 
 empowered and required to administer the oaths. 
 
23 
 
 The oaths must be entered on the Records or Proceedings of 
 the Court, over which the Judge administering the same shall 
 preside, and a copy of the entry must be transmitted to the 
 Registrar, to be entered on the Records of the Supreme Court. 
 —Ord. 10 of 1843, § 3. 
 
 When a Commissioner or an Acting Commissioner is ap- 
 pointed, he produces his authority to the Clerk of the Court, 
 who makes three copies of the oaths to be taken before the 
 District Judge. Two of these copies are taken to the District 
 Court, and after the oaths are duly administered, one copy is 
 filed with the Records of the District Court, and the other is 
 forwarded to the Supreme Court, in obedience to the Ordinance. 
 The remaining, or third copy, the Clerk of the Court of Requests 
 files in the Letter Book of that Court, for the information of 
 the Office. This practice, though not enjoined by the Ordi- 
 nance, has been always followed in the Colombo Court of 
 Requests. The utility and convenience of filing a copy in the 
 Court of Requests is obvious. When a Commissioner, or an 
 Acting Commissioner retires from his post, and ceases to act as 
 the Commissioner of any Court of Requests, he returns his 
 Warrant to the Colonial Secretary's Office. 
 
 The form of the Oath of Allegiance is as follows : — 
 "I do sincerely promise and swear (or 
 
 affirm) that I will be faithful and bear true allegiance to Her 
 Majesty Queen Victoria. 
 
 So help me God." 
 The form of the Oath of Office is as follows : — 
 " I do sincerely promise and swear (or 
 
 affirm) that I will faithfully and diligently execute, to the ut- 
 most of my abilities, the several duties of the office of a Com- 
 missioner of a Court of Requests. 
 
 So help me God." 
 4. Duties of the Commissioner.'\ These claim to be here 
 noticed under the design of this work ; but they will be very 
 meagrely noticed, inasmuch as they are connected with every 
 part of the machinery of a Court of Requests, besides being in 
 a great measure included in that tacit responsibility, which is 
 not the subject of express rules. 
 
 When a Commissioner is appointed to preside over a Court 
 of Requests, by Warrant under the hand of the Governor, he 
 
26 
 
 should take the necessary oaths before entering upon his 
 duties. 
 
 The following are the more obvious duties which occur in the 
 course of practice. 
 
 On the day appointed for the appearance of the parties, unless 
 the Summons has been withdrawn, the Commissioner must cause 
 them to be called. 
 
 After the Clerk has recorded the appearance, the Commis- 
 sioner must direct him to read oyer the Plaint, and demand the 
 answer of the Defendant thereto. — Rules and Orders, § 7. 
 
 The Commissioner should cause the Clerk of the Court to 
 note in the Record Book any objections to the reception of 
 evidence, where such evidence has been received ; or any ob- 
 jections to the rejection of evidence, where evidence has been 
 rejected. 
 
 The Commissioner must take down, in writing, the examina- 
 tion of parties and the evidence of witnesses, and must sign the 
 same. — § 15. 
 
 He must deliver his judgments in open Court, which must be 
 reduced into writing and there signed by him. — § 16. 
 
 Where witnesses commit wilful and corrupt perjury, the 
 Commissioner should give information to the Queen's Advocate, 
 or his Deputy, empowered to act within the District — Ord. 10 
 of 1843, § 16. 
 
 The above are the most obvious duties of the Commissioner, 
 in connection with each individual suit. 
 
 With reference to the business of the day, the following ob- 
 servations may be offered : — 
 
 The Commissioner may enquire for Ex parte cases, and the 
 more summary business of that description, on beginning the 
 business of the day, and before entering into the often length- 
 ened trials of contested cases. 
 
 By thus disposing of the lighter business, trials are entered 
 into with more convenience. 
 
 The Commissioner must, every Court day, before the risin" 
 of the Court, sign the Eecord Book ; that being required by the 
 Rules and Orders of 21st October, 1844, § 1. 
 
 5. Privileges of the Commissioner.'] The Commissioner is 
 only suspended by the Governor, with the advice and consent 
 of the Legislative Council, — Ord. 10 of 1843, § 2. 
 
27 
 
 The Commissioner may himself suspend an officer of his owa 
 Court, pending the Governor's pleasure. — Ord. 10 of 1843, § 4. 
 
 In case of a vacancy by the promotion of an officer, the Com- 
 missioner may therefore appoint another to act, till a successor 
 be appointed. 
 
 Since the admission of professional men to practice in these 
 minor Courts, the Commissioner may not disallow their appear- 
 ance on behalf of parties ; but he still exercises this discretion 
 with regard to unprofessional substitutes. — Ord. 22 of 1852, § 6. 
 
 But though Advocates and Proctors appear of right, the 
 Commissioner may enforce the personal appearance of parties. 
 —Ord. 20 of 1852, § 8. 
 
 If it shall appear on oath that a material witness has neglected 
 to appear, though duly summoned, the Commissioner exercises 
 his discretion in appointing another day, or in hearing the evi- 
 dence of such witnesses as have appeared. In these respective 
 cases the Clei-k records the suspension or postponement. — R. 0., 
 
 Where the Fiscal is related to either of the parties, or is the 
 party against whom the process is issued, or for any other just 
 cause, the Commissioner may name and appoint some other fit 
 person, to execute and return the process, which shall be directed 
 to that person. The cause of such special proceedings should 
 be stated in the records of the Court. — Ord. No. 1 of 1839, § 3. 
 
 It will be observed, that this law was enacted long before our 
 Courts of Requests came into existence ; but it established that 
 Fiscals and their Deputies should execute the processes of all 
 Courts of Justice, duly constituted within these settlements, 
 required to be executed by a public officer, according to the 
 extent of the jurisdiction of each Court. — § 2. 
 
 It is inferred, that the privilege above stated accrues to the 
 Commissioner, since the Fiscals and their Deputies execute the 
 processes of Courts of Requests. 
 
 Every party to a suit is liable to be summoned and examined 
 viva voce in open Court, if the Commissioner considers it neces- 
 sary.— Ord. 10 of 1843, i^ 7. 
 
 So is a party liable to be examined by interrogatories, issued 
 by the Commissioner, but not upon oath. — ibid. 
 
 The Commissioner has great discretion or authority in credit- 
 ing the evidence heard by him. 
 
28 
 
 Other matters connected with the duties or privileges of Com- 
 missioners, are omitted to prevent repetition. 
 
 6. Officer S.I The Officers of the Court are appointed and 
 removed by the Governor ; but, for sufficient reason, the Com- 
 missioner may suspend an officer and appoint some one else in 
 his place, pending the Governor's pleasure. — Ord. No. 10 of 
 1843, § 4. 
 
 The Courts of Requests have generally but three officers — a 
 Clerk, an Interpreter, and a Translator ; but the staff of Officers 
 are more or less numerous, to suit the exigencies of business. 
 Thus, the Colombo Court of Requests has three Clerks, one 
 Singhalese Interpreter, two Singhalese Translators, and two 
 Malabar Interpreters and Translators. The Kandy Court of 
 Requests has two Clerks, one Singhalese Interpreter, one Mal- 
 abar Interpreter, and an officer called the Head Process-server. 
 The last named officer presents the only instance of a Court of 
 Requests having its Process-officer independent of the Piscal's 
 Department ; though, by the Rules and Orders, it seems to have 
 been originally contemplated to have an " officer appointed to 
 serve the process " attached to each Court of Requests. — Ceylon 
 Alnmnae, 1856, p. 71. R. Sj- O., § 3. 
 
 7. TOe Clerk.'] The Clerk of the Court is the principal 
 officer ; and it is his duty to keep the Record-book, and to enter 
 all proceedings therein. R. 0., 2lst October, 1844, § 1. 
 
 The Clerk should take down the plaint from the oral state- 
 ment of the Plaintiff, entering the same in the proper column of 
 the Record-book, and, as near as is material, in the forms and 
 according to the precedents set forth in the schedule promul- 
 gated by the Supreme Court, in October, 1844. — jB. O., § 2. 
 
 The Clerk should appoint a day for the appearance of the 
 parties with their witnesses, calculating at a reasonable time, 
 according to the distance at which the party summoned lives 
 from the Court, and informing the Plaintiff of the time thus 
 fixed.—/?. O., § 3. 
 
 The Clerk issues the summons for the Defendant to appear 
 with his witnesses, if he have any, on the day fixed for appear- 
 ance.— R. O., § 3. 
 
 The Clerk issues the subpoenas to witnesses, on the same 
 being sued out by the party requiring the attendance of such 
 witnesses. — R. 0., § 10. 
 
The Clerk records the appearance of the parties, or their sub- 
 stitutes, if the latter be allowed by the Commissioner. — R.O., § 7. 
 
 The Clerk, on being called upon by the Commissioner, must 
 read over the plaint to the Defendant, and then ask him or his 
 substitute for his answer; or claim in reconvention, if the case 
 so he.—R. 0., § 7. 
 
 The Clerk then records the Defendant's answer to the Plaint 
 in the proper column. — R. O., J 7. 
 
 The Clerk records all postponements and suspensions in the 
 column entitled " Day of hearing the case." — R. O., § 13. 
 
 If a party requires to produce or refer to any Record of the 
 Court in evidence, it is the duty of the Clerk, when requested 
 by that party, to produce or refer to the same. — R. O., § 14. 
 
 On being required by the Commissioner, the Clerk records 
 the objections made by either party to any oral or written evi- 
 dence, being received or rejected by the Commissioner. — R. O., 
 §15. 
 
 When the Commissioner has reduced his judgment into writ- 
 ing, and signed the same, the Clerk records a note thereof in 
 the proper column of the Kecord-book. — R. O., § 16. 
 
 When Defendant makes no appearance after summons duly 
 served and interlocutory judgment is given on PlaintiflT's evi- 
 dence, the Clerk must issue notice thereof to the Process Officer 
 for the information of the Defendant. — R. O., § 17. 
 
 When an interlocutory judgment is made final, the Clerk 
 must record the same, and date thereof in the proper column 
 of the Kecord-book.— i?. O., § 18. 
 
 When a judgment is opened, the Clerk must read to the De- 
 fendant the evidence of the Plaintiff, upon which he obtained 
 judgment. — R. O., § 19. 
 
 When a suitor lodges his Petition of Appeal from the decision 
 of the Commissioner, the Clerk must receive the Petition. — 
 R. 0., J 21. 
 
 When judgment is given, the Clerk must tax the costs, at the 
 request of the party entitled to the same. — R. 0., § 23. 
 
 Process of Execution is sued out of the Clerk's Office. — 
 R. 0., § 24. 
 
 Process of Execution to arrest the person is now practically 
 out of the jurisdiction of a Court of Requests. — Consider § 164 
 of Ord. No. 7 of 1853. 
 
30 
 
 Should the judgment debtor, before Warrant of Execution, 
 tender certain property exceeding in value the amount to be 
 levied in execution, with a security for his bringing the same 
 for sale, when and where the Court shall appoint, the Clerk 
 should receive an inventory of such property. — R. 0., § 27. 
 
 8 . Interpreters.} Where the necessity exists of interpreting 
 from English into the native languages, it is the practice for the 
 Singhalese or Tamul Interpreters to do such portion of the 
 duties of the Clerk of the Court as he may not be able to per- 
 form himself, owing to his ignorance of the native languages. 
 Thus, where the plaint is to be read to natives ignorant of the 
 English language, the Singhalese Interpreter recites the plaint 
 to the Defendant in Singhalese. So also the Malabar Inter- 
 preter performs this duty of the Clerk, in the case of a Malabar 
 Defendant ignorant of English. 
 
 The Interpreters administer the oaths to native witnesses in 
 the native languages, and, of course, perform the interpretation 
 of the examinations. 
 
 Where two officers are attached to a Court of Requests, joint- 
 ly, as " Interpreters and Translators " at the same time, that 
 officer who usually officiates as Interpreter assists him who is 
 Translator during the intervals, when the services of the first 
 are not required as Interpreter. And the officer who is nomi- 
 nated as Interpreter and Translator, performs the duties of 
 both offices ; and if there be another Translator, assists him in 
 the intervals of interpretation. 
 
 If there be no translation, the Interpreter is usefully engaged 
 in assisting the Clerk in calling the parties and witnesses, as the 
 Commissioner calls up each successive case, the Clerk, in the' 
 meanwhile, being engaged with the Record-book. 
 
 In the case of a Frenchman or other foreigner being a party 
 or a witness to a suit, a competent person is sworn for the oc- 
 casion, as special Interpreter ; and he may also examine into 
 the correctness of a translation, if necessary. A foreigner, 
 ignorant of the English language, who is a party to a suit, will 
 do well to bring a friend with him, competent to perform the 
 necessary interpretation. In such cases, the special interpreter 
 must take his oath, that he will perform the interpretation 
 faithfully. The oath thus taken may be recorded in the Case 
 Book by the Commissioner. 
 
9. Translators.} The Translators are engaged in translat- 
 ing documents and processes relating to the cases. 
 
 Where their duties are united to that of Interpreters, they 
 perform themi in the manner already described in speaking of 
 Inteipreters. 
 
 The appointment and remuneration of Translators have been 
 specially provided for by Ordinance No. 6 of 1853. 
 
 Interpreters and Translators of the Supreme Court, Trans- 
 lators of District Courts, and sworn Government Translators, 
 are honorarily deemed to be Translators to the Courts of Re- 
 quests. 
 
 Any other person must have received a certificate from a 
 Commissioner of a Court of Requests, of competency to fulfil 
 the duties of a Translator, and must, before he can act in any 
 particular Court of Requests, file a copy of the certificate, duly 
 attested by the Commissioner who granted the original. Such 
 Translator must also take an oath, that he will fulfil the duties 
 of his office faithfully ; and that oath must be recorded by the 
 Commissioner. 
 
 But it must be kept in mind, that no Interpreter, Translator, 
 or other officer in the pay of Government, is entitled to demand 
 or receive any fee whatsoever for making any translation of any 
 writing or document, to be used in any Court of Requests. 
 
 No translation of any writing or document, tendered in evi- 
 dence in any Court of Requests, will be permitted to be read 
 as a translation of such writing or document, unless it is signed 
 by an Interpreter of the Supreme Court, a Government sworn 
 Translator, or a sworn Translator of any District Court or Court 
 of Requests. 
 
 This rule was intended to apply to translations from the 
 Singhalese or Tamul languages ; and a great practical difficulty 
 will arise, if it be applied to translations from other languages. 
 For instance, a case arose in my own practice, where I was 
 obliged to file a translation of a writing in the French language. 
 There was no Interpreter of the Supreme Court, Government 
 sworn Translator, or sworn Translator of any District Court or 
 Court of Requests, as far as I knew, who possessed the neces- 
 sary knowledge of the French tongue, to sign the translation, 
 as required by the strict interpretation of the Rules. 
 
 To prevent delay, I obtained a translation, which being copied 
 
32 
 
 upon the necessary "stamp," was put in, without the signature 
 of the translator, or any other attestation of the correctness of 
 the translation. The Commissioner, fortunately, was able to 
 form an opinion on the matter, and he admitted the translation 
 as correct. All further difficulty would have been prevented 
 in this case, as the matter stated in the writing was admitted 
 by the defendant. 
 
 In cases, however, where such writing or document in a 
 foreign tongue forms an important and necessary part of the 
 evidence, the person who presents himself to be sworn as the 
 interpreter, may also take his oath as translator, if the Court 
 is satisfied with his competency, and will certify him as a com- 
 petent translator in the proceedings. Such sworn translator 
 may then sign the translation put in, correcting it if necessary ; 
 or he may make a fresh translation for the use of the Court. 
 
 It must be inferred, that the part of the Ordinance which 
 regulates the admissibility of translations, did not intentionally 
 omit to admit the legality of a translation made by a Translator 
 of the Supreme Court ; as such an officer is, by the next clause 
 cff the general Rules, (included in the Ordinance), deemed to 
 be a Translator of any Court of Requests. Practically, also, 
 the omission does not affect the present Translators of the Su- 
 preme Court, who are Translators and Interpreters jointly. — 
 Ceylon Almanac, 1856, p. 71. 
 
 The question of the remuneration of Translators, for trans- 
 lations to be used in Courts of Requests, will be the subject of 
 remark in its proper place in the plan of this book, and may be 
 here omitted. 
 
 10. Process Servers.l As already observed, the Rules and 
 Orders speak of the Officer of the Court, duly appointed for 
 the service of the process thereof; but all processes are gene- 
 rally directed to the Fiscal of the District. As also observed, 
 the Court of Requests at Kandy has an officer, called the Head 
 Process Server. This, to all appearance, is an exception to the 
 general rule. 
 
 A fit person may be appointed to execute and return a Pro- 
 cess directed to him, when the Fiscal is related to the party 
 against whom the process is issued, or for any other just cause. 
 This has been noticed, when treating of the privileges of Com- 
 
33 
 
 To avoid similar repetition, the duties of a Process Server 
 will not be here noticed, as they will be ftdly and more conve- 
 niently noted in that part of the work which will treat of the 
 Processes themselves. 
 
 [I must beg the indulgence of the reader for introducing 
 the following corrections and additions in this place. The pages 
 containing an account of the territorial jurisdiction of the 
 Courts of Requests, had already gone through the Press, when 
 I received from Mr. D. de Saram the information, he, as the 
 Commissioner of Gampola, was so fitted to give, respecting the 
 Courts of Gampola, Pusselawa, and Navellapittiya. 
 
 The Pusselawa Court was opened on the 1st November, 1856, 
 and it was established for the convenience of the Planting com- 
 munity. The Court is held once a fortnight, on Saturdays. 
 
 The Navellapittiya Court was established on the 1st of Ja- 
 nuary, 1853. This Court was originally held on every Friday ; 
 but the establishment of the Pusselawa Court led to a change 
 of the day. It is now held on Tuesdays. 
 
 Should the business accumulate beyond measure, the Pusse- 
 lawa Court is held on Fridays and Saturdays. But the Navella- 
 pittiya Court is always held on Tuesdays. 
 
 I take the opportunity of also adding a notice of an English 
 writ, which is used, to send back a case removed from an infe- 
 rior Court. 
 
 Besides the writ called procedendo ad judicium, described in 
 p. 6, the writ called a procedewrfo should be mentioned in con- 
 nection with the 13th section of the chapter on Jurisdiction. 
 The writ procedendo is used to remit to an inferior Court, a 
 cause which was removed thence ; if the removal be obtained on 
 insufficient grounds, or there be some default in the proceedings. 
 —Lush. Prac, p. 760.] 
 
S4 
 
 CHAPTER III. 
 
 OF THE PABTIES TO A SUIT AND THEIE EEPUESENTATITES. 
 
 CONTENTS. 
 
 7. Of the right of a mfe under 
 
 coverture to sm third par- 
 ties. 
 
 8. Of a wife to sue her husband. 
 
 9, — W'hat persons can be sued. 
 10. — Of Advocates and Proctors. 
 11. — Of Substitutes. 
 12. — Who may represent theCrown. 
 
 1. — Of the principal and accessory 
 
 parties in a suit. 
 %— Of the Plaintiff. 
 3.— Of the Defendant. 
 4. — Of Interven'ienfs. 
 5. — What persons cannot sue. 
 6. — In what actions persons not of 
 
 fill age may sue. 
 
 1. Of the principal and accessory persons in a satf.] The 
 preceding chapter treated of the Judge and Ministerial Officers 
 of a Court. They form a part of the Judicium of the Roman 
 Dutch law. It is defined by Vanderlinden, as " a legal act of the 
 parties discussing a matter before a Judge, and of the Judge 
 himself, who inquires into the matter and decides upon it."^ 
 Practice of the Courts of Holland, Bk. I., ch. i., § !!• 
 
 In order to constitute a Judicium, three persons at least are 
 necessary,— a Plaintiff, a Defendant, and the Judge.^/i.rf. 
 These are, accordingly, stated to be the principal persons, while 
 the Officers of Court and Legal Practitioners are classed as 
 aecessories.-iiirf, I., ch. ii., § 1. Witnesses are also considered 
 as accessories, inasmuch as it often happens that j udicial proceed- 
 ings are had without Witnesses.— ZSirf, Bk. I., ch. i., note to § 11. 
 
 As we have alreadytreatedof the Commissioners or Judged, 
 and of the Clerks, Interpreters, Translators, and Process Offi- 
 cers of Courts of Requests, this chapter will be devoted to a 
 consideration of the parties to a suit and of their representatives 
 
 in Court. 
 
 2. Of the Plaintif.'] The Plaintifi" is he who first summons 
 another in a law suit. — Ibid, Bk. I., ch. ii., § 2. 
 
 3. Of the Defendant.'} The Defendant is he who is assailed 
 and summoned before a Comt.— Ibid, Bk. I,, ch. ii., § 7. 
 
4. Oflntenenients.] When aPlaintiff summons a Defend- 
 ant to an action, it often happens, that a third party intervenes 
 in protection of his own rights. Such intervenient is often 
 summoned to intervene, and to warrant and defend the title 
 given to either of the parties. Thus, in a land case, where 
 the Defendant opposes the Plaintiff, setting up a right, of the 
 merits of which the latter is ignorant, but which appears to 
 concern the rights of the Vendor under whom he holds his 
 title, — it is his interest to summon his Vendor to intervene and 
 to establish his claim against the Defendant; by which also he 
 possesses himself of good grounds of action against his Interve- 
 nient in case he fails against the Defendant. 
 
 A person may intervene at any time, even after execution, 
 provided the proceeds have not been paid over to the plaintiff. 
 — Marshall, p. 240. 
 
 No form has been promulgated by the Supreme Court for 
 a summons to intervene in the Court of Requests ; though the 
 Stamp Ordinance has made provision for the duty chargeable. 
 —Ord. 19 of 1852. 
 
 5. What persons cannot «Me.] By the Dutch law, all persons 
 may sue, who are legally capable of consenting or contracting; 
 and therefore, those only are prevented from suing, who cannot 
 manage their own affairs ; such as madmen, idiots, wards, and 
 minors, whose judgment is not yet mature, and who ought 
 therefore to sue by their guardians or curators ; as also prodi- 
 gals, who have been deprived, by a competent Court, of the 
 management of their own property. — Practice of the Courts of 
 Holland, Bk. I., ch. ii., § 3. 
 
 6. In what actions persons not of fvR age may srte.'\ A per- 
 son not of full age may prosecute a suit in the Court of Ke- 
 quests for any sum of money not exceeding Ten Founds, which 
 may be due to him as wages,. or for piecework, or for work as 
 a servant or labourer, in the same manner as if he were of full 
 age.— Ord. 22 of 1852, § 5. 
 
 7. Of the right of a wife under coverture to sue thirdpartiesJ] 
 " The necessity of joining a husband in an action by his wife, 
 must depend, to a certain degree, on the situation of the 
 parties, and on the source from which the right of action is 
 alleged to be derived ; — that if, for example, a husband, were 
 out of the country, or had abandoned his wife, or were legally 
 
36 
 
 separated from her, or had refused without any just ground 
 to join in the action, the wife ought not to be debarred froin 
 suing as a single woman, more especially, if the property 
 sought to be recovered by her, * * * were claimed in her own 
 right, and not in that of her husband ; — that the better course, 
 therefore, would be, to call upon the plaintiff' to state the 
 circumstances under which she was living with reference to 
 her husband, and the reason why he had not joined in the 
 action, and then to call upon the husband either to become a 
 party or to assign his reasons for refusing." — Letter Book of 
 the Supreme Court, 11, 2Zd June, 1834. Marshall, p. 219. 
 
 8. Of the right of a wife to sue her husband.^ It would 
 appear, that a wife may sue her husband, to recover arrears 
 due on a bond for maintenance, entered into by the husband 
 on their separation. — Galle, District Court, 839. Wth Sept., 
 1835. Marshall, p. 2n. 
 
 9. What persons can be sued.'} All persons can be sued, 
 who can themselves sue others. — Urot. Prac, II. cli. ii., J 8. 
 
 10. Of Advocates and Proctors.} A party to an action in 
 a Court of Reque^its is entitled to appear by his Proctor or 
 Advocate ; but the expense of employing such legal assistants 
 will not be allowed in taxation of costs, if such party be en- 
 titled to costs. But the Advocate or Proctor is entitled to 
 have or recover his fee from his own client. — Ord. 22 o/'1852, J 6. 
 
 Advocates and Proctors of the Supreme Court, entitled to 
 practise in the Supreme Court, are allowed to practise in any 
 Court of Requests. Proctors entitled to practise in any parti- 
 cular District Court, are allowed to practise in any Court of 
 Requests within 50 miles of that District Court. — Ibid, § 7. 
 
 An Advocate is not competent to act as such, before he 
 obtains his certificate of admission under the hand of the Re- 
 gistrar of the Supreme Court. A Proctor of the Supi-eme 
 Court, in the same manner, must have obtained his certificate 
 of admission from the Registrar. A Proctor is obliged to 
 renew his certificate on the 25th of 'March in every year. A 
 Proctor of a District Court obtains his annual certificate from 
 the Judge of the Court in which he practises, and not from the 
 Registrar of the Supreme Court. — Ord. 12 of 1848, §§ 1 and 2. 
 
 A Proctor, though incompetent to act as such, under $ 5 of 
 the Ordinance No. 12 of 1848, may, of course, appear for a 
 
party m a Court of Requests as a substitute, if the Commis- 
 sioner allow it ; but will not be entitled to recover, by action, 
 any fees for his services. 
 
 Notwithstanding the privilege of appearing by an Advocate 
 or Proctor, a party to a suit may be required to attend person- 
 ally, if the Commissioner thinks it necessary for the ends of 
 JTistice ; and he may postpone the hearing of the cause to secure 
 personal attendance. — Otd. 22 of 1852, § 8. 
 
 11. Substitutes.'] A party to an action, if the Commissioner 
 allow it, may appear by any other person than an Advocate or 
 a Proctor. — Ord. 22 of 1852, ^S 6. Such unprofessional agents 
 are called Substitutes. 
 
 No person, not being a Proctor or Advocate, is entitled to 
 recover any sum of money for appearing or acting on behalf of 
 any other person in the said Court. — Ord. 22 of 1852, § 6. 
 
 12. Who may represent the Crown.] In causes in which 
 the Government is interested, the Crown may be represented 
 by the following public officers, or by persons duly authorized 
 in writing by them, viz. — the Queen's Advocate, any Deputy 
 Queen's Advocate empowered to act within the District, the 
 Government Agent or Assistant Government Agent, and the 
 Collector of Customs Of the District. — Ord. 22 o/1852, § 9. 
 
 [The authorities from W. Grotius' Introduction to the Prac- 
 tice of the Courts of Holland, I have quoted from a part 
 translation of the first two chapters, which appeared in the 
 concluding numbers of the late " Young Ceylon " Magazine, 
 to which the translator and the present writer were contri- 
 butors in their juvenile days.] 
 
CHAPTEK IV. 
 
 OF WITIJESSES AKD THEIR EXAMINATION. 
 CONTENTS. 
 
 1 . — Competency of Witnesses. 
 
 2. — On the obligation of a Witness 
 
 to give evidence. 
 3. — Absence of a material Witness. 
 4. — Witnesses who have not been 
 
 subptenaed, 
 5. — Examination in chief. 
 6. — Leading Questions. 
 
 7 . — Cross-Examination. 
 
 8. — Me-JExamination. 
 
 9. — Evidence to disprooe defence. 
 10. — Hecalling Witnesses. 
 11. — Evidence of Parties to suit. 
 12. — Witnesses guilty of Contempt, 
 13. — Expenses of Witnesses. 
 14. — Of Interrogatories. 
 
 1. Competency of Witnesses.^ It was a principle enunciated 
 by Bentham, " that in the character of objections to compe- 
 tency, no objections ought to be allowed," and the saying is 
 quoted by Taylor in terms of gratification. He records, in his 
 admirable work on Evidence, the gradual progress of reform in 
 this branch of the law. The enlightened views which directed 
 the labours of Mr. Taylor, would thus seem to have been in- 
 spired by the long neglected genius of the great Englishman, 
 who, for holding the views now practised in every British 
 Court of Justice, was treated as a madman and a visionary. 
 It will place the late changes in the law of Evidence in a most 
 lucid light, to recite the struggles Qf Law Reformers in this 
 direction, and the gradual repeal of the old rules of Exclusion. 
 
 The first blow aimed at the old law of incompetency was 
 dealt in the year 1833, by the Act 3 & 4 Will. IV., c. 42 ; the 
 object of which was, to make the rejection of witnesses on the 
 ground of incompetency less frequent. By the previous Law 
 in this respect, witnesses were incompetent, for or against whom 
 the verdict would be admissible in a future suit. The difficulty 
 was got over by a simple remedy. The Act in question provid- 
 ed, that where objection was taken to a witness on the ground 
 that he was so far interested in the event of the suit, the name 
 of the witness objected to, should be endorsed on the record or 
 
document on which the trial should be had, together with the 
 name of the party in whose behalf he shall have been examined. 
 
 Such endorsement was to be at the request of either party ; 
 and afterwards to be entered on the record of the judgment. 
 
 The second step in this important reform was taken in 6 & 7 
 Vic, c. 85, or Lord Denman's Act, which enacted, that no person 
 offered as a witness, should thereafter be excluded by reason 
 of incapacity, from crime or interest. The preamble of this 
 Act confessed, that the inquiry after truth was often obstructed 
 in Courts of Justice by the existing incapacities ; and asserted, 
 that full information as to the facts at issue was necessary, 
 both in civil and criminal causes, and should be laid before the 
 persons appointed to decide upon them, who should exercise 
 their judgment on the credit due to the statements of the 
 witnesses. — Taylor, § 1215. 
 
 There remained, however, many exceptions which need not 
 be enumerated in this place ; and the principle laid down by 
 Bentham, was far from having been completely carried out. 
 
 The County Court's Act, however, nextly, enacted, that on 
 the hearing or trial of any action, or on any other proceeding 
 under that Act, the parties to the action, their ■rfives, and all 
 other persons may be examined, either on behalf of the Plaintiff 
 or Defendant, upon oath or solemn affirmation. — 9^10 Vic, c. 95. 
 
 "After the wisdom of this great alteration in the Law," says 
 Taylor, " had been tested and thoroughly proved by the expe- 
 rience of six years, a final effort was made by Lord Brougham 
 to induce Parliament to carry out the principle to its legiti- 
 mate extent. This effort was crowned with almost entire suc- 
 cess, and the statute 14 & 15 Vic, c. 99, having received the 
 Koyal assent in August, 1 85 1 , came into operation in the follow - 
 ing September." — Taylor, § 1216. 
 
 "And it is now further enacted, by 14 and 15 Vic, c. 99, 
 (as amended by 16 and 17 Vic, c 83), that even the parties to 
 a cause (and the husbands and wives of the parties thereto) 
 shall be both competent and compellable to give evidence on 
 behalf of either or any of the parties ; subject only to exception 
 where the question tends to criminate the person examined, or 
 where it tends to make a husband give evidence for or against 
 his wife, or a wife for or against her husband, in any criminal 
 proceeding, or in any proceeding instituted in consequence of 
 
40 
 
 adultery ; or to oblige a husband to disclose any communication 
 made to him by his wife during the marriage, or a wife to dis- 
 close any communication made to her by her husband during 
 themarriage." — Lush. Common Law Practice. By S(ephen,(185G) 
 p. 399. 
 
 2. On the obligation of a Witness to give evidence.'] The 
 principle should be well kept in mind, that " there is no com- 
 mon law obligation on any person to give evidence on behalf of 
 another. The duty is created by the service of a writ of sub- 
 poena, and by that means only ; so that' even if he whose evidence 
 is required be found in Court, he may refuse to be sworn, un- 
 less he has been subpcenaed." — Lush. Common Law Practice, 
 Bh. I., c. 5, ed. of 1856, p. 371. 
 
 By the 23d cl. of Ord. 10 of 1843, it is lawful for the Judges 
 of the Supreme Court collectively, to make Kules and Orders 
 for the Courts of Requests. By the 10th and 11th clauses of 
 the Eules and Orders, promulgated on the 21st of October, 1843, 
 the Clerk of the Court is given authority to issue the subpoenas 
 to compel the attendance of witnesses— fl. §- 0. §§ 10 ^ 11. But 
 the Clerk signs such subposnas " By order of the Court." See 
 forms of Subpoenas. Witnesses not obeying summons, become 
 liable to a penalty. — Ord. 10 q/'1843, § 15. In England, a Judge 
 at nisiprius has no authority to issue such a writ. — Lush, vl 
 supra. 
 
 3. Absence of a material Witness.} According to the Rules 
 of the 21st October, 1844, the Commissioner may, at his discre- 
 tion, partly hear the case, or postpone it for a future hearing, 
 on the absence of a material witness ; but it must appear to the 
 Commissioner upon oath, that it is a material and necessary 
 witness.— jR. ^ 0.§ 13. 
 
 4. Witnesses who have not been subpoenaed.l More than one 
 appeal, I believe, has been taken on this subject. The Supreme 
 Court held, so early as the 24th February, 1846, that a witness 
 should not be rejected because he does not appear under pro- 
 per subpoena from the Court ; and that the object of a subpoena 
 was merely to ensure the attendance of the witness. — OaUe, 643. 
 
 5. Examination in Chief] After a witness has been sworn 
 or affirmed, he is examined by the party for whom he has been 
 called. This is called the Examination in Chief. 
 
 6. Leading Questions.] A witness cannot be asked leading 
 
41 
 
 questions in the Examination in Chief. If, however, he appears 
 hostile to the party calling him, he may, with the Commissioner's 
 permission, be put leading questions the same as in the cross- 
 examination. — Arch. Q. B. Practice, ch. xiv.,pp. 358,359. (^Ed. 
 0/1855.) 
 
 7. Cross- Examination.] When the examination in chief is 
 closed, the witness is liable to be cross-examined by the oppo- 
 site party. After a witness is called and sworn, he is liable to 
 be cross-examined, though the party calling the witness did 
 not think proper to examine him when called and sworn. The 
 exceptions are, when a.witness is called to produce a document, 
 or by mistake of counsel, and no question was put to him. — 
 Arch. Prac. Q. B., ch. xiv., {Ed. of 1855, p. 362.) 
 
 8. Re-Examination.'] When a new fact arises from the cross- 
 examination, the party in whose behalf the witness was examined 
 may re-examine as to the new fact. The witness may also be 
 examined in order to explain any part of his cross-examination. 
 —Arch. Prac, ch. xiv. {Ed. of 1 855, p. 364. J 
 
 9. Calling witnesses to disprove defence.] " It is in the dis- 
 cretion of the Judge, whether he will allow the plaintiff to give 
 evidence in reply. Such discretion, it seems, may be reviewed 
 by the Court. The plaintiff cannot call evidence in reply for 
 the mere purpose of confirming the primS, facie case made out 
 by him in the first instance. A witness may be called in reply 
 to contradict a statement alleged by the defendant's witnesses to 
 have been made in his presence." — Arch. Prac. Q. B., ch. xiv. 
 (Ed. of 1855, pp. 367, 368.) 
 
 To explain what is meant by making out a, prima facie case, 
 it must be noted, that the plaintiff " is at liberty, whether the 
 defence be known or not, either at once to enter into the whole 
 of his case, or to make out a primS facie case only, and to reserve 
 his answer to the defendant's case only; but, as a general rule, 
 he cannot answer part of the defendant's case in his opening, 
 and then afterwards call evidence in reply to the defendant's 
 case. But the Judge, in his discretion, may allow this to be 
 done."— ^rcA. Prac. Q. B., ch. xiv. {Ed. of 1855, p. 357.) 
 
 In the discretion thus allowed by the law to the Commissioner, 
 as the judge, it will at once be seen, that there is offered an 
 easy solution of any difficulties which may arise, in carrying out 
 the rules above stated, in our Courts of Requests. It is pre- 
 
 a 
 
42 
 
 Sumed, that when parties have not the benefit of counsel, this 
 privilege of the Commissioner will be freely exercised. 
 
 10. Recalling a Witness.'] It is in the discretion of a Com- 
 missioner to reeail a witness. The consent of the opposite party 
 is not necessary to this. — Arch. Prac, Q. B., ch. xiv. {Ed. of 
 U55,p.365.) 
 
 11. Evidence of Parties to Smt.] Parties to the suit are 
 competent as witnesses, except in certain cases. — 14 8f 15 Vic. 
 ch. 99. The exceptions have been already given under the head 
 of Competency of Witnesses. See^. 38. 
 
 "A party to a suit may be put into the box by his opponent 
 and sworn, although the counsel for such party objects, that the 
 questions intended to be put to him will criminate him, and 
 that he will object to answer them : it is for the party himself 
 to make such objection." — Arch. Prac. Q. B., ch. xiv. {Ed. of 
 1855,;?. 364.) 
 
 A plaintiff declining to examine a defendant, could claim no 
 exemption from being examined himself. In a case which had 
 come in from an outstation, and was decided in appeal on the 
 22nd January, 1857, it was found that such a claim to exemp- 
 tion was upheld below, as a rule of evidence. 
 
 12. Witnessesguilty of Contempt, Sfcl Any person summon- 
 ed to attend as witness, and not attending in pursuance of such 
 summons, is liable to be fined or imprisoned. The limits of 
 such fine or imprisonment have been already mentioned under 
 the head oi Jurisdiction. — Seep. 10. 
 
 Witnesses charged with contempt or prevarication, are liable 
 to similar punishment. They must be committed till the 
 following day, or give security, either on their own or other 
 recognizance, as the Commissioner shall consider necessary, for 
 their appearance on the next day. If they fail on that day to 
 satisfy the Commissioner that no contempt was intended, it is 
 lawful for the Commissioner to pass sentence. — Ord. 10 of 
 1843, § 15. 
 
 Under the head ot Jurisdiction, in treating of the amount of 
 penalty in the power of the Commissioner to adjudge, I have 
 already treated of Contempt, Prevarication, Perjury, and the 
 evidence necessary to establish the same. — See pp. 10, 11, 12. 
 
 13. Expenses of Witnesses.] There is no fixed rate for the 
 payment of the expenses of witnesses, excepting what obtains 
 
in each Court, as the settled practice of some length of time. 
 Thus, in the Colombo Court of Requests, each native Notary is 
 allowed a rupee a day as batta. The usual class of native wit- 
 nesses are allowed two annas (or three pence) per day. The 
 Clerk of the Court taxes these expenses. 
 
 The latest decision on this subject was delivered on the 17th 
 of December, 1856; when it was held, that in the Courts of 
 Requests, the expenses of witnesses need not be deposited in 
 Court before the issuing of the subpcenas (or summons) to wit- 
 nesses. — Negwmho, 9398. 
 
 14. Of Interrogatories!] The method of examining wit- 
 nesses by means of interrogatories is as follows. The party 
 desiring to have interrogatories issued, applies to the Commis- 
 sioner for the same. Being allowed to issue interrogatories, 
 notice of the same must be issued to the opposite party. If the 
 parties appear by counsel, the counsel of the opposing party 
 must be allowed the opportunity of adding cross -interrogatories. 
 The Court may, of course, also add its own interrogatories, if 
 necessary. The interrogatories are copied out on a stamp of 
 the same value as the stamped summons of the case ; and, to- 
 gether with the interrogatories, an unfilled subpoena in the 
 class of the case must be supplied. The Clerk marks in the 
 margin, whether these stamps were supplied by the Plaintiff or 
 by the Defendant, together with the date of their delivery to 
 him, and certifies the same by his signature. The subposna is 
 filled up by the Clerk of the Court, in the District of which the 
 witness to be examined resides, and is issued by that Court. 
 The subpoena and interrogatories are forwarded under cover, 
 with a letter from the Commissioner of the Court in which the 
 cause is going on. When the subpsna is returned by the Fis- 
 cal of the other District, and the answers to the interrogatories 
 are obtained by the Commissioner of the other Court, both 
 the original subpoena and the interrogatories thus issued are 
 returned with an official letter from the Commissioner of the 
 foreign District to the Commissioner of the original District, 
 and are filed in the Case Book of the cause in which the inter- 
 rogatories were obtained. 
 
44 
 
 CHAPTEK V. 
 
 PEOCEEDINGS BEFORE TRIAL. 
 
 CONTKNTS. 
 
 1. — Preliminary Considerations. 
 
 2. — Stating the Case to the Clerk. 
 
 3. — Names and Description of the 
 Parties. 
 
 A. — Plaintiff siting in a Represen- 
 tative capacity. 
 
 5. — Bill of Particulars. 
 
 6. — Entry of the Plaint. 
 
 7. — Fixingihe Day of Appearance. 
 
 8, — Issuing the Summons,Sfc. 
 
 9. — Copies for service. 
 10, — Pointing out Defendant or 
 
 Witness. 
 11. — Supcenas to Witnesses. 
 12. — Copy Subpoenas. 
 13. — Postponement or Suspension. 
 14. — The Day of Appearance. 
 15. — Proxy to a Proctor. 
 
 1. Preliminary Considerations.'] The plaintiff should firstof 
 all consider, whether his action is such as could be brought in 
 a Court of Requests ; secondly, he should ascertain the parti- 
 cular Court of Requests in which he should bring that action. — 
 pp. 1 and 2. 
 
 2. Stating the case to the Clerk.'] The plaintiff should then, 
 either himself or by his Proctor, or by some person who has ob- 
 tained the consent of the Commissioner so to do, furnish the 
 Clerk'with the particulars of his demand, stating the facts of 
 his case.— fl. §• O., § 2. 
 
 3. Names and Description of the Parties.] It is business-like 
 and certain, to furnish the Clerk with the full names of the plain- 
 tiff and defendant. 
 
 In the English County Courts, " if the Plaintiff is unacquainted 
 with the Defendant's Christian name, the Defendant may be 
 described by his surname, or by his surname and the initial of 
 his Christian name, or by such name as he is generally known 
 hy." — Rule 25. See Archbold's new Rules and Forms of County 
 Courts, 1851,;). 8. 
 
 It is evidently the interest of the Plaintiff, to secure in every 
 possible way the service of his summons ; he should therefore 
 
give a description of the profession,, trade, or business of the 
 Defendant to the Clerk of the Court, together with a description 
 of the residence of the Defendant. 
 
 By the English Act for the recovery of Small Debts, " no mis- 
 nomer or inaccurate description of any person or place in any 
 such plaint or summons shall vitiate the same, so that the per- 
 son or plaint be therein described so as to be commonly known." 
 —9 Sr 10, Vic. c. 95, § 59. 
 
 4. Plaintiff suing in a Representative capacit;/.} If the true 
 person be served as defendant, it is evident that if he knows 
 any thing of the matter regarding which he has been summoned, 
 he will also know sufficiently what party is the Plaintiff, even 
 though the latter be not sufficiently described, as he ought to 
 be. But where a Plaintiff sues in a representative capacity, such 
 as that of an executor or administrator, he should be described 
 as suing in that capacity. The necessity for such a rule is 
 obvious, on consideration of cases like the following : — Where 
 a Plaintiff having an action as administrator, for money lent to 
 the Defendant by a deceased creditor, brings that action in his 
 own name, without stating his representative capacity, the De- 
 fendant may plead, that, owing to certain misleading circum- 
 stances, he had mistaken the Plaintiff's demand. It is possible 
 that, under certain circumstances, the Defendant may actually 
 be led into error, and cause delay and expense by contesting 
 the case, or injustice to himself, by admitting a claim not due. 
 And even if a previous demand has warned the Defendant, of 
 the capacity in which the Plaintiff sues, it is evident that the 
 Records should correctly state that capacity, for they may be 
 made use of as evidence on a future occasion. These are com- 
 mon sense considerations, independent of the requirements of 
 the law, and suggest the necessity of the Plaintiff describing 
 himself properly, in his representative capacity. 
 
 5. Bill of Particulars.^ The object of giving in particulars, 
 is to inform the Defendant of the nature of the demand, as he 
 should be furnished with details, so that he may decide on the 
 nature of his defence, if he has any to make. 
 
 In the case of shop-debts, the particulars should give each 
 item of the account. It is the practice to serve the Defendant 
 with a bill of particulars in which the items of all the monthly 
 bills are collectedt 
 
46 
 
 In actions for damages, the nature of the grievance or injury 
 should be stated, and the amount of damage alleged to have 
 been sustained. 
 
 The manner of preparing a bill of particulars is to head it 
 ■with the title of the Court, as, " The Court of Requests of 
 Colombo," or, " The Court of Requests of Galle," &c., as the 
 case may be. The number of the Court is placed under the 
 heading, as soon as the number is fixed, and underneath it, the 
 names of the parties to the suit may be entered. 
 
 6. Entry of the Plaint.^ The Clerk will then enter the 
 plaint in the Record Book, " setting forth shortly and distinctly 
 the names and places of the parties ; the nature and grounds of 
 the complaint or demand, and the relief prayed ; and the plaint 
 will stand for, and be taken as in the place of a declaration of 
 the cause of action between the parties." — R. ^ O., § 2. 
 
 7. Fixing the Day of Appearance.'} The Clerk will fix a 
 day for the appearance of the parties with their witnesses, and 
 inform the Plaintiff thereof. — iJ. §-0., §3. This is done when 
 the Plaintiff attends to enter the plaint. The Defendant, of 
 course, is informed by the summons. 
 
 8. Issuing the Summons, ^c] The summons is filled up on a 
 printed form bearing the necessary stamp. The Plaintiff, there- 
 fore, when the Clerk has fixed a day for the appearance of the 
 parties, and it is necessary to issue the Summons for that day, 
 should furnish a stamped summons according to the class of 
 the case. The Clerk, on receiving such a Summons from the 
 party or any one on his behalf, will fill it up and deliver it to the 
 Process Officer of the Court, or forward it to the Fiscal of the 
 District. The. Summons cites the Defendant to appear on the 
 day fixed, with his witnesses, if he have any. — R. ^ O., § 3. 
 
 9. Copies for Service.'] A copy of the Summons must be 
 dejivered to the Process Oflicer with the original ; also, copies 
 of any documents, account, or bill, upon which the complaint 
 or demand is founded. These are for service, for the informa- 
 tion of the Defendant. — R. Sf O., § 4. 
 
 10. Pointing out Defendant or JVitness.'] In cases where the 
 Process Server fails to ascertain, who is the person intended to 
 be served, it becomes necessary for the Plaintiff to get hun point- 
 ed out ; so also, where the Plaintiff is inclined to believe, that 
 there will be any difficulty in this respect, li* will facilitate his 
 
47 
 
 proceedings, if he makes the necessary inquiries at the Fiscal's 
 Office, and either gives the necessary information, or attends 
 the Process Officer, or deputes another to attend him, in order 
 to point out the person intended to be served. 
 
 11. Subpcenas to Witnesses.'} The process of the Courts of 
 Requests for compelling the attendance of any person to give 
 evidence, is issued like a summons by the Clerk of the Court, 
 when furnished vrith the necessary stamp by either party. 
 The subpoenas are stamped according to the class of the case. 
 There are two forms provided by the Rules and Orders; one 
 summoning the witness to give evidence in the case, and the 
 other where the witness has in his possession or controul any 
 deed, instrument, or writing, which the party requiring the 
 attendance of the witness is desirous of producing. The Rules 
 and Orders seem to have contemplated one general summons to 
 all the witnesses, with so many copies thereof as there are wit- 
 nesses to be summoned. — R. Sf O., §§ 10, 11, 12. 
 
 12. Copy Subpcenas.'] This is not, however, the practice. 
 The Clerk is furnished with one stamped Subpoena for the 
 summoning of each witness, and an unstamped copy of each to 
 be actually served ; the return being affixed to the former. 
 
 I find that this is rendered necessary by the Stamp Ordinance, 
 No. 19 of 1852, in that part of the Schedule which contains the. 
 duties in law proceedings. 
 
 13. Postponement or Suspension.] If it appear to the Court 
 (upon oath according to the Rules) that any person is a material 
 and necessary witness for either party to any cause, and that 
 he has been duly served, but has failed to attend in obedience 
 to the summons of the Court, the Commissioner, at his discre- 
 tion, may either postpone the case to another day to be there 
 and then fixed, or else, the Commissioner may take the exami- 
 nation of such witnesses as have made their appearance, and 
 suspend the case for further hearing on a certain day, to be then 
 and there fixed by the Commissioner. — R. ^ O., § 13. 
 
 14. The Day of Appearance.] The day of appearance is 
 not necessarily the day of trial. On the day appointed for the 
 appearance of the parties, if the summons be not withdrawn, the 
 Commissioner causes the Plaintiff and Defendant to be called, 
 and if they, or their Proctors, or substitutes, where substitutes 
 are allowed, appear, then the Clerk records the appearance. 
 
48 
 
 and the case proceeds to trial. — R. §• O., § 7. But op such day, 
 as we have already seen, the case may be postponed or sus- 
 pended. — p. 47. Interlocutory Judgment may also be delivered 
 under circumstances which will be described when we come 
 to treat of the judgment of the Court. — R. Sf 0., § 17. If the 
 Defendant appear and the Plaintiff make default, the former 
 may be absolved in the instance, with costs, without any form of 
 trial or evidence produced. — R. Sf 0., § 20. Trials are also fre- 
 quently postponed after the appearance of both parties, and the 
 recording of the Defendant's answer, when the latter satisfies 
 the Court that ho had not sufficient time to subpoena witnesses. 
 15. Proxy to a Proctor.'] A party desirous of engaging the 
 services of a Proctor should give him a proxy, to enable him to 
 take all necessary steps during the absence of his client. Printed 
 forms of proxies are furnished by the Proctor engaged. 
 
 Usual form of Proxy to a Proctor of a District Court, 
 No. 
 
 do hereby authorize Proctor of the District Court of Colombo to 
 
 appear for before the Court of Requests of Colombo and therein to 
 
 And promise to ratify all that shall be legally done by said Proctor 
 or his substitute by virtue hereof. 
 
 Dated this day of 185 
 
 WitTiesses. 
 
 A fuller form for a Proxy to a Proctor of the Supreme Court. 
 
 In the Court of Requests of 
 No. 
 Know all men by these presents that 
 do hereby authorize Gentleman; Proctor of the Hon'ble the 
 
 Supreme Court of the Island of Ceylon, 
 
 to be Proctor, and for and in name and behalf before the Court 
 of Requests of to appear and therein 
 
 and if need be from any Judgment, decision, sentence or order, of the said 
 Court to appeal, and tliereaiier prosecute the said appeal in the Supreme 
 Court; and to take and use all lawful ways and means necessary m the 
 premises which being personally present might or could lawfully do; 
 
 and if necessary another proctor to appoint, or such appointment, to revoke; 
 and do further promise and agree to confirm and ratify all that shall be 
 done by said Proctor or his Substitute by virtue hereof 
 
 Given under hand at Colombo, this day of 
 
 in the Year of our Lord 185 
 Witnesses. 
 
49 
 
 CHAPTER VI. 
 
 OF THE DAY OF TRIAL. 
 
 CONTENTS. 
 
 1. — The case i& called. 
 
 2. — Joining Issue. 
 
 3. — Production of Evidence. 
 
 4. — Putting in records in evidence. 
 
 5. — Defendant appearing^ Plaintiff 
 
 in default. 
 6. — Plaintiff appearing, Defendant 
 
 in default. 
 
 7. — Both Parties appearing. 
 8, — When Plaintiff is to begin. 
 9. — When Defendant is to begin. 
 10. — Recording the. Evidence. 
 W. — Ordering Witnesses out of 
 
 Court. 
 12. — General course of Proceed- 
 ings. 
 
 1. The case is called.'] Each case is called on in its turn on 
 the day appointed for the appearance of the parties, and unleiss 
 the summons shall have been withdrawn, the Commissioner 
 causes the parties, Plaintiff and Defendant, to be called, and if 
 they or their substitutes, where such are allowed, or their Proc- 
 tors, shall appear, the Clerk records such appearance, and the 
 Court proceeds to enquire of and determine the complaint or 
 demand.— iJ. ^ 0., § 7. 
 
 2. Joining issue.] Where the answer of the defendant was 
 not entered on a previous day of appearance, it is taken down 
 on the actual day of trial. The Commissioner desires the Clerk 
 to read over the plaint, and ask the Defendant, or his substitute, 
 or counsel, what the Defendant has to say in answer thereto ; 
 or, where the complaint of the Plaintiff is in respect of any sum 
 of money alleged to be due to him, whether the Defendant has 
 any counter-claim against the Plaintiff. The Clerk then records 
 the answer or counter-claim of the Defendant in the proper 
 column of the Record-Book. — R. Sf O., § 7. 
 
 3. Production of Evidence.] If the Defendant deny the 
 demand of the Plaintiff, or make a claim in reconvention, the 
 Plaintiff should forthwith produce and exhibit to the Court, 
 any writings or documents, whereon his complaint or demand 
 
50 
 
 may be founded ; and also produce any witnesses he may require 
 to have examined in support of the same. — R. 8f 0., § 8. 
 
 The case on the part of the Plaintiff having been heard, the 
 Defendant should forthwith, in like manner produce any writ- 
 ings or document he may desire to have read to the Court, and 
 any witnesses he may desire to have examined in support of 
 his defence or counter-claim. — R. ^ 0., § 9. 
 
 4. Putting in Records in Evidence.'] If, in the course of a 
 case, it be necessary for either party to produce and shew to 
 the Court any record, entry, or document of the said Court, it 
 is not required of such party to produce any office copy of such 
 record, entry, or document ; but the Clerk of the said Court 
 should, at the request of such party, produce and shew or refer 
 to such original. — R, Sf O., § 14. 
 
 5. Defendant appearing, Plaintiff in default.] If the De- 
 fendant appear according to the summons, and the Plaintiff 
 make default, the Court will absolve the Defendant from the 
 instance with costs. — R. ^ O., § 20. 
 
 6. Plaintiff appearing, Defendant in default.] If neither the 
 Defendant nor his substitute appear on the day appointed for 
 the appearance of the parties, the Court, being satisfied by the 
 return of the Fiscal that the Summons had been duly served, 
 and at the request of the Plaintiff, will proceed to hear the 
 Plaintiff and his witnesses. Under such circumstances, the 
 Court may give Interlocutory Judgment in favour of the Plain- 
 tiff.— ii. ^ 0., § 17. 
 
 7. Both parties appearing.] On the day appointed for the 
 appearance of the parties, unless the case has been in the 
 meantime withdrawn, the parties' names will be called. When 
 they appear, the Clerk records the appearance, and the case 
 proceeds to trial. The Commissioner causes the Clerk to read 
 over the Plaint, and ask the Defendant, what he has to say in 
 answer to the Plaint; or, where the complaint of the Plaintiff is 
 in respect of any sum of money, whether the Defendant has any 
 like counter-claim against the Plaintiff. Such answer or claim 
 in reconvention is also recorded by the Clerk. — R. Sf O., S 7. 
 
 If such answer or counter-claim had been on a previous day 
 of appearance already entered, the Court goes in evidence after 
 the appearance of the parties is recorded. 
 
 8. When the Plaintiff is to begin.] The Plaintiff' does not 
 
51 
 
 always begin. If the affii'mative of the issue is on the Plaintiff, 
 he, as a general rule, has a right to begin. 
 
 " If the affirmative of any one material issue is on the Plain- 
 tiff, and if he undertakes to give evidence upon it, he is entitled 
 to begin." 
 
 " The fact of the Defendant being under an obligation to 
 admit the Plaintiff's case, does not preclude the Plaintiff from 
 his right to begin." 
 
 " Nor does the admission by Defendant's counsel, at the trial, 
 of all the facts, the proof of which is on the Plaintiff, do so." — 
 See Arch. Q. B. Prax:., (Ed. 1855,) p. 353. 
 
 9. When the Defendant is to begin.l " In general," says 
 Archbold, " if the affirmative of the issue lies on the Defendant, 
 and there is not a judgment by default as to part, and the 
 Plaintiff does not seek to recover unascertained damages within 
 the rule on that subject presently noticed, the Defendant is to 
 begin." — Arch. Q. B. Prac, ut supra. 
 
 It may be here remarked, that in actions for slander, libel, 
 or other personal injuries, the Plaintiff seeks to recover actual 
 damages of an unascertained amount. In such cases, the Plain- 
 tiff is entitled to begin, though the affirmative of the issue may 
 happen to be with the Defendant ; but such cases are not within 
 the jurisdiction of the Courts of Requests. — Ord. 22 o/1852, § 3. 
 
 This rule seems to have been extended to other cases, where 
 the Plaintiff seeks to recover " unascertained damages ;" and 
 Archbold cites a case as having overruled several Nisi Prius 
 decisions, viz. Mercer v. WhaU, 5, Q. B., 447. 
 
 It is not within the scope of this manual to go fully into the 
 nice distinctions which arise regarding the right of a party to 
 begin. The throwing of the onus probandi on either party will 
 depend on the circumstances of the case. In some cases a party 
 will claim the " right to begin!' as entitled to it : in others he 
 will contend that the " onm " is on his antagonist. In consider- 
 ing which party ought to begin, the Commissioner will consider 
 what is the substantial fact to be made out, and on which party 
 it lies to make it out, without much regarding the form of the 
 issue ; for such is the intention of the rules which regulate a trial. 
 
 It may be useful to add, that the test which may be relied 
 upon in such cases is, as a general rule, as follows : — which party 
 would lail on the plaint and answer recorded, if no evidence 
 
52 
 
 were offered on either side ? That party must begin. See 
 Taylor, § 338. 
 
 10. Recording the Evidence,^ We have already described 
 the rules according to which evidence is received, when we 
 considered the subject of Witnesses and their Examination. — 
 Ch. iv., pp. 38—43. 
 
 The Commissioner causes the Clerk to note in the Record 
 Book, any objection made by either party to any evidence 
 received, or to any evidence or any document tendered by 
 either party to the Court and rejected.- — R. ^ O., § 15. 
 
 The Commissioner takes down, himself, in writing, the 
 examination of the parties, and the evidence of all witnesses 
 examined, and signs the same. — Ibid. 
 
 11. Ordering Witnesses out of Court.'] It is advisable in all 
 cases, to order the witnesses out of Court. Either party, at 
 any period of the cause, has a right to require that the un- 
 examined witnesses should be sent out of Court. Though the 
 evidence of a witness present in Court, during the examination 
 of other witnesses, cannot be rejected, it may be discredited by 
 the Commissioner in consequence. A witness remaining after 
 being warned to leave the Court, may be held guilty of con- 
 tempt. A Proctor, (appearing on behalf of a party,) if he is 
 also a witness in the cause, will be suffered to remain, — ^his as- 
 sistance being absolutely necessary. As a general rule, a party, 
 who is also to be examined as a witness, will be allowed to 
 remain; but it is a good practice to examine the Plaintiff and 
 Defendant, if their evidence is required, at the commencement 
 of the trial, before the examination of the other witnesses. — 
 See Arch. Q. B. Prac, ch. xiv. (Ed. of 1855,) p. 362. 
 
 12. General course of Proceedings.'} AVhen the party who 
 opened the cause has gone through his case, the other party 
 follows. If the latter enters into evidence, the former has the 
 right of reply. 
 
 As, at the time the Rules and Orders for Courts of Requests 
 were promulgated, the appearance of parties by counsel, and 
 with all the formalities of a regular trial, was not contemplated, 
 it will be well (as we have hitherto done) to consider the ruling 
 practice of the principal English Courts, as the authority ulti- 
 mately followed in Ceylon ; as well as of our own District 
 Courts, as regards the special provision laid down in this re- 
 spect, in the General Rules and Orders for District Courts. 
 
53 
 
 The Rule at present in force in the District Courts, is that 
 of tlie 18th December, 1845 : — " It is ordered, that at the trial 
 of any cause, the party upon whom, in the opinion of the Court, 
 the burden of proof shall lie, shall first state his case, the na- 
 ture of the evidence in support thereof, and the law applicable 
 thereto, and shall then produce his evidence. The adverse 
 party shall, after him, in like manner, should he consider it 
 necessary, state his case, the nature of his evidence in support 
 thereof, and the law applicable thereto, with such comments on 
 the evidence already adduced as may to him appear requisite, 
 and shall then produce his evidence. It shall then be compe- 
 tent for the party who commenced, to reply generally, and to 
 produce evidence in reply. And if any question of law has 
 arisen for adjudication, upon the evidence adduced in reply, 
 it shall be competent to the adverse party to address the Court 
 thereon." 
 
 The following extract will shew the general course of pro- 
 ceedings in the English Courts of Common Law : — 
 
 " The junior counsel for the plaintifi' opens the pleadings, by 
 shortly stating the names of the parties, the substance of the 
 pleadings as they appear on the issue and nisi prius record, 
 and the issues which the jury are to try. After this, if the 
 action is for unliquidated damages, the counsel for the plaintiff 
 states his case to the jury. In other cases, the right to begin 
 depends on the nattire of the issue joined ; it being a general 
 rule that, that party is entitled to begin who has to maintain 
 the affirmative of the question in issue. Having stated his 
 case, the same counsel produces his evidence in support of it ; 
 and the senior counsel for the opposite party is then heard, and 
 if he produces evidence, but not otherwise, the opposite party 
 is entitled to a general reply." — Lush. p. 398. 
 
 The rule of the District Court, " It shall then be competent 
 for the party who commenced to reply," is, practically interpreted, 
 in accordance with the English Practice, that is, the right to 
 reply arises from the calling of evidence for the defence. 
 
54 
 
 CHAPTER VII. 
 
 OP JUDGMENT AND APPEAL. 
 
 CONTENTS. 
 
 1. — Delivery of Judgment, 
 2. — Interlocutory Judgment 
 3. — Judgment made finals 
 
 4. — Judgment opened. 
 
 5. — Absolving from the instance. 
 
 6. — Of Appeals. 
 
 1. Delivery of Judgment.'] The judgment of the Court is 
 often reserved by the Commissioner on the day of trial, to be 
 delivered after a careful consideration of the case. 
 
 All judgments of the Courts of Requests are delivered in 
 open Court, and reduced into writing, and signed by the Com- 
 missioner ; and a note of the judgment is entered by the Clerk 
 in the proper column of the Record Book. — R. Sj- O., § 16. 
 
 " To render a sentence valid, it must be pronounced pub- 
 licly." — Vanderlinden L. L. of H., h. iii., p. 1, § 4. 
 
 2. Interlocutory Judgment.'] We may, in this place, quote 
 the Rule of the Court of Requests, respecting interlocutory 
 judgments : — " If neither the Defendant nor his substitute ap- 
 pear on the day appointed for the appearance of the parties, 
 then the said Court, upon the request of the Plaintiff, and being 
 satisfied by the return of the officer of the said Court endorsed 
 upon the Summons, that the same hath been duly served, shall 
 proceed to hear the Plaintiff and his witnesses, and shall give 
 judgment thereon ; but the said judgment, if the same shall be 
 against the Defendant, shall be interlocutory only, and not 
 final, until notice thereof, and a day for appearance thereon, 
 shall have been given to the said Defendant ; and the Clerk of 
 Court shall issue and deliver the said notice to the officer of 
 the Court appointed to serve the process thereof, who shall 
 serve the same, and make his return of the service thereof, as 
 on the service of any summons ; and the said notice shall be, as 
 near as may be, in the form of the Schedule hereunto annexed, 
 marked ^."—B. Sf O., § 17. 
 
 3. Judgment made final] After due service of the notice 
 
of interlocutory judgment, if the Defendant or his substitute 
 do not appear in Court on the day specified in the notice, the 
 interlocutory judgment will be made final, and the Clerk will 
 so record it in the proper column of the Record Book. — 
 K. 4- O., § 18. 
 
 4. Judgment opened.'] " If the Defendant or his substitute 
 appear before the Court at the time specified in the said notice, 
 and it shall sufficiently appear to the said Court, by oath, that 
 the said Defendant did not receive the Summons a sufficient 
 time before the day of the return thereof, to be able to obey 
 the same; and that he did not absent himself from home, for 
 the purpose of avoiding the service of the said Summons ; or 
 was prevented from attending by sickness or other reasonable 
 cause ; — then the said Court shall order the said judgment to 
 be opened, and shall permit the Defendant to answer the said 
 complaint or demand, upon a certain day then appointed by 
 the said Court for that purpose ; upon the terms, nevertheless, 
 of payment of the costs incurred by his default ; and that the 
 Defendant shall, at his own charge, cause notice of the said 
 order to be served on the Plaintiff, either personally, or by 
 leaving a copy thereof at his usual place of abode ; and that 
 the evidence before given by the said Plaintiff, shall, on the 
 re-hearing of the case, be read by the Clerk of the Court, the 
 said Plaintiff being at liberty to bring further evidence, if he 
 think fit. And upon the said re-hearing, the case, except as 
 aforesaid, shall proceed as if the Defendant had appeared upon 
 the original Summons." — if. ^ 0., § 19. 
 
 5. Absolving from the instance.'] The 20th Rule says, that if 
 the Defendant appear to the Summons, and the Plaintiff make 
 default, the former will be absolved from the instance, with 
 costs. An absolution from the instance operates only as a 
 dismissal of the particular plaint. 
 
 In the Dutch law, " a conclusion to absolution of the in- 
 stance," is properly taken, when we conceive that the party 
 has instituted a wrong action. A conclusion to absolution of 
 the instance is said properly to apply, when the Defendant may 
 say, " Tihi adversus me non compeiit haec actio." An exception 
 of this kind, taken by a defendant, is equivalent to an English 
 " plea in abatement." — See Vanderlinden's L. L. of H.., b, iii., 
 p. 1, J 15, and the Translator^ note, p. 415. 
 
56 
 
 A plaintiff non-suited in consequence of such a plea, is, of 
 course, not prevented from instituting a fresh action. Thus, 
 it was laid down : — " The former judgment being only in the 
 nature of absolution, by reason of the Plaintiff's default, there 
 is nothing to prevent the Plaintiff suing again by the present 
 plaint. The Court should therefore proceed with the present 
 case, as if no such previous suit had been brought." — OaUe, 
 1,981. 
 
 In speaking of a judgment being only in the nature of an 
 absolution, the Supreme Court, here meant, that the judgment 
 amounted to a non-suit, as in the following case : — " where 
 the judgment in the former case only amounted to a non-suit 
 and not judgment for Defendant, the present case must there- 
 fore be entertained." — Jaffna, 7,003. 
 
 But the following case will shew, that the Supreme Court 
 has applied this conclusion to circumstances not identical with 
 the case, where a party has instituted a wrong action. 
 
 Where the evidence for the Defendant appeared too strong 
 to admit of judgment being given for Plaintiff, the Supreme 
 Court set aside the judgment below, anddecreed that the De- 
 fendants should be absolved from the instance. — Hambantotte, 
 1,066. 
 
 In all cases, therefore, where the Plaintiff is non-suited, 
 through the absence of his witnesses or other default on his 
 part, or through want of sufficient evidence, or where the de- 
 cision is doubtful between Plaintiff and Defendant, the latter 
 may be " absolved from the instance." Such a sentence will 
 not operate as a judgment for either, or as a bar to a fresh 
 action being instituted. Biit, of course, a conclusion to abso- 
 lution of the instance is properly applied, in cases where the 
 Plaintiff has instituted a wrong action. 
 
 6. Of Appeals.'] Under the Rules and Orders, "Any party 
 wishing to bring the proceedings in any case had before any 
 Court of Requests, under review of the Supreme Court," might 
 lodge with the Clerk of the Court of Requests, a petition to 
 the Supreme Court, praying for such review ; and only three 
 days were formerly allowed to file such petition. — R.^ 0.,§21. 
 
 Parties may now appeal " to the Supreme Court against any 
 final judgment, or against any order made in any such action, 
 having the effect of a final or definite sentence, for any error 
 
57 
 
 in law or in fact, committed by such Court of Requests in the 
 said action. And the said Supreme Court shall be a Court of 
 appellate jurisdiction, for the correction of any such error, and 
 shall, on appeal, affirm, reverse, correct, alter, and vary every 
 such judgment or order according to law ; or order a new trial 
 on such terms as it thinks fit; and may make such order with 
 respect to the costs of the said action, as the said Court may 
 think proper."— Or<i. 22 o/1852, § 10. 
 
 Parties wishing to appeal against any final judgment of a 
 Court of Requests, are now allowed seven days, and no more, 
 after the day on which such judgment was pronounced, to 
 lodge with the Clerk of such Court, a petition of appeal to the 
 Supreme Court.— Ors?. 22 o/1853, § 12. 
 
 But no party will be allowed to appeal in any action, where 
 by any Ordinance it is expressly provided, that the judgment, 
 decree, or other proceeding of a Court of Requests in such 
 action shall not be brought in review before the Supreme 
 Court. For, though the right of appeal is now extended to all 
 Courts of Requests, it does not extend to those cases, where 
 even a petition of review was denied to the suitor under spe- 
 cial provisions.— OrtZ. 22 of 1852, § 10. 
 
 So, no appeal or review lies against the decision of the Court 
 of Requests in a question of assessment.— Orrf. 17 of 1844, 
 §54. See p. 7. 
 
 It is not necessary, in any petition of appeal, to set forth the 
 particular grounds of appeal ; " but in faUure thereof, the 
 appellant shall be disallowed his costs, or any portion thereof 
 in appeal."— Orrf. 22 o/1852, J 10. 
 
 The appellant is obliged to enter into a bond, together with 
 a surety approved of by the Court of Requests, for the costs 
 in appeal ; such bond becoming due, if the appellant shall fail 
 in his appeal."— Orrf. 22 o/ 1852, § 12. R ^ O. § 21. See also 
 Schedule to R. ^ O-, form G. 
 
 Of course, the Court of Requests conforms to and executes 
 all judgments, orders, and decrees of the Supreme Court, in 
 like manner as any original judgment of the Court of Requests 
 could be executed. — iJ. ^ 0., § 25. 
 
5* 
 
 CHAPTEE VIII. 
 
 OF EXECUTION. 
 
 CONTENTS. 
 
 1 . — Execution. 
 
 2. — IVrit of Execution. 
 
 3. — Execution in failure of appeal. 
 
 4. — Execution in case of appeal. 
 
 5. — Surrender of Goods. 
 
 6. — Attachment of Property. 
 
 1 .' — Inventory of attacked Goods'. 
 
 8. — Custody of attached Goods. 
 
 9. — Bail to produce Property. 
 10. — Execution out of District, 
 1 1. — Sale in Execution. 
 12. — Extension of the Writ, 
 
 1. Execution.'] Under the original constitution of Courts 
 of Requests, it was enacted, " that the judgment and award of 
 such Courts of Requests shall in all cases, when necessary, be 
 carried into execution by attachment and sale of the goods and 
 effects, or by corporal arrest of the party or pai'ties against 
 whom such judgment or award shall have been given or made." 
 —Ord. 10 of 1843, § 6. 
 
 This clause stands unrepealed by any direct legislative 
 enactment ; and we shall first define, what was held to be the 
 meaning of goods and effects ; and nextly, define the applica- 
 tion of that part of this clause which authorized corporal arrest. 
 
 On an appeal taken from the Court of Requests of Gampola, 
 the decision of that Court was upheld, which declared, that 
 immoveable property was not liable to be seized under the 6th 
 clause of Ordinance No. 10 of 1843. 
 
 To Mr. Christoffels De Saram was due the credit of having 
 raised the point, as Commissioner of the Court of Gampola. 
 
 The case was very learnedly argued in the Supreme Court, 
 and will be found reported in the collection of decisions, which 
 will conclude this manual. — Gampola, 73. 
 
 In consequence of the decision being upheld in appeal, that 
 immoveable property was not liable to be seized in execution, 
 the Ordinance No. 4 of 1847 was passed, "for authorizing the 
 sale of immoveable property under writs of execution issued 
 by Courts of Requests; and for giving legal effect and validity 
 
59 
 
 to past sales of such property by Piscals in certain cases, and 
 indemnifying such Fiscals and their officers against all actions 
 in respect of such sales." — Ord. 4 of 1847. 
 
 The Insolvents' Ordinance has indirectly but very eifectually 
 deprived Courts of Requests of the power of corporal arrest, 
 in actions for the recovery of debt; for "after the commence- 
 ment of this Ordinance, no person shall be arrested in Mesne 
 process, or taken or charged in execution upon any judgment 
 obtained in any Court of this Colony, in any action for the re- 
 covery of any debt contracted subsequently to the time when 
 this Ordinance shall come into operation, wherein the sum 
 claimed or recovered shall not exceed the stfm of Ten Pounds, 
 exclusive of interest, and of the costs recovered by such judg- 
 ment."— Or(i. 7 o/ 1853, § 164. 
 
 But a defendant who obtains credit under false pretences, 
 or wilfully contracts a debt without a reasonable assurance of 
 being able to discharge it, or who makes, or causes to be made, 
 any gift, delivery, or transfer of any property, or removes or 
 conceals any property, with the intention of defrauding his 
 creditor, is liable to be taken and detained in execution for 
 any time not exceeding six months, whether or not execution 
 against property has also issued. — Ord. 7 q/'1833, § 165. 
 
 In correctly understanding these enactments, therefore, three 
 things are necessary to be considered : — 
 
 Firstly, That the action must be for the recovery of a debt. 
 
 Secondly, That the debt must have been contracted subse- 
 quently to the 23rd of November, 1853. • 
 
 Thirdly, The defendant must not have committed any of the 
 fraudulent acts, which will make his case an exception, under 
 the last clause of the Ordinance. 
 
 These considerations have not been fully noticed in a for- 
 mer portion of this work. See jo. 17. 
 
 2. The Writ of Execution.'} " The process for execution 
 of any judgment of the Court, shall be by Warrant under the 
 hand of the Commissioner, directed to the Officer of the Court 
 appointed to serve the process thereof, as near as may be in 
 the forms in the Schedule hereunto annexed, marked I." — 
 R. Sr O., § 26. 
 
 3. Execution in failure of appeal.} "The party in whose 
 favour any judgment of the Court shall be given, and uo peti- 
 
60 
 
 tion of review is lodged, or, being lodged, the required security 
 has not been given within the time appointed, may sue out of 
 the office of the Clerk of Court, process of execution by at- 
 tachment and sale of the property of the party against whom 
 such process shall have issued ; and upon the return of the 
 Officer of the Court, that such party has no property, or that 
 the same is insufficient to satisfy the exigency of the writ, then 
 he may sue out process of execution for the arrest of his per- 
 son."— Ji. Sr O., § 24. 
 
