IS 
 
 OJortifU Slam ^rlionl Slibratg 
 
3 1924 071 251 064 
 
1 
 
 r y y ^ Cornell University 
 
 KX^^'JM Library 
 
 X 
 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924071251064 
 
REPORTS 
 
 OF 
 
 IMPORTANT CASES 
 
 Heard and Determined 
 
 BY THE 
 
 SUPREME COURT OF CEYLOIN^, 
 
 DURING THE TEAKS 
 
 1860, 1861 AND 1862. 
 
 With an Appendix containing cases decided during that period 
 
 by the Judicial Committee of the Privy Council on 
 
 appeal from the Supreme Court of Ceylon. 
 
 BY 
 
 P. RAMA-NATHAN, 
 
 ADVOCATE. 
 
 COLOMBO: 
 
 PUBLISHED BY THE "CEYLON TIMES PRESS COMPANY (LIMITED.) 
 
 1880. ' 
 
NOTE, 
 
 In my preface to the reports for 1820—33, 1 stated that if the judg- 
 ments of the Supreme Court for the thirty years comprised in the following 
 periods, viz, — 
 
 1820—1833 
 
 1847—1855 
 
 1860—1868, 
 
 could be published, the profession would have a complete series of reports 
 
 fi-om 1820—1874. 
 
 In 1877, I published the reports for 1820—33. 
 
 Since then I have not been able to work with effect on the scheme I 
 had set before myself, as I had to give my prior attention to the publication 
 of the reports for 1877, and of the Supreme Court Circular for 1878 and 
 part of that Circular for 1879. 
 
 The volume I now issue comprises the reports for the thi'ee years 
 ending 1862. The reports for 1861 and 1862 have never been printed, 
 though the reports for 1860 were partially, in the pages of the Legal 
 Miscellany. I need not say that the Legal Miscellany went out of print 
 many years ago. 
 
 P. kama-nIthan. 
 
 Colombo, 
 
 May, 1880. 
 
JUDGES DURING THE PERIOD EMBRACED IN THIS VOLUME. 
 
 Chief Justices. 
 The Honorable Paul Ivy Sterling (acting.) 
 The Honorable Sir Edwaed S. Creasy. 
 
 Puisne Justices. 
 
 The Honorable Richard F. Morgan {acting.) 
 The Honorable George Lawson {acting.) 
 The Honorable Paul Ivy Sterling. 
 The Honorable Christopher Temple. 
 The Honorable Henry B. Thomson {acting.) 
 
iisriDJBx:. 
 
 Administrators. ^*''^^' 
 
 See Immovable property. 
 Agreement. 
 
 See Contract. 
 
 Deed of arrangement. 
 
 Promissory Note. 
 
 Aliens. 
 
 Their right to hold lands and to sue. 
 
 D. C, Negombo, 23,754 ... ... ... ... 6 
 
 Appeal. 
 
 1. — Interest of Appellant — Writ of sequestration — Practice — R. and 
 0. cl. 15 sec. 1. 
 
 In an action against the owner of two vessels and their respective 
 masters, an order was made affecting the 1st and 2nd defendants, who 
 were reported not to be found in the District. The 3rd defendant 
 appealed against this order. 
 
 Held, that as he was a party to the suit and, as master of the 
 ship, was bound to maintain the interests of the owner, it was open 
 to him, the 3rd defendant, to appeal against the order affecting the 1st and 
 2nd defendants. 
 
 D. C, Colombo, 26,952 ... ... ... ... 30 
 
 2. — Appeal — Notice of tender of security — R. and 0. p. 83, cl. 3. 
 
 An appellant need not give notice of tender of security in the 
 
 ordinary case falling within cl. 3 of sec. viii. of E. and. O. p. 83, but in 
 
 the special cases provided for by the clauses 7 and 8, such notice is 
 
 essential. 
 
 It is however desirable that notice be given in all cases. 
 
 D. C, Kalutara, 17,418 .. ... ... ... 129 
 
 3. — Appeal petition — False, scandalous and defamatory/ matter — Fro- 
 fessional misconduct of proctor — Dtity of judge as to recording 
 evidence. 
 A proctor who prefers against a judge the charge of unfairly sup- 
 pressing evidence, on grounds which are slight and frivolous, is guilty of 
 gross tinprofessional conduct. 
 
 And the suitor, in whose petition of appeal the false and scandalouB 
 charges were laid, is guilty of contempt of the Supreme Court. 
 
A judge is not bound to write down all that is asked by 
 
 advocates and all tbat is said by witnesses. His duty is to take down 
 only that which .is material and relevant. 
 
 In re Dharmaratne ... ••• ••• ••• 134 
 
 4. — Appeal petition — Scandalous and defamatory matter. 
 
 The statement in the petition of appeal that " the appellant cannot 
 conceive how the Disti-ict Court came to state as a fact that which is 
 well-known to be untrue," is scandalous and defamatory in every sense. 
 