 4. Execution in case of appeal.'] " In any case where a 
 petition of review may have been lodged, and the proper se- 
 curity for costs given, the Court may direct that the judgment 
 shall be carried into execution, or that the execution thereof 
 shall be suspended, pending the said review, as to the Court may 
 appear most consistent with justice; and in every case where 
 the Court shall direct such judgment to be carried into execu- 
 tion, the party in whose favour the same shall have been given, 
 shall, before the process of execution shall be issued, enter into 
 a bond, together with some person as his surety, to be approved 
 of by the Court, for full restitution of the amount to be levied 
 and raised under such judgment, should the same be reversed ; 
 as also for the due execution of any such further judgment, 
 order, or decree, as shall afterwards be pronounced upon the 
 hearing of the case in review ; and the said bond shall be, as 
 near as may be, according to the form in the Schedule here- 
 unto annexed, marked H." — R. <^ 0., § 22. 
 
 5. Surrender of Goods.] " Where any person, against 
 whom any judgment of the Court shall have been given, shall, 
 before any warrant of execution has been taken out, appear 
 before the Court, and there deliver in to the Clerk thereof, an 
 inventory of goods duly proved upon oath to belong to the 
 said person, and to exceed in value the amount to be levied 
 under such judgment, with the costs thereof; and shall then 
 and there undertake in writing, with some person as his surety, 
 that the property contained in the said inventory, shall be 
 brought for sale, at such time and place as the Court shall ap- 
 point ; unless the person in whose behalf the said process was 
 issued be sooner satisfied in respect of his debt or damages, as 
 the case may be ; then no further proceedings shall be had iu 
 respect of such judgmentj^until after the time so appointed for 
 the sale of such property."— i?. c^- 0., § 27. 
 
6. Attachment of Property.] " The Officer of the said Court 
 shall, upon receiving the said warrant, demand payment of the 
 said debt or damages and costs, or else, (where the judgment of 
 the Court does not declare any property to be specially bound) 
 require that so much property be pointed out, as the said 
 officer may deem sufficient to satisfy the exigency of the said 
 warrant ; and if payment be not made, and property be pointed 
 out, the officer shall make an inventory thereof, and lay a ju- 
 dicial attachment on the same; but if the debtor shall not point 
 out such property, and the judgment of the Court do not de- 
 clare any to be specially bound, then the officer shall imme- 
 diately lay an attachment, under an inventory, on as much 
 property belonging to the debtor, as he may deem sufficient to 
 satisfy the execution ; and if the judgment of the Court declare 
 any particular property to be specially bound and liable to 
 execution for the judgment, then the officer shall first take the 
 same."— JJ. §• O., § 28. 
 
 7. Inventory of attached Goods.} The officer must deliver 
 a copy of his inventory of attached goods, signed by himself, 
 to the debtor ; or, if he refuse to accept the copy, leave the 
 same on the debtor's premises. 
 
 The inventory must have attached to it, a notice in the form 
 in the Schedule given with the Rules and Orders, and marked 
 J.— if. Sr O., § 29. 
 
 8. Custody of the attached Goods.} When property is at- 
 tached, if the debtor undertakes in writing, with some sufficient 
 person as his surety, to produce the same on the day of sale, 
 the officer should leave the property attached and inventoried 
 upon the premises where they were found. The undertaking 
 will, of course, be at an end, if the person on whose behalf the 
 writ is issued, has satisfaction for his claim from his debtor, 
 and so the Rules provide. — R. Sf 0., § 30. 
 
 If bail is not given to produce the property, the officer may 
 remove the same to a place of security, or, if it be inconvenient 
 to remove the property, leave it in the custody of some person, 
 until the day of sale. Such precautions will, of course, be 
 abandoned, if the debtor satisfies the amount due upon the 
 execution. — R. Sc O., § 31. 
 
 9. Bail to produce Property.} The undertaking of the 
 debtor in execution and his surety, is to be in the form an- 
 nexed to the Rules and Orders, and marked K. — R. §• 0., § 30. 
 
62 
 
 10. Execution out of the District.'] If sufficient property be 
 not found within the jurisdiction of the Court from which the 
 writ issues, to satisfy the judgment, or if the debtor in execu- 
 tion, before satisfaction of judgment and costs, remove beyond 
 the jurisdiction, the adverse party may, on the return of the 
 writ of execution, move to issue the writ beyond the jurisdic- 
 tion. 
 
 The Commissioner, in such a case, transfers the writ to the 
 Commissioner of the district in which the person or property 
 may be. The last Commissioner endorses the writ, and issues 
 it for execution in his district. The writ, with the levy or 
 body of the party, if the writ is executed, is then returned to 
 the Court out of which the execution issued. — R. Sf 0., § 33. 
 
 11. Sale in Execution.]' "All property sold in execution 
 of the process of the said Court, shall be sold publicly and for 
 ready money, by the said officer, to the highest bidder, at or 
 as near to the place as the same was taken, as may be convenient 
 for the sale thereof; and the said officer shall affix notice of the 
 said sale, and of the day and place thereof, on the door of the 
 court-house, and shall also give notice thereof by beat of tom- 
 tom, in the village or place where the sale is to be held, seven 
 days at least before the day appointed for the said sale ; which 
 day shall not be earlier than the tenth day from the time of 
 seizure or attachment." — R. Sf 0., § 32. 
 
 12. Extension of the 'Writ.'] If further time is required for 
 executing any process, it is returned into Court before the ex- 
 piration of the time for which it was before issued, with a 
 statement in writing of the reasons for requiring a prolongation 
 of time, and a motion for such further time as shall be required ; 
 upon which the Court may extend the time for the execution 
 and return of such process. — R. §• 0., f 34. 
 
63 
 
 CHAPTER IX. 
 
 OP THE PROCESS OP THE COURT OF BEQUESTS. 
 
 CONTENTS 
 1. — Summons to Defendant. 
 2. — Subpceiia to fFitness. 
 3, — Notice of Interlocutoj'y Judg- 
 ment. 
 
 i.— Writ against Person. 
 5. — JV7-U against Property. 
 6. — Summons to Intervenient. 
 7. — Notice to be examined. 
 
 I. Summons to Defendant.'] The description of a citation 
 in the manner of proceeding in Civil cases of the Dutch law, 
 will apply to a Summons in our Courts of Requests. The 
 Summons contains : — 
 
 "1. The name and description of the Plaintiff. 
 
 2. The name and description of the Defendant. 
 
 3. The day, hour, and place at which the party is to appear. 
 
 4. The declaration or statement of the matter on which the 
 party is cited." — Vanderl. L. L. of Holland., trans, p. 400. 
 
 The same stamp duty is chargeable on a Summons to Inter- 
 venient as on a Summons to Defendant. — Ord. 19 of 1852. 
 Sched. C. R. 
 
 No Summons may be re-issued, unless it is returned not 
 served, " by reason that the party covild not be found, or had 
 left the jurisdiction of the Court." — Ibid. 
 
 On an appeal from the Colombo Court of Requests, this 
 i"ule was upheld. 
 
 A copy of the Summons, together with copies of any docu- 
 ments, account, or bill, upon which the demand is founded, is 
 forwarded to the Fiscal, together with the Summons itself. 
 These copies are either served personally on the Defendant, or 
 left at his dwelling house with some one of the household, at 
 least forty-eight hours before the time specified for his appear- 
 ance, if the party lives within five miles of the Court. The 
 time for clear service is three days, where the party lives at a 
 distance from the court-house of from five to ten miles. One 
 
64 
 
 additional day is allowed for every additional five miles of dis- 
 tance.— iJ. ^- O., § 4. 
 
 SUMMONS. 
 Court op Requests of 
 To 
 
 Summon 
 
 that he appear before the Court of Requests of 
 on the day of next, at of the clock 
 
 on the forenoon, with his witnesses, if he have any, to shew why 
 he hath not 
 which the said 
 complains that he 
 and serve on the said 
 
 a copy of and return on that 
 
 day to the said Court what you have done on this Summons. 
 
 Clerh to the Court of Requests of 
 
 The form given above, is the same as that which is usually 
 issued to defendants. It must be remembered, that only one 
 stamped summons is required for all the defendants ; a copy on 
 blank being, however, necessary to be served on each. — See 
 Sched. to Ord. No. 19 of 1852. C. R. 
 
 2. Subpoena to Witness J] This designation is not technically 
 correct. The name Sub-pcena proceeds from the words in a 
 leading process in the English Courts of Equity, subpoena cen- 
 tum librarum, &c., — under a penalty of ^£100. There are several 
 species of subpoenas in chancery, which need not here be noticed; 
 but the so-called Subpoena of the Court of Requests is used for 
 two purposes, — to summon a witness to give evidence in a case, 
 and to summon a witness to produce a deed or instrument, as 
 in the following form. In practice, when the witness is , not 
 summoned to produce books or papers, the pen of the Process 
 Clerk or Proctor is run through the clause requiring the wit- 
 ness so to do. 
 
 SUBPCENi.. 
 CocET OP Requests op 
 To 
 Summon 
 
 that laying aside all and singular business and excuses, they and 
 each of them appear in person before this Court at 
 on the day of next at of the 
 
65 
 
 clock in the forenoon, and also that they bring with them and 
 produce at the time and place aforesaid a certain Deed or In- 
 strument in writing, bearing date 
 
 and then and there to testify and declare all and singular those 
 things which they, or any of them, know in a certain case now 
 depending in the said Court, between 
 
 Plaintiff, and Defendant, 
 
 and that they, or either of them, omit not so to do at their peril. 
 Serve on each of the said 
 
 a copy of this Summons and return to the said Court what you 
 have done thereupon. 
 
 Clerk to the Court of Requests of 
 
 The form given above, is what is usually procurable, and is 
 a species of subpcena duces tecum ; but when witnesses are not 
 required to produce books or papers, the subpoena ad testifican- 
 dum should be used. The form given in the Schedule to the 
 Rules and Orders, is the same as that already given, excepting 
 the clause to bring and produce a certain deed or instrument 
 in writing, as described in the process. 
 
 In the form of a suggestion, I may here remark, that it would 
 be highly convenient, to make the summons to a witness really 
 a subpoena, which it now is only in name, by adding a penalty 
 — say of £1. Clerks of Courts and Stamp Vendors would also 
 do well, to indent for this species of process, carefully distin- 
 guishing the one from the other. The subpoena ad testificandum, 
 is a process summoning a witness to attend Court on a certain 
 day; the subpoena duces tecum, on the other hand, is a writ 
 summoning a witness to produce books or papers, which would 
 be evidence in the case. 
 
 As each witness is summoned singly, the form should be al- 
 tered; as the Rules and Orders evidently contemplated one 
 writ to the Process Officer to summon all the witnesses, whereas 
 the practice is different, and the Stamp Ordinance requires 
 the use of separate and distinct subpoenas. 
 
 There must be a subpoena to each witness, bearing the pro- 
 per stamp, according to the three classes. — Ord. 19 of 1852, 
 ■ Sched. C. R. 
 
 The copy of each subpoena is served on each respective wit- 
 ness. In the case of natives, the copies are usually in Singhalese 
 or Tamul, according to the language used by the witness. In 
 
66 
 
 the cases of natives, however, who are well known to be 
 acquainted with the English language, the copy is in that 
 language. 
 
 With respect to the re-issue of process, it is provided in fa- 
 vour of subpoenas, that they may be re-issued although served, 
 in case the Commissioner shall, on good cause shewn, so order. 
 —Ord. 19 0/1852, Sched. C. R. 
 
 The Schedule of fees appended to the original Court of Re- 
 quests Ordinance, and the schedule of the Stamp Ordinance 
 relating to Courts of Requests, both speak of a subpoena to 
 each witness, though it would appear from the form we have 
 given, that one original subpoena to all the witnesses was, at 
 some time, contemplated. — See p. 47. 
 
 3. Notice of Interlocutory Judgmenf] When it is considered 
 that Interlocutory Judgment is entered by default, the policy 
 of issuing a process of the following description will become 
 obvious. The effect of this process, and the manner in which 
 an interlocutory judgment is made final, have been considered 
 in the 7th chapter. — See pp. 54 and 55. 
 
 CoTJKT OF Requests of 
 
 Take notice, that interlocutory judgment was this day given 
 and recorded against you in this Court on behalf of the above 
 named Plaintiff, for the sum of 
 together with the costs of suit for 
 
 And unless on the day of next you shew to the 
 
 said Court sufficient cause to the contrary, the said judgment 
 will become final and absolute, and execution will be issued 
 thereon against you. 
 
 Clerk to the Court of Requests of 
 
 Where a judgment should, according to the Rules, be only 
 in the nature of an interlocutory judgment, it should, of course, 
 be entered accordingly. Thus, the Supreme Court held, " By 
 the Rules, this judgment can only be interlocutory — the Com- 
 missioner must now proceed according to the 17th, 18th, and 
 19th Rules."— Calpentyn, 1,818. (24th Feb., 1846.J 
 
 [Decisions of this description will be omitted in the collec- 
 tion of decisions with which this manual will conclude.] 
 
 4. Writ against Person.J We have already considered the 
 
er 
 
 present efi'ect of Writ against Person, under the head of " Exe- 
 cution" in the 8th Chapter. The section inserted under the 
 head of "Jurisdiction" in the 1st Chapter, should be considered 
 in connection with the remarks in the first section of the 8th 
 Chapter. — Seejo. 17, and pp. 58 and 59. 
 
 EXECUTION AGAINST PERSON. 
 CoDET or Requests op 
 No. 
 Whereas in a certain case in this Court before me, wherein 
 was Plaintiff, and 
 was Defendant, the said on the day of last by the 
 
 judgment of the Court recovered against the said 
 the sum of Pounds together with the sum of Pounds 
 
 for his costs (which said judgment has been duly in review, 
 with the further sum of for costs thereon) as appears in 
 
 the proceedings in the said Court : And whereas you have re- 
 turned to a Writ for the execution of the said judgment that 
 the said has not pointed out property to satisfy 
 
 the exigency of the said Writ : This is therefore to require you 
 to seize and take the said and keep him safely so 
 
 that you have his body before this Court forthwith, to satisfy the 
 said sums of and 
 
 Given under my hand at this day of 
 
 Clerk of Court. Commissioner. 
 
 With reference to the two last clauses of the Insolvents' Or- 
 dinance, and the remarks under the head of "Execution," in 
 the 7th Chapter of this manual, it may be here mentioned, that 
 actions for damages are not included under the head of actions 
 for the recovery of debt, according to the peculiar legal signi- 
 fication of the latter word. The common law gives the creditor 
 the right of personal- arrest, and it is not to be taken away by 
 implication. An Ordinance, which removes the right in any 
 particular action, should be strictly construed. By the same 
 construction, it was lately held, that a party could not be ar- 
 rested in mesne process for damages, as the word used in the 
 Rules and Orders for District Courts, was debt, and not 
 damages.* 
 
 * On submitting the substance of my remarks in p. 59; to Mr. Barrister 
 Dias, he agreed with the views which I have expressed, and to him I am 
 indebted for the above illustration. 
 
68 
 
 This writ, once executed, may not be re-issued, under the 
 Stamp Ordinance No. 19 of 1852, Sched. C. R. 
 
 So also, this writ, once issued, may not be re-issued, unless 
 it is returned that the party could not be found, or had left 
 the jurisdiction of the Court. — Ibid. 
 
 5. Writ against Property.} The manner in which this writ 
 is put into force, has been sufficiently noticed in the preceding 
 Chapter, to which the reader is referred. In that Chapter, 
 we have also already noticed the decision of the Supreme Court, 
 on which a special Ordinance became necessary, to make im- 
 moveable property liable to be seized in execution. Under 
 the Ordinance No. 22 of 1852, which gave jurisdiction in land 
 cases to Courts of Requests, execution against immoveable 
 property would probably have been specially given. 
 
 EXECUTION AGAINST PROPERTY. 
 Court of Requests of 
 
 To _ 
 
 Whereas in a certain case in this Court before me wherein 
 was Plaintiff, and was 
 
 Defendant, the said on the day of last by the 
 
 judgment of the Court recovered against the said 
 the sum of Pounds, together with the sum of Pounds 
 
 for his costs (which said judgment has been duly in review 
 with the further sum of for costs thereon) as appears in 
 
 the proceedings in the said Court : This is therefore to require 
 you that of the goods and chattels and property of the said 
 you cause to be levied and raised the and costs aforesaid 
 
 and pay to the said the and costs aforesaid, and return 
 to the Clerk of this Court what you have done by virtue hereof. 
 
 Given under my liand at this day of 
 
 Clerli of Court Commissioner. 
 
 This writ, once executed, may not be re-issued, unless it is 
 returned, that there was not sufficient property of the debtor 
 to satisfy the exigency of the writ. — Ord. 19 of 1852, Sched. 
 C.R. 
 
 So also, if this writ be once issued and returned by the Fis- 
 cal, or other officer to whom it is directed, it could not be i-e- 
 issued, unless it be returned, that no properly of the debtor 
 could be found. — Ibid. 
 
69 
 
 A " copy-decree," on a proper stamp, must always accom- 
 pany this writ; — Ibid. 
 
 If judgment for costs be given in favour of any Government 
 officer or pauper, the Clerk inserts the value thereof in the writ 
 issued on such judgment. — Ihid. 
 
 6. Summons to Intervenienf] There is no special form given 
 for a summons to an intervenient ; but the form of a summons 
 to defendant may be conveniently used, and it may be filled up 
 by summoning the intervenient " to shew cause why he should 
 not intervene to defend the Utle^^ &c., according to circum- 
 stances ; or, part of the form may be erased, and intervenient 
 summoned to come " with his witnesses, if he have any, to in- 
 tervene" &c. As we have already said, the stamp duty is the 
 same as that of a summons to defendant. 
 
 I am informed by the Clerk, that the only instance of a sum- 
 mons to intervenient in the Colombo Court of Requests, was 
 that of one issued by myself. It was a case, on failure of 
 which, judgment was obtained against the intervenient in a 
 subsequent action. 
 
 7. Notice to be examined viva voce.J This notice is fre- 
 quently used in the Colombo Court of Eequests. A form of 
 summons is used for the purpose. The notice may also be 
 drawn on a blank stamp. The heading " Summons," is altered 
 into " Notice," and the form of the summons is altered, from 
 " to shew why he hath not," into " to be examined viva voce in 
 an action in which the abovenamed plaintiff complains," &c. 
 The names of the parties, of course, are placed above the cita- 
 tion. These notices are found to be convenient, as the viva 
 voce examination of a party generally tends to satisfy the mind 
 of the Commissioner respecting the merits of a cause. 
 
70 
 
 CHAPTER X. 
 
 OFFICIAL CIBCtlLABS, ETC. 
 
 1. — Specimens of forms of Plaints 
 
 in land cases. 
 2. — Petitions of Appeal. 
 
 CONTENTS. 
 
 3. — Possessor^ Actions. 
 
 4. — Transmission of Processes, 
 
 5. — fVrits of Execvtion, 
 
 1. Specimens of Plaints.'] The following specimens are ad- 
 ditional to those given in the Schedule to the Rules and Orders, 
 and were drawn up to meet the exigency caused by the exten- 
 sion of the jurisdiction to land cases. 
 
 Circular. Registrar's Office, 
 
 Colombo, 17th December, 1852. 
 
 SlE, 
 
 I am directed by the Judges of the Supreme Court, to 
 forward for your guidance, the enclosed specimens of forms 
 for Plaints in land cases. 
 
 I have, &c., 
 To the Clerks of the J. Cuffe, 
 
 Courts of Requests. Registrar. 
 
 (To recover possession of real properly ) 
 That the said C. D., on or about, &c., entered upon certain 
 premises [describing them] and ousted him, A. B., of which he 
 the said A. B. had been in the quiet and undisturbed possession 
 for more than a year and a day next before the said entry ; and 
 the said A. B. prays, that the possession of the said premises 
 may be restored to him.* 
 
 (To eject Defendant from lands claimed by Plaintiff as owner, 
 and to have his right of ownership declared.} 
 That the said C. D., on or about, &c., entered upon certain 
 premises [describing them] of which he said A. B., is sole pro- 
 
 * See Circular of the 7th June, 1863, p. 71. 
 
prietor, [or, as the case may be,] and ejected him the said A. 
 B., to the damage of the said A. B. of £ ; and the said A. 
 B. prays, that the said C. D. may be adjudged to pay the said 
 damage, and may be ejected from the said premises ; and that 
 the said A. B. may be declared the proprietor thereof, and put 
 in possession of the same. 
 
 2. Petitions of Appeal.'] We have already considered the 
 changes of the law with respect to Appeals, under the proper 
 heads. Evidence was transmitted, under the former system, 
 when the petition for review was granted. 
 
 Circular. Registrar's Office, 
 
 Colombo, 19th February, 1853. 
 Sir, 
 
 I am directed to inform you, that petitions filed against 
 decrees of your Court are now to be called Petitions of Appeal, 
 and not Petitions of Review ; and that the evidence must be 
 transmitted at once in all these cases. 
 
 I have, &c.. 
 The Commissioners of the C. A. Loos, 
 
 Courts of Requests. Dep. Registrar. 
 
 3. Possessory Actions.] The following is explanatory of 
 the plaints given with the Circular of the 17th December, 
 1852. 
 
 Circular. Registrar's Office, 
 
 Colombo, 7th June, 1853. 
 
 Sib, 
 
 I am directed by the Judges of the Supreme Court to in- 
 form you, that it appears from certain land cases which have 
 come up in appeal from some of the Courts of Requests, that 
 the Clerks do not clearly understand the cases to which the 
 form " To recover possession of real property," is, applicable. 
 I am directed to state, that that form is applicable only in cases 
 where the plaintiff has hem forcibly put out of possession, and 
 the object of the action is simply to be put in possession of the 
 premises again, so that the adverse party may, if he think he 
 has a right to the premises, be compelled to be Plaintiff; and 
 
72 
 
 the issues to be tried are, the forcible ouster and antecedent 
 quiet possession for a year and a day ; and the judgment in 
 such suit is, " that the possession of the premises be restored to 
 the plaintiff, and the defendant be restrained from disturbing 
 the plaintiff in his possession, otherwise than in due course of 
 law." — See Vanderlinden, p. 184. 
 
 Note — The value of the thing or property claimed in Courts 
 of Requests, should always appear on the face of the plaint, 
 and be under £10, so as to shew that the Court has jurisdiction. 
 
 I have, &c. 
 To the Clerks of the C. A. Loos, 
 
 Courts of Requests. Dep. Registrar. 
 
 4. Transmission of Processes.^ The question alluded to in 
 the following Circular, was, I believe, raised by Mr. Commis- 
 sioner H. J. Staples, of the Colombo Court. 
 
 Circular. Colonial Secretary's Office, 
 
 Colombo, May 26th, 1854. 
 
 SiK, 
 
 A question having been raised as to the necessity for the 
 transmission of Processes by the Commissioner of one Court of 
 Requests to the Commissioner of the Court of another District, 
 for service by the latter, I am directed to acquaint you, that 
 processes of your Court, to be served on parties who reside 
 beyond the limits of your Court, may be transmitted direct to 
 the officer charged with their execution, without the interven- 
 tion or authority of the Commissioner of the District in which 
 they are to be served. 
 
 I have, &c., 
 
 P. W. Bbatbrooke, 
 The Commissioner of Requests. Asst. Col. Sec. 
 
 5. Writs of Execution.] Under the head of " BxecM&n owt 
 of the District" we have already, atp, 62, considered the mode 
 of transmission of writs of execution. The following Circular 
 is explanatory of the foregoing one. 
 
 Circular. Colonial Secretary's Office, 
 
 Colombo, 18th July, 1854. 
 SlE, 
 
 With reference to my Circular Letter of the 26th May 
 
73 
 
 last, informing you that processes of your Court, to be served 
 on parties who reside beyond the limits of your Court, may be 
 transmitted direct to the officer charged with their execution, 
 without the intervention or authority of the Commissioner of 
 the district in which they are to be served, I am directed to 
 acquaint you, that these instructions are not intended to apply 
 to Writs of Execution, the mode of transmission of which is 
 laid down in the 33rd clause of the Rules and Orders for Courts 
 of Requests of 21st October, 1844. 
 
 I have, &c., 
 
 J. Fbaseb, 
 The Commissioner of Requests. Act. Asst. Col. Sec. 
 
74 
 
 CHAPTER XI. 
 
 SELECTED COEEESPONDENCB. 
 
 CONTENTS. 
 
 1. — Supreme Court Stamp. 
 
 2 . — Translators. 
 
 3. — Ordinance No. 6 of 1853. 
 
 4. — Ojpies of Documents served' 
 
 with Svimimms. 
 5. — Records of transferred cases. 
 
 1. Supreme Court Stamp.'} A blank stamp is transmitted 
 to the Supreme Court, together with the proceedings of the 
 Court of Requests. The practice of making entries on them, 
 very likely, originated in an anxiety to identify the stamp fur-- 
 nished by the appellant, as having been sent with his case, in 
 case of any loss or mistake in the transmission of proceedings 
 and stamps to 'the Siipreme Court. The stamps thus sent fron; 
 the Courts of Bequests, are of the uniform rate of Is. 6rf., as 
 required in the second part of the Schedule to the Stamp Or- 
 dinance, containing the duties on law proceedings in the Su-^ 
 preme Court, The rate is that for a " decree or judgment, or 
 order having the eflfect of a decree or judgment, interlocutory 
 or final," of the first clasp, "u^der £10."— Orrf. 19 of 1852, 
 Sched., Pt. 2. 
 
 Registrar's Office, 
 Colombo, 19th April, 1853, 
 
 SlK, 
 
 Much inconvenience having resulted to my department, 
 from the stamps transmitted with proceedings, in cases on ap- 
 peal from Courts of Requests, being defaced by various entries 
 being made on them, I have the honor to request that you will 
 direct your Clerk to make no other record on such stamps in 
 future, except the following : 
 
 In the Supreme "1 Victokia, by the Grace of God, Queen 
 
 Court of the Is- > of the United Kingdom of Great Bri-i 
 
 land of Ceylon. J tainandIreland,DefenderoftheFaith, 
 
 which I request may be as near the top of the stamp as possible, 
 
 I have, &c., 
 The Commissioner of the J. Cupfe, 
 
 Court of Requests. Registrar. 
 
75 
 
 2. Translators of Courts of Requests.'] The following Let- 
 ter explains the principle on which the Judges of the Supreme 
 Court fixed the remuneration of Translators in the Courts of 
 Bequests. — See Ord. 6 of 1853. 
 
 Colombo, 23rd May, 1853. 
 
 SlE, 
 
 We, have the honour to acknowledge your Excellency's 
 Letter of the 25th ultimo, relative to the appointment of sworn 
 Translators, enclosing copy of a Circular Letter addressed to 
 the Commissioners of the Courts of Requests, together with the 
 replies received from them ; and we herewith transmit draft 
 Rules of Court, which, we apprehend, will meet the inconve- 
 nience adverted to by certain Commissioners of Courts of Re- 
 quests, by their Letter of 26th January, 1850, to the Colonial 
 Secretary. 
 
 We have fixed the tate per folio of one hundred and twenty 
 words, at seven and a half pence, being the mean of the re- 
 muneration recommended by the Commissioners, and which we 
 think amply sufficient. 
 
 As it is impossible to remunerate exactly for the fractional 
 parts of incomplete folios, we have divided the folio into two 
 parts, taken the mean number of words in each part, and given 
 remuneration proportionately, as near as English copper coin 
 in usual currency will admit. 
 
 We have, &c., 
 
 A. Ol-rPHANT, C. J., 
 
 His Exielhncg W. O. Cakr, Sr. P. J. 
 
 The Governor. James Stark, 2nd P. J. 
 
 3. Ordinance No. 6. of 1853.1 In this Letter, the Judges 
 corrected an error which had crept into the draft.of the Trans- 
 lators' Ordinance, through oversight. The Letter will assist 
 in shewing, that only officers in the pay of Government are not 
 entitled to demand or receive any fee for any translation to be 
 used in a Court of Requests.-^See Ord. 6 o/1853, § 1. 
 
 Supreme Court, 
 Colombo, 8th October, 1853. 
 Sir, 
 
 We have the honour to acknowledge your Excellency's 
 
76 
 
 Letter of the 28th ultimo, transmitting to us the draft of an 
 Ordinance, " for giving effect to certain rules for the appoint- 
 ment and remuneration of Translators in the Courts of Re- 
 quests," and desiring our observations on the Bill, as amended 
 in Council. We beg to state in reply, that the Rules refer to 
 two classes of Translators. 
 
 1st. Interpreters of the Supreme Court, Government Trans- 
 lators, or Translators of the Supreme Court or District Court ; 
 who are authorized to act as Translators in the Courts of Re- 
 quests. 
 
 2nd. Translators of the Courts of Requests, appointed 
 under a certificate of some Commissioner of a Qourt of Re- 
 quests. 
 
 We are of opinion, that the proviso in the first clause of 
 the Ordinance, that "no sworn Interpreter or Translator of 
 any Court of this Colony, and no Government sworn Translator, 
 shall be entitled to receive or demand any fee,'' &c., is so ge- 
 neral, that it would apply to both classes of Translators referred 
 to in the Rules. Should, however, this have arisen from an 
 accidental mistake, and the intention of the Legislature be, 
 that the proviso should apply only to persons in Government 
 employ, we would submit, whether it would not be better to 
 exclude them entirely from acting as Translators in the Courts 
 of Requests, than to permit them to do so, and to allow them 
 no remuneration ; as the latter would most likely tempt them 
 to evade the restriction. 
 
 We have, &c., 
 
 A. Oliphant, C. J. 
 W. O. Caee, Sr. P. J. 
 His Excellency James Stabk, Jr. P. J. 
 
 The Governor. 
 
 4. Copies of Documents served with Summons.] By the 
 Rules and Orders, a copy of the summons, with copies of any 
 documents, account, or bill, upon which the said complaint or 
 demand is founded, is to be delivered to the Process Officer 
 for service. — R. Sj" 0., § 4. 
 
 The following Letter explains, that it is no objection to 
 the entry of the plaint, that such copies have not been fur- 
 nished. 
 
77 
 
 Registrar's Office, 
 Colombo, 4tli November, 1833. 
 Sir, 
 
 Having laid your letter of 'the 27th ultimo, and the Pe- 
 tition of Mr. Boucher, before the Hon'ble the Judges of the 
 Supreme Court, I am directed to inform you, that it rests with 
 the parties to furnish the Clerks of Courts of Requests with 
 copies of their documents to be served, and that the Clerks 
 cannot object to the plaint being recorded, because, in their 
 opinion, copies of certain documents ought to be served with 
 the summons, and which have not been furnished by the parties. 
 
 I have, &c., 
 The Commissioner of the C. A. Loos, 
 
 Court of Requests, Jaffiia. Dep. Registrar. 
 
 5. Records of transferred cases.] 
 
 Supreme Court, 
 Colombo, 9th April, 1855. 
 
 SiK, 
 
 In reference to your Letter of the 2nd February ultimo, 
 transmitting for our opinion the enclosed Letter from the Com- 
 missioner of the Court of Requests and Police Magistrate of 
 Nuera EUia, together with one from the Queen's Advocate 
 reporting thereon, we have the honor to state, that we consider 
 that the clause 18 of the Ordinance No. 10 of 1843 cannot be 
 complied with, conformably with the General Rules of Court, 
 and that further legislative provision is required, to enable the 
 certified copies and extracts of the Record Books, relative to 
 transferred cases, being received as " originals." We further 
 think, that legislative provision should be made for the transfer 
 of pending cases in the Police Court. In a recent case, the 
 Supreme Court decided, that the Nuera Ellia Police Court 
 could not try a case which had arisen in the district, transferred 
 to Kandy, for want of jurisdiction. 
 
 We have, &c., 
 His Excellency W. O. Caer, C. J. 
 
 The Lieut.-Oovernor. C. Tempi-e, P.J. 
 
78 
 
 CHAPTER XII. 
 
 STAMPS AND EXPENSES. 
 
 CONTENTS. 
 
 1. — Unstamped instruments inad- 
 missible in evidence. 
 
 2. — Court may postpone trial, to al- 
 low instruments to be stamped. 
 
 3. — Exhibits of unstamped do'cu- 
 
 4. — Duties in Courts of Requests. 
 5. — Poundage. 
 C. — Exemptions. 
 
 7. — Proviso as to Government 
 Officer. 
 
 8 — Proviso as to Pauper Suits, 
 
 9. — Me-issuing Process. 
 10. — Stamp in Appeal. 
 J 1. — Translator's Pees, 
 12. — Fees of Advocate or Proctort 
 13. — Fees of Substitutes. 
 14. — Expenses of Witnesses. 
 
 1 . Unstamped instruments inadmissible in evidence.'] By the 
 Stamp Ordinance, no instrument wliatsoever, liable to be 
 stamped, shall be pleaded or given in evidence in any Court, 
 or admitted in any Court to be good, useful, or available in law 
 or equity, unless such instrument is duly stamped. — Ord. 19 
 0/1852, §5. 
 
 2. Court may postpone trial, to allow instrmnents to M 
 stamped.'] In any action pending in any Court in this Island, 
 if an instrument, inadmissible in evidence for want of a stamp, 
 be tendered in evidence ; and if such instrument may lawfully 
 be stamped, on payment of the proper stamp duty and penalty; 
 and if the Court see fit so to do ,■ — it may either postpone the 
 hearing of the case, or suspeiid the judgment, to enable the 
 party tendering the instrument to get it stamped. — Ord. 19 of 
 1852, § 6. 
 
 It may be here added, that instruments, unstamped or insuf- 
 ficiently stamped, have the same effect in law, after payment 
 of the duty and penalty, and being duly stamped, as if such 
 instruments had originally been duly stamped. — Ord. 19 of 
 1852, § 7. 
 
 3. Exhibits of unstamped Documents.] Every unstamped 
 document which is put in Court in evidence, should be accom- 
 
panied by an " exhibit stamp," that is, a blank stamp, in cases 
 of the class " under £2," of 3d.; in cases " above £2 and under 
 £5," ofed.; and " £5 and upwards," of Is.—Sched. C. R. Ord. 
 19 of 1852. 
 
 In speaking of " every exhibit of each unstamped document," 
 fin instrument otherwise legally liable to be stamped, is not 
 contemplated ; but only an instrument liable to be stamped, 
 under the schedule of duties leviable in the Court of Requests, 
 when it is tendered in evidence. For, instruments which ousht 
 in law to be executed on stamp, will not be admitted in evi- 
 dence, if not duly stamped ; but, if they appear to be duly 
 stamped, will be admitted without an " exhibit stamp." On 
 the other hand, a document which the Stamp law does not re- 
 quire to be executed on a stamp, will, in its unstamped state, 
 be admitted in evidence, if it be tendered with the exhibit stamp 
 levied in the Court of Requests. 
 
 4. Duties in ihe Courts of Requests.'] Firstly, every affida- 
 vit or affirmation, bail bond, or other bond of recognizance, 
 commitment, copy of the decree or judgment, notice of interlo- 
 cutory judgment, petition of appeal, summons to defendant or 
 defendants without reference to number, summons to inter- 
 venient or intervenients without reference to number, warrant 
 of attachment, and warrant of execution, — is taxed as follows ; 
 In the first class, 6(i.; in the second class, 1«.; and in the third 
 class, is. 
 
 Secondly, every office-copy of any matter of record, sub- 
 poena to each witness, exhibit of each unstamped document, 
 and translation of each document, is taxed at half the above 
 charges in each respective class. 
 
 All actions under the value of £2, are reckoned undef the 
 first class. Those above £2 and under 5, belong to the second 
 class. Those above £5, and up to the ad-valorem limit of the 
 Courts' jurisdiction, belong to the highest or third class. — Soiled. 
 C. R. Ord. 19 of 1852. 
 
 5. Poundage.'] Poundage is at the rate of one per centum, 
 on all monies levied in execution, either by sale or by payment 
 of the debtor, to the Fiscal or his deputy ; although the credi- 
 tor becomes purchaser of the property sold in execution, and 
 obtains credit for the purchase money in reduction of the 
 amount of the writ. — Ibid. 
 
80 
 
 6. Exemptions.'] All aiBdavits or affirmations for verify- 
 ing service of process, and all warrants of attachment issued by 
 the court at its own instance, are exempted from the foregoing 
 duties. — Ibid. 
 
 7. Proviso as to Government Officer.'] No Government 
 oiBcer suing, intervening, or defending an action in his official 
 capacity, is required to use any stamps in the Court of Be- 
 quests. If judgment be, however, given in favour of such 
 Government officer, costs are recoverable in the same manner 
 as in pauper cases. — Ibid. 
 
 8. Proviso as to Pauper Suits.] No person duly admitted 
 to sue, intervene, or defend an action in forma pauperis, will 
 be required to use any stamps. If judgmentis, however, given 
 in favour of such pauper, the value of such stamps as would 
 have been otherwise used by him, or the value of such part 
 thereof as the Commissioner decrees to such pauper, shall be 
 paid by the party " against whom, such judgment shall have 
 been given " (with costs.) 
 
 In failure of such payment, the clerk should insert the value 
 of such costs in the writ of execution. 
 
 K there be no writ, the clerk may issue a writ, free of stamp 
 duty for the recovery of the said value. 
 
 If there be a writ, and the costs are inserted therein, the 
 first amount levied under the writ is appropriated in payment 
 of the said value of stamps. 
 
 A party against whom costs are decreed in favour of a pau- 
 per, should pay the said costs to the Commissioner, or clerk in 
 behalf of such Commissioner. 
 
 If the clerk recovers such costs under a writ of execution, 
 he should pay over the said costs to the commissioner. — Ibid. 
 
 Costs decreed in favour of a Government officer, suing in his 
 official capacity, are recovered in the same manner. — Ibid. 
 
 9. Re-issuing Process.] No summons, subpcena, warrant 
 of arrest or in execution, nor any other citation or writ, what- 
 soever, which has been once issued out of the Court and re- 
 turned by the officer to whom it was directed, shall, on any 
 pretext whatever, be re-issued ; unless any such process has 
 been returned, not served or executed by reason that the party 
 could not be found, or had left the jurisdiction of the Court, or 
 by reason that no property of the debtor or none sufficient to 
 satisfy the exigency of any writ of execution, could be found. 
 
81 
 
 It is provided, however, that in respect of any summons or sub- 
 poenas, the same may be re-issued although served, in case the 
 Commissioner shall, on good cause shewn, so order. — Ibid. 
 
 10. Stamp in Appeal.'] In appeals to the Supreme Court, 
 the appellant should furnish the clerk with the proper stamp for 
 the decree or order of the Supreme Court, which may be made 
 on such appeal. In the Schedule of the Ordinance, the appel- 
 lant is erroneously directed to " furnish to the secretary of the 
 District Court the proper stamp for the decree or order of the 
 Supreme Court, which may be made on such appeal." The 
 stamp thus required, is of the value of Is. 6rf., the value of the 
 case being necessarily under £10, and therefore falling under 
 the 1st class.— ScAerf. Ord. 19 o/1852, C. E. and S. C. 
 
 11. Translators' Fees.} The following fees are allowed for 
 translations : — 
 
 For every folio of 120 words ... ... VJrf. 
 
 For every fractional part of a folio, not exceeding 
 
 60 words ... ... ... ... 2d. 
 
 For every fractional part of a folio, exceeding 
 
 60 words ... ... ... ... 5^d. 
 
 These charges are specially allowed under Ord. 6 of 1853. 
 With regard to translators. Seep. 31 and 32, and also p. 75. 
 
 12. Fees of Advocate or Proctor.] The expense of em- 
 ploying a Proctor or Advocate is not allowed in taxation of 
 costs.— Orrf. 22 o/1852, ^ 6. 
 
 Though the expenses of employing professional men are not 
 allowed in taxation of costs, they are not debarred thereby from 
 recovering their fees for services rendered, from those who have 
 employed them in the Courts of Requests. 
 
 A widow may recover the amount due to her late husband, 
 (a Proctor) for his professional services on defendant's behalf. 
 — Jaffna, 4,118. 
 
 The Judges were of opinion, that ." Advocates' fees are not 
 under the Dutch law honorary fees, as in England ; but can 
 be the subject of an action at law."— LeWer Book, 23rd Dec, 
 1854. 
 
 No person, " not being a Proctor or Advocate, shall, in any 
 case, be entitled to have or recover any sums of money, for 
 appearing or acting on behalf of any other person in the said 
 Court." This is the wording of the Ordinance No. 22 of 1852, 
 
82 
 
 § 6. It will thus follow, that reserving the question of the 
 right of Advocates to recover their fees, there is no question as 
 to the right of Proct(»s. A case against an Advocate, to re- 
 cover back a fee, has, however, occurred in the Colombo Court 
 of Requests. 
 
 13. Fees of substitutes.'] Substitutes, however, are not en- 
 titled to recover any sum of money for appearing or acting on 
 behalf of any other person, in a Court of Requests. — Ord. 22 
 of 1852, § 6. Seep. 37. 
 
 14. Expenses of Witnesses.] The expenses of witnesses 
 need not be deposited before issuing the subpoenas (or sum- 
 monses.) — Negumbo, 9, 398. 
 
 There is no fixed rate, nor any rule, or enactment, respect- 
 ing the expenses of witnesses. — See pp. 42, 43. 
 
PART II. 
 
 DECISIONS, OF THE SUPREME COURT 
 
 REVIEWS 
 
 COURTS OF REQUESTS, 
 
 SINCE THEIK FIRST ESTABLISHMENT IN 
 CEYLON. 
 
 SELECTED FROM THE MINUTES OF THE SUPREME COURT, 
 
 AND EDITED, WITH NOTES OF RECENT CHANGES 
 
 IN THE LAW, Etc., Etc. 
 
 By LOUIS NELL, 
 
 PEOCTOE OF THE SUPREME COURT. 
 
 1845 TO 1852. 
 
DECISIONS 
 
 OP 
 
 THE SUPEEME COUET 
 
 ON 
 
 REVIEWS FROM THE COURTS OP REQUESTS. 
 
 1845. 
 
 1. Jaffnat 15,522. ArriBMED. 4th February, 1845. 
 
 In this case the Supreme Court made the following remarks : — 
 The Commissioner of the Court of Requests observes, in his 
 judgBjent in this ease, that the Plaintiff is a Barrator of the 
 worst kind ; but of this the Supreme Court is unable to take 
 cognizance, there being no evidence to that effect before the 
 Court. It would appear from the books, that the term Bar- 
 rator is uncertain, — there being three several descriptions of 
 persons to whom it has been applied : — first, it designates an 
 individual who barters justice ; and so it is said, "■ Barratriam 
 commitiit qui propter pecuniam justitiam harractat." Secondly, 
 it is used by Lord Coke and other ancient authorities, to sig- 
 nify a common mover, exciter, or maintainer of suits or quarrels, 
 either in Courts or in the country. And thirdly, the term 
 'barratry denotes a fraud, or such a degree of culpable negli- 
 gence or amount of fraud or bad faith, committed by the master 
 or mariners of a ship, with relation to the ship or cargo under 
 his care, by which the owners or freighters may be injured. — 
 Per Stark. 
 
 2. Jaffna, 5,785. Set aside. 25th Febvuary, 1845. 
 
 This was a suit brought to recover a balance of the purchase 
 money of a piece of land sold to the defendant by the plaintiff. 
 There is no direct evidence as to any payments ; and, on the 
 one hand, we have the plaintiff stating that he had received 
 
80 
 
 only 9i'. of the amount; and on the other, admitting to the 
 notary that he had received the full sum, and to another wit- 
 ness, that he had received 30 Rds. In these circumstances, 
 and considering also the declaration of the defendant, that he 
 had paid the plaintiff the full amount, it appears to the Supreme 
 Court, that the defendant's possession of the title deed, in which 
 full payment is acknowledged by the plaintiff, should determine 
 the matter in favour of the defendant. — Per Stark. 
 
 3. BZatura, 11,480. Kesebves. Wth March, 1845. 
 The proceedings of the Court of Requests of Matura, in this 
 
 case, having been considered in review, it is ordered that they 
 be reserved for the collective decision of the Judges, at their 
 next General Sessions, on the following point ; — 
 
 Whether the decision should not be set aside, for incompe- 
 tency of the Court in respect to excess of jurisdiction, from the 
 matter in question relating to the title to land : as the plaintiff's 
 claim in equity to the proceeds of the land in dispute, depends 
 upon his legal title to the land.* — Per Carr. 
 
 4. Kandy, 117. Set aside. 6tt May, 1845. 
 The Supreme Court is of opinion, that in all cases where 
 
 cattle are seized and impounded for trespass, it is the duty of 
 the owner, not to the detainer, to take notice thereof and look 
 
 * The meaning of this decision becomes clear, when it is considered, that 
 by the Ordinance in force, (No. 10 of 1843, § 5,) matters in question, relating 
 to the title of any lands or tenements, were specially excepted, in declaring 
 the jurisdiction of Courts of Requests. At present, exception to jurisdiction 
 can be taken where the value of the land exceeds £10. — Ord. 22 oflSSi, 
 § 3. Therefore, where the plaintiif 's claim to any fruit or proceeds, in- 
 volves the question of title to land above £10 in value, the exception may 
 be taken. 
 
 The above case was heard at the Collective Sessions, and it was held, 
 that the Court had exceeded its jurisdiction. — See p. 88, Matura, 30-11,490, 
 Srd July, 1845. 
 
 But respecting those cases in which the question of title to land is involv- 
 ed, a strict consideration of the Ordinances No. 10 of 1843, and No. 22 of 
 1852, seems to prove, that land cases may, with impunity as regards the risk 
 of losing costs or incurring double costs, be brought as before, in the District 
 Courts ; for, though the latter Ordinance expressly gives jurisdiction to 
 Courts of Requests, in cases of lands under the value of £10, it does not 
 re-enact any penalties, as regards the costs of the successful or unsuccess- 
 ful party. 
 
sr 
 
 after such cattle ; and that, in the present case, by delivering 
 over the bullock in question to the headman, as customary in 
 similar cases of trespass by cattle, the defendant discharged 
 himself of all responsibility for the animal ; and if the bullock 
 died without the fault of the defendant, the latter is not only 
 not liable in damages, but has still his action against the plain- 
 tiff for the trespass. — Per Stark. 
 
 5. Tang'alle, 336. Set aside. 2Qth May, 1845. 
 
 Set aside for incompetency of the Court, in respect of excess 
 of jurisdiction, as the mortgage bond in question affects the 
 title of the land thereby secured, and the possession thereof is 
 granted in lieu of interest. The Court of Requests ought not 
 therefore to have heard the case upon its merits, and adjudged 
 the plaintiff's mortgage deed to be made null and void ; but 
 ought to have dismissed the case with costs, for want of juris- 
 diction; and the plaintiff's claim is dismissed with costs, 
 accordingly, on^that ground. — Per Carr. 
 
 6. Kaig'alle, 128. Affibmed. Src^Juize, 1845. 
 
 Upon the present plaint and plea, the judgment appears 
 correct ; but if the plaintiff had confined his claim to damages 
 for a forcible entry on the land and possession of the crop by 
 defendant, while the same were in occupation of the plaintiff, 
 contrary to the provisions of the Proclamation of 5th August, 
 1819, the Court of Requests might have sustained jurisdiction 
 in this case, as the matter would not then relate to the tide of 
 the land, but simply to whether the provisions of the Procla- 
 mation had been infringed by the defendant's forcible entry 
 and possession of the crop, without authority of a competent 
 Magistrate, while in the occupation of the plaintiff. Upon 
 similar grounds, the Rules give forms of action for breaking 
 and destroying fences, and injuring crops, &c., where the title 
 is not the matter for adjudication, but the amount of damages 
 for the trespass."" — Per Carr. 
 
 7. Calpentyn, 628. Reversed. \stJidy,\8i5. 
 Reversed, and the plaintiff's claim dismissed with costs. 
 
 The words appear to have been used during the course of a 
 
 * See Ordinance No. 22 of 1852, J 3, giving jurisdictioii to Courts of 
 Requests, in land cases under £10. 
 
88 
 
 legal proceeding, by tie defendant, as a party to a suit, on his 
 objecting to the plaintiff's claim, when the plaintiff was ex- 
 amined as a witness against the defendant ; and an action for 
 defamation will not lie thereon. (Weston v. Dohniet, Cro. Jac. 
 432.J—Per Carr. 
 
 8. nxatura, 30— 11,480. Beversbd. SrdJuly, 1845. 
 The proceedings of the Court of Requests of Matura having 
 
 been brought under review before the Judges collectively, it 
 is considered that the judgment of the said Court of Requests 
 be reversed. The Court below exceeded its jurisdiction in the 
 matter in question, as the plaintiff's claim in equity to the pro- 
 ceeds of the land, depends upon his legal title to that land.* — 
 Per Oliphant, Carr, and Stark. 
 
 9. Batticaloa, 1S>3. Cobeected.- Sth Jvly, 1845. 
 
 Judgment corrected in so far as it awards treble costs, — the 
 Court of Requests having no power to adjudge the same ; and 
 the judgment is entered accordingly for the defendant, with 
 single costs."!" — -^^^ Carr. 
 
 10. Ratuapoora, 86. lUh July, 1845. 
 
 On reading the report of the Commissioner of the Court of 
 Bequests of Batnapoora, upon the petition of the defendant, it 
 is ordered, that the defendant be allowed to file his petition of 
 review in the Court below, and that the same be transmitted 
 to this Court, with the proceedings in this case. 
 
 It would seem, that the case was postponed, and other days 
 fixed for the hearing of it, not by the Commissioner, who alone 
 can do so, but by some party having no power in that behalf. 
 
 * This was the case which was reserved for Collective decision, on the 
 18th March. 
 
 Under the present Ordinance, (No. 22 of 1852), as elsewhere explained, 
 this exception respecting title to land being involved, must be understood 
 with the qualification, that lands under £10 in value are fully within juris- 
 diction, and an equitable title to their proceeds, consequently, fully cogni- 
 zable by the small Court, although the title to the land may be involved. 
 
 + It may be useful to remark, in this place, that a District Court has power 
 to award treble costs, when a false claim in execution is setup. — Ord. 1 of 
 1839, ^ 16. It is difficult to guess, on what ground the Court of Requests, 
 hi this case, awarded treble costs, as the minutes of the Supreme Court 
 simply record the order. 
 
89 
 
 It is also to be observed, that it does not appear in the pro- 
 ceedings, that the defendant had legal notice of the day on 
 which interlocutory judgment was to be made final, and which 
 notice was necessary.— OUphant, Carr, and Stark. 
 
 11. Kandy, 111. Postponed. UthJuly,18A5. 
 
 The Court being of opinion that this case is one of serious im- 
 port, afifecting, as it does, the custom of a wide extent of country 
 in this Island, desire to hear the point, now under consideration, 
 argued before it is determined ; and it is therefore ordered, that 
 this case do stand postponed, to give the parties an opportunity 
 to appear by counsel. — OlipJiant, Carr, and Stark. 
 
 12. Jafifna, 419— 5,784. Coehected. 15thJidy,lS4S. 
 
 That the judgment be corrected, by as much of the decree 
 as adjudges the second defendant to pay the sum due on the 
 bond with costs being set aside. There is no proof that the 
 second defendant granted the bond ; both the defendants deny 
 that she did so ; and the Court ought to have required proof of 
 her execution of the bond, instead of dispensing with it, from 
 the Commissioner's personal knowledge of the respectability of 
 the notary. The proceedings are, accordingly, remanded to 
 the Court of Requests, to decide the case on evidence in res- 
 pect of the complainant's demand against the second defendant; 
 but the decree against the first defendant is to remain unaltered. 
 — Per Carr. 
 
 13. Ratnapoora, 152. Beverses. 2nd September, 1845. 
 That the judgment of the 7th August, 1845, be reversed, 
 
 and the case proceeded with. There is nothing in the plaintiffs 
 examination to warrant absolution. Defendant had no right, 
 on account of trespass, to break the animal's leg, by any law 
 at present in existence, of which the Court is aware. Vide 
 Ordinance No. 2 of 1835. — Per Oliphant. 
 
 14. Calpentyn, 854. Set aside, ind September, l?:A5. 
 
 The Supreme Court is of opinion, that it cannot come to the 
 conclusion, from anything that appears from the extract from 
 the record, that the debt claimed is the disputed balance of an 
 account : the contrary rather appears. Neither does it appear 
 
 N 
 
90 
 
 that the plaintiff has split his cause of action ; the judgment is 
 therefore set aside. — Per Oliphant. 
 
 15. Jaffna, 275. Set aside. 'dth September, 1845. 
 
 The Country law either follows or concurs with the Dutch 
 law, in so far as, when interest is in arrear, and such arrear 
 exceeds the principal, no more interest is allowed than the 
 amount of the principal ; that is to say, the principal must be 
 paid, and a sum equal thereto as interest, but no more. (It 
 may be difficult to say upon what grounds such a rule was 
 established; it is unknown to the English law.) But when 
 interest is not in arrear, no such principle as has been re- 
 cognized by the Commissioner, obtains in the Dutch law ; nor 
 in the Country law, at least, has the case ever been at- 
 tempted to be urged. Neither is there any equity, so far as 
 the Judges can perceive, before whom this case comes [in 
 appeal.] On the contrary, it is equity, that every man should 
 receive the whole amount of the money he has lent, and a rea- 
 sonable compensation for .its use. Upon the principle adopted 
 by the Commissioner, one who has lent say £100, at ten. per 
 cent, for ten years, and who has regularly been paid £10 a year 
 as interest, would not be entitled to demand his £100 at the 
 end of the tenth'year, because he had been paid the sum in the 
 shape of interest. He has, thus, lent £100 for 10 years, and is 
 paid back by instalments of £10 a year, getting no compensa- 
 tion whatever for his money. Is this equity? The same 
 reasoning holds, if interest should be paid for thirty years ; in 
 which time, the lender would have received three times the 
 amount of his principal, as in the case in dispute. The lender 
 is the party wronged, if he does not get £10 every year, and 
 his principal when he calls up the bond. 
 
 The defendant being absolved from the instance on this point, 
 it is ordered, that the judgment of the Court of Requests of 
 Jaffna be set aside, and the case be decided on the general 
 merits thereof. — Per Oliphant. 
 
 16. N'eg'umbo, 16ft, Set aside. 23rd September, 1S45. 
 
 The deed of sale expresses, that the consideration has been 
 received ; and such expression is clear and unambiguous. By 
 the English law of evidence, made the law in this Colony, the 
 
91 
 
 plaintiff is stopped from shewing that no money was paid. — Per 
 Oliphant. 
 
 Phillipps on Evidence, ch. 7, * 4, (Ed. of 1843,) p. 351, vol. 2. 
 
 17. Jaffna, 462. Set aside. \4th October, 1845. 
 It appears to the Supreme Court, that by a judgment in this 
 
 case, rights in future would be barred ; and therefore, that the 
 case should be tried, not in the Court of Requests, but in the 
 District Court.* — Per Stark. 
 
 18. Calpentyn, 987. Set aside, lith October, ISiS. 
 
 It is ordered that the judgment be set aside. The Supreme 
 Court is of opinion, that the demand in this case is in substance 
 the same as in case No. 874 ; and that it would be oppressive, 
 to allow such an accumulation of actions for a trespass on the 
 person, of the nature here complained of. 
 
 The previous judgment is not under appeal; and therefore, 
 whatever doubts may be entertained in respect of it, no decision 
 is given thereon. — Per Stark. 
 
 19. Batticaloa, 9,855. Set aside. 18th December, 1845. 
 
 The question in this case is, whether the ola writing tendered 
 in evidence must be stamped, as coming under the description 
 of instruments specified in the 2nd clause of the Ordinance No. 
 6 of 1836 ; or, whether it does not require a stamp, as being 
 included in the exemptions in Table C, under the 5th clause 
 of the 2nd section. The Ordinance is closely taken from the 
 English Stamp Act, 55 Geo. III., c. 184, and the technical 
 terms used in that Act, and proper to the English law, are 
 used. The Court must therefore understand and construe 
 these terms as they are understood and construed in England. 
 And the Court is of opinion, that the deed would be held, by 
 the English law, not as purporting to transfer or make over 
 the property therein referred to, as it wants the technical words 
 of transfer, and would be deemed to be a contract or agree- 
 ment ; and, as in this case, being for the sale of cattle, would, 
 by the same law, fall under the first exemption in Table C. 
 
 * Tlie clause of Ordinance No. 10 of 1843, wliicli barred such cases, slamfs 
 repealed, and nothing h as re-enacted in Ordinance No. 22 of 1852 respect- 
 ing " rights in I'lUure." 
 
It is therefore decreed, that the judgment of the Court of Ke- 
 quests of Batticaloa, of the 14th day of June, 1845, be set 
 aside, and that the ola be admitted in evidence." — Oliphanf, 
 Carr, and Stark. 
 
 20. Galle, 526. Altered. 23rd December, 1845. 
 
 That the judgment of the Court of Requests of Galle, of the 
 28th day of November, 1845, be altered, by the defendant 
 being absolved from the instance with costs. If the plaintiff's 
 bond gives him a mortgage in a share of a field in lieu of in- 
 terest, and the plaintiff has accordingly thereunder possessed 
 such share ever since, the bond is not prescribed; and the 
 plaintiff may, notwithstanding the lapse of time, recover there- 
 on in a suit in a District Court, if he be advised to initiate the 
 same.* — Per Carr. 
 
 The following is the authority quoted in Calperdyiij 628, (ff. 87 and 
 W) .— 
 
 A suit was depending in the spiritual Court betwixt A. and the defendant, 
 in which the former produced the plaintiff as witness. The defendant, in 
 that case, put in his exceptions in writing, that the plaintiff should not be 
 credited, because he was perjured. The plaintiff, accordingly, brought his 
 action for scandal. 
 
 But the whole Court held, upon the reason in Dixie's case, 4, Co. 14, that 
 it was not maintainable, because it is in the course of justice, and not 
 ex maHMa : for if one bring another before a Justice of the Peace for sup- 
 position of felony, without any just cause, yet no action lies ; and if one 
 exhibit a scandalous bill, if the Court hath jurisdiction of any such matters, 
 an action lies not ; or otherwise it is, if the Court have not jurisdiction, or 
 having, if the party publish his bill abroad, the said bill being false. But 
 in this case, the defendant proceeded in such manner as the spiritual Court 
 hath allowed him, viz., to disprove the testimony of the witnesses produced. 
 
 Houghton said, if in the trespass the defendant justifies that the plaintiff 
 was a bankrupt, whereby he had a commission upon the statute, and those 
 goods were delivered to him, whereas the plaintiff was not any bankrupt, 
 nor any commission issued 3 — yet the plaintiff, for the words contained in 
 the plea, shall not maintam any action. And he put the Chief Justice in 
 mind of Brook's case against the Recorder of London, who, in evidence 
 to a jury, spake scandalous words agamst one, and yet adjudged that no 
 action lay. So per curiam, judgment was here for the defendant..— Wes- 
 ton V. Dobinet, Crake's Rep. Jac. 432. 
 
 * District Court is mentioned, as by Ord. No. 10 of 1843, there was no 
 jurisdiction where land was in question. 
 
DECISIO]ffS 
 
 OP 
 
 THE SUPREME COURT 
 
 ON 
 
 REVIEWS FROM THE COURTS OP REQUESTS. 
 
 1846. 
 
 1. Galle, 64:3> Affirmed. February 24, 1846. 
 It is stated in the evidence column, that Don Siman is re- 
 jected, as he did not appear under proper subpoenas from the 
 Court. The witness ought not to have been rejected. The 
 only use of a subpoena, is to insure the attendance of witnesses. 
 — Per Oliplmnt. 
 
 2. Galle, 534. Cobbected. March 3, 1846. 
 
 The bond recites, that the obligee is the son of the obligor, 
 and as such, is one of the heirs, as well as the defendants, and 
 jointly liable with them for her debts ; he must therefore bear 
 his proportion of the bond with them. The judgment is there- 
 fore corrected, by decreeing the defendants to pay three- 
 fourths of £3. 15*., and interest at 12 per cent, per annum ; 
 and the plaintiff will pay the costs in appeal. — Per Oliphant. 
 
 3. ZTeg'umbo, 521, Affirmed. April 21, 1846. 
 
 This case was properly dismissed by the Commissioner of the 
 Court of Requests ; the claim involving a question as to rights 
 in future, the case should have been brought in the District 
 Court.*— Per Stark. 
 
 * This decision was under Ordinance No 10 of 1843, § 5. The prohibi- 
 tory clause is expressly repealed by Ordinance No. 22 of 1852, ^ 1; and 
 there is no mention of "rights in future " in the jurisdiction clause, or any 
 other part of the new Ordinance. 
 
94 
 
 4. Colombo, 1,666^ Bisallowisd. May 19, 1846. 
 
 It is ordered that the appeal be disallowed, the security not 
 having been given within the time prescribed by the 21st 
 clause of the General Rules of the Court of Requests ; and 
 which omission, by the 24th clause, entitles the party in whose 
 favor the judgment has been given, to act in the same manner 
 as if no petition of review had been lodged, by proceeding to 
 sue out process of execution.* — Per Carr. 
 
 5. Calpentjn, 2,066. Set aside. May 19, 1846. 
 
 Set aside for irregularity ; and the case is remanded to the 
 Court of Requests, for re-hearing and to give judgment de now. 
 
 " When the owner of a vicious animal has notice of its having 
 done an injury, or being accustomed to do mischief, he is bound 
 to secure it at all events, and is liable for damages to a party 
 subsequently injured, if the mode he has adopted to secure it 
 proves insufficient." — 3 C. and P. 138.f R. v. Hvggins. 2 Lord 
 Baym., 1,583. BNP. 76. 
 
 In this case it is alleged, that the animals were known to be 
 butting buiFaloes, and that the Police Vidahn had ordered their 
 owner to accordingly tie them up, or else to cut their horns 
 and yoke them to another, which plaintiff did with his buffalo ; 
 but the defendant neglected to comply with the headman's 
 
 * By § 22 of Ordinance No. 10 of 1813, parties were allowed to petition 
 for a review by the Supreme Court in certain cases ; but the time, within 
 which the apphcation for review was to be made, was prescribed by the 
 Rules and Orders, § 21. By the rule now in force, " Any party wishing to 
 appeal to the Supreme Court, against any final judgment, may, within seven 
 days after the day in which such judgment was pronounced, but not after- 
 wards, lodge with the clerk of the Court, a petition of appeal to the Su- 
 preme Court," &Lc.—Ord. No. 22 of 1852, ^ 12. 
 
 t 111 an action for an injury by a vicioits bull, the plaintiff recovered, al- 
 though it appeared that the bull was attracted by a cow, in a particular 
 state, which the plaintiff' was driving past the field in which the bull *as, 
 and that the plaintiff" first struck the bull on the head, to drive him away 
 from the cow. — Blackman v. Simmons. 3 Cai-rington and PaynCy 138. 
 
 There is a difference between beasts that z-xaferc^ natura, as lions and 
 tigers, which a man must always keep up at his peril j and beasts that are 
 mansuetce natura, and break through the tameness of their nature, such as 
 oxen and horses. In the latter case an action lies, if the owner has had 
 rwtice of the quality of the beast ; and in the former case, an action lies 
 without such notice. — Rex v, Huggins. 2 Lord Raijmond, 1583. 
 
95 
 
 directions, and allowed his buffalo to remain loose, when it 
 gored the tied buffalo of the plaintiff. If these facts be proved, 
 the plaintiff would be entitled to judgment ; and both his third 
 and fourth witnesses should have been examined,— the rela- 
 tionship being no objection to the third being a witness, though 
 it might have affected the credit due to him. — Per Carr. 
 
 6. Jaffna, 1,047. Reversed. May 26, 1846. 
 It is ordered that the judgment be reversed ; and the Court 
 
 of Requests is directed to re-hear the case, and to give judg- 
 ment anew. 
 
 The 20th clause cannot operate as a bar to the present civil 
 suit ; because the 17th clause expressly provides, "that nothing 
 in the Ordinance contained shall be held to prevent the Go- 
 vernment or the renter from instituting a civil action, for the 
 recovery of the tax due upon any crop." — Per Carr. 
 
 7. Gampola, 49. Afeibmbd. June 2, 1846. 
 That there is no ground to set aside or correct the judgment. 
 The notice required to be given to the constable, police 
 
 vidahn, or local headman, within forty-eight hours from the 
 time of seizure or trespass, was not rendered unnecessary by 
 the complainant being present at the seizure, and knowing 
 what happened ; but although, by the omission to give such 
 notice, the defendant, under the 6th clause of the Ordinance 
 No. 2 of 1835, forfeited all right to the benefit of the Ordi- 
 nance, in respect to the charges and damages therein mentioned, 
 he had, independent of the Ordinance, a right to distrain the 
 buffalo doing damage, until satisfaction were made to him for 
 the injury which he had sustained ; and the plaintiff does not 
 appear to have tendered adequate compensation, or to have 
 been unaware of the detention of his buffalo, and its having 
 been wounded on the previous day, or to have been prevented 
 having access to it ; yet he neglected to send any one to cure 
 its wound ; and where cattle distrained are kept in an open 
 pound or place, where the owner can enter to them, they shall 
 be sustained at the peril of the owner. — Com. Dig. "Distress," 
 d. 1. — Per Carr. 
 
 8. Galle, 771. Appeal allowed. June 16, 1846. 
 
 On reading the petition of the said defendant, and the en- 
 
96 
 
 dorsement made on his petition of review by the Commissioner 
 of the Court of Requests of Galle, it is ordered, that the said 
 defendant's appeal be allowed, and that the said Commissioner 
 do forthwith certify and return to this Court, a copy of the 
 proceedings in this case, in conformity with the 21st clause of 
 the Rules for Courts of Requests. 
 
 Sundays and holidays are not to be reckoned in the three 
 days allowed for lodging petitions of review. According to 
 the Commissioner's view, a decision on the 11th April could 
 only be appealed from on that day, as the Easter Sunday, 
 Monday, and Tuesday, would preclude the petition being filed 
 within the three days after the 11th. — Per Carr.* 
 
 9. Gampola, 65: Set aside. June 23, 1846. 
 Set aside and remanded for further evidence, and judgment 
 
 de novo. 
 
 The defendant's admission cannot support the present judg- 
 ment, because, although the defendant admits that there were 
 twelve men actually employed for one month and ten days, 
 under the plaintiff as his superintendent, and that he advanced 
 to plaintiff, for the purpose of paying the coolies ; yet such ad- 
 missions do not prove, that the plaintiff had hired or paid all 
 the coolies so employed ; and the unsupported claim of the 
 plaintiff to partnership, and for the value of the 34 parrahs of 
 chunam, tend to weaken his demand as to the residue of the 
 amount alleged to be due from the defendant. — Per Carr. 
 
 10. Ratnapoora, 319; Set aside. Jvly 7, 1846. 
 
 It appears to this Court, that the claim in question may bar 
 rights in future, and to such claims the Court of Requests is 
 not competent: the plaintiff' should bring his action in the 
 District Court.f — Per Stark. 
 
 * By Ordinance No. 22 of 1852, § 12, appeals are allowed within seven 
 days after the day on which the judgment was pronounced. The rule res- 
 pecting Sundays and hoHdays should therefore be applied to the latter 
 period of time. 
 
 t The District Court is declared to have jurisdiction where " rights in 
 future " are involved, as Courts of Requests borrowed their jurisdiction, 
 when they were established, from the District Courts, which were already 
 existing. The first Courts of Requests Ordinance placed cases of this kind 
 
97 
 
 11. Negombo, 68S. Set astoe. Jj% 14, 1846. 
 Set aside for irregularity, and remanded to the Court of 
 
 Requests for further hearing and judgment de novo. 
 
 The plaint is for damage done to the plaintiff's house, by 
 the falling of boughs and fruits from cocoanut trees belonging 
 to the defendant, and overhanging that house. The damage 
 has been proved, and is also admitted by the defendant ; and 
 as it appears by the Commissioner's remark, that another ac- 
 tion is pending against the defendant for similar damage, and 
 which may probably be for the identical damage now in ques- 
 tion, the defendant should be permitted to enter into his 
 defence on this point. The hearing of this case cannot be 
 stayed till the question of title be decided in Colombo, nor 
 can the legal title to the property be now entered upon. The 
 plaintiff is in possession, and the Court must consider him to 
 be the owner. — Per Templet 
 
 12. G-axnpola, 6Zd Review allowed. July 14, 1846. 
 
 On reading the petition of the defendant of the 29th day of 
 June last, and the letter of the Commissioner of the Court of 
 Requests of Gampola of the 8th July instant, it is ordered that 
 
 without the jurisdiction : the clause stands, however, now repealed. It is 
 to be inferred, that where the " rights in future " are valued at £10, or if 
 more, where the plaintiff waives the excess, including his demand, that is, 
 where his demand and the " rights in future " likely to be involved are 
 valued by him together at £10, and he specially waives the excess above 
 that sum, — that under these circumstances, cases in which " rights in future " 
 are involved will come within the jurisdiction of Courts of Requests. By 
 the old Ordinance, land cases were also out of jurisdiction. By Ordinance 
 No. 22 of 1852, land cases, where the land in dispute is of £10 value, are 
 placed within the jurisdiction of Courts of Requests j but " rights in future " 
 are not specially enacted, thoagh the clause 10 of the Ordinance No. 10 of 
 1843, which mentioned them, stands repealed. This omission was certainly 
 not accidental ; and the inference we have drawn from that omission, con- 
 sidered in connection with the privilege of " waiving the excess," (also 
 enacted by the new in opposition to the old Ordinance,) seems justifiable. 
 The exception regarding " rights in future," which existed under the old 
 Ordinance, was never properly defined. The mind does not readily sum 
 up all the instances where " rights in future " might be debarred. These 
 Reports furnish a curious instance, where " rights in future " of a plaintiff, 
 (in his capacity of Head Moorman), were involved. See Matura, 2,246, 
 1th Sept., 1848. 
 
98 
 
 the order of this Court of the 23rd day of June last be rescinded, 
 and that the petition of review of the said defendants be ad- 
 mitted, and the proceedings had in this case be brought under 
 the review of this Court. 
 
 The former order of this Court was founded upon entries 
 appearing in the " extracts " from the Record Book of the 
 Court below, which stated that the case was decided on the 
 25th day of May last, and that the petition of review was 
 lodged on the 29th of that month ; but the letter of the Com- 
 missioner above referred to, shews that the case was decided, 
 not on the 25th, as appears by the record, but on the 26th of 
 May ; and consequently, the petition of review was filed in due 
 time. 
 
 The Commissioner will, in future, see that " extracts " trans- 
 mitted by him to this Court shall not contain erroneous entries ; 
 and it is directed, that if there is any mistake in the record 
 itself, it be forthwith amended. — Per Temple. 
 
 13. SraUe, 771. Set aside. July 14, 1846. 
 
 That the judgment of the Court of Requests of Galle of the 
 4th day of June last be set aside, for irregularity, and this case 
 be remanded to the said Court for further hearing and judg- 
 ment de novo. 
 
 The summons issued in this case does not follow the state- 
 ment in the plaint, as required by the General Rules and Or- 
 ders for the Courts of Requests, and gives the defendant no 
 information as to the account on which the demand is made ; 
 and he could not, therefore, come prepared with evidence to 
 rebut the plaintiff's claim. 
 
 This case is therefore re-opened for the reception of the 
 defendant's evidence ; and the Court below is directed to re- 
 ceive such evidence, if tendered, and also to give judgment 
 anew upon the whole case. 
 
 The viva voce statement of the defendant, recorded in the 
 proceedings of the 4th day of June last, is unintelligible. — Per 
 Temple. 
 
 14. nXatura) 356. Costs cokrected. July 21, 1846. 
 
 That the judgment of the said Court of Requests be corrected, 
 by reducing the double costs thereby allowed to single costs ; 
 and the said judgment is hereby corrected accordingly. 
 
99 
 
 Double or treble costs are not allowable, except under a 
 special legislative enactment.* — Per Temple. 
 
 15. ZS.urneg'alle, 162. Cobbected. July 21, 1846. 
 
 That the judgment of the said Court of the 4th day of June 
 last be corrected, and the following be the judgment in this 
 case, to wit. That the plaintiff do recover from the defendant 
 the sum of Three pounds and Ten shillings sterling, and costs. 
 
 The defendant had no right to kUl the bullock in question ; 
 and having done so, he must be answerable for its value, which 
 this Court has fixed by taking the medium value appearing in 
 the evidence of the witnesses examined in this case. Besides 
 the common remedy by action, which the law gives the defen- 
 dant, to have recovered the damages done to his garden, the 
 legislature has, by the Ordinance No. 2 of 1835, given a more 
 summary mode by which damage done by cattle may be re- 
 covered, and has provided the way in which cattle, when 
 necessary, may be destroyed. — Per Temple. 
 
 16. Cralle, 797. Set aside. August 1, 1846. 
 
 The judgment of the Court of Requests of the 18th of June, 
 1846, set aside for irregularity, in so far as the same doth re- 
 late to the said first defendant. 
 
 In this case, the plaint is founded on a bond for three pounds 
 and fifteen shillings, granted by the second defendant and one 
 Warmesooria Pattebandyrale, father of the first defendant; 
 and the plaintiff seeks to recover the amount of that bond from 
 the first defendant as son of Warmesooria Pattebandyrale, and 
 the second defendant as surviving joint debtor. Judgment 
 was given by the Court below against both defendants, upon 
 an admission which is recorded thus : — " the defendants admit 
 the claim of £Z \5s. ;" but the Supreme Court does not con- 
 sider this admission sufficient to support the judgment against 
 the first defendant, inasmuch as it does not appear to amount 
 to an admission of the first defendant's liability, but only to 
 the fact of the debt being due. The bare fact of a person 
 
 * An instance of such a legislative enactment occurs in the Ordinance 
 No. 1 of 1839 ; the 16lh clause of which makes parties, who prefer false 
 claims in execution, liable to a penalty not exceeding treble costs. 
 
100 
 
 being the heir of a deceased person, does not render him liable 
 for the deceased's debt : to make the heir liable, he must have 
 accepted the inheritance, or intromitted with the deceased's 
 property. In this case there is not only no proof of such ac- 
 ceptance or intromission, but not even an allegation is made of 
 either on record; and therefore, the first defendant should 
 have been absolved from the instance by dismissing the case as 
 against him.* — Per Temple. 
 
 17. Bentotte, 1,065. Set aside. September 1, 1846. 
 
 The plaintiiF, in this case, seeks to recover from the defen- 
 dant fifteen shillings, as rent of certain lands alleged to have 
 been let to him for five years, on a written instrument dated 
 the 1st day of January, 1840. 
 