 The Registrar was accordingly ordered to expunge it from the. 
 petition of appeal. 
 
 D. C, Kandy, 33,585 ... ... ... ... 139 
 
 See Court of Requests. 
 
 Arbitration. 
 
 Award — Irregularity of proceeding — Want of reasonable notice of 
 sitting of arbitrator. 
 
 D. C, Kandy, 32,402 ... ... ... ... 2S 
 
 Arrack. 
 
 1. — Sale of, without license — Evidence of permission. 
 
 The fact of arrack having been sold in the accused's house by his 
 son in the absence of the accused, is not evidence of permission. 
 
 P. C, Kandy, 51,079 ... ... ... _ ... 91 
 
 2. — Innocent and unconscious possession— cl. 32 of Ordinance No. 10 
 0/1844. 
 
 " Possession" in the first line of clause 32 of Ordinance No. 10 of 
 1844 does not include innocent and unconscious possession. 
 
 P. C, KegaUe, 16,940 ... ... ... ... 98 
 
 Arrest for debt. 
 
 See Mesne profits. 
 Arrest, frivolous or Vexatious. 
 
 See Frivolous oe Vexatious Arrest. 
 Brute animal. 
 
 Injury hy — Proof of scienter — Liability of owner. 
 
 On the question of liability of the owner of a brute animal for 
 injuries done, the English Law difEers from the Eoman Dutch law. 
 
 The Eoman Dutch Law does not requii'e the man who has been 
 injured to prove that the owner knew the animal's mischievous habits. 
 
 Where the injury done was not caused by mere accident or provoked 
 by the wrongful act of the injured party or broiight about immediately 
 by the wilful act of a third person, the owner is always liable. 
 
 The degrees of liability vary according to the nature and habits 
 of the animal, and the circumstance* under which the injury was 
 inflicted. 
 
Where the animal is not of a genus naturally savage, and where 
 the individual animal waa not of mischievous habits, the owner's -liability 
 is limited to the value of the animal which did the injury. 
 
 But if the animal were of a savage genus, or if, though not of a 
 savage genus, it were of mischievous habits, whether the owner knew 
 those habits or not, the owner must make full compensation for the 
 injury done by the animal, and cannot limit the damages to be assessed 
 against him by the amount of the animal's value. 
 
 C. R., Jaffna, 25,869 ... ... ... ... 68 
 
 Conjugal Rights. 
 
 See Husband akd "Wife. 
 Contempt of Court. 
 
 1. — Procedure in. 
 
 D. C, Kandy, 26,799 ... ... ... ... 27 
 
 2. — Resistance to process. 
 
 A writ issued directing the Fiscal to place the plaintiff in pos- 
 session of a certain.house. Defendant and his son, who was not a party 
 to the suit, resisted the execution of the process. 
 
 Held, that both father and son were rightly convicted. 
 
 D. C, Galle, 9,516 ... ... ... ... 196 
 
 See Appeal, 3. 
 Contract. 
 
 1. — Illegal consideration — Money lent on a pawn in breach of Ordi- 
 nance JSTo. 17 0/1844, cl. 25 [Ordinance 16 of 1865, cl. 66.] 
 
 A received from B. by way of pledge certain jewels, without, 
 however, attending to the statutory enactments in that behalf made. In 
 an action to recover the loan advanced. 
 
 Held, that A was not entitled to maintain his suit, aa the contract 
 was illegal, 
 
 C. E., Colombo, 37,754 .. ... ... _ ... 18 
 
 2. — Contract to retail arrach — Interest in land — Ordinance No. 17 of 
 
 1840 cl. 2. 
 A contract by which a renter sells to a person the right to retail 
 arrack in any tavern is not one which comes within the Ordinance No. 7 
 of 1840, cl. 2. 
 
 D. C, GaUe, 18,838 ... ... 29 
 
 Costs. 
 
 1,-r-Costs of intervenients. 
 
 A decree non-suiting plaintiff with costs subjects him to pay the 
 costs of the defendants, but not ordinarily of "intervenients who come 
 into court of their own accord. 
 
 D. C, Galle, 17,600 ... ... ... ... 36 
 
 See MisNB profits, 1. 
 
Courts of Requests. 
 
 1. — Claims of preference and concurrence. 
 
 Claims of preference and concurrence should be decided summarily 
 by the Court which issues the writ of execution under which the claims 
 are made. Parties should not be referred to a new suit, unless they are 
 at issue upon material allegations, which cannot be conveniently tried 
 and determined in the original cause. 
 
 0. E., Jaffna, 24,540 ... ... ... ... 9 
 
 2. — Practice — plaint — amendment. 
 
 Where the plaint filed is defective and unintelligible, it is prefer- 
 able to examine the party and thus ascertain the issues in the case, to 
 insisting upon an amended plaint. 
 
 C. E., Balapiti Modere, 9,163 ... ... ... ... 22 
 
 3. — Jurisdiction — alimony. 
 