 The instrument was received in evidence by the Court of 
 Requests, and judgment given thereupon against the defendant. 
 The Supreme Court is of opinion, that the instrument is, by 
 the 2nd clause of the Ordinance No. 7 of 1834, inadmissible 
 in any suit before a Court of Justice, inasmuch as it was neither 
 executed, nor the execution of it acknowledged before a notary, 
 as required by that Ordinance ; and it is also inadmissible in 
 evidence, under the Ordinance No. 6 of 1836, — the same not 
 being stamped. 
 
 The judgment of the Court of Requests was therefore founded 
 on illegal evidence, and must be set aside. 
 
 It also appears to the Court that title to land is involved in 
 this case ; and if so, the Court of Requests would have no ju- 
 risdiction over it.'f — Per Temple. 
 
 18. Calpentyn, 2,316. Allowed. September 1, 1846. 
 
 In this case, the defendant lodged his petition of review 
 within the prescribed time ; but it appeared from the extract, 
 that the requisite security was not given till the day after it 
 
 " A mere dismissal is not always conclusive of facts decided between 
 the parties. — See Marshall, p. ^i46. Regarding absolution from the instance, 
 see jyp. 55 and Q& of this work. 
 
 t The Ordinance No. 7 of 1834 was repealed by Ordinance No. 7 of 
 1840, — the Ordinance of frauds and perjuries now in force. The Ordinance 
 No. 6 of 1836 was repealed by Ordinance No. 2 of 1848, which again was 
 repealed by Ordinance No. 19 of 1862,— the Stamp Ordinance now in force. 
 
101 
 
 had elapsed, and the Supreme Court therefore disallowed the 
 appeal. 
 
 But it appearing now from a subsequent report of the Com- 
 missioner, that the defendant was prevented from giving the 
 security the same day the petition was lodged, owing to the 
 absence of the clerk of the Court, and the Supreme Court, un- 
 derstanding thereby that the security was tendered in time, it 
 is of opinion that the defendant did all that vfas required by 
 the rules of the Court of Requests, and that the defendant's 
 appeal should be allowed. 
 
 It is therefore ordered, that the order of this Court, of the 
 first day of August last, disallowing the said appeal of the de- 
 fendant, be rescinded, and that the proceedings in this case be 
 brought under the review of this Court. — Per Temple. 
 
 19. GallC) 928< Amended. September 8, 1846. 
 
 It is considered and adjudged, that the decree of the said 
 Court of Requests be amended ; and that the PlaintiflTs present 
 complaint, under Ordinance referred to, for double the quan- 
 tity of paddy due as Government share, be dismissed with 
 costs ; but reserving to the plaintiif, his right to institute a fresh 
 suit, for the recovery of the five ammonams or Government tax 
 due. 
 
 The plaintiff" has wholly mistaken his proper course in found- 
 ing his present claim under the Ordinance No. 14 of 1840, as 
 not only any prosecution for it thereunder is now barred by 
 the expiration of the two months, but the Court of Requests 
 has no jurisdiction to entertain such complaint, as it cannot 
 enforce the provisions of that clause by fining the defendant in 
 double the amount ; or, in default of payment, by imprisoning 
 him to hard labor. 
 
 Under the 17th clause of the above Ordinance, however, it 
 is declared that nothing, therein contained, shall be held to 
 prevent the Government renter from instituting a civil action 
 for the recovery of the ta.x due on any crop, if it shall appear 
 expedient.* — Per Carr. 
 
 * It must be here remarked, that § 14 of Ordinance No. 14 of 1840, pro- 
 vides against the proprietor or cultivator of any land liable to the tax, with- 
 out due notice, cutting or threshing the crop, or removing a portion of it, 
 
102 
 
 20. Heg^umbo, 680. Amended. September 22, 1846. 
 
 That the judgment of the Court of Requests, of the 23rd 
 day of June, 1846, be amended; and the same is amended 
 accordingly, by the plaintiff being deemed to be entitled to 
 recover \5s. upon the defendant's admission of that amount, 
 being due with costs. 
 
 The defendant, having admitted owing 15s. upon the plaint 
 filed, is estopped thereby from disputing the demand so far. 
 
 The objection that the claim is for " money lent," is too tech- 
 nical on a complaint made in the Court of Requests, which 
 must decide according to equity and good conscience. Gene- 
 rally, upon a contract for purchase of property being rescinded, 
 the deposit is recoverable back in an action for "money had 
 and received to the plaintiff's use," unless the plaintiff has re- 
 ceived a benefit therefrom ; and as the plaintiff has, in this 
 case, been put into possession, he should, in strict pleading, 
 have resorted to his special action on the agreement."" — PerCarr. 
 
 or refusing to cut, thresh and divide the crop, and deliver the Government 
 tax share. § 15 speaks of every case " wherein a speciiil ag^reement shall 
 have been made between the Government Agent and the proprietor or cul- 
 tivator of any land, for commuting the tax payable thereon," and enacts 
 the penalty " if the proprietor or cultivator shall commit any breach of such 
 agreement." The same penalty is enacted separately in each clause, the 
 § 14 or 15 to meet very different circumstances. 
 
 If this distinction is applied to clause 20, it will be found in the words of 
 that clause, that prosecution is prescribed " after the expiration of two 
 months from the time of the commission of the offence, if the tax shall be 
 rented ; " and in the other case, "after the expiration of six months, if the 
 tax shall be collected by Government." It would probably follow there- 
 fore, that a prosecution under § 15 is not prescribed for six mcmths, as 
 under that clause the commutation is payable to the Government Agent, 
 which answers to the case in § 20, where the tax is " collected by Govern- 
 ment." The only way a renter will be allowed to interfere in such cases, 
 imder § 15, will be by claiming under § 18, " at the termination of his rent, 
 from Government a sum equal to half of the fines which may have been 
 imposed." That he cannot become a plaintiff under both § 15 and § 14, 
 would appear from the continuation of § 18 ; which declares the renter en- 
 .titled to receive from Government, half of the fines imposed under those 
 clauses ; and as those fines are respectively double the tax share or com- 
 mutation value, he would get his due, the real fine or doubling of the due 
 could go where all fines go, — to Government. 
 
 * " According to equity and good conscience," are the words of the old 
 Ordinance, repealed in § 5, and not re-enacted. By Ordinance No. 22 of 
 1852, 5 10 parties may appeal from errors in law. 
 
21. Chilaw, 475. Ari'iRMED. October 20, 184G. 
 The Supreme Court has already decided against the juris- 
 diction of the Courts of Requests in suits of this nature, in a 
 similar case instituted on behalf of the Government, No. 333 ; 
 and in which the Queen's Advocate, Mr. Selby, admitted that 
 he could not support the petition of review against the decision, 
 as the 5th clause of the Ordinance No. 10 of 1843 especially 
 excepts from the jurisdiction of Courts of Requests, actions, 
 &c., wherein " the matter in question shall relate to the title 
 of any lands or tenements, or to anything whereby rights in 
 future may be bound."* — Per Carr. 
 
 22. Calpentyn, 2,507. Amended. October 30, 1846. 
 That the judgment of the Court of Requests of Calpentyn 
 
 be amended ; and the same is amended accordingly, by the 
 damage being reduced to 10«. and costs. The Supreme Court 
 considers, that these petty complaints for defamation, in words 
 spoken, and not in writing, ought to be discouraged ; and in 
 many instances, it has awarded no damage, and has only de- 
 cided the party in the wrong to pay the costs of suit. — Per 
 Carr. 
 
 23. Point Pedro, 190. Disallowed. Nov. 24, 1846. 
 
 By the 21st clause of the General Rules and Orders for 
 Courts of Requests, any party wishing to bring the proceed- 
 ings in any case had before any Court of Requests, under the 
 review of the Supreme Court, must, at the same time that he 
 lodges his petition for such review, enter into a bond, with 
 some person as his surety, in the manner prescribed by those 
 Rules, for the costs in review,- and by the 24th clause, the 
 party in whose favour judgment shall have been given, is, upon 
 omission to give such security, entitled to sue out process of 
 execution. The Ordinance No. 10 of 1843 requires, that the 
 bond shall bear a certain stamp, and declares that any instru- 
 ment required by it to bear a stamp, and which shall not have 
 such stamp, shall not be of any validity or effect; and the bond 
 entered into by appellants, in this case, not bearing any stamp 
 
 * What the particular nature of this case was, I am unable to give, with- 
 out reference to the records of the Chilaw Court. The exception to juris- 
 diction stands repealed by Ordinance 22 of 1852. 
 
104 
 
 at all, cannot be considered as a compliance with the requisites 
 of the said Rules. — Per Stark. 
 
 24. Jaffna. 1,302. Sex aside, j ^'*''"°r^ jl?' J^^^' 
 
 ( November 25, 1846. 
 
 The proceedings of the Court of Requests of JaiFna having 
 been considered in review, on the 10th of February, it was 
 ordered, that the case should be reserved for the opinion of the 
 three Judges, viz., the Collective Court at General Sessions, 
 on the following points : — 
 
 -1st. Whether the record in criminal proceeding, is evidence 
 in a civil suit. — Rosooe, p. 136. « 
 
 2nd. Whether the case comes within the jurisdiction of the 
 Court of Requests — Per Oliphant. 
 
 The case having been considered by the Collective Court, on 
 the 25th November, 1846, the judgment of the Court of Re- 
 quests of Jaffna, of the 19th December, 1845, was set aside on 
 both points reserved for collective decision by the Supreme Court 
 in review. The Collective Court was of opinion as follows : — 
 
 1. That the judgment in the criminal case, by the Police 
 Court, (in which the plaintiff gave evidence as a witness for 
 the prosecution) cannot be evidence for her in this civil action. 
 — 1, Roscoe, Evidence, 102. Archiold, Civil Pleading, 394. 1, 
 Campbell, 9 Sj- 151. 4, East 572, and 1, Taunton, 520. 
 
 2. That the Court of Requests has not jurisdiction in any- 
 thing, 'Swhereby rights in future may be bound ;'' and in this 
 case, the plSfatiff seeks to establish her marriage with the de- 
 fendant, and the right of herself and child to maintenance 
 thereunder.* — Per Carr, Stark, and Temple. 
 
 * It has been studiously noted, in each decision respecting the question 
 of "rights in future," that the clause 10 of 1843, by which these became a 
 plea to the jurisdiction of a Court of Requests, is expressly repealed by 
 Ordinance No. 22 of 1852. 
 
 Regarding the first point on which this case was reserved for collective 
 decision, it will, be found, that the authorities for that decision exactly met 
 the circumstances of the case in Jaffna, 1,302. It may be broadly laid 
 down, that a judgment in a criminal prosecution is inadmissible in a civil 
 action, to establish the truth of the facts, on which it was rendered, in con- 
 formity With the rule, which rejects judgments inter partes as evidence either 
 for or'against strangers, to prove the facts adjudicated. — Taylor, § 1505. 
 
 The following authorities are from the work of Archbold, quoted by the 
 Supreme Court : — 
 
105 
 
 25. Jaffna, 1,983. Set aside. December 8, 1846. 
 This case appears to fall under the 17th clause of the Rilles 
 
 and Orders of 21st October, 1844, for Courts of Requests, 
 which provides, that "if neither the defendant nor his substi- 
 tute appear on the day appointed for the appearance of the 
 parties, the said Court, upon the request of the plaintiff, and 
 being satisfied by the return of the Officer of the said Court 
 fendorsed upon the summons, that the same hath been duly 
 served, shall proceed to hear the plaintiff and his witnesses, 
 ond shall give judgment thereon; but the said judgment, if the 
 same shall be against the defendant, shall be interlocutory only, 
 and not final, until notice thereof, and a day for appearance 
 thereon, shall have been given to tte defendant." 
 
 The Supreme Court is of opinion, that the judgment of the 
 Court of Requests of Jaflna not being in accordance with t)ic 
 above provisions, should be set aside ; and the same is set aside 
 accordingly, and the case to proceed in due course. — Per Stark. 
 
 26. ItXatura. 333. Aefirmbd; December 22, 1846. 
 
 The Supreme Court is of opinion, that where there is a great 
 difference between the amoiint of the plaintifi'^s demand and the 
 ftmount decreed for, and where the latter proceeds on defen- 
 dant's own admission, the plaintiff ought to bear his own costs, 
 the defendant doing the like. — Per Stark. 
 
 A verdict against a defendant in a criminal case, 2 Sid. 326, or a con- 
 viction before a magistrate, 1 Camp. 9, whetlier founded on tlie sole testi- 
 mony of A., Id. 4 East, 572. 1 Taunt. 520, or on the testimony of A. and 
 Others, 1 Camp. 151, see Hardw. 311, but see Gilb. Ev. 30, is no evidence 
 for A. in any civil action in which he may afterwards be a party. But it 
 is good evidence bj- or against third persons ; and therefore, a conviction 
 before a justice of the peace having competent jurisdiction, upon which the 
 plaintiff was arrested and imprisoned, is, till reversed or quashed, conclusive 
 evidence in favour of the justice, in an action against him for false imprison- 
 ment. 7 T. R. 633, »(., and see 1. Brod. ^ Bing. 57. 432. A verdict of 
 acquittal, however, is unexceptional evidence for the party acquitted, and 
 is among the ordinary proofs in an action for malicious prosecution. See 
 2 Str. 1122, and see 2 Camp. 73 n. But an acquittal on an indictment for 
 bigamy, has been holden to be no evidence in a civil action, in which the 
 validity of the second marriage was controverted ; for it required much 
 stronger evidence to cOnvict the defendant on the indictment, than would 
 be necessary to establish the illegality of the second marriage in a civil 
 action. Gilb. Ev. 32. 
 
106 
 
 27. Jaffna, 2,001. Set aside. December 29, 1846. 
 
 Action for the recovery of an Almirah and its contents, or 
 their value. 
 
 On the day of trial, and before any evidence was adduced,- 
 the plaintiff was examined, on which the Commissioner imme- 
 diately pronounced the following judgment : — 
 
 " 4th December, 1846. Plaintiff hesitates and equivocates 
 so considerably, that there is no believing ^ single word he 
 says : case is therefore dismissed with costs." 
 
 On appeal, the Supreme Court reversed the decision, on the 
 ground that the manner in which the plaintiff underwent his 
 examination, was not of itself sufficient ground for dismissing 
 his action.* 
 
 This case was sent back to proceed to evidence and judg- 
 ment de navo. — Per Stark. 
 
 (22. Calpentyn, 2,507. p. 103.) 
 
 I have omitted to add a note to this cEise, that actions for libel or slander 
 eannot now be brought in Courts of Requests. — Ord. 22 of 1852, § 3. 
 
 " Petty complaints for defamation" are discouraged in District Courts j- 
 when proved they generally obtain only the costs of suit. 
 
 * I am indebted to " Murray's Cases " for the facts above stated, and 
 for the grounds of reversal in this case. 
 
107 
 
 DECISIONS 
 
 OF 
 
 THE SUPREME COURT 
 
 ON 
 
 REVIEWS FROM THE COURTS OE REQUESTS, 
 
 1847. 
 
 1. G-ampola, 73^ Affirmed, January 6, 1847, 
 
 In this case the plaintiff' and appellant obtained judgment in 
 the Court of Requests against the defendant, " for ^£3, and in- 
 terest thereon for 4 years, at 9 per cent, per annum, and costs of 
 suit"; arid on the 15th October, 1846, the plaintiff' moved "for 
 writ of execution to sell part of a garden situated at Kahatte- 
 pettiye, belonging to defendant, he not being possessed of other 
 moveable or immoveable property. 
 
 The Commissioner refused the motion, on grounds set ftirth 
 in his judgment : — 
 
 " On reference to the General Rules and Orders, it appears, 
 that process for execution of any judgment of the Court of 
 Requests must be by warrant under the hand of the Commis- 
 sioner, directed to the officer appointed to serve the process of 
 this Court, and him only ; but it does not appear by any Ordi- 
 nance or Rule of Court, how that officer is to complete the 
 sale of landed property, in giving the purchaser a valid transfer. 
 It does not appear whether he has a right vested in him to 
 sign the deed of transfer, and to make it a legal instrument. 
 Such being the case, the Court is of opinion, that it would not 
 be justified in allowing the plaintiff''s application. Had this 
 Court the power of calling in the Fiscal of the district, to 
 c»rry out the judgment of this Court, the difficulty would be 
 
108 
 
 immediately removed; as that oiEcer is directed, in a certain 
 Ordinance, how to make over the landed property he sells in 
 execution. Under these circumstances, the application of the 
 plaintiff is refused." 
 
 The plaintiff appealed, maintaining that the General Rules 
 and Orders for the Courts of Requests allows the sale of " pro- 
 perty '' by a " writ of execution against property." That the 
 word "property" includes landed as well as other property; 
 and that the officer of the Court can therefore sell and transfer 
 landed property by virtue of the " writ of execution against 
 property" issued to him. 
 
 The point raised was one of importance, more particularly 
 as the decision of the Commissioner was contrary to the prac- 
 tice which had uniformly prevailed since the establishment of 
 Courts of Requests. The case was therefore reserved for CoU 
 lective decision. 
 
 The Queen's Advocate,* on behalf of the Crown, supportecl 
 the appeal at mucfi length, and quoted numerous civil law, 
 Dutch, and other authorities, to shew that the word "goods " 
 was the literal translation of the word boiuf of the civil law, 
 which unquestionably included landed as well as other property, 
 both immoveable and moveable. 
 
 On the 6th January, 1847, the Court affirmed the judgment 
 of the Court of Requests : — 
 
 " The Court, after considering the further points submitted 
 to it in this case, by the Queen's Advocate, sees no sufficient 
 grounds to change its former opinion, that lands cannot be 
 taken and sold under writs of execution issued by the Courts 
 of Requests ; as the 6th clause of the Ordinance establishing 
 such Courts, directs, that their executions shall be 'by attach- 
 ment and sale of the goods and effects.' " 
 
 The Queen's Advocate's argvimept proceeds mainly on these 
 two grounds : — 
 
 1st, That as to what property may be takgn in execution, 
 the distinction in the English law between personal and landed 
 property, does not extend to the Colonies ; (see ^4 Geo. ii., c, 
 19. Woodcock's Col. Law ofW.l, p. 209) and that both move- 
 able and immoveable property had been always subject to be 
 sold under execution in Ceylon. — Marsh, Dig., |63. 
 
 *Mr. BuUer. 
 
109 
 
 2n(l, That " goods and effects " arc sufficiently comprehen- 
 sive to include all property, as the word " bona" includes both 
 moveable and immoveable property, by the Roman Dutch law. 
 As regards the first point, it appears from Surge's C. L. vol. 
 ii., p. 645, sec. ii., that the laws on this subject in the various 
 Colonies, are founded, generally, upon their respective local 
 Acts. In Ceylon, unquestionably, moveable and immoveable 
 property have been taken and sold under executions issued by 
 other Courts. By the old Charter of 1801, c. 36 and 38, exe- 
 cution and sequestration are to be issued against " land," &c., 
 by name ; and so they are also under the present Charter of 
 1833, (see Rules, sect. I., § 15 and 35, and the forms 13 and 
 19.) The writ of sequestration naming "houses, lands, goods, 
 monies, securities for money, and debts," and the writ of exe- 
 cution naming " houses, lands, goods, debts, and credits." 
 
 Under the old Fiscal RegTilation, No. 6 of 1834, and No. 13 
 of 1827, c. 14, execution is directed to be issued against "pro- 
 perty " generally ; and the 23rd and 27th clauses of the latter 
 Regulation contain specific directions as regards "lands and 
 goods ;" and in the present Fiscal Rules, " moveable and im- 
 moveable property " is mentioned as subject to execution : the 
 old Proclamation of the 23rd January, 1801, moreover, having 
 provided that there should be " one uniform practice and form 
 and course of procedure " in all the Courts. A similar practice 
 prevailed in executions by the old inferior Courts. It may be 
 here observed, indeed, that not only has land been considered 
 liable with moveable property, for the payment of all debts, but, 
 in practice, it has been resorted to equally with the moveable 
 property ; although this Court considers that, stricto jure, it 
 ought not to be taken and sold in the first instance, and only 
 undej- the special order of the Court, in default of moveable 
 ■property ; and that this observation more especially is applicable 
 to sales of lands for payments of debts by executors or admi- 
 nistrators, without express authority of the Court. 
 
 The main question, therefore, under execution by Courts of 
 Requests, is, whether they can be extended to land, under the 
 general law applicable to executions from other Courts in the 
 Colony, by which both moveable and immoveable property may 
 be taken and sold ; or whether this Court is not bound to adhere 
 (;p the directious respecting these petty executions contained 
 
no 
 
 in the 6tli clause of tlie Ordinance creating these new Courts ; 
 and as the Supreme Court considers that it must adhere to the 
 
 Ordinance, this brings the question to the second point, 
 
 Whether "goods and effects" can be construed to comprehend 
 land ? 
 
 2udly, Undoubtedly, by the Roman Dutch law, " sub generali 
 vel legali omnium honorem hypofheca vel donatione," moveable 
 and immoveable property would be included, ( Voet lib. 39, 
 tit. V. p. 10, lib. 39, digressio defendis, p. 95,) and the communio 
 bonorum, cessio bonorum, &c., might be referred to on this point ; 
 but if " goods " be used in the above Ordinance, in the general 
 sense of the Latin word '^bona," why add "and effects ?" 
 
 In the common use and acceptance of the word, "goods," are 
 generally understood in this Colony to mean moveable pro- 
 perty, and not " land ;" and they have been frequently used by 
 the Legislature in the restricted sense and common meaning. 
 From the Dutch authority also, shewn to the Court, from Lij- 
 Jr-ecAf, jO. 356, the Dutch word ^'gooderen" alone, would not, 
 under a donation thereof by will, include land or immoveable 
 property, " vaste gooderen :" and the rule is, that " no strained 
 construction '" should be placed upon a statute : it should be 
 construed like a will ; (Butler v. Baker's case, 3 Esp. 25,J and 
 '* words therein are generally to be understood in their usual 
 and most known signification ; not so much regarding the pro- 
 priety of grammar, (or their critical and literal interpretation, 
 per Abbot, C. J. 1 B. and C. 500), as their general and popular 
 use." (1 Black, C. p. 60.) It is also a rule of construction, 
 that " goods," and other general words, are restricted by the 
 context ; and " effects " are words " ejusdem generis." — 2 Will 
 Executors, 751. 
 
 The Court considers, that it need only refer to the several 
 provisions of the Charter, Rules of Court, and Kscal Regula- 
 tions, previously mentioned, respecting writs of execution and 
 sequestration in the other Coitrts, to shew that the prevailing 
 practice in the Colony has not sanctioned such an extended 
 meaning or use of the word " goods," in a legal sense, as con- 
 tended for by the Queen's Advocate ; but it may add, as further 
 instance, that in the Auctioneers' Regulation, No. 12 of 1825, 
 the 15th clause excepts therefrom " Fiscals or theu- Deputies 
 selling lands and goods in execution ;" and under the present 
 
testamentary jurisdiction, also by the Charter of 1833, which 
 is better defined and more general than under the former 
 Charter, being extended throughout the Island to all classes, 
 the words " estate" and " property" are used ; and the form of 
 oaths (3 and 10 of sec. 4) mentions expressly " property move- 
 able and immoveable," instead of " goods, chattels, credits, and 
 effects,'' as in the old form, under the 55th clause of the Char- 
 ter of 1801, wherein the Court was directed to proceed 
 according to the form of the Diocese of London. 
 
 The above construction of the words " execution by attach- 
 ment of goods and efiects," appears also, in the opinion of the 
 Supreme Court, to be more agreeable to the limited jurisdiction 
 given to Courts of Requests ; because a Court ought always to 
 be able to carry into efi'ect its own judgment; which could not 
 be done if the above words comprehended land, as on any 
 claim under such execution, their writ must be carried into 
 efiect through the intervention of the District Court.* — Per 
 Carr, Stark, and Temple. 
 
 2. Jaffna, 2,111. Set aside. Janvjxry 12, 1847. 
 
 In this case it is recorded, that on the day of appearance, 
 the parties and plaintiff's witnesses were present ; but it is saidj 
 that on the case being called over again for hearing, the de- 
 fendant is absent, although he was present when the case was 
 called on first ; and the defendant being at default, the Court 
 therefore proceeds to record an interlocutory judgment against 
 him, which was afterwards made final, — the defendant shewing, 
 it is said, no good and sufficient cause to the contrary. 
 
 This course of proceedings was wholly irregular ; for by the 
 7th section of the Rules and Orders for Courts of Requests, it 
 is required, that on the day for the appearance of parties, un- 
 less the summons shall have been withdrawn, the Commissioner 
 of the Court shall cause the parties to be called ; and if they or 
 their substitutes appear, the clerk shall record the same, and 
 the Court shall proceed to enquire of and determine the case, 
 in the manner therein set forth. There is no authority for the 
 
 * The Ordinance No. 4 of 1847 was passed in consequence of this de- 
 cision, and immoveable property may now be sold in satisfaction of writs 
 of execution from Courts of Requests. — See p. 58 of this work.. 1 take 
 the Report, as already published, from " Murray's Cases/' pp. 70 — 74. 
 
112 
 
 course of proceedings wliich was adopted in the present case ; 
 and supposing the defendant to have been absent on the day 
 appointed for the appearance of parties, still, by the 7th section 
 of the said Rules and Orders, evidence for the plaintiff should 
 have been heard before judgment against the defendant; 
 whereas here no evidence appears to have been taken. — Per 
 Stark. 
 
 3. Sentotte, 1,671. Set aside. January 19, 1847, 
 In this case, the plaintiff complains that the suit brought by 
 
 him in the Court of Requests has been improperly dismissed. 
 
 The Commissioner says, that on examination of the Court 
 records, he finds that plaintiff has twice already brought this, 
 or an identical action, — that he has twice been absent on the 
 day of trial, — and that the case has been already twice dis- 
 missed. Nothing here stated, however, affords a sufBcient 
 ground for the judgment given. 
 
 " Interest reipublicce id sitjinis liUum" is a good maxim ; it 
 flows out of the very nature of society ; for unless there is an 
 end to litigation, rights would for ever remain uncertain, and 
 no man would enjoy that security of person and property, 
 without some degree of which society could not subsist ; and it 
 may be added, in proportion to the enjoyment of which in any 
 society, civilization advances, or has opportunity to advance. 
 
 Accordingly, it is a rule of law, that a solemn judgment on 
 any matter standing " Pro teritate acCipiturf' But this effect 
 cannot attach to any judgment given without a hearing of the 
 case, which appears to be the predicament in which the subject 
 matter of the present suit is placed. If the judgment in the 
 previous cases were in respect of the absence of the plaintiff, 
 and so of the nature of non-suits without evidence taken in the 
 cause, they do not amount to res judicata, which is properly 
 defined a legal judgment on the same parties on the same 
 grounds on media concludendi after argument or confession.—^ 
 — Per Stark. 
 
 4. niatelle, 83,1 February 9, 1847.' 
 The proceedings in this case, as appearing from the Extract 
 
 Record, are not intelligible. This is an action for the price of 
 goods sold. The defence is " debt denied." No evidence was 
 
113 
 
 taken; and judgment went for the plaintiff in the following 
 remark: — " The defendant calls witnesses to prove payments 
 which are admitted, but has no witnesses to prove payments 
 which are denied." These statements require explanation. 
 
 It is ordered, that the proceedings taken in this case be sent 
 to this Court forthwith, together with any explanation the 
 Commissioner may have to offer.* — Per Stark. 
 
 5. Matura, 345. Set aside. February 20, 1847. 
 
 There is no proof here of any illegal or collusive possession 
 of the boats and nets by the second defendant, who purchased 
 them from the first defendant ; and in the absence of such proof, 
 the plaintiff must make his claim against the first defendant, 
 who is the party liable under the mortgage, or against the 
 mortgaged property. — Per Stark. 
 
 6. Calpentyn, 2,908. Set aside. February 20, 1847. 
 
 By the 7th clause of the Rules and Orders for Courts of 
 Requests, if the defendant is absent and the plaintiff present, 
 as here, the evidence for plaintiff should be heard. — Per Stark. 
 
 7. matura, 420. Affirmed. March 16, 1847. 
 
 By the 20th clause of the Ordinance No. 14 of 1840, "for 
 securing the due collection of the duties or tax upon paddy or 
 dry grain,'' and the conditions of Government, any prosecution 
 for the recovery of penalties (as double the value of tax) there- 
 under, are limited to within the period respectively therein 
 specified; but the 16th clause of the said Ordinance provides, 
 that nothing therein shall prevent the Government or renter 
 from instituting a civil action for the recovery of any tax due. 
 
 In regard, also, to the value of the tax in question, as the 
 defendant has generally pleaded payment of rent due, he has 
 admitted the plaintiff's valuation, and must prove that he has 
 paid all that was due ; and if the Government conditions shew 
 that the plaintiff's valuation was too high, defendant should 
 have called for their production. — Per Carr. 
 
 * This is one instance of many, occurring in the Minutes of the Supreme 
 Court, shewing the necessity for perspicuity in the Records. 
 
114 
 
 8. Galle, 1,322. Set aside. March 30, 1847. 
 Set aside for irregularity, — the judgment in this case having 
 
 proceeded under the Ordinance No. 2 of 1835, which gives 
 jurisdiction in the matter to the District Court.* — Per Carr. 
 
 9. Jaffiha, 2,412. Set asldb. March 30, 1847. 
 
 That the judgment of the 3rd March, 1847, should be set 
 aside, and the same is hereby set aside accordingly, and the 
 same is remanded back for further proceeding. No answer has 
 been recorded in the proper column ; and the plaintiff having 
 alone paid the money to the defendant, on his alleged false re- 
 presentation, she is entitled to sue alone for the recovery of it, 
 if it was her own money, although paid to settle a demand 
 against herself and children jointly .-^Per Carr. 
 
 10. Jaffisa, 2,437. March 30, 1847. 
 
 By the 21st clause of the Ordinance No, 7 of 1840, any pro- 
 inise or contract for charging any person with the debt or 
 miscarriage of another, must be in writing. Plaintiff must 
 re -institute his iirst action, in which the defendants have been 
 absolved from the instance, owing to his absence. — Per Carr. 
 
 11. Batticaloa, 75. Set aside. /Ipn7 13, 1847. 
 
 That the judgment of the Court of Requests of Batticaloa,. 
 of the 23rd day of January, 1847, should be set aside; and the 
 same is hereby set aside accordingly, and the case remanded 
 for the reception of evidence, as to whether the alteration in 
 the bond as to the time of payment was made prior to the exe- 
 cution of that instrument, and with defendant's knowledge. — ' 
 Per Temple. 
 
 12. Gaxnpola, 192. Eeview bejected. Aprill1,\M1. 
 The 17th clause of the Ordinance No. 10 of 1843 requires, 
 
 * The Ordinance No. 6 of 1849 transferred jurisdiction, in cases of cattle 
 trespass, to the PoHce Courts ; but the common law remedy for the damages' 
 caused by trespassing cattle, could always be sought in the Courts of Re- 
 quests, when the damages sought to be recovered do not exceed JEIO i» 
 value. 
 
115 
 
 that every instrument employed in the Court of Requests, and 
 specified in Schedule thereunto annexed, shall bear a certain 
 stamp ; and it also declares, that no such instrument, which 
 shall not have such stamp, shall be of any validity or effect. 
 " Petition of Review" is one of the instruments specified in that 
 Schedule ; and the petition of review lodged in this case, not 
 bearing the stamp required by that Ordinance, and, in fact, bear- 
 ing no stamp at all, must therefore be treated as a nullity ; and 
 the Court below ought not to have received it.* — Per Temple. 
 
 13. Galle, 1,140. Set aside. April 20, 1847. 
 That there is no ground to set aside or correct the judgment, 
 
 [Set aside with costs, on the 11th May.] 
 
 The question in this case is, whether certain land is subject 
 to the payment of one-half or onertenth of its produce, as tax 
 to Government ; and this case is, therefore, clearly beyond tlie 
 jurisdiction of the Court of Eequests.f — Per Temple. 
 
 [The above judgment was erroneously entered in the Record, 
 as if afiirmed, and the Registrar bringing it to the notice of the 
 Court, the Record was partly amended as follows, on the 11th 
 May.] 
 
 The proceedings of the Court of Requests of Galle, in this 
 case, having been considered in review, the Supreme Court is 
 of opinion, that the judgment of the said Court of Requests, of 
 the 1st day of March, 1847, should be set aside with costs ; and 
 the same is set aside with costs, accordingly, — Per Temple. 
 
 14. Jaffna, 2,503. Cokeeoted. April 27, 1847. 
 That the judgment of the Court of Requests of Jaffna, of 
 
 the 24th March, 1847, should be corrected; and the same is 
 corrected accordingly, by the defendant being only adjudged 
 to pay to the plaintiff, in addition to the sum of two pounds, 
 awarded by the said judgment, one shilling per diem from the 
 25th January to the 23rd day of February, 1847, inclusively. 
 
 * The 17th clause was repealed by the Ordioance No. 2 of 1848, which 
 again was repealed by the Ordinance No. 19 of 1852. 
 
 t At the time this case was decided in review, the Ordinance No. 10 of 
 184,3 was in force, which made cases in which future rights or inimoveabie 
 property might be bound, exceptions to the jurisdiction of the Courts of 
 Requests. 
 
116 
 
 In this case, the defendant, for valuable consideration, en- 
 tered into a written agreement with the plaintiff, to do certain 
 work for her, and to complete the same within one month from 
 the date of the said agreement, which is dated the 24th of De- 
 cember, 1846 ; and it was by that agreement stipulated, that 
 in case the defendant should fail to complete the said work 
 within the said period of one month, he should forfeit to the 
 plaintiff one shilling per diem for every day exceeding the pre- 
 scribed time. The defendant made default ; and nearly a month 
 after the time had expired, namely, on the 23rd day of Feb- 
 ruary last, the plaintiff brought her suit to recover back two 
 pounds, which she had advanced to the defendant under the 
 agreement, and the stipulated damages ; and the Court below 
 adjudged the defendant to repay the money advanced, — and so 
 far it was right ; but the Court went too far, in ordering one 
 shilling per diem to be paid until payment of the two pounds. 
 The one shilling per diem stipulated in the agreement, is not irj 
 the nature of interest, but liquidated damage, and can only be 
 recovered up to the day the suit was brought. — Per Temple. 
 
 15, Jalfna, 2,109. Sjit aside. April 21 , \8^7 . 
 
 Set aside, and the case remanded to the Court below, to be 
 proceeded with in due course. 
 
 The facts stated in this case are ; — 
 
 That the defendants obtained a decree, in the case No. 5164 
 in the District Court of Wallegame, against the present plain- 
 tiffs, and one Ayen Wayreven and his wife Poody ; and under 
 that decree, the defendants sued out a writ of execution against 
 the plaintiff's property, for the costs of that suit, which amounted 
 to £5. 18*. 5d. That the plaintiffs thereupon paid that amount, 
 and brought a suit to recover from Ayen Wayreven and his 
 wife, by way of contribution, their moiety of those costs due 
 by them , but that suit was dismissed, upon their producing a 
 receipt from the defendant for the costs due by them. The 
 present suit was therefore brought by the plaintiffs, to recover 
 back from the defendants the sum of £% 19«. 2^d., the moiety 
 of costs paid them by the plaintiffs on account of Ayen Way- 
 reven and his wife ; and the Court below dismissed it, under 
 the 11th clause pf the Court of Requests Ordinance, as being 
 a suit for the recovery of the disputed balance of an unsettled 
 
liY 
 
 account, originally above ten pounds sterling. This case does 
 not come within the 1 1th clause of the Ordinance :* it is a suit, 
 not to recover a disputed balance of an unsettled account, but 
 to recover back money paid over and above what is admitted 
 to have been due; or, in other words, to recover "money had 
 and received," and which the defendants cannot be allowed to 
 retain. — Per Temple. 
 
 16. Jaffna, 2,110. Set aside. May 4, 1847. 
 It does not appear from the case referred to, nor from the 
 
 plaintiff's statement, that the present plaint is for the same 
 cause of action as the case No. 6,777. This case should there- 
 fore be proceeded with, and particularly to ascertain from the 
 plaintiff, whether the cause of action is the same. — Per Temple. 
 
 17. GaUe, 1,284. Kevtew bejected. ilfa^ II, 1847. 
 That the petition of review lodged in this case should be 
 
 rejected, and the same is rejected accordingly. 
 
 The petition of review not only does not set forth, as re- 
 quired by the 21st clause of the General Rules and Orders for 
 Courts of Requests, the particular facts or grounds upon which 
 review of the proceedings of the Court below in this case is 
 sought,! but it is also perfectly unintelligible. — Per Temple. 
 
 18. BaduUa, 210. Set aside. May 18, 1847. 
 The claim was for £3. 3s. 9d., balance of wages. The defen- 
 dant produced a written agreement, and (from the judgment 
 of the Supreme Court) the rate appears to have been £1. 17s. 6d. 
 a month. The defendant admitted the engagement of the 
 plaintiff for 5 months commencing from the 11th November, 
 1846. The defendants alleged that the plaintiff ceased to work 
 on the contract on the 16th December; and the plaintiff alleged, 
 that he had worked thereon up to the 24th of that month. It 
 appears that plaintiff was dismissed after working in November 
 and December. He was subsequently re-engaged by the de- 
 fendant and worked 12 days in February at Is. per day. The 
 Commissioner gave judgment for £3. 13s. 6d. and costs 6s. ; 
 
 * This clause was repealed by the Ordinance No. 22 of 1852. 
 t In failure of setting forth the grounds of appeal, an appellant is liable 
 to be disallowed his costs.— Orrf. 22 of 1852, § 10. 
 
118 
 
 evidently calculating for 2J months, at £1. 17s. 6d., and deduct- 
 ing the £1, acknowledged by the plaintiff, to have been received 
 at the commencement of the contract. 
 
 In review, the judgment was set aside, and plaintiff non., 
 suited, the Supreme Court making the following comments : 
 
 The plaintiff sues for wages due to him for two and a half 
 months, at the rate of £1. I7s. 6d. a month. From the ex- 
 amination of plaintiff, it appears, that when he returned to 
 defendant's service in February 1847, he having left it in De- 
 cember 1846, he was paid at the rate of Is. a day; and that he 
 had received 12*. for the days he had worked in February. If 
 this be correct, plaintiff can only claim the wages due of No- 
 vember and December, deducting the £1 which plaintiff admits 
 to have received. This will not amount to the sum for which 
 plaintiff has had judgment. — Per Temple. 
 
 19. Caltwra, 957. Set aside. May 22, 1847. 
 Set aside with costs ; but with liberty to the plaintiff to in- 
 stitute such other proceeding as he may be advised. 
 
 The plaint in this case is to recover £3. Ss., being balance 
 said to have been found in March, 1846, to be due to him upon 
 a settlement of accounts with the defendant, for the value of 
 arrack, which had fallen to the plaintiff^s share as toddy drawer 
 employed by the defendant. Oply one witness has been pro^ 
 duced by the plaintiff; but the evidence of that witness only 
 proves an admission by the defendant to him, in an accidental 
 conversation, of a sum of £3. 13*. 6d. being due from him to 
 the plaintiff, on account of an arrack transaction ; and there is 
 no evidence of an examination of accounts between the parties, 
 or of the plaintiff having been employed as toddy drawer by 
 the defendant. The evidence is also, in other respects, insuf- 
 ficient to support the plaint. 
 
 The former case, No. 878, was only a non-suit, and was 
 therefore no bar to the present suit. — Per Temple. 
 
 20. Jaffna, 2,7*4. Cobrected. June 22, 1847. 
 That the judgment of the Court of Requests of the 4th day 
 
 of June, 1 847, should be corrected ; and the same is corrected 
 accordingly, by being set aside, and the case being remanded 
 back for re-hearing de novo on the evidence. 
 
119 
 
 Although the parties have rendered themselves liable to 
 punishment, for infringing the clause of the old Regulation 
 cited, the plaintifi' had not forfeited thereunder his civil right 
 to recover back the articles pawned ; because the old Regula- 
 tion does not contain any provision declaring the articles 
 pawned contrary to it shall not be recoverable, as is expressly 
 enacted in the 25th clause of the new Police Ordinance, No. 
 17 of 1844.*— Per Carr. 
 
 21. Galle, 1,370. Set aside. June 29, 1847. 
 
 Set aside, and remanded for hearing de novo on evidence. 
 The plaintiff is to again point out his first witness to a process 
 server ; and his second witness is to be brought up for disobeying 
 the summons served, on him. 
 
 If the Court had sufficient ground to believe that the plain- 
 tiff was trifling with it, it might dismiss the plaint; but here, 
 one witness has actually been served with, and disobeyed the 
 process of the Court ; and the fact of the other not having been 
 pointed out is alone disputed. — Per Carr. 
 
 22. rXanaar, 615. Affirmed. July 6, 1847. 
 
 The plea is a good bar to the plaintiff's claim upon the un- 
 stamped receipt ; but as the plaintiff has been allowed to adduce 
 
 * By the Police Ordinance in force, No. 17 of 1844, a person was not 
 entitled to recover back articles pawned illegally according to that Ordi- 
 nance ; but before that Ordinance came into efiect, Regulation No. 6 of 
 1813 had force in Jaffnapatam and Point de Galle. By the 16th and 17tli 
 clauses of that Regulation, no person was to receive articles in pawn, with- 
 out shewing the same to the Constable or Police Vidahn : any informer 
 against a person receiving articles in pawn, without informing the proper' 
 officer, was to have five per cent. " on the amount of the said property." 
 Whether this per centage was to be levied on the property, or paid by the 
 Police, was not mentioned. By the new Ordinance, section 25, a person 
 illegally pa\Vning his goods, (that is, without an instrument duly executed, 
 or without the presence of the principal Police Officer of the division, who 
 is also to make a written memorandum of tile transaction,) forfeits all right 
 to recover back tlie pawned articles. The 4th section also expressly re- 
 peals the old Regulation No. 6 of 1813, excepting " offences committed, 
 penalties incurred, or arrears due," under the latter, at the time of its repeal. 
 By the Colombo Police Ordinance, No. 3 of 1834, also repealed by No. 17 
 of 1844, articles illegally pawned were not recoverable back. In this re- 
 spect, of course, the law is the same as before in Colombo, 
 
120 
 
 also parol evidence, which proves the payment of the £2. lent 
 to the defendant, independent of the receipt or promissory 
 note, (which cannot be adduced in evidence), and a Court of 
 Requests is to decide according to equity and good conscience," 
 this Court will not now absolve the defendant from the instance 
 iii this suit ; when it would merely put the plaintiff to the cost 
 of re-instituting his plaint in another form, upon the same 
 parol evidence, without any real benefit to the defendant. — 
 Per Carr. 
 
 23. Jaffna, 2,607. Set aside. July 13, 1847. 
 Set aside, and remanded back to hear the evidence and give 
 
 evidence de novo. 
 
 The Commissioner may possibly have well founded suspicions 
 as to the truth of the plaintiff's demand, but he cannot prejudge 
 the case thereon, without recording the examination of parties, 
 or taking any evidence. — Per Carr. 
 
 24. Jaffna, 2,018. Set aside. Jvly 13, 1847. 
 Set aside, and remanded back for hearing and to give judg- 
 ment de novo. 
 
 The Court cannot give judgment on the plaint and defence, 
 as they appear in the Record Book, — for they require proof; 
 and if the examination of the parties supplied that proof, they 
 ought to have been taken down in writing like other evidence, 
 pursuant to the 15 th section of the General Rules. — Per Carr. 
 
 25. Jaffna, 2,817. Cobbect£D. July 20, 1847. 
 Judgment corrected, by the plaintiff's claim against the first 
 
 defendant being dismissed with costs, as the plaintiff admits 
 that the money was paid by the first defendant Over to the 
 second defendant, at plaintiff's desire ; and therefore the first 
 defendant is no longer liable for the amount ; but the plaintiff 
 must recover it against the second defendant alone. 
 
 As to the defence of the second defendant in the petition of 
 review, that the money had been lent at plaintiff's desire to 
 another, at interest, on a bond, — not only was there no proof 
 
 * These Courts decided according to equity and good conscience under 
 Ord. 10 of 1843. A party is now entitled to appeal for any error in law.—' 
 Urd.no/ie52, ^10. 
 
121 
 
 thereof at the trial, but it was at variance with his own answer, 
 " that he has paid the amount to the plaintiff, but has no ac- 
 knowledgment or receipt." — Per Carr. 
 
 26. Batticaloa, 803. Moditied. August ^^, \M7 . 
 
 Judgment modified, by the plaintiff being non-suited, and 
 left to bring a fresh action, if he has satisfactory evidence, that 
 the Court can rely on, to prove the admission of the debt by 
 defendant. 
 
 Where parties institute actions upon accounts, without 
 having taken the ordinary precaution to get their debtors to 
 give receipts, or to sign accounts, and are unable to prove the 
 delivery of goods, the Court will not allow them to recover 
 upon parol proof alone of the admission of the debt due on 
 that account, unless it be supported by witnesses giving the 
 most clear and unexceptionable evidence. — Per Carr. 
 
 27. Galle, 1,541< S^t aside. August 2i, IMI , 
 
 Set aside, and the case remanded back to hear evidence of 
 the parties, and to give judgment de novo. 
 
 The defendants are not quite consistent as to the terms of 
 sale ; but the plaintiff's case cannot be dismissed oil his present 
 admission. The real question in dispute appears to be, whether 
 the plaintiff paid for the doors at the auction; because, if he 
 did so, and left the goods, although, if they were lost, he might 
 suffer for it, as they remained at the plaintiff's risk, and the 
 defendants were not liable for their loss, — -yet that would not 
 justify the defendants in converting them to their own use, 
 and refusing to deliver the doors, or to repay the price given 
 for them to the plaintiff. — Per Carr. 
 
 28. Jaffna, 2,690. Set aside. AvgustZl^ 1817. 
 Set aside, and the case remanded for the defendant's plea, 
 
 and hearing de novo. 
 
 The demand cannot be considered as being the " disputed 
 balance of an unsettled account :" it is on a writing obligatory 
 to secure the payment of an admitted balance, or debt due on 
 an account stated; accordingly, the Court will not enter into 
 evidence of the former accounts, to ascertain the balance due 
 thereon, but give judgment for the plaintiff on proof only of 
 
122 
 
 ttis instrument, and dismiss the claim in failure of such proof. 
 ■'—Per Carr. 
 
 29. Matura, 1,587. ArniiMED. August 31, 1847. 
 The defendant having pleaded payment, the plaintiff was 
 
 not called upon to adduce evidence of his demand ; but it was 
 incumbent on the defendant to shew that he had paid the cul- 
 tivating share. — Per Carr. 
 
 30. Jaffna, Z,636. Set aside. November 2, 184?. 
 The order in question is a mere cheque direction, without 
 
 stamp or endorsement, and partakes more of the nature of a 
 guarantee than an immediate ground of debt against the de- 
 fendant directly.* — Per Stark. 
 
 Notes to Decisions of 1847. 
 6. Matura, 3i5. February 20, 184i7, — See p. 113. In this case, plain.' 
 tiff complained that defendant possessed himself of one-eighth of five nets 
 and boats, held in mortgage by plaintiff, on a bond dated 3rd October, 
 1833, of the value of £1. Ws. Plaintiff prayed for the nets and boats, or 
 payment of the amount advanced on the mortgage, with the surmounted 
 interest. Defendant admitted having purchased from the first defendant 
 in case No. 3206, one-fourth of the boats and nets in question, on two bills 
 of sale, the first dated 3rd May, 1834, the second 8th June, 183S. Judg- 
 ment for plaintiff; — Defendant to return the boats and nets or pay £1. 10s., 
 with equal sum for surmounted interest and costs, as it was proved that 
 the mortgage was prior to the sale to the defendant. The case 3206 was 
 not produced in evidence or forwarded to the Supreme Court. 
 
 22. Manaar, 615. July, 6, 1847.— See p. 119. Plaintiff, in his plaint 
 dated 5th June, claimed £2, principal, due on a Receipt dated 12th August 
 last made for payment thereof on the 16th September last. Defendant 
 denied, and pleaded No. 6 of 1836, § 7. Judgment for £2, and costs 6s. &i. 
 The defendant petitioned, that the Respondent filed " a scrap of paper," 
 purporting to be a receipt for £2. That the defendant had moved to 
 dismiss the case on his plea; but the Court had allowedrespondenttocall 
 a witness allowing no cross-examination regarding the character of the 
 witness who is alleged to have been sentenced to hard labour and corporal 
 punishment, &c. That the law allowed judgment on the evidence of one 
 creditable witness ; but the Court had disallowed the appellant from calling 
 evidence regarding the character of the witness. 
 
 * I am not in a position to give the case more fully ; its importance dc 
 jiends on the nature of the order spoken of 
 
123 
 
 DECISIONS 
 
 OF 
 
 THE SUPEEME COUET 
 
 ON 
 
 REVIEWS FROM THE COURTS OF REQUESTS. 
 
 1848. 
 
 1. nXatura, 1,71S, Set aside. January 18, 1848, 
 The action being for the balance of an account of Six pounds 
 
 sterling, ought to have been brought in the District Court, and 
 the writings being denied, ought to have been duly proved, and 
 sufficient evidence of debt adduced ; but the objection being 
 only taken in appeal, each party must bear his own costs.* — 
 Per Carr. 
 
 2. Hambantotte, 385, Amended. Janmry 18, 1848. 
 
 Amended as to costs by the Plaintiff being decreed to pay 
 only ordinary costs. 
 
 " The 7th clause of the Ordinance No. 10 of 1843 allows 
 the Court of Requests to punish parties for any false statements 
 in the like manner as for contempt, but it has no power to 
 award double co3ts."t — Per Carr. 
 
 * Respecting the balance of an account originally not falling within the 
 ad valorem jurisdiction of a Court of Requests, it must be remarked, that 
 the 11th section of Ordinance No. 13 of 1843 stands repealed, and no simi- 
 lar provision is made by the Ordinance No. 2£ of 1852. 
 
 t Persons claiming property seized in execution, where such claims prove 
 groundless, are liable to a penalty not exceeding treble costs, under Ordi- 
 nance No. 1 of 1839, 5 16. This is an enactment directly authorizing 
 District Courts to award such a penalty ; but no similar enactment exists 
 under which the Commissioner could have awarded double costs. — See 
 Maiura 366, July 21, 1846. There is an enaetmeat, authorising District 
 
124 
 
 3. Jaffna, 3,450. Affirmed. . Janvary 18, 1848. 
 The sale of the bullock is alleged to have taken place in 
 
 January, 1844, and the action was commenced on 26th Novem- 
 ber, 1847 ; the claim appears, therefore, to be prescribed under 
 the Ordinance No. 8 of 1834. — Per Carr. 
 
 4. IMCatura, 678. Set aside. February 8, 1848. 
 
 ' Set aside for irregularity in the proceedings, each party 
 bearing his own costs. It appears the plaintiff's claim is for 
 £S. 17s. 6d. Of this sum, it appears from the examination of 
 the plaintiff himself, that he is unable to prove the giving to 
 defendant of 10s. 9d. This, therefore, reduces the claim to 
 ^3. 7s. Sd. This amount, as appears from the judgment of the 
 Court (though I can find no admission of the defendant to such 
 effect) the defendant admits to be due, minus £2. of it, which (as 
 appears from the Record) he contends has been paid ; but he 
 has given no evidence of such payment, which is necessary, in 
 order that defendant may avail himself of the benefit of his 
 assertion. The defendant has not been examined, which he 
 should have been, in order clearly to shew the ground on which 
 his claim is founded. The Civil cases, Nos. 1Q,963 and 13,233 
 are referred to by the Commissioner qf the Court of Requests, 
 but in order that they may be evidence before the Court, it 
 will be necessary for the Secretary of the District Court to be 
 called to produce them. — Per Temple. 
 
 5. Caltura, 1,465. Set aside. February 22, 1848. 
 
 The question to title to land has been raised in this case, 
 which, unde;' the 5th clause of the Ordinance No. 10 of 1843, is 
 taken out of the jurisdiction of the Court of Requests. — Per 
 Temple.* 
 
 6. Blatura, 1,189. Set aside. February 22, 1848, 
 The Supreme Court is of opinion, that the case should be 
 
 Courts to award double costs, in cases where the action might have been 
 brought in a Court of Requests, under Ordinance No. 10 of 1843.— riSee 
 Ord. No. 12 of 1843, § 5. 
 
 * A case would, under the existing law, be taken out of the jurisdiction 
 of the Court of Requests where the title is raised to land above £10 in 
 value— Sec Ord. 22 of 1852. 
 
dismissed, and the same is dismissed accordingly, with liberty 
 to commence a fresh suit. Each party is to bear his own costs. 
 On reading the evidence in case No. 629, the Supreme 
 Court considers that the judgment in this case should only 
 operate as an absolution from the instance, and that a fresh 
 suit might be commenced. 
 
 The present suit must be dismissed, because the interlocu- 
 tory Judgment is wrong, it being founded only upon the bare 
 statement of the plaintiff, none of his witnesses having been 
 examined. — Per Temple. 
 
 7. ZtZatura, 1,885. Set asisd. March 7, 1848. 
 
 Set aside, and the case remanded to receive evidence. 
 
 Evidence should be received of the conditions of sale, be- 
 cause if they were made known to the plaintiff, and were such 
 as are stated in the Petition of Review, he has forfeited his 
 deposit, if he did not pay the remainder of the purchase money 
 within the time specified, and on the tender of the title deed. 
 
 The 6th defendant should be permitted to give evidence 
 that he has handed over the deposit money to the other defend- 
 ant, because in that case, they should be liable, and not the 
 present defendant and appellant. — Per Temple. 
 
 8. Galle, 1,857. Affirmed, etc. March 18, 1848. 
 
 Affirmed ; but set aside respecting defendant's personal ex- 
 penses. 
 
 It has never been the practice for the defendant to be allowed 
 such expenses, and the Table of Fees makes no provision for 
 such allowance. — Per Temple. 
 
 9. Trincomalie, 1,718. Set aside. April 18, 1848, 
 
 The case to proceed to hearing of evidence and judgment 
 given de novo. The defendant might not have had sufficient 
 time to enable him to attend and answer, and no witnesses were 
 examined, or evidence taken on the part of the plaintiff to shew ■ 
 that the debt claimed was due. — Per Stark. 
 
 10. Jaffna, 3,803. Set aside. April 26, 1848. 
 
 This is a suit between the plaintiffs and defendants, and 
 judgment must be given thereon, whereas the judgment as it 
 
126 
 
 stands does not ascertain whether the defendants are, or are 
 not liable to the debt claimed in the plaint. — Per Stark. 
 
 Jl. Jaffna, 3,^98, Set aside. 4pni 26, 1848. 
 
 The plaintiflF in this case, sues for the recovery of certain 
 brass articles, alleged to have been given by him to the defen- 
 dant in pledge for One pound, five shillings and six pence, 
 money lent, but whereof he has paid seven shillings and six 
 pence, leaving a balance of eighteen shillings due by him, in 
 respect of the articles so pledged ; and the Court of Requests 
 has adjudged certain brass articles which were in the posses- 
 sion of a third person, but claimed by the plaintiff as the 
 articles in question, to be delivered to the plaintiff, and the de- 
 fendant to pay costs. But there is no evidence of the loan in 
 pledge, or of the value of the articles so pledged, and no notice 
 has been taken by the Court below in its judgment of the 
 admitted balance of eighteen shillings due by the plaintifi to 
 the defendant. — Per Stark. 
 
 12. 6alle, 1,981. Set aside, May 9, 1848. 
 
 The former judgment being only in the nature of absolu- 
 tion from the instance, by reason of the-plaintiff 's default, there 
 is nothing to prevent the plaintiff suing again by the present 
 plaint. The Court should therefore proceed with the present 
 case, as if no such previous suit had been brought. — Per Stark. 
 
 13. Bentotte, 2,136, and the connected cases, 
 
 1,301 and 2,036. Set aside. May 9, 1848. 
 
 There is not sufficient evidence before the Court to enable 
 it to judge whether this cage is out of the jurisdiction of the 
 Court of Requests. Further evidence of the facts should 
 therefore be had, and if the sum now sued for, is the only re- 
 maining sum due, then, notwithstanding that it is the balance 
 of a former account, (now settled) it would seem the present 
 suit would lie. But the Commissioner will consider this and 
 give judgment de novo.* — Per Stark. 
 
 * The enactment respecting the balance of an unsettled account origU 
 "pally exceeding Five Poimds, is not in force. 
 
127 
 
 14. ItZatura, 2,074. Set Aside. May 23, 1848'. 
 
 Set aside, except to the extent of is. id. and costs, which 
 the defendant was adjudged to pay to the plaintiff. 
 
 The evidence shews obstruction on the part of the defen- 
 dant, on the 3rd January only, which was also previous to the 
 time when, according to the defendant's own account, the rent 
 of the year was not exigible. — Per Stark. 
 
 15. Jaffna, 4,073. Set aside. Jum 20, 1848. 
 
 A suit to recover property can be mauit^ined against the 
 parties in possession of the same. — Per Temple. 
 
 16. Jaffna, 4,118, Set aside. June 20, 1848. 
 
 If the statement of the appellant be true, that the amount 
 for stamps was paid by the client, there is no reason why the 
 plaintiff cannot recover the money due to her late husband for 
 his professional service in defendant's behalf. — Per Temple. 
 
 17. X,andy, 3,124. Afeibiued. September 9, 1848. 
 
 The plaintiff's claim is for three pounds sterling for the 
 plaintiff's fees for making out eight bills of costs. The Court 
 can recognize no such fees, and the plaintiff in the evidence 
 can recover only a fair remuneration for his work, and ten 
 shillings is sufficient, — Per Carr. 
 
 18. ItZatura, 2,246. Affirmed. September 9, 1848. 
 
 The plaintiff must institute his action in the District Court, 
 because the rights in future of the plaintiff's office of Head- 
 Moorman being in issue, the Court of Requests has no juris-" 
 diction in the case.* — Per Carr. 
 
 19. Jaffna, 4,292. ArnBMED. October 19, 1848. 
 It is not necessary to consider whether or not the title to 
 
 land is in question, so as to oust the jurisdiction of the Court 
 of Requests. It appears that (the) plaintiff is in actual pos- 
 
 * The enactment respecting rights in future stands repealed. 
 Compare the two Ordinances, No. 10 of 1843, and No. 22 of 1852. 
 A similar case was brought in the Court of Requests of Colombo which 
 caused some excitement at the time. 
 
128 
 
 session of the land in wLicli the trees stood, which the Supreme 
 Court considers sufficient to enable him to maintain this action. 
 — Per Temple. 
 
 20. JaflEna, 4,404. Affirmed. OcioJer 11, 1848. 
 
 On the day of hearing, a substitute appeared for the de- 
 fendant, and admitted the debt, but pleaded payment of the 
 whole amount. No witnesses were however called to substan- 
 tiate this plea, and judgment was given for the plaintiiF. The 
 defendant now appeals, and asks to have the case re-opened, in 
 order to produce witnesses. This is not in the power of the 
 Supreme Court to allow under the 23rd claiise of the Ordi- 
 nance No. 10 of 1843. The Supreme Court is not a Court of 
 General Appeal from the Court of Bequests,- but is only able 
 to review cases on the grounds set forth in that clause of the 
 Ordinance. The widow is liable to answer the demands against 
 her husband's estate, she having, as it would appear, entered 
 into possession of his property.* — Per Temple. 
 
 21. Trlncomalie, 1,966. Affirmed. October 19, 1848. 
 If the plaintiffs had stated before the trial commenced, that 
 
 one of their witnesses was absent, and it appeared from the 
 return of the Fiscal that he could not be found, the hearing of 
 the case should have been postponed. But the plaintiffs allow- 
 ed the case to be called on without opposition, (as appears from 
 the Record,) and called one witness, who is clearly not worthy 
 of credit, and they, then stated, that their other witnesses could 
 not be found. Under these circumstances, the plaintiffs were' 
 properly non-suited. — Per Temple. 
 
 22. Avisliaxirelle, 497. Affirmed. November 21,^^. 
 There is no ground to set aside or correct the judgment, 
 
 except as to the amount of Five pounds awarded by the said 
 Court of Requests to the plaintiff as damages, which said 
 damages are hereby reduced to Three pounds. The only evi- 
 dence of the value of the pony, is that of the second witness 
 for the plaintiff, who states that three pounds was agreed upon 
 between the parties. — Per Temple. 
 
 * Respecting the clause of the Ordinance referred lo, tfie law as laid 
 down in a part of this decision is altered by Ord. No. 22 of 1862. 
 
129 
 
 DECISIOIfS 
 
 OP 
 
 THE SUPREME COURT 
 
 ON 
 
 REVIEWS EROM THE COURTS OP REQUESTS. 
 
 1849. 
 
 1. G-alle, 2,342. Affirmed. January 30, 1849. 
 
 There is no ground to set aside or correct the judgment, 
 there being no evidence in support of the plaintiff's claim, to 
 warrant any judgment against the defendant, as required by 
 the Rules and Orders, § 17.* — Per Stark. 
 
 2. niatura, 2,603^ Set aside. March 17, 1849. 
 
 This case was dismissed with costs, without any plea plead- 
 ed by the defendant, or any evidence taken, on the following 
 grounds, as stated by the acting Commissioner. " It appears 
 that this case should have been instituted ' in the Court of 
 Requests of Karidy, as the cause of action originated in that 
 jurisdiction." But by the Ordinance for the establishment of 
 Courts of Requests, No. 10 of 1843, section 5, it is expressly 
 enacted—" That the said Courts of Requests shall be Courts 
 of Record and shall hear and determine in a summary way, 
 and according to equity and good conscience, all actions, plaints, 
 
 * If neither the defendant nor his substitute appear on the return day, 
 the Court being satisfied with the due service endorsed upon the summons, 
 may at the request of the plaintiff, hear evidence exparte, and if a case is 
 made oat against defendaivt, enter an interlocutory judgment. — Ruks and 
 Orders, § 17. The following cases were also decided in 1849, in review, 
 under the 17th clause of the Rules and Orders.— Ga«e, 2,809, and Gam- 
 pola, 3,174. 
 
 S 
 
130 
 
 Stsi suits for the payment and recovery of any debts, demands,- 
 damages, or matter not exceeding Five Pounds in value, except 
 the matter in question shall relate to the title of any lands or 
 tenements, or to anything whereby rights in future may be 
 bound, provided that the party or parties defendant shall be' 
 resident within the jurisdiction of such Court, or that the act, 
 matter, or thing in respect of which any such action, plaint, or 
 suit shall be brought, shall have been done or performed with- 
 in such jurisdiction."* — Per Stark. 
 
 3. Salle, 1,812. Set aside. April 21, 1849. 
 The Supreme Court considers ihat the judgment for plain- 
 tiff is irregular on two grounds. 
 
 1st. That he adduced no evidence to entitle him to judg- 
 ment in his favor. 
 
 2nd. The claim, as far as it can be ascertained from the' 
 proceeding is one, the settlement of which wOl bind future 
 rights, and consequently under the 5th clause of the Ordinance 
 No. 10 of 1843, is not cognizable in a Court of Kequests.f — 
 Per Temple. 
 
 4. Bentotte, 2,513. Ssr aside. Fehruary 21, 1849. 
 
 The case was remanded for further evidence. It was or' 
 dered that " the defendant's plea of payment be amended*, by 
 stating the time and place of payment." — Per Temple. 
 
 5. Jaffna, 4,927. Set ^side. April 21, 1849. 
 
 Defendant absolved from the instance. The only evidence 
 in this case, is that of the plaintiff and defendant, which is upon 
 oath, and upon which judgment has been given for the plain- 
 tiff. By the 4th clause- of the Ordinance No. 3 of 1846, the 
 evidence to a party to a civil suit may be taken on oath under 
 either of the following circumstances. 
 
 1st. Upon the application of any party to a suit in further 
 proof of any material fact, provided the evidence already ad- 
 duced shall amount to the semi-plena probatio of the civil law. 
 
 "' The changes introduced by Ord. 22 of 1862, should be considered, 
 t The 5th clause of Ordinance No. 10 of 1843 stands repealed. There' 
 is no special re-enactment respecting rights in fiiture. 
 
131 
 
 Snd. Where any party to the suit is willing to defer the 
 whole matter in dispute to the oath of the adversary. 
 
 3rd. Where the Judge considers it would be conducive ts 
 the ends of justice to examine on oath or affirmation, any or 
 all of the parties to a suit, which statement or statements shall 
 he received and weighed by the Court, as any other evidence 
 in the cause. 
 
 Now this last paragraph, under which the Supreme Court 
 presumes the Commissioner examined the parties, and upon 
 their sole evidence decided the case, contemplates the existence 
 of other evidence, without which the evidence of a party can- 
 not be received, it being only admissible as assistant to other 
 .evidence. 
 
 The Supreme Court further remarks how dangerous it would 
 be in this country for a party to recover j udgment upon his own 
 assertion, (though on oath,) entirely unsupported by any further 
 evidence.* — Per Temple. 
 
 6. nZatura, 2,746. Set aside. May 1, 1849. 
 
 The case remanded to be proceeded with. 
 
 The Supreme Court considers that the plaintiff cannot have 
 judgment upon part of defendant's admission, coupled as it is 
 with the plea, that the plaintiff owes him a larger amount than 
 that claim. 
 
 This larger amount pleaded by defendant, being above the 
 jurisdiction of the Court of Requests, cannot be recovered by 
 
 * The 4th clause of Ordhiance 3 of 1316 was repealed by the 2d clause 
 of Ordinance 9 of 1862. By the 3rd clause of that Ordinance, the parties 
 to a suit and the persons in whose behalf a suit is maintained, are not only 
 competent but compellable to give evidence. The exceptions are as follow : 
 
 1st. A person charged with a criminal offence is not competent or com- 
 pellable to give evidence ; and no person is compellable to answer a 
 question tending to criminate him, 
 
 Snd. The rule does not apply to any legal proceeding instituted in con- 
 sequence of adultery or malicious desertion, or to any action for separation 
 a mensa et thoro, or to any action for breach of promise of marriage. 
 
 3rd. The Queen's Advocate is not compellable to give evidence in any 
 case instituted or defended by him in his official capacity. 
 
 This local law should be considered in connection with the present law 
 of evidence, and the provisions in 14 and 16 Vic. c. 99 as amended by 16 
 and 17 Vic. c. SS.— Seep. 38 and39, in the first part of this work. Taijkr, 
 § 1,219, and note. 
 
132 
 
 him, under a claim of reconvention, nor indeed any portion of 
 it. But evidence of its existence may be received to rebut 
 the claim of the plaintiff. — Per Temple. 
 
 7. G-alle, 2,809. Set aside. May 8, 1849. 
 The plaintiff non-suited with costs. 
 
 In this case, the Commissioner has given an interlocutory 
 judgment, which has since been made final, without having any 
 evidence whatever as proof of the claim. This is illegal, and 
 the Commissioner is referred to the 17th clause of the Rules 
 for Courts of Requests, dated 21st October, 1844.* — PerTempk. 
 
 8. Galle, 2,173. Set aside. May 8, 1849. 
 
 Remanded to hear the defendant's evidence. 
 
 It appears from the proceedings that the defendant had 
 evidence, and there is no record that he declined calling it. — 
 Per Temple. 
 
 9. Galle. 2,749. Set aside. May 8, 1849. 
 
 Plaintiff claims the debt as sister and heiress of her de- 
 ceased brother, to whom the defendant granted the bond. It 
 does not appear that the plaintiff is the legal representative of 
 her deceased brother, consequently she cannot sue to recover 
 the debt. — Per Temple. 
 
 10. Itatnapoora, 711i Set aside. May 8, 1849. 
 
 The case remanded to be proceeded with. 
 
 The plaintiff should be permitted to adduce evidence that 
 the animal met with its death through the carelessness of the 
 defendant. — Per Temple. 
 
 11. Salle, 2,80ft. Set aside. June 5, lSi9. 
 
 The case appears to have been decided in the absence of the 
 defendant's witnesses, and no remark entered as to whether 
 it was made to appear that the witnesses were material or the 
 contrary. — Per OUphant. 
 
 * See Galle, 2,342, 30th January, 1849, p. 129. Galle, 3,174 was set 
 aside on the 21st August, 1849, for irregularity, under the 17th clause of 
 the Rules and Orders. That and all other decisions on the same point will 
 be omitted to prevent further repetition. 
 
133 
 
 12. Me^umbo, 2,348. Set aside. June 19, 1849. 
 
 Witnesses were tendered in evidence who were rejected 
 without legal disability being assigned. — Per Oliphant. 
 
 13. Galle, 2,788» Affikmes. July 17, 1849. 
 
 The Commissioner has explained to the Supreme Court, that 
 the former entry was not a judgment, but merely an opinion 
 which he at first entertained, but which he saw reason to alter 
 after he had taken the evidence of Mathes upon a due consi- 
 deration of the proceedings. The Supreme Court would how- 
 ever recommend the Commissioner in future, to defer writing 
 his opinion until he has heard and duly considered the whole 
 of the proceedings. — Per Temple. 
 
 14. Bentotte, 2,571. Set aside. July 24, 1849. 
 
 The plaintiffs contend, that the cattle which they claimed, 
 belonged to a deceased person, whom they now represent as 
 administrators, and who, in his life time entrusted the cattle to 
 the defendant to be herded, the defendant retaining as his own, 
 a certain share in their produce, according to the custom of 
 the country. If the plaintiffs can by evidence establish the 
 fact, that the defendant obtained possession of the cattle by the 
 license of the plaintiffs or those whom they represent, they will 
 be entitled to recover them, and the defendant cannot dispute 
 their title, and claim as his own, cattle which have only been 
 entrusted to him for a specific purpose.* — Per Temple, 
 
 \5. Kandy, 4,505. Affirmed. August 4, 1849. 
 
 No ground to set aside or correct the judgmen,t except as 
 to costs. The plaintiff to pay only as costs the costs of the 
 stamps actually used in the case and the expenses of the wit- 
 nesses examined, but not the personal expenses of the defendant. 
 — Per 2'emple. 
 
 16. Jaffna, 5,000. Set aside. August 21, 1849. 
 
 This case was set aside as regarded the interest and costs. 
 
 The plaintiff was allowed to recover £2 with interest and costs. 
 
 * This case was again decided in favor of the defendants by the Court 
 below, on the ground of prescription, and again set aside. — See Srd Sep- 
 tember, 1849, p. 138. 
 
134 
 
 It appears from the proceedings that the last payment of 
 interest was in February, 1842. 
 
 On reference to the 3rd clause of the Ordinance No. 8 of 
 1834, an action on a Bond can be brought at any time within 
 ten years from the date of the last payment of interest. This 
 action was so brought, and if plaintiff has judgment, he has a 
 right to the full interest due. — Per Temple. 
 
 11. Colombo, 6,933. Set aside. August 'ii,\M9, 
 In this case, twenty-cue plaintiffs, styled Co»partners of the 
 Company called the Cargo-Boat and Wharf- Improvement Com- 
 pany, stand upon the record as plaintiffs, claiming from the 
 defendants £4. \Ss. for landing and housing at their request 
 certain goods from a certain ship in the roads. 
 
 The defendants objected, first, that there was a non-joinder 
 of plaintiffs, but as this was waived by defendants' Counsel, it 
 is unnecessary to make further mention of it. The defendants 
 objected, secondly, that four of the plaintiffs in the action 
 are not Co-partners of the Company, and therefore, are not 
 properly on the record. Below these objections or pleas, the 
 Court causes the following words to be entered :-^" Plea over- 
 ruled." Then follow, in the same column of the extract headed 
 " defence," these words. " The first defendant for further 
 answer denies to be indebted to plaintiffs in the sum claimed, but 
 admits to be indebted to them in the sum of £3, 12s. 6(f. which 
 he tendered to plaintiffs' authorised Agent, who refused to 
 accept the same" ; and he further admits that the work was done, 
 The Petition of Review was in substance on the following 
 grounds : First, irregularity in the proceedings, in over-ruling 
 the pleas of mis-joinder and non-joinder. Second, the admis- 
 , sion of illegal or incompetent evidence. Third, that the action 
 was improperly instituted, the plaintiffs having no right to sue. 
 And fourth, that the plaintiffs have not proved that the goods 
 were landed at the request of the defendants. With regard to 
 the irregularity alleged to have been committed by the Court 
 in over-ruling the plea of mis-joinder, this Court is of opinion 
 that such plea should have been entertained. The Court of 
 Bequests did, in fact, by over-ruling this plea, prevent the de- 
 fendants from shewing, whether successfully or not, that four 
 of the plaintiffs had no joint-interest with the others in the 
 
135 
 
 Stilt, and that they had no claim against the defendants in respecJ 
 of the mattex- for which the action was brought. Now it is 
 material to a defendant that persons be not joined as plaintiffs, 
 who do not pretend to have any claim against him, and whose 
 names may have been placed on the record without, their sanc- 
 tion, because if the defendant is successful in the suit, and his 
 costs be awarded to him, he may get into trouble and further 
 litigation in endeavouring to recover them from parties who are 
 in fact not liable to pay them ; but besides, it carries unreason- 
 ableness on the face of it, that a defendant, even in a Court of 
 Requests, should not be allowed to shew, that he is being sued 
 and called upon his defence by parties, some of whom have no 
 right to sue him or call for any defence. The Court is of opinion, 
 that on this ground, the judgment should be set aside. As 
 regards the admission of illegal evidence, in respect of a copy 
 of a letter from the agent of plaintiff's to defendants, allowed to 
 be produced without notice given him previous to the trial, the 
 Court strongly inclines to think, that under the words of the 
 8th clause of the Ordinance No. 10 of 1843, and considering 
 that the letter in question was one of a series, which had been 
 produced by the defendants themselves, no notice was necessary, 
 and that the copy was well received, and the Court is further 
 of opinion, that as a Court of Review, it cannot enter into the 
 merits of the case. Judgment set aside with costs. — Oliphant, 
 Carr and Temple. 
 
 18. nXatura, 2,849. Sei* aside. August 2S, 18i9. 
 
 In this case, the plaintiff complains, that trees growing on 
 defendant's land, injure plaintiff^'s premises by the falling of 
 branches and fruits, and the Court adjudges that these trees be 
 cut down, and also adjudges damages to plaintiff, with the costs 
 of suit. The question for the consideration of the Collective 
 Court is, whether the Court of Requests has not exceeded its 
 jurisdiction in requiring the trees to be cut down. 
 
 The Supreme Court is of opinion that it has. The Ordinance 
 No. 10 of 1 843, section 5, confines the jurisdiction to " all actions, 
 plaints and suits, for the payment and recovery of any debts, 
 demands, damages, or matter not exceeding £5 in value, except 
 the matter in question shall relate to the title of any lands or 
 
136 
 
 tenements, or to any thing whereby rights in future may be 
 bound." 
 
 The plaintiifs prayed, and the Court granted the prayer, that 
 besides damages, a nuisance should be abated : and this Court 
 is of opinion, that under the words " for the payment and re- 
 covery of any debts, demands, damages or matter," the abate* 
 ment of a nuisance cannot be comprehended, that therefore, 
 the Court of Requests has exceeded its jurisdiction, and the 
 judgment must be set aside, with the exception of damages and 
 costs.*-^OZipAani, Carr and Temple. 
 
 19. Galle, 2,19#. Set aside. August 28, ISiS. 
 
 The proceedings in this case are read. 
 
 The plaintiff, as it appears from the statement of this, and the 
 connected case BTo. 2,136, bought certain goods from the defen- 
 dant, and being unable to pay for them, deposited with thedefen- 
 dant certain jewels and gold, as security for the due payment. 
 The plaintiff paid for the goods, as appears from the connected 
 case, but the defendant failing to return the jewels and gold,- 
 which had been deposited with him, the plaintiff brought the 
 present suit to recover them. It appeared from the examination 
 of plaintiff, that the deposit was not made in conformity of the 
 Ordinance No. 17 of 1844, section 23. The Commissioner of 
 the Court of Bequests non-suited the plaintiff, and did not hear 
 any evidence. 
 
 The point reserved for the collective decision is, whether the 
 clause of the Ordinance in question applies to the present case, 
 of jewels deposited as security for the due payment of goods 
 purchased, or whether the term ' to pawn' is not to be construed 
 according to its common acceptation, as a delivery of the goods 
 and chattels to another, as a security for money borrowed. 
 
 The following authorities were referred to :— 
 
 A bailment of goods by a debtor to his 
 r see D 35 ' ' ''^^'^i'''"' t° ^^ kept till the debt is discharg- 
 ed, Pignori acceptum, where a thing is bailed 
 by a debtor to his creditor in pledge, or as a security for the 
 debt. 
 
 * Actions for the abatement of a nuisance are u6w entertained,— 5«! 
 pages 14 and 15 of this work, 
 
137 
 
 V , „ , When goods or chattels are delivered to 
 
 Lord Holt. , = , . „ 
 
 another as a pawn to be security tor money 
 
 borrowed of him by the bailor, and this is called in Latin Vadium, 
 
 and in English a pawn or a pledge. 
 
 p^jljjg, Defines a pawn or pledge to be a " a con- 
 
 tract by which a debtor gives to his creditor 
 a thing to detain as a security for his debt, which the creditor is 
 bound to return when the debt is paid." 
 
 jj Pawn is an " appropriation of the thing 
 
 given, for the security of an engagement." 
 
 A pledge or gage for payment of money lent. 
 
 Slorv, section 286. " ^'^'^ f^'egoing definitions" says Story, 
 
 " are in terms limited to cases, where a thmg 
 is given as mere security for a debt, but a pawn may well be 
 given as a security for any other engagement. In the Common 
 Law, it may be defined, to be a bailment of personal property as 
 a security for some debt or engagement." 
 
 Johnson's Dictionary. ^^!'"' something given to pledge as a 
 security for nwney borrowed, or promise 
 made. 
 To pawn, to pledge, to give in pledge. It is now seldom used 
 
 but of pledges given for money. 
 Hallifax 80 Pignus is the delivery of a thing to a 
 
 creditor, as a security for money lent, on 
 
 condition of returning it to the owner after payment of the debt. 
 
 In England, amoveable chattel delivered as a security for money 
 
 lent, is called a pawn. 
 
 „ . ., , Pledging is a contract by which a debtor 
 
 Code Napoleon, p. , ■,. . , , , „ , 
 
 ggg places a tnmg m the hands of the creditor 
 
 as security for his debt. 
 
 Pledging of a moveable, is called a pawning. 
 
 Pledging of an immoveable, is called hypothec. 
 
 Reference also was made to 5, Raymond, 913. Viner, vol. 
 16, page 263. Bell's Institute, page 57, and Story on Bailments, 
 section 286 and 300. The Court is of opinion, that the ordinary 
 and familiar signification and import of the word " pawn," at 
 the present day, is a deposit for money lent and does not com- 
 prehend every deposit in security. " Words of a statute" says 
 Dwarris, page 573, " are to be taken in their ordinary and 
 familiar signification and import, and regard is to be had to their 
 
 T 
 
138 
 
 general and popular use, tor jus et norma loquendi is governed 
 by usage, and the meaning of words spoken or written ought 
 to be allowed, as it has constantly been taken loquendum est ut 
 vnlgus." 
 
 The judgment therefore is set aside, as the eyidence should 
 have been heard. — OUphant, Carr and Temple. 
 
 20. Bentotte, 2,571. Set aside. September 3, 1849. 
 
 This was the case which was decided on the 24th of July of 
 this same year, in favour of the plaintiffs, suing as legal repre- 
 sentatives of the deceased owner, for recovering back certain 
 cattle entrusted to the defendant for a specific purpose. 
 
 The plaintiffs, as administrators are suing the defendant 
 for certain cattle, which they state belonged to the estate of 
 Wallihinge Juan and Lanka Ana, who in their life-time entrust- 
 ed them to the care of the defendant. The Court of Requests 
 has dismissed the plaintiffs' claim, on the ground, that it is 
 prescribed, Juan and Lanka Ana, having died seven or eight 
 years ago. 
 
 The Supreme Court is unable to learn how the Court of 
 Requests has arrived at the knowledge of that fact, seeing there 
 is no mention made in the extract of the Record, of the ex- 
 amination of either of the parties, or their witnesses. But be 
 this as it may, the Supreme Court again informs the Commis- 
 sioner, that if the plaintiffs can by evidence establish the fact, 
 that these cattle originally came into the possession of the 
 defendant in trust to be herded and taken care of, for the 
 benefit of those whom the plaintiffs represent, the defendant 
 cannot avail himself of any term of prescription. It being a 
 rule of law, that where a party has obtained possession of a 
 thiiig with the permission and consent of the owner and to 
 hold in trust for him, such person cannot set up an adverse 
 prescriptive claim, however long the trusteeship may have 
 existed.*— Per Temple. 
 
 21. K.omeg'alle, 42©. Set aside. OctoJer 2, 1849. 
 The criminal complaint may have been false, but for any- 
 
 * See the decision in this same case, on another point, the 14th decision 
 of 1849, 24th July, 1849, p. 133. 
 
139 
 
 thing that appears, the plaintiffs may have a right to demand 
 the value of the fish in a civil suit. — Per Oliphant. 
 
 22. Colombo, 7,666. Set aside. October 27, 1849. 
 
 The plaintiffs in this case, were, to the number of 23, and 
 styled themselves co-partners of the Company called " The 
 Cargo-Boat and Wharf- Improvement Company." The defend- 
 ants were Frederick Lambe and Emanuel Lionel Spiers, trad- 
 ing in Ceylon under the firm of " Lambe, Rainals and Co." ; and 
 the plaint was as follows : — 
 
 " The first plaintiff for himself and on behalf of the other 
 plaintiffs claims from defendants the sum of Three pounds, 
 sixteen shillings and three pence, being amount due by them 
 to the Cargo-Boat and Wharf-Improvement Company, for 
 services rendered in landing and housing the several packages 
 belonging to defendants (enumerated in the bills of particulars 
 produced, (marked letters A, B, and C,) from the ships called 
 Persia, Helwellyn, and Iris, viz. : on the 7th and 9th April, 
 1849, from the ship Persia; on the 9th, 10th, and 16th April, 
 1849, from the ship Helwellyn; and on the 21st and 27th April, 
 1849, from the ship Iris ; which sum 1st plaintiff complains that 
 the defendants refuse to pay, and the first plaintiff for himself 
 and on behalf of the other plaintiffs prays, that the defendants 
 may be adjudged to pay the same." In the, column appropri- 
 ated for the defence, the following is the entry. 
 
 1st defendant denies to have engaged the plaintiffs to land 
 the goods mentioned in the several bills filed, and also denies 
 that they were so landed at his request. 
 
 In the column for evidence the entry is " Exhibits letters A, 
 B, C, D, and E, produced by plaintiffs, admitted." " Plaintiffs' 
 witnesses examined." And the judgment is " Judgment for 
 plaintiffs against defendants in the sum of £3. 16s. 3d. and costs." 
 
 The defendants brought this judgment by Petition of Review 
 before the Supreme Court, for, amongst other reasons, gross 
 irregularity in the proceedings, in that the plaint did not state 
 nor shew any cause of action by the Boat Company against 
 the defendants, and that if it did, that no evidence whatever 
 was adduced by the plaintiff's to shew that the defendants are 
 liable to plaintiffs, and in that no evidence was adduced to shew 
 
140 
 
 what amount of money the plaintiffs were entitled to reeeiye 
 from the defendants. 
 
 The substance of the evidence relevant to the case was the 
 following : — 
 
 FOK THE PliAlNTIFPS. 
 
 Mr. John Capper stated : — " I am manager of the Cargo-Boat 
 and Wharf-Improvement Company. The goods in the bills A, 
 B, and C, were landed by the Company's boats. To the best of 
 my belief, they belong to the defendants. I gave notice to the 
 defendants of the landing of these goods. We had also landed 
 goods for defendants and to whom our accounts were rendered, 
 and they paid as such goods were landed, precisely under simi- 
 lar circumstances as those in question. I have been for many 
 years a merchant here, and the usage has been, that the con- 
 signees of the ship got the goods landed, the consignees of the 
 ship paying the boatmen and making their own separate charge 
 for doing so against the consignees of the goods. The con- 
 signee of the ship pays the first expense. No alteration was 
 made as to the usage on the establishment of the Boat Com- 
 pany in respect of the mode of landing, but the consignees of 
 the goods pay at once to the Boat Company. The boats of 
 this Company land goods for nearly all the European Mercan- 
 tile body trading here, and they haver-all, including the defen- 
 dants, conformed to the usage, and have invariably paid the 
 charge and recognised the landing, with the exception of the 
 instances involved in the case pending. The defendants were 
 consignees of the ship Narcissus, which arrived in this Port in 
 October or November last, this Company did not land the goods 
 from that ship. The defendants never employed this Company 
 to land goods from ships consigned to them. Defendants never 
 required us to send notices of goods landed, but it had been 
 the practice, and I continued it. I am not aware that defen- 
 dants ever objected to pay our charges before, with the excep- 
 tion of those instances which form the subject of the former 
 and this case. Defendants did not make objections to our 
 charges except with reference to those cases. The ship Persia 
 from which part of these goods were landed, was consigned 
 to Messrs. Armitage, Scott and Co., so was the ship Iris, and 
 the Helwellyn to Messrs. Crowe and Co. These respective 
 firms instructed me, as manager, to land the cargoes of these 
 
141 
 
 ships. We also landed the cargo from the La Bella, which 
 was consigned to Messrs. Smith and Co, Defendants had goods 
 by her, and Messrs. Smith and Co. instructed me to make the 
 bill for landing defendants' goods in their (Smith and Co.'s) 
 name, and they paid u's. In this instance we had no communi- 
 cation with defendants, no more than we had in other instances. 
 The bills for landing the goods per La Bella to defendants' 
 consignment were made in the name of Smith and Co., because 
 they requested it, otherwise they would have been made as usual 
 in name of defendants as before." 
 
 George William Peterson states : — " I am clerk of this Boat 
 Company. The bills A, B, and C, were presented by me for 
 payment to defendants. 1st defendant said these bills must be 
 settled at one time, he said nothing more, there were other bills 
 also, two of them were paid by defendants." 
 
 Mr. Capper re-called, states : — " We landed the goods by the 
 Margaret Connel, at the request of Smith and Co., consignees 
 of the ship. Defendants have goods in that vessel, but they 
 did not give me any special authority to land their goods. The 
 goods, however, were landed by the Company, and I made the 
 bills out in name of defendants, and they paid the bills. We 
 acted thus, we landed the goods in the usual course of business, 
 we sent bills to Messrs. Smith and Co., and we received payment 
 for them in a cheque of defendants. This was in July last, 
 since the last case ; and our presenting the bills to Messrs. Smith 
 and Co. was done at their request. No objection was made by 
 defendants to the landing by us of their goods, but they paid 
 us for so doing, though they did not ask us to land them. The 
 landing was in the usual course of business, and for that de- 
 fendants paid us through Smith and Co.'' 
 
 Lambert William VanBuren states : — " I am proprietor and 
 manager of another Boat Company at Colombo. I have dis- 
 charged cargoes from British vessels. I did so of the last cargo of 
 William and Mary Brown, also of the Narcissus. The consignees 
 of the ship authorised me to land their cargoes. That is the 
 usual course of business. I cannot do so without their autho- 
 rity. The parties who employ me to discharge ships' cargoes 
 are defendants, Messrs. Simpson and Co., and on one occasion 
 Messrs. Armitage, Scott and Co, They (in their respective 
 firms) were on all those occasions the consignees of the several 
 
143 
 
 skips, whose cargoes I so landed. The consignees of the goods 
 do not authorise me to land their goods. That authority is 
 given by the consiguees of the ships. The bill filed (D,) now 
 shown me, is mine, for landing goods of Mr. Thompson from the 
 Narcissus consigned to defendants who were the consignees of 
 the ship. Defendants authorised me to land those goods in the 
 tisual course of business. The bill (E) is also mine for landing 
 goods to the consignment of Messrs. Wilson, Ritchie and Co. 
 per Narcissus. Defendants, not Wilson, Ritchie and Co., au- 
 thorised me to land the goods. Messrs. Armitage, Scott and 
 Co. employed me within the last month or two, to land goods 
 from the Dartmouth, which were consigned to defendants, and 
 I asked Messrs. Armitage, Scott and Co. to allow me to laud 
 those goods. Defendants suggested to me to do so, Messrs. 
 Armitage, Scott and Co. told me however to get the defendants' 
 authority as consignees of the ship, and I did so, and got their 
 authority." 
 
 Mr. E. J. Darley states : — " That he has been many years a 
 merchant at Colombo, that it has been the usual course of busi- 
 ness for the consignees of the ships to land the whole cargoes. 
 The consignee of the ship would have a claim on the consignee 
 of the goods for the payment of the usual charges for landing 
 the goods. It is clearly the duty of the consignee of the ship to 
 arrange for the landing of the goods. The duty and propriety 
 of the consignee landing the goods has never been questioned, 
 but it is perfectly optional with the consignee of the ship to 
 arrange for the landing of the goods in any way he pleases, he 
 being responsible for the employment of proper boats and 
 persons for that duty. He employs whom he pleases. When 
 there were no Boat Companies, consignees of ships arranged 
 for landing the cargoes and were liable to those they employed 
 for the expenses they incurred. They, the consignees of the 
 ships, then made out bills in their own names against the con- 
 signees of the goods, adopting an acknowledged scale of charges." 
 For the Defence. 
 
 Mr. Armitage states : — " The Iris and the Persia were last 
 consigned to us. Defendants told me, that if we, as consignees 
 of the ship would send in our bill for landing defendants' goods, 
 they would pay the same, and said they wished to have nothing 
 
143 
 
 to do with the Boat Company. I considered this notice as 
 referring; generally to ships consigned to our firm." 
 
 Mr. Crabbe states : — " I am a partner in the firm of Crowe 
 and Co. The Helwellyn was consigned to us when the goods 
 of defendants in question were landed. I remember the first 
 defendant saying, that he objected to pay the Boat Company, 
 but that he would pay to the consignees of the ships for land- 
 ing his goods. His objection was to the mode of payment, but 
 he made no objection to the services of the Boat Company, 
 and it depends on the consignees of the ship to engage their 
 services." 
 
 The first defendant admits, that the goods were landed by the 
 plaintiffs at the desire of the consignees of the ships — states that 
 he has not paid the consignees, but has notified that he is ready 
 to do so. The documentary evidence consisted of three bills 
 for goods landed, presented to defendants by the Boat Company, 
 and two for the like services, presented to certain consignees of 
 goods, by the witness VanBuren. 
 
 In Review. 
 
 Mr. Stewart for the defendant urged several objections, which 
 he said were comprehended under the heads of gross irregularity 
 in the proceedings, and the admission of illegal evidence. Hia 
 objections were : — 
 
 1st. That the plaint does not state the money claimed was 
 due to the plaintiffs. The statement that it was due to the 
 Cargo-Boat-Corapany, and that the plaintifis were partners 
 therein, did not even by intendment shew that the plaintiff's were 
 entitled to the money claimed, because if the plaintiffs were not 
 partners (and that they were, did not appear) at the time that the 
 debt was contracted, they would not be entitled to the money 
 claimed, though they might subsequently have become partners. 
 
 2nd. The plaint does not state, that the plaintiffs, or even 
 that the Boat Company landed the goods, without which there 
 would be no cause of action against the defendants. 
 
 3rd. The plaint does not state, that the goods were landed 
 at the request of the defendants. This statement was essential 
 to constitute a cause of action, and although technical precision 
 was not to be observed in Courts of Requests, a want of state- 
 ment in so substantial a matter ought not to be overlooked. 
 
144 
 
 Mr. Stewart also referred to the forms of plaints for Courts of 
 Requests, wherein the statement of the defendant's request was 
 inserted. 
 
 4. The place where the goods were landed was not stated in 
 the plaint. That statement was essential to shew jurisdiction, 
 and wa^s requisite by law in proceedings before all inferior 
 Courts. 
 
 5. The plaint was not by all the plaintiffs, but by one on 
 behalf of the others. One partner could not file or' declare for 
 his co-partners, or bind them thereby, and therefore the plain- 
 tiffs who had not joined in the plaint, could not be made liable 
 for the costs of the proceedings, and would not be bound by the 
 judgment. 
 
 6. Only one of the defendants had answered, and yet final 
 judgment was entered against both. 
 
 7. There was ho evidence whatever to shew the liability of 
 defendants and plaintiffs. In the former case, the Supreme 
 Court refused to interfere on the merits, as there was no evidence ; 
 though its sufiiciency was questioned : but here the objection 
 is as to there being no evidence at all on the merits. It was 
 essential to shew an express or implied request by the defen- 
 dants to the plaintiffs to land the goods in question. There was 
 no express request by the defendants, and as to an implied 
 request, there was no evidence of that, because it was not shewn 
 that the goods were delivered to defendants, or even if it were, 
 inasmuch as there was no evidence that the consignees of the 
 ship were liable to the plaintiffs on their express undertaking, 
 so there was no room to infer, an undertaking on part of the 
 defendants. There was nothing better established than the 
 doctrine, that an implied undertaking could not exist when there 
 was an express liability. The defendants had certainly paid the 
 plaintiffs for landing their goods on previous occasions, but that 
 was to be looked upon as payment for the consignee of the ship, 
 who had made the request to land and who was liable to the 
 plaintiffs, and the defendants were entitled at any time, to cease 
 to make such payment. Besides, the consignee of the ship had 
 his action against the defendants, after payment of the charges of 
 the Boat Company, and therefore, should defendants be adjudged 
 to pay the plaintiffs, they would be liable to two parties in respect 
 of the same demand. 
 
145 
 
 8. There is no evidence whatever of the sum due to the 
 plaintiffs. 
 
 9. There is no evidence that the plaintiffs are partners, which 
 not being admitted, should have been proved. 
 
 10. Mr. Capper's evidence as to his belief of the ownership 
 of the goods landed, should not have been received. The grounds 
 of his belief are given as to some only of the goods ; but as to 
 others, his belief is not sustained by any grounds. 
 
 11. The Exhibits D and E were received contrary to law, 
 they being utterly irrelevant to the questions at issue. 
 
 12. Mr. Darley's opinion was taken, contrary to the rules of 
 evidence, on a point of law. 
 
 13. Certain letters of the Manager of the Boat- Company 
 filed in the former case, were received in evidence,.without due 
 proof in the case. 
 
 The Court called upon the Queen's Advocate, for the plain- 
 tiffs, to reply to the 7th and 8th objections taken by the Counsel 
 for defendants. 
 
 As to the objection that there was no evidence of any request 
 on behalf of the defendants to the plaintiffs, to land their goods, 
 the Queen's Advocate contended, that there was evidence of an 
 implied agreement between the parties : for it was proved, that 
 an usage had existed for some time previously, for the plaintiffs 
 to land the defendants goods, and to charge the latter directly, 
 and not the ship's agent, for the expenses of such landing : that 
 the defendants had allowed the plaintiffs to go on under the un- 
 derstanding that they might land their goods as before, and could 
 not suddenly turn round upon the plaintiffs after the work had 
 been performed, and they have received the benefit of it, and 
 say. We never employed you to land our goods, and you must 
 look to the ship's agent. But if it were maintained, that the 
 defendants' letter of the 8th of January 1849 was a notice to 
 the plaintiff's, that the defendant did not consent to the conti- 
 nuance of the former usage, he, the Queen's Advocate, denied 
 that such was the fair construction of that letter. So far from 
 putting an end to the existing practice, the defendants thereby 
 consented to its continuance : for they simply informed the 
 plaintiffs that if they landed cargo to their (defendants) con- 
 signment, they would pay only a certain rate of charge. Thus 
 agreeing to pay the plaintiffs for landing their cargo, and con- 
 
 u 
 
146 
 
 firming the existing usage in that respect, but only fixing the 
 amovmt of remuneration. 
 
 The question then was, not whether the goods had been 
 landed on the implied agreement with the defendants ? but, 
 whether the rate of charge was reasonable, or in conformity 
 with the understanding between the parties ? On this point 
 there was no evidence. 
 
 But this was, no doubt, owing to the circumstance, that the 
 reasonableness of the charge was not disputed in the Court of 
 Requests ; the only question for trial was, whether the defendants 
 had employed the plaintiffs to land the goods ? But if there 
 was no evidence on the point, as had been urged by the defen- 
 dants' counsel, it was clear there was none to shew that the rate 
 of charge exceeded what the defendants had consented to pay ; 
 and as the work had been done, it was for them to have objected 
 to the charge, made for it on the ground. They indeed seem 
 to admit the reasonableness of the charge; for they say in their 
 examination before the Court of Requests, that they have 
 notified to the consignees of ships, their readiness to pay them. 
 Judgment. 
 The evidence of the Manager of the Boat-Company proves, 
 that that Company was employed by the consignees of several 
 ships respectively to land the goods, for payment of which 
 service the present action is brought. There is no evidence 
 whatever to prove that there was any express agreement be- 
 tween defendants and the Boat-Company, that they should land 
 them. 
 
 There is no room to presume any implied agreement, with the 
 consignees of the several ships respectively, to land the goods, 
 for payment of which service the present action is brought. 
 There is no evidence whatever to prove, that there was any 
 express agreement between defendants and the Boat-Company 
 that they should land them. 
 
 There is no room to presume any implied agreement so to 
 do, the express agreement with the consignees of the ships 
 negativing any such presumption. There is therefore no privity 
 of contract between plaintiffs and defendants. But as the 
 evidence shews, that on former occasions defendants had paid 
 the plaintiffs for similar services, and the Merchants generally 
 have conformed to the same practice, the coiinsel for plaini/iffs 
 
1-17 
 
 contended, " that defendants could not suddenly turn round 
 upon plaintiffs, after the work had been performed, and they 
 received the benefit of it, and say, we never employed you to 
 land our goods and you must look to the ship's agent." The 
 answer which the defendants are entitled to make, is — " We have 
 paid you, the Manager of the Boat Company, on your own receipt 
 for landing our gogds, you never having been employed by us, 
 but by the consignees of the ships. We are advised, we cannot 
 do so longer with safety. We are advised, that a course of 
 dealing or a usage may be established, which may compel us 
 to recognise you as an independent party, and not simply as 
 the persons employed by the ship's agent, and therefore we will 
 not pay for landing, except on the receipt of the agent." In this 
 case, no custom or usage of trade or course of dealing could be 
 set up, as it is notorious, that the plaintiffs are a Company of only 
 two or three years' standing. The plaintiffs suffer no hardship 
 by being referred to the ship's agent for payment. To whom 
 are they referred ? Their own employers, the only party against 
 whom they have a legal claim. For this is not a case where 
 a party may elect, to go against either of two parties, as in the 
 case of the owners and master of a vessel and the principal 
 and his agent under certain circumstances. This is a case, where 
 one party has rendered services to another party, at the request 
 and by agreement with a third party, and to whom alone the 
 law allows such first mentioned party to look for payment. The 
 general rule of law, that a man cannot have two debtors, must 
 hold good in this case. The Court, therefore, is of opinion, that 
 there is no evidence whatever to found any claim against the 
 defendants at the suit of the plaintiffs ; and if an action could 
 lie, there is no evidence, to shew what is due to the plaintiffs. 
 On these grounds, the judgment of the Court of Requests of 
 Colombo of the 22 nd day of August 1849, should be set aside, 
 and the same is hereby set aside accordingly. — Per Oliphant. 
 
 23. Btulletivoe) 1,3'19. Set aside. November 13, 1849. 
 The clerk of the Court should be called, to prove that such 
 or such a writing has been lost, then the contents may be proved 
 by witnesses, who can do so according to what is laid down in 
 all text books on evidence, one of which the Commissioner ought 
 to be provided with, — Per Oliphant. 
 
■148 
 
 24. G-alle, 3,274. Set aside. December 18, 1849. 
 Under the 2nd clause of the Ordinance No. 5 of 1845, the 
 
 hiring of a domestic servant is to be considered as a hiring for 
 at least one month, and the plaintiff left the defendant's service 
 before the expiration of the month. He is not therefore under 
 the 7th clause entitled to recover his wages. — Per Temple. 
 
 25. Kambantotte, €21. Set aside. December 31, 1849. 
 
 The Police Magistrate upon dismissing the former charge 
 against the presentplaintiff, could, under the 12th clause of the 
 Ordinance No. 11 of 1843, have adjudged to the plaintiff the 
 reasonable expenses of his witnesses. 
 
 The present suit is not maintainable, there being no evidence 
 to support it, and no malice appearing on the part of the de- 
 fendant. — Per Temple. 
 
 Note. — Colombo, 7,666. — This case was an instance of the legal inge- 
 nuity of the late Mr. Stewart. Li the course of the argument, Mr. Stewart 
 stated, that the omission to state a request on the part of the defendants 
 was not an error of the clerk, who had represented the necessity of stating 
 a request ; but the facts of the case were such, that a request could not be 
 stated by the plaintiffs in entering their plaint. Mr. G. Vandort, the clerk 
 of the Court, was complimented by Sir Anthony Oliphant. 
 
 The following error was discovered too 'late to be corrected before the 
 sheet was sent to Press . — 
 
 Erratum: — In page 144, line 18, for " as there was no evidence," read 
 " as there was evidence.'' 
 
U9 
 
 DECISIONS 
 
 OF 
 
 THE SUPREME COURT 
 
 ON 
 
 REVIEWS FROM THE COURTS OF REQUESTS. 
 
 1850. 
 
 1. Point Pedro, 635. Affirmed. January 29, 1850. 
 The Court has, on the admission of the debt by the second 
 
 defendant, given judgment against him, which seems quite 
 regular; and this judgment the Supreme Court will not there- 
 fore set aside. The plaintiff can proceed against the first defen- 
 dant de novo. 
 
 The proper mode of procedure was, under the 17th section 
 of the Rules, to have given interlocutory judgment against the 
 first defendant. — Per Oliphant. 
 
 2. Jaffna, 5,869. Set aside. March 26, 1850. 
 The defendant cannot be decreed to restore the box in ques- 
 tion or its value, =£4. 19s. Gd., in the absence of evidence in 
 proof of the value.— Per Temple. 
 
 3. Jaffna, 5,000. Set aside.* March 26, 1850. 
 This suit is to recover £2. upon a bond with interest thereon 
 
 * [Judgment against the 1st and 2nd defendants set aside as regarded 
 the interest and costs, and judgmenl given for £2, with interest from Feb- 
 ruary 1842. Judgment also set aside as regarded the fourU] defendant, 
 who was adjudged to be absoi\'ed from the instance, with costs ; and it 
 was decreed further, that the case be remanded to the Court of Requests, 
 to make final the interlocutory judgment against the 3rd defendant ; and 
 also to proceed against the fifth defendant, the judgment below, absolving 
 her from the instance, being set aside] 
 
150 
 
 since February, 1842. The suit is against five defendants. The 
 first and third defendants admit the bond, but plead payment. 
 It does not appear that either the fourth defendant, or his wife 
 the fifth defendant, have pleaded to the action. The Court 
 below has given judgment, that the first, second, and fourth 
 defendants do pay the principal, £2., but without interest, 
 because the plaintiff has neither received nor enforced payment 
 of interest for six years. Interlocutory judgment to the same 
 effect has been given against the third defendant, who was 
 absent upon the day of hearing ; and the fifth defendant has 
 been absolved from the instance, on the ground, that she is the 
 wife of the fourth defendant. 
 
 As regards the first, second, and third defendants, who have 
 pleaded payment, but have failed in its proof, the plaintiff is 
 entitled to judgment for the full amount, together with interest, 
 the debt being not prescribed, (see Ordinance No. 8 of 1834, 
 ^ 3) ; but the interlocutory judgment against the third defendant 
 must be made final, before it can be enforced against him. 
 With respect to the fourth defendant, the plaintiff cannot re- 
 cover against him as he is only a witness to the bond, not a 
 party to it. As regards the absolution of the fifth defendant 
 from the instance, because she is the wife of the fourth defen- 
 dant, the judgment of the Court below is incorrect, for being a 
 party to the bond, her property is liable.* — Per Temple. 
 
 4. Batticaloa, 1,705. Affirmed. April 9, 1850. 
 
 This case was affirmed, except as to double costs. 
 The Commissioner has no power to award double cosls.f — 
 Per Temple. 
 
 5. nZallag'ain, 2C7. Set aside. April 23, 1850. 
 
 Defendant was convicted and imprisoned for assault and 
 stealing the plaintiff's earrings from his ears. The defendant 
 underwent the punishment, and the plaintiff now sues him for 
 the value of the earrings taken. The conviction in the crimi- 
 nal case has been received in evidence to prove the talking ; and 
 the defendant's evidence to prove, that he did not steal nor 
 
 * Not according to the Roman Dutch La^v. This was a Jaffna case, 
 t Sec note to Batticaloa, 193, p. 88 3 to Matura, 3S6, p. 99 ; and Ord. 12 
 0/ 1843, i 5. 
 
1.51 
 
 ■borrow the rings, has been rejected, on the grounil that no 
 evidence can be received to disprove the conviction. If the 
 record of the conviction could be received in evidence, it would 
 be conclusive, as no evidence could be received to disprove the 
 record ; but the conviction cannot be received in evidence at 
 all, because as such conviction proceeded on the evidence of 
 the party seeking to make use of it, the receiving of it, would 
 be allowing a party to the suit, to give evidence for himself.* 
 A further ground upon which a conviction in a criminal case 
 cannot be received in evidence in a civil case, is, that verdicts 
 and judgments are only evidence between the same parties, 
 and the Queen is the complainant in criminal cases.f — Per 
 Temple. 
 
 6. DZallag'ain, 206. Set aside. ^/in7 23, 1850. 
 
 As the former plaint was dismissed only from the absence of 
 the complainant, and no judgment given upon the merits, the 
 dismissal of the former case should operate only as a non-suit. — 
 Per Temple. 
 
 7. ^alle, 2,173. Rbmandeb. April 30, 1850. 
 
 The Commissioner to give judgment on the evidence, after 
 examining such further witnesses as he might think fit. 
 
 The case No. 1;140, spoken of by the Commissioner as a pre- 
 cedent, is no precedent at all. In that case the question was, 
 whether certain land was subject to the payment of one-half 
 or one-tenth of its produce to Government, the decision of 
 
 * Since September, 1851, a party to a suit is competent and compellable 
 to give evidence m the suit. — 14 and 15, Yic, c. 99, § 2. This ground of 
 objection, therefore, has ceased to exist. 
 
 t This remains a good ground of objection. — See Jaffna, 1,302, and 
 note, p. 104 of this work. As an illustration of another reason why the 
 previous conviction cannot safely be received in a succeeding civil action, — 
 the conclusion of the note, at page 105, may be referred to. An acquittal 
 on an indictment for bigamy is no evidence in a civil action, in which the 
 validity of the second marriage is controverted j for it requires stronger 
 evidence to convict on the indictment, than to establish the illegalitj- of the 
 second marriage in a civil action. — (rilb. Ev. 32. 
 
 So, the gist of a criminal action being the guilt of the accused, on an 
 indictment for robbery, proof of the robbery of a single trivial article may 
 secure a conviction ; but in a succeeding civil action for damages, on the 
 robber}- of all the articles, the damages \vouId have to be proved. 
 
152 
 
 which would bind future rights, and was therefore beyond the 
 jurisdiction of the Court of Requests. In the present case no 
 such question arises. The amount of tax due from the land is 
 not in dispute ; the only question being, which party has aright 
 to the tax, when collected ?* — Per Temple. 
 
 8. ITeg'Uinbo, 3,036. Set aside. April 30, 1850. 
 
 This was a case in which certain damages were claimed ; but 
 there was no evidence to shew the amount of damage sustained. 
 — Per Temple. 
 
 9. nZalla^am, 160. Remanded. May 7, 1850. 
 
 The Supreme Court considers the case within the jurisdiction 
 of the Court of Requests. Should it be necessary to enquire 
 into the respective shares of the parties, it will only be for a 
 collateral purpose, and such enquiry would not decide any right 
 as to the land, no such right being in dispute.f — Per Temple. 
 
 10. Colombo, 9,047. Remanded. May 7, 1850. 
 
 The admission by the second defendant of part payment in 
 1847, destroys the plea of prescription upon which the judg- 
 ment is founded. — Per Temple. 
 
 11. Jaffna, 6,169. Set aside. Jlfaj/ 21, 1850. 
 Remanded for re-hearing, the proceedings having been irregular 
 
 in the plaintiff having been sent out of Court during the 
 examination of his witnesses,]: and in the Court also having 
 refused to hear plaintiff's other witnesses. — Per Carr. 
 
 12. Jaffna, 6,596. Set aside &B£MAKDED.ilfa^ 21, 1850. 
 The Court cannot refuse to hear the whole evidence for the 
 
 defendant, because his first witness, on being examined, gives 
 unfavourable testimony. — Per Carr. 
 
 ' See Galle, 1,140, and note,p. 115 of this work. 
 
 t So, it will be within tlie jurisdiction of a Court of Requests, to enquire 
 into the respective shares of the parties, if only for a collateral purpose, of 
 a land above £10 in value, under the present constitution of these Courts. 
 
 X And he had no counsel to watch the case in his absence, as under Ord . 
 10 of 1843, parties were not represented by counsel or substitutes. 
 
153 
 
 13. Kandy, 6,762. Set aside. June 4, 1850. 
 
 Plaintiff non-suited with costs. 
 
 A master is not bound to provide his servant with medical 
 attendance ; but if he calls in his medical man to attend a 
 servant, he will then be liable, and cannot deduct the charge 
 for such medical attendance out of the servant's wages, unless 
 there be a special contract for it ; and the clause of the Ordi- 
 nance referred to, is to the same effect. In regard to it also, 
 and some other points, the judgment relies on statements which 
 have been omitted to be taken down in writing at the hearing. 
 — Per Carr. 
 
 14. Kornegralle, 1,523. Set aside. June 4, 1850. 
 
 The Ordinance for prescription of actions must be pleaded 
 in the District Court, and it must be specially urged in the 
 defence in the Court of Requests, although the formality of a 
 plea thereof is not required there, because if the claim be a 
 true one, an honest defendant may not wish to avail himself of 
 such an objection, and the plaintiff may moreover, in reply, 
 shew that his claim was not so debarred by reason of some 
 written promise, acknowledgment, or admission having been 
 made, or other act done by the defendant, to rebut such defence, 
 under the 7th clause of the Ordinance. — Per Carr. 
 
 15. nXallag'ain, 289. Appeal disallowed. Jane?, 1850. 
 
 Under the 21st clause of the Rules and Orders, the appeal 
 was disallowed, as the security was not given in time. 
 
 Which omission, by the 24th clause, entitles the party in 
 whose favour the judgment has been given, to act in the same 
 manner, as if no petition of review had been lodged, by pro- 
 ceeding to sue out process of execution. — Per Carr. 
 
 16. Korneg^alle, 1,615. Afi'ibmed. June 18, 1850. 
 
 Defendant ought to have urged the 9th clause of the Ordi- 
 nance No. 8 of 1834, in objection to the demand, and having 
 failed to do so, the delay of the plaintiff in instituting the claim, 
 can only go to the credit due to the evidence in support of it, 
 on which ground the Court cannot interfere. — Per Carr. 
 
154 
 
 17. Jaffna, 6,656. Set aside. July 2, 1850. 
 The plaint is incorrectly drawn, inasmuch as it does not state 
 
 the period for which the rent is due and claimed, nor the rate 
 per month sought to be recovered. There is a further irregu- 
 larity in receiving as evidence two cases from the District 
 Court, they being produced by the Interpreter of the Court of 
 Requests, instead of by the proper Officer of the District 
 Court. — Per Temple. 
 
 18. Korne^alle, 2,263. Set aside. August G, 1^60. 
 
 In an action for trespass, the defendant, by merely raising 
 the question of title to the land, (worth more than £10,) will 
 not be able to oust the jurisdiction of the Court. The fol- 
 lowing decision was under Ordinance 10 of 1843, when Courts 
 of Requests had no jurisdiction at all in land cases. 
 
 The mere denial by defendant, that the land belongs to plain- 
 tiff, is not sufficient to oust the jurisdiction of the Court of 
 Requests.* If the plaintiff can prove his bare possession, this 
 will enable him to maintain an action for trespass. — Per Temple. 
 
 19. Chllaur, 2,285. Set aside. Avgmt », 1850. 
 This was an action for goods sold and delivered. 
 
 The Supreme Court directed the plaintiff to be non-suited, 
 under the following circumstances : — 
 
 On the day of hearing, the 1st defendant admits the debt and 
 pleads payment. The 2nd defendant makes no plea whatever ; 
 and at the hearing the plaintiff changes his plaint into one, to 
 which the defendants never pleaded. — Per Temple. 
 
 20. Ne^umbo, 3,280. Set aside. August 13, 1850. 
 This case was set aside as to a fine imposed on the plaintiff 
 
 " for having brought a false charge." 
 
 The 7th clause of the Ordinance No. 10 of 1843, empowers 
 the Court of Requests, to punish parties for false statements 
 upon their examination, in like manner as for any contempt; 
 but there is no general provision similar to the 12th clause of 
 the Police Court Ordinance No. 11 of 1843, clause 12th, to 
 authorize these minor Civil Courts, to punish parties for bring- 
 
 * Under Ord. 10 of 1843. Sec the preliminary remark above. 
 
155 
 
 ing actions or claims on false, frivolous, or vexatious grounds ; 
 and in this respect, they cannot, therefore, exercise a power, 
 which the District Courts do not. — Per Carr. 
 
 21. Kornegralle, Z,581. Set aside. August 13, 1850. 
 
 The Court below was directed to proceed to hear the plain- 
 tiff's evidence. 
 
 The witness is clearly not incompetent under the present 
 law of evidence, and in England, (see 6 and 7 Vic, c. 85, J 1 ;) 
 and by the Ordinance No. 3 of 1846, all such evidence shall be 
 admissible in this Colony as would, at the present period, be 
 admissible in the Courts ofKecord in Westminster.* — Per Carr. 
 
 22. Kandy, 7,539. Set aside. Avgust1Q,\%Z<i. 
 
 In this action, the plaintiff, appearing on behalf of the Fiscal 
 of the Central Province, claimed £\.. 4s. Zd., on account of his 
 fees for advertising the sale of property by virtue of a writ of 
 execution, issued at the instance of the present defendant, from 
 the District Court of Kandy, in the case No. 21,652. 
 
 In his examination by defendant, plaintiff stated as follows : — 
 
 I appear on behalf of Mr. BuUer, the Fiscal ; I am duly 
 authorised by him to do so : I am clerk of the Fiscal's office : 
 I was clerk in August 1849 : I know nothing personally regard- 
 ing the writ No. 21,652, the writ, upon which this action is 
 brought: the property of the defendant was advertised for 
 sale : the property was not put up for sale : the property was 
 sold at the request of plaintiff's proctor, by letter dated 10th 
 August, 1849. I produce the letter. The Fiscal has not paid 
 for the advertisement yet ; a letter has been presented to him. 
 Five shillings of the sum claimed has been paid for advertising 
 in the Government Gazette. 
 
 It appears that the defendant (Mr. J. A. Dunuwille) then 
 addressed the Court, raising the following objections : — 
 
 1. That it appears from plaintiff's examination, that he has 
 not, as yet, paid the amount which he claims from defendant 
 to the advertiser, and hence it is a mere liability on the part 
 
 * It does not appear in the Minutes of the Supreme Court on what ground 
 the witness was held incompetent below. A reference to the original records 
 would be of little use, as the present law of evidence is so much more 
 advanced and liberal. — /See fp. 38 and 39 of this work. 
 
156 
 
 of the plaintiff to pay, which will not give him a right of action 
 as against the defendant. 
 
 2. That the letter produced by the plaintiff himselfj shews, 
 that the defendant's request to stop the sale, was upon the 
 distinct understanding that all the fees due to the Fiscal (or 
 plaintiff in this case) be paid by defendant on the writ. No. 
 21,652, against whose property the writ of execution was issued 
 by the District Court, and the Fiscal having stopped the sale 
 upon that condition, the presumption is, that he was paid all 
 his fees. 
 
 In this stage of the proceedings, the Commissioner gave judg- 
 ment for the defendant, as follows : — 
 
 The Court is of opinion, that it is not necessary to proceed 
 further into this case. The first objection taken by defendant 
 is, strictly speaking, good ; but the Court is inclined to think, 
 that part payment of the advertiser's fees, and the presenta- 
 tion of the bill to plaintiff for payment of the balance is suf- 
 ficient to create a right in the plaintiff to appear and sue de- 
 fendant in this Court. The Rules of which, require, that 
 decisions here should be given more in accordance with equity 
 and good conscience, than in conformity with legal technicalities. 
 
 But the second objection places the question, as to the right 
 of the plaintiff to recover the sum claimed from defendant, in 
 a different light, and puts the plaintiff entirely out of Court. 
 The letter alluded to, points out clearly on what condition the 
 writ was to be stayed and returned to the District Court. In 
 the event of the defendant not paying the fees of the Fiscal, 
 it was his duty, to have carried out the writ, so far only as his 
 fees were concerned. 
 
 Upon this, the plaintiff appealed, for that he was not barred 
 from prosecuting his claim against the defendant by virtue of 
 anything contained in the letter ; and that, the Court was bound, 
 before giving judgment, to examine the plaintiff's witnesses. 
 
 On this appeal, the Supreme Court set aside the judgment 
 de novo. 
 
 By the 10th clause of the General Rules of the 11th day of 
 July, 1840, respecting the duties of Fiscal, it is provided, that 
 in every case, after the seizure of property, and the publication 
 of sale thereof, on which the sale shall be postponed or stayed 
 at the request or with the concurrence of'the party suing out 
 
157 
 
 the writ, the Fiscal or his Deputy shall be entitled to half the 
 fees due on sale, from the party at whose request the writ shall 
 be stayed, and the letter produced cannot therefore defeat the 
 plaintiffs claim.* — Per Carr. 
 
 23. Kaudy, 7,175. Set aside. August 'id, 1650. 
 
 The defendant was entitled to due summons under the Rules 
 of Court, and never having been served therewith, no proceed- 
 ings in default could be had against him ; any verbal notice 
 from the process-server was not binding on him, if he chose 
 to disregard it, nor was the informal note, written below the 
 summons: — " Extd. till 18th June, 1850."— Per Carr. 
 
 24. Ratnapoora, 896. Set aside. August 29, 18dO. 
 
 The Supreme Court does not see anything irregular in the 
 deed ; but the witnesses should be properly examined, by its 
 being shewn to them, to identify it, and prove the signatures. 
 Nor is any certificate of such cattle by the headman, required 
 by law to make it valid. The Ordinance No. 4 of 1836 requires 
 only such certificate for killing cattle, and rendering parties, in 
 possession of stolen cattle without a notice in writing attested 
 by headmen, liable to fine or imprisonment. 
 
 By the Kandian law, the debts must be paid by those who 
 inherit the property, according to the value of their respective 
 shares. MarshcMs Digest, p. 350. And it must be proved, that 
 the defendants are the wife and sons of the debtor, and have 
 inherited his estate, unless admitted by them on examination. — 
 Per Carr. 
 
 25. Kaig-alle, 1,715. Corrected. August 7,% \H50. 
 
 The judgment of the Court below was corrected by the 
 plaintiff being non-suited with costs. 
 
 The plaintiffs, as joint administrators of the deceased's estate, 
 sought to recover from defendant a yoke of buffaloes, value 
 
 * I am indebted to Mr. A. E. Andree (Kaiidy) for Itie materials of a full 
 report of this case. The minutes are generally copies of the bare decrees 
 of the Supreme Court. Many of the reports in this work have, accordingly, 
 been drawn after consulting the original records, a plan, however, which 
 for obvious reasons, has not been followed iu all cases. 
 
158 
 
 £6, which he had in deposit from appraisers of the said estate ; 
 but which he refused to deliver. The defendant put in a denial 
 of the claim. The plaintiff called one witness, (one of the 
 appraisers), who stated, that he, together with another, upon an 
 order of the Court, appraised the property of the deceased, and 
 delivered them over to defendant for safe keeping till further 
 orders. A yoke of buffaloes was also included in the list of 
 appraisement which was also placed in defendant's custody. 
 The list was filed in the Testamentary Case in the District 
 Court. The plaintiff also filed in evidence a " true copy" of 
 the list of appraisement. The Commissioner gave the follow- 
 ing judgment : — 
 
 I consider that this action against defendant cannot be main- 
 tained. In the first place (in the absence of any order of Court) 
 the appraisers had no authority to place the property in bis 
 charge ; and if they did take such a step at their own risk, they 
 should at least have obtained a proper receipt for the property 
 so placed in defendant's charge. The document filed by de- 
 fendant purports to be a " true copy" of the list of appraise- 
 ment, but the copies of the signatures of the appraisers are 
 wanting ; and as the original must, it is presumed, be in exis- 
 tence, good cause should have been shewn, why such original 
 could not be produced, before a copy should be admitted. Claim 
 is dismissed with costs. 
 
 The Petition of Review stated : — 
 
 That the document ought to have been received in evidence, 
 as it was an official copy of the list of appraisement filed in 
 Testamentary Case, No. 19,814, Kandy ; and signed by the 
 proper officer of the District Court. 
 
 The Supreme Court, in Review, corrected the judgment 
 below, by non-suiting the plaintiff with costs, commenting as 
 follows : — 
 
 The office-copy of the inventory could be received in evi- 
 dence, only on being proved to be correct by some one who had 
 examined it with the original, and who must be called as a 
 witness for that purpose. It would be better to produce the 
 original, on another trial, for the appraiser to refer to it in order 
 to refresh his memory ; and he does not depose to there being 
 any buffaloes, and there is no proof that the yoke of buffaloes 
 claimed were ever delivered to defendant. He speaks gene- 
 
159 
 
 rally as to " property," excepting that he states that he gave 
 over no cattle. — Per Carr. 
 
 26. Jaffna, 6,906i Set aside. August 29, 1850. 
 The plaintiff having withdrawn the former case, does not 
 
 preclude him from instituting this suit. — Per Carr. 
 
 27. DKatura, 3,927. Review refused. Sept. 10, 1850. 
 
 It is ordered, that the petition of Review, which has been 
 filed, be rejected, as it is not expressed in becoming language, 
 and contains untrue statements in reference to the plea re- 
 corded. — Per Carr. 
 
 28. Jaffna, 6,981< Set aside. Sept. 17, 1850. 
 
 Set aside for want of jurisdiction. The title to the premises 
 is in dispute between the parties, and the plaintiff must be 
 referred to the District Court.* — Per Carr. 
 
 29. Galle, 3,6^0, Set aside. Sept. 17, 1850. 
 
 Remanded for further evidence and new decision. The Court 
 of Requests has no jurisdiction in cases of cattle trespass, 
 proceeding under the Ordinance No. 2 of 1835; the exclusive 
 jurisdiction therein being vested in the Police Courts under the 
 Ordinance No. 5 of 1848. But if a party does not wish to 
 avail himself of the benefits of the provisions of the former 
 Ordinance, which gives a summary redress by a proceeding of 
 a mixed civil and criminal nature, he may still recover, in the 
 Court of Requests, the amount of damage proven to have been 
 done to his crops, or plants, in the ordinary action for trespass ; 
 and the several requisites of the former Ordinance not being 
 applicable thereto, the plaintiff need not prove a compliance 
 therewith to entitle him to judgment. — Per Carr. 
 
 30. Ratnapoora, 871< Set aside. Sept. 24, 1850. 
 
 Remanded for evidence and judgment thereon. 
 The circumstance of the parties having been joint owners 
 under the original purchase of the paddy rent from Govern- 
 
 * A case would be out of the jurisdiction under Ord. 22 of 1862, if the 
 title to lands exceeding £10 in value, be in dispute between the parties. 
 
160 
 
 ment, does not preclude the plaintiff from subsequently pur- 
 chasing all the defendant's right or interest, or any particular 
 share or portion of the joint property, and suing him for it on 
 breach of the contract. — Per Carr. 
 
 31. Jaffnai 6|989. Set aside. September 24, 1850. 
 
 Plaintiff's case dismissed with costs. 
 
 It does not appear, that the defendants were obliged to attend 
 the ceremony under any special contract; however, the presents, 
 being voluntary, are not recoverable at law, and the defendants 
 therefore, are not liable to render any compensation for the 
 same in this action. Marsh. Dig. 658. — Per Carr. 
 
 32. Meg^uxubo, 3,603. Set aside. September 24, 1850. 
 fiemanded to hear the other evidence and give judgment 
 
 thereon. 
 
 The plaintiff 's case ought not to have been stopped after 
 hearing one witness only, as the proof of the admission by the 
 defendant, of his having received and sold the cinnamon, would 
 be suiScient in law, if satisfactorily proved, without any further 
 evidence, of the delivery, and the latter, being stated to have 
 occurred in Kandy, it would be also probably difidcult and 
 expensive to adduce the witnesses present at it. — Per Carr. 
 
 33. Jaffna, 6,796. Set aside. September 24, 1850. 
 The Court of Requests, having no power to try the title to 
 
 land, ought not to have proceeded after the plea ;* moreover it 
 cannot try a question which forms the subject of a trial pend- 
 ing in some other competent Court, and the evidence shews, 
 that the right to this land is in dispute between the parties in 
 the District Court.-^Per Carr. 
 
 34. ITegrumbo, 3,505. Set aside. September 24, 1850. 
 
 The plaint dismissed with costs. 
 
 Both the plaint and the evidence are insufficient to support 
 an action for malicious prosecution. The plaint simply states, 
 that the defendant has " falsely'' accused the plaintiff; but the 
 
 * If the land is worth more than £10, the Court of Requests ought not 
 to proceed after the plea of jurisdiction. 
 
161 
 
 charge must be alleged to be wilfully false, and malicious : and 
 the plaintiflP must adduce evidence of malice, and want of pro- 
 bable cause, to maintain the action.* — Per Carr. 
 
 35. ItXadewelletene, 2,167. Cobbected. October 1, 1850. 
 
 Corrected by judgment being entered for the plaintiff", to 
 recover £2. 10s. with costs from the defendant, he not having 
 proved his plea of payment. — Per Carr. 
 
 36. Kandy, 7,754, Sbt aside. . October 1, 1850. 
 
 The plea recorded is " defendant pleads prosecution ;"f ' 
 but the Court ought not to have received or acted upon the 
 letter from the defendant to the clerk of the Court. The case 
 is remanded for the plea to be properly entered, and the Court 
 will hear the case de novo ; but proof of verbal promises or 
 admissions only, without any act done, is not sufficient to take 
 the case out of the prescriptive Ordinance. — Per Carr. 
 
 37. Colombo, 9,662. Set aside. October 1, 1850. 
 The plaintiff" claimed from the defendant the sum of £3, the 
 
 rent for the month of April, 1850, of a house, the property of 
 the plaintiff". The defendant admitted, to have taken upon a 
 lease (the term of which was expired) the house in question ; 
 but contended, that there was an action of the defendant against 
 the plaintiff", pending in the District Court of Colombo for 
 expenses incurred in repairing the said house. Judgment went 
 for plaintiff" against defendant for £3, and costs. The defen- 
 dant petitioned the Supreme Court, 1st, That the plaintiff" didnot 
 adduce evidence, that the house was rented at £3. and not at 
 £1. 10s. Od. 2ndly, That the Court had received much illegal 
 evidence. 3rdly, That the Court did not allow defendant's 
 plea of set-off". 4thly, That the Commissioner was much in- 
 fluenced by the irrelevant matter brought to his notice by the 
 clerk and interpreters of the Court. For these and reasons 
 to be shewn by counsel, the defendant prayed for a reversal of 
 the judgment, and that the plaintiff" should be referred to her 
 
 * Cases for malicious prosecution are not within the jurisdiction of the 
 Courts ot Requests.— Orrf. 22 q/" 1852, § 3. 
 t This appears to have been the fact. The defendant meant prescrip- 
 
162 
 
 right to plead by way of set-off the rent against the claim of 
 the defendant in the District Court. 
 
 Mr. Cramer, (Secretary of the District Court) was sole 
 witness for the defence. He produced a case in which a lease 
 was filed (a copy of one) : but could not identify the parties, 
 nor did he know, that the defendant in this case was the person 
 who filed the copy of the lease. 
 
 At the commencement of the proceedings, " the case No. 
 9,471 is referred to; and received in evidence" by the Com- 
 missioner. • 
 
 The Supreme Court set aside the judgment below, and non- 
 suited the plaintiff with costs, on the following ground : — 
 
 The former cases* were improperly received in evidence, as 
 there is no admission or proof that they were between the same 
 parties and relate to the same premises, nor would the decrees 
 alone in those cases, if duly proved, entitle the plaintiff to 
 recover the full amount of rent now clainied by her. — Per Carr. 
 
 38. Colombo, 9,995. Set aside. October 1, 1850. 
 
 The parties in this case were the same as in Colombo 9,662. 
 In the present, the plaintiff claimed rent for the month of May, 
 1850. The defendant admitted to have taken the house at 
 £1. lOi. ; but not at £3. 
 
 At the trial, the cases 9,662 and 9,471 were referred to and 
 received in evidence. Also, the cases Nos. 8,101 and 8,879. 
 On this judgment went for plaintiff's claim. The defendant 
 appealed, — That the decree was against law. That the plain- 
 tiff had not proved the rate of rent. That the Court below 
 did not receive and did not allow proof of plea of jurisdiction 
 to the Court ; but took down and recorded only a part of the 
 defence. That defendant was prepared to prove that there was 
 an account between him and the plaintiff to the amount of 
 £47. Os. Sd. due by plaintiff to the defendant. That defendant 
 was entitled to withhold the rent in part satisfaction of the debt 
 due. That the appellant had produced a written statement of 
 
 * On reference to the letter of the Commissioner to the Registrar, of tlic 
 20th August, and the order of the Supreme Court of the 13th Augnst, it 
 appears that the former was called upon to forward the evidence taken in 
 the cases Nos. 9,662, 9,595, 9,996, 9,978. 
 
163 
 
 his account with plaintiff; but the Court had refused to hear 
 the appellant or call his witnesses. 
 
 The Supreme Court set aside the decision on the same ground 
 as in the preceding case. 
 
 The former cases were improperly received in evidence, as 
 there is no admission or proof that they were between the same 
 parties, and relate to the same premises, nor would the decrees 
 alone, in those cases, if duly proved, entitle the plaintiff to 
 recover the full amount of rent now claimed by her. — Per Carr. 
 
 39. Korneg'alle, 2,438, Affirmed. October 17, 1850. 
 
 If the defendant resides at Paregahadenniye, where the goods 
 were sold and delivered, and that place is not situated within 
 the limits of any Court of Requests, being between those of 
 Madewelletenne and Kornegalle, — the plaintiff's only remedy 
 is to proceed in the District Court having jurisdiction over 
 Peregahadenniye. — Per Carr. 
 
 40. Madewelletene, 2,248. Cobbected. Nov. 12, 1850. 
 
 On the 17th October, the evidence taken in this case was 
 called for, the Supreme Court remarking — The Record Book 
 does not state that any evidence was taken ; yet the plaintiff'^ 
 evidence must be taken on interlocutory judgment, (see 17th 
 and 19th Rules) ; and, unless the defendant, on examination, 
 has admitted more due, the plea only entitles the plaintiff to 
 recover 10*. and costs so far. 
 
 The final decision was as follows .- — 
 
 The plaintiff having failed to adduce evidence in proof of 
 his full claim, is only entitled to recover the amount admitted 
 by the defendant's plea. — Per Carr. 
 
 41. nXatura, 3,927. Cobrected. November 12, 1850. 
 
 Remanded for re-hearing and judgment de novo. 
 
 The plea is a good defence to the plaint, as it appears on the 
 record, but the plaintiff may reply, that his claim is not barred 
 by prescription, inasmuch as he held lands mortgaged for the 
 amount in payment of interest up to the year 1 844 ; and written 
 pleadings not being required in the Court of Requests, he may 
 so reply orally at the hearing ; and if denied by the defendant, 
 plaintiff must adduce evidence thereon. Parol evidence of 
 
164 
 
 defendant's admission of the debt due would be admissible, if 
 not accompanied by some act, from which the Court shall be 
 satisfied that the debt due has not been paid. — Per Carr. 
 
 42. 'SILaXi.a.saxa., 42Z> Affirmed. November 19, 1850. 
 
 The Court of Requests has clearly no jurisdiction in this 
 case. The plaintiff having been put into possession under a 
 decree of the District Court, any subsequent trespass by the 
 defendant is a ground for a fresh action in that Court ; and in 
 such suit, the plaintiff would recover, in proof alone of the 
 decree and act of trespass, unless the defendant could shew 
 that she had acquired a good title to the land subsequent to 
 the plaintiff's decree. — Per Carr. 
 
 General Note to Hie Decisions of 1850, 
 
 Two judgments were set aside, on the ground that the evidence of the 
 plaintiff should be hear4 before giving interlocutory judgment, under the 
 Rules Nos. 17 and 19. The following have been omitted to prevent repe- 
 tition, and were decided on that, ground ; — Jaffna, 6,868, 24th September, 
 and Putlam, 5,377, 29th October. 
 
 Petitions of Keview were rejected, as lodged after the lapse of time pre- 
 scribed in the Rules and Orders: — Kornegalle, 1,607, 7th May; Caltura, 
 2,674, 8th August ; MuUetivoe, 1,469, 12th November. 
 
 Review was allowed under the particular circumstances of the case, in 
 Kurnegalle, 2,581, 12th November. 
 
 In Hambantotte, 742, 19th November, the Supreme Court called for the 
 evidence, as there was no record of the decision of the Court as to a net in 
 dispute, and as to costs. 
 
165 
 
 DECISIONS 
 
 OF 
 
 THE SUPREME COURT 
 
 ON 
 
 REVIEWS FROM THE COURTS OF REQUESTS. 
 
 1851. 
 
 1. Jafiba, 7,226. Set aside. Jarmary 7, I8dl. 
 
 It is no bar to the present action, that the claim could have 
 been set-off in a former action. — Per Oliphant. 
 
 2. Jaffnai 7,033. Set aside. Janvary 7, 1851. 
 
 The judgment in the former case only amounted to a non- 
 suit, and not judgment for defendant ; the present case must 
 therefore be entertained. — Per Oliphant. 
 
 3. Jaffna, 7,179. Affikmed. January 21, 1851. 
 
 As the last step taken in the case No. 13,215 was on the 23rd 
 July, 1845, the Proctor should have sued for his costs within 
 three years from that time, otherwise his claim would have 
 been prescribed, if he had lived at the expiration of such three 
 years, viz., on the 23rd July, 1848 ; but, as he died before the 
 term had expired, viz., 16th July, 1848, his administrator had 
 one year more from the date of his death, viz., from the 16th 
 July, 1849; and the present action not having been instituted 
 until the 15th August, 1850, is clearly prescribed. — Per Carr. 
 
 4. nZatura, 4:,122. Set aside, Jarmary 28, 1851. 
 
 In this case the plaintiff complained, that the defendant was 
 in forcible possession, of one-fifth fromfourteen-fifteenths shares 
 of a garden and the building theieon, the property of the 
 
166 
 
 former,— from the 24tli of June up to the institution of suit 
 (21st September, 1850;) — That the said shares of immovable 
 property had been adjudged to this plaintiff by the District 
 Court of Matura, in the suit No. 15,160, on the 5th dav of 
 September last. The plaintiff claimed consequent damages 
 to the amount of One pound and nineteen shillings. The 
 defendant admitted having possessed the shares of the immove- 
 able property as stated ; but denied the plaintiff's right to 
 recover damages on account of defendant's possession. The 
 plaintiff got interlocutory judgment, which was opened by the 
 defendant on the 22nd November, 1850, and on the same day 
 final judgment was given for plaintiff with costs. The case 
 was transmitted, in review, to the Supreme Court. The judg- 
 ment below was set aside with the following remarks : — 
 
 The defendant should be allowed to enter into his defence, 
 and his evidence be heard. If the plaintiff, in the suit which 
 he instituted in the District Court, had claimed in his libel any 
 damages, and had failed to recover the same, as appears by the 
 decree, it is a good defence to his claim in this case. — Per Carr. 
 
 [After the decision of the Supreme Court, the case No. 
 15,160 of the District Court of Matura was produced in evi- 
 dence, and it appeared, that the plaintiff had claimed damages 
 in his libel, but without success. The Commissioner therefore 
 entered judgment for defendant with costs.]* 
 
 * The Supreme Court, in a case of mesne profits, where theplaintiif had 
 brought a previous action for the recovery of the land and succeeded there- 
 in, saw no reason why the plaintiff should not have made his claim for mesne 
 profits in the previous suit. — District Court of the 4 Cortes, 4,234, ■per 
 Carr, Nov. 30, 1836. 
 
 In the present case (Matura, 4,122, C. R.) it appeared that damages were 
 claimed in the previous action, but unsuccessfully ; and that was held to 
 be good defence to a subsequent action for the same damages. In tlie 
 District Court case, given above, the Supreme Court also held, that a sub- 
 sequent suit for damages tends to harass the defendant witli the costs of 
 additional litigation, which is also unnecessary, as tlie claim could be brought 
 in the suit fqr the land, when the Court could give a proper decision upon 
 the whole evidence. 
 
 Where the libel or plaint, however, claims damages from the commence- 
 ment of the trespass to the inslitiition of the suit, a subsequent action could 
 be brought for the subsequent damages, as for instance for compensation 
 for ntesne profits from the institution of the suit to the recovery of posses- 
 
167 
 
 5. G-alle, 4,094. Set aside. Jannary 28, 1851. 
 
 This case came on at first on the 7th January, 1851, when it 
 was ordered — that the case be returned to the Commissioner 
 to insert in the column of remarks, whether, as the defendant 
 had pleaded prescription, the Court had called upon the plain- 
 tiff to negative the plea and save prescription by proving pay- 
 ment of interest or otherwise. — Per Oliphant. 
 
 It appearing that the Commissioner had not done so, the 
 judgment was set aside, and it was ordered — that the plaintiff 
 be called upon to negative the plea, and save prescription by 
 proving payment of interest. — Per Carr. 
 
 6. Putlam, 5,928. Set aside. February 4, 1851. 
 
 This was a case under the 11th clause of the Ordinance No. 
 10 of 1843, whereby the jurisdiction of the Courts of Requests 
 did not extend to the disputed balance of an unsettled account. 
 
 The object of the 1 1th clause of the Ordinance was to pre- 
 vent the Courts of Requests having jurisdiction in cases of 
 accounts exceeding Five Pounds ; but the present case does 
 not fall within that clause, unless the defendant should dispute 
 the bond or receipt thereon, because the sum of £4. 13s. Od. is 
 admitted to have been paid, and a receipt for it being endorsed 
 on the bond, the claim is so far settled. The action for the 
 remaining £3. ISs. Od. due on the bond, with interest on such 
 sum, therefore, ought not to be viewed as a debt, being the 
 disputed balance of an unsettled account, in which the Court 
 would be called upon to open and investigate the whole account, 
 to ascertain if any, and what, balance were due. — Per Carr. 
 
 7. Futlam, 5,590. Set aside. February 11, 1851. 
 
 The Court of Requests has no jurisdiction to try a suit for 
 alimony, whereby the rights of parties would be bound, in 
 future.* Nor can the Supreme Court assent to alimony being 
 payable to a wife for a period of a year, in which she has been 
 
 In an action for possession of a house, for house rent and costs of suit, 
 without a prayer for general relief, the Supreme Court held, that the District 
 Court could not give judgment for subsequent arrears of rent. — Colombo 
 North. District Court, 12,126, per Carr, December 14, 1836. 
 
 * This was under Ord. 10 of 1843, § 5, which clause was expressly 
 repealed. 
 
168 
 
 living in open adultery with another man. The parties will 
 respectively bear their own costs, as the conduct of both has 
 been blameable. — Per Carr. 
 
 8. I^atura, 4,313. Affirmed. February 19, 1851. 
 
 Defendants ought to have availed themselves of the plea of 
 prescription in the Court of Requests, and the defence cannot 
 now be admitted — (in review or appeal.) — Per Carr. 
 
 9. Putlam, 5,847. Set aside. February 19, ISSl. 
 
 The Supreme Court has abeady decided, that suits for ah- 
 mony, by which the rights of parties, in future, may be bound, 
 are not within the jurisdiction of the Courts of Requests : but, 
 as the defendant has not pleaded to the jurisdiction, but gone 
 into the evidence, both parties are to bear their own costs in 
 this case.*- — Per Carr. 
 
 10. K.omeg'alle, 727. Set aside. February 19, 1851. 
 
 The plaintiff has no right to recover rent from the defendant 
 for the use and occupation of the house in question ; as it was 
 built by him with leave of the owner, and the claim in the libel, 
 and the decree in the case No. 10,900, in the District Court, 
 do not extend to the house, which by the Kandian law, the 
 defendant might still possess, as having been built by him, 
 although the owner recovered possession of the garden ; and 
 even on being ejected, he would stOl be entitled to remove the 
 materials. — See Armour, 286. The parties must be referred 
 to the District Court to settle their mutual claims, as the Court 
 of Requests has no jurisdiction therein, because the right in 
 future of the parties, clearly, will be bound by the judgment, 
 even if the title to the portion of the land on which the house 
 stands, be not still involved with the right of way to the house ; 
 upon the plaintiff bringing his suit in the District Court, his 
 title ought to be most anxiously and strictly scrutinized, as it 
 appears that he claims by purchase from the former owner, 
 who recovered the garden from the defendant, in a suit where- 
 in the plaintiff acted as proctor. — Wood v. Dowries. 18, Ves. 
 
 * The clause by which the jurisdiction of Courts of Requests did not 
 extend to suits in which future rights might be bound, stands repealed. 
 
169 
 
 120. Bdlew V. Bussell. 1 Ball §• B. 96. Wright v. Proud. 
 13 Ves. 138.*— Per Carr. 
 
 11. Batticaloa, l,507i Set aside. March A^\i5\. 
 
 The defendant undertook to cut and deliver to the plaintiff 
 a certain quantity of ebony, binding himself in a penalty. 
 Plaintiff now sues for the penalty. The defendant admits the 
 bond, and disputes the claim ; but it is not stated on what 
 grounds. No evidence or examination of parties appears on 
 the record ; but the plaintiff's claim is dismissed, without stating 
 on what ground. The Registrar wrote, by direction of the 
 Supreme Court, to the Commissioner, to learn upon what 
 ground the case was dismissed ; when the Commissioner an- 
 swered, that, by the bond, plaintiff had bound himself to pro- 
 cure the license, which he admitted having neglected to do. 
 The Supreme Court set aside this dismissal, because no reason 
 appeared upon the record for it. The case was again heard 
 before the Commissioner ; who, upon defendant's admission of 
 the bond, and non-delivery of the timber, but without any re- 
 
 * Beneficial contracts and conveyances, obtained by an attorney from 
 his client during their relation as such, and connected with the subject of 
 the suit, being also liable to the charge of Champerty, decreed to stand a.s 
 a security only for what was actually due ; and purchases by the attorney 
 declared a trust. — Wood v. Dowries. 18, Vesey, 120. 
 
 A grant of a leasehold interest from a client to his attorney (a near relation, 
 for whom, being on bad terms with all his other relations, he expressed 
 great friendship) in consideration of £1,000, secured by Bond, afterwards 
 released, and in consideration of being indemnified from all costs, suits and 
 expenses, if the title should be impeached, the attorney re-dismissing the ' 
 lands at a nominal rent, for the lives of the client and his wife, — not such a 
 dealing between attorney and client, as is impeachable on a bill, by the 
 next of kin of client, who acquiesced in it for several years till his death, 
 and who in his answer to a bill recognised it as fair, but a mere preference 
 of one relation to others, who had disobliged him. — Belleu) v. Russell. 1, 
 Ball Sf BeaUy, 96. 
 
 So, independent from all fraud, an attorney shall not take a gift from his 
 client, while the relation subsists ; tliough the transaction may be, not only 
 free from fraud, but the most moral in its nature. — Wright v. Proud. 13. 
 Vesey, 137. 
 
 A Court of Equity, upon general principles of policy, will set aside any 
 gift made by a client to an attorney during the time when the attorney has 
 in his hands the transaction of the client's affairs, without any proof of 
 actual fraud.— TVe/Zes v. Middleton. 1, Cox, 112. 
 
 2 a 
 
170 
 
 ference to the plaintiff's admission that he had not supplied, the 
 license, as he ought to have done, — gave judgment for plaintiff 
 upon the ground that the Supreme Court, in review, did not 
 agree with the Commissioner on the point of the Government 
 license. Upon this point, the Supreme Court never expressed 
 any opinion. The former dismissal of the case was set aside, 
 because the record shewed no reason for it; and because, upon 
 leading the Commissioner's letter, dated 2nd May, 1850, the 
 bond was not, as shewn by the record, before the Court, to 
 establish the liability of plaintiff to procure the license; nor 
 did any admission by the plaintiff of his having neglected to 
 procure it, appear, from the record, to have been made by him. 
 
 The dismissal was set aside, and the case remanded to be 
 proceeded with, in order that all evidence and admissions sug- 
 gested, might be properly taken and recorded; audit is again 
 sent back for such a purpose ; and if the bond, being admitted 
 by the defendant, provides that the license is to be procured 
 by the plaintiff, he can only obtain a decree upon proof that 
 he has supplied the license. 
 
 If, on the other hand, plaintiff admits that he has failed to 
 supply the license, such admission must be entered on the pro- 
 ceedings, in order that the Supreme Court may, on review, 
 have legal data to go upon, instead of deriving its information 
 from a letter of the Commissioner. — Per Temple. 
 
 [The case was remanded to be proceeded with.] 
 
 12. Batticaloa, 2,1.11. Set aside. March 4, 1851. 
 
 There is no legal evidence of divorce, the mere admission of 
 parties not being sufficient. The Supreme Court further con- 
 siders, that the parol evidence tendered by the defendant was 
 wrongly rejected. (See Ordinance jSTo. 7 of 1840.) — Per Temple. 
 
 13. Jall^a, 7,959. Set aside. March 4, 1851. 
 
 This was an action by a servant for his wages. 
 
 The plaintiff had entered into a monthly contract to serve 
 the defendant as a cook. He obtained from his master leave 
 of absence, upon the condition of finding a proper substitute. 
 This condition, it has been found, he did not perform, and, 
 consequently, he improperly absented himself from his duties, 
 and by so doing, did not complete the contract he had entered 
 
171 
 
 into with the defendant, to serve him for the month of Novem- 
 ber; and having thus failed, he cannot demand his wages for 
 that month. — Per Temple. 
 
 14. IMCadeweltenne, 2,753. Set aside. March 11, 1851. 
 
 There is no evidence that the parties are divorced. The 
 plaintiff cannot therefore maintain his action ; because neither 
 the wife nor husband can sue each other. — Per Temple. 
 
 15. matura, 4,435. Set aside. March 11, 1851. 
 
 The Supreme Court is of opinion, that the plaintiff can bring 
 his action to recover the value of the buffalo against the per- 
 son to whom he had lent it. — Per Temple. 
 
 16. Jaffna, 7,976. Aepiemed. March 18, 1851. 
 
 Respecting the defendant's personal expenses, the judgment 
 was pro tanto set aside. 
 
 It has never been the practice for a party to be allowed such 
 expenses, and no provision is made for such allowance — Per 
 Temple. 
 
 17. DIatelle, 1,096. Set aside. April23,l%5\. 
 
 The question was, whether a certain land was liable to pay 
 a tax of one-tenth, or one half of the produce ? Under the 5th 
 clause (now repealed) of Ordinance No. 10 of 1843, the ques- 
 tion was held, as" affecting future rights, to be without the 
 jurisdiction of the Court of Requests. — Per Temple. 
 
 18. Galle, 4,590. Set aside. ApriliS,\65l. 
 The defendant admitted the bond, but denied ^he receipt of 
 
 the consideration. The issue between the parties is, whether 
 such consideration was received or not ; and the Commissioner- 
 should proceed to hear evidence upon that issue. — Per Temple.. 
 
 19. Batticaloa, 2,103. Set aside. May, 6, 1851.. 
 In a case where the third defendant was mentioned as the 
 
 assignee of one Catancodyrpoe, — but it did not appear that the 
 latter had any connection with the other defendants, or whence 
 arose the plaintiff's right to sue, — the plaint and proceedings 
 
172 
 
 were declared unintelligible,. and judgment thereon set aside. 
 — Per Temple. 
 
 20. Mallag'a'mi 591. ArriKMED. May 6, 1851. 
 The second defendant, as the heiress of the deceased wife, 
 
 appealed, on the ground that she ought not to have been con- 
 demned to pay the whole debt, but only one moiety. 
 