 Courts of Eequests have no jurisdiction in cases of alimony. 
 
 C. E., Jaffna, 25,491 ... ... ... ... 24 
 
 4. — Practice — Petition of appeal. 
 
 The rules affecting Courts of Eequests do not require the drawer of 
 a petition of appeal to affix his signature thereto, or witnesses to attest 
 the signature of the appellant. 
 
 C. R., Avisawelle, 12 ... ... ... ... 53 
 
 5. — Practice — Judgment by default — Order to re-open — Appeal. 
 
 An order to re-open a judgment by default is not appealable, not 
 being a final order, but a party, in appealing against the final order may 
 bring in that appeal before the effective notice of the Supreme Court 
 any errors of law or of fact in any stage of the suit. 
 
 C. K., Harrispattu, 2,545 .. ... ... ... 92 
 
 6. — Adjomnmeni of cases. 
 
 The practice of adjourning cases merely on account of the parties 
 not being ready, or of the absence of the parties, animadverted upon. 
 
 A Court of Eequests cause ought to be summarily and cheaply dis- 
 posed of. 
 
 C. E., Matara, 14,834 ... ... ... ... 130 
 
 Creditor and Debtor. 
 
 See Mortgage. 
 Custom. 
 See FisHEET. 
 
 Planting share. 
 
 Customs Ordinance. 
 
 Customs Ordinance No. 18 of 1852, cl. 96 [d. 115 of Ordinance 
 
 iVc. 17 c/1869] "shall" — proper party to institute plaint. 
 All proMcutions entailing penalties and forfeitures under the" Cus- 
 
toms Ordinance, must be made by the Queen's Advocate, and the 
 Queen's Advocate alone. 
 
 P. G.,Galle, 43,262 ... ... ... ... ... 177 
 
 Damages. 
 
 )Si«e_EjECTMENT. 
 
 Eeconvention. 
 Deed'orarrangement. 
 
 Preference to one creditor — Concealment by deUor. 
 
 A deed of arrangement consented to on the understanding that all 
 the creditors of the debtor were to share an equality ofbenefit, may be 
 annulled by secret preference having been given to one of the creditors. 
 
 D. C. Colombo, 28,555 ... ... ... 197 
 
 Discretion of Judge, 
 
 See Eight to begin. 
 District Court. 
 
 1. — Writ of habeas corpus ad subjiciendum — Power of District 
 Courts to issue — Nature of such writ — Interpretation of statutes. 
 
 District Courts have no power to issue writs of, or in the nature of 
 writs of, habeas corpus ad subjiciendum. 
 
 It is " a very high prerogative writ by which the King has a right 
 to enquire the causes for which any of his subjects are deprived of their 
 liberty" (^Crowley's ease.) 
 
 It is a remedial mandatory writ. 
 
 A remedial statute should be liberally construed, and where the 
 liberty of the subject is concerned, courts of law " are to struggle to 
 secure it." 
 
 But as the court cannot make laws for this purpose an assumption of 
 the right to issue this writ must rest on legal interpretation of existing 
 statutes, and not on mere argument of inference, implication or con- 
 venience. 
 
 Neither the Landraad Courts under the Dutch Government, nor 
 the Provincial Courts under the English regime, granted these writs. 
 
 D. C, Kandy, 6,625 ... ... ... — ••• 116 
 
 See " Conjugal Eights, restitution of." 
 Ejectment, 
 
 1 . — Be-instation of plaintiff— Eights of tort-feasor defendant. 
 
 In an action of ejectment, where the plaintiffs were entitled to an 
 account of mesne profits, held that the true spirit of the proceedings ought 
 to be a desire to re-instate the plaintiffs so far as possible in the position 
 of advantage which they would have held bad they not been dispossessed 
 by the defendants, during the time in question. 
 
 Held, also that the defendant, though a wrong-door in the sense of 
 
tort-feasor, was entitled to all such expenses by way of commission as 
 were absolutely necessary for tbe realization of the profits of the crop. 
 
 D. C, Kandy, 26,656 ... .-. •• •" '''' 
 
 2 — Beaovery of rents and profits — Prescription. 
 
 In an action of ejectment, where the rents and profits appropriated 
 are sought to be recovered, plaintiff's claim thereto must be limited by the 
 provisions of the Prescriptive Ordinance. 
 
 D. C. Kandy, 30,632 .. — •■■ ••• HI 
 
 See Immovable Property. 
 Mesne Profits. 
 Practice, 1. 
 
 Emblements. 
 
 See Growing Crops. 
 Estoppel. 
 
 1. — Privies. 
 
 The doctrine of estoppel, so far as it applies to privies, proceeds upon 
 the principle that a party claiming through another is estopped by, that 
 which estopped that other respecting the same subject matter. 
 
 D. C, Kurunegala, 14,068 ... ... .. ... 71 
 
 Evidence, 
 
 1. — Agreement — Unstamped document — Production. 
 