 The judgment does not entitle the plaintiff to recover the 
 whole amount from the second defendant. It complies with 
 the prayer of the plaint, and gives judgment for plaintiff against 
 the defendants, generally. The plaintiff, therefore, can only 
 recover the debt in such a way as he is by law entitled to ; — 
 the law upon the subject being as follows : — 
 
 " Although it has been agreed that every one of the debtors 
 should be bound for the whole debt, yet it is nevertheless di- 
 vided among them ; and the creditoi- cannot immediately sue 
 any one of them for the whole debt ; but, before he demands 
 from one the portion due by the others, he ought to discuss 
 every one for his own portion, and he may afterwards recover 
 the portions of those who are not able to pay, from the re- 
 maining debtors."— X>omai;, p. 390. B.3,T. 3. Orotius, p. 291, 
 JS. 3, c. 3, sec. S.*—Per Temple. 
 
 21. Ja^na, 8,309. Review beeused. June 10, 1851. 
 
 The time for filing a petition of Review, under Ord. No. 10 
 of 1843, having been limited by the Rules and Orders, at three 
 days, held, that no discretion was left to admit such petition 
 after the prescribed time.! — Per Temple. 
 
 22. Sentotte, 3,137. Set aside. June 17, 1851. 
 The Commissioner of the Court of Requests cannot refuse 
 
 * The passage quoted is from Domat, The passage in Grolius is as 
 follows ; — "When there are several principal debtors [correi debendi), they 
 must, according to the recent Roman law, be all cited alike, and the claim 
 may be satisfied by each paying in proportion ; but, if one willingly pays 
 the whole debt, he releases the others, but has recourse against the co- 
 obligers j but, if he should be released as far as regards himself without 
 payment, that docs not excuse the others." Ut supra. 
 
 t By Ord. 22 of 1852, § 12, the prescribed time for filing a petition of 
 appeal is seven days. See the general note at the end of the decisions of 
 1851. 
 
173 
 
 to entertain a suit, because he considers that no amovint of 
 prool' will convince him. The case should be first heard, when 
 the Court will have an opportunity of forming an opinion of 
 the evidence. — Per Temple. 
 
 23. Bentotte, 3,121. Set aside. June 17, 1851. 
 It is not sufficient reason for refusing to entertain the case, 
 
 that the plaintiff did not, on a former occasion, assert his title 
 to the boat. — Per Temple. 
 
 24. Avishawelle, 1,710. Set asisk. July 8, 1851. 
 
 Held, under the former jurisdiction, where a mortgage bond 
 set up a title to the possession of the lands until the debt be 
 paid, that the Court of Requests had no jurisdiction.* — Per 
 Oliphaid. 
 
 25. K,andy, 9,253. Set aside. July 8, 1851. 
 
 Where the defendants had bound themselves to re-pay ,£1. 6d. 
 (money lent) not in hard cash, but in the shape of seven par- 
 rahs of coffee at the market price, held, that plaintiffs should 
 have been allowed to prove the value of the cofiee. — Per 
 Oliphant. 
 
 26. Negruinbo, 4,147. Set aside. August 2^,1851. 
 In this case, the plaintiflF, on behalf of the Crown, complained 
 
 that the defendants, the first as principal, and the second as 
 security, were indebted to the Government in 8s. \^d., being 
 commutation tax for the years 1841, 1844, 1845, 1846, and 1847, 
 with interest at the rate of 9 per cent, from the 1st Januaiy 
 1841, due on bond dated 21st January 1840, for the payment 
 by defendants yearly of 7|d. in lieu of tithes for the lands 
 belonging to them. The debt was admitted by the second 
 defendant, as security for the first. Judgment was given for 
 plaintiflTin 'is. \\d., and interest was not allowad, as not stated 
 in the bond. This judgment was set aside, as regarded the 
 disallowance of costs, which was declared by the Supreme 
 Court to be payable in such case by the third clause of Regu- 
 lation No. 3 of 1818.— Per Oliphant. 
 
 * This will hold, under the present jurisdiction, in all similar cases where 
 the land is above the value of £10. 
 
17-4 
 
 On reference to the letter book of the Supreme, Court, it 
 appears, that some correspondence followed this decision. In 
 reply to the Commissioner's letter, the Registrar explained, 
 that the Ordinance intended to be quoted was No. 18 of 1823. 
 By the third clause of the Regulation No. 18 of 1823, in the 
 case of bonds for the payment of money on a certain day, 
 interest is allowed, in default of payment, from the date of 
 such day. 
 
 27. Ueg^umbo, 4,195. Affirmed. September 3, 1851. 
 
 This was an action for 6 parrahs of paddy, the renter's share 
 of the crops of certain fields cultivated by the defendant during 
 the Maha-harvest of 1851, and which crops the defendant 
 wrongfully threshed and removed, without allowing the plain- . 
 tiff his share as renter. 
 
 The debt was denied in the defence. Judgment was given 
 for the defendant ; and the Court, finding that the plaintiff's 
 " Government-Renter's Condition" was for the year 1850, and 
 not for 1351, decreed, — that the endeavour to impose upon the 
 Court was a contempt. Plaintiff was accordingly fined on the 
 next day, under the 7th clause of the Ordinance No. 10 of 1843. 
 
 The plaintiff appealed, that the cases Nos. 4,195 and 4,196 
 were instituted on the same day, and that at the time the two 
 plaints were taken down by the clerk of Court, the case No. 
 4,195, being the tax. for 1851 was taken down first ; and the 
 other case, 4,196, was taken down next, and inadvertently, also 
 for the tax of 1851, whereas it should have been entered as a 
 plaint for the tax of 1850, according to the conditions granted ' 
 by Government and produced to the clerk at the time. 
 
 The Supreme Court declared that it had no power to inter- 
 fere with the judgment ; but recommended the reviewant to 
 apply to Government for a remission of the fine —Per OUplumt. 
 
 28. Kandy, 1,0,250. Set aside. September 30, 1851. 
 
 This case was remanded to enter into the defence, and pro- 
 ceed in the usual course. 
 
 On the parties agreeing to settle their dispute out of Court 
 by the decision of the Aratchies, the case might have been 
 then withdrawn ; but it does not appear, that the parties agreed 
 that any judgment should be entered up by consent, for such, 
 
175 
 
 amount as the Aratcliies might certify to be due. The award, 
 also, not being on Stamp, cannot be enforced ; and the amicable 
 settlement having failed, the cause must proceed on its usual 
 course. The defendant however has clearly broken faith, and 
 is entitled to no indulgence from the Court, and should pay 
 the further costs incurred by his own misconduct. — Per Carr. 
 
 29. Tang^alle, 1,630. Review eejected. Sept.Z0,\%5\. 
 
 The petition was filed too late, and the Supreme Court could 
 not interfere on the ground of credit being due to witnesses, 
 who were disbelieved by the Commissioner.* — Per Carr. 
 
 30. Battlcaloa, 2,4:90. Set aside. Sept.^0,\%5\. 
 Remanded for re-hearing. The Court would not reject the 
 
 evidence of the plaintiff's wife's mother, if she was summoned 
 as a witness for the defendant, and he desired her evidence to 
 be taken. — Per Carr. 
 
 31. CMlaw, 3,009. Affirmed. October 7, 1851. 
 
 If the cattle of A. be agisted to B., and escape into the 
 plaintiffs land and commit trespass ; B. or A. may be sued. 
 Saund. Plead. 864,— Per Carr. 
 
 32. diavagraclierry, 2,528. Set aside. October 7, 1851. 
 
 The plaint stated, that the defendant granted a bond, dated 
 20th December, 1842, to the plaintiff's deceased son, and 
 received from him 15.s. That the defendant refused to pay to 
 the plaintiff as father and heir. And prayed for the sum of 
 15s. with interest at 12 per cent, from 20th December 1842, 
 until full payment, with costs. The defendant denied the claim ; 
 acknowledged the execution of the bond, but denied receipt 
 of consideration : and denied the right of the father to recover. 
 The plaintiff in his examination, stated, that he had not applied 
 for administration. That his deceased's son, to whom the bond 
 was granted, had left no issue. The defendants brought to the 
 notice of the Court that the deceased had left two children, 
 and that the plaintiff was trying to defraud them, by selling 
 away all the property to which the children had a claim. The 
 
 * See § 10, Powers of the Supreme Court, pp. 4 and 5 of this work ; and 
 Ord. 22 of 1852, « 10. 
 
176 
 
 Court was of opinion, that the plaintiff should obtain letters of 
 administration, before he was allowed to recover on the bond. 
 The defendant petitioned, that it is laid down in the country 
 law or Thesewaleme, that, " if any of the sons dying, without 
 leaving children or grand children, their property devolves 
 and reveits to the parents," and according to this part of 
 the country-law, the plaintiff and appellant, was entitled to 
 recover the consideration mentioned in the bond, which was 
 acquired by the deceased son, during the time of his bachelor- 
 ship, and while under the paternal roof; and that there was no 
 necessity to take out administration, as none disputed the plain- 
 tiff's right to take the estate ; that the taking of the administra- 
 tion, by incurring expenses, would make the estate insolvent, 
 which was desirable to be avoided according to the circtim- 
 stances of the case. That under similar circumstances, in a 
 previous case, the Court had given judgment on the admission 
 of the defendant, without requiring letters of administration 
 to be taken out. 
 
 The case was remanded for hearing on evidence, and the 
 Supreme Court held as follows : — 
 
 " Unless the deceased son had left any property of more 
 value, the Court would not require administration to be taken 
 out for this bond of 15s., and there is no proof, that the de- 
 ceased son left issue. If the defendant has made any state- 
 ment to that effect (which is only recorded in the judgment) 
 the fact is distinctly denied in his examination." — Per Cafr. 
 
 33. Colombo, 12,807. Affirmed. October 14, 1851. 
 
 It is too late to question the competency of any witness after 
 the party has permitted the examination to proceed, as the 
 Court will not afterwards allow the objection to be insisted on, 
 because the testimony turns out unfavourable, and even the 
 discharge of the witness from the box is said to preclude fur- 
 ther objection.* Rose. Ev. 116. Fellinghamy. Sparrow. 9, Dow 
 
 * In Dewdney v. Palmer, the action was by the indorsee against the in- 
 dorser of a bill of exchange. The pleas denied the presentment and the 
 notice of dishonour. A witness was called and sworn as James Dewdney, 
 fcul was afterwards recognised as the plaintiff George Dewdney. The 
 counsel for defendant proposed to call evidence to shew that the witness 
 was the real plaintiff'; but it was successfully objected, that it was not one 
 
177 
 
 P. C. 141. Dewd V. Palmer, 'kM.SrW. 664. The proof of the 
 plaintiff's title is dispensed with, from its not being denied, and 
 the implied admission from the counter claim. — Per Carr. 
 
 of the issues to be tried. Tiie plaintiff obtained a verdict, and counsel foi- 
 defendant moved for a new trial ; contending that he was entitled to estab- 
 lish the fact, not with reference to the issues, but with a view of destroying 
 the credit of the witness, by shewing the imposition practised. But it was 
 held, that the proper time to object was on the voir dire, when, if the ob- 
 jection was successful, the plaintiff would have an opportunity of proving 
 his case by other evidence. — Dewdney v. Palmer. 4, Meeson and Welsby, 
 664. 
 
 The objection offered, in the first instance, in Dewdney .v. Palmer, was, 
 that the witness was incompetent on the ground of interest, being the real 
 plaintiff. Incapacity to give evidence on account of crime or interest 
 ceased to exist after 6 & 7 Vic, c: 105. See, on the Competency of Wit- 
 nesses, pp. 38 and 39 of this work. 
 
 It may be useful to cite Stone v. Blackburn, in an action on the case, for 
 negligently managing the defendant's vessel, whereby the plaintiff's lighter 
 was damaged. After the plaintiff's witnesses were examined and cross- 
 examined, it was discovered that they were interested. It was held, per 
 Lord Kenyon, that objections to the competency of witnesses Tiever come 
 too late, but may be made at any stage of the cause.— ^1, Espinasse, 37. 
 
 It should be remarked, that Dewdney v. Palmer is a much later decision 
 than Stone v. Blackburn, the years being, respectively, 2 Vic, and 33 Geo. 
 III. 
 
 As the decision of the Supreme Court of the 14th October, 1851, must 
 be supposed to have laid down the law of Ceylon on this point, which held 
 at the time, I add a few later decisions, in accordance with the plan of this 
 work. In Jacobs v. Laybom, where a witness for the defendant, to whom 
 several questions had been put in chief, stated, in answer to a question in- 
 terposed by plaintiff's counsel, that he (the witness) was answerable to the 
 defendant's coimsel for the costs, — it was more lately held, that an objec- 
 tion to competency, on that ground, did not cbme too late. Yardley v. 
 Arnold, and other cases on this point, were discussed in the argument.— .; 
 II, Meeson and Welsby, 685. 
 
 In enquiring, what is the law of Ceylon on this point, the question is : — 
 Does the decision of the Supreme Court in Colombo, (C. R., 12,807), lay 
 down our rule of evidence ; or must we look to subsequent decisions m 
 England ; as no evidence is admissible in any actidn in the Courts of Cey- 
 lon, which would not be admissible, in any similar action, in any of Her 
 Majesty's Courts of Westminster.-^Ord. No. 3 of 1846, J 2. 
 
 Though, as regards the practice of the Courts of Requests, under the 
 present law of competency, this subject need not be treated at greater 
 length ; yet, with regard to the present authority of this decision of the 
 Supreme Court, I shall add a section from Taylor, who is justly held in 
 great authority by the Supreme Court, as the rule on this point is the samd 
 
 2b 
 
178 
 
 34. Battlcaloa, 2,284. Set aside. October 30, 1851; 
 This case was remanded for re-hearing, on the ground of 
 
 irregularity. 
 
 The petitioner does not state, that he heard his own name 
 called, but the plaintiff's. Presuming, however, that he had 
 done so, he was clearly bound only to attend according to his 
 summons, which does not extend to his attendance at any place! 
 that the Commissioner may select for hearing causes on that 
 day, owing to his feeling unweU. — Per Carr. 
 
 35. Matelle, 1,5S3< Set aside. November 4, 1S51. 
 It is for the ■plaintiff to begin, as he must, in order to entitle 
 
 himself to recover the paddy from the defendant, first prove 
 his right to the property, which is not admitted by the defen- 
 dant. Nor is such proof dispensed with, or the onus thrown 
 on the defendant, of proving his own right in the first instance, 
 by his admission that he possesses the paddy, and is the owner 
 of the field. — Per Carr. 
 
 36. Galle, 4,863; Set aside. November 4, 1S51. 
 This case was set aside for irregularity in the proceedings. 
 
 in civil as well as criminal cases, and as the decisions reported m this work 
 are not all of authority exclusively in Courts of Requests. 
 
 " In regard to the proper tirm of iakijig the objection to the competency 
 of a witness, it is obvious that, from the preliminary nature of the objection, 
 it ought in general to be taken before the examination in chief. Indeed, it 
 has frequently been said by Judges, and sometimes so held, that a party 
 who is aware of any disqualification, cannot lie by and allow the witness to 
 be examined, and afterwards 6bject to his competency, if he should dislike 
 his testimony. However, this doctrine has been disputed by the Court of 
 Exchequer, who have hgld, in conformity with sdnie old decisions, that tlie 
 objection may be raised at any time during the trial, and that too, whether 
 the objector previously knew of the disqualification or not. The rule on 
 this subject is the same in equity as at law, and in criminal as in civil cases ;. 
 but, perhaps, in tnals for high treason, the old doctrine would still be re- 
 cognized ; and if the prisoner intends to object to a witness, as being omitted 
 from, or misdescribed ill, the list furnished to him, he must do so before the 
 witness is sworn in chi^f. In ordinary cases, if the objection to the com- 
 petency of a witness be not taken until after the trial, it will be considered 
 as coming too late ; and the Court will not grant a new trial for this cause 
 alone, unless the incompetency were known and concealed by the party 
 producing the witness, or other evidence can be given of mala praxis on 
 his paTU'—Taylor, 1241. 
 
179 
 
 The date of the bond is not stated, nor does it appear to have 
 been produced ; but that it is of old date is clear from the evi- 
 dence ; and as the defendant pleaded prescription, the plaintiff 
 ought to have begun ; and also, when the defendant proved, by 
 a witness, payment about eleven or twelve years ago, to allow 
 the plaintiff to adduce his evidence, some weeks afterwards, 
 was to give him a very undue advantage ; neither are the two 
 witnesses adduced by the plaintiff half examined. If the der 
 fendant can support the facts urged in his defence in the petition 
 of review, there can be no doubt as to the plaintifl^s case being 
 an unjust one, — and on stale demands, the Court is bound to 
 receive the evidence with great caution and scrutiny. — Per Carr. 
 
 37. Kandy, 10,718. Set aside. November 21, 1851. 
 
 This case was set aside for irregularity. 
 
 The Conynissioner has not satisfied the requirement of the 
 J5th clause of the Rules, by noting what was the objection to 
 certain written evidence, but merely contenting himself with 
 entering that written evidence was rejected. It does not ap- 
 pear, whether the defendant had notice to produce the letter 
 written to him by plaintiff; but if he had notice, and it were 
 not produced, then a copy of it would be admissible. It is 
 submitted to the Commissioner, that by the defendant's making 
 default, it has put it out of the power of the Commissioner to 
 bring into operation the 7th clause of the Oi'dinance No. 10 of 
 1843 ; and that it might have been better, in this case, to have 
 given plaintiff interlocutory judgment on the prijna facie case, 
 leaving it to the defendant to appear on a future day to set it 
 *side. — Per Oliphant. 
 
 38. ITuera Zillia, 760. Aeeiiimed. N'ovember 25, 1S51. 
 
 It is no irregularity that a witness is present during the ex- 
 amination of others, unless all witnesses were previously ordered 
 out of Court ; and the Judge can always call a bystander to 
 give evidence. 
 
 This Court cannot interfere with the finding on the facts, 
 being a Court of Review and not of Appeal.* — Per Oliphant. 
 
 * The Supremo Court is now a Courl of Appeal from Courts of Requests. 
 
180 
 
 39. Colombo, 13,156. Altered. December 2, 1851, 
 This was an action for £5, balance of £35, value of a printing 
 press sold by the plaintiff (Christopher Elliott) to the defendant. 
 Defendant admitted the purchase and receipt of the printing 
 press,- but denied that any balance was due, as the press was 
 bought for £30, not £35, and the plaintiff had been paid in 
 full. The defendant further insisted on his plea in bar of 
 plaintiff's claim, viz., that the claim was prescribed, not having 
 been brought within one year from the date qf purchase. 
 
 The first witness stated, that he was present when the sale 
 took place. That plaintiff had demanded £40, and defendant 
 asked for a reduction of the price. The witness believed, that 
 on the following day defendant paid the plaintiff £30, promising 
 to pay the other £5, Had heard the defendant say in Singhalese, 
 and the interpreter convey in Englisji, that the former would 
 give £35 for the press. 
 
 The second witness had acted as the interpreter between 
 plaintiff and defendant. Made a memorandum of sale at the 
 time : — " Gallegomue owes Dr. Elliott £5 more, on the pur^ 
 chase of a press, this 8th September, 1849." This witness also 
 stated the demand of £40, and the request for a reduction ; and 
 that the bargain was closed for £35. That the defendant pro- 
 mised to pay the other £5, without fixing any time. That 
 plaintiff allowed him to pay for it at his convenience. 
 
 The defendant said, that he had no evidence. That he had 
 not paid the £5 demanded ; but had only paid £30, which was 
 all that was dvje. 
 
 Upon the plea and evidence, the Commissioner gave judg-, 
 ment for the plaintiff with costs. 
 
 In review, the Supreme Court altered the judgment, into an 
 absolution from the instance with costs, with the following 
 remarks : — 
 
 There is no evidence whatever in the case, of any written 
 promise, acknowledgment, or admission made, or any act done 
 by the defendant, within the term prescribed for bringing ac- 
 tion, to shew that the sum of £5 has not been paid. The 
 defendant, in fact, pleads, " I have not made such agreement 
 as set forth by the plaintiff; but if he should prove that I have, 
 then I plead prescription as to that part which he says I have 
 pot paid." — Per Oliphant. 
 
181 
 
 40. Kornegalle, 4,470. Affirmed. December 23, 1851. 
 
 In this case, the claim shews no cause of action against the 
 defendant. The flowers alleged to have been broken down 
 and destroyed by the defendant, not being laid as the property 
 of the plaintiff, and the plaintiff has admitted the trees to be- 
 long to the defendant. — Per Stark. 
 
 41. Colombo, 13,155; Affirmed. December 31, 1851. 
 
 In this case, the plaintiff claimed from the defendant the 
 sum of £2. 14s., balance of £4. 10s., being rent for the month 
 of August, 1851, of a house and premises, the property of the 
 plaintiff, and rented by defendant, rent being payable monthly. 
 
 The defendant admitted the proprietorship of the house 
 alluded to in the plaint, and to have taken the same from the 
 plaintiff, the occupation thereof during the month specified, and 
 the rate of rent ; but, stated, that in terms of the 53rd clause 
 of the Ordinance No. 17 of 1844, he paid to the Government 
 Agent of the Western Province the sum of £2. 14s., being 
 arrears of Assessment tax of the said house, due six years ago, 
 which therefore the defendant had deducted from the rent of 
 one month of his occupancy. 
 
 The defendant was examined by the plaintiff, and put in 
 three receipts. A, B, and C, to shew the period for which he 
 paid the tax. 
 
 From these exhibits it appeared, that the tax in question was 
 for the three last quarters of 1845. The plaintiff admitted the 
 receipts and proposed to put in his title deeds, to shew that he 
 had become the owner of the house on the 19th October, 1846 ; 
 but the defendant admitted that fact, and that the plaintiff was 
 neither proprietor nor joint proprietor of the house when the 
 tax in question first became due. 
 
 The'plaintiff admitted, that the tax in question was not paid, 
 until the same was paid by defendant, when his property was 
 seized. He also admitted, that the consequent deduction was 
 made from the month's rent, in which the tax was paid. 
 
 Judgment was given by the Commissioner, dismissing plain- 
 tiff's claim with costs. 
 
 The plaintiff petitioned, that he was not liable for the tax to 
 Government, and that, therefore, the defendant did not pay it 
 
182 
 
 for his, the reviewant's use and benefit, and could not therefore 
 recover it from him or deduct it from his rent. 
 
 The judgment was affirmed in review, subject to the ques» 
 tions, whether the Supreme Court could, under the Ordinance 
 giving the power of review, entertain the case in review ? and 
 if it could, whether, under the construction of the Ordinance 
 No. 17 of 1 844, the defendant can resist the claim of the plain- 
 tiff", inasmuch as plaintiff was not the proprietor of the house, 
 when the tax became due, or any other reason ? 
 
 The following was the collective decision : — 
 
 The Supreme Court finds no sufficient reason in this case, to 
 open up the judgment of the Court of Requests. 
 
 The ground on which this has been asked by the plaintiff, is 
 alleged gross irregularity, by reason of the want of proof on 
 some material point in this case. But no such gross irregularity 
 has been shewn. 
 
 The plaintiff sues for a certain balance of rent on a house 
 occupied under hira by the defendant, and the defendant, 
 admitting ownership, possession, &c., says, he paid the Govern- 
 ment Agent the sum in question as arrears of Assessment tax, 
 and puts himself under the proviso of the Ordinance No. 17 
 of 1844, § 53, which entitles the occupant of a house, to deduct 
 from his rent the amount of tax paid by him under that proviso. 
 
 All the facts required on the face of that proviso are admit- 
 ted by the parties ; but it is alleged by the plaintiff, that certain 
 facts not appearing on the face of the proviso may be required, 
 according to the construction given to certain words and terms 
 in the proviso ; such as oivner : to what owner this shall be 
 held to apply; and amount of tax : to what period the tax in 
 question is limited, &c. 
 
 But these additional facts also were all before the Court 
 below, and no material fact whatever has been shewn by the 
 plaintiff to be wanting in the case. 
 
 It has been contended for the plaintiff, that the tax paid by 
 the defendant in this case, was for a period, when he, the plain- 
 tiff, was not owner of the premises, and that no request, express 
 or implied, on his part, can be shewn, to charge him with the 
 tax : but the period for which the tax was paid, and the time 
 when the plaintiff became owner, were in evidence before the 
 Court below, and in those circumstances, this Court will not 
 
188 
 
 interfere, to control the effect to be given to tlie evidence, or 
 the construction to be put upon the Ordinance. 
 
 It may be observed, however, that the difficulty in this case 
 is not, that the plaintiff was not owner at the time to which 
 the tax paid applies, for this might be said, where the owner- 
 ship had been changed within the month of within the quarter, 
 or within the year, in all of which cases, it is not contended, that 
 the agreement set up for the plaintiff would be of any force ; 
 but that the tax paid was an arrear of several years standing, 
 as to which there is no express provision in the Ordinance. 
 
 But, however this may be, the Supreme Court is not now 
 called upon to give any opinion on the points, there being, as 
 the Court thinks, no gross irregularity in the proceedings, as 
 alleged, to enable the Court to interfere. 
 
 In the Boat Company and Lambe's case, there was a want of 
 facts, on which the Court had proceeded to charge the defen- 
 dant ; but in this case, there is no want of facts, to enable the 
 Court to give its judgment upon the Ordinance. — Per OUphant, 
 Carr, and Stark. 
 
 GeTieral Note to the Decisions of 1861. 
 A good many cases have been omitted : — those in which the evidence 
 taken below was ordered to be transmitted to the Supreme Court; decisions 
 on the facts ; on the want of evidence of facts ; cases in which the Court 
 declined to interfere, on the ground of credit due to the witnesses ; in which 
 the reviewant was recommended to apply to Government for remission of 
 his fine ; rejecting petitions of review, under the Rules and Orders ; and cor- 
 recting the frequent error, of giving interlocutory judgment without sufficient 
 evidence. 
 
184 
 
 DECISIONS 
 
 THE SUPREME COtJET 
 
 ON 
 
 REVIEWS FROM THE COURTS OF REQUESTS; 
 
 1852. 
 
 1. nXatura, 5,016. S£t aside. Jamiary 13, 1852.- 
 
 It may be well, in particular cases, to follow the Commis- 
 sioner's suggestion, but here 'the judgment of ^£3, is perfectly- 
 arbitrary, there being no evidence as to the true nature, cha- 
 racterj and extent of the supposed damage. There are two 
 witnesses only examined, and one of them says, the first defen- 
 dant gave the plaintiff two blows, and the other calls them two 
 slaps, no consequence to the person seems to have ensued from 
 them, whatever they were^ or from any other. And it was 
 moreover the right of the defendant to have witnesses examined 
 in this case, either to shew the charge wholly false, or that the 
 treatment given to the plaintiff admitted of justification of 
 mitigation on the part of the defendants. — Per Stark. 
 
 2. Bentotte, 3,275. Axtbbed. January 20, 1852^ 
 
 The judgment is altered to the following, that the claim be 
 dismissed, a right of property in the garden or its fruits being 
 involved in the case, reserving to the parties or either of them 
 to try the right of property in any competent form. — Per Starh 
 
 3. Point Pedro, 873. Affirmed, January 23, 1852. 
 It appears to this Court very doubtful, whether such a case 
 
 as the present can be legally maintained in the Court of Re- 
 quests, with reference to the 5th clause of the Ordinance No. 
 10 of 1843.— Pej- Stark 
 
185 
 
 4. G-alle, 13,578. Set aside. Fehrmry 10, 1852. 
 
 The change in this case is theft ; but there is no judgment 
 on that charge, &nd the accused is fined 5s. for " having stolen 
 property in his possession,'' which is no crime, without guilty 
 knowledge, and this is not found. — Per Stark. 
 
 6. ICandy, 11,059. Set aside. February 17, 1852. 
 
 Set aside, and the oase remanded bacjc to hear tlje defence, 
 and to give judgjnent de novo. 
 
 A day should be fixed for the defendaftt'^ evidence |to be 
 heard, and the plaintiff be examined also as to the documents 
 filed by llie defendant, which tend (if true) to sjiew that the 
 case belongs to the Four Eorles, a,nd thjit the .cl?,iin moreover 
 is very exorbitant. — Per Cfirr. 
 
 6. Jaffna, 9,513. Set asipe. Febryfln/ 17, 1852. 
 
 Set aside, and remanded back for re-hearing the plaintiff's 
 evidence, to rfiew that the debt is not prescribed. 
 
 The defendant is clearly entitled to the benefit of the Ordi- 
 nance, and cannot be compelled to answer to the merits, until 
 his plea, in bar of the action is decided. — Per Carr. 
 
 7. Bentotte, 3,32ft. Corbectbj). Fehmary 27, 1552. 
 
 The judgment of the Court of Requests is corrected, by 
 defendant being decreed to pay to the plaintiff ,the su;[n of ftye 
 dollars, admitted in his apsw.er to be due by way of interest 
 with costs, up to t;he answer, and the plaintiff is to pay the 
 subsequent costs. 
 
 The defendant having pleaded payment, cannot dispute the 
 validity of the bond, as to the above sum adinitted to ije still 
 due thereon. — Per Carr. 
 
 8. G^'Uq, 5,496. Corhecied. March 2, 1852. 
 That the judgment of the Court of Requests is corrected 
 
 by defendant being adj.udged to deUyer back the articles-pledged 
 with him, or to p^y .the v^lue thereof at Three pounds to the 
 plaintiff, upon the defi^ndant being thereon re-paid, or deduct- 
 ing the twelve shillings and interest due to him.— Per Carr. 
 
 2c 
 
186 
 
 9. Cbavag'acherry, 2,709. F>,smatsd:ed. Marc}i9,\S52. 
 
 Remanded back to the Court of Requests to proceed with 
 the case. The special plea is quite untenable, and it also was 
 irregular for the Court of Requests to have thus entertained 
 one objection, distinct from the general defence, and to have 
 given an interlocutory judgment on it, and allowed a Petition 
 of Review therefrom. The objection should have been con- 
 sidered as part of the general answer in defence, and on the 
 Court of Requests proceeding to final judgment thereon, the 
 whole would have been properly brought before the Supreme 
 Court by Petition of Review. — Per Carr. 
 
 10. Kandy, ll,37Si. Affirmed. March 9, 1852, 
 
 That there is no ground to set aside or correct the judgment. 
 
 The credit due to the witnesses rests wholly with the Court 
 of Requests, and forms no ground for Petition of Review. The 
 Supreme Court has, however, repeatedly held, that if creditors 
 will not take the ordinary precaution of taking an acknowledg- 
 ment in writing from their debtors, either by bond, receipt, or 
 signing the account, but will rely simply on oral testimony, 
 they must expect a Court of Justice in this country to view 
 such evidence with great caution and distrust ; and the Supreme 
 Court has therefore non-suited plaintiffs on such evidence, 
 unless unexceptionable, and free from all just doubt or suspi- 
 cion. — Per Carr. 
 
 11. Itlatelle, 1,914. Set aside. March 9, 1852. 
 
 Set aside for incompetency of the Court in respect of excess 
 of jurisdiction, as the matter in question relates to the title of 
 land. The plaintiff claims, as proprietor of a field, the ande 
 share of it from the defendant, as the cultivator thereof; but 
 his title to the field is denied by defendant, who avers that he 
 did not obtain the same from the plaintiff, but another person 
 to whom he has paid the share. Plaintiff's claim is therefore 
 dismissed with costs, and he must institute it in the District 
 Court.* — Per Carr. 
 
 * This would be the course for a plaintiff to pursue, if a land exceed £10 
 in value, as above that, a Court of Requests has no jurisdiction, under Or- 
 dinemceNo, 22ofl852. 
 
187 
 
 12. niateUa, l,94i7. Apfiemed. March 11, 1852. 
 K o ground to set aside or correct the judgment. 
 
 The defendant's conduct shews malice, as he had no right 
 to demand the payment of any such debt to the Khodias, if 
 any were due, or to give orders to the villagers not to associate 
 with the plaintiffs or their family on account of it ; and the 
 plaintifls have proved special damage to have been suffered by 
 them therefrom, by the subsequent loss of their acquaintance, 
 and the villagers refusing even to cultivate their fields with 
 them, and the second plaintiff's daughter being returned. — Per 
 Carr. 
 
 13. XCandy, 10,769. Affirmed. March 16, 1852. 
 
 The Commissioner does not state that there is no proof, but 
 that the claimant " has not proved to my satisfaction the owner- 
 ship," and as there is evidence, the Supreme Court must infer, 
 that the Commissioner considered it not trustworthy and such 
 as he could rely upon ; but the credit due to the evidence forms 
 no ground for Keview. 
 
 The practice in the Court of Requests of Colombo is, to try 
 claims under writ of execution by a fresh suit, and no proceed- 
 ings in respect thereto are had in the same suit; and this is the 
 proper course to follow. — Per Carr. 
 
 14. Nuwera Ellia, 818. Affirmed. March SO, 185'i. 
 The 4th clause of the Ordinance No. 3 of 1846, "For im- 
 proving the law of evidence in this Colony," allows the Judge 
 of any Court, if he shall consider that it would be conducive to 
 the ends of justice, to examine on oath or affirmation, in open 
 Court, both or any of the parties ; and the statements of any 
 party so examined, shall be received and weighed by the Court, 
 as any other evidence in the cause. — Per Carr. 
 
 15. Jaffna, 9,686. Set aside. March 30, 1852. 
 Set aside, and remanded back to the Court of Requests, to 
 
 hear the case on the evidence, and give judgment de novo. 
 
 The action is brought to recover the amount due on a bond, 
 which was given for the balance admitted to be due upon a 
 stated account ; and it is not, therefore, for any disputed balance 
 of an unsettled account. It appears that, upon a contract en- 
 
tered into between the partiesj fbr the delivery by the defendant 
 to the plaintiff of five pararas of copperah, there was a short 
 delivery of two and three-quarter params, when the defendant 
 gave this bond to the plaintiff to secure the value thereof, and 
 to pay the difference in the market price of 1850, which is 3s. 
 per param. The defendant admits having given the bond, and 
 the two and three-quarter params of copperah being then due 
 for it, and pleads payment since, of two and a half params to 
 another, at the plaintiff's request, in satisfaction of the bond, 
 — which he must prove ; and it is tte only question in dispute. 
 — Per Carr. 
 
 16. Kambantotte, 902. ArFiBMED. April 6, 1852. 
 
 The defendant is not liable, merely as being the widow, to 
 pay the d^bts of her deceased husband ; and it does not appear 
 that she has succeeded to, or is in possession of, any of his 
 property, which would be liable to the payment of his debts in 
 preference to her right to the same as widow. 
 
 If the estate left by the deceased debtor was very small, it 
 would not be deemed necessary for letters of administration to 
 be taken out. — Per Carr. 
 
 17. ICahdy, 12,31.6. Set a^siDe. Aptil ^7, 1852. 
 
 The appellant in this case was sued on a bond, said to be 
 granted to him jointly with one Lego Modliar, and whereby, it 
 is alleged, they undertook to abide and perform the judgment 
 of the Court in the ease No. 1 0,664. But in the bond produced, 
 the co-obiigant with the appellant is one Sera Modliar, and 
 there is nothing to shew that this is the individual named in 
 the plaint. The condition of the bond is also not as alleged, — 
 being, that the said Sera Modliar shall not leave the jurisdic- 
 tion of the Court until the decision of the case in review be 
 made known to him : of the forfeiture of the bond, by the fail- 
 ure df #hich condition, there is also no evidehce. And, more- 
 over, the plaintiff has not shewn that he has any right to sue 
 on the bond, which is not to him, but to the Clerk of the Court. 
 — Per Stark. 
 
 18. ELaiidy, li,879< Apfiemed. AprU 27, 1852. 
 AfHrmed as to the extent of One pound sterling and costs. 
 
189 
 
 but set aside as to the rest, — there being no evidence before 
 the Court on the subject of the penalty in the bond.— Per 
 Stark. 
 
 19. AvlsUawelle, 2,197. Set aside. May 18, 1852. 
 
 The petition denies title ; and as the defence is simply a de- 
 nial of the claim, the Court will hold, that such denial is on the 
 ground of want of title in the plaintiff. — Per OlipJumt. 
 
 20. IVe^Uinbo, 4,796. Affirmed. June 1, 1852. 
 
 No ground to set aside or correct the judgment. An appeal 
 does not lie to the Supreme Court. 
 
 The only way that the Supreme Court can think of, to put 
 the matter right, is, for the Judge to pay the plaintiff out of 
 his own pocket the sum due. — Per Oliphavt. 
 
 21. Colombo, 14,793. Set aside. July 27, 1852. 
 
 Set aside for illegal rejection of legal evidence. 
 This decision is no bar to trying the case de novo in the 
 Court of Requests. — Per OUphant. 
 
 22. Colombo, 14,534. Set aside. Avgust 3, 1852. 
 
 Set aside for irregularity, in rejecting or declining to enter- 
 tain defendant's plea of prescription. Whatever bars the action 
 must be a good defence, and be received. — Per OUphant. 
 
 23. Muwera SUla, 897. Set aside. Ai^ust 31, 1852. 
 
 This is a suit brought to recover £2. 14s. Sd., for beef sold 
 and delivered by plaintiff to defendant, on the 6th August and 
 28th December, 1851 ; and to the plaint, the defendant pleads, 
 that he did not buy on credit, but, as plaintiff owed him money, 
 he bought beef for that, &c. 
 
 In support of his demand, plaintiff puts in a bill of particu- 
 lars ; but this being receipted thus, — " Received payment, J. 
 H. Don, August 2, 1853," the Court has, at once, given judg- 
 ment for defendant. 
 
 It is clear, however, the receipt in this case cannot stand as 
 evidence of payment, so as to stop the plaintiff, or warrant a 
 judgment for the defendant, — there having been no delivery of 
 the receipt to the defendant, nor any consideration given 
 
190 
 
 therefore. Indeed, the defendant does not rest on it ; and his 
 plea appears to be at entire variance with it. See Taylor on 
 Evidence, §§ 205, 816, Src.*—Per Stark. 
 
 24. Cbilaw, 3,673. Set aside. September 21, 1852. 
 
 It cannot be taken, in this case, that defendant has admitted 
 plaintiff's claim ; but only, that plaintiff's share of the paddy- 
 has been delivered. In these circumstances, the case, on the 
 part of the plaintiff, should have been heard, and the amount 
 of his claim ascertained on evidence. 
 
 Neither can the circumstance of the time, which elapsed 
 from the 11th August, when the hearing was postponed by 
 reason of the Commissioner's absence, be reckoned against the 
 defendant, if it be true, as stated in his petition, that on that 
 day he attended the Court with all his witnesses ; and that their 
 absence on the 24th, when judgment was given against him, is 
 reasonably accounted for. 
 
 The Commissioner will, therefore, hear the case and the evi- 
 dence, and give judgment de novo. — Per Stark. 
 
 25. Kandy, 13,114. Affirmed. October 5, 1852. 
 
 The only defence at the trial was, that the coolies were sick, 
 and could not work. Although the contract, not having been 
 made pursuant to the 5th clause of the Ordinance No. 5 of 
 1841, would not be good and valid in law, so as to subject any 
 party thereto to the provisions of that Ordinance, for not per- 
 forming the same ; yet the contract is not declared to be thereby 
 wholly null and void. — Per Carr. 
 
 26. Jaffna, 10,885, Modified. October 19, 1852. 
 
 Judgment modified, by first defendant being decreed to pay 
 six shillings, which is the whole amount admitted to be due by 
 the first defendant, and payment whereof is alleged to have 
 been made, but not proved. 
 
 Plaintifi' ought to have adduced evidence, to prove that more 
 was due from the first defendant ; and he was not entitled to 
 
 ^ These references are lo the first edition. Tljis appears to have been 
 a case, not of the plaintiff giving credit in the particulars of his demand, 
 but of a bill of particulars receipted for the full amount, and ready for de- 
 livery on payment of the amount stated. 
 
191 
 
 interlocutory judgment against second defendant, without call- 
 ing witnesses. See Rule 17. 
 
 Plaintiff is, moreover, entitled to his costs as against the first 
 defendant only. — Per Carr. 
 
 27. nXalla^am, 1,Z62< Affirmed. November 10, 1852. 
 The agreement being for sale of tobacco-leaves, may come 
 
 within the exemptions from stamps mentioned in the Ordinance. 
 Moreover, the objection not having been taken at the trial, to 
 the want of stamp, it is now too late. — Per Carr. 
 
 28. Jaffna, 10,738. Remanded. November 23, 1852. 
 It is ordered, that the evidence taken in this case be forth- 
 with transmitted to this Court ; and for the Commissioner to 
 report, in the column for remarks, why the plaintiff should first 
 prove her right in a competent Court. The defence seems to 
 be a simple denial of having granted the land. And letters of 
 administration are not required for such small amounts. — Per 
 Carr. 
 
 29. Cbavagra'Cberry, 2,974. Set aside. Dec. 18, 1852. 
 The plaintiff's demand being for the disputed balance of an 
 
 unsettled account, above Five pounds sterling, is not, under 
 the 1 1th clause of the Ordinance of the Courts of Requests, 
 within the jurisdiction of such Courts. The defendants having 
 submitted to it can be of no avail, as consent of parties cannot 
 confer jurisdiction. The plaintiff's case is accordingly dis- 
 missed with costs.* — Per Carr. 
 
 30. Kaig'alle, 2,798. Cobbected. Dec. 18, 1852. 
 Judgment is corrected, by the plaintiff being decreed to re- 
 cover Ten shillings, — ^the estimated value of the ten parrahs of 
 paddy proved to have been taken by the defendant, — ^with 
 costs. But the plaint is dismissed in respect to the damages 
 for puUing down the barn, as the title to it is in dispute between 
 the parties, and it is appurtenant to land.f — Per Carr. 
 
 * The clause respecting the disputed balance of an unsettled account 
 stands repealed, and there is no similar re-enactment in Ordinance No. 22 
 of 1852, or in any other Ordinance. 
 
 t Damages could be recovered under the present jurisdiction; if the im- 
 moveable property do not exceed £10 in value. 
 
Set aside, and the case remanded for re-hearing and judg- 
 ment de novo. 
 
 The two former suits were dismissed on plaintiff's absence ; 
 and non-suits do not debar him, therefore, from instituting 
 his case again. The Court also cannot refuse to hear a plain- 
 tiff's evidence, because, on examining the plaintiff, it may not 
 believe his statement. — Per Carr. 
 
 General Note to the Decisions of 18S2. 
 
 A stricter selection Ijas been made from the decisions of this year. Some 
 of the omitted decisions were ^ven on a consideration of the peouliar cir.- 
 cumstances of the cases. Such cases are not clearly defined in the Minutes ; 
 hui even full reports, from the original records of such cases, would furnish 
 no precedents of general usefulness. 
 
 The decisions from the commencement of 1853, which will follow those 
 just concluded, will give cases which came on in Appeal, under the provi- 
 sions of the Ordinance No. 22 of 1852. 
 
PART III. 
 
 DECISIONS OP THE SUPREME COUET 
 
 APPEALS 
 
 COURTS OF REQUESTS, 
 
 SINCE THE COMING INTO OPBEATION OF THE 
 ORDINANCE NO. 22 OF 1852. 
 
 SELECTED FEOM THE MINUTES OF THE SUPREME COUKT, 
 AKD EDITED, WITH NOTES, Etc., Etc. 
 
 By LOUIS NELL, 
 
 PKOCTOK OF THE SUPREME COURT. 
 
 From 1853. 
 
197 
 
 DECISIONS 
 
 or 
 THE SUPREME COURT 
 
 ON 
 
 APPEALS FROM THE COURTS OF REQUESTS. 
 
 1853. 
 
 1. Cralle, 5,932, Set asibe. February 23, 1853. 
 It is no ground for stopping a case, that the plaintiff is not 
 
 explicit in the statement of his demand. — Murray's Cases, p. 
 5, Jaffna, 2,001.* — Per Oliphantand Carr. 
 
 2. Galle, 6,360> Set aside. February 23, 1853. 
 
 Evidence must be on oath, and mere statements can not be 
 received as has been done in this case. — Per Oliphant and Carr. 
 
 3. Chllaw, 3,888. Set aside. March 8, 1853. 
 
 The title to land is in dispute, and it does not appear whether 
 the sale of the land exceeds £10 or not, this Court must there- 
 fore decide whether the inferior Court has jurisdiction, and 
 this Court thinks it is safe to follow the decisions in the Courts 
 of Westminster in cases of this nature, the inferior Courts being 
 analogous to our Courts of Requests ; and the law, as laid down 
 in the cases, shews clearly, that it must appear on the face of 
 the plaint that the inferior Court had jurisdiction, and that if 
 it be doubtful whether the inferior Court has jurisdiction, no 
 intendment can be made in its favour. JJampster v. Pumell, 
 3. Manning and Granger, and the cases therein cited. — Per Oli- 
 phant, Carr, and Starh. 
 
 See p. 106 or this work. 
 
198 
 
 4. C!faiavag:acberry, 3,04:4b. Set aside. March 14, 1853 
 Set aside as regards costs. Each party to pay it's own costs. 
 The appeal is against costs only ; and as the cart was not 
 
 delivered to defendant on terms of previous decree, plaintiff 
 does not seem entitled to costs. — PerOliphant, Carr, and Stark. 
 
 5. Negrumbo, 5,5'£9. Set aside. May 9, 1853. 
 
 This was an action for a balance, remaining unpaid, of three 
 years' rent of a land, stated as the property of the plaintiff, 
 and alleged to have been occupied by defendant under a no- 
 tarial deed. 
 
 A new trial ordered on the following grounds : — 
 The case put in evidence in this case should not be admitted, 
 not being on stamp. No evidence has been adduced to shew 
 that the defendant was ever put in possession of the land, 
 alleged to have been leased to him, and it is not clear, that he 
 had an opportunity of proving, as alleged by him in his Petition 
 of Appeal, that the premises in question are his own property, 
 by decree of the District Court of Colombo, in ease No. 15,7U4. 
 — Per Oliphant, Carr, and Stark. 
 
 6. 0010X111101 17,563. Affirmed. May 9, 1853. 
 The facts of this case were these : Vanderstraaten was in 
 
 arrear for a certain Assessment Tax due by him after notice 
 duly served upon him by the Government Agent, in accordance 
 with the 53rd clause of the Ordinance No. 17 of 1844. At 
 the expiration of more than a month after the notice was served, 
 the Government Agent went to Vanderstraaten's premises to 
 distrain for the tax. Vanderstraaten thereupon tendered the 
 sum (£2. 8s. lOd.), but Leisching demanded 2s. 6d. for expenses, 
 which Vanderstraaten refused to pay. Leisching proceeded 
 to distrain, and a chair was brought out ; then Vanderstraaten 
 paid the 2s. 6d. under protest ; and it was to recover back the 
 2s. 6d. that this action was brought. 
 
 In the Court below the parties were examined, and the evi- 
 dence established the above facts. Leisching admitted that 
 the amount of tax due was tendered before the seizure was 
 ordered. As respects the amount of 2*. 6d. demanded on account 
 of expenses, Leisching deposed that this was taken upon a 
 certain calculation adopted in the Office. That he was on the 
 
lay 
 
 occasion in question accompanied by the collector of the tax 
 for the division, two peons, a cutcherry clerk, and two police 
 constables — all paid servants of the Government, who went 
 out in the performance of their duty, — that he had been to 
 several houses, before he went to the plaintiff's, and had re- 
 covered 5 or 6 shillings as expenses from the owners of them. 
 That his expenses were as follows : carriage hire for himself 
 3 shillings, for the clerk ditto, hire of 2 carts 2 shillings, allow- 
 ance to the two peons 3 shillings, to the horsekeeper 3 pence — 
 that the clerk generally comes in a hackery — that at times he 
 recovers more than the expenses, at times less, but by deposit- 
 ing the surplus in the strong box, in the former case, to supply 
 the deficiency, in the latter case, the expenses were, on the 
 average, recovered — that the expenses on the morning in ques- 
 tion, according to the above calculation, were 8*. Sd., and the 
 sum recovered, 8s. O^d. 
 
 The Queen's Advocate, who appeared for Leisching, after 
 stating the facts of the case as above, contended, that owing to 
 the non-payment of his taxes by the plaintiff in due time, it 
 became lawful for the Government Agent, under the 53rd 
 section of th? Ordinance No. 17 of 1844, to seize the plaintiff's 
 property, and to sell the same by public auction ten days after 
 seizure. That this right of seizure and sale was created by 
 the default of the plaintiff in not paying his taxes ; and that 
 the very same right existed to sell a defaulter's property as 
 existed for its original seizure. Unless, therefore, the right of 
 seizure was denied, there was a clear right to recover the ex- 
 penses of seizure, because the Ordinance expressly authorized 
 the Government Agent to deduct the amount of expenses 
 incurred on account of such seizure from the proceeds of the 
 sale of the property seized. 
 
 That the tender by the plaintiff of the taxes in arrear, could 
 not deprive the Government Agent of his right to seize, more 
 especially after he had commenced taking steps for that pur- 
 pose, and had thus been put to expenses by the plaintiff's default. 
 
 1 . — Because the time of payment allowed by law had elapsed. 
 Thus, in a case where a judgment is obtained and execution 
 stayed for a given time, when the time has expired, the plaintiff 
 may issue his writ, and it will then be too late for the defendant 
 to tender the amount of the debt and costs. He must also 
 
200 
 
 tender the expenses of the writ, in order to prevent the seizure 
 and sale of his property thereunder. 
 
 2. — Because the Government Agent, by going to the plaintiff's 
 house to seize, as he lawfully might, had already taken steps 
 towards a sale of the property, and had incurred expenses in 
 so doing ; which expenses would, under the Ordinance, have 
 been deducted from the proceeds of the sale, had it not been 
 prevented by the plaintiflp's paying the amount demanded of 
 him, for the taxes and expense of seizure. 
 
 3. — Because, if tender of the taxes at the time of seizure was 
 a good tender, so as to prevent the Government Agent proceed- 
 ing with the distress, then the tender of the taxes, at any time 
 before the sale, even after the removal and retention of property 
 for arrears, would be a good tender also, so as to prevent the 
 Government Agent proceeding with the sale ; and defaulters 
 would thus be placed in a far better position than those who 
 paid their taxes, and the obvious intention of the law would 
 be defeated. 
 
 The Ordinance authorized the deduction of the expenses of 
 seizure /rom (he proceeds of the sale, and it would no doubt be 
 said, that in this case no sale had taken place. But why had 
 no sale taken place ? For no other reason, than because the 
 plaintiff, to avoid the sale, consented to pay the taxes due and 
 the amount demanded for the expenses of seizure. It will, 
 however, be answered, that he paid under protest. That is true, 
 and if his property was not liable to seizure and sale, his pro- 
 test would be of some value. But if it was, then the Govern- 
 ment Agent might say, " Sir, you may protest if you like, but 
 unless the amount is paid, I must proceed with the seizure and 
 sale of your property." The only question would be, in such 
 a case. Was the Government Agent entitled to seize ? for if he 
 was, a tender of the taxes, without the expenses of seizure, was 
 insufficient. 
 
 The Ordinance had not provided specially for the payment 
 of the expenses of seizure, where a sale consequent upon such 
 seizure had not taken place. It was not necessary to do so, 
 because if the defaulter did not pay the tax and expenses of 
 seizure, the sale would necessarily proceed. In this case, had 
 the 2s. 6rf. not been paid, the goods would have been removed, 
 would have been kept in the Government Agent's custody for 
 
201 
 
 ten days, and then sold by auction. The plaintiff must there- 
 fore be looked upon here as consenting to pay the amount 
 demanded in order to save himself the additional expense, and 
 inconvenience of having his goods removed and sold by public 
 auction. 
 
 The construction put upon the Ordinance by the plaintiff, 
 that there must be a sale in order to the recovery of expenses 
 of seizure, would be injurious to the public, as it would compel 
 the Government Agent, in every case, to proceed to a sale of 
 the property, however willing the owner might be to redeem 
 it before the sale, by payment of the tax and expenses incurred 
 in its recovery. 
 
 B. F. Morgan for Vanderstraaten. — The question in the 
 case which the Court had to decide was, Whether the Govern- 
 ment Agent had a right to distrain for the amount of expenses 
 incurred by the Agent where there was neither seizure nor sale. 
 He had heard much from the Queen's Advocate, to shew that 
 expenseswere often incurred in point of fact before the seizure — 
 that they were incurred in this case, and that it was only reason- 
 able that the Government Agent should be allowed those ex- 
 penses. Many observations had fallen from the Bench to the 
 same effect. Admitting the correctness of them, it did not 
 follow that therefore the Government Agent had a right to 
 distrain for the expenses. Here was a summary remedy allowed 
 by the Ordinance, a remedy dispensing with recourse to the 
 ordinary tribunals, and giving the creditor the power to recover 
 his due of his own right : an Ordinance giving such a remedy 
 should be strictly construed, and not extended beyond the 
 letter of it. There was no wrong without a remedy, and if the 
 Agent were really put to expense^where there was no seizure, 
 and for which he could not distrain, he doubtless would have 
 his remedy to recover the same at common law. 
 
 Chief Justice. — Would this not fall harder on the subject — 
 would he not be more incommoded by this double remedy, and 
 would his expenses not be greater ? 
 
 Mr. Morgan. — Perhaps he would, but that was a view savour- 
 ing of legislation. It may be well for the Legislature to give 
 the power to the Agent to distrain for expenses, but they not 
 having done so, the Judges would no doubt disregard views of 
 convenience, and be guided by what is or is not provided foi 
 
202 
 
 in the Ordinance. To shew that the Ordinance gave no power 
 to distrain for expenses, he pointed to the 53rd clause, which 
 did not expressly give such power, and the context of which 
 rather negatived the existence of such power. The clause 
 provided, that notice shall be served upon the owners to pay 
 the tax within a month — that in case the amount due in respect 
 of such tax shall not he paid within a month, it shall be lawful for 
 the Agent to seize property to " an amount computed to he suf- 
 ficient to cover the same, and to sell such property by public 
 auction at any time not less than 10 days from the time of such 
 seizure." " The same" evidently refers to the " tax " going 
 before, and only an amount computed sufficient to cover the 
 same can be recovered. 
 
 The Senior Puisne Justice thought the position untenable — 
 " the amount due in respect of such tax" evidently covered the 
 expense also. 
 
 Mr. Morgan submitted that it did not, because there was no 
 allusion whatever to expenses in the preceding clause. 
 
 2ndly. — The expense which the Agent was to recover was 
 such as " have been incurred on account of seizure and sale." 
 So, both seizure and sale must combine, and unless both took 
 place, the expenses could not be deducted. Here there was 
 avowedly neither. 
 
 The Second Puisne Justice. — When were the expenses to 
 commence — should they not commence from the seizure f 
 
 Mr. Morgan was much obliged to His Lordship for the sug- 
 gestion. It seemed quite clear, that whether there was to be 
 a sale or not, there certainly was to be no expense until there 
 was a seizure. It was right that it should be so — for otherwise 
 where was the line to be drawn ? The Agent might intend to 
 distrain, he might pei-form certain acts in pursuance of such 
 intention, and yet not actually seize for some days afterwards. 
 How were the expenses to be there computed? What a door 
 would be opened for oppression ! It was right, therefore, that 
 provision should be made as to when expenses were to be re- 
 covered ; and whether there was to be a seizure and sale or 
 no, it is clear there were to be no expenses, till the seizure had 
 taken place. As remarked by His Lordship, the expenses were 
 to commence with the seizure. Here there was a tender before 
 the seizure, and where such tender takes place, the seizure is 
 
203 
 
 afterwards illegal, and no expenses can be recovered. (Quotes 
 Saunders on Pleading. Tit. " Distress for Kent," Bradbury v. 
 Wright, 2 Douglas 524, and certain English Acts, to shew that 
 the power to seize fqr expenses was expressly given.) 3rdly, 
 It was further clear, from the context of the act, that there was 
 no power to distrain for expenses where there was no seizure 
 and sale — as provision was made for the case of the tenant 
 paying for the landlord to avoid seizure and sale, and which 
 tenant might deduct from the rent " the amount of tax " paid by 
 him. If there were expenses before the seizure, the tenant 
 would have to pay the same, and yet there is no provision for 
 the deduction of such expenses. 
 
 Mr. Morgan lastly adverted to the amount recovered. It was 
 clear from the evidence of Mr. Leisching, that the sums recovered 
 from parties were not of expenses actually incurred, but accord- 
 ing to a fanciful calculation adopted at the Cutcherry. The 
 Agent generally took a round of houses every morning ; — 2s. 6d. 
 from each would help to raise a very good fund to be kept in 
 the strong box ; but it would be a misuse of language to say 
 that the amounts recovered were those of expenses actually 
 incurred. There was no warrant for a public servant like the 
 Assistant Agent charging carriage hire within the gravets — for 
 his clerk doing the same, particularly where he does not use a 
 carriage — and for peons in the performance of their duty getting 
 a gratuity of Is. 6d. each for a few hours in the morning. All 
 this was highly objectionable, and however the case went, he 
 trusted the Queen's Advocate would see the necessity of in- 
 troducing a table of charges as in the English Acts — a small 
 percentage to cover expenses in case of arrears, — instead of 
 leaving it to Agents to make their own charges, which, where 
 a large circuit was performed every day, it might be very 
 difficult, often impossible, to do. The evidence in this respect 
 furnished an additional argument infavour of his (Mr.Morgan's) 
 position, that there were to be no expenses where there was no 
 seizure and sale — for, where these took place, it was easy to 
 compute expenses — but in their absence, it was very difficult 
 to do so : and it was therefore, perhaps, the legislature meant 
 to allow it one case and not in another. 
 
 The Queen's Advocate in reply. — Expenses of seizure, must 
 mean the expenses incurred inandaboutthe seizure — therefore, 
 
 2 E 
 
204 
 
 the expenses of going to the plaintiff's house to seize. In the 
 same way, the expenses of levying under a writ, include the ex- 
 penses of the Fiscal in going to the place to seize, and in selling 
 the property. The words of the Ordinance are, " expenses 
 incurred on account of such seizure and sale," and this obvi- 
 ously includes all expenses which were necessary for the purpose 
 of effecting either of those objects. Thus, the expenses of sale 
 would include the expenses of advertising the property in order 
 to a sale, and the expenses of storing it for ten days after seizure 
 preparatory to such sale. 
 
 That as regards the amount demanded in this case, (2s. 6d.) 
 the plaintiff did not say at the time it was too much. Had he 
 said so, the seizure would have proceeded. He said he was 
 not liable to pay anything for expenses. But the amount 
 demanded was anything but unreasonable, as the actual ex- 
 penses of going to plaintiff's house to seize amounted to much 
 more than 2s. 6d. The Government Agent, it is true, is in the 
 habit of dividing the day's expenses amongst all the people to 
 whose houses he goes on that day to distrain. But he is not 
 bound to do so, any more than if a proctor has twenty attend- 
 ances in one morning, he is bound to divide the authorized 
 charge of one attendance amongst his twenty clients ; or that, 
 if the Fiscal has twenty writs, he is bound to divide the cost 
 of levying under them amongst the twenty defendants whose 
 goods he happened to seize on that day. 
 
 That as regarded the words in the Ordinance, which autho- 
 rized the Government Agent to seize property " to an amount 
 computed to be sufficient to cover the same," — which words, it 
 had been argued, meant that the Government Agent might only 
 seize sufficient to cover the tax due, — he (the Queen's Advocate) 
 submitted, that it was clear from the whole of the clause, taken 
 together and fairly construed, that it meant " an amount suf- 
 ficient to cover the tax and expenses of recovering it," or, to 
 use the words of the Ordinance, " the amount due in respect of 
 such tax." For if the Government Agent could only seize just 
 enough property to pay the tax, the latter clause of this section, 
 which authorized the deduction of the expenses of seizure and 
 sale from the proceeds of the sale, would be absurd ; and the 
 Ordinance must be construed so as to give effect to the whole 
 of its provisions. Again, this provision left it to the judgment 
 
205 
 
 of the Government Agent, to compute what he thought would 
 be sufficient; and he was entitled to make the computation in 
 such a way as to prevent loss to the public. In the English 
 Acts relative to the recovery of taxes, the collector is authorized 
 much in the same way to distrain for the amount of taxes due ; 
 but there also the power given was construed to include the 
 power of taking property sufficient to cover the costs of the 
 distress ; for the collector is authorized, after the sale, to pay 
 the overplus, after deducting the costs and charges of the seizure 
 and sale of the goods, to the owner thereof. 
 
 It had been remarked by his lordship, the Junior Puisne 
 Justice, that the Ordinance did not give a right to seize, but 
 only imposed a liability in the defaulter to have his property 
 seized. He (the Queen's Advocate) did not see the force of 
 this distinction. It appeared to him, that the liability on the 
 one side implied the right on the other. That the words of the 
 Ordinance were positive, and not only conferred a right on the 
 Government Agent to seize and sell the property of defaulters, 
 but imposed a duty upon him to do so, for the neglect of which 
 he (the Queen's Advocate) thought he would be responsible, 
 supposing any loss accrued to the public from his negligence. 
 
 Judgment of the Chief Justice and of the Senior Puisne 
 Justice : — 
 
 " In considering this question, it appears to us, we are to be 
 guided by the words of the Ordinance, and not to have recourse 
 to any law, English or Dutch, as an authority ; but, if need be, 
 only to refer to either by way of analogy. We hold then, that 
 the 53rd clause vests in the Agent a right to seize property 
 when the tax is in arrear — namely, at the expiry of a month 
 after notice ; and then the question arises, whether such right 
 is divested either by a tender of the amount due without a tender 
 of costs — or by a tender of the amount due ; and also of the costs 
 before seizure. It appears clear, that the right must be divested 
 by one or other of such tenders, otherwise the Government 
 Agent would have a right to refuse to receive the tax due, 
 although tendered to him before he proposed making a seizure, 
 and before any expense was incurred. And he would also have 
 a right to refuse a tender of lax and costs at the house of him 
 by whom it was due, when he came expressly to make a seiiiure. 
 Surely, it cannot be contended, that the Agent would be jusli- 
 
206 
 
 fied in so acting in the cases put. The Ordinance is silent as 
 to what is to happen when a tender is made either with or 
 without costs, and it has not been shewn to us, nor can we find 
 what is the law of Holland in a case of this nature. We there- 
 fore look to the English law : the English cases cited below 
 shew, that a tender may be made in cases of distress for rent at 
 least until seizure actual or implied ; and they further shew, 
 that a seizure, either actual or implied, was not, according to 
 the English law made in the present case. 
 
 It appears from the defendant's own admission, that the 
 amount of the tax due was tendered before he ordered the 
 seizure. The defendant states, that his orders to collectors are, 
 to seize property at once, without demanding payment of the 
 tax, and if such orders had been complied with by the collec- 
 tor in this instance, or it had been shewn that anything had 
 been done before the tender to constitute a valid act of distress, 
 no difficulty would have arisen by the English law as to the 
 right of the defendant to recover any expenses which had 
 " been incurred on account of such seizure." Not only may 
 some goods be taken in the name of the rest, so as to be a good 
 seizure of all, but a very slight expression of the intention to 
 distrain is sufficient to commence a distress : see Wood v. Nunn. 
 5 Bingham, p. 10, liutchins v. Scott, 2 Meeson & Welsby, p. 
 809. All that the collector however did, from the plaintiff's 
 account, which is not attempted to be disproved by the collector 
 himself when called as a witness, amounts only to the collector 
 having said that he came for the arrears of tax, which must be 
 paid — that he then made up the total due on the back of the 
 bills produced by him, and demanded £2. 2«. \0d., which was 
 thereupon tendered by the plaintiff. The demand for 2s. Qd. 
 for expenses, and seizure of the chair for them, was made sub- 
 sequently. Now, the distress did not commence by the defen- 
 dant's coming to the premises ; or by the demand of the arrears 
 of tax by the collector ; but only when the defendant expressed 
 his intention to distrain, and ordered the chair to be seized. In 
 Woodfall's Landlord and Tenant, p. 313, citing 1 Lord Eay- 
 mond, p. 609, it is said, " a distress cannot be made after a tender 
 of payment ; for if the landlord come to distrain the goods of 
 his tenant for rent, the tenant may, before the distress, tender 
 the arrears ; and if the distress be afterwards taken, it is illegal." 
 
207 
 
 The Statute 57 Geo. 4, is clear on the point, and contains a 
 Schedule of costs in which no charge is allowed previous to the 
 actual levying the distress."* 
 
 The Senior Puisne Justice concurs in affirming the judgment. 
 He considers that the question for determination here is one of 
 construction of the Ordinance under which the Government 
 Agent in this case acted — Ordinance No. 17 of 1844, sec. 53, 
 and that in construing the same, the power thereby given must 
 be taken strictly. 
 
 In this view, he is of opinion : — 
 
 1st — That the words " expenses incurred on account q/'seizure," 
 
 * In Wood V. Nunn, the plaintiff ( Wood) had been in partnership with 
 one Saunders J who rented a shop from the defendant (Nunn). Wood and 
 Saunders having dissolved partnership, and disputes having- arisen between 
 them, they were referred to an arbitrator, who awarded a lathe to be the 
 property of Wood. Between 6 and 7 o'clock on a certain morning, Wood 
 went with three of his men to remove the lathe ; the defendant (Nunn) was 
 present, and said, " I will not suffer this or any of the other things to go off 
 the premises till my rent is paid — there is two years' due ;" and shortly 
 afterwards he Ifeft the shop. The plaintiff, however, removed his lathe to an 
 inn adjoining, and about noon on the same day, the defendant sent his 
 brother or bailiff, who made a formal distress of the articles in the shop for 
 the rent due from Saunders to the defendant, and afterwards went to the 
 inn and seized the lathe and brought it back to the shop. The question 
 was, had the lathe been moved from the shop before or after the commence- 
 ment of the distress. — Best, C. J. " The distress commenced when, in the 
 morning, the defendant, as landlord, said that the lathe should not go off 
 the premises till his rent was paid. That was, in point of fact, the levying 
 of the distress ; and although an inventory was not then taken, or formal 
 notice of distress given, yet the entry by a broker a few hours afterwards, 
 by whom a regular distress was made, had relation to what had been pre- 
 viously done by the defendant's act." Park, J. said — " The distress must 
 be taken to have commenced when he (the defendant) made his demand^ which 
 was before any part of the lathe had been removed from the shop." 2 
 Moore <^ Payne, p. 27. 
 
 In Hutchins v. Scott, the defendant's broker went to the plaintiff's pre- 
 mises to distrain ; but took nothing, made no inventory, and left no person 
 on the premises. The plamtiff having paid the rent, and claimed £3. 3s. Od. 
 for expenses, under protest. In an action against the defendant for an 
 excessive distress, (he having demanded 2 quarters' rent when only one was 
 due), the defendant contended, that there was no actual distress: nothing 
 was taken, and no person remained on the prenaises, and no inventory was 
 made. — Lord Abinger, C. P. " You go to the premises, and say. ' unless 
 you pay £10. 10s. Od./or rent and £3. 3s. Od. for expenses, we will distrain.' 
 You cannot say you make no distress." — 15, Law Journal Keports, p. 186. 
 
208 
 
 cannot be extended to cases where there is no seizure, aiid 
 consequently, that until seizure is made no expenses are demand- 
 able under the Ordinance. It is the fact of the seizure which 
 determines the expenses that are incurred on account thereof, 
 and any other construction of the words would leave parties 
 open, to any, the most extortionate demands. 
 
 2ndly. — He is of opinion, that by the words "it shall be lawful 
 for the Government Agent to seize and sell," no absolute or 
 indefeasible right thereby accrues to him so to do, but a con- 
 tingent and defeasible right only, or rather a mere liability in 
 the debtor to have his property seized and sold ; and that a pay- 
 ment or tender of the amount of the tax due any time before 
 actual seizure, is good, would defeat the right to seize and sell, 
 and render a distress after such payment or tender unlawful. — 
 Per Oliphant, Carr, and Stark. 
 
 7. Mallag'ain, 1,478. Set aside. June 6, 18d3. 
 
 It is incumbent on the plaintiff to prove the amount of the 
 damage he claims, and the defendant has a right to call evi- 
 dence, in diminution of such damage. The case is therefore 
 remanded, to hear such evidence as may be adduced, and give 
 judgment de novo. — Per Oliphant and Stark. 
 
 S. Neg-umbO) 5,600. Set aside. June 6, 1853. 
 
 This case is remanded, for the purpose of enabling the ap- 
 pellant to produce the grant and survey, on which he resists 
 the plaintiff's claim. — The plaintiff to pay all costs hitherto 
 incurred ; excepting the survey produced by the respondent, 
 the costs of which to stand over ; and the Court* to give j udg- 
 ment de novo. — Per Oliphant and Stark. 
 
 9. Bentotte, 3,680, Set aside. June 13, 1853. 
 Remanded, to ascertain whether the bill in dispute has been 
 
 brought before the District Court, to revise the Secretary's 
 taxation ; in which case, the Court of Requests has no juris- 
 diction ; and if not, to proceed to give judgment upon proof of 
 the taxation. — Per Oliphant and Stark. 
 
 10. Chavag°acherry, 3,323. Set aside. June 13, 1853. 
 Remanded, to hear proof of the damage sustained by the 
 
209 
 
 absence of plaintiff, and to set the same against the wages 
 proved to be due. — Per OlipharU and Stark. 
 
 11. Ratnapoora, 1,552. Appeal. June 16, 1853. 
 
 On reading the letter of the Commissioner of the Court of 
 Requests of Ratnapoora, and the proceedings in the above case, 
 of the 13th instant. It is ordered, that if the Clerk of the Court 
 did not inform the appellant, at the time of lodging appeal 
 petition, that a stamp for judgment of the Supreme Court was 
 necessary, the appeal be allowed, — otherwise not. 
 
 Note — The Clerk should always tell appellants that such 
 stamp is necessary. — Per Oliphajtt and Stark. 
 
 12. Colombo, 17,808. Set aside. June 20, 1853. 
 
 W. Morgan for respondent. By the 1st clause of the Rules 
 respecting appeals from the District Courts, of the 12th De- 
 cember, 1843, the time allowed for appeal is expressly stated 
 to be exclusive of Sundays and holidays ; but by the 12th clause 
 of the Ordinance No. 22 of 1852, respecting Courts of Requests, 
 these days are not excluded; and it is thereby enacted, that a 
 party may appeal " within seven days after the day on which 
 judgment was pronounced, hut not afterwards." The appeal in 
 this case should therefore be rejected. 
 
 Judgment. — It has been held, that Sundays and Mondays 
 are excluded in Reviews from Police Courts, and Appeals from 
 Courts of Requests. — Per Oliphant and Stark. 
 
 13. Caltura, 3,546. Set aside. June 27, 1853. 
 
 W. Morgan for respondent. There was no less than three 
 postponements allowed in this case — when it was postponed for 
 the third time, it was peremptorily fixed for the 20th May last ; 
 and on that day the plaintiflF again asks for a postponement. 
 Surely the Commissioner was quite right in not allowing it — 
 postponements are discretionary with the Judge, and in this 
 case, the plaintiff was merely non-suited. 
 
 Judgment.— Ihe. 13th clause of the Rules of the Court of 
 Requests contains provisions for a case of the present nature, 
 and the Supreme Court does not see why the Court of Requests 
 
210 
 
 did not act upon those provisions. The case is remanded to be 
 proceeded with in due course. — Per Oliphant and Stark. 
 
 14. Galle, 6,5Z8. Set aside. June 27, 1853. 
 The Supreme Court is of opinion, that the Court of Requests 
 
 cannot entertain this action. The defendant drew the money 
 upon an order of the District Court, and to that Court the 
 plaintiff ought to betake himself. 
 
 This is, in fact, setting aside the order of the District Court 
 by action, not by appeal. 
 
 But, besides, there is no evidence that defendant drew what 
 belonged to plaintiff, there being still 1*. 6d. not claimed by 
 plaintiff, whose bill of sale, also, is not proved. — Per Oliphant 
 and Stark. 
 
 15. Ratnapoora, 1,593. Set aside. June 27, 1853. 
 Defendant allowed to amend " what he has to say in answer 
 
 to the plaintiff," on paying any necessary expenses incurred by 
 his error. The greatest indulgence is to be allowed to ignorant 
 parties in Courts of Requests in regard of amendments, and the 
 Rules contain no provisions for making and withdrawing of 
 motions, as has been done in this case.— Per Oliphant and Carr. 
 
 16. Colombo, 18,238. Set aside. August 13, 1853. 
 Action to recover M. Is., rent for house and ground, from 
 
 July, 1852, to March, 1853. It appeared on examination, that 
 the rent was to be paid every 6 months once, and that the 
 premises were rented for 12 months. 
 
 Alvis for jDe/ewdawf— contended (in the Court of Requests) 
 that the plaintiff could not recover, as the agreement was a verbal 
 one. The Court over-ruled the objection, but stopped the case, 
 to enable the party to appeal against the order, which was done, 
 
 R. Morgan for Respondent — submitted first, whether the Court 
 would entertain the appeal. The Ordinance No. 22 of 1852, 
 clause 10, gives power to appeal only against any "final judg- 
 ment, or against any final order having the effect of a final 
 definitive judgment," which this was not. 
 
 Judgment — The Supreme Court cannot entertain this case in 
 appeal — no final judgment or order, having that effect, being 
 given. — Per Oliphant and Carr. 
 
211 
 
 17. Bentotte, 3,74:8< Cobkected. August 13,1853. 
 The Supreme Court cannot entertain this case, neither final 
 
 judgment, nor any order having that effect, having been given. 
 N. B. — Cases ought not to be delayed conditionally, as in the 
 present instance. — Per Oliphant and Carr. 
 
 18. Point Pedro, 1,288. Affirmed. August 13, 1853. 
 
 AflSrmed, except as to the fine of 10 shillings, which is sec 
 aside, having been imposed on the same day the statement was 
 made. — Per Oliphant and Carr. 
 
 19. Bentotte, 3,810< Affirmed. August 16, 1853. 
 
 H. Bias for plaintiff. — The plaintiff claims by inheritance 
 a certain share of land. His relationship to the deceased was 
 established, but the defendant relied upon a gift made to him 
 by the original owner, in 1822, confirmed by another deed of 
 1841 by his wife's mother, and upon long possession. The gift 
 in 1822 was not in writing, and, therefore, bad. The second 
 gift was defective, because the widow could not give away her 
 husband's property after his death. The only claim is the last, 
 but prescription was not pleaded. As ageneral rule, the Ordi- 
 nance must be specially pleaded, and there is no exception 
 made in favour of parties in Courts of Requests. It is reason- 
 able that it should be so, as the defendant may be able to shew 
 that the Ordinance did not operate either on the ground of 
 interruption or disability, which, in the absence of a plea giving 
 hitti notice of the defence, he would not be prepared to do. 
 