 It is not a sufficient reason for the non-production of a document 
 that it was unstamped. 
 
 D. C.,. Colombo, 27,010 ... ... ... ... 25 
 
 2. — Promissory note — Want of stamp — Proof of original debt. 
 
 The giving of a note or bill without a proper stamp in discharging a 
 prior debt, will not preclude the creditor from proving his original debt 
 by other evidence. 
 
 C. K., Panadure, 1,105 ... ... ... ... 53 
 
 3. — Promissory note — Joint and several — Evidence— ^Surety. 
 
 Where a promissory note is joint and several in its terms, evidence 
 that one of the makers was merely a surety is inadmissible. 
 
 C. E., Colombo, 3,103 ... ... ... ... 71 
 
 4. — Depositions taken in one case put in as evidence in another case- 
 Consent — Irregularity — Prejudice of substantial rights of defendant. 
 
 In a case of keeping a house for the purpose of promiscuous gaming, 
 the evidence of the character and ownership of the house, as recorded in 
 a connected case against those who were found gambling in that house, 
 was put in as evidence in the former case, with the consent of the defendant, 
 and on such evidence he was convicted. Held, that the reception of such 
 evidence prejudiced the substantial rights of the defendant, and that the 
 interest which the public has in the administration of criminal justice 
 
required tlie error to be corrected, even thougli tte individual consented 
 to his own wrong, and evidence to be properly taken. 
 
 Qu ? Wbetber tbe consent of an accused party or his advocate in a 
 criminal case, can^ever dispense with any of the strict rules of evidence. 
 
 P. C, Panadure, 1,383 ... ... ... ... 71 
 
 See Arrack. 
 
 Maintenance. 
 Moral Inscriptions. 
 Executors. 
 
 See Immovable Property. 
 False or frivolous prosecution. 
 
 1. — Knowledge of falsity — Mode of adjudication. 
 
 In order to justify, under Ordinance No. 11 of 1843, cl. 12. [Ordi- 
 nance No. 11 of 1868, cl. 106], a fine for a false charge, it should appear 
 not only that the charge, when investigated, proved to be erroneous, but 
 that it was false to the prosecutor's knowledge at the time when he institu- 
 ted the proceedings. 
 
 In findin prosecutors, there out to be an express adjudication on 
 the face of the proceedings that the prosecution was instituted on false, 
 frivolous, or vexatious grounds as the case may be. 
 
 P. C, Galle, 41,172 ... ... ... ... 08 
 
 Fishery. 
 
 1. — Customs as to ma del. 
 
 C. E., Galle, 16,645 • ... ... ... ... 34 
 
 Freiglit. 
 
 See Shipping, 2. 
 Frivolous or vexatious arrest. 
 
 1. — Peace oficer or officer of the law — Vexatious arrest — Ordinance 
 No. 15 of 1843, cl 20, ^Ordinance No. 11 of 1868, cl. 167]. 
 
 A frivolous or vexatious arrest can only be an arrest malicious in 
 its nature or without substantial ground of suspicion, or upon a charge 
 plainly not an offence in law. 
 
 P. C, KegaUe, 6,546 ... .. ... .. 88 
 
 Gambling. 
 
 1.— Gambling— Ordinance No. 4 of 1841, cl. 19 " Use. " 
 The word " use " in cl. 19 of the Vagrants' Ordinance refers, not to 
 a person who r esorts to a place to gamble, but to a master or manager of 
 the place, as distinct from the owner, keeper or occupier thereof, 
 
 P. C, Matara, 27,115 ... .. .. ... 24 
 
Growing crops. 
 
 1. — Crops" of chenas — Lease — Ordinance No. 7 of 1840, cl. 2.— 
 " interestin land." — 
 
 Whether a contract to lease 'the crops of certain chenas need be 
 notarially executed as being " an interest in land." 
 
 An " interest in land" is not created by any contract, unless the 
 contract confers an exclusive right to the land for a time for the purpose 
 of making a profit of the growing surface. 
 
 The true question is, whether, in order to effectuate the intention 
 of the parties, it be necessary to give the buyer an interest in the land, 
 or whether an easement of the right to enter the'land for' the purpose of 
 harvesting and carrying them away, is all that was intended to be granted. 
 
 C. E., Eatnapura, 1,056 ... ... ... ... 101 
 
 Guardian and Ward. 
 
 1. — Moneys of the ward — How to he dealt with. 
 
 D. C, GaUe, 1,295 ... .. ... ... 32 
 
 Habeas corpus, writ of. 
 
 1. — Custody of female child — Claims of stranger and of relative. 
 