 The Judgesrheld, however, that as the defendant had clearly 
 prescribed, and the Commissioner had given him the benefit of 
 it, they should not interfere with the judgment, which was 
 simply affirmed. — Per Oliphant and Carr. 
 
 20. Bentotte, 3,822. Set aside. August 16, 1853. 
 It is incumbent on the plaintiff to prove the damage he claims, 
 
 unless admitted by defendant. 
 
 , The Registrar will inform the Commissioner, that the extract 
 from the Record Book should all be in the hand-writing of the 
 Clerk, excepting the Commissioner's certificate. The expres- 
 sion " a sow heavy mth litters" is not correct English.— Per 
 Oliphant and Carr. 
 
 2f 
 
212 
 
 21. Kandy, 15,298. Corrected. August 16, 1853. 
 Corrected by reducing the interest from £3. 16s. to £3. 8s., 
 
 being the amount of principal.* — Per Oliphant and Carr. 
 
 22. ZTe^umlio, 5,670. Set aside. August 16, 1853. 
 
 Action to recover £9. 10s., being half value of 380 plantaiq 
 bushes, which the plaintiff planted on defendant's land, on an 
 agreement to share half produce. Defendant denied the 
 agreement and the planting. The Court heard witness, and 
 gave judgment for plaintiff. 
 
 E. Morgan for appellant — The agreement declared upon, 
 was one affecting land, giving to the plaintiff an interest in its 
 produce. An interest in land, must either be derived from 
 what can be produced from its surface, or placed on its surface, 
 or dug out of its bowels ; and the first of these is the most 
 general agreement. The plaintiff's right vested, and was 
 altogether dependent upon, what the land produced. (Cites 
 Collective Court case, Negumbo, 10,286.) 
 
 W. Morgan for respondent — contended, that the crop was 
 in existence at the time of the contract, at least, that such is 
 the presumption from the evidence — and that the contract need 
 not therefore be in writing, Evans v. Roberts, 1, B. Sf C. The 
 bushes were valued separate from the trees, and did not affect 
 any interest in land. — Roberts on Fraud, p. 126. 
 
 Judgment. — The defendant absolved from the instance, and 
 as the objection urged on the part of the appellant before this 
 Court was not raised in the Court below, where it ought to have 
 been taken, it is further adjudged, that each party bear its 
 own costs. 
 
 The agreement in this case is, for establishing an interest 
 affecting land, and not being in writing, is within the 2nd sec. 
 of the Ordinance No. 7 of 1840, and, therefore, void.— Per 
 Oliphant and Carr. 
 
 23. Colombo, 15,808; Set aside. August 18, 1833. 
 W. Morgan for appellant— {not heard on the merits.) 
 Judgment. The Supreme Court cannot entertain this case 
 
 * This was evidently a case, of what is sometimes called, " surmounted 
 interest." Sec Jaffna, 275, in page 'JO of this work. 
 
213 
 
 in appeal, no final judgment or order, having that effect, being 
 given. — Per Oliphant and Carr. 
 
 24. G-alle, 7,001. Remanded. August 18, 1853. 
 
 Ordered, that proceedings be remanded to the Commissioner 
 to state the reasons of his judgment, viz., why the bond and 
 assignment are waste paper — whether it be for want of stamps, 
 and if so, whether the bond produced in evidence, were origi- 
 nals or duplicates. — Per Oliphant and Carr. 
 
 25. Kaxnbantotte, 1,054. Affibmed. August 18, 1853. 
 
 Affirmed, except as regards the fine, which is set aside, hav- 
 ing been imposed on the same day on which the contempt was 
 committed, contrary to the 7th and 15th clauses of the Ordi- 
 nance No. 10 of 1843. — Per Oliphant and Carr. 
 
 26. Kornegralle, 83. Affibmed. August 18, 1853. 
 
 Hie Queetis Advocatefor appellant. R. Morgan for respandent. 
 
 The Queen's Advocate stated, that the defendant having ten- 
 dered at the Kandy Cutcherry, as security for a rent, certain 
 deeds, purporting to be sales to him of chena lands, enquiries 
 were made as to his title to such lands ; and as no valid title was- 
 shewn, they were rejected as security. At the same time it was 
 not thought right to reject them on the ground of the defen- 
 dant's want of title, and yet to take no steps for bringing the 
 question of the right of the Crown before the Court for adjudi- 
 cation. The present action was therefore commenced. He 
 submitted, that there were two questions for consideration, — 
 1 St, Were these lands, at any time, chena lands ? and 2nd, if 
 so, had the defendant acquired a title to them from the Crown ? 
 
 For, as to the first question, if the lands are shewn to have 
 been chena, then, by the 6th section of Ordinance No. 12 of 
 1840, they are presumed to be the property of the Crown, 
 except only upon proof, hy the party claiming them, of a grant, or 
 of payment of the customary taxes within twenty years. There 
 being no grant in this case, the question is, as to the meaning 
 of the words of the Ordinance — " or of such customary taxes, 
 dues, or services having been rendered within twenty years for 
 the same, as have been rendered within such period for similar 
 lands, being the property of private proprietors, in the same 
 
214 
 
 districts." It appeared to him, that, under these words, it was 
 incumbent on the defendant to shew, that he had paid such 
 customary taxes, within the period of twenty years, reckoning 
 back from the time of action brought. But if they did not 
 mean that, then, he submitted, they must mean within twenty 
 years, reckoning such period forward from the passing of the 
 Ordinance (1840) ; and, according to either construction, the 
 Crown would, in this case, be entitled to judgment. It was 
 not necessary, as had been contended in the Court below, that, 
 to entitle the Crown to a judgment, the land must be shewn 
 to be chena, at the time of action brought ; for so long as it re- 
 mained a chena, no action by the Crown would be necessary, 
 and none, therefore, would be commenced. It was only when 
 a party had trespassed upon a chena, and converted it from a 
 chena land into some other desCi'iption of land, as, for instance, 
 a garden, that the necessity for suing him arose. And a party 
 could not be allowed to profit by his own wrong. He could 
 not destroy the legal presumption in favour of the Crown to 
 chena lands, by wrongfully converting such chena into a garden, 
 and then claiming the benefit of his own act ; any more than 
 a person could, by felling the forest deprive the Crown of its 
 title to all forest lands. It was, therefore, only necessary for 
 the Crown to shew, that at any time before action brought the 
 land was chena. The presumption was thereby raised, that the 
 land belonged to the Crown — a presumption which could only 
 be rebutted in one or other of the two ways already mentioned. 
 
 Now, it had been clearly proved, that 7 or 8 years ago, the 
 lands in question were chena. 
 
 1st. The defendant's purchase deeds describe them as chena 
 lands. 
 
 2nd. He himself admits they were chena. 
 
 3rd. He proves that within that period he cultivated them 
 with el-paddy, which is chena cultivation. 
 
 4th. He alleges, and attempts to prove, that since his pur- 
 chase, he paid tax for the land as chena. 
 
 If, then, the land was chena 7 or 8 years ago, has the Crown 
 been divested of its right ? The defendant says, he has paid 
 the customary taxes within twenty years. But this evidence 
 was extremely suspicious and unlikely, for the following reasons. 
 
 1st. No receipt is produced, nor do the Cutcherry books 
 
215 
 
 shew any sucli payment. The defendant says he took a receipt, 
 which he has lost ! 
 
 2nd. His two first witnesses (one of whom was the renter 
 to whom the tax is alleged to have been paid) say, the tax was 
 paid in money. He himself, in examination, says he paid it in 
 paddy, not in money. 
 
 3rd. Having thus failed in proving payment of the tax, as 
 a last resource, he alleges, through his proctor, that the land is 
 a garden, and not a chena, that it was not incumbent on him to 
 prove payment of tax. 
 
 Much weight had been attached to the evidence of Mr. 
 Morris, the Assistant Government Agent at Kurnegalle, who 
 was examined for the defendant, and stated, that he hadlcnown 
 the land for 14 years, and that it is no chena, and never was 
 since he knew it. The evidence was, however, quite irrecon- 
 cilable with all the rest of the case. It contradicts not only all 
 the evidence of the defendant's other witnesses, but contradicts 
 also the defendant's own statements on the subject, as well as 
 the contents of his deeds. 
 
 For these reasons, he submitted that the defendant had failed 
 to prove payment of the customary taxes within twenty years, 
 and, therefore, that the lands must be presumed to be the pro- 
 perty of the Crown. 
 
 Cowrt wovM not hear R. Morgan for respondent. 
 
 Judgment — ^Affirmed. The two Judges sitting gave their 
 opinion, that the chenas and other lands, which can be only 
 cultivated after intervals of several years mentioned in the 6 th 
 clause of the Ordinance in question, must be construed to be 
 lands coming under that description at the time when the 
 Ordinance came into operation. — Per Oliphant and Carr. 
 
 27. Ghavag-acherry, 3,355. Set aside. Sept. 13, 1853. 
 
 The question here is, as to the ownership of certain cattle 
 claimed by the complainant, and this, ex facie, is. within the 
 jurisdiction of the Court of Requests. It may, however, be 
 said, that as the cattle were seized under a writ issued from 
 the District Court, parties should be referred to that Court to 
 try the right : but there is nothing in the Rules relative to the 
 Fiscal's proceedings, which limits such trial to the District 
 
216 
 
 Court, and therefore, we think, the Court of Requests has 
 jurisdiction. — Per Oliphant, Carr, and Stark. 
 
 28. Jaffna, 11,810. Set aside. October 4, 1853. 
 
 The plea of defendants, that they signed the bond under an 
 erroneous apprehension of a debt being due by them, which 
 did not exist, is one which the law recognizes, and the defen- 
 dants have a right to prove it. — Per Oliphant and Stark. 
 
 29. Jaffna, 12,298. Set aside. October 4, 1853. 
 
 The defendant appears to have assigned a sufficient reason 
 for his absence. The Court should, therefore, have put him 
 upon his oath on the matter, as required by clause 19. This 
 should now be done, and the case proceeded with, in confor- 
 mity with the Rules. — Per Oliphant and Stark. 
 
 30. Cralle, 7,001. Set aside. October 4, 1853. 
 
 The facts of this case are these : — Defendant, on the 20th 
 Ifovember, 1852, gave a bond to 5 persons, for £3. 3s. 3d., which 
 they, on the 22nd March, 1853, assigned to plaintifi'. Defendant 
 admitted the bond, but pleaded payment, and produced receipt. 
 At trial, Court found, that " Bond filed was not a legal docu- 
 ment, and was just so much waste paper; plaintiff non-suited 
 with costs." Supreme Court sent back, for Court to state 
 reasons for judgment, viz., why the bond and assignment are 
 waste paper — whether it be for want of stamps, and, if so, 
 whether the bond produced in evidence were originals or du- 
 plicates." The Commissioner reported, "Commissioner's judg- 
 ment did not proceed upon the ground of the documents filed 
 being unstamped. The documents were originals, and the 
 duplicates or counterparts are duly stamped. The Commis- 
 sioner is under the impression, that the creditors to the bond 
 could not have sued jointly as each has a separate and distinct 
 interest ; and if this impression is correct, it would appear to 
 follow, that two or more of them could not jointly assign their 
 interests to another." 
 
 There is nothing in the law to prevent two or more creditors 
 by bond to assign their debts to another person, nor to prevent 
 his suing on such assignment. — Per Oliphant and Carr. 
 
217 
 
 31. nZalla^am, 1,722. Beturnbd. Octoher 4, 1853. 
 
 Returned, that Commissioner may inform the Supreme Court 
 whether he required the defendants to make oath, that the 
 witness who was summoned and did not appear, was a material 
 and necessary witness. — Per OlipJiant and Stark. 
 
 3^. nXadawelletenne, 392. Affirmed. Octoler 4, 1853. 
 
 Affirmed, with this explanation — that the absolute right to 
 the land in question is not hereby determined, but only to re- 
 place plaintiff in possession, in conformity with the prayer in 
 plaint. — Per OUphant and Stark. 
 
 33. IMCatelle, 3,400. Set aside. October 8, 1853. 
 
 The plaintiff was properly non-suited on a former occasion, 
 as he did not bring up his witness, but such is no bar to a fresh 
 action. 
 
 All the admissible evidence appears to have been received, 
 and the proper judgment shouldhave been, dismissing plaintiff's 
 claim ; but a non-suit only was entered, and this is no bar to 
 a fresh action. — Per OUphant and Stark. , 
 
 34. Jaffna, 11,802. Aefibmed. October 8, 1853. 
 
 Affirmed, save as regards the fine imposed on plaintiff,^ 
 the evidence appearing as much in his favour as against him ; 
 and the judgment does not express in what the false statement 
 consisted. 
 
 The question in this case was, whether a claim for money 
 paid could be prescribed, under the Ordinance No. 8 of 1834. 
 The Commissioner held that the claim was prescribed. — Per 
 OUphant and Stark. 
 
 35. Cralle, 7,036. Set aside. October 8, 1853. 
 
 Judgment entered for plaintiff for ^£3. 9*. 11J<^., with costs. 
 
 The cases of GalleNos. 8,262 and 13,525 are precisely simi- 
 lar to this case, and are of great authority, being collective 
 cases. — Per OUphant and Stark. 
 
 36. Putlam, 8,063. Set aside. October 8, 1853. 
 The point for the Court to determine is, whether it be true 
 
218 
 
 that all or any of tlie cattle have died, as alleged by defendant. 
 The defendant can only be called upon to give plaintiff his 
 share of those in existence, if the death was by disease, and 
 not froili any want of care on the part of the defendant. — Per 
 Olipkant and Stark. 
 
 37. Cliavagraclierry, 3,3Z3. Remanded. October 8, 1853. 
 
 The Commissioner having given no definite judgment, case 
 remanded back for that purpose. It is clear that the plaintiff 
 was absent from duty, and that, in his absence, damage was 
 sustained. To what extent, if any, this damage is imputable 
 to plaintiff, it is for the Commissioner to find by his judgment. — 
 Per Olipkant and Stark. 
 
 38. Fntlam, 8,043. Returned. October 8, 1853. 
 
 It appearing that the Petition of Appeal is written on paper 
 not duly stamped, as required by the Ordinance No. 19 of 1852, 
 ajid, therefore, not admissible by the Court, (See section 5 and 
 12), it is ordered, that the proceedings be returned to the 
 Court of Requests, with liberty to the party appellant to put 
 in a Petition of Appeal on paper duly stamped. — Per Olipkant 
 and Stark. 
 
 39. Putlam, 7,798. ArrniMED. October 18, 1853. 
 
 The fine of ^£1 on plaintiff is set aside— it being irregularly 
 imposed. The Courts of Requests cannot punish parties sum- 
 marily, for instituting false cases, as the Police Courts are 
 empowered to do under the 12th clause of the Ordinance No. 
 11 of 1843; but they can only punish parties for false state- 
 ments, as for contempts, after committing them till the follow- 
 ing day, pursuant to the 7th and 15th clauses of the Ordinance 
 No. 10 of 1843. — Per Olipkant, Carr, and Stark. 
 
 40. IHanaar, 1,719. Set aside. October 18, 1853. 
 
 The Court has no jurisdiction to try the case, the demand 
 (principal and interest) exceeding i£10.* — Per Olipkant, Carr, 
 and Stark. 
 
 * See page 13 of this work, on " abandoning the 'excess." 
 
219 
 
 41. K.aig'alle, 28. Returned. October 18, 1853. 
 
 Bias for defendants and appellants. The facts of this case 
 are fully stated in the judgment of the Commissioner. " This,'' 
 he says, " is an action brought by the plaintiff to obtain poses- 
 sion of a field, which he claims by right of inheritance from 
 his uncle, deceased, and which, he alleges, was unjustly taken 
 possession of by his sister, the 1st defendant, and sold to 2nd 
 defendant. Both parties (the plaintiff and 1st defendant) admit 
 that they are the only heirs, and that their uncle left two lands, 
 one of which he transferred to 1st defendant on a regular 
 Notarial Deed ; and the 1st defendant founds her right to the 
 land (in dispute) on a blank olah document, which purports to 
 be a transfer of the other land, (now in dispute) five or six 
 years before her uncle's death. She admits she was married in 
 deega, so that she would be entitled to none of her uncle's 
 property, were it not for the Notarial Deed in her favour. 
 
 " The circumstances which made the execution of the Nota- 
 rial Deed for the transfer of one of the lands, necessarily would 
 have suggested the adoption of a similar proceeding in the case 
 of the other land ; and it is also suspicious, that the blank olah 
 should have been written so shortly before the death of the 
 deceased. 
 
 " I do not consider it necessary to enter into evidence with 
 regard to the genuineness of the blank olah transfer. 
 
 " It is adjudged and decreed, that plaintiff be put in posses- 
 sion of the field, and that the defendants do pay costs of suit." 
 
 The question in this case is, whether a niece, married in 
 deega, forfeits her right to her uncle's property in favour of a 
 nephew. It is true that, with respect to a woman's paternal 
 inheritance, her deega marriage would operate as a forfeiture ; 
 but the rule has never been applied to collaterals, as in this 
 case. The case No. 23,413, District Court, Kandy, decided by 
 the Senior Puisne Justice, after hearing argument on both 
 sides, is quite in point. As a general rule, a person, by becom- 
 ing a priest, loses his right of inheritance to the property of 
 his parents — (Armour, 28) ; but this does not disqualify him 
 from inheriting a share of his deceased brother's lands. — (Ob. 
 21) this furnishes, by analogy, a strong argument in favour of 
 the position, that the forfeiture, in the case of a deega married 
 daughter, was never carried so far as to apply to collaterals. 
 
 2 G 
 
220 
 
 The olali deed set up by the first defendant, as -well as the 
 verbal gift alleged by the plaintiff, are clearly bad ; and the 
 uncle having died only 18 months ago, neither party can claim 
 by prescription. Therefore, it is submitted, that by right of 
 inheritance, the plaintiff and 1st defendant are each entitled to 
 a half of the land. 
 
 Judgment. — Returned for the Commissioner to give his au- 
 thority for stating that a deega married daughter vfould not be 
 entitled to any of her uncle's property. — Per OlipJiant, Carr, and 
 Starh 
 
 42. Point Pedro, 1,269. Bethrned. October 18, 1853. 
 
 Petition of Appeal and Security Bond being written on paper 
 not duly stamped, as required by the Ordinance No. 19 of 1852, 
 and therefore not admissible, (see sections 5 and 12), proceed- 
 ings to be returned to Court of Requests, for appellant to put 
 in a Petition of Appeal on paper duly stamped. — Per OUphant, 
 Carr, and Stark. 
 
 43. Bentotte, 3,931. Altered. October 25, IS5S. 
 
 Altered into judgment for plaintiff sixteen shillings. A 
 lease for more than one month must be on Notarial deed, by 
 the Ordinance No. 7 of 1840, clause 2 ; and judgment is there- 
 fore only given for the time defendant has had use and occu- 
 pation. — Per OUphant, Carr, and Starh. 
 
 44. Bentotte, 3,910. Set aside. October 25, 1853. 
 Set aside, and a new trial ordered. For any thing that 
 
 appears on the proceedings, the purchaser (plaintiff) may have 
 a better title under his deed of sale than the party who now 
 holds the lands under the Piscal's sale. Neither has legal 
 evidence been adduced to prove such Piscal's sale, though it is 
 true this deficiency may be supplied by defendant's admission 
 on the 16th September. — Per OUphant, Carr, and Starh. 
 
 45. Colombo, 19,444. Affibmed. November 1, 1853. 
 This case first came on, on the 4th October, and was returned, 
 
 that the Commissioner might state, whether he took into con- 
 sideration the plea of presumption, and if not, why not ? — Per 
 OUphant and Carr. 
 
Til 
 
 Plea irregularly entered after judgment recorded. — Per Oli- 
 pJiant, Carr, and Stark. 
 
 46. Dlatella, 3,375. Altered. November 1, 1853. 
 The decree altered into, defendant absolv-ed from the instance. 
 
 As this is a possessory action, and no forcible ejectment is 
 proved against the defendant, the plaintifi has his right of pro- 
 prietory action for the land, when the receipts may be available 
 to shew title in the temple. — Per Oliphant, Carr, and Stark. 
 
 47. Sattlcaloa, 3,930. Set aside. November 1, 1853. 
 The decree set aside — the conviction of any person for a 
 
 crime or offence being no bar to the present action for damages 
 against such person. Ordinance No. 15 of 1843, .section 4. — Per 
 Oliphant, Carr, and Stark. 
 
 48. ItXalla^am, 15. Affirmed. November 3, 1853. 
 
 The decree affirmed, but not for the reason stated by the 
 Commissioner, viz. that any Schedule was unnecessary ; but 
 because the first deed was executed on a valid Schedule, which 
 was not cancelled, and that the claim for pre-emption was too 
 late. — Per Oliphant, Carr, and Stark. 
 
 49. Bentotte, 3,9^0. Set aside. November 3, 1853. 
 
 The plaintiff is not the person authorized by the permit to 
 remove the arrack, but it is to be carried in his boat. The 
 permit is granted to Heralis Appoo, who, for aught that appears, 
 may be the owner of the arrack. No doubt Johannes Silva 
 says he granted a permit to plaintiff's tavern, but why then did 
 he not insert plaintiff's name in the permit ? This must be 
 explained ; and it must be borne in mind, that the value of the 
 arrack is to be estimated at what it is worth at the place of 
 seizure.— Per Oliphant, Carr, and Stark. 
 
 50. Kandy, 9. Set aside. November 21, 1853. 
 
 As the defendant pleaded right by purchase from the plain- 
 tiff, it may be inferred, that such purchase was by a deed ; and 
 the sudden illness of the defendant may have prevented its 
 being produced.— Pe»- Oliphant, Carr, and Stark. 
 
222 
 
 51. Newera Ellla, 1,169. Sbt aside. November 'il, 1853. 
 
 Defendants have proved delivery of paddy, for which they 
 should be allowed ; but it is not shewn to what extent in, money 
 value. — Per Oliphant, Carr, and Stark. 
 
 52. Bentotte, 3,634. Altered. November 21, 1853. 
 
 The decree altered into, " defendants be absolved from the 
 instance, with costs." This is a suit to recover possession of a 
 share of land, of which plaintifi' alleges himself to have been 
 in possession for a year and a day ; and the evidence should 
 have been limited to such possession, and the alleged disturb- 
 ance by defendant. Instead of going into the title of the parties 
 — the Commissioner does not believe the witnesses for the plain- 
 tiff. — Per Oliphant, Carr, and Stark. 
 
 53. Point Pedro, 1,497. Amended. November 21, 1853. 
 The decree amended into, that each party do pay their own 
 
 costs, as defendants did not object to the jurisdiction on plead- 
 ing. Plaintiff was bound, nevertheless, to know the value of 
 his land, and that it exceeded the jurisdiction of his Court. — 
 Per Oliphant, Carr, and Stark. 
 
 54. Newera EUla, 40. Set aside. November 21, 1853. 
 
 Plaintiff claims the land as her own parveny, under tenui-e 
 of service ; and as the land belonged to her father, and she was 
 his only issue, her deega marriage is no bar to her claim. — Per 
 Oliphant, Carr, and Stark. 
 
 55. Newera Ellia, 1,160. Affibmed. November 25, 1853. 
 
 Any claim which the plaintiff may have had for costs incur- 
 red by him in the suit No. 1,142, which was dismissed in his 
 favour, should have been then settled, under the 23rd rule of 
 the Rules for the Courts of Requests. — Per Oliphant, Carr, and 
 Stark. 
 
 66. Bfentotte, 3,925. Remanded. November SO, IS53. 
 
 The proceedings to remand to the Court of Requests of 
 
 Bentotte, to insert in the extract from the Record Book the 
 
 defence, if any such was entered ; and if no such entry was 
 
223 
 
 made, it must be done, and a new trial had. — Per Oliphantand 
 Carr. 
 
 57. Jaifna, 12,395. Set aside. November 30, 1853. 
 The presumption of payment arising from the debtor's pos- 
 session of the bond, is rebutted by other securities deposited 
 with it remaining still in the creditor's hands. The onus is on 
 the defendant, therefore, to prove the payment pleaded by him. 
 — Per Oliphant and Carr. 
 
 58. Kaig'alle, 54. Set aside. November 30, 1853. 
 
 The jurisdiction of the Court not appearing, by the plaint 
 not stating the value of the land to be not exceeding £10. — 
 Per Oliphant and Carr. 
 
 59. BentottC) 3,965. Set aside. December 8, 1853. 
 
 Dias for plaintiff and respondent was called on by the 
 Court. He submitted, that before going into the merits, he 
 had to object to the Court entertaining the appeal — the order 
 appealed from not being a final judgment, under the 10th clause 
 of the Ordinance No. 22 of 1852. The order in question was 
 a mere interlocutory order, allowing the case to stand over for 
 eight days. 
 
 Judgment. — The proceedings to be returned to the Court of 
 Requests of Bentotte. The order made not having the effect 
 of a final judgment, the Supreme Court cannot entertain this 
 case in appeal. — Per Oliphant, Carr, arid Stark. 
 
 60. Galle, 8,074. Set aside. December 8, 1853. 
 
 Plaintiff and defendant owned adjoining premises ; and plain- 
 tiff having made two holes in the wall of his bath room which 
 abutted upon defendant's property, for the purpose of admit- 
 ting light and air, the defendant nailed boards over the holes ; 
 hence this action. The defence set up was, that defendant had 
 a right to the wall in common with plaintiff. 
 
 Rust for appellant contended, that the Commissioner was 
 wrong in his view of the law, and that the wall in ques^on was 
 not a partition wall, but one built by plaintiff's vender, on his 
 own property, and at his own expense, as admitted by defendant. 
 He commented upon the authorities cited by the Court below. 
 
224 
 
 and argued/that the Commissioner could not in this suit', order 
 the plaintifif to stop the holes. 
 
 W. Morgan for respondent contended, that a partition wall 
 was common property, although built at the sole expense of 
 one of the owners of the adjacent property, and that such 
 owner could not make any opening therein to the prejudice of 
 the other. (Grotius 207, sec.^S ; 3 Burge 407 ; Domat C. L., 
 20, t. 12, sec. 2, art. 11.) 
 
 The decree below was set aside, and the case was remanded 
 for a new trial, the Supreme Court remarking — ^that the Court 
 had no power to make a decree against plaintiff, as defendant 
 made no claim in reconvention ; and that the question at issue 
 and for proof was, whether the defendant should pay damages 
 and take down the boards.* — Per UUphant, Can; and Stark. 
 
 61. Point Pedro, 1,545. Set aside. December 8, 1853. 
 The defendant was fully entitled to adduce parol evidence 
 of the payment pleaded by him, if lie did so, as appears on the 
 proceedings ; but the entry on the record must be then in- 
 complete, as the simple word " admitted" would mean that the 
 defendant admitted the plaint or claim. — Per Oliphant, Carr, 
 and Stark. 
 
 * This is the case of Garstin v. Barton, On the 17th June, 18M, it was 
 remanded for a new trial. See page 235 of this work.% It came again 
 before the Supreme Court, (on the 8th March, 1866), The Court below 
 held that the defendant had no right to block up the holes in the wall. 
 
 In Appeal, W. Morgan for Barton, (defendant and now appellant) con- 
 tended, that a window could not be made in a wall to look into another 
 man's premises. Grotius 209, 210. 
 
 Carr (C. J.) You mean a party wall ? 
 
 Morgan ( W.J No, my Lord, any wall separatuig the two premises. 
 Gale on Easements, 191 ; Moore v. Rawson, 3 B. and C, 340. 
 The case was affirmed, the judges present making the following remarks ; — 
 
 Carr (C. J.) We must uphold the decision of the Court below. Surely, 
 Garstin can break down the whole wall, as it stands on his own ground ? 
 Do you contend then, that though Garstin can make a very large hole by 
 wholly removing the wall, he cannot make a small hole in the wall whilst 
 standing ? 
 
 Sterling (.J.) Until you have acquired a prescriptive title, you have no 
 right to stop up a window. 
 
225 
 
 62. Point Pedro, 1,482. Set aside. December 8, 1853. 
 
 It is not sufficiently stated that the Court has jurisdiction in 
 the case, the value of the land being stated at £10, or there- 
 abouts. 
 
 The Clerk should have regard to the forms annexed to the 
 Rules and Orders, and state the facts of the plaint in a concise 
 and intelligible manner, which is not done in this case. — Per 
 Oliphant, Carr, and Stark. 
 
 General Note to the Decisions of 1853. 
 
 The case of Vanderstraaten v. Leisching is taken from the full report 
 which appeared in the Ceylon Miscellany, Those cases have also been 
 taken from the Miscellany, in which any report, however slight in its nature, 
 was given of the arguments of counsel ; and some others, which I did not find 
 in my own collection. 
 
 A great many decisions have been omitted which appear in the Minutes 
 of the Supreme Court or in the Miscellany Reports. Thus, BeTttotte^ 3,7T7, 
 altered by adding the words — " and the judgment of the Court upon the 
 plaint, shall be in full discharge of all demands in respect of the cause of 
 action." Ratnapoora, 1,685, aifirmed as follows ; — " The Court cannot 
 refuse to entertain the case for the reason assigned — defence must be entered 
 into, in which the defendant may plead the decision in the former case, if 
 he thinks it can amount to more than a non-suit." In Jajfna, 11,626, " the 
 action being prescribed, judgment is entered for defendant." Tn RaiTta- 
 poora, 1 ,965, there was no evidence of plaintiff's right to the land or of the 
 damage done, and the decree was unintelligible. Set aside. In Jaffna, 
 12,301, the Supreme Court was not aware of any reason why the Court 
 of Requests could not have jurisdiction in the case. Set aside. In Bentotte, 
 3,796, the defendants were absolved from the instance with costs. In QaXle, 
 7,649, decree was altered into judgment for £2. 16s. Orf., and plaintiff was 
 ordered to return the gold pledged. 
 
 With regEird to the cases of 1862 : — 
 
 1 have inadvertently retained a decision, useless in its bare form, as 
 taken from the Minutes : — Point Pedro, 473, in which the nature of the case 
 does not appear, and if it do appear, the decision would not be of groat 
 value, as the 5th clause of Ordinance 10 of 1843 stands repealed. See p. 
 184. GaUe, 13,578, evidently a Police Court case, was inadvertently allow- 
 ed to remain amongst the Courts of Requests cases. See p. 185. I take 
 advantage of the first opporttmity of noticing these errors, which occurred 
 from great pressure of other engagements, just about the time the pages 
 in question were corrected for the Press. Many cases in these reports were 
 retained in MS. till the time of going to Press, that reference might be 
 made to the original records. 
 
226 
 
 DECISIONS 
 
 OP 
 
 THE SUPREME COURT 
 
 ON 
 
 APPEALS FKOM THE COURTS OF REQUESTS. 
 
 1854. 
 
 1. Kai^alle, 3,311. Set aside. January 6, 1854. 
 
 Interlocutory judgment has been entered in this case with- 
 out any evidence being taken. The proceedings are, therefore, 
 quashed for irregularity, and the case is sent back for hearing 
 and evidence in due course, in terms of the Rules and Orders. 
 — Per Oliphant and Stark. 
 
 2. Neg'uinbo, 6,490. Apfirmed. January 11, 1854. 
 
 The plaintiff complained, that the defendant was indebted 
 to him in the sum of £1. 10s,, value of a bull, the property of 
 the plaintiff, which he purchased from the defendant on the 
 1st February, 1853, and which was in plaintiff's possession up 
 to the 20th July, when defendant unjustly took possession of 
 the animal. The claim was for the bull or its value. The 
 defendant called no witnesses. The Commissioner recorded 
 judgment as follows : — The Court finds by the plaintiff's own 
 statement, that he has not complied with the 7th clause of the 
 Ordinance No. 4 of 1836,* or that he ever made the Police 
 
 * And it is further enacted, that any person having in his possession 
 stolen oxen or buffaloes, tuiless he produce a note in writing, signed by the 
 person from whom such cattle were received or purchased, containing a 
 description of such cattle and the name and abode of such person, and 
 attested by two witnesses, of whom one shall be a Police Vidhan, Con- 
 
227 
 
 Vidahn acquainted with his alleged purchased bull, or did he 
 ever lodge his plaint here, till after the lapse of ten days, 
 although his village is about 5 miles from the Court. It has 
 also come out in evidence of a dispute as to the right of some 
 landed property. The Court, under the circumstances, dis- 
 misses the case under the clause of the Ordinance quoted." 
 The plaintiff appealed, that the clause quoted had no effect in 
 any way, that the alleged sale and purchase was proved to 
 have been made before respectable individuals, and it was 
 immaterial whether the Police Vidahn was or was not acquaint- 
 ed with the fact. The Supreme Court set aside the judgment, 
 holding that the sale to plaintiff was clearly proved, and that 
 the clause of the Ordinance had no application to the case ; and 
 there being nothing to shew doubt as to credibility, judgment 
 was entered for plaintiff. — Per Oliphani and Stark. 
 
 3. NegunibO, 5,6O0. Affirmed. January 11, 1854. 
 Affirmed, save that the words that plaintiff be "quieted in 
 
 the possession of the disputed portion of the land," be altered 
 into, " that the plaintiff be restored to the possession of the 
 disputed portion of the land." 
 
 The claim was merely a possessory one, and the issues were 
 only the possession for a year and a day, and the ouster. — Per 
 Oliphant and Carr. 
 
 4. G-alle, 6,736. Set aside. January 14, 1854. 
 
 The plea of prescription is good in this case : the action was 
 not until five years after the money lent, and there is no 
 admission of the debt either express or implied within the 
 term prescribed by the 5th clause of the Ordinance, to bring it 
 within the 7th clause. — (See Collective decision. District Court, 
 Jaffna, 2,672, on the 11th October 1848.) Per Oliphant and 
 Carr. 
 
 In Jaffna, 2,672, quoted by the Supreme Court, as a prece- 
 dent, the action was against the defendant, as the administratrix 
 of her late husband's estate, for goods sold to him during his 
 
 stable or other petty Headman of the district from which the cattle were 
 removed, shall be liable to a fine not exceeding Five pounds, and in default 
 of payment to imprisonment with or without hard labour, not exceeding six 
 calendar months. 
 
 2h 
 
228 
 
 life. The defendant demurred to the action, on the ground 
 that it was prescribed by the Ordinance No. 8 of 1834. It 
 appears, that the debt became due on the 22nd July, 1844. 
 That a part payment was made by defendant's late husband 
 on the 29th August, 1845, more than twelve months after 
 the cause of action had accrued. The deceased husband died 
 on the 17th January 1846. A demand was made by the 
 plaintiff on the 4th June 1846, and his letter of demand was 
 acknowledged by the defendant on the 22nd September 1846, 
 and the action was instituted on the 26th June, 1847. 
 
 The following was the collective decision of the Supreme 
 Court, after stating the foregoing facts : 
 
 The point for the consideration of the Court is, " whether the 
 payment having been made more than one year after the debt 
 became due, the action can be maintained. The 6th clause of 
 the Ordinance No. 8 of 1834, enacts, that no action for goods 
 sold and delivered shall be maintained, unless the same be 
 brought within one year after the debt shall have become due, 
 except, (as provided by the 7th clause), the creditor can prove 
 any written promise, acknowledgment, or admission made, or 
 act done by the alleged debtor, within the term thereby pre- 
 scribed for bringing the action, and from which the Court shall 
 be convinced that the debt has not been satisfied." 
 
 These clauses are express in their terms, and leave no doubt 
 as to the intention of the legislature, that no action is main- 
 tainable except in accordance with its provision, so clearly 
 expressed. In this case the action was not commenced till 
 nearly three years after the debt became due, and there is no 
 admission of the debt either express or implied within the term 
 prescribed, to bring it within the operation of the 7th clause. 
 The plea of the defendant must therefore be allowed. — Per 
 Oliphant, Stark and Temple. 
 
 The following case, also a collective decision, has completely 
 set aside the law held in the case just quoted. (Oalle 10, 390.)* 
 
 In an action for goods sold and delivered. Defence, that the 
 debt was prescribed by Ordinance No. 8 of 1834. On the 7th 
 of March, 1853, the debt became due ; on the 23rd of January, 
 1855, the action was brought. By the Ordinance No. 8 of 1 834, 
 
 * Galle, 10,390, was delivered on the 29th of July, 1856. It is here 
 given, as tliese reports, in their complete form, will close with 1855. 
 
229 
 
 clause 6, therefore, which requires that in the case of goods 
 sold and delivered, the action must be brought within twelve 
 months, the action would be barred, unless something had in- 
 tervened to take the case out of the Ordinance. 
 
 On the 6th May, 1854, the defendant made payment on 
 account. The question for the decision of this Court, is, whether 
 that payment takes the case out of the Ordinance. 
 
 It will be observed, that the words of the Ordinance, which 
 limit the period for bringing the action, are in eflfect similar to 
 those of the English Statute, 21 James I. c. 16, barring the 
 action simply, and not extinguishing the debt. Higgins v. Scott, 
 2. B. & Ad. 413. 
 
 Now, according to the law of England, it is quite clear, that 
 any payment made at any time before action brought, will 
 revive the power of bringing the action, being in truth, evidence 
 of a continuing or new promise, from the date of which pay- 
 ment, another six years begins to run, and must expire, before 
 the action would be again barred by the statute of James. 
 
 But some diversity of opinion and practice has, it seems, 
 heretofore prevailed in these Courts upon the construction of 
 the Ordinance No. 8 of 1834, it being contended, that the 
 peculiar words " within the term hereby prescribed for bring- 
 ing the action," which occur in the 7th clause of that Ordinance, 
 make the principle which applies in England, inapplicable in 
 our Courts ; and that in order to revive the promise, the pay- 
 ment must have been made, in this case for instance, within 
 twelve months after the debt shall have become due, so that 
 the payment actually made on the 6th May, 1854, would not 
 take the case out of the Ordinance. 
 
 We are of opinion, that this is not the true construction of 
 the 7th clause of the Ordinance. 
 
 It will be observed, that this clause expressly recites, that 
 the terms of the limitation prescribed by clauses 3, 4, 5 and 6, 
 are founded simply on the presumption of payment, arising 
 from the time which the creditor has allowed to elapse without 
 exacting payment ; and then goes on to provide, that certain 
 acts may be considered so sufficient to rebut that presumption, 
 as to enable the creditor still to sue. Now the nearer to the 
 date of the action brought we find the payment made by the 
 debtor, the stronger undoubtedly is the rebuttal of any pre- 
 
230 
 
 sumption that the debt was satisfied. In the words of the 
 Civil Law, habemus confilentem reum up to the very commence- 
 ment of the action. 
 
 To assume therefore, that the Ordinance would consider a 
 payment made in May, less cogent evidence of the continuance 
 of the debt than a more stale payment in the March preceding, 
 would be to stultify the whole tenor of the enactment. It 
 seems to us then, that the far more reasonable construction is 
 to hold, that the words " within the term hereby prescribed for 
 bringing the action," denote simply a measure of time, varying 
 as prescribed by the previous clauses, from ten, to six, to three, 
 and to one year, — such measure of time to be reckoned back- 
 ward from the date of the action brought ; the object of the 
 legislature, namely, the letting in evidence to rebut the pre- 
 sumption of payment being thus effected, in the most satisfac- 
 tory manner, by admitting all more recent, and excluding all 
 such stale proof, as may be, in date, anterior to the respective 
 periods of limitation fixed in each case by the Ordinance. 
 
 Applying that construction to the present case, the simple 
 question will be, is there proof of an acknowledgment within 
 one year before action brought, from which the Court might 
 be convinced, that the debt has not been satisfied. The answer 
 is, — proof has been given of a payment on account, made on 
 the 6th May, 1854, the action having been commenced on the 
 23rd January, 1855. 
 
 Upon that evidence, the Judge below gave j adgment in favour 
 of the creditor, in the words of the Ordinance, " as he might 
 have done if the action had been brought within the time limited 
 by the Ordinance," and we are of opinion, that that judgment 
 must be affirmed. — Per Rowe, Sterling, and Temple. 
 
 5. Neg'umbo, 5, €35. Set aside. January 14, 1854. 
 This was an action for damages against the Modliar of Hapi- 
 tigam Corle, who was alleged to have put out of the plaintifTs 
 garden, on the 9th January, 1853, all the arrack and other 
 property, then in plaintiff's store, whereby the plaintiff's 
 person in charge was prevented from issuing arrack to the 
 sub-renters and others for two days. It was stated by the 1st 
 plaintiff, that he had hired the Government garden from the 
 defendant, but without a written agreement. The Commissioner 
 
T61 
 
 considered this admission fatal, as coming under tlie2nd clause 
 of the Ordinance No. 7 of 1840, and the plaintiffs were non- 
 suited with costs. 
 
 The Appeal was, that the hiring of the godown mentioned in 
 the plaint was perfectly valid, and need not have been in writ- 
 ing, and that the Court should have proceeded to hear evidence 
 before giving judgment in the case. The judgment of the 
 Supreme Court was as follows : — 
 
 Plaintiff held under a verbal lease, at 4s. 6d. per month, rent 
 payable half yearly. Plaintiff was ejected on the 9th January 
 and received a letter on the 11th of the same month to pay 
 rent, having got no notice before he was ejected. The plaintiff 
 at least was a tenant at will, and as such was entitled to reason- 
 able notice to quit. — Per Olipliant and Carr. 
 
 6. Point Pedro, 1,461. Set aside. January 14, 1834. 
 
 The plaintiff could only recover for any advance paid by him, 
 of which he has given no proof. Having by the Ordinance 
 against Frauds and Perjuries, no interest in the land after the 
 sale to defendant, he was not entitled to recover the benefit 
 arising from the re-sale of the land at an advanced price.— 
 Per Oliphant and Carr. 
 
 7. Jaffna, 11,821. Set aside. January 23, 1854. 
 
 The case appears to be beyond the j urisdiction of the Court, — 
 the title to the land, above the value of £10, being in dispute, 
 and the interest of minors therein concerned. — Per Oliphant 
 and Carr. 
 
 8. Jaffna, 12,524. Afeirmed. January 23, 1854. 
 
 The evidence shews, that the defendant had intermeddled 
 with the estate of her deceased husband, but her liability 
 extends only so far as she has received assets, which are avail- 
 able for payment of the debt of the plaintiff, who was entitled 
 to no preference over the creditors paid ; the plaintiff has failed 
 to prove any existing assets in her possession. — Per Oliphant 
 and Carr. 
 
 9 Point Pedro, 1,2S9, Appeal rejected. Feb. 6, 1854. 
 It is ordered that the Petition of Appeal be rejected, as by 
 
232 
 
 the 12th clause of the Ordinance No. 19 of 1852, the required 
 stamps cannot be annexed to it. And it is further directed, 
 that the order of the Supreme Court of the 1 8th day of October, 
 1853, be cancelled jaia improvide emanavit. The petitions pi-e- 
 sented are not good, useful, or available, in Law or Equity, 
 under the 5 th clause of the above Ordinance, owing to their 
 not being duly stamped, and the Court has no power to grant 
 to any party the indulgence of filing a fresh petition after the 
 time prescribed by the Ordinance has elapsed. — Per Carr and 
 Temple. 
 
 10. Sentotte, ^,030. Set aside. February 21, ISSA. 
 The case is remanded back for a new trial, in which the parties 
 
 may produce in evidence, and prove their respective documents 
 tendered by them. 
 
 The 8th and 9th Kules of the Court of Requests require only 
 the parties to produce and exhibit any writings or documents 
 on which their claims are founded, or they may desire to have 
 read to the Court, at the same time that they produce their 
 witnesses, viz., at the hearing. And it is no ground, therefore, 
 for rejecting any document tendered at the trial, that the 
 opposite party had no notice of it before, or that the witness 
 producing it had not been served with a suhpcBna duces tecum 
 to do so. — Per Oliphant and Carr. 
 
 11. Sentotte, 4,070, Atfikmbd. February 21, lS5i. 
 The Court considers the comments written on the 
 
 margin of the Petition of Appeal as highly irregular, and that 
 any record or original petition to this Court should not be 
 defaced in that manner. 
 
 There is a column in the Record book for the entry of any 
 remarks that are material. — Per Oliphard and Carr. 
 
 12. Mallag'am, 1,438. Set aside. March 7, 1854. 
 The Commissioner must take all such legal evidence as may 
 
 be tendered, whether the witnesses have been examined in the 
 former trial or not. — Per Oliphant and Carr. 
 
 13. Point Pedro, 1,583, Set aside. March 24, 1854. 
 It does not appear that the plaintifl' claims the land C, and 
 
 it is of no consequence whether the defendant does or not. 
 
233 
 
 The Commissioner does not appear to have proceeded accord- 
 ing to the Rules for proceedings in Courts of Requests. The 
 defendant should, after the plaint was read, have been called 
 upon to state what he had to say in answer thereto, and then 
 what Mr. Muttukistna* says as to the land C. should have been 
 entered as the defence or part thereof. — Per Ulipkant and 
 Temple. 
 
 14. Satticaloa, 4,352. Set aside. May 12, 1854. 
 
 The case is remanded for a new trial, as there is no proof of 
 the plaintiff having given thirty days' previous notice to the 
 defendant, as required by the Ordinance ; and the plaintiff can 
 only recover twice the amount of defendant's half share of the 
 fence. Plaintiff should amend also his plaint by referring to 
 the Ordinance. — Per Carr and Temple. 
 
 15. Chavag^acherry, 3,5'£7. Set aside. May 12, 1854. 
 
 The plaintiff had, under the customs, a right of pre-emption, 
 which he could be divested of, only, by defendant's deed being 
 duly executed on the proper schedule, and publication of which 
 the defendant should adduce proof of, as being a fact peculiarly 
 within his own knowledge. — Per Carr and Temple. 
 
 16. Caltura, 4,509. Set aside. May 12, 1854. 
 The defence entered in the Record is a good one, if defendant 
 
 can prove that the plaintiff had not exercised reasonable diligence 
 and skill, whereby plaintiff had, through his inadvertence and 
 want of proper caution, incurred the costs sought to be reco- 
 vered — Montriou V. Jefferys, R. §• M. 317. Saunders on Plead- 
 ings, 163.f The judgment has been given without anyinquiry 
 into the evidence, or reason stated for the decision. — Per Carr 
 and Temple. 
 
 17. Jaffna, 11,810. Ajuended. May 12, 1854. 
 The decree is corrected, by plaintiff being decreed to recover 
 
 the sum of £1, with interest at one per cent, thereon, from 
 
 * Counsel in the case. 
 
 t Saunders on Pleading, p. 261. 2nd Edition. 1851. The other au- 
 thorities are i^'araroiortfj V. Garrard, 1 Camp. 383 Denew v. Daverdl, 
 3 Camp. 452. 
 
234 
 
 10th STovember, 1849, being the date of the bond. The onus 
 was on the defendants, as two years had expired, to shew that 
 they have not received the consideration mentioned in the bond ; 
 and it appears by the plaintiff's examination, that only XJ. was 
 due on the former bond, after deducting the £20 for the pur- 
 chase of the land ; and the alleged payment of £2. 5s. is not 
 proved, and does not accord with the recital in the bond of the 
 debt being due on the bond of 1846. — Per Carr and Temple. 
 
 18. Jaffna, 13,164. Set aside. May 29, 1854. 
 
 The case is remanded for the Court to open the interlocutory 
 judgment against first defendant, or make it final indue course 
 under the 19th clause of the Rules of Court. 
 
 The Court of Bequests should proceed in due course to open 
 the interlocutory judgment or make it final ; and it cannot 
 order a plaintiff to confine his writ to any particular defen- 
 dant. — Per Carr and Temple. 
 
 19. Batticaloa, 4,467< Set as^de. May 29, 1854. 
 
 There is no evidence that the vessel was totally lost, as stated 
 by the Commissioner ; and the Petition of Appeal stated that 
 it was only wrecked and sold, in which case the plaintiff would 
 be only entitled to his wages. 
 
 The claim moreover is for seven months wages, part of this 
 service would appear to have been on shore, to which he would 
 be entitled independent of the loss of the vessel Neptune. 1 . 
 Hag. 22. Grotius, 380. 
 
 The proceedings are also irregular, no defence being re.corded. 
 — Per Carr and Temiple. 
 
 20. Matelle, 3,781d Set aside. June7,\i6i. 
 
 Plaintiff is non-suited with costs. The plaintiff's evidence 
 is very doubtful, and fails, in the opinion of the Supreme Court, 
 to establish his claim. As regards the 2«., admitted by defen- 
 dant to have been borrowed, the plaintiff states, that it was 
 returned. 
 
 The fine of 10s. imposed on the witness Ibrahim Saib for 
 coming into the witness box with his handkerchief over his 
 sTioulder, is also set aside. The observance of all such custo- 
 mary usages in respect of dress, although they may still be 
 
235 
 
 regarded and adhered to by the natives, as a becoming and 
 usual mark of respect towards superiors, should not be enforced 
 by a Court of Justice, by treating their omission as a contempt 
 of Court, and punishing any person failing to comply therewith 
 by fine or imprisonment.* — Per Carr and Temple. 
 
 il. Colombo, 20,825. Affibmes. June 17, 1854. 
 
 In this case, the claim was for £5. 2*. Zd. The Commis- 
 sioner, at the first trial, had disallowed a charge for 5s. for a 
 sheet, where the Plaintiff" himself, in his bill of particulars, 
 could not state the exact number of sheets of an agreement, 
 which had passed from his possession. With reference to a 
 deed, which the plaintiff, after drawing it, was not called upon 
 to attest and register, the sums of 3«. and Is. were respectively 
 deducted; and judgment went for £A. \Ss. Sd. and costs in the 
 second class, to which the claim had been reduced. On a 
 reference back, for defendant's examination and any further 
 evidence to be given in six weeks from date, or judgment to be 
 entered up as it stood, the Court below came to its original 
 conclusion. It appears that the plaintiff (on the high autho- 
 rity of Mr; K. Morgan) gave in evidence that 15s. 9rf. was a 
 fair charge for certain letters of the plaintiff, as written by a 
 professional man, and that for writing one of them, an Ad- 
 vocate would charge £\. Is. The same witness also stated, 
 that the late Messrs. Giffening and Martensz used to charge as 
 Proctors, for business which fell within the province of a 
 Proctor's duties, when employed in their Notarial capacity. 
 The charge of 15s. M.j was however disallowed by the Regis- 
 trar, in taxation, under the terms of the following order of the 
 Supreme Court. (The charge in one sum, was for correspond- 
 ing with respect to a certain clause objected to; advising one 
 deed of transfer, instead of two as proposed ; attendances on 
 and consulting with an Advocate; forwarding papers to a 
 Notary in Kandy, and corresponding with him ; and certain 
 attendances, not specified.) 
 
 It is ordered, that the bill of costs of the plaintiff be referred 
 to the Registrar, to tax the several charges of the plaintiff 
 
 ^ Sco page 11, of tills work, regarding the evidence of contempt. 
 
 2i 
 
■236 
 
 according to the table of Notaries' fees, allowed by the Ordinance 
 No. 1 of 1837 ; as no other fees can be maintained by this 
 Court. Subject to this taxation, this Court afBrms the decision 
 of the Court of Requests, as it sees no sufficient ground, to 
 dissent from its finding on the facts at two several trials, es- 
 pecially as it also appears to the Court that the defendant's 
 Agent had acquiesced in the reasonableness of the charges. — 
 Per Carr and Temple. 
 
 22. Cralle, 8,074:. Set aside. June 17, 18d4. 
 
 Remanded back for a new trial in order that the parties may 
 adduce their survey, and any proof they may have in reference 
 to the wall being built as a continuation of a party wall. 
 
 The Supreme Court is not unanimous in its opinion on the 
 weight due to the evidence taken, and wishes therefore for 
 this further enquiry.'*— Per Carr and Temple. 
 
 23. Satticaloa, 3,772. Set aside. June 17, 1854. 
 
 The Supreme Court is unable to understand the merits of 
 the case from the evidence, and the Commissioner expresses a 
 doubt whether the money was ever actually paid by the de- 
 fendant. The Vanniah may be examined, though his written 
 report may not be legal evidence. — Per Carr and Temple. 
 
 24. Tang'alle, 38. Set aslde. June 17, 1854. 
 Remanded back for a new trial. The costs are to abide the 
 
 result. The third defendant was not a party to the former case 
 1,038, and the identity of the land recovered therein by first 
 defendant, with that in dispute in this case, is not proved, so 
 that the judgment and proceedings in that former case, are not 
 conclusive against the third defendant. 
 
 25. Kai^alle, 73. Affirmed. June 21, 1854. 
 
 The Supreme Court observes, that a Commission has been 
 appointed to inspect the land, and to report upon the limits, 
 furnishing a sketch, and if possible, amicably to settle the dis- 
 pute, and put up a proper fence with the consent of both parties. 
 
 * This case came thrice before the Supreme Court, and is well known 
 as the case of Garstin v. Barton. See pp. 223 ^~ 224 of this work. 
 
The Suprem6 Court does not consider that the Court of 
 Requests has any power to appoint such Commission.* — Per 
 Carr and Temple. 
 
 26. Chilaw, 4,825. Set aside. June1\,\»5i. 
 
 A promise or admission to take a case out of prescriptive 
 Ordinance No. 8 of 1834 must, by the 7th clause, be in writing. 
 The plaintiff should moreover briefly set forth in the plaint the 
 particulars of his claim. See Schedule B to the Rules for 
 Courts of Requests. — Per Carr and Temple. 
 
 27. Caltura, 4:,35Z. Set aside. June 29, 1854. 
 
 The decree of the Court in the former suit No. 18,784 is 
 that, " the plaintiff's claim is dismissed, and the defendants 
 absolved from the instance, with costs." Looking to the whole 
 contents, the Court considers that this former judgment cannot 
 operate further than a non-suit. — Per Carr and Temple. 
 
 28. Satticaloa, 4,71X. Set aside. Jvly 12, 1854. 
 
 If the custom of the country require that lands, similiar to 
 that on which the trespass in question was committed, should 
 be fenced, the plaintiff cannot recover damages which are 
 caused by his own neglect in not properly fencing his land, 
 which he has admitted he has not done; and it appears that the 
 defendant was stopped from offering proof of such custom, which 
 he had a right to adduce. — Per Carr and Temple. 
 
 29. Jaffna, 13,313. Set aside. Jtdy 19, 1854. 
 
 The proceedings, as appears by the extract from the Record 
 Book, are irregular in giving the plaintiff judgment by default 
 on the 13th November 1853: this the Court had no power to 
 grant. It should on that day have proceeded to hear the 
 plaintiff and his witnesses, under the 1 7th clause of the Rules of 
 Court, and if it saw fit, have given plaintiffTnterlocutory Judg- 
 ment. The Court should then have proceeded under the 18th 
 and 19th clause of the Rules of Court. — Per Carr and Temple. 
 
 * It is doubtful on what ground this decision was given : whether it 
 was on the ground of want of consent. Sec pages 16 and 17 of this work, 
 on the Jurisdiction in Commissions to examine lands. 
 
238 
 
 3Q. Batticaloa, 4,719. Amended. Jvly ^7,1854,. 
 
 The plaintiff is decreed to be entitled to recover the amount 
 of interest claimed from the defendants with costs. 
 
 The defendants undertook to pay interest from the date of 
 their bond at 12 per cent., on their failing to pay the principal 
 within twelve months, and the Court cannot relieve them from 
 their liability to fulfil the terms of their bond, on the groun,d 
 that they have delayed doing so only fourteen days. — Per Cavr 
 and Temple. 
 
 31. G-alle, 8,150. Amended. July 27, 1854. 
 Amended by plaintiffs being non-suited with costs. The 
 
 claim on the land is now barred by the decree in the case for 
 partition, and the plaintiffs could only make the defendants, 
 as heirs, liable to pay the debts on proof of their possessing 
 other assets of the deceased, which they have failed to do. — Per 
 Carr and Temple. 
 
 32. malla^am, 27. Amended. July S\,l&5'^. 
 Amended by plaintiffs being non-suited with costs. In any 
 
 fresh action, the plaint should be more concisely drawn, and 
 clearly state, whether the plaintiff's claim is for an undivided 
 one-fifth share in the garden, or for a divided portion thereof, 
 and if the latter, it should briefly define the same. — Per Carr 
 and Temple. 
 
 33. Caltura, 4,474« Set aside. July 31, 1854. 
 
 Decreed, that the defendants be absolved from the instance 
 with costs, as the plaintiff has no right to sue for a specific por- 
 tion of tlje estate, being entitled only to half of the whole 
 undivided property of his parents. The Supreme Court sees no 
 reason to differ from the Commissioner, in his views of the 
 general law applicable to the plaintiff's right. — Per Carr and 
 Temple. 
 
 34. Caltura, 4,611, Aeeibmed. July 31, 1854. 
 An objection has been i-aised by the Appellant's Counsel at 
 
 the hearing of the Appeal, that, the contract could not be 
 enforced, as it was for the sale of immoveable property, viz., 
 
239 
 
 the lease of the tavern for a year, and liad not been executed 
 before a Notary; but the defendant having both in the proceed- 
 ings in the Court below, and in his Petition of Appeal, admitted 
 the agreement, and submitted to perform it, by tendering the 
 securities, he cannot in this stage insist upon the benefit of the 
 Statute of Frauds. Sugdn. 106. Spunier v. Fitzgerald, 6 
 Ves. J. 548. — Per Carr and Temple. 
 
 3a. Galle, 8,420. Set aside. July 31, 1854. 
 
 Remanded back for a new trial. The defendant was let 
 into possession on the 1st January, and executed the rent 
 voucher in question on the 16th March, agreeing to pay rent of 
 £,\) 18«. for the term of 8 months which has since fully expired. 
 
 The Supreme Court considers that the plaintiff is entitled to 
 recover rent from the defendants, according to such agreement. 
 " Where a rent is mentioned in the lease or agreement, such 
 rent will be the measure of damages, though the lease be 
 void by the Statute of Frauds." De Medina v. Palson, Holt. 
 N. P. C. 4.— Roscoe 208 .—2 Pothier 198.- -Per Carr and Temple. 
 
 36. XLandy, 18,141. Set aside. Ocfo&er 31, 1854. 
 
 The evidence shews that the buffaloes were fighting with 
 each other when the plaintiff's buffaloe sustained the injury, 
 and there is no proof also that the defendant's buffaloe was a 
 mischievous one, and known to the defendant to be so.* — Per 
 Carr and Temple. 
 
 37. Newera Ellia, 88. Altered. October 31, 1854. 
 
 The Decree altered by the defendant being absolved from 
 the instance. 
 
 On the evidence adduced, and defendant's own admission, 
 neither party appears to have a title to the land, which being 
 Chena, or only cultivated after intervals of several years, must 
 under the Ordinance No. 12 of 1840, clause 6, be deemed to 
 belong to the Crown, except upon proof required therein of its 
 being private property. — Per Carr and Temple. 
 
 * See Calpenlyn, 2,066, and nole, at page 94, as lo (he difference be- 
 tween bcastsyer(C nature and mansuet(e naiurce. 
 
240 
 
 38. Batticaloa, 4,712. Set asjse. October 31, 1854. 
 
 Although the defendant has admitted the bond which he 
 granted to Sekady PuUe, he has not admitted the assignment 
 of it to the plaintiff, which must consequently be proved in 
 evidence; moreover, it should be taken, as to whether the 
 marriage went off in consequence of the defendant's refusal ; 
 because, if he was willing to marry the daughter of Sekady 
 Pulle, he should not be condemned in the penalty over and 
 above the admitted value of the paddy named in the bond, 
 namely, £3. Is. ; and whether hejshould repay even this sum, if 
 he was willing to perform hi8 part of the contract, will depend 
 upon the custom among the Moors. — Per Carr and Temple. 
 
 39. Chavag'aclierry, 3,941. Set aside. iVbt?em5er 7, 1854. 
 
 The Supreme Court is not satisfied with the evidence of the 
 Notary alone in this case. He is not free from suspicion, and 
 the plaintiiFhas gone to trial without the summons issued by him 
 being served on the attesting witnesses. — Per Carr and Temple. 
 
 40. Jaffna, 14,112. Set aside. November 7, 1854. 
 
 Affirmed as regards the 1st defendant, but set aside in respect 
 of the 2nd defendant, and the case remanded for a new trial. 
 
 The agreement is not joint and several ; the 2nd defendant 
 is therefore only liable in a just moiety of the amount due. 
 
 The Interlocutory Judgment against the 2nd defendant is 
 informal, the plaintiff's evidence not having been first heard, as 
 required by the 17th clause of the Rules for Courts of Request. 
 — Per Carr and Temple. 
 
 41. Jaffna, 13,010. Set aside. November 14, 1854. 
 
 Judgment given for plaintiff. Final judgment having been 
 given on the 27th October, 1853, and defendant not having 
 appealed against it, the subsequent proceedings in the Coui-t of 
 Requests, when the judgment was opened, were irregular. — Per 
 Carr and Temple. 
 
 42. Calpentyn, 8,979. Set aside. November 24, 1854. 
 
 The only evidence received is the Police case, the considera- 
 tion of which, and the depositions of the witnesses in it, appear 
 to be the grounds for the dismissal of the case. 
 
241 
 
 This evidence is illegal, and should not have been received. 
 The witnesses should have been examined in the Court of 
 Requests. — Per Carr and Temple. 
 
 43. nXanaar, 1,622. Set aside. November 24, 1857- 
 
 The record and proceedings do not shew that the plaintifi's 
 witnesses were absent, but only that the plaintiff was non-suited, 
 because the Commissioner did not think he could prove his 
 case. 
 
 The plaintiff should have been allowed to call and have his 
 witnesses examined. — Per Carr and Temple. 
 
 44. Me^umbo, 7,009. Set aside. November 28, 1854. 
 
 The plaintiff on behalf of his wife brought his action against 
 the first defendant, and his wife, the second defendant, and the 
 Commissioner decreed, that the second defendant be ejected 
 from the land in dispute and the same be declared the property 
 of the plaintiff and his sister, and that they be put in posses- 
 sion, and the second defendant pay the damages claimed with 
 costs. 
 
 The appeal was, that the proceedings against the second 
 defendant and appellant were irregular, and that the judgment 
 passed against her was contrary to law. That the plaintiff and 
 respondent had waived the first defendant (the husband of the 
 appellant) at the trial, the appellant being under coverture. 
 
 Judgment of the Supreme Court. — Set aside and the case re- 
 manded for a new trial andto give judgment de novo. The costs 
 are to abide the result. 
 
 The proceedings and judgment against the defendant above 
 are clearly irregular and ipif'alid, as she is a married woman not 
 being apart or separate from her husband, — ^who has been made 
 a co-defendant in the suit, and not been summoned. — Per Carr 
 and Temple. 
 
 45. Megumbo, 7,3^Z. Set aside. November, 28, 1854. 
 The case is remanded for a new trial, and to give judgment 
 
 de novo. The defendant does not claim in re-convention, and 
 the judgment in that respect would require to be altered; but 
 in doing so the Supreme Court hesitates to dismiss at once 
 plaintiff's claim, as it does not fully credit the defendant's 
 
242 
 
 evidence, and believes that the plaintiif's case has not been 
 investigated, owing to the misconception of his Proctor. The 
 case is therefore remanded for a new trial, on the plaintiff's 
 paying costs. — Per Carr and Temple. 
 
 46. Xfewera Ellia, 1,4:01. Affirmed. Decemher 13, 1834^ 
 
 The decree of "absolved from the instance," does not debar 
 the plaintiff from instituting a fresh suit. — Per Carr and Tempter 
 
 47. Jaifna, 13,390. Revised. December 13, 1854. 
 
 It is ordered that the appeal be disallowed, not being from a. 
 final judgment, or an order having the effect of a final or defi- 
 nitive judgment ; but the fee ought to be allowed, as part of 
 the expenses of the sale is to be deducted out of the proceeds 
 thereof. — Per Carr and Temple. 
 
 48. Satticaloa, ^,560, Set aside. December 19, 1854. 
 
 The evidence of the 2nd and 3rd witnesses go to shew that 
 the first plaintiff^s former wife, and his present wife the 2nd 
 plaintiff, got half of the land in dispute from their mother ; but 
 the rest of the evidence makes it doubtful whether they really 
 claim one half or a third of the land. The grounds moreover 
 given by the Cbmmissioner for dismissing the plaintiffs' claim^ 
 cannot be upheld, because the plaintiffs were not bound to 
 intervene in the case referred to, though the decision might 
 affect lands in which they were interested. — Per Carr and 
 Temple. 
 
 General Note to Decisions of 1854. 
 
 A great number of cases have been omitted, which were decided on facts ; 
 or in which the facts did not sufficiently appear, to malce the decisions 
 valuable. 
 
243 
 
 DECIt^IONS 
 
 OF 
 
 THE SUPKEME COURT 
 
 ON 
 
 APPEALS FROM THE COURTS OF REQUESTS. 
 
 1855. 
 
 Badulla, 1,902. Affirmed. January 9, 1855. 
 
 If the Proctor in the cause is a witness, he will generally be 
 suffered to remain, his assistance being necessary to the proper 
 conduct of the cause. Pomeroy v. Baddeley. R. & M. 430. ; 
 But this is a matter for the discretion of the judge; Roscoe 
 Civ. Ev. 128 ; and the defence in this suit seems,- on the evidence, 
 to be a false one, and to justify its having been received with 
 caution.* — Per Carr and Temple. 
 
 2. Batticaloa, 4,957. Set aside. Jmaiary 9, 1855. 
 
 The Supreme Court does not think the case has been fully 
 investigated, and defendants' possession gives them no title, as 
 the plaintifi was for some years insane. See 10th clause of the 
 Ordinance No. 8 of 1834. — Per Carr and Temple. 
 
 * In Pomeroy v. Baddeley it was insisted that the attorney for the defen- 
 dantj intended to be called as witness on his behalf, should leave the Court; 
 but, on its being stated that the attendance of the attorney was necessary to 
 the conducting of the case, — it was held, that an attorney was within the 
 rule, and might remain and still be admissable as a witness, his assistance 
 being in most cases absoUttely necessary for the proper conduct of the case. 
 '-^Pomeroy v. Baddeley. 1. Ryan anil Moodxj, 430. 
 
 2 K 
 
244 
 
 3. Satnapoora, 2,223. Set aside. January 17, 18^5. 
 
 The Intervenient's evidence should have been heard, as he 
 may support his title by inheritance and long possession. The 
 objection appears also applicable only to the last deed of 1836, 
 as the others are before the British accession ; the defect of 
 stamp moreover can be cured, and it is not shewn that a Notary 
 was practising in the District at the date of the deed. — Per Carr 
 and Temple. 
 
 4. Jaifna, 13,934. Set aside. January 17, 1835. 
 
 It appears from the bond that the second defendant has 
 been living separate and apart from her husband the first 
 defendant, (who is no party to the bond) for ten or fifteen years, 
 and was so living at the time she and her son, the third defendant, 
 entered into the bond. Her own separate property is therefore 
 liable. The bond, however, being only joint and not several, 
 the third defendant is only liable for his moiety of the debt. — 
 Per Carr and Temple. 
 
 5. Jaffna, 13,703t Set aside. January 24, 1855. 
 
 The Commissioner has disbelieved the defence, not from the 
 evidence given in the present case, but from knowledge which 
 he had obtained from a different source. The defendant's conduct 
 in a former case is no reason why the defence in this case should 
 be false. — Per Carr and Temple. 
 
 6. Batticaloa, 5,223. Set aside. March 20, 1855. 
 
 The 20th clause of the Ordinance No. 14 of 1840 applies only 
 to prosecutions under the Ordinance, and not to a Civil action. 
 ■ — Per Carr and Temple. 
 
 7. Colombo, 24,509. Set aside. March 27, 1855. 
 
 The case is remanded for the summons to be re-issued, it 
 having been returned not served ; and a fresh summons not being 
 required therefore under the Stamp Ordinance. — Per Carr and 
 Temple. 
 
245 
 
 8. Battlcaloa, 5,066.- Set aside. March 27, 1855. 
 
 Any possession is a legal possession as against a wrong doer ; 
 and although the plaintiflf may, as stated by the Commissioner, 
 have incurred a forfeiture by a non-performance of the conditions 
 under which the land was obtained from the Crown, yet, as long 
 as the Crown permits him to continue in actual possession he 
 may maintain an action of trespass like the present, against any 
 person entering upon him, and not having a better title than 
 himself — Per Carr and Temple. 
 
 9. Kewera XSllia, 196. Set aside. March 27, 1855. 
 
 Although the 2nd defendant was absolved from the instance in 
 the former suit No. 114, he can be again sued by the same party, 
 or by those in the same interest upon the same subject matter. 
 
 An absolution from the instance of a defendant is equivalent 
 to the plaintiff being non-suited, and is no bar to a subsequent 
 action between the same parties, which a dismissal of the case 
 would be. In this case the 2nd defendant is the person to whom 
 the 1st plaintiff alleges he entrusted the land, and from whom 
 the 1st defendant states he obtained it: he is therefore a neces- 
 sary party to the suit. — Per Carr and Temple. 
 
 10. Mewera Sllia, 144. Affikmed. April 3, 1855. 
 
 The dismissal of ^e former case No. 97 can only operate as a 
 non-suit, since it was not dismissed on the merits, but only 
 because the plaintifi's witnesses were absent. The judgment 
 should have been a non-suit of the plaintiff, which is no bar to a 
 further suit. — Per Carr and Temple. 
 
 11. Battlcaloa, 5,423. Set aside. ilfoy 18, 1855. 
 
 The plaintiff claims, as a compensation of his trouble in assist- 
 ing to save some timber, a share in the whole amount of salvage 
 paid to and received by the 1st and 2nd defendants for all the 
 timber saved from a wreck, and delivered to 3rd defendant, 
 Parties to a suit also are admissable witnesses on behalf of either 
 or any of the parties to the suit. See Ordinance No. 9 of 1852, 
 clause 3rd.*— Per Carr and Temple. 
 
 '■' See pages 33 and 39 of this work. 
 
246 
 
 12. BXatura. 9,0&S. Rejected. May 18, 1855. 
 It is ordered that the appeal be rejented, as under the 12th 
 
 clause of the Ordinance No. 22 of 1852, parties can only appeal 
 against any final judgment, or against any order made in such 
 action, having the eiFeot of a final or definitive judgment : anil 
 the judgment appealed from, is only the interlocutory one, and 
 would, on due clause shewn, be opened. — Per Carr and Temple. 
 
 13. Matura, 8,132. Set aside. May 22, 1855. 
 The plaintiff avers that he is entitled to one-fourth of the 
 
 garden and trees in dispute, and that the latter had been cut 
 down by him without any objection by his co-heirs, and taken 
 from his possession by defendants, against whom, as trespassers, 
 he may in this action recover its value, although responsible to 
 his co-heirs for their share thereof. 
 
 In Courts of Requests all technical objections for want of 
 parties, should not be allowed to have weight. If parties are not 
 joined who are necessary to the decision of the suit, — the Court 
 can let the hearing be postponed for them to be joined, other- 
 wise judgment can be given pro tanto, or subject to claims of 
 others interested, who are absent. — Per Carr and Temple. 
 
 14. Bentotte, ^,969. Set aside. ilfa;/ 22, 1855. 
 
 The non-payment of the costs of a former suit is no ground 
 to stay proceedings in another suit for the same cause of action, 
 except when the second action appears to have been brought 
 vexatiously. See 18,235, D. C. Trincomalie, 7th April 1853.* — • 
 Per Carr and Temple. , 
 
 15. Colombo, 23,SS0, Set aside. June 5, 1855. 
 
 The payment endorsed (if proved) would, under the 7th 
 clause of the Ordinance, take the case out of the operation 
 
 * In Trincomalie, 18,235, D. C, it was held, thai it is only in cases 
 where the second action for the same cause appears to have been brought 
 vexatiously, that the Court will order proceedings thereon to be stayed, 
 until the costs of the former suit are paid, although the plaintiff be a 
 pauper, or in execution for such costs. In this case the plaintiff withdrew 
 only the former suit on discovering a material mistake in the libel before 
 trial, and brought another. — Wild v. Hobson, 2 V. and B. 112. Arch. Q. 
 B. Prac. " Staying ProceeiHvgs.'^ — Per Oliphani Carr and Stark. 
 
of the 3rd clause, itmsmuch as the presumption of payment, 
 arising from the ten years that the creditor has allowed to 
 elapse without exacting payment, on which the terms of limita- 
 tion ai-e founded, is rebutted by such acknowledgment made, 
 or act done by the debtor within the terms thereby prescribed. 
 And because, failure having also been made in the payment of 
 prior monthly instalments, due when the payment was endors- 
 ed, interest had then become payable on the bond, and the 
 payment endorsed having been made generally, must be first 
 applied in liquidation of the interest due. — Per Carr and 
 Temple. 
 
 16. Negumbo, 7,S96. Set aside. June 5, 1855. 
 
 If a plaintiff finds that his evidence is not sufficient to main- 
 tain his case, he may elect to be non-suited before evidence 
 has been called im the part of the defence, in order that he 
 may have an opportunity of bringing another action when 
 better prepared with evidence. — Per Carr and Temple. 
 
 17. I<7e^uinbo, 7,835. Affiemed. June 14, 1855. 
 
 The plaintiff's claim being in right of his wife, she should 
 join in the action, and it depends on the Dowry Deed, and 
 possession, whether the right is for a specific or undivided half. 
 Plaintifi'may proceed against the defendant who -is in posses- 
 sion, to try his title. under the sale, and recover back the 
 premises, and the seller may be joined in that action to defend 
 the sale and pay costs. In an action against the seller alone, 
 the plaintiff could not eject the defendant. — Per Carr and 
 Temple. ' 
 
 18. Calpentyn, 8,814. Set aside. June 14, 1855. 
 If the defendants dispute the jurisdiction, the Court should 
 
 call upon the plaintifi' to prove the land to be of such value as 
 will bring the case within the jurisdiction of the Court of Re- 
 quests, the defendants being at liberty to call counter evidence, 
 when the Court will decide whether it has or has not jurisdic- 
 tion. The mere assertion of a defendant, supported by a report 
 procured by himself, is not sufficient to enable the Court tQ 
 decide the question. — Per Carr and Temple. 
 
248 
 
 19. Q-aUe, lQ,01i. Apfibmed. June 14, 1855. 
 
 The plaintiff's application that the defendant should refund 
 the money overdrawn by him, should be made in the original 
 case No. 5,659, in which the order for the payment was made. 
 — Per Carr and Temple. 
 