 "Where a child's relative has consented to that child being taken at a 
 time of its extreme need by a person who has maintained it, and is willing 
 to maintain it, with all proper kindness, and in comfort and respectability, 
 and where that relative after a long lapse of time comes forward at a very 
 suspicious period of a female child's existence to claim possession of it, 
 the Supreme Court wUl not misuse the writ of habeas corpus to take the 
 child from a good and virtuous house, and deliver it over to misery and 
 Want, probably to vice, and certainly to grievous temptation. 
 
 /ra re Aysa Natchia ... ... ., ... 130 
 
 ^ee District Court. 
 
 Headman's lands. 
 
 See Kaudyan Teeeitoet. 
 Husband and Wife. 
 
 1. — Delict of husband amounting to crime — lAability ofwif^s share 
 
 The wife's share of the common property is liable for all contracts 
 made by the husband ; but her share is not liable, where the husband, 
 being prosecuted criminally, is punished by sentence of fine or confisca- 
 tion. 
 
 Neither is her share liable where he is used civilly on an obligation 
 arising out of a delict amounting to crime, 
 
 D, C, Colombo,;^26,4M ... ••• ... __^ 94 
 
2. — Conjugal rights, restitution of— Jurisdiction of District Courts 
 
 — matrimonial suit — [^Oi'dinanci No. 11 of 1868, cl. 64.] 
 A suit for the restitution of conjugal rights is not maintainable in 
 Ceylon, 
 
 Though it is a " matrimonial" suit, it does not fall within the pur- 
 view of cl. 24 of the Charter of 1833, the Supplemental Charter of 1843, 
 and of Ordinance No. 12 of 1843, [cl. 64 of Ordinance No. 11 of 1868], 
 inasmuch as the matrimonial suits contemplated therein were only such as 
 were maintainable in Holland under the Roman Dutch Law. 
 
 Eestitution of conjugal rights was not maintainable in the old Dutch 
 Courts of the Island. 
 
 D. C, Galle, 17,665 ) 103 
 
 — — 19,934/ - 
 
 See Insolvency. 
 Kandyan Law. 
 Maintenance. 
 
 Immovable property. 
 
 d. — Kandyan District — real estate — suit between English parties — 
 
 English Law — deed affecting immovable property in Ceylon — 
 
 its validity — place of execution — mortgage by executor and 
 
 trustee— judgment against him — sale in execution held there- 
 
 undei — action for ejectment — mesne profits. 
 
 In an action to recover possession of real estate in the Kandyan 
 
 District by English parties, whose rights were founded upon instruments 
 
 made in the English form. 
 
 Held (there being no particular law in that District), that the 
 principles oi English law were to govern the rights of the parties to the 
 suit. 
 
 According to the law in force in Ceylon, it is essential to the validity 
 of a deed afBecting immovable property that the deed should be executed 
 
 in the Island. 
 
 One DufE having obtained judgment against D. B. Lindsay on a bond, 
 dated 11th July, 1848, which purported to mortgage the Eajawelle coffee 
 estate, sued out writs of execution and caused the said estate to be seized 
 and sold by the hands of the Fiscal as the property of D. B. Lindsay ; 
 whereas in truth, the interest which the judgment debtor had in the pro- 
 perty was as one of many trustees under a certain will. The proceedings 
 too which resulted in the sale were found to be in breach of faith. 
 Duff became the purchaser of the estate at the sale and subsequently sold 
 it to Brown, Smyttan and In^leton. 
 
 In an action raised by two of the surviving devisees in trust under 
 the will aforesaid against the third surviving devisee (D. B. Lindsay) and 
 Duff and two of his vendors, for rendering null and void the deed of 
 11th July, 1848, and all proceedings held thereunder, and for the further 
 purpose of ejecting the vendees from the estate, — 
 
10 
 
 'Held, that plaintifEs were entitled to be restored to the possession of 
 the estate ; that an account of mesne profits be taken as passed into the 
 hands of DufE from 10th February, 1849, to 80th April, 1850, and of 
 Brown and Ingleton from 1st May, 1850, to 21st May, 1853, and that 
 the amount so ascertained be paid into the registry and be not paid out 
 without due notice to Duif's vendees, until the expiration of sis months 
 from the date of the order of the Privy Council, with liberty to them to 
 take such proceedings in the meantime as they may be advised for- 
 asserting their claim to the said moneys or to the estate &c. 
 
 D. C, Kandy, 26,656. .. .. ••■ ••• 37 
 
 Injury. 
 
 See Bkute ahimal. 
 
 Insolvency. 
 
 1. — Europeans resident in Kandy — actual and matrimonial domiciles 
 — European wife — Kandyan wife — postnuptial settlement — 
 insolvency — fraudu lent conveyance — certifica te. 
 
 A European having bought a cottage within the Kandyan District, 
 out of certain moneys bequeathed to his wife by a third party and paid 
 into his hands, executed a conveyance to her of that property, their matri- 
 monial and actual domiciles being also in the Kandyan district, — 
 
 Held, that the'Kaudyan Law was applicable to the case, as being the 
 law of their actual and matrimonial domicile, and that accordingly the 
 European wife, as a Kandyan wife, had a separate estate in property 
 coming to her, and that she could legally receive and hold property directly 
 fromherhusbandoranyoneelae, whether by way of gift or under contract. 
 