 20. Ratnapoora, 2,399. Set aside. June 23, 1855. 
 
 The charge for Medical attendance of services is not in- 
 cluded in the Ordinance, and would be prescribed under the 
 Dutch Law, after two years. The charges for Medicine comes 
 within the 5th clause of the Ordinance, which should be plead- 
 ed, and plaintiff be thereon allowed to urge the 7th clause in 
 his favour.— Per Carr and Temple. 
 
 21. Mullativoe, 3,438. Set aside. ^aKe 23, 1855. 
 The Court was wrong in refusing to let defendant subpoena 
 
 other witnesses than those to the bond. A party may call any 
 witness he may think necessary. The want of registration of 
 the marriage of plaintiff's father is a bar, under the 3rd clause 
 of the Ordinance No. 9 of 1822, to his succeeding to his 
 father's property, which conseqjiently becomes the property 
 of his next heirs, and the defendant, and the deceased brother 
 Candeu can only bind themselves by the bond filed by plaintiff, 
 who is therefore only entitled to recover from them such land 
 of 1st plaintiff's father, or its value, to which they succeeded, 
 exclusive of that which has descended to defendant's sisters, 
 who were no parties to the bond. — Per Carr and Temple. 
 
 22. Matellef 5,006, Set aside. June 11,1655. 
 
 The plaintiffs contend that the defendant had charge of the 
 cow in '■^Ande" the offspring of which is now in dispute. The 
 cause of action, according to plaintiffs statement, is the adverse 
 act of branding the cattle from which time prescription begins 
 to run, and which plaintiffs allege to have only taken place 
 last year. — Per Carr and Temple. 
 
 23. Tang'aUe, 2,468. Set aside. June 27, 1855. 
 The defence has been erroneously entered in the Record 
 
 Book, as simply denied, defendant having also objected to the 
 
•249 
 
 JLirisdiodon of the Court, on the ground of the land in dispute 
 being above £10 ; and on that plea evidence should have been 
 heard, and also as to the site and boundaries of the land, if 
 they were disputed and necessary to be ascertained, to know 
 the value of the land. — Per Carr and Temple. 
 
 •lA. Caltura, 5,883. Set asisi:. June 27, 185f>. 
 
 The Supreme Court considers that the plaintiff can maintain 
 an action against his lessor for damage sustained by him, in 
 consequence of his having been evicted from the land. — Per 
 Carr and Temple. 
 
 25. IMatura, 8,929. Set aside. August \4, \?i55 . 
 
 The defendant admits his liability to pay the plaintiff as 
 Government Renter half the crop of the field in question, but 
 pleads an inundation which destroyed the crop. Hence the 
 plaintiff, who has proved, by the clerk of the Cutcherry, that 
 the field was taxed at 12 bushels, is entitled to judgment, 
 unless the defendant should prove that the crop was destroyed 
 by the inundation. The plaintiff can moreover, under the 
 Ordinance No. 9 of 1852, be examined as a witness on his own 
 behalf. — Per Carr and Temple. 
 
 26. Colombo, 126. Set aside. August 14, 1855. 
 
 The respondent in this case being dead, it is ordered that 
 the proceedings be returned to the Court of Requests of Co- 
 lombo, in order that the representative of the respondent may 
 be made a party to the suit. — Per Carr and Temple. 
 
 27. Ratnapoora, 2,102. Set aside. August \i,\&S5. 
 
 The Supreme Court regai-d the decision in the former case 
 as a non-suit only, the Court of Requests having simply dis- 
 missed the case, after hearing the plaintiffs ' evidence, without 
 recording any opinion in respect to the merits of the claim, as 
 it would upon insufficiency of evidence alone. No reason is 
 moreover given for non-suiting the 2nd plaintiff, who was not 
 a party to the old suit, and whose witnesses were in attendance 
 and not heard. — Per Carr and Temple. 
 
250 
 
 28. Ja^na, 2.5,1^S> Set astbi:. ^77^7/5/29,1855, 
 
 The bond being proved, it was for the defendant tosliew tbe 
 want of consideration. The Supreme Court has decided that 
 the Roman Dutch Law, requiring the plaintifl^ to prove pay- 
 ment acknowledged by bond, when denied within two years, is 
 rescinded by 1st clause of the Ordinance Xo. 3 of 1846. — Per 
 Carr and Temple. 
 
 29. Point Pedro, Z,235. Affirm-ed. Septembe?^ 5, 1855. 
 
 The 1st defendant should only have stayed the sale of the 
 Almirah on the claim made, and security given, by the 2nd 
 defendant ; but he ought not to have delivered it over to him 
 or have altered the possession. See 7th clause of Eule of 11th 
 July 1840.* — Per Carr and Temple. 
 
 30. Jaffna, 15,86^, Set aside. September 7, 1855. 
 
 The Court of Requests does not appear to have looked as to 
 whether the bond be a joint or several one, and whether tlie 
 deceased son of the defendant was, on executing it, a minor, 
 
 * "As it may frequently happen that property may be seized or se- 
 questered in parts of the country where there are no adequate means of 
 securing' the same, the Fiscal or his Deputy or Officer, whenever he shall be 
 unable safely and securely to keep any property seized or sequestered, at 
 the place where the same shall be so seized or sequestered, may either 
 cause the same to be removed to some fd place of security {the expence of 
 which removal shall be borne by the debtor in the first mstance, and if not 
 previously paid by him shall be paid out of the first proceeds of the pro- 
 perty seized or ^questered, or shall be recovered by process of Parate 
 Execution at the suit of the Fiscal against any other property of the debtor) 
 or may Tcq\nrc the ownei- or possessor of the property to take charge 
 thereof luitil the time of sale, on giving- security, to the satisfaction of the 
 Fiscal or his Deputy, that he will in the'meantime safely and securely keep 
 the same. And if such owner or possessor fail to give such security, (Jir 
 party suing out the writ may be required to take charge of the propert}', 
 giving the like secui'ity to the satisfaction of the Fiscal or his Deputy, and 
 if the part}"^ at whose suit the writ has issued, shall on being tlius required, 
 fail to take charge of such property or to give such security, the Fiscal or 
 his Deputy shall make a special return thereof to the Court and shall be no 
 longer responsible for any injury, loss or damage, which may happen to 
 such property." — Gm. Rii/es respectino- the dulies of Fisca/s, etc. 1\t}i 
 Jvlij, 1840. 
 
251 
 
 and bound thereby. His heir, or personal representative, 
 should be also made a party to this suit, and it would seem 
 K. A. Tamby is admitted by intervenients to be his heir, and 
 no sufficient reason appears to incapacitate him from the ma- 
 nagement. — Per Carr and Temple. 
 
 31. Kandy, 19,358. Amended. October 9, 1855. 
 The contracting parties have by their own agreement ascer- 
 tained the amount of damage which the plaintiff has suffered, 
 by the non-performance of the contract, and the plaintiff can- 
 not, in addition, recover the value of the timber not delivered. 
 Each party to pay his own costs. — Per Carr and Temple. 
 
 32. Jaffna, 15,1^0, Set aside. October 9, 1855. 
 
 The facts of the case do not very clearly appear from the 
 proceedings ; but as explained by the petition of appeal, the 
 action is to recover costs, incurred in case No. 3427, brought 
 by the 1st defendant, to establish his claim to the land seized 
 by plaintiff, under the writ No. 2573. The plaintiff incurred 
 the costs now sued for in consequence of the 1st defendant's 
 claim to the land, and the bond given by him and his two 
 securities to the Fiscal, renders them responsible for these 
 costs ; i.e. the 1st defendant for the whole, and in the event of 
 his inability to pay, the 2nd and 3rd defendants jointly. The 
 fact of the suit No. 3427 having been commenced shortly 
 before the bond was signed, does not make the defendant less 
 liable. — Per Carr and Temple. 
 
 33. Jaffna, 74. Set aside. October 9, 1855. 
 
 The plaintiff is decreed, to be entitled to his claim of pre- 
 emption with costs of suit, and the deeds to the 2nd aud 3rd 
 defendants are cancelled. If evidence of the nature relied on 
 by the Court below, were to prevail against the custom under 
 the Thesawalame, requiring a schedule and publication, (which 
 are admitted to be wanting in this case,), then it would lead to 
 very dangerous consequences and abuse; as proof of the party 
 claiming prior pre-emption having received notice of the sale, 
 prior to the transfer, and not objecting to it, or having given 
 some parol or tacit consent to the same, would easily be pro- 
 
 2l 
 
252 
 
 cured in this Colony. In the present case the implied full 
 consent is not even clearly proved. — Per Carr and Temple. 
 
 34. Oampola, 16,306, Set aside. October 22, 1855. 
 
 The case has been dismissed upon the admitted conviction 
 of the 1st plaintiff, for driving the defendant's cattle on his 
 field. The damage done to which, he now sues for. It is a 
 general rule, that a verdict in a criminal proceeding cannot be 
 given in evidence in one of a civil nature.* See Phil. Ev. Ed. 
 8. p. 520, 524. 1. Starkie Ev. Ed. 3. p. 278. Arch. Civ. P. 
 p. 394. Roscoe Ev. p. 137. — Per Carr and Temple. 
 
 35. Ratnapoora, 2,714. Set aside. November 13, 1855. 
 
 The 20th clause of the Ordinance No. 14 of 1 840, bars only 
 prosecutions under the Ordinance. The I7th clause thereof 
 expressly provides that nothing in the Ordinance contained 
 shall be held to prevent the Government, or the Renter, from 
 instituting a civil action for the recovery of the tax due upon 
 any crop. — Per Carr and Temple. 
 
 36. Point Pedro, 3,066. Set aside. Decembers, 1855. 
 
 The Supreme Court does not consider that the plaintiff is 
 estopped from bringing this action by the suit No. 1590. And 
 it further considers, that the defendants should show, that pos- 
 session had accompanied their deed. See Roscoe Ev. p. 93. 
 Ed. 5. — Per Carr and Temple. 
 
 37. Badull», 1,903. Set aside. December 3, 1855. 
 
 The Supreme Court considers that the plaintiff and appel- 
 lant should be allowed to have his evidence heard, and that 
 although plaintiff has a brother, he could have judgment pro 
 tanto, or subject to his brother's interest. 
 
 The Supreme Court further, does not consider that adminis- 
 tration should be required from an heir, to sue for so small a 
 portion of his father's land. — Per Carr and Temple. 
 
 * See, on this point, the collective decision, Jaffna 1,302 (page 104 of 
 this work), and the authorities cited in the note. See, also, Mallagam, 207, 
 (pages 150 and 151), and the notes to that decision. 
 
2,;3 
 
 38. Cba^ag'acherry, 83. Set aside. Dec. 11,1855. 
 
 It has been decided by the Supreme Court that ten years 
 possession will not give a prescriptive title to the land, if 
 there has been a suit during the period to contest the pos- 
 sessor's right, although such suit may have been discontinued ; 
 as, under the Roman Dutch Law, a constructive, or civil inter- 
 ruption is effected by litis contestatio or by vocatio in jus; and 
 the 2nd clause of the Ordinance No. 8 of 1 834 requires the 
 possession to be "undisturbed and uninterrupted as well as 
 by adverse possession." See appeal, Kornegalle No. 12,911 on 
 the 9th July, 1854,* and Marsh. Digest, Iff. 3 and 9.— Per 
 Carr and Temple. 
 
 * In Kornegalle, 12,911, D. C, — it was urged by the defendant and 
 appellant's counsel, — " that the defendant had upon the evidence, a pre- 
 scriptive title to the Temple in dispute, from adverse possession thereof by 
 his preceptor and himself for ten years previous to the bringing of this 
 case, — which was a new action, and not a continuance of the former one ; — 
 but the decisions of this Court mentioned in Sir Charles Marshall's Digest, 
 title " Prescription," par. 3 and 9, shew that the possession required by the 
 Ordinance must be " undisturbed and uninterrupted," and by adverse title, 
 viz. " unaccompanied by payment of rent or produce, or performance of 
 service or duty, or by any other act by the possessor, from which an ac- 
 knowledgement of a right existing in another person would fEiirly and 
 naturally be inferred." And where possession, undjr which a party claims 
 a prescriptive title, has ineffectively been " contested " ; that this contest 
 would nevertheless be an interruption or disturbance to defeat the claim of 
 prescription. Thus a claim before an award by a Gansabe, which was 
 not submitted to, or the commencement of an action in the usual way, have 
 been held sufficient to bar a title by Prescription. The case of Smith v. 
 Bowyer, 3 J. R. 662, and 3. Burge 23, have been cited by the Appellant 3 
 and an actual entry also would be necessary to disturb the possession, and 
 to prevent the operation of the statute of Limitations. Dougl : 485, n. 1., and 
 1. Saund. 319, E. But this Court, under the Roman Uutch Law adheres 
 to the former decisions, as a constructive or civil interruption is effected 
 by " litis contestatio," or by " vocatio in jus," and even by a complaint or 
 protestation duly made, when on account of the absence of the adversary, 
 a litis contestatio cannot be interposed. 3. Burge 24, 26, 65. Voet lib, 41 ., 
 lit. 3., n. 19, 20, 21. And it is essential to a title by prescription, that the 
 party claiming should have, for ten years previous to the bringing of the 
 action, held the peaceable Emd continued possession, without any inter- 
 ruption by the true owner, without any acknowledgement by him in pos- 
 session of that person being the owner, and without any suit having been 
 instituted against him. 3. Burge 26. Voet lib. 44,Jlit. 3,, n. 9."— Per Carr and 
 Temple, 
 
254 
 
 39. Jaffna, 16,099. Set aside. Seeember U, 1S55. 
 
 Defendant should be called upon to prove payment. The 
 Supreme Court cannot believe on the evidence, that there was 
 any mistake in the entry of the plea of payment, and defen- 
 dant should not therefore be allowed to withdraw it, and enter 
 a general denial on his third attendance a month after. — Per 
 Carr and Temple. 
 
APPENDIX. 
 
237 
 
 Z. 
 GENERAL RULES AND ORDERS 
 
 FOR 
 
 COURTS OF EEQUESTS. 
 
 Promulgated in open Court on the Twenty-first day of October, One 
 Thousand Eight Hundred and Forty-four. 
 
 Whereas by the Ordinance No. 10 of 1843, entituled " An Ordinance 
 for the establishment of Courts of inferior Civil jurisdiction, to be call- 
 ed Courts of Requests," It is amongst other things enacted, that it 
 shall be lawful for the Judges of the Supreme Court, collectively, at any 
 General Sessions to be by them holden at Colombo from time to time, 
 to frame, constitute, and establish such General Rules and Orders of 
 Court, as to them shall seem meet, touching and concerning the fonn 
 and manner of proceeding to be observed in the said Courts of Requests ; 
 and touching and concerning the practice and proceedings to be 
 therein brought ; and touching and concerning the manner, time and 
 place in which such proceedings shall be brought under the review of 
 the Supreme Court ; and touching and concerning the proceedings of 
 the Ministerial Officers of the said Courts, the Process of the said 
 Courts, and the mode of executing the same ; together with all such 
 General Rules and Orders as may be necessaiy for giving full and 
 complete effect to the provisions of the said Ordinance, in whatsoever 
 respects the form and manner of administering justice in the Courts 
 thereby constituted ; and all such Rules, Orders and RegiJations, from 
 time to time to revoke, alter, amend, or renew, as occasion may require : 
 Kow therefore, in pursuance of the power and authority so vested in 
 the Judges as aforesaid, It is Ordered, that the following Rules and 
 Orders shall be in force and take effect after Fifteen days from the date 
 of the publication thereof, in the Government Gazette : 
 
 1. The Clerk of every Court of Requests shall keep a Book, ruled 
 and divided into columns, headed and entitled according to the form 
 set forth in the Schedule hereunto annexed, marked (A), which shall 
 be called "The Record Book of the Court of Requests of 
 
 ;" and the said Clerk shall enter therein, in manner herein- 
 after set forth, all proceedings in the said Court, and the Commissioner 
 of every such Court shall, before the rising of the Court on every 
 Court day, sign the same ; and the said Book shall be produced and 
 submitted to the Judge of the Supreme Court on Circuit, on the first 
 day of every Sessions. 
 
258 
 
 2. Any person having matter of complaint or demand against an- 
 other, shall, either himself or by somft- person whom the Commissioner 
 shall permit to appear and act for him, state such matter orally, to the 
 Clerk of Court, who shall enter the same by way of plaint in the proper 
 column of the said Book, setting forth, shortly and distinctly, the 
 names and places of the said parties, — the natm-e and grounds of the 
 said complaint or demand,— and the relief prayed ; and the said plaint 
 shall stapd for and be taken as in the place of a declaration of the 
 cause of action between the parties ; and the said plaint shall be enter- 
 ed, as near as is material in the forms and according to the precedents 
 set forth in the Schedule hereunto annexed, marked (B.) 
 
 3. At the time of entering the plaint, the Clerk of Court shall ap- 
 point a day for the appearance of the parties with their witnesses, in 
 order to the hearing of the complaint at a reasonable time, according 
 to the distance at which the party summoned lives, from the said Court, 
 and he shall inform the party complaining thereof; and the said Clerk 
 shall issue and deliver to the Officer of the said Court duly appointed 
 for the service of the Process thereof, a Summons for the party com- 
 plained against, to appear before the said Court with his witnesses, if 
 he have any, on the said day, and the said Summons shall be, as near 
 as may be in the form in the Schedule hereunto annexed, marked (C.) 
 
 4. A copy of the said Summons, together with copies of any docu- 
 ments, account, or bill, upon which the said complaint or demand is 
 founded, shall be delivered to the Officer with the Summons, and shall 
 be served either personally on the said defendant, or left for him at his 
 dwelling house with some one of his household, at least forty-eight 
 hours before the time therein specified for his appearance, where the 
 party summoned lives within five miles of the place of holding the said 
 Court ; — three days, where the said party lives at a greater distance 
 than five miles, and not exceeding ten ; and so, one day in addition for 
 every additional five miles of distance at which the party summoned 
 lives from the place of holding the said Court. 
 
 5. If two or more persons are Partners in trade, and jointly sued as 
 such, the like service upon any of them shall be sufficient. 
 
 6. The Officer appointed to serve the process of the said Court, 
 shall endorse on or annex to the Summons, the manner of his executing 
 the same, and shall return the said Summons to the Clerk of Court. 
 
 7. On the day appointed for appearance of the parties, unless the 
 said Summons shall have been withdrawn, the Commissioner of the 
 said Court shall cause the parties, plaintifi' and defendant, to be called ; 
 and if they or their substitutes, where such are allowed, shall appear, 
 the Clerk shall record the same ; and the Court shall proceed to enquire 
 of and determine the said complaint or demand ; and the Commissioner 
 shall cause the Clerk to read over the plaint, and ask the defendant or 
 his substitute, what he has to say in answer thereto ; or where the 
 complaint of the plaintiff is in respect of any sum of money alleged to 
 be due to him, if he has any like counter claim against the said 
 plaintiff: and the said Clerk shall record his answer in the proper 
 column of the said Book. 
 
 8. If the defendant deny the said complaint or demand, or make 
 claim of any sum of money as due to him by the said plaintiff, the 
 
259 
 
 said plaintiff shall forthwitli produce and exhibit to the Court any 
 ■writings or documents, whereon his complaint or demand may be 
 founded, and shall also produce any witnesses he may require to have 
 examined in support of the same. 
 
 9. The case on the part of the plaintiff having been heard, or the 
 claim admitted, and a counter claim set up, the defendant or his sub- 
 stitute shall, in like manner, produce any writings or documents he 
 may desire to have read to the Court, and any witnesses to be ex- 
 amined in support of his defence or counter claim, as the case may be; 
 and the plaintiff shall be heard and adduce his evidence in reply 
 thereto. 
 
 10. The process of the said Court for compelling the attendance of 
 any person to give evidence thereon, shall be by Summons issued by 
 the Clerk of Court, and directed to such Officer as aforesaid, and shall 
 be served and returned by him in the same manner as any other Sum- 
 mons of the said Court ; and the said Summons may be sued out by 
 either party requiring the attendance of any witness, and shall be, as 
 near as is material, in the form in the Schedule hereunto annexed, 
 marked (D.) 
 
 11. If any witness have in bis possession or controul any deed, 
 instrument, or writing, which the party requiring his attendance is 
 desirous to shew in evidence, then the said Summons shall be in the 
 form in the Schedule hereunto annexed, marked (E.) 
 
 12. There shall be delivered to the said Officer, together with the 
 said Summons, so many copies thereof as there are witnesses to be 
 summoned, and if any person, being duly summoned to give evidence, 
 and having no sufficient excuse, shall neglect or refuse to attend to 
 give evidence, according to the said Summons, then every such person 
 shall be liable to be punished as in and by the 15th clause of the Ordi- 
 nance No. 10 of 1843 is provided. 
 
 13. If it shall appear to the said Court, upon oath, that any person 
 is a material and necessary witness for either party to any cause, and 
 that he has been duly summoned, but does not attend at the hearing 
 thereof, then the Commissioner shall, at his discretion, either postpone 
 the hearing of the case to another day, then to be appointed by him, 
 or else shall take the examination of such witnesses as appear, and 
 suspend, if necessary, the further hearing of the said case to another 
 day ; which postponement or suspension, and the cause thereof, and 
 the day appointed for further hearing, the said Clerk shall note in the 
 column of the Record Book, entitled "day of hearing the case." 
 
 14. Where in the course of any case it may be necessary for either 
 party to produce and shew to the Court any record, entry, or docu- 
 ment of the said Court, it shdll not be required of the said party to 
 produce any office copy of such record, entry, or document; but the 
 Clerk of the said Court shall, at his request, produce and shew or refer 
 to the original. 
 
 15. The Commissioner shall cause the Clerk of Court to note in the 
 Record Book, any objections made by either party to any evidence 
 received, or to any evidence or any document tendered by either party to 
 the Court and rejected; and the Commissioner shall take down in 
 writing the examination of the parties, if any such there be, and the 
 
 2m 
 
260 
 
 evidence of all witnesses examined, and sign the same, and such evidence 
 in each case, with all documents received in evidence, and the original 
 process of the Court, shall he kept apart, and shall be numbered as of 
 the number of the case in the Eecord Book. 
 
 16. All Judgments of the said Court shall be given in open Court, 
 and reduced into writing, and signed by the Commissioner, and annex- 
 ed to the evidence ; and a note thereof shall be recorded by the Clerk 
 of Court in the proper column of the said Book. 
 
 17. If neither the defendant nor his substitute appear on the day 
 appointed for the appearance of the parties, then the said Court, upon 
 the request of the plaintiff, and being satisfied by the return of the 
 Officer of the said Court endorsed upon the Summons, that the same 
 hath been duly served, shall proceed to hear the plaintiff and his wit- 
 nesses, and shall give judgment thereon, but the said judgment, if the 
 same shall be against the defendant, shall be interlocutoi-y only, and 
 not final, until notice thereof, and a day for appearance thereon, shall 
 have been given to the said defendant, and the Clerk of Court shall 
 issue and deliver the said notice to the Officer of the Court appointed 
 to serve the process thereof, who shall serve the same and make his 
 return of the service thereof, as on the service of any Summons, and 
 the said notice shall be, as near as may be, in the form of the Schedule 
 hereunto annexed, marked (F.) 
 
 18. After service of the said notice, if the defendant or his sub- 
 stitute do not appear in Court on the day therein specified, the said 
 judgment shall become final ; and the Clerk of Court shall record the 
 same, and the date thereof, in the proper column of the said Book. 
 
 19. If the defendant or his substitute appear before the Court at 
 the time specified in the said notice, and it shall sufficiently appear to 
 the said Coui-t, by oath, that the said defendant did not receive the 
 Summons a sufficient time before the day of the return thereof, to be 
 able to obey the same, and that he did not absent himself from home, 
 for the purpose of avoiding the service of the said Summons, or was 
 prevented from attending by sickness or other reasonable cause, — then 
 the said Court shall order the said judgment to be opened, and shall 
 permit the defendant to answer the said complaint or demand upon a 
 certain day then appointed by the said Court for that purpose,^ — upon 
 the terms, nevertheless, of payment of the costs incurred by his default, 
 and that the defendant shall, at his own charge, cause notice of the 
 said Order to be served on the plaintiff, either personally, or by leaving 
 a copy thereof at his usual place of abode, and that the evidence before 
 given by the said plaintiff, shall, on the re-hearing of the case, be read 
 by the Clerk of Court ; the said plaintiff, being at liberty to bring 
 further evidence if he think fit. And upon the said re-hearing, the 
 case, except as aforesaid, shall proceed as if the defendant had appeared 
 upon the original Summons. 
 
 20. If the defendant shall appear according to the Summons, and 
 the plaintiff shall make default, the Court shall absolve the defendant 
 from the instance, with Costs, or if he appear, and the judgment of the 
 said Court be for the defendant, the said Court shall adjudge to the 
 said defendant his costs. 
 
 21. Any party, wishing to bring the proceedings in any case had 
 
261 
 
 before any Court of Requests under the review of the Supreme Court, 
 may, within three days after the day- on which judgment is pro- 
 nounced, but not afterwards, lodge with the Clerk of Court a Petition 
 to the Supreme Court praying such review, and setting forth the parti- 
 cular facts and grounds upon which the same is applied for, and shall 
 at the same time enter into a Bond together with some person as his 
 Surety, to be approved of by the said Court, for the costs in review, in 
 the form in the Schedule hereunto annexed marked (G). and the 
 Commissioner shall forthwith certify and return to the Supreme Court, 
 a Copy of the proceedings extracted from the Record Book, together 
 with the Petiton for review, as also, when so required by any order of 
 the Supreme Court, the evidence taken in the case and the documents 
 and process connected therewith. 
 
 22. In any case where a Petition of review may have been lodged, 
 and the proper security for costs given, the Court may direct, that the 
 judgment shall be carried into execution, or that the execution thereof 
 shall be suspended pending the said review, as to the Court may 
 appear most consistent with justice ; and in every case where the Court 
 shall direct such judgment to be carried into execution, the party in 
 whose favor the same shall have been given, shall, before process of 
 execution shall be issued, enter into a Bond, together with some person 
 as his Surety to be approved of by the Court, for full restitution of the 
 amount to be levied and raised under such judgment, should the same 
 be reversed, as also for the due execution of any such further Judg- 
 ment, Order, or Decree, as shall afterwards be pronounced upon the 
 heai-ing of the Case in review, and the said Bond shall be, as near as 
 may be, according to the form in the Schedule hereunto annexed, 
 marked (H.) 
 
 23. At the time when the judgment of the Court is given in any 
 case, the Clerk of Court shall, at the request of the Party in whose 
 favor the same is given, tax the necessai-y costs and expences of the 
 suit againt the party to be charged therewith. 
 
 24. The party in whose favor any judgment of the Court shall be 
 given, and no Petition of review is lodged, or being lodged the required 
 Security has not been given within the time appointed, may sue out of 
 the Office of the Clerk of Court process of execution by attachment and 
 sale of the property of the party against whom such process shall have 
 issued, and upon the return of the Officer of the Court that such party 
 has no property, or that the same is insufficient to satisfy the exigency 
 of the Writ, then he may sue out process of execution for the arrest of 
 his Person. 
 
 25. In all cases of review, the Coui-t of Requests shall conform to, 
 and execute, such Judgments, Orders and Decrees of the Supreme Court, 
 as shall be afterwards made and pronounced thereon, in like manner as 
 any original judgment by the said Court of Requests could or might 
 have been executed. ' 
 
 26. The Process for execution of any judgment of the Court shall 
 be by Warrant under the hand of the Commissioner, directed to the 
 Officer of the Court appointed to serve the process thereof, as near as 
 
 may be in the forms in the Schedule hereunto annexed marked (I.) 
 27. Where any person, against whom any judgment of the Co 
 
 Court 
 
262 
 
 shall have been given, shall, before any Warrant of execution has been 
 taken out, appear before the Court, and there deliver in to the Clerk 
 thereof, an Inventory of goods duly proved upon Oath to belong to the 
 said person, and to exceed in value the amount to be levied under such 
 judgment with the costs thereof, and shall then and there undertake 
 in writing, with some person as his Surety, that the property contained 
 in the said Inventory shall be brought for sale, at such time and place 
 as the Court shall appoint, unless the person in whose behalf the said 
 Process was issued be sooner satisfied in respect of his debt or damages, 
 as the case may be, then no farther proceedings shall be had in respect 
 of such judgment, until after the time so appointed for the sale of such 
 property. 
 
 28. The Officer of the Court shall, upon receiving the said Warrant, 
 demand payment of the said debt or damages and costs, or else (where 
 the judgment of the Court does not declare any property to be specially 
 bound) require that so much property be pointed out as the said Officer 
 may deem sufficient to satisfy the exigency of the said Warrant, and if 
 payment be not made, and property be pointed out, the Officer shall 
 make an Inventory thereof and lay a judicial attachment on the same; 
 but if the debtor shall not point out such property, and the judgment 
 of the Court do not declare any to be specially bound, then the Officer 
 shall immediately lay an attachment, under an Inventory, on as much 
 property belonging to the Debtor as he may deem sufficient to satisfy 
 the execution ; and if the judgment of the Court declare any particular 
 property to be specially bound and liable to execution for the judg- 
 ment, then the Officer shall first take the same. 
 
 29. The Officer shall deliver a copy of the said Inventory signed 
 by himself to the Debtor, or if he will not accept of it, shall leave the 
 same on the premises, which Inventory shall have subjoined thereto a 
 notice in the form in the Schedule hereunto annexed, marked (J.) 
 
 30. Where any person, whose property has been attached on execu- 
 tion of the Process of the Court, will undertake in writing, together 
 with some sufficient person as his Surety, that the same shall be pro- 
 duced on the day appointed for the sale thereof, if the person in whose 
 behalf the said Process was issued shall not be sooner satisfied, in 
 respect of his debt or damages, as the case may be, then the Officer of 
 the Court shall leave the said property so attached and Inventoried as 
 aforesaid upon the premises where the same was found, and the said 
 undertakng shall be in the form in the Schedule hereunto annexed, 
 marked (K.) 
 
 31. ■ If the Defendant will not undertake, together with some suffi- 
 cient Surety for the production of the said property in the manner 
 herein-before mentioned, the Officer shall either remove the same to 
 some convenient place of security, or, if the same be cattle or other 
 property inconvenient to remove, shall leave the same upon the pre- 
 mises in the custody of some person for him until the day appointed for 
 the sale thereof. 
 
 32. All property sold in execution of the Process of the said Court, 
 shall be sold publicly, and for ready money, by the said Officer to the 
 highest bidder, at or as near to the place where the same was taken as 
 may be convenient for the sale thereof, and the said Officer shall affix 
 
263 
 
 notice of the said sale, and of tlie day and place thereof on the door of 
 the Court House, and shall also give notice thereof by beat of Tom-tom 
 in the village or place where the sale is to be held, seven days at least 
 before the day appointed for the sale, which day shall not be earlier 
 than the tenth day from the time of seizure or attachment. 
 
 33. If any person, against whom Judgment shall have been obtain- 
 ed, shall not have sufficient property withjn the jurisdiction of the 
 Court of Requests in which judgment was obtained to satisfy such 
 Judgment and costs — Or if any such person shall, before such satisfac- 
 tion of Judgment and costs, have removed beyond the jurisdiction of 
 the Court, the adverse party may, on the return of the Writ of Execu- 
 tion to that effect, move that execution do issue against the property 
 or person of such person making default within the jurisdiction of ,any 
 other Coui-t of Requests for the amount of the Judgment or for so much 
 thereof as shall remain unsatisfied ; and such Writ of Execution shall 
 thereupon be transmitted to the Commissioner of such other Court of 
 Requests, who shall endorse the same and direct it to the Officer of his 
 Court for execution, and shall return the same together with the sum 
 levied, or with the body of the party, as the case may be, to the Court 
 out of which such Execution issued. 
 
 34. If any Officer require further time for executing any process, 
 he shall return the same into Court before the expiration thereof, with 
 a statement in writing of his reasons for requiring such prolongation, 
 and shall move for such farther time as he shall require, whereupon 
 the Court may extend the time for the execution and return of such 
 process. 
 
 35. All Summonses, Writs, Notices and Warrants, shall be in the 
 English language with a translation annexed thereto in the Cingha- 
 lese or Tamil language, as the circumstances of each case may require. 
 
 (Signed) A. Ouphant, 
 Chkf Justice, 
 
 ( „ ) W. 0. Cakr, 
 
 Senior Puisne Justice* 
 
 ( „ ) James Stark, 
 Colombo, October 21, 1844, Second Puisne Justice, 
 
 \* These rules have been modified by the provisions of the Ordinance 
 No. 22 of 1852, as shewn in the first part of this work. 
 
264 
 
 SCHEDULE. 
 
 Record Book 
 
 No. 
 
 Parties. 
 
 Plaint. 
 
 Day of 
 
 issuing- 
 Summons 
 
 Day of 
 
 appearance of 
 Parties. 
 
 Defence. 
 
 Appoohamy 
 
 vs. 
 Punchyhamy. 
 
 O. P. 
 
 vs. 
 Q.R. 
 
 S. T, 
 
 \s. 
 V. W. 
 
 X. 
 
 March, 1, 1845, 1845. 
 
 Appoohamy of March 3rd 
 
 complains of Punchy- 
 hamy of the same place, 
 that the said Punchyhamy 
 is indebted to him in the 
 sum of £3 sterling for 
 two bullocks sold and de- 
 livered by the said Ap' 
 poohamy to the said 
 Punchyhamy in or about 
 the month of December 
 last, which sum the said 
 Punchyhamy refuses to 
 
 lay, and the said Appoo- 
 
 lamy prays he may be 
 adjudged to pay the same. 
 
 O. Jr. of fcc. complains March 4tk 
 of Q. R. of &c, that the 
 said Q,. R. is indebted to 
 to him in the sum of £2 
 sterling for 3 months rent 
 due from the said Q,. R, 
 to the said O P. on or 
 about the 1st Feby. last 
 for the occupation by the 
 said Q. R. of a house of 
 the said O P. situated at 
 which sum &c. and 
 O, P. prays &.c. 
 
 S,T. of &c. complains March 4th 
 of &c. &.C. 
 
 X. of &.C. complains ofJMarch 6th 
 Y. of &c. 
 
 March 10, 1845, 
 PlaintifT in per- 
 son — Defendant 
 by his son Loc 
 kohamy. 
 
 Debt denied. 
 
 March 6th— 
 Plaintiff in per- 
 son. 
 
 Default. 
 
 March 6th— 
 Plaintiff in per- 
 son. 
 
 March 13th— 
 Second appear- 
 ance — both par- 
 ties in person, 
 
 March 10th— 
 Both parties in 
 person. 
 
 The money h 
 been paid. 
 
265 
 
 . . . Court of Requests of 
 
 caring 
 
 Written or parole 
 
 Judgment of the Court 
 
 Subsequent proceedings 
 
 ase. 
 
 iVlUcUL'C ctUlIllLLcU 
 
 or rejected. 
 
 and date thereof. 
 
 and Remarks. 
 
 6 
 
 
 1845 
 
 
 )th 
 
 A.B. 
 
 March 10th 
 
 Warrant for Execution 
 
 
 CD. 
 
 For Plaintiff 
 £3 
 17 costs. 
 
 issued 15th March 1845. 
 
 5th 
 
 G. H. 
 
 Interlocutory judgment 
 
 Notice of judgment serv- 
 
 
 J. K. rejected 
 
 for Plaintiff £2. 
 
 ed on defendant March 
 
 
 By Plaintiff 
 
 Final judgment 
 
 10th to appear on March 
 
 
 Lease dated 
 
 March 12. 
 
 13th. 
 
 
 20th Dec, 18 
 
 Costs— £1—10. 
 
 Petition of Review filed, 
 March 14th. March 15th, 
 Security bond for costs 
 given, and Appeal allowed. 
 March 15th, Warrant of 
 
 
 
 
 
 
 
 Execution upon security of 
 
 
 
 
 restitution. 
 
 6th, 
 
 A B, 
 
 Interlocutory judgment 
 
 
 and 
 
 C. D. 
 
 for Plaintiff £1. Opened 
 on the appearance of v.W. 
 on March 13th. Same day 
 
 
 ranee 
 
 
 
 13th. 
 
 
 
 
 
 final judgment for defen- 
 
 
 
 
 dant. 
 
 
 
 
 Costs against Plaintiff— 
 
 
 
 
 £0, 15. 0. 
 
 
 hh 
 
 E.F. 
 
 For Plaintiff 
 
 Warrant for Execution 
 
 
 O. P. 
 
 Judgment £2—0^-0 
 Costs 0—7—0 
 
 issued 15th March. 
 
266 
 
 FORMS OP PLAINTS. 
 
 (^For forms in land cases, see pp. 70 and 71.) 
 
 1st 184 
 
 In case of Goods ? A. B. of (or if executor &o. then A. B. 
 
 sold. i as executor of E. F.J complains of C. D. of 
 
 That the said C. D. is indebted to him (as execu- 
 tor to E. F.) in the sum of three Pounds Sterling for clothes (or other 
 things, briefly describing them) sold and delivered by the said A. B. 
 (or by E. F. in his life time) to the said C. D. in or about the month 
 of last : which sum the said C. D. refuses to pay and the said 
 
 A. B. prays that he may be adjudged to pay the same. 
 
 For Rent for three months rent due by the 
 
 said C. D. to the said A. B. in respect of the 
 
 occupation by the said C. D. of a house of the said A. B. situate at 
 
 from the 1st January to the 31st March 1844*j ■which sum l&c. 
 
 For Cart Hire.... for the hire of a Bandy and a pair 
 
 of Bullocks of the said A. A. hired and used by 
 the said C. D. for three weeks in or about the month of last : 
 
 which sum &c. 
 
 For Work and \ for the work and labour of the 
 
 Labour. ) said A. B. performed for the said C. D. at his 
 
 request on or about, &c. 
 
 For Work and 1 for the work and labour of the 
 
 Labour and Mate- Ssaid A. B. by himself, his Servants, Bullocks and 
 rials furnished Ifc. J Carts, performed for the said C. D. at his request, 
 and for timber, nails, &c. (as the case may be) 
 provided by the said A. B. for the said C. D. and used in such work 
 and labour in or about the month of 
 
 For Wages for wages due and payable from 
 
 the said C. D. to the said A. B. for his service 
 performed as the servant of the said C. D. for the months of &c. 
 
 For Money Lent. for money lent by the said A. B. 
 
 to the said C. D. in or about the month of last. 
 
 On a BiU or Note. for principal and interest due to 
 
 the said A. B. on a Bill of Exchange drawn by one 
 
 E. F. and accepted by the said C. D. payable to the said A. B. (on a 
 
 Promissory Note drawn by the said C. D. payable to one E. F. or order, 
 
 and by him endorsed to the said A. B.) 
 
 On a Bond for principal and interest due on a 
 
 Bond dated the day of made and 
 
 entered into by the said C. D. for the payment of £ and interest 
 on the day of 
 
 On an Agreement. for the principal and interest upon 
 
 and by virtue of a certain Agreement, dated &c. 
 
267 
 
 and made between &c. whereby the said C. D. agreed to pay to the said 
 A, B. the sum of with interest on the same on the day of 
 
 For unlawful de- \ A. B. of &c. complains that C. D. of &c. hath 
 teniion of property, ) possessed himself of a Bullock (or other thing 
 detained) of the property of the said A. B. of the 
 value of £ or thereabouts, which he unjustly detains from the 
 
 said A. B. And the said A. B. prays that the said C. D. may be ad- 
 judged to restore to him the said Bullock or pay him the value of the 
 same. 
 
 For wrongfulh/\ That C. D. on or about &c. wrong- 
 
 impounding Cattle. J fully impounded or caused to be impounded three 
 bullocks of the said A. B. and kept the same im- 
 pounded for five days to the damage of the said A. B. of £ And 
 the said A. B. prays that the said C. D. may be adjudged to pay the 
 same. 
 
 For breaking and "J That C. D. on or about the 
 
 destroying Fences, ( day of broke down and destroyed a 
 
 injuring Crops or ^fence of the said A. B. at &c. whereby the said 
 Cattle. J A. B. has sustained damage to the amount of 
 
 (or) broke down the door of the house of the, 
 said A. B. and disturbed him in his peaceable possession thereof — (or) 
 cut down two trees of the said A. B. of the value of £ (Or) 
 
 wrongfully trode down and trampled the corn of the said A B. (Or) 
 injured the Bullock of the said A. B. so that he died : Whereby Sic. 
 
 For an assault or 1 That the said C. D. on &c. at 
 
 injury to the Person. ) &c. assaulted, beat and ill treated the said A. B. 
 to the damage of the said A. B. of &c. 
 
 COUKT OF REQUESTS OF 
 
 To (the Officer of tli£ Court appointed to serve the process thereof) 
 
 Summon C. D. of (describing him so that the OfBcer of the 
 
 Court may know where to find him) that he appear before the Court 
 of Requests of on the day of next, at of the 
 
 clock in the forenoon, with his witnesses, if he have any, to shew whv 
 he hath not paid to A. B. of (describing him as in the Plaint) 
 
 the sum of £ which the said A. B. complains that he owes him 
 
 for&c. (following the statement in the Plaint ;) or why he hath not 
 satisfied A, B. of &c. the damages which the said A. B. complains that 
 he has sustained by reason that the said C. D. on or about, &c. broke 
 broke down the fence &c. of the said A. B. as the case may be— (fol- 
 lowing the statement in the Plaint) and serve on the said C. D. a copy 
 of this Summons (and where the action is founded on any document — ■ 
 a copy of the said Promissory Note or other document &c. — or— and 
 a Copy of the Account or Bill of the said A. B. where the demand is 
 upon an Account or Bill) and return you on that day to the said Court 
 what you have done on this Summons. 
 
 J. M., Clerk to the Court of Requests of 
 
 2 k 
 
268 
 
 D. 
 
 COURT OF BEQUESTS OF 
 
 To (the Officer of the Court appointed to serve the process thereof.') 
 Summon E. F. and G. H. of &o. and I. J. of &c. — that laying aside 
 all and singular business and excuses, they and each of them appear 
 iu person before this Court at on the day of next 
 
 at of the clock in the forenoon, to testify and declare all and 
 
 singular those things which they, or any of them, know in a certain 
 case now depending in the said Court between A. B. plaintiff, and C. D. 
 defendant, and that they or either of them, omit not so to do at their 
 peril: — Serve on each of them the said E. F. &c. a copy of this Sum- 
 mons and return to the said Court what you have done thereupon. 
 J. M., Clerk to the Court of Requests of 
 1st October, 1844. 
 
 E. 
 
 (As in Schedule D. to the day of hearing and then proceed as fol- 
 lows.) " And also that they bring with them and produce at the time 
 and place aforesaid a certain Deed or Instrument in writing, bearing 
 date, &c. (describing the deed &c. to be produced) and then and there 
 to testify and declare &c. (as before.) 
 
 F. 
 
 COURT OF REQUESTS OF 
 
 " A. B. of &c. against C. D. of &c. 
 
 November 1st, 184 
 " C. D. 
 Take notice that interlocutory judgment was this day given and 
 recorded against you in this Court on behalf of the above named Plain- 
 tiff for the sum of three pounds sterling, together with the costs of 
 suit, for a certain debt found to be owing by you to the said A. B. for 
 goods sold and delivered by him to you in or about the month of 
 March last (following shortly the statement in the Plaint) — or awarded 
 by the said Court to the said A. B. for his damages sustained by him, 
 for that you on or about &c. cut down two trees of the said Plaintiff 
 at &c. (describing shortly the injury done.) — And unless on the 
 day of next you shew to the said Court sufficient cause to the 
 
 contrary the said judgment will become final and absolute and execu- 
 tion will be issued thereon against you." 
 
 " J. M., Clerk of the Court of Bequests of 
 
 G. 
 
 CASE IN REVIEW FROM THE COURT OF BEQUESTS OF 
 
 ■A. B., Plaintiff, 
 
 Vs. 
 C. D., Defendant. 
 Know all men by these presents that we C. D. of &c. and E. F. of 
 
&c. are held and firmly bound jointly and severally to the Clerk of the 
 Court of Requests of " for the time being and his assigns in the 
 sum of for the payment of which we bind ourselves jointly and 
 
 severally. 
 
 Now the condition of this obligation is such that if the above 
 bounden C D. shall pay all costs which shall he incurred in prosecution 
 of the said case in review after taxation thereof if the said C. D. should 
 be decreed to pay the same, then this obligation to be void and of none 
 effect, otherwise to remain in full force. 
 
 (Signed) C. D. 
 
 Witness P. Q. E. F. 
 
 H. 
 
 A. B. of Plaintiff, 
 
 Vs. 
 ^ C. D. of Defendant. 
 
 Whereas the said A. B. on the day of recovered by 
 
 judgment of the Court of Requests of against the said C. D. the 
 
 sum of together with the sum of for costs in a certain case 
 
 before the said Court. And whereas the said Court has directed the 
 said Judgment, (notwithstanding the said C. D. has lodged a Petition 
 of review against the same) to be carried into execution on security 
 being given for restitution. Now therefore the said A. B. and X. Y, 
 of as surety for him the said A- B. hereby bind themselves 
 
 jointly and severally to refund and make due restitution to the said 
 C. D. of the above mentioned sums of and if the 
 
 judgment of the said Court shall be reversed, and to conform to and 
 execute such judgment order or decree as shall be given and pronounced 
 upon the hearing of the case in review. 
 
 Witness P. Q. (Signed^ A. E. 
 
 1st 184 X. Y. 
 
 EXECUTION AGAIS3T PROPERTY. 
 COURT OF REQUESTS OF 
 
 To (the Officer of the Court appointed to serve the process thereof) 
 Whereas in a certain case in this Court before me wherein A. B. of 
 &c. was Plaintiff and C. D. of &c. was Defendant, the said A. B. on 
 the day of last by the judgment of the Court recovered 
 
 against the said C. D. the sum of pounds together with the suur 
 
 pounds for his costs [which said judgment has been duly 
 affirmed in review (if the case so be) with the further sum of 
 for costs thereon] as appears in the proceedings of the said Court* : 
 This is therefore to require j-ou that of the goods and chattels and 
 property of the said C. D. you cause to be levied and raised the debt 
 (or damages) and costs aforesaid and pay to the said plaintifi' the debt 
 or damages and costs aforesaid and return to the Clerk of this Court 
 what you have done by virtue thereof. 
 
 Given under my hand at this day of 
 
 J. M., Clerk of Court. J. L., Commissioner. 
 
270 
 
 EXECUTION AGAINST PERSON. 
 
 (Proceed as before to the Asterisk, and then thus) And whereas you 
 have returned to a Writ for the execution of the said Judgment that 
 the said C. D. has not pointed out any (or sufficient as the case may 
 be) property to satisfy the exigency of the said Writ : This is therefore 
 to require you to seize and take the said C. D, and keep him safely so 
 that you have his body before this Court forthwith to satisfy the said 
 sums of and 
 
 Given under my hand at this day of 
 
 J. M., Clerk of Court. J. L., Commissioner. 
 
 EOKM OF COMMITMENT UNDEK WABKANT OF ARREST IN EXECUTION 
 IN THE COURT OF REQUESTS OF 
 
 A. B. of §c., Plaintiff, 
 
 Vs. 
 C. D. of^c, Defendant. 
 
 To the Fiscal of 
 Receive into your custody the body of C. D. taken under a warrant 
 of arrest in execution dated &c. at the suit of A. B. to satisfy a judg- 
 ment of this Court dated &c. for the sum of &c. and costs of 
 suit. 
 
 Dated 1st 184 J. L., Commissioner. 
 
 *,* See chap, ix, pp. 63 to 69. With reference to Execution against the 
 Person, see chap. viii. pp. 58 to 69. 
 
 1st 184 
 
 CD. 
 
 Take Notice that I have this day seized and laid under judicial 
 attachment the property comprised in the above Inventory in pursu- 
 ance of a Warrant to me directed under the hand of Esquire, 
 Commissioner of the Coui-t of Requests of whereby I am required 
 to cause to be levied and raised of your property the sum of £ 
 and £ costs recovered against you by the judgment of the said 
 Court in a certain case wherein A. Bi was the and yourself 
 the 
 
 (Signed) J. K., 
 Officer of the said Court appointed to serve process thereof. 
 
 K. 
 A. B. of^c. Plaintiff'. 
 
 Vs. 
 C. D. ofSj'c. Defendant. 
 
 Whereas the said A. B. on the day of last by judgment 
 
 of the Court of Requests of recovered against the said C. D. the 
 
 sum of for costs in respect of a certain case in the said Court. 
 
 And whereas by virtue of a certain Wairant isstied upon the said jndg^ 
 ment under the hand of Esq., Commissioner of the said 
 
a7i 
 
 Court Dated and directed to J. K. officer of the said Court, 
 
 the said J. K. has seized and laid down under Judicial attachment the 
 undermentioned articles viz., Two bullocks, Three paiTahs of rice, &c. 
 Now therefore the said C. D. and L. M. of &c. as surety for him the 
 said C. D. hereby severally undertake and promise to the said J. K. 
 that the said property shall not be made away with or disposed of but 
 the same shall remain in possession of the said C. D. under effect of the 
 said attachment, and shall be produced to the officer of the said Court 
 on the day of next (the day appointed for sale) or 
 
 any other day when the same may be required, in order to be sold in 
 satisfaction of the said judgment, if the same shall not be sooner satis- 
 fied to the said A. B., otherwise the said L. M. hereby undertakes and 
 binds himself to pay and satisfy the said judgment and costs for and 
 on behalf of the said C. D. 
 
 (Signed) C. D. 
 
 Witness, P. Q. .„,„,,„ ^- ^• 
 
 XX. 
 
 ORDINANCE No. 10 of 1843. 
 
 An Ordinance for the Establishment of Courts of Inferior Civil Juris- 
 
 diction to be called Courts of Requests. 
 
 Whereas by Letters Patent of Her present Majesty, 
 Preamble. dated the twenty-eighth day of January, one thousand 
 eight hundred and forty-three, it is declared among 
 other things, that it shall be competent to the Governor, or to the 
 Officer for the time being administering the Government of the Island 
 of Ceylon, by any Law or Ordinance to be by him from time to time 
 made, with the advice and consent of the Legislative Council, to make 
 provision for the better administration of Justice within the said Island, 
 any thing in the Charter or Letters Patent of King William the 
 Fourth, dated the eighteenth day of February, one thousand eight 
 hundred and thirty-three, to the contrary notwithstanding. And 
 whereas it is expedient to establish within the said Island Courts of 
 Inferior Civil Jurisdiction. 
 
 1. It is therefore hereby enacted by the Governor 
 Courts of Re- of Ceylon, with the advice and consent of the Legis- 
 quests to be lative Council thereof, that it shall be lawful for the 
 established. Governor for the time being, by any Proclamation or 
 
 Proclamations to be by him for that purpose fi'om time to time issued, 
 to establish Courts of Inferior Civil Jurisdiction which shall be called 
 Courts of Requests, and shall exercise Jurisdiction, and be holden within 
 such limits as the said Governor in such Proclamation or Proclamations 
 shall appoint ; and to revoke, alter, and amend any such Proclamation 
 or Proclamations, as occasion may require. 
 
 2. And it is further enacted, that it shall be law- 
 AndCommis- ful for the Governor for the time being, fi-om time to 
 sioners thereof time by Warrant under his hand, to appoint iit and 
 appomted. proper persons to preside over the said Courts who 
 
 shall be called Commissioners of the said respective Courts ; and such 
 Commissioners shall hold Office during the pleasm-e of Her Majesty, Her 
 Heirs and Successors. Provided always, that it shall be lawful for the 
 
272 
 
 Governor for the time being, with the advice and consent of the 
 Executive Council, to suspend any such Commissioner from his Office, 
 until the pleasure of Her Majesty, Her Heirs and Successors shall be 
 made known. 
 
 3. And it is further enacted, that every person to 
 Who shall take be appointed a Commissioner of any Court of Requests 
 certain Oaths. by virtue of this Ordinance, shall, before he shall begin 
 to execute the duties of his Office, take and subscribe the oath of alle- 
 giance and the oath of office set forth in the Schedule hereunto annex- 
 ed, before the Judge of some District Court ; and every District Judge 
 upon application being made to him in that behalf, is hereby empower- 
 ed and required to administer the same. And such oath shall be 
 entered on the Records or proceedings of the Court over which the 
 Judge administering the same shall preside, and a copy of such entry 
 shall be forthwith transmitted to the Registrar of the Supreme Court, 
 to be entered on the records of that Court. 
 
 4. And it is further enacted, that there shall be 
 Appointment attached to such Courts respectively such and so many 
 
 of the Officers officers as to the Governor for the time being shall 
 "' Court and appear necessary for the due administration of Justice 
 their removal. therein, and such officers shall from time to time be 
 appointed to and removed from their respective offices in such manner 
 as the Govenior for the time being shall direct. Provided always, 
 that it shall be lawfal for the Commissioner of any snch Court to sus- 
 pend any such officer for misconduct or other sufficient reason, and to 
 appoint some other person to act in his stead iintil the Governor's 
 pleasure shall be made known. 
 
 [5. And it is further enacted, that the said Courts 
 To be Courts of Requests respectively shall be Courts of Record, and 
 of Record and gji^ll hear and determine in a summary way, and ac- 
 to "^^ cases cording to equity and good conscience, all actions, 
 under ifi. plaints and suits for the payment and recovery of any 
 
 debts, demands, damages or matter not exceeding Five Pounds in value, 
 except the matter in question shall relate to the title of any lands or 
 tenements, or to any thing whereby rights in future may be bound : 
 Provided that the party or parties Defendant shall be resident within 
 the Jurisdiction of such Court, or that the act, matter or thing in respect 
 of which any such action, plaint or suit shall be brought, shall have 
 been done or perfomied within such jurisdiction.]* 
 
 6. And it is further enacted, that the Judgment 
 May enforce and award of such Courts of Requests shall in all cases 
 
 Judgment by when necessary, be carried into execution by attachment 
 attachment &c. ^jj^ ^^ ^f jjjg goods and effects, or by coi-poral arrestf 
 of the party or parties against whom such judgment or award shall 
 have been given or made. 
 
 7. And it is further enacted, that for the better 
 And Summon discovery of the truth, and the more speedily obtaining 
 
 parties to suit. the end of suits in such Courts, every party to such 
 suit shall be liable to be summoned and examined 
 
 * Repealed by Ordmance 22 of 1852. t Sec pp. 17 & 59. 
 
273 
 
 mvd voce in open Court, or by interrogatories to be issued by such Court, 
 but not upon oath, if such Court shall consider that any such examina- 
 tion shall be necessary, and shall be liable to be punished for any false 
 statement made therein in like manner as for any contempt before such 
 Court. 
 
 8. And it is further enacted, that no written plead- 
 No written ings shall be pennitted to be used in the said Courts 
 pleadings to be hereby established, but that all actions, plaints, suits 
 "^^"^ and matters pending before any such Courts, shall be 
 
 heard and determined in a summary way by the party or parties or 
 persons representing the party or parties where such pei-sons shall be 
 allowed to appear, stating viva voce in open Court their several com- 
 plaints and answers, and producing any Vouchers or written Evidence 
 relating thereto, and by the examination of Witnesses in like manner, 
 or by interrogatories, and on oath. 
 
 [9. And it is further enacted, that no cause of 
 Actions not action which shall exist at any one time, and shall 
 to be spilt. amount in the whole to a sum beyond the sum of Five 
 
 Pounds as aforesaid, shall be split or divided so as to 
 be made the ground of two or more different actions, in order to bring 
 such cases within the jurisdiction of any Court created by this Ordi- 
 nance ; but if the Commissioner of the said Court shall find that the 
 Plaintiff in any case shall have split his cause of action as aforesaid, he 
 shall dismiss the said action, with the ordinary costs of a dismissal, 
 without prejudice however to the plaintiff's proceeding to sue upon 
 such cause of action in such other manner as he law- 
 Proviso as to fully may : Provided however, that in case the defen- 
 ^li"^ °f ^''" dant or defendants in any action shall appear to have 
 change, &c. gj^g^ gjjjg „f Exchange or Promissory Notes for the 
 payment of any debt originally above the amount of 
 jurisdiction created by this Ordinance, but which Bills of Exchange or 
 Promissory Notes are separately security for a sum not exceeding Five 
 Pounds, each Bill or Note shall be regarded as forming a distinct and 
 separate contract, and may be sued upon and recovered in the same way 
 as any other debt recoverable under this Ordinance.]* 
 
 [10. Provided further and it is further enacted, that 
 Party suing if such Plaintiff shall be satisfied to recover such sum 
 for less than his as according to this Ordinance the jurisdiction of the 
 claim to be bar- g^id Court of Requests is made to extend to, in full of 
 further suit in *''^ whole of such his demand, then the said Commis- 
 respeci of the s'°°^'' shall and may, if such Plaintiff shall satisfac- 
 same claim. torily prove his case, make and pronounce one decree 
 
 for such plaintiff, for such sum as shall in such case be 
 demanded by the Process, so as such stim does not exceed the jurisdic- 
 tion created by this Ordinance, and the same shall be expressed in 
 such decree to be, and shall be in full discharge of the whole of such 
 demand ; and shall be a full and complete bar to any other action, plaint 
 or suit which may be brought thereon, in the same or any other Court 
 whatever.]* 
 
 * These clauses were repealed by Ordinance '22 of 1852. 
 
274 
 
 [ U. And it is further enacted, that nothing in thia 
 
 Disputed ba- Ordinance shall extend to any debt being the dis- 
 
 lances of un- puted balance of an unsettled account originally 
 
 sellled accounts exceeding FivePounds, nor to any debt for any money 
 
 b''°™dror°"^° 01" tiling won or alleged to have been won at or by 
 
 ^ ^"^ " means of any wager or any kind of gaming or play ]* 
 
 [12. And it is further enacted, that in every case 
 
 Persons under where any sum or sums of money whatsoever, not ex- 
 
 25 years may ceeding the sum of Five Pounds, shall be due and 
 
 sue for wages, owing to any menial servant, clerk, book-keeper, jour- 
 
 °"^- ueyman, shopman, shopwoman, labourer, or any other 
 
 person whatsoever under the age of 25 years, for 
 
 wages or piece-work or for work, as a servant, it shall ^.nd may be 
 
 lawful for such servant, clerk, book-keeper, journeyinan, shopman, 
 
 shopwoman, labourer, or other person to sue for and recover such debt 
 
 in the said Court in the same manner as if he or she were of full 
 
 age.]* 
 
 [13. And it is further enacted, that no person what- 
 Where sub- ever shall be permitted to appear and act in any Court 
 sutute may ap- of Requests in any suit for or in behalf of any party 
 P®^!"' to such suit, unless the Commissioner of such Court 
 
 shall be satisfied that there exists some good and sufficient cause why 
 such party should not be required to attend in person. Provided 
 always, that in every case instituted before any such Court in which 
 the Crown shall be a party interested, it shall be competent for the 
 Queen's Advocate or any Deputy Queen's Advocate empowered to act 
 within the District, or the Government Agent, or the Assistant Govern- 
 ment Agent, or the Collector, or Controller of Customs of the District 
 or any person authorized in that behalf by Svriting under the hand of 
 the Queen's Advocate, or of any such Deputy Queen's Advocate, or of 
 the Government Agent, Assistant Government Agent, or Collector or 
 Controller of Customs of the District, to appear and represent the 
 Crown in such case ; and provided further, that where any person shall 
 be allowed to appear and act for any party to a suit, no costs incurred 
 in respect of such appearance shall be made payable by the opposite 
 party, whatever may be the result of the suit.]* 
 
 14. And it is further enacted, that all Processes of 
 Execution of every Court of Requests against the person or property 
 
 Process. of any party in any cause, suit or action, or for the 
 
 examination upon Interrogatories, or attendance of any witness required 
 therein, may be issued into and shall be carried into execution in any 
 other Districts or place whatsoever within this Colony, in such manner 
 and form and in such cases as shall be provided by any Rules or Orders 
 of the Supreme Court. 
 
 15. And it is further enacted, that it shall and may 
 Penalty on be lawful for any of the said Courts to punish by fine 
 
 witnesses not not exceeding One Pound, or by imprisonment not 
 obeying Sum- exceeding fourteen days, any person summoned as a 
 mens. witness to attend any of the said Courts, and not at- 
 
 tending in pursuance of such summons, or any person guilty of any 
 
 * These clauses were repealed by Ordinance 22 of 1852. 
 
contempt or prevarication before any such Court. 
 Proviso. Provided always, tliat every party charged with any 
 
 such contempt or prevarication shall be committed to 
 prison till the following day, or shall give Security either on his own 
 recognizance or that of another person, as the Commissioner of the 
 Court before whom such contempt or prevarication shall have been 
 committed, shall consider necessary, for the appearance of such party on 
 such following day. And if on such following day such party shall 
 fail by his answers to satisfy the said Commissioner that no contempt 
 or prevarication was intended, it shall be lawful for the said Com- 
 missioner to pass such sentence on such party as is hereinbefore 
 declared. 
 
 16. And it is fiirther enacted, that if it shall 
 
 Where wit- appear to the Commissioner of the said Court of Ee- 
 
 nesses commit quests that anj' person examined or making Affidavit 
 
 peijury Com- ^^ ^^^^^ „ affirmation, has in any proceeding whatever 
 
 missioner to in- jjg^after to be instituted in or in any way connected 
 
 Advocate^^" ^ ^'* *^^ ^^^^ Courts of Requests, committed wilful 
 
 and corrupt perjury, or wilfully and corruptly affirmed 
 
 falsely, then and in each and every such case the said Commissioner 
 
 shall forthwith give information thereof to the Queen's Advocate or to 
 
 some Deputy Queen's Advocate empowered to act within the District. 
 
 [17. And it is further enacted, that tlie several 
 
 Certain writ- written instruments employed in the said Courts of 
 
 ten instruments Requests and specified in the Schedule B. hereunto 
 
 to be stamp- annexed, shall respectively bear a stamp of the value 
 
 ed accordmff therein set opposite to them. And no such written 
 
 Schedule"* ^^ instrument which shall not bear such stamp shall be 
 
 of any validity or effect.]* 
 
 18. And it is further enacted, that whenever any 
 Abolition or Court of Requests shall be abolished, or the limits of 
 change of limits its jurisdiction altered by any Proclamarion or Pro- 
 of said Courts, clamations to be issued by the Govei-nor, eveiy cause, 
 suit, action, matter or thing, which shall be then de- 
 pending before an}' Court thereby abolished, or the limits of which shall 
 have been thereby altered, shall or may te proceeded upon in the Court 
 in which it ought to have been instituted, if it had been instituted after 
 any such Proclamation shall have been issued, and all proceedings 
 which shall thereafter be had in such cause, suit, action, matter or 
 thing respective!}', shall be conducted in like manner as if such cause, 
 suit, action, matter or thing had been institntcd in such last mentioned 
 Court, and all records, muniments and proceedings whatsoever, belong- 
 ing or appertaining to any such cause, suit, action, matter or thing, shall 
 after any such Proclamation shall have been issued, be delivered over 
 by the Court in which such cause, suit, action, matter or thing shall 
 be then depending, to the Court in which such cause, suit, action, matter 
 or thing ought to have been instituted, if it had been instituted after 
 the time when such Proclamation shall have been issued. 
 
 * This clause and the Schedule were repealed by Ord. 2 of 1848. 
 
 2 o 
 
276 
 
 19. And it is farther enacted, that where hy any 
 Certain things Ordinance heretofore enacted, certain things are re- 
 required by past quired to be done before District Courts or by or 
 Ordinances to i,efore Judges or other Officers of District Courts in 
 be done by or rgj^tion to any suit, complaint, matter or thing, which 
 JudEres to^ "^be ^^ *'''^ Ordinance is' made cognizable by Courts of 
 done by or be- Requests, every such thing may and shall be done In 
 fore Oommis- I'ke manner, or as near as may be, compatibly with 
 sioners of Court the true spirit of such Ordinance, and with the consti- 
 of Requests. tution of such Courts of Requests, before such Courts 
 of Requests or by or before the Commissioners or cor- 
 responding Officers of such Courts. 
 
 20. And it is further enacted, that the Supreme 
 Supreme Court Court or any Judge thereof, shall have full power and 
 to grant Injunc- authority to grant and issue injunction to prevent 
 tions m certam ^^^y ji-remediable mischief which might ensue, before 
 '^^'''®^" the party making application for such injunction 
 
 could prevent the same by bringing an action or 
 complaint in any Court of Requests. Provided always, that it shall 
 not be lawful for the said Supreme Court or any Judge thereof, in any 
 case to grant an injunction to prevent any person from prosecuting a 
 suit in any Court of Requests or from insisting on any ground of action 
 or defence. 
 
 21. And it is further enacted, that the Supreme 
 And to issue Court or any Judge thereof, shall have full power and 
 
 Writs of Man- authority to grant and issue Mandates in the nature 
 damns. of Writs of Mandamus Procedendo and Prohibition 
 
 against any Commissioner or other Ministerial Officer 
 of any Court of Requests, and to mate order for. the transfer of any 
 cause, suit or action, matter or thing depending in any one Court of 
 Requests to some other Court of Requests, or where it shall seem more 
 expedient, to some District Court, if it shall be made to appear to the 
 satisfaction of the said Supreme Court or Judge thereof, that there is 
 any sufficient cause or reason to conclude that in such particular cause, 
 suit, action, matter or thing. Justice would not probably be done in the 
 Court of Requests in which the same had so been commenced. And in 
 every such case, the Court to which any such cause, suit, action, matter 
 or thing shall be so transferred, shall take cognizance thereof, and have 
 power and jui-isdiction for the hearing, trial, and decision of the same, 
 ■ as fully and effectually to all intents and purposes as if such Court 
 originally had such power and jurisdiction. 
 
 22. [And it is further enacted, that the proceedings 
 And to review of all Courts established under the provisions of this 
 
 the proceedings Ordinance, may be brought under the Review of the 
 of said Courts. gJ^J^^ Supreme Court, and the said Supreme Court may 
 set aside or correct such proceedings for incompetency of the Court in 
 respect of any excess of Jurisdiction, or that the case has been already 
 tried, or forms the subject of a trial pending in some other competent 
 Court, or for incompetency of the Court in respect of the Commissioner 
 himself, as that either the Commissioner or his near kinsman had an 
 
1S77 
 
 interest in the cause, or for malice or corruption on the part of the 
 Commissioner, or for gross irregularity in the proceedings, or on account 
 of the admission of illegal or incompetent Evidence, or of the rejection as 
 illegal of legal and competent Evidence. Provided always, that when 
 any party shall make application to have any such proceedings review- 
 ed ty the Supreme Court, such application shall distinctly set forth 
 the particular facts and grounds on which such review is applied for.]* 
 
 23. And whereas for carrying into effect the vari- 
 And to make ous provisions of this Ordinance, it is necessary that 
 
 Rules and Or- Regulations should be made respecting the course and 
 ders for their manner of proceeding to be observed and followed in 
 mode of pro- ^jj g^;jg_ actions, and other proceedings whatsoever to 
 ceeding. ^^ brought or commenced before Courts of Requests. 
 
 It is therefore enacted, that it shall be lawful for the Judges of the 
 Supreme Court collectively, at any general Sessions to be by them 
 holden at Colombo from time to time, to frame, constitute, and establish 
 such General Rules and Orders of Court as to them shall seem meet, 
 touching and concerning the form and manner of proceeding to be 
 observed in the said Courts of Requests, and touching and concerning 
 the practice and proceedings to be therein brought, and touching and 
 concerning the manner, time, and place, in which such proceedings shall 
 be brought under the review of the said Supreme Court, and touching 
 and concerning the proceedings of the ministerial Officers of the said 
 Courts, the process of the said Courts, and the mode of executing the 
 same, together with all such general rules and orders as may be neces- 
 sary for giving full and complete effect to the provisions of this Ordi- 
 nance, in whatsoever respects the form and manner of administering 
 Justice in the Courts hereby constituted ; and all such Rules Orders and 
 Regulations from time to time to revoke, alter, amend or renew, as 
 occasion may require. Provided always that no such Rules Orders or 
 Regulations shall be repugnant to this or any future Ordinance, and 
 that the same shall be so framed as to promote, as far as may be, the 
 discovery of Truth, Economy, and Expedition in the despatch of the 
 business of the said several Courts respectively. And that the same be 
 drawn up in plain, succinct and compendious terms, avoiding all un- 
 necessary repetitions and obscurity, and published in the Government 
 Gazette and otherwise promulgated in the most public and authentic 
 manner, as long before the same shall operate and take effect as to such 
 Judges may appear practicable and convenient. And provided always, 
 that all such Rules Orders and Regulations, shall forthwith be trans- 
 mitted to Her Majesty, Her Heirs and Successors, under the Seal of the 
 said Court, for Her or Their approbation or disallowance. 
 
 24. And it is farther enacted, that this Ordinance 
 Ordinance shall commence and take effect from and after the 
 
 when to come Proclamation by the Governor in the Government 
 mto operation. Gazette, that the same has been ratified and con- 
 firmed by Her Majesty, unless the Sijme shall be passed by the imanimous 
 votes of the Legislative Council, and all the Judges for the time being 
 of the Supreme Court shall certify under their respective hands to the 
 
 * This clause was repealed by No. 22 of 1852. 
 
2^8 
 
 Governor, their nnanimous opinion that it is expedient that the same 
 should take immediate effect, and should not be suspended for the 
 signification of Her Majesty's pleasure. And if such unanimous votes 
 of the Legislature and such certificates of the unanimous opinion of the 
 said Judges shall be given in favor of the immediate operation of this 
 Ordinance, the same shall commence and take effect immediately from 
 and after the date and enactment of the same. 
 
 SCHEDULE A. 
 "Form of Oath of Allegiance." 
 I do sincerely promise and swear 
 
 (or affirm) that 1 will be faithful and bear true allegiance to Her 
 Majesty Queen VICTORIA. So help me God. ' 
 
 "Form of the Oath of Office." 
 I do sincerely promise and swear 
 
 (or affirm) that I -will faithfully and diligently execute to the utmost 
 of my abilities the several duties of the Office of a Cominissioner of a 
 Court of Bequests. So help me God. 
 
 Schedule B. 
 Fees to be levied hy Stamps in Courts of Mequests in the Island of Ceylon. 
 
 
 \st Class 
 
 2nd Class 
 
 
 
 under 
 
 £2 and 
 
 
 
 £% 
 
 under £5. 
 
 
 i" 
 
 s. d 
 
 £ s. d. 
 
 Summons to Defendant ... 
 
 
 
 1 
 
 3 
 
 Affidavits ... 
 
 
 
 6 
 
 DID 
 
 Warrant of Arrest in Mesne Process 
 
 
 
 1 
 
 2 
 
 Eecognizance or Bail Bond 
 
 
 
 1 
 
 2 
 
 Sequestration 
 
 
 
 1 
 
 2 
 
 Translations, each Document 
 
 
 
 6 
 
 1 
 
 Exhibit ... 
 
 
 
 3 
 
 6 
 
 Subpoena to each Witness 
 
 
 
 6 
 
 1 
 
 Decree 
 
 
 
 6 
 
 1 
 
 Execution against Property 
 
 
 
 6 
 
 1 
 
 Execution against Person 
 
 
 
 6 
 
 10 
 
 Commitment... 
 
 
 
 3 
 
 6 
 
 Petition of review in cases wherein no Witnesses 
 
 
 
 
 abeehven heard 
 
 
 
 9 
 
 16 
 
 Petition of review in cases wherein Witnesses 
 
 
 
 
 have been heard 
 
 
 
 1 6 
 
 3 
 
 Poundage at the rate at which it shall for the 
 
 
 
 
 time being be leviable in District Courts 
 
 
 
 
 Passed in Council the second day of November, One Thousand Sight 
 Hundred and Forty-three. 
 
 Kenneth Mackenzie, 
 Acting Clerk to the Council. 
 Published by Order of His Excellency the Governor, 
 P. Ahstkcther, 
 Col. Secretary. 
 *,* The Schedule B stands repealed. 
 
279 
 
 zxx. 
 
 ORDINANCE No. 12 of 1843. (Clanss 5.) 
 
 ■An Ordinance to mctke certain alterations in the Constitution 
 
 of District Courts. 
 
 5. And it is further enacted, that if any action or 
 
 Penalty on suit shall be commenced in any District Court for any 
 
 parly proceed- ji^j^t; or demand which might have been recovered in 
 
 ing m District g^^g ^ourt of Requests, the Plaintiff or Plaintiffs in 
 
 miffhtlTave'^prlf- ^"^ ^""^"^ *"='■'"" "^ ™' ^^^^ "^"^ ^^ r&ison of any 
 coeded in 'a judgment for him her or them or otherwise, have or 
 Court of Re- be entitled to any costs whatever, and if the judgment 
 quests. shall be given for the Defendant or Defendants in such 
 
 action or suit, then such Defendant or Defendants shall 
 be entitled to double costs. 
 
 *,* This penalty will not be ihcurred by bringing land cases in a District 
 Court, though the Court of Requests miglil alsoTiave jurisdiction. 
 
 IV. 
 
 ORDINANCE No.. 17 of 1844. (Clause 54.) 
 An Ordinance for establishing an efficient Police in certain Towns, ^-c. 
 
 54. And it is further enacted, that if any person 
 Objection to upon whom any such Notice as aforesaid shall have 
 Assessment. teen served, shall consider that the assessment in 
 respect of which such Notice was served was unduly or incorrectly 
 made or ascertained, it shall be lawful for such person to object to such 
 assessment, whatever may be its amount, before the proper Court of 
 Requests, and no other Court shall be competent to entertain any such 
 objection. And such Court shall decide upon the matter of such ob- 
 jection in a summary way, and award the costs thereof, and no appeal 
 or review shall lie against Any such decision. Provided always, that 
 no such objection shall be entertained by any Court of Requests, unless 
 the same shall be made within ten days after the service of such Notice 
 as aforesaid, nor unless the party objecting, or some person authorized 
 by him in that behalf in writing, shall, at the time of making such 
 objection, satisfy the Court by affidavit or otherwise, that the Govern- 
 ment Agent has been furnished with a statement in writing of the 
 specific grounds on which such objection is founded. 
 
 V. 
 
 ORDINANCE No. 2 of 1847. (Clauses 27 & 55.) 
 
 An Ordinance to declare the duties in certain respects of the Masters 
 
 Attendant, ^c, 
 
 27. And whereas, it is desirable that all offences 
 
 Offences against against this Ordinance should be promptly inquired 
 
 this Ordinance & into and tried, and that all sums becoming due 
 
 debts due there- ty reason of any of the provisions hereof should be 
 
 under to be re- rgjoyerable as speedily as possible. It is therefore 
 
280. 
 
 spectively punish- 
 able and recover- 
 able in Police 
 Courts and Courts 
 of Requests. 
 
 Action against 
 Government A- 
 gent. 
 
 hereby further enacted, that all such offences shall,, 
 and they are hereby declared to be, fully cogniza- 
 ble and punishable by Police Courts, and that all 
 such sums shall, and they are hereby declared to be, 
 recoverable before Courts of Requests. 
 55. And it is further enacted, that no action shall 
 be maintainable, against any Government Agent, 
 for any act done, or caused to be done by him, under 
 the provisions of this Ordinance, unless such action 
 shall be commenced within one month fron) the time of the act, in 
 respect of which the same shall be brought, nor unless previous notice 
 in writing, distinctly setting forth the grounds of such action, be given 
 to him by the plaintiff, or his Counsel, one week at least before the 
 commencement of such action. And it shall be lawful for such Govern- 
 ment Agent, at any time before the pleading to such action, to tender 
 amends to the party aggrieved, and if the same be refused, to plead 
 such tender, at the same time paj-ing into Court the amount tendered, 
 and if the Court, on the decision of the case, shall declare and record 
 that the tender so made and paid into Court, is sufficient amends to the 
 party aggrieved, judgment for the said amount tendered, and no more, 
 shall be entered for such party, and all the costs of such action shall be 
 paid by such party. 
 
 vr. 
 
 OEDINANCE No. 19 of 1852. 
 Frmti part 2nd of Schedule of Stamp duties. 
 
 IN THE COURT OF REQUESTS. 
 
 Classes. 
 
 Every Affidavit or Affirmation ..."1 
 
 „ Bail bond, or other bond or re- 
 cognizance 
 
 „ Commitment 
 
 „ Copy of the Decree or Judgment 
 
 „ Notice of interlocutory judgment 
 
 „ Petition of appeal 
 
 „ Summons to defendant or de- 
 fendants without reference to 
 number 
 
 „ Summons to intervenient or in- 
 tervenients without reference 
 to number 
 
 „ WaiTant of attachment 
 
 „ Do. of Execution 
 Every office copy of any matter of" 
 record 
 
 „ Subpcena to each witness ... [ 
 
 „ Exhibit of each unstamped do- ( 
 cument 
 
 „ Translation of each document. 
 
 1. 
 
 2. 
 
 3. 
 
 under 
 £2. 
 
 £2!funder 
 £5. 
 
 £5 8f up- 
 wards. 
 
 £ ». d. 
 .006 
 
 3 
 
 £ ,. d. 
 1 
 
 6 
 
 £ 8. d. 
 2 
 
 1 
 
281 
 
 Poundage at the rate of one per centum on all monies levied in execu- 
 tion, either by sale, or by payment of the debtor to the Fiscal or his 
 deputy ; although the creditor becomes purchaser of the property 
 sold in execution, and obtains credit for the purchase money in 
 reduction of the amount of the Writ. 
 Exemptions, 
 All Affidavits or Affinnations for verifying service of Process; all 
 
 Warrants of attachment issued by the Court at its own instance. 
 Provided also, that no Government Officer suing or being sued or inter- 
 vening in his official capacity shall be required to use any Stamps 
 in ar.y Court of Bequests. And no person duly admitted to sue 
 defend or intervene as a Pauper shall be required to use any Stamps 
 in the said Court. But, if Judgment for Costs shall be given in 
 favour of such Government Officer or Pauper, the value of such 
 Stamps as would have been used by him if he had not been allowed 
 to proceed without using Stamps, or the value of such part thereof 
 as shall be decreed by the said Judgment, shall be paid by the party 
 against whom such Judgment shall have been given, to the Com- 
 missioner of Stamps or to the Clerk of the Court in which the case 
 shall have been instituted for and on behalf of such Commissioner, 
 and in failure of such payment, the said Clerk shall insert the said 
 value in the Writ of Execution issued by the party in whose favour 
 such Judgment shall have been given, and shall pay the said value, 
 when recovered, to the said Commissioner from the first amount 
 levied under the said Writ, or if no such Writ be issued, the said 
 Clerk shall issue a Writ of Execution free of Stamp Duty for the 
 recovery ef the said value to be appropriated in like manner. 
 And no Summons, Subposnas, Warrant of Arrest, or in Execution, nor 
 any other Citation or Writ whatsoever, which has once been issued 
 out of the Court and returned by the officer to whom it was directed, 
 shall on any pretext whatever be re-issued, unless any such process 
 has been returned not served or executed by reason that the party 
 could not be found or had left the jurisdiction of the Court, or by 
 reason that no property of the debtor or none sufficient to satisfy the 
 exigency of any Writ of Execution could be found. 
 Provided always, that in respect of any Subpoena or Subpoenas the 
 same may be re -issued, although served, in case the Commissioner 
 shall, on good cause shewn, so order. Provided also, that in Appeals 
 to the Supreme Court, the appellant shall furnish to the Secretary of 
 the District Court* the proper Stamp for the decree or order of the 
 Supreme Court which may be made on such appeal. 
 No party shall be allowed to take any proceedings on or by virtue of 
 any Judgment or Decree, without first taking a copy thereof. 
 
 ' This was evidently intended to be for the Clerk of the Court of Requests. 
 
282 
 
 VII. 
 
 OEDINANCE No. 22 of 1852. 
 
 To extend the jurisdiction of Courts of Request's and to make other 
 provisions concerning the same. 
 WHEREAS it is expedient to extend the jurisdiction 
 Preamble. of Courts of Requests, and to make certain other pro- 
 visions concerning the same : It is enacted by the 
 Governor of Ceylon, with the advice and consent of the Legislative 
 Council thereof, as follows : 
 Certain sec- ^- The 5th, 9th, 10th, 11th, 12th, 13th, and 22nd 
 
 tions of the sections of the Ordinance No. 10 of 1843, entitled " An 
 Ordinance No. Ordinance for the establishment of CnUrls of inferior 
 10 of 1843 Civi/ jurisdiction, to be called Courts of Heqiiests," are 
 
 repealed. repealed:— PROVIDED that all judgments and pro- 
 
 Proviso, ceedings had or commenced under the said sections or 
 
 any of them shall be as valid to all intents and purposes 
 as if this Ordinance had not been passed, and may be enforced and con- 
 tinued in the same manner as if they had been had or commenced under 
 the authority of this Ordinance. 
 
 2. Ihat it shall be lawful for the Governor to 
 Additional appoint more than one Commissioner to preside 
 
 Commissioner over the same Court of Requests ; and whenever any 
 to the same additional Commissioner shall be appointed to the same 
 ^""■^ ■ Court of Requests, he shall have power to sit apart 
 
 from the other Commissioner or Commissioners of the said Court and 
 shall and may lawfully exercise all and every the powers and jurisdic- 
 tions vested in the said Court, or in the Commissioner thereof. 
 
 3. Each of the said Courts of Requests shall he a 
 Jurisdiction Court of Record, and shall have cognizance of and full 
 
 of the Court. power to hear and determine in a summary way all 
 actions in which the debt, damage, or demand shall 
 not exceed Ten Pounds, and in which the party or parties defendant 
 shall be resident within the jurisdiction of the Court in which the action 
 shall be brought, or in which the act, matter, or thing, in respect of 
 which any such action shall be brought, shall have been done or per- 
 formed within such jurisdiction : and also all actions in which the title to, 
 or right to the possession of, any land is in dispute, provided the value 
 of such land shall not exceed Ten Pounds, and that the same or some 
 part thereof is situate, or that the party or parties defendant shall be 
 resident within the jurisdiction of the Court in which 
 Proviso. such action shall be brought: PROVIDED always, 
 
 that such Courts shall not have cognizance of any 
 action for any malicious prosecution, — or for any libel or slander, — or for 
 criminal conversation, — or for seduction, — or for breach of promise of 
 marriage, — or for separation d mensa et thoro, — or for divorce a vinculo 
 matrimonii, 
 
 4. It shall not be lawful for any plaintiff to divide 
 Demands not any cause of action for the purpose of bringing two or 
 
 to be divided more suits in any of the said Courts of Requests, but 
 for the purpose ^ny plaintiff having cause of action for more than Ten 
 
of bringing two Pounds, for -which a plaint might be entered under this 
 or more suits. Ordinance, if not for more than Ten Pounds, may 
 abandon the excess, and thereupon the plaintiff shall, on proving his 
 case, recover to an amount not exceeding Ten Pounds: and the judg- 
 ment of the Court upon such plaint shall be in full discharge of all 
 demands in respect of such cause of action, and entry of the Judgment 
 shall be made accordingly. 
 
 5. It shall be lawful for any person not of full age to 
 Parties under prosecute any suit in a Court of Requests for any sum 
 
 age may sue of money not exceeding Ten Pounds which may be due 
 
 for wages, &c. ^g JjJjq fg,. ^yages or piecework, or for work as a servant 
 
 or labourer, in the same manner as if he were of full age. 
 
 6. Any party to an action before a Court of Ee- 
 Who .nay ap- quests shall be entitled to appear by his Proctor or 
 
 pear for any Advocate, or, with the leave of the Commissioner by 
 party in the g^y other person allowed by the Commissioner to 
 Courts of Ke- appear instead of such party; but the expense of em- 
 ques s. ploying a Proctor or Advocate, either by plaintiff or 
 
 defendant, shall not be allowed on taxation of costs. And no person not 
 being a Proctor or Advocate, shall in any case be entitled to have or 
 recover any sum of money for appearing or acting on behalf of any 
 other person in the said Court. 
 
 Advocates & ^' '*'" ■*'1'^<"^^'^^' ^^^ ^' Proctors entitled to prac- 
 Proctors cnti- ^'"^^ '" '''® Supreme Court shall be allowed to practise 
 tied to practise ™ ^"y ^°™^ "^ Bequests ; and all Proctors entitled to 
 in Courts of Re- practise in any District Court shall be allowed to 
 quests. practise in any Court of Requests within 50 miles of 
 
 buch District Court. 
 
 8. Notwithstanding the privilege of appearing by 
 
 Commissioner a Proctor or Advocate hereby granted to suitors in 
 may require the . the said Courts of Requests, it shall be lawful for the 
 ance°of anv oar Commissioner in any case in which he thinks it ne- 
 ty represented '^^^^^'7 <'<»^ ^^^ ^ds of justice, to require the personal 
 by a Proctor or attendance at the hearing of the cause of any party 
 Advocate. ^^ represented ; and if need be to postpone the hearing 
 
 of the cause in order to secure the personal attend- 
 ance of such party. 
 
 9. In every case instituted before any such Court 
 
 Who may in which the Crown shall be a party interested it 
 cToZ" "I l^e "'^" *>' ^"'P^t^n' f^ tl>« Queen's Advocate or Iny 
 Court of Re- ^'=P"'y Queen's Advocate empowered to act within 
 quests. ^^^ District, or the Government Agent or Assistant 
 
 Government Agent, or the Collector of Customs of the 
 District, or any person authorized in that behalf by writing under the 
 hand of the Queen's Advocate, or of any such Deputy Queen's Advo- 
 cate, or of the Government Agent, Assistant Government Agent or 
 Collector of Customs of the District, to appear and represent the Crown 
 in such case. 
 
 . 10. It shall be lawful for any party to an action 
 
 Parties may before a Comt of Requests to appeal to the Supreme 
 ippeai. Court against any final Judgment or against any order 
 
 2 p 
 
284 
 
 made, in any such action having the effect of a final or definitive judg'- 
 ment, for any error in law or in fact committed by such Court of Re- 
 quests in the said action. And the said Supreme Court shall be a 
 Court of appellate jurisdiction for the correction of any such error, and 
 shall on appeal aflrarm, reverse, correct, alter, and vary eveiy such judg- 
 ment or order according to law, or order a new trial on such terms as 
 it thinks fit, and may make such order with respect to the costs of the 
 
 said action as the said Court may think proper. 
 Proviso. Provided that no party shall be allowed to appeal to 
 
 the Supreme Court in any action where by any Ordi- 
 nance it is expressly provided that the judgment, decree other proceed- 
 ing of the Court of Requests shall not be brought in review before the 
 Supreme Court. And provided further, that it shall not be necessary 
 in any petition of appeal to the Supreme Court from the judgment or 
 order of any Court of Requests to set forth the particular grounds of 
 appeal ; but in failure thereof the Appellant shall be liable to be disal- 
 lowed his costs or any part thereof in appeal. 
 
 11. All the sections of the said Ordinance No. 10 
 Certain sec- of 1843 not hereby repealed, or in so far as other pro- 
 
 tions of fte Or- yisjon jg not hereby made; all Rules and Orders made 
 oflMs" &c' to ^^ ^^^ Judges of the Supreme Court in pursuance of 
 extend ' to this ^^^ ^^^^ Ordinance ; the 5th section of the Ordinance 
 Ordinance. ^^' ^^ 0^ 1843, entitled " An Ordinance to make eei-iam 
 
 alterations in the constitution of District Courts ;" the 
 Ordinance No. 4 of 1847, entitled "For authorizing the sale of immove- 
 able property under writs of execution issued by Courts of Requests ; and 
 for giving legal effect and validity to past sales of such property by Fiscals 
 in c&rtain cases, and indemnifying such F'scals and their Officers against 
 all actions in respect of such sales ;" and all other Laws now in force in 
 respect of Courts of Requests, shall be deemed to apply to and shall be 
 read and construed with reference to this Ordinance, so far as the same 
 are applicable and not repugnant to the provisions hereof. 
 
 12. Any party wishing to appeal to the Supreme 
 Petition of ap- Court against any final judgment of a Court of Re- 
 peal to be filed quests, may, within seven days after the day on which 
 withm seven such judgment was pronounced, but not afterwards, 
 days, & secu- j^^gg ^j(.]j jj^g gigfij of the Court a petition of appeal 
 
 •^ to the Supreme Court, and shall at the same time 
 
 enter into a bond, together with some person as his 
 surety, to be approved of by the said Court of Requests, for the costs 
 in appeal ; which bond sh.ill be, as near as may be, in the form marked 
 G, in the Schedule annexed to the Rules and Orders for Courts of Re- 
 quests, dated the 21st day of October, 1844. 
 
 Theiudffment '^" In any case, where a petition of appeal may 
 of the Court of Ii^ve been lodged, and the proper security for costs 
 Kequestsmaybe given, the Court of Requests may dii'ect, that the 
 executed or sus- judgment shall be carried into execution, or that the 
 pended, pending execution thereof shall be suspended, pending the 
 the appeal. said appeal, as to the said Court may appear most 
 
 If executed, consistent with justice; and in every ease where the 
 security for res- Court shall direct such judgment to be carried into 
 
285 
 
 tilution to be gi- execution, the party in whose favour the same shall 
 ■*'*"• have been given, shall, before process of execution 
 
 shall be issued, enter into a bond, together with some person as his 
 surety, to be approved of by the Court, for full restitution of the amount 
 to be levied and raised under such judgment, should the same be 
 reversed, as also for the due execution of any such further judgment, 
 order, or decree, as shall afterwards be pronounced upon the hearing 
 of the case in appeal : and the said bond shall be, as near as may be, 
 according to the form marked H, in the Schedule annexed to the Eules 
 and Orders for Courts of Requests above mentioned. 
 
 14. The Commissioner shall forthwith transmit 
 Proceedings to the Supreme Court any petition of appeal lodged in 
 
 on Appeal to be his Court, together with the evidence taken in the 
 
 transmitted to ^ ^j jj^^ documents and processes connected there- 
 
 the Supreme . ' 
 
 Court. "''''• 
 
 15. The Court of Requests shall conform to and 
 Courts of Re- execute such judgments orders and decrees of the 
 
 quest^ to exe- supreme Court as shall be made and pronounced in 
 
 on ^■'" ^^""^ any appeal in like manner as any original judgment 
 
 '^" ' by the said Court of Requests could or might have 
 
 been executed. 
 
 Ordinance 16. This Ordinance shall come into operation on 
 
 when to come the First day of January in the year of Our Lord One 
 
 mto operation, thousand Eight hundred and Fifty-three. 
 
 Passed in Council the Fourth day of December, One Thousand Eight 
 Hundred and Fifty-two. 
 
 E. Rawdon Power, 
 Clerk to the Council. 
 Published by Order of His Excellency the Governor, 
 C. J. MacCarthy, 
 Colonial Secretary, 
 
 VIXX. 
 
 ORDINANCE No. 4 of 1847.* 
 For authorizing the sale of immoveable property under Writs of execution 
 issued by Courts of Requests ; and for giving legal effect and validity to 
 past sales of such property by Fiscals in certain cases, and indemnifying 
 such Fiscals and their Officers against all actioits in respect of such sales. 
 [WHEREAS by the Ordinance No. 10 of the year 
 Preamble. 1843, entitled "An Ordinance for the establishment 
 
 of Courts of Inferior Civil Jurisdiction, to be called 
 Courts of Requests," it is amongst other things enacted, that the judg- 
 ment and award of such Coiu-ts of Requests, shall in all cases when 
 necessary, be carried into execution by attachment and sale of the 
 goods and effects, or by corporal arrest of the party or parties against 
 
 * This Ordinance was repealed by Ord. 22 of 1852, S 2 having- been 
 already repealed by Ord. 11 of 1852. See p. 289. 
 See p. 284 ; See note to p. 286. See also pp. 107 lo 111, and note to p. ] U 
 
286 
 
 ■whom such judgment or award shall have heen given or made. And 
 Tvhereas in many instances the judgments and awards of the said 
 Courts of Requests have been carried into execution by attachment 
 and sale of the immoveable property of parties against whom such 
 judgments or awards had been given or made. And whereas it has 
 been determined by the Supreme Court of this Island, that such sales 
 of immoveable property are not authorized by the said above recited 
 Ordinance : but it is expedient that sales of immoveable property, in 
 satisfaction of the judgments and awards of Courts of Requests, should 
 for the future be allowed ; and it is also expedient to give legal effect 
 and validity to all such past sales of immoveable property, and to in- 
 demnify all Fiscals and their OflScers, against all actions and suits 
 in respect of any such sales. 
 
 Moveable and ['• It is therefore hereby enacted by the Governor 
 immoveable pro- of Ceylon, with the advice and consent of the Legis- 
 perty may be lative Council thereof, that from and after the pro- 
 sold under Writs mulgation of this Ordinance, the judgment and 
 of Execution is- award of Courts of Requests shall in all cases, when 
 sued by Courts necessary, be carried into execution by attachment 
 c Kequests. ^jj^ g^jg ^^ jjjg property, whether moveable or im- 
 
 moveable, of the party or parties against whom such 
 judgment or award shall have been given or made, anything in the 
 6th section of the said Ordinance No. 10 of 1843 to the contrary not- 
 withstanding ; and every Writ of Execution issued by. any such Court, 
 whether against person or property, shall be executed by the Fiscal or 
 his Deputy or Officer, and by no other person, anything in the 4tli 
 section of the said Ordinance, or in any Rule or Order of Court, to the 
 contrary notwithstanding. 
 
 [2. And it is further enacted, that when any land- 
 Sale by Fiscal ed property shall have been sold under any Writ of 
 of landed pro- Execution issued by any Court of Requests, which 
 perty held m ^jelonged to two or more persons in common, it shall 
 common under ,. , -. , « i ■ • x, ^ 
 
 Writ issued by *"* lawful for any person claimmg such property, or 
 Court of He- ^"y undivided interest therein, to notify in writing to 
 quests. the said Court of Requests, that he disputes the right 
 
 of the party against whom the Writ issued, or of any 
 other person claiming any interest in the said property, to the property 
 sold or to the share or interest claimed therein : and on receiving such 
 notification, the said Court of Requests shall make order that the 
 amount realized by such sale shall be kept in deposit in the office of 
 the Government Agent or Assistant Government Agent of the district 
 in which such Court is situate, until the respective rights of all persons 
 interested in such property shall have been determined by the decree 
 of some competent Court, and to be then paid over, under the order of 
 such last mentioned Court, to the parties entitled thereto in the pro- 
 portions of their respective shares ; and the sum awarded to the debtor 
 against whom the said Writ was issued, as his share, or such part 
 thereof as shall be sufficient to satisfy the exigency of the said Writ, 
 shall be paid over, under an order of such last mentioned Court, to the 
 Creditor; and the surplus, if any, shall be paid to the said debtor.]* 
 
 * This clause Repealed by Ordinance No. 11. of 1852. See p. 289 
 
287 
 
 3. [And it is farther enacted, that no sale of im- 
 Former sales moveable property held or effected previous to the 
 declared valid, promulgation of this Ordinance, under or in pursuance 
 cf any Warrant heretofore issued by any Court of Re- 
 quests in execution of any judgment or award of any such Court, and 
 no transfer or conveyance of immoveable property made or to be made 
 in pursuance of any such sale, and no payment of monies realized by 
 such sale made or ordered to be made, or to be hereafter made or order- 
 ed to be made by any such Court, shall be deemed or taken to be or 
 shall be liable to be set aside as invalid or void, on the ground or by 
 reason that immoveable property could not be legally sold in execution 
 under the authority of any such Court of Requests, or that the said 
 Court had no jurisdiction to order payment to be made of the amount 
 realized by such sale, or to determine the respective rights of the 
 parties interested in such amount. 
 
 [4. And it is further enacted, that all Fiscals and 
 Fiscals hold- Deputy Fiscals, and all persons whomsoever acting 
 ing such sales under their authority or by their order, and all Com- 
 inaemnified. missioners of Courts of Bequests and all persons acting 
 
 bona fide under the authority of any such Court, shall be and are hereby 
 indemnified, freed,and discharged from and against all damages,charges, 
 and liabilities whatsoever, incurred or to be incurred for or by reason 
 of any sale of immoveable property in execution of any judgment or 
 awai-d of any Court of Requests previous to the promulgation of this 
 Ordinance, or of any act necessarily or properly done or to be done by 
 them for the purposes or in furtherance of, or for giving effect to such 
 sale. 
 
 [5. And it is farther enacted,'that in case any 
 Ordinance need suit or action shall have been brought before, or shall 
 not be specially |,e brought or carried on after the promulgation of 
 pleaded. ^^^ Ordinance, for the puipose of avoiding any such 
 
 sale or of setting aside or cancelling any such transfer or conveyance, 
 or to recover any damages from any person hereby meant or intended 
 to be indemnified, the defendant in such suit or action may, upon his 
 defence, give this Ordinance and the special matter in evidence upon any 
 trial to be had thereupon without having specially pleaded the same.]* 
 
 Passed in Council the Twenty-eighth day of September, One Thousand 
 Eight Hundred and Forty-seven. 
 
 G. C. Talbot, 
 Actg, Clerk to the Councih 
 Published by Order of His Excellency the Governor. 
 J. Emerson Tennant, 
 
 Colonial Secretary, 
 
 See Gampola 73, page 107, and note to page 111. 
 
288 
 
 XX. 
 
 ORDINANCE No. 6 of 1853. 
 
 For giving effect to certain Rules for the appointment and remuneration 
 
 of Translators in the Courts of Mequests, 
 
 WHEREAS by the Ordinance No. 8 of 1846, en- 
 Preamble, titled "For rendering the operation of Rules of Court 
 contingent on their enactment by the Legislature" it is 
 provided, tliat whenever any General Rule of Court framed by the 
 judges of the Supreme Court shall have been transmitted to the Go- 
 vernor in the manner directed by the said Ordinance, such Rule sfiall 
 be laid by the said Governor in the form of an Ordinance before the 
 Legislative Council, to be considered and dealt with by the said 
 Council, in such and the same manner as any other Ordinance ; and 
 that no General R(u]e framed by the said Judges shall operate or take 
 effect until the same shall have been duly enacted. And whereas the 
 Judges have transmitted to the Governor in the manner directed by 
 the said Ordinance, the General Rules following, that is to say : — 
 General Rules for the appointment and remuneration of Translators in 
 the Courts of Requests, 
 It is ordered, that no translation of any writing or document tender • 
 ed in evidence in any Court of Requests shall be permitted to be 
 read as a translation of any such writing or document, unless the 
 same shall be signed by an Interpreter of the Supreme Court, or 
 by a Government sworn Ti'anslator, or by a sworn translator of 
 any District Court or Court of Requests. 
 It is ordered, that no person other than an Interpreter of the Su- 
 preme Court, or a Government Translator, or a Translator of the 
 Supreme Court or of any District Court, shall be deemed to be a 
 Translator of any Court of Requests, until he shall have received 
 a Certificate from some Commissioner of a Court of Requests that 
 he is competent to fulfil the duties of a Translator, and shall have 
 filed a copy in such Court of Requests of such Certificate attested 
 by the Commissioner who granted the same, and until he shall 
 have taken an oath before such Commissioner faithfully to perform 
 the duties of his office, and of which oath the said Commissioner 
 shall make record. 
 It is ordered, that the following rate of Fees be allowed for trans- 
 lations, d. 
 For every folio of 120 words ... ... ... 7i 
 
 For eveiy fractional part of a folio, not exceeding 60 words 2 
 For every fractional part of a folio, exceeding 60 words ... SJ 
 1. It is therefore enacted by the Governor of 
 Certain Rules Ceylon, with the advice and consent of the Legislative 
 for Translators Council thereof, that the said above recited General 
 in the Courts of jjujes for the appointment and remuneration of Trans- 
 Requests con- ]g{Qj.g in tjie Courts of Requests, are hereby confirmed, 
 nrmea. ^^^ ^j^^jj ^^^^ effect from the time when this Ordi- 
 
 nance comes into operation, .subject to the following 
 Proviso. proviso, that is to say : — Provided always, that no 
 
 Interpreter, Ti'anslator, or other Officer in the pay of 
 
 %* See pp. 75 and 76 of tliis work. 
 
289 
 
 Government, shall be entitled to demand or receive any fee whatsoever 
 for making any translation of any writing or document to be used in 
 any Court of Requests. 
 
 Commence- 2. This Ordinance shall come into operation from 
 ment of Ordi- and after the First day of November One thousand 
 nance. Eight hundred and Fifty-three. 
 
 Passed in Council the Nineteenth day of October, One Thousand 
 Eight Hundred and Fifty-three. 
 
 E. Eawdon Power, 
 
 Clerk to the Council. 
 Published by Order of His Excellency the Governor, 
 C. J. MacCaethy, 
 
 Colonial Secretary, 
 
 ORDINANCE No. 11 of 1852. 
 To repeal certain provisions of the Ordinance No. 21 0/1844. 
 
 WHEREAS the provisions of the Ordinance No. 21 
 Preamble. of 1844, entitled "iin Ordinance to make better pro- 
 vision/or the disposal of landed property" relating to 
 the partition and sale of lands held in common, have been found to be 
 attended with inconvenience, and to be in some respects injurious to 
 parties interested in such property ; and it is therefore expedient that 
 the said provisions of the said Ordinance should be repealed : It is 
 enacted by the Governor of Ceylon, with the advice and consent of the 
 Legislative Council thereof, that from and after the 
 Repeal of cer- passing of this Ordinance, the 7th, 8th, 9th, 10th, 
 tain sections of jjth, 12th, 13th, 14th, 15th, 16th, 17th, 18th and 
 N ?^ T\SiA ^^^^ sections of the said Ordinance; and the second 
 **• section of the Ordinance Xo. 4 of 1847,* entitled " For 
 authorizing the sale of immoveable property under Writs of Execution 
 issued by Courts »f Requests ; and for giving legal effect and validity to 
 past sales of such property by Fiscals in certain caseSf and indemnifying 
 such Fiscals and their oncers against all actions in respect of such sales" 
 shall be, and the same are hereby repealed. Provided, that nothing 
 herein contained shall render invalid any proceedings which may have 
 been taken or commenced under the said repealed sections of either of 
 the said Ordinances ; and that all proceedings so commenced, may be 
 continued and prosecuted, as if this Ordinance had not been passed. 
 
 Passed in Council the twenty-second day of September, One thousand 
 Eight Hundred and Fifty-two. 
 
 E. Rawdon Powek, 
 Acting Clerk to the CourtcU. 
 Published by Order of His Excellency the Governor, 
 C. J. MacCaethy, 
 
 Colonial Secretary. 
 
 » See p. 286. 
 
290 
 
 xz. 
 
 EXPENCES m THE SUPREME COURT: 
 
 1. Advocate's Fees: — Legal expences are recoverable for Advocate's 
 fees in the Supreme Court. The Fees allowed in taxation are divided 
 into two classes. 
 
 1st Class. £5 and under :—jEO. 10s. 6(i. For cases of difficulty. £1. Is.Od. 
 2dClass. £10andunder:— £1. Is. Od. Do. Do. £2. 2s. Od. 
 
 According to the Rules of the 6th January, 1846, fees to two Ad- 
 vocates would only be allowed whei-e separate interests are concerned. 
 
 2. Stamp duty : — By Ordinance 19 of 1852, £0. Is. 6rf. is the Stamp 
 duty, in the Class under £10. for every Affidavit or Affirmation. — 
 Bill of Costs. — (Bond of Security in Appeal to the Queen in Council) or 
 other Bond or Recognizance.— (Certificate in Appeal to the Queen in 
 Council)— Copy (ofiice copy) of any decree, deposition, document, or 
 other matter of record. — Decree or judgment, or order having the effect 
 of a decree, or judgment, interlocutory or final. Exemplification under 
 the Seal of Court of any record or proceedings therein. Exhibit of 
 each unstamped document. — Injunction — Mandate, or Writ of Manda- 
 mus Procedendo and Prohibition. — Order of transference — (Petition to 
 the Queen in Council). — Proxy. — Rule Nisi or absolute. — Summons. — 
 Translation of any exhibit. 
 
 3. Proctor in the Supreme Court : — A Proctor may of course file a 
 Proxy on a Stamp of Is. 6d; but it wiU not be allowed in taxation. 
 Nor has a case ever occurred of a Proctor filing proxy in a Court of 
 Requests case. If a Proctor were allowed fees in the Supreme Court, 
 they would be regulated by the Rules of the 6th January, 1846 ; but 
 such fees are not allowed in taxation. With regard to any Rule or 
 Enactment however, on the subject, though the 6th clause of Ordi- 
 nance 22 of 1852 disallows the recovery of fees for acting in the Courts 
 of Requests, provision is made for Costs in the Supreme Court by the 
 10th and 12th clauses. 
 
 4. Injunction : — No case has as yet occurred in the Supreme Court 
 'of Injunction, Mandate, or Writ of Mandamus Procedendo and Prohi- 
 bition applied for from a Court of Requests. 
 
 5. Queen in Council : — With regard to Petition to Queen in Council, 
 Bond of Security, or Certificate of Appeal to the Queen in Council, the 
 small causes from Courts of Requests are of course excepted. 
 
INDEX TO THE REVIEW CASES. 
 
 Pa 
 
 Abatement of Nuisance, (notej 
 Absence of defendant 
 
 reasonably accounted 
 
 for... 
 
 Absolution from the instance 
 
 plaintiff in default 
 Account. Actions on 
 
 Disputed balance of 
 
 111 
 
 190 
 
 126 
 121 
 167 
 
 Action, on settlement of 118 
 stated. Debt due on ... 121 
 
 Action against parties in posses- 
 sion 
 
 by widow for husband's 
 
 professional services 
 
 on Bond, where one de- 
 
 fendant had not pleaded ... 149 
 Accumulation of Actions ... 91 
 Administration, not required, of 
 small Estate ... ... 175 
 
 Admission, accidental, in con- 
 versation ... ... 118 
 
 by defendant ... 96 
 
 of claim, not of liability 99 
 
 of delivery, where other 
 
 evidence difl&cult to adduce 160 
 
 ~—— in plea, in failure of prov- 
 ing full claim ... ... 163 
 
 Agreement to do work ... 116 
 
 for rate of wages ... 117 
 
 Alteration in bond as to time of 
 
 payment ... ... 114 
 
 Alimony. Suit for ... ... 167 
 
 in Courts of Requests... 168 
 
 not payable for period of 
 
 adultery ... ... 168 
 
 Amicable Settlement. Failure of 176 
 Ande share of a field claimed ... 186 
 Another Action pending : dam- 
 ages ... ... 97 
 
 Answer not recorded ... 114 
 
 Appeal costs affected : plea of 
 jurisdiction ... ... 168 
 
 Plea of prescription rais- 
 ed in ... ... 168 
 
 Appraisement. Copy-list of ... 158 
 Arbitration ; Reference to Arat- 
 chies ... ... 174 
 
 Assessment-tax paid by tenant 
 
 181-183 
 
 in arrears ... ib. 
 
 deductable from rent ib. 
 
 arrears previous to 
 
 landlord's purchase ... ib. 
 
 Page. 
 Assignee of one, whose connec- 
 tion with defendant was not 
 clear ... ... 171 
 
 Attorney and client, {note J ... 169 
 Auction. Goods bought & left at 121 
 Award not on Stamp ... 175 
 
 Bailment of goods ... ... 136 
 
 Balance. Action on admitted 121 
 
 of account... ... 123 
 
 : only remaining sum due 126 
 
 Bond given for ... 187 
 
 Barrator. Definitions of the term 85 
 
 Bellew t). Russel. ^wo(e^ ... 169 
 
 Beneficial contracts etc. Attorney 
 and client ... ... 163 
 
 Blackmamj. Simmons, ^noie^... 94 
 Bona. Definition of the term... 109 
 Bond in Appeal not having 
 stamp ... ... 103 
 
 Time of alteration in ... 114 
 
 with penalty (to cut 
 
 Ebony) ... ... 169 
 
 to abide judgment of 
 
 District Court... ... 188 
 
 where there was no proof 
 
 of penalty ... ... 189 
 
 An action on ... 134 
 
 Receipt of consideration 
 
 denied ... ... 171 
 
 Butler u. Baker ... ... 110 
 
 Bystander called to give evi- 
 dence ... ... m 
 
 Carelessness. Action for dam- 
 ages through ... ... 132 
 
 Cargo-boat and Wharf Im- 
 provement Co. ... 134 
 
 Cattle. Certificate for killing... 157 
 
 impounded. Ovraer to 
 
 take notice of... ... 86 
 
 trespass : C. R. no sum- 
 mary jurisdiction ... 159 
 
 Breaking animal's leg in 89 
 
 Civil action for ... 99 
 
 Omission of notice ... 95 
 
 Summary remedy for... 99 
 
 Value of'^damages by ... 99 
 
 Champerty. (noteJ... ... 169 
 
 Charter, old c. of^lSOl 109-111 
 
 ofl833 ... ... Ill 
 
 Civil Action. Renter not de- 
 prived of ... ... 95 
 
 2q 
 
292 
 
 INDEX TO THE KBVIEW CASES. 
 
 Page. 
 Civil Action distinguished from 
 summary ... ... 101 
 
 and summary redress ... 159 
 
 : right to recover pawned 
 
 goods ... ... 119 
 
 Claim for damages brought in 
 
 suit for land, (note) ... 166 
 
 under writ of execution 187 
 
 Clerk of Court absent when Se- 
 curities tendered ... 101 
 
 Co-debtors. Liability of ... 172 
 Collateral enquiry : jurisdiction. 
 
 (note) ... ... 152 
 
 Collusive possession ... 113 
 
 Commissioner alone may post- 
 pone day of hearing. Pre- 
 judging the case ... 133 
 Condition of Sale. Evidence of 125 
 Consideration denied in action 
 
 on bond ... ... 171 
 
 Consignee of Ship landing goods 147 
 Construction of words ... 137 
 
 Contempt. Attempting to de- 
 ceive the Court ... 174 
 
 False statements by 
 
 parties ... ... 154 
 
 Parties punishable for 
 
 false statements ... 123 
 
 Contract. Special c. required 
 to deduct medical expenses 
 from wages ... ... 153 
 
 void, under provisions of i 
 
 an Ordinance .. . ... 190 1 
 
 « Correi-debendi." (noie) ... 172' 
 Costs against one of the defen- 
 dants ... ... 191 
 
 Court of Requests can- 
 not award treble ... 88 
 
 Defendants' personal ex- 
 
 pences ... ... 133 
 
 Double and treble ... 98 
 
 Double. Commissioner 
 
 cannot award .. . ... 160 
 
 in appeal will be affect- 
 
 Page. 
 Criminal conviction as Evidence 
 
 in Civil Action, (note) ... 151 
 
 Damages. Action for destroy- 
 ing flowers 
 ■ Another Action pending 
 
 by loss of Society 
 
 Carelessness of Defend- 
 
 Evidence of 
 
 — Evidence of value of ... 
 
 for Assault 
 
 — liability of Owner of 
 vicious animal... 
 
 to property not laid as 
 
 of plaintiff 
 
 unsuccessfully claimed 
 
 181 
 97 
 187 
 
 152 
 
 128 
 184 
 
 94 
 
 181 
 
 in previous suit ... 166 
 
 Debt. Liability of several de- 
 fendants ... ... 172 
 
 Deed acknowledging payment 
 Possession of... ,;. 86 
 
 — of Sale acknowledging 
 
 consideration ... 
 
 wanting teclmical words 
 
 of transfer 
 
 Defamation. No action for words 
 in legal proceeding 
 Petty complaint for 
 
 ed ; plea of jurisdiction ... 
 if objection only taken 
 
 . 168 
 
 in Appeal 
 
 Moiety of ... 
 
 ■ Personal expences of de- 
 fendant 125-170 
 
 Comitrylaw of Jaffna. Interest 
 
 in arrear ... ... 90 
 
 Credibility of Evidence; not yet 
 
 heard ... ... 172-173 
 
 Credit due to Witnesses dis' 
 
 to 
 
 believed below 
 
 175 
 
 90 
 91 
 
 87 
 103 
 Default. Absence" of defendant 111 
 Defendant absent when case 
 
 called ... ... HI 
 
 Plaintiff's evidence 113 
 
 not hearing his name 
 
 called ... ... 177 
 
 Personal expences of ... 133 
 
 Delay of plaintiff in instituting 
 
 action ... ^.. 153 
 
 Delivery of goods. Proof of/... 121 
 
 Proved by an admission 160 
 
 Deposit on contract to purchase 102 
 Dewdeny V. Palmer ... 177 
 
 (note)... ... 176 
 
 Dismissal on plamtiff's equivo- 
 cation ... ... 106 
 
 Disputed balance of account ... 89 
 District Court Cases produced 164 
 Divorce ; its mere admission . . . 170 
 .^^Evidence of, in Suit be- 
 tween husband and wife ... 170 
 
 Ejectment in Kandian Law. 
 
 Building on another's land 168 
 Elliott. Dr. Elliott and Galle- 
 
 gomue ... ... 177 
 
 Equity and good Conscience ... 120 
 
INDEX TO THE REVIEW CASES. 
 
 293 
 
 Page. 
 Equivocation by plaintiff ... 106 
 Estoppel. Acknowledgment of 
 
 receipt of consideration ... 90 
 Evidence. Conviction in previ- 
 ous criminal case ... 151 
 
 Counter-evidence pro- 
 duced weeks after ... 179 
 
 English law of, holds ... 155 
 
 must be heard though 
 
 demand is suspicious ... 120 
 
 though 1st Witness is 
 
 unfavorable ... ... 152 
 
 though plaintiff is not 
 
 ^ 192 
 
 120 
 125 
 
 179 
 
 believed 
 
 must be taken down ... 
 
 necessary ... 
 
 Objection to written £. 
 
 must be noted... 
 
 of party, when unsup- 
 ported ... ... 131 
 
 of plaintiff's claim under 
 
 Kulefg ... ... 129 
 
 of plaintiff's wife's mother 175 
 
 I'arol admission of debt 164 
 
 Plaintiff's, should be 
 
 gone through ... ... 160 
 
 Producing District Court 
 
 Cases ... 124-154 
 
 Proof of decree, putting 
 
 into possession^ and subse-' 
 quent trespass... ... 164 
 
 Putting in former Cases 
 
 -^ 162-163 
 
 Refusing to hear pre- 
 judged case.:. 172-178 
 
 to rebut claim ... 132 
 
 True copy of list of Ap- 
 praisement ... ... 158 
 
 Examination of parties 131-187 
 
 must be taken down ... 120 
 
 Execution.' Sale of immoveable 
 
 property ... ... 107 
 
 sued out; Security not 
 
 in time ... ... 153 
 
 Expences. Personal,of defendant 170 
 
 Father, as heir, suing on Bond 
 
 to deceased Son ... 175 
 
 Fees for making Bill of costs ... 127 
 
 Fellineham u. Sparrow ... 175 
 
 Fiscal's action.--1or advertizing 
 
 fees .- ' ... ... 155 
 
 Fees. Party stayingExe- 
 
 cution Imble for ... 156 
 
 — 1~~ rights' not affected by 
 
 Page. 
 
 conditions in letter staymg 
 
 Execution ... ... 156 
 
 Forcible entry and possession of 
 
 crop ... ... 87 
 
 Former Suit. Not asserting title 
 
 in 173 
 
 Four Corles. D. C. of; 4,234. 
 
 fmtej ... ... 166 
 
 Frauds and Perjuries ... 114 
 
 General relief will not include 
 subsequent arrears, (note) 167 
 
 Gift from client to Attorney. 
 
 (note) ... ... 169 
 
 Goods delivered as security for 
 purchase ... ... 136 
 
 Purchased : deposit for 
 
 payment ... ... 136 
 
 Government Renter : Conditions 174 
 Grounds of Review... ... 117 
 
 Headmoorman's Rights ... 127 
 
 Heir intromitting or accepting 
 
 inheritance ... ... 100 
 
 not necessarily Uable ... 99 
 
 an obligee. An heir of 
 
 obligor ... ... 93 
 
 Husband and wife suing each 
 
 other. Evidence of Divorce 170 
 
 Immoveable property in Exe- 
 cution ... ... 107 
 
 Interest in Arrear may not ex- 
 ceed Principal ... ... 90 
 
 payable under Regula- 
 tion No. 18 of 1823 ... 173 
 
 Interlocutory Judgment against 
 
 one deft, wimout evidence 190 
 
 on plaintiff's bare state- 
 ment ... ... 125 
 
 made final without evi- 
 dence ... ... 132 
 
 (note) ... _j, ... 129 
 
 on objection distinct from 
 
 general defence ... 186 
 wl^re one defendant had 
 
 pleaded ..? ... 149 
 
 Irregularity. Proceeding where 
 
 1). Court had jurisdiction ... 114 
 
 — under 17th Rule, (mtej 132 
 
 Jacobs u. Lay burn. (TioteJ ... 177 
 Jaffna Case. Father sumg on 
 Bond to deceased Son ... 175 
 
294 
 
 INDEX TO TlIE BEVIEW CASES. 
 
 Page. 
 Joint,- Administrators ... 157 
 Owners under original 
 
 paddy rent ... ... 159 
 
 Judge to pay plaintiff out of his 
 
 own pocket ... ... 189 
 
 Judgment erroneously entered 115 
 
 must be on subject of 
 
 Suit ... 125-6 
 
 Jurisdiction. An enquiry for a 
 
 Collateral purpose ... 152 
 
 Bare plea of, will not 
 
 oust ... ... 154 
 
 Consent of parties will 
 
 not confer ... ... 191 
 
 Damages to barn, title 
 
 of which in dispute ... 191 
 
 Defendant's residence... 129 
 
 In abatement of nuisance 136 
 
 Ina Suitfor Alimony... 167 
 
 Mortgage affecting title 
 
 to land ... ... 87 
 
 Flea waived and evi- 
 dence gone into ... 168 
 
 Proceeding after the plea 
 
 of... ■ ... ... 160 
 
 Simple denial of grant- 
 ing the land did not raise 
 question of title ... 191 
 The issue in Action 
 
 under Procl : 5th Aug. 1819 87 
 
 Title to premises ... 159 
 
 Title to law. Ord. No. 
 
 10 of 1843. ... ... 124 
 
 Where mortgage bond — 
 
 set up possession ... 173 
 —no Court of Requests 
 
 happened to have ... 163 
 
 Kandyan Law. Liability of in- 
 heritors ... ... 157 
 
 Materials of house built 
 
 on another's land ... 168 
 
 Possessing house built 
 
 on another's land ... 168 
 
 Land. Equitable title to pro- 
 ceeds 
 
 Plaintiff's equitable title 
 
 depending on Ze^a^ ... 86 
 
 Landing and housing goods ... 134 
 Leasehold interest from client to 
 
 Attorney, (note) ... 169 
 
 Legal Representative ... 132 
 
 Lieibility of A and B for trespass 
 
 when A agists cattle to B... 175 
 
 Page. 
 
 Libel and Slander not within 
 
 Jurisdiction, (riotej ... 106 
 
 License to cut timber in agree- 
 ment with timber Contractor 169 
 
 List of appraisement. Fair copy 
 
 of.. ... ... 168 
 
 Liquidated damages ... 116 
 
 Loan of a Buffalo. Action to 
 
 recover value ... ... 170 
 
 Locus in quo of Court ... 117 
 
 Malicious prosecution. Evid- 
 ence of malice... ... 160 
 
 Insufficiency of cause of 
 
 action ... ... 160 
 
 Maintenance. Civil Action for 104 
 Master not bound to provide 
 
 medical attendance ... 153 
 
 Medical attendance ou Servant. 
 
 {note) ... ... 122 
 
 Mesne profits from institution of 
 Suit to recovery of posses- 
 sion ... ... 166 
 
 Misjoinder of plaintiff ... 134 
 
 Money had and received 117, 120 
 
 desired to be paid to 
 
 another ... ... 120 
 
 lent to be repaid in goods 
 
 at market price ... 173 
 
 — over paid ... ... 117 
 
 Mortgage prior to sale. fMO(e>... 122 
 
 Nonjoinder of plaintiffs ... 134 
 
 Non-suit, Previous, no bar ... 165 
 
 Two non-suits, of plain- 
 tiff's absence ; no bar ... 192 
 
 Notary's respectability will not 
 
 dispense with due proof ... 89 
 Notice to produce letter 135, 179 
 Nuisance by falling of branches 
 
 and fruits ... ... 135 
 
 Oath of Adversary ... 131 
 
 Obligee, an heir of obligor ... 93 
 Objection only taken in Appeal 123 
 Objection to competency ; pro- 
 per time, (note) ... 177 
 Objection to want of Stamp not 
 taken below ... ... 191 
 
 Ola writing not on Stamp ... 91 
 'Onus : deiendant pleading pre- 
 scription ... ... 179 
 
 defendant admitting pos- 
 
 session but denying plain- 
 tiff's right ... ... 177, 
 
 — on plea of payment ... 122^ 
 
±ajJiUA. lu xxir. 
 
 295 
 
 Page. I 
 Ordinance No. 3 of 1834. (note) 119 
 
 „ 7 „ & (notej 100 
 
 „ 8 „ 124, 134, 150 
 
 & 153 
 
 „ 2 of 1835. 89, 95, 99, 
 
 114, 
 159 
 
 „ 4 of 1836 ... 157 
 
 „ 6 „ 91,100 
 
 & (note) 100 & 122 
 
 „ lofl839.(mo(M)8B,99 
 
 „ 7 of 1840. (note) 100 
 
 & 170 
 
 ', 10 „ ... 101 
 
 ', 14 „ & (note) 101 
 
 & 113 
 
 5 of 1841 ... 190 
 
 „ 11 of 1843 ... 154 
 
 Schedule of 10 of 
 
 1843 ... 115 
 
 „ 12 „ (note) 124-150 
 
 „ 17 of 1844 & 
 
 {note) 119 
 
 „ 5 of 1845 ... US 
 
 „ 3 ofl846. 130, & 
 
 (note) 131 
 & 155 & 
 (note) 177 
 
 & 187 
 
 „ 4ofl847. (noie) 111 
 
 „ 2 of 1848 (note) 100 
 
 „ 5 „ ... 159 
 
 „ 5 of 1849. (note) 114 
 
 r- „ 9 ofl352. (noie) 131 
 
 Paddy-rent,joint owners under 
 
 originaJ purchase ... 159 
 
 tax. Civil Action re- 
 served ... ... 101 
 
 and Summary ac- 
 tion ... ... 113 
 
 Government condition 
 
 proving valuation ... 113 
 
 Pica of payment admits 
 
 valuation ... ... 113 
 
 Parol proof of admission of 
 
 debt ... l2l, 164 
 
 Party in possession may sue ... 128 
 
 Pawn : definition of term 136, 137 
 
 Pawned goods under different 
 
 Ordinances ... ... 119 
 
 Petition of Review a nullity with- 
 out Stamp ... ... 115 
 
 drawn improperly ... 159 
 
 No discretion as to time 172 
 
 not stating grounds ... 117 
 
 Page. 
 Pet. of Rev.'Security not intime 100 
 
 Sundays and Holidays 96 
 
 too Jate ... ... 176 
 
 — unintelligible ... 117 
 
 Petty Complaints for defamation 106 
 Pignori acceptum ... ... 136 
 
 Pignus : definition of ... 137 
 
 Plaint changedXto one to which 
 
 defendant bad not pleaded 154 
 Plaintiff called to negative the 
 
 plea of payment 
 failing m full claim may 
 
 recover amount admitted... 163 
 
 in possession may bring 
 
 ■ " ' ... 97 
 
 .. 167 
 
 action for dami 
 
 on examination not be- 
 
 lieved ... ... 192 
 
 -<- sent out of Court ... 152 
 
 Plea in bar to be decided before 
 
 compelling answer on merit 185 
 of jurisdiction waived & 
 
 evidence gone into ... 168 
 
 no bar that claim could 
 
 have been set off in former 
 
 action 
 of payment dispenses 
 
 with proof of demand 
 
 — — not proved 
 
 — _ should state time 
 
 and place 
 
 of Prescription cannot 
 
 be first raised m appeal ... 
 ■ jgnorantly pleaded 
 
 as " prosecution 
 
 Plaintiff failing full claim 
 
 to amount admitted 
 
 . ■ Whatever bars the ac- 
 tion is a good defence 
 
 Pledge ; definition of term 
 
 Pledged goods or value to be 
 restored ... 
 
 Pledging of moveables and im- 
 moveables 
 
 Possession, Bare, sufiicient to 
 maintain action 
 
 by third party 
 
 in lieu of interest 
 
 165 
 
 122 
 161 
 
 130 
 
 168 
 
 l6l 
 
 163 
 
 189 
 137 
 
 185 
 
 137 
 
 154 
 126 
 
 — of mortgaged land 
 lieu of interest... 
 
 of paddy claimed 
 
 ... 163 
 - - by 
 
 plaintiff ... ... 177 
 
 with acknowledgment of 
 
 title ... ... 138 
 
 Postponement for absence of 
 witness when demandable 128 
 
296 
 
 INDEX TO THE BEVIBW CASES. 
 
 Page. 
 
 Precedent. Amount of tax and 
 riffht to tax 
 
 Prejudging a Case ... ... 172 
 
 Prescription : claim denied but 
 
 plea insisted on ... 180 
 
 ' — ' does not run, if posses- 
 sion is with consent ... 138 
 
 formality of plea not re- 
 quired ... ... 153 
 
 . how long saved by death 
 
 of creditors ... ... 165 
 
 in Jaffna Case ... 150 
 
 must be specially urged 163 
 
 ■: one defendant admitting 
 
 part payment... ... 162 
 
 Plaintiff called to nega- 
 tive the plea ... 167 
 
 pleaded ignorantly as 
 
 "prosecution" ... 161 
 
 plea cannot be first rais- 
 ed in S. Court ... ... 168 
 
 saved by possession ... 92 
 
 Presents (voluntary) not recover- 
 able ... ... 160 
 
 Presumption of implied agree- 
 ment ... ... 146 
 
 Proceedings unintelligible ... Il2 
 
 Proctor claiming by purchase 
 from one who had recover- 
 ed in a Suit in which Proc- 
 tor acted for him ... 168 
 
 Proclamation,23d January 1801 109 
 
 6th August 1819 87 
 
 Proof of lost writing ...147 
 
 Purchaser's risk in goods not re- 
 moved ... ... 121 
 
 Receipt. Absence of, No con- 
 sideration ... ... 189 
 
 Signature to Accounts l2l 
 
 Record book. Date of decision 97 
 Record : defendant not calling 
 
 evidence ... ... 132 
 
 "— of criminal proceedings. 
 
 Evidence ... ... 104 
 
 Regulation No. 6 of I8l3. (mte) 119 
 
 „ 18 of 1823 173,174 
 
 „ 12 of 1825 ... 110 
 
 „ 13 of 1827 ... 109 
 
 . „ 6 of 1834 ... 109 
 
 Remission of fine : Government 174 
 Rent : action in another Court set 
 
 off ... 161 
 
 of year not exigible ... 127 
 
 Period for which it is 
 
 claimed should be stated ... 154 
 
 Page. 
 Rent with-held : unsettled ac- 
 count ... ... 162 
 
 Request of the defendants ... 134 
 
 to land goods ... 139 
 
 Kesjudicata ... ... 112 
 
 Case once withdrawn ... 169 
 
 ^ Judgment on merits ... 161 
 
 Rex V. Huggins. {note) ... 94 
 
 Rights in future... 91, 93, 96, 130, 172 
 
 Government Suit ... 101 
 
 Marriages and Mainte- 
 nance ... ... 104 
 
 of Headmoorman ... 127 
 
 Rights of property involved ... 184 
 Right to sue ... ... 134 
 
 money paid on misrepre- 
 sentation ... ... 114 
 
 Same cause of Action 112-117 
 
 Security delayed. Respondents 
 
 may take execution ... 94 
 
 Security not in time : Clerk ab- 
 sent ... ... 101 
 
 Semi-plena-probatio of the Civil 
 
 Law ... ... 130 
 
 Servant. Hiring of domestic 
 
 servant ... ... 148 
 
 Setting aside for illegal evidence 
 
 no bar ... ... 189 
 
 Splitting cause of action ... 90 
 
 Stale demands. Evidence re- 
 ceived with caution ... 179 
 Stamp. Parol evidence : receipt 120 
 Stone V. Blackburn, (note) ... l77 
 Statute. 24. Geo ; ii. c. 19 ... l08 
 65. Geo: iii. c. 184... 91 
 6 &7. vie: c. 85. ... l55 
 
 c. 106 ... 177 
 
 14 & 16 vie : c. 99 (mte) 161 
 
 ... - (note) 131 
 
 17. vie : c, 83. {note) ... I3l 
 
 Stewart (J.) The late. Objec- 
 tions in Appeal ... 143 
 
 Subpoena only to ensure attend- 
 ance ... ... 90 
 
 Summary redress and Civil Ac- 
 tion (See Paddy tax) ... 169 
 
 Summons. Note of extension 
 
 on it ... ... 157 
 
 should follow statement 
 
 in plaint ... ... 98 
 
 Sundays and Holidays not reck- 
 oned ... ... 95 
 
 Tax due upon Crop. (See Pad- 
 dy tax) ... ... 95 
 
IlinJEX TO THE REVIEW CASES. 
 
 297 
 
 Vage. 
 Technical objeclion ... 102 
 
 Territorial jurisdiction : docu- 
 ments suggesting want of... 185 
 Thesewaleme ... ... 90, 175 
 
 Third party, rendering service at 
 
 request of ... ... 147 
 
 TimeforfilingPetitionofAppeal 172 
 Title denied in petition, defence 
 
 denied claim ... ... 189 
 
 Tidetolanfl ... ... 124 
 
 in Government Suit ... 103 
 
 involved ... ... 100 
 
 Treble Costs liability to. (note) 123 
 Trespass by agisted Cattle I See 
 
 Cattle) ... ... 175 
 
 Trifling with the Court ... 119 
 
 Unstamped receipt, (note) ... 122 
 
 Vadium. Definition of term ... 137 
 
 Value, medium taken from evid- 
 ence ... ... 99 
 
 Value not proved : decree to 
 restore goods or value ... 149 
 
 Value of goods to repay money 
 lent ... ... ... 173 
 
 to be proved where not 
 
 clearly admitted ... 100 
 
 VanDortfG.) Clerk of Colom- 
 bo Court of Requests ....148 
 
 ¥age. 
 Verba] notice from process ser- 
 ver not binding .... 157 
 Vexatious grounds of action .... 155 
 Visages for at least one month 148 
 
 medical expences not 
 
 deductable from .... 153 
 
 Monthly contract for .... 170 
 
 Rate of .... 117 
 
 Welles 1). Middleton. (note) .... 169 
 Weston V. Dobniet. (note) .... 92 
 Widow entering into possession 
 
 liable .... .... 128 
 
 Wife not liable merely as Widow 188 
 Wife a party and husband Wit- 
 ness .... .... 150 
 
 Witness absent, but plaintiff en- 
 tering into evidence .... 128 
 
 not incompetent for want 
 
 of Subpoena .... 93 
 
 of defendant absent .... 132 
 
 Opinion of, on a law 
 
 point .... .... 145 
 
 present, during the ex- 
 amination of others .... 179 
 
 Refusing to hear .... 152 
 
 rejected without assign- 
 
 ed disability 
 Wood V Downes. (note) 
 Wright V. Proud, (note) 
 
 .... 169 
 
298 
 INDEX TO THE APPEAL CASES. 
 
 Page, 
 
 Absence ; a sufficient reason as- 
 signed by defendant 216 
 
 Absolution from the instance 
 does not bar 
 
 equivalent to a non- 
 suit - - 245 
 
 Administration not required to 
 sue for a small land 
 
 Agreement. Amount of damages 
 
 ascertained by 251 
 
 not joint and several - 240 
 
 to plant for share of 
 
 produce should be in writing 212 
 
 Amendment. Indulgence to ig- 
 norant parties - 210 
 
 Ande. Cattle in charge in, Pre- 
 scription from adverse act 248 
 
 Appeal against costs - l98 
 
 does not lie from an order 
 not final; from an inter- 
 locutory order or judg- 
 ment, or order not having 
 the effect of a final judg- 
 ment, 210, 211, 223,224 & 246 
 
 Appellant allovped to put in pe- 
 tition on Stamp - 218 
 
 Arrack. Discrepancy in the 
 
 name in permit - 221 
 
 value according to place 
 
 of seizure - 221 
 
 Assessment tax. Distress for 
 expenses - i98 
 
 Assignment by several creditors 
 
 to plaintiff - 216 
 
 Bill of costs. Revision of taxa- 
 tion - 208 
 
 Bond admitted but not assign- 
 ment of it - - 240 
 
 being proved, defendant 
 
 must shew the want of con- 
 sideration - 250 
 
 Court would not relieve 
 
 from terms of - 238 
 
 given to secure costs in 
 
 action on claim in execution 251 
 • under an erroneous 
 
 impression of a debt being 
 due - 215 
 
 — joint and several -244 
 
 Page. 
 
 Bond executed by minor, or 
 persona] representative not 
 made a party - 200 
 
 to several creditors as- 
 signed to plaintiff - 2l6 
 
 Boundary. Custom of fencing 237 
 
 Ordinance. Due notice 
 
 must be given 
 — Plaint shotrid have refer- 
 
 ence to 
 British accession. 
 
 Deeds before 244 
 
 Cases ought not to be delayed 
 conditionally 
 
 Cattle los tby disease. Defend- 
 ant's responsibility 
 
 seized under a writ of 
 
 the District Court 
 Chena lands presumed to belong 
 to Crown 
 
 6 of Ord. 12 of 1840 
 
 Civil action for the recovery of 
 
 tax due upon any crop 
 Collective cases declared to be 
 
 of great authority - 
 Commission to examme land - 
 Commissioner disbelieving from 
 
 extraneous knowledge 
 Contempt : usage in respect of 
 
 dress 
 : Fine imposed on the 
 
 same day - - 211, 
 
 Conviction for an offence no bar 
 
 to an action for the damages 
 Costs. Action for: Bond to 
 
 Fiscal 
 to recover in contest- 
 
 211 
 
 218 
 
 215 
 
 239 
 21 5 
 
 252 
 
 217 
 236 
 
 244 
 
 ing a claim in execution 
 Defence, that were in- 
 curred through plaintiff's 
 want of skill 
 - divided, where jurisdic- 
 
 213 
 221 
 251 
 251 
 
 ^33 
 
 tion was not pleaded to 
 
 -where objection was 
 
 only raised in appeal 
 - of former suit^not paid - 
 ■ suit. Separate action for 
 
 Counsel's statement and defend- 
 ant's answer 
 
 Country-law : pre-emption: sche- 
 dule : publication - ; 
 
 212 
 246 
 222 
 
INDEX TO THK Ari'B.M/ CASES. 
 
 299 
 
 Page. 
 
 ^.^overture. Husband made co- 
 defendant but not summon- 
 ed - - - 241 
 
 Criminal proceeding cannot be 
 given in evidence in Civil 
 action - 252 
 
 Custom ; right of pre-emption - 233 
 
 Damages. Action not barred 
 by previous criminal con- 
 viction - - 221 
 
 arising from eviction from 
 
 land - ■ - 249 
 
 ascertained by agree- 
 ment - - - 251 
 
 proof of - -208 
 
 not admitted, should be 
 
 proved by plaintiff - 211 
 
 to land not fenced ac- 
 cording to custom - 237 
 
 Dampster v. Pumell - 197 
 
 Decree in partition case barring 
 
 subsequent action - 238 
 
 Deega,-married daughter's right 
 to her uncle's property - 219 
 
 marriage no bar where 
 
 plaintiff, as only issue, 
 claimed her father's par- 
 veny land vmder tenure of 
 service ■ - 222 
 
 Defence by counsel : defendant's 
 
 answer - 232 
 
 Erroneous entry of sim- 
 ple denial - - 248 
 
 not entered in the extract 
 
 from the Record Book - 322 
 
 Defendant's conduct in a former 
 case - - - 244 
 
 Diligence and skill. Defence to 
 
 action for costs - - 233 
 
 District C. cases 166,167,227,246,253 
 
 Divided and undivided shares 
 
 of land - - 238 
 
 Dociunents. No notice or sub- 
 poena duces tecum - - 232 
 
 Ejectment. Defendant cannot 
 be ejected by action solely 
 against his vendor - 247 
 
 Evidence must be on oath - l97 
 
 ; no notice or sub-poena 
 
 duces tecum to produce 
 documents - - 232 
 
 solely consisting in a Po- 
 lice Court case - - 240 
 
 tendered at second trial 232 
 
 Page. 
 
 Evidence : verdict in criminal 
 
 proceeding - 252 
 
 Witness, whose written 
 
 report was not evidence - 236 
 
 Execution; alteration of posses- 
 sion on claim in execution 250 
 
 Extract from the Record Book : 
 
 no entry of defence - 222 
 
 should be in the 
 
 handvniting of the Clerk - 211 
 
 False Statement not clearly ap- 
 pearing - 217 
 
 Ferae naturae and mansuetee na- 
 turae - 239 
 
 Fine imposed on the same day 
 
 for contempt - 2l3 
 
 the statement 
 
 was made - - 2l 1 
 
 Fiscal's Rules : alteration of pos- 
 session - - 250 
 
 Sale. Title under, and 
 
 proof of - - - 221 
 
 Forfeiture under conditions from 
 the Crown will not bar 
 against any person not hav- 
 ing a better title - 245 
 
 Frauds and Perjuries : Agree- 
 ment to have share of pro- 
 duce fqr planting - - 212 
 
 '•: Interest in land 
 
 after sale - - 231 
 
 G^sabe. Claim before, will in- 
 
 "terrupt prescription - 2l0 
 
 Garstin v. Barton : (the wall 
 case) 223, 224, and 236 
 
 Husband not liable on a Bond 
 by Wife and Son after a 
 separation of 10 or 15 years 244 
 
 Hutchins v. Scott (mte) - 207 
 
 Ignorant parties : Indulgence to 
 
 amend - - 210 
 
 Stamp forjudgment 
 
 of Supreme Court -209 
 
 Insanity suspends prescription. 
 
 Ord. 8ofl834 - -243 
 
 Interest. Genera] payment ap- 
 plied first to - - 247 
 surmounted, reduced 
 
 Literlocutory judgment; appeal 
 rejected - - 246 
 
 2 B 
 
300 
 
 INDEX TO THE APPEAL CASES. 
 
 Fage. 
 Interlocutory J, entered without 
 
 evidence - 226 
 
 Interlocutory J. informal against 
 
 one defendant - 240 
 vrni to be confined 
 
 to any particular defendant 
 
 in opening - 234 
 order. No appeal from 
 
 (See Appeal) - - 2l0 
 
 Intervention. Plamtiif not bound 
 
 to intervene in former case 242 
 Intromitting with deceased hus- 
 band's estate . - 231 
 Irregularity: judgment by de- 
 fault - - 237 
 
 no defence recorded - 234 
 
 Jaffna law ; deed executed on a 
 
 valid Schedule - 221 
 pre-emption : schedule : 
 
 publication - 233 
 Judgment not definite : case re- 
 manded - - - 2l8 
 Opening final, — (See 
 
 Interlocutory J.) - - 240 
 pro tanto ; non joinder 
 
 of a brother - 252 
 subject to another's 
 
 interests - - - 252 
 
 Jurisdiction at issue. Evidence 
 
 on that - 247 
 Cattle seized ungler a. 
 
 D. C. Writ - 215 
 Conmiission to examine 
 
 lands - - - 236i 
 
 ^— ^^ Lands above £10 and 
 
 minors interested - ~^^' 
 
 Mere assertion of want of.^47 
 
 No intendment can be 
 
 made in favour of 197 
 Plaintiflf bound to know 
 
 the value of his laiid - 222 
 
 ■ Plea to, as well as denial 
 
 of Claim - - - 24.9 
 Site and boundaries of 
 
 land - - 249 
 
 -Where Bill of Costs has 
 
 Page. 
 
 Kandian Law, (See Dce^a, etc.) 
 219,222; [Chena lands, nS, 
 214, and 215, and 239 under 
 Ord. 12 of 1840.) 
 
 Komegalle, D. C. 12,911 
 
 (note) - . 253 
 
 Land cultivated after intervals 
 
 of several years - - 2l5 
 
 Interest afiecting, by a 
 
 planting agreement - 212 
 
 Proprietary action for - 221 
 
 Lease for more than a month 
 must be by a notarial deed 
 Verbal, rent payable 
 
 half yearly 
 Litis contestaUo 
 
 - 253 
 
 Mansuetse naturae and Fera? 
 
 naturse - - . 239 
 
 Measure of damages : rent in in- 
 valid lease - 239 
 
 Medical charges prescribed in 
 two years . 248 
 
 Medicine : Prescription under 
 § 5 of Prescriptive Ordi- 
 nance - - 248 
 
 Moorish Custom: contract tto 
 
 marry 
 
 been brought before District 
 Court for revision - 208 
 
 Where defendant had 
 
 overdrawn money in Dis- 
 trict Court - - 2iO 
 ■ Where plaint did not 
 
 state the value of the land 223 
 Where principal and in- 
 terest exceeded £l0 - 2l8 
 
 240 
 \. 
 
 Non-joinder : postponement or 
 judgment pro tanto - 246 
 
 Non-payment of former costs 
 will not stay proceedings 
 unless they be vexatious - 246 
 
 Non.:Suit : Dismissal without opi- 
 nion on the merits - 249 
 
 no bar to second claim - 2l7 
 
 Plaintiff's election be- 
 fore evidenc^ for Defence - 247 
 
 Notaries' fees taxable according 
 
 to Ordinance - - 235 
 
 Notary charging for legal advice 235 
 not in the District at the 
 
 time of execution of the 
 Deed - 244 
 
 Ola deed set up by defendant 219, 220 
 Onus in action on Bond after 
 
 two years - 234 
 on party particulariy 
 
 cognizant of the fact - 233 
 Rule of Dutch Law rescinded 
 
 by Ordinance - - 250 
 
I^BEXmT-nrmi r 
 
 301 
 
 Fage 
 Order for payment : Deft, draw- 
 ing money in D. C. - 210 
 
 overdrawn : application 
 
 in original case - - 248 
 
 Ordinance 8 of 1834: disability 
 
 through insanity - - 24-3 
 % 5 : medicines pur- 
 chased - - - 248 
 - 4 of 1836 : claim for a 
 
 Bull or its value 
 =-U of 1840: §20 does 
 
 not refer to a Civil Action 244 
 12 'af 1841 : 5 6 Crown's 
 
 property in Chena Land - ; 
 14 of 1840 : % 20 bars 
 
 prosecution under the Ord. 252 
 
 Partition Wall : right to an 
 opening ■ 233, 224, & 
 
 Particulars of Claim in Plaint - 
 
 Party necessary, to 'whom P. 
 had entrusted, and whom 
 from D. had obtained 
 
 Petition of Appeal. Annexing 
 Stamp to 
 
 Comment in the margin 
 
 of - - - 
 
 Plaint in action under 
 Boundary Ordinance 
 
 Plaint not explicit 
 
 Plaintiff examined as a witness 
 on his own behalf 
 
 : election to benon-suitr-;. 
 
 ed before evidence for de- 
 fence - - - --^ 
 put in pos§ession in 
 
 terms of the plaint 
 Plea irregularly entered after 
 
 judgment recorded 
 of erroneous impression 
 
 in signing a Bond 
 - of payment alleged to 
 
 have been erroneously made 
 - should not be enter- 
 
 ed as a simple admission 
 Police Case erroneously enter- 
 ed in the Minutes as a 
 C. R. case 
 
 do. [mitt) 
 
 Pomeroy v. Baddeley. (note) 
 Possession accompanying deed 
 
 , Any, a legal one 
 
 against a wrong doer 
 Possessory Action : issue pos- 
 
 245 
 
 232 
 
 232 
 
 233 
 197 
 
 249 
 
 233 
 217 
 
 221 
 21,5 
 254 
 224 
 
 185 
 
 243 
 243 
 252 
 
 Tage. 
 session for a vear and a 
 day - ■ - 227 
 
 Postponement. Rules and Or- 
 ders, § 13 - - 209 
 
 Pre-emption: coimtry law of 
 Jaffiia "- - 251 
 
 Pre-judging case ■ - 241 
 
 Prescription: admission within 
 what period - 227 
 
 Commissioner's notice 
 
 of plea 
 
 does not run against an 
 
 insane - - 243 
 
 Galle, 10,390 over-ruling 
 
 Jaffna, D. C, 2,672 - 228 
 
 interrupted by litis con- 
 
 testatio or vocatio in jus - 253 
 
 medical charges pre- 
 scribed in two years - 243 
 
 need not be specially 
 
 pleaded - 211 
 
 of money claim - 217 
 
 Protestation in the ab- 
 sence of the adversary 
 
 runs from an adverse 
 
 253 
 
 248 
 
 act of branding cattle 
 
 Prescriptive Ordinance : admis- 
 sion in writing - - 237 
 
 title to land, how inter- 
 rupted - 253 
 
 Presumption from possession of 
 Bond rebutted by creditor's 
 possession of other securi- 
 ties - - 223 
 
 Purchase by deed inferred - 221 
 
 Reasons for holding a Bond 
 and assignment as waste 
 paper - - 213 
 
 Reconvention. Defendant not 
 
 claming in - 241 
 
 Registration of marriage. Want 
 of - - - 248 
 
 Remarks. Proper place for 
 
 entering - 232 
 
 Renter's share, where the crop 
 was destroyed by an inun- 
 dation - - - 249 
 
 Res-judicata : absolution from 
 
 the instance - 245 
 
 : case not dismissed on • 
 
 the merits - - 245 
 
 : former dismissal and 
 
 absolution . 237 
 
302 
 
 rdik 
 
 INDEX TdlJCHP/ APPEAL CASES. 
 
 Res Ju. one defendant not a 
 
 former party , and identity 
 
 of laud not proved - 236 
 
 , Respondent dying : reprjesenta- 
 
 tives to be made parties - 249 
 
 Rules and Orders : the ftsDSS 
 given should be attended to 225 
 
 Salvage : claim for assisting - 24S 
 Schedule and ptiblication -251 
 Servitudes : the Wall case ; 
 
 Garstin v. Barton 233, 224 &,236 
 Share, doubtful ifhalfqralhird 242 
 Shipwreck: wages of seamen - 234 
 Specific portion of estate sued ■ 
 
 for ■- - 238 
 
 Stamp : case put in evidence 198 
 " : Clerk should inform 
 
 ignorant client - 209 
 
 • : for judgment of the 
 
 Supreme Court - . - 209 
 
 : Petition of Amjeal 218,232 
 
 Statute of Frauds. Objection 
 
 in Appeal - ' ^ 239 
 
 —— Rent in invalid lease - 239 
 
 Year's lease of tavern- 239 
 
 Surajpons' ttrwitneSSnot served 240 
 — ^^^ — re-issued when not ' 
 
 served - - - 244 
 
 Sundays and holidays, in coin- 
 
 puting time for appeal 209 
 Surmoui^liiBd interest - - 221 
 
 Survey '; production of grant 
 
 an^ survey - - 208 
 
 Teohn?;^" objections in Court 
 
 of Requests - - 246 
 
 Page. 
 Tenant at will entitled to rea- • 
 
 , sonable notice - - 231 
 
 Thesewaleme : . schedule and 
 
 publication - % - 251 
 
 TrincomaliB; D. C. 18,235, {note) 246 
 
 Use and occapation: judgment 
 for, in case of invalid lease 220 
 
 Value in money of Paddy de- , .jfei) 
 . livered - - 22|, 
 
 — — of Arrack according^ to 
 
 place of seizure - • - 221 
 Vendee in possession may be 
 
 proceeded against - 247 
 
 Vocatio in jus. - 2.53 
 
 Wages of seamen for service 
 
 on shore ' ' - *• 234 
 
 Widow intromitting with de- 
 ceased's estate - - 231 
 
 Wife .should be joined where 
 
 plaintiff claims in her right 247 
 
 Wild V. Hobson, {note)' - 246 
 
 Witnesses may be examined 
 whose report is not legal 
 evidence - - 23fi 
 
 . : oath that he is material 
 
 and necessary - - 217 
 
 ; plaintiff his own witness 249 
 
 Witnesses: one of them,. Proc- 
 tor in the case - - 243 
 
 ■ other than those to the 
 
 bond - - 248 
 
 —> parties admissible -^ 
 
 Wood V. Nunn, {note) - 207 
 
 PRINTED iT THE GOVEUNMF.NT PRESS, COLOMBO, CEVI.ON. 
 
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