 K. entered into an ante-nuptial agreement with his wife in 1855, 
 agreeing to settle an annuity of £300' on her if she should survive him. 
 In 1859, whan in insolvent circumstances, he made a settlement on his 
 wife purporting to convey to certain trustees in her favour a moiety of a 
 certain coffee estate, — 
 
 Held, that the post-nuptial settlement was not in terms of the ante- 
 nuptial agreement, but was intended to defraud his creditors and as such 
 void. 
 
 Voluntariness of a conveyance, when coupled with insolvency, will 
 invalidate the settlement. 
 
 A fraudulent conveyancej in the sense in which the term is used in 
 bankruptcy law, is not sufBcient of itself for the withholding of a certi- 
 ficate from the insolvent. There ought to be other circumstances, such 
 as moral fraud, negligence in business, extravagance &c. 
 
 Kershaw's case ... .. .. .. ... 157 
 
 Interpretation. 
 
 1. — Statute charging a burden on the subject. 
 
 It is a well settled rule of law that every charge upon the subject 
 
u 
 
 must Le imposed by clear and unambiguous language, and even where 
 there is an ambiguity found, the construction must be in favour of the 
 public, because where the public are to be charged with a burden, the 
 intention of the legislature to impose that burden must be explicitly and 
 distinctly shewn. 
 
 C. R., (Jalle, 20,002 .. ... .. .. 28 
 
 2 . — Penal Statutes — construction. 
 
 The rule by which to construe Ordinances is to look at the precise 
 words and to construe them in their ordinary sense, unless it would lead 
 to r.ny absurdity or manifest injustice, and if it should, so to modify, and 
 vary them as to, avoid that which would certainly not have been the intention 
 of the Legislature. 
 
 P. C, Kegalle, 16,940 .. ... ... .. 98 
 
 Intervention. 
 
 1. — Practice. 
 
 Where a party vras allowed to intervene without shewing his intei'est 
 by petition or motion, held that the Roman Dutch Law requires a party 
 seeking to intervene to file his articles of intervention, shewing summarily 
 his interest, to justify such intervention. The practice in Colombo is for 
 the intervenieut to commence with his petition of intervention, which 
 sets out his interest and ends with a prayer asking for leave to intervene 
 and that his petition may be accepted and parties noticed thereon. 
 
 D. C, Kandy, 30,819 . . . . . . . . 22 
 
 2. — Practice — when intervention allowed. 
 
 An intervenient should not be allowed as a matter of course to inter- 
 vene in a case. He should summarily shew his interests in the cause 
 before he is allowed to intervene. 
 
 As a general rule, an intervenient ought not to delay a case. He 
 should take it up in the stage in which he finds it. 
 
 D. C, Jaffna, 8,178 .. ... ... ... 80 
 
 3. — When allowed. 
 
 The principle of the law of intervention is that if any third person, 
 considers that his interest will be affected by a cause which is depending, 
 he is not bound to leave the case of his interest to either of the litigants, 
 but has a right to intervene or be made a party to the cause, and to take 
 on himself the defence of his own right, provided he does not disturb the 
 order of the proceedings. 
 
 It is not proper to allow an intervenient to come in to defend his 
 own rights and then to suffer him to be put out of Court by the renunci- 
 ation and disclaimers of the original parties. 
 
 C. E., Chavakachcheri, 961 .. .. ... ... 87' 
 
i-2 
 
 Judge. 
 
 Duty of. 
 See Appeal Petition, 3. 
 Judgment. 
 
 1. — General judgment— liability thereon of several defendants. 
 
 "Where a general judgment has been obtained against sevei'al defen- 
 dants, each of them is liable only for his share and cannot be called upon 
 to pay the whole debt in solido. 
 
 D. C, Kandy, 26,656 ... ... . ... 64 
 
 See Namptissement. 
 Kandyan Law. 
 
 1. — Beena husband — his interest in ivi/e's estate. 
 
 A heeha husband has no right to, or interest in, his wife's estate, 
 after her death. 
 
 Qu. ? Whether he has an interest in the property acquired during 
 coverture. 
 
 D. C, Kandy, 338. .. .. ... ... 5 
 
 2. — Deed of gift — clause of disinherison. 
 
 A Kandyan having executed a deed in certain terms, making over 
 and granting in paraveny to his second wife and children begotten by 
 her, certain lands, died. In an action raised by his issue by the first bed 
 for an undivided moiety of the lands which had been taken possession of 
 by the surviving widow and her children, under the instrument aforesaid, 
 
 Held that it was not a last will, but a deed of gift, and that as such 
 in order to be valid, it must not only contain a clause of disinherison 
 but must set forth the reasons of the disinherison. 
 
 D. C, Kandy, 27,150 followed 
 
 D. C, Kandy, 34,395 . . . . . . . . 108 
 
 3. — Practice — non-joinder of Kandyan loidoio — her interest in estate 
 of deceased husband. 
 
 "Where a widow has been already provided for by the will of her 
 husband, and has no interest in the subject of the suit,it is not necessary 
 in a case brought by the heir for the recovery of certain mesne profits, to 
 make her party plaintiff with him. 
 
 All that a widow is entitled to is maintenance and support, and for this 
 purpose she may receive from the heir either a portion of the produce of 
 the deceased's paraveny lands, or she may have the temporary possession 
 and usufruct of a suitable portion of such lands ; and in the latter case, 
 the heir-at-law shall perform the rajakaria or personal service due on 
 account of that portion. 
 
 Semb'le, she must be joined as plaintiff, if the lands in suit were the 
 
13 
 
 acquired property of the testator, for in such a case, she has a life-estate 
 in them. 
 
 C. E., Eatnapura, 662J ... ... 212 
 
 See Insolvency. 
 
 Mural Inscriptions. 
 
 NiNDEGAMA. 
 
 Sannas. 
 Kandyan territory. 
 
 1- — BeadmarCs lands in — Proclamation, 2\st November 1878, cl. 23. 
 
 The immunity from taxation given to the chiefs, under cl. 23 of the 
 Proclamation of 21st November, 1883, is a personal immunity, and not 
 one given to the lands which they hold in the district where they bear 
 office. 
 
 C. E., Harrispattu, 2,477 ... ... ... ... 143 
 
 Legal maxims. 
 
 1. — In pari delicto, potior est conditio possidentis 
 2. — Interest reipublicce ut finis sit litium 
 '&.— Actus curiae neminifacit injuriam. 
 
 Legitimacy. 
 
 1. — Presumption of — married woman. 
 
 The law in certain cases recognises a conclusive presumption in favour 
 of legitimacy. 
 
 Where the husband and wife have cohabited together and no impo- 
 tency is proved, the issue is conclusively presumed to be legitimate, 
 though the wife is shewn to have been at the same time guilty of infidelity. 
 
 And even where the parents are living separate, a presumption of 
 legitimacy arises so strong that it can only be rebutted either by proof of 
 previous divorce, or by cogent and almost irresistible proof of non-access 
 in a sexual sense. Nor is the fact that a woman is living in notorious 
 adultery in itself sufficient to repel this presumption. 
 
 P. C, Colombo, 59,202 ... ... ... ... 90 
 
 Maintenance. 
 
 1. — Married woman — separation from husband — proof of illegiti- 
 macy — evidence of parents to bastardise issue. 
 
 Where a married woman, living separately from her husband, brought 
 a charge of maintenance against a third party, and it became incumbent 
 on her to prove the illegitimacy of the children, held, that the conduct of 
 the parents as to whether they had or had not connexion was inadmissible, 
 not only all direct questions respecting access, but all questions which 
 have a tendency to prove or disprove that fact, unless they are put with 
 a view to some different point in the cause. 
 
 It is permissible for the woman to confess her adulterous connexion 
 
14 
 
 after H;he fact of her husbaud's non-access has been established by inde- 
 pendent evidence. 
 
 P. C, Colombo, 59,20-2 ... ... ... ... 90 
 
 See Leqitimacy. 
 
 Master and Servant. 
 
 1. — Action for tvages. — plea of forfeiture — \^Ordinance No. 11 of 
 1865, cl. 11.] — rights of master. 
 
 A master when sued for wages, may avail himself of either the com- 
 mon law defence or the statutory defence. 
 
 Under the common law, a master may discharge without notice a 
 servant guilty of gross misconduct and the servant so discharged is not 
 entitled to any wages that have not previously accrued due ; under the 
 Ordinance, in an action for wages, a master may make abatement there- 
 from on account of the servant's absence from or neglect of work, and 
 also for the value of breakages or damage done to the employer's property, 
 through the servant's misconduct, gross negligence or carelessness. 
 
 If under the Ordinance the master wishes to enforce his rights, he 
 must institute a proper proceeding and not decide for himself that a 
 forfeiture of wages has been made. 
 
 C, R., Jaffna, 27,355. ... ... ... ... 193 
 
 Mayoraal. 
 
 1. — His duties — nature of. 
 
 The office of mayoraal in the district of Matara is not hereditary. 
 
 His duties consisted in superintending the culture of fields ; estima- 
 ting the crop for taxation ; signing the ivattooroos upon which the 
 ' Government share is farmed out ; furnishing returns of crown lands 
 when ordered, and attending at rent sales &c. 
 
 D. C, Matara, 19,487 .. .. ... .. lOG 
 
 Mesne Profits 
 
 1. — Mesne profits — Costs under £10 — "debts contraaled" — Ordi- 
 nance No. 7 of 1853, cl. 164 — Arrest against person. 
 
 Mesne profits and costs fall within the description of " debt con- 
 tracted" under the 164th clause of Ordinance No. 7 of 1853, which dis- 
 allows arrest against the person for sums under £10. 
 
 D. C, Kurunegala, 14,015 ... ... ... ... 27 
 
 2 . — Mesne profits — damages — prescrip tion. 
 
 Mesne profits, being in the nature of damages, can be recovered only 
 subject to the provisions of the Prescriptive Ordinance. 
 
 C. E., Eatnapura, 6621 ... ... ... ... 112 
 
 3. — Action to recover — Prescription. 
 
 A party may sue for mesne profits, even though in a former suit for 
 
15 
 
 the land, te declared for mesne profits, but gave no evidence thereon. 
 But he can only recover under the Prescriptive Ordinance. 
 
 D. C, BaduUa, 15,471 ... ... ... ... 143 
 
 See Courts of Eequests, 4. 
 
 EjECTMENr. 
 
 Mohamedan Law. 
 
 1. — Custody of children. 
 
 The maternal grandmother is entitled to the care of the children in 
 preference to their father. 
 
 In ve Aysa Natchia. ... ... ... ... 88 
 
 2. — Custody of child — Liability of father to maintain it. 
 
 The grandmother of a Mohamedan child is entitled to its custody 
 on the death of its mother. 
 
 The right of the grandmother to such custody is given on the 
 child's behalf, not on behalf of the grandmother. It is the child's 
 privilege. 
 
 The obligation of providing for the child's maintenance is para- 
 mount on the father, although the grandmother has the custody of the 
 child, and the father wishes to have it in his own. 
 
 D. C, Colombo, 29,370 ... ... ... ... 144 
 
 Mistake. 
 
 1. — Voluntary payment — Payment to ^public officers under compulsion. 
 
 Money voluntarily paid by a party who is under no mistake caimot 
 ordinarily be recovered back. 
 
 But there is a distinction between the case of money paid upon a 
 claim made by a public officer who has the power of summarily enforcing 
 his chim without reference to the ordinary legal remedies, and money paid 
 under a claim by a private individual who has no power of enforcing it 
 except by adopting those remedies. In the former case, it is obviously 
 inequitable that the public officer should retain what he thus acquired. 
 In the latter case, if the party paying was not deceived, he is not entitled 
 to recover. 
 
 C. E., Galle, 20,002 . . ... ... ... 28 
 
 2. — Payment under protest — relation of priest and congregationalist. 
 
 A payment under protest to a priest by a member of his congrega- 
 tion, is recoverable in equity if undue influence has been used, or impro- 
 per advantage taken of the peculiar relation existing between the parties. 
 
 C. E., Kalutara, 12,546 ... ... 34 
 
16 
 
 Mortgage. -. .„ 
 
 1. Mortgage— assignment from creditor madein pursuance oj agree- 
 ment entered into long after payment— advances for cultivation 
 of estate— prior special mortgage — preference. 
 
 On 23rd October, 1857, E mortgaged to M and M a certain coffee 
 estate, stipulating payment to them of the principal amount, £6000, by- 
 five equal instalments of £1,200 each payable yearly between, 1859 and 
 1863. He also executed two other mortgages to S on the 23rd December, 
 1858, and 15th August, 1859, respectively, for sums aggregating £3,000 ; 
 and also a fourth mortgage to L on the 24th December, 1859,; agreeing 
 with L that L was to carry on the cultivation of the estate and pay to 
 M and M the instalment due in January, 1860, upon their bond. L 
 who had no notice of either of the mortgages in favor of S, paid to M 
 andM the instalment aforesaid with the interest due, on £1,536, but did 
 not take an assignment therefor until the following year;_1861,_when E's 
 fraud was discovered. 
 
 On the 25th March, 1861, M and M recovered judgment against E 
 for the balance £3,600 still due to them on the bond, and assigned their 
 interest therein to S. S thereupon sued out writs of execution and 
 became the purchaser of the estate for £7,500. L now claimed out of 
 the proceeds sale the sum of £3,157 as due under his bond for advances 
 made by him to carry on the cultivation of the estate, and for rtioney paid 
 to M and M in respect of the instalment of 1860. 
 
 Held, (1) thatL was not entitled to rank before S with regard to the 
 claim for XI, 536, either under the assignment from M and M or inde- 
 pendently thereof ; 
 
 And (2) that L had no claim in preference 'to S in regard of the 
 sum paid by L for the cultivation and improvement of the estate, either 
 by virtue of a tacit hypothec or under the bond of 24th December, 1859. 
 
 D. C, Colombo, 29,669 ... ... ... ... 148 
 
 See Partnership, 1. 
 Mural Inscriptions. 
 
 1. — Evidence — admissibility of copy. 
 
 A Kandyan King granted certain lands to~a Buddhist temple, making 
 an inscription of the grant on the rock wall of the temple. The mural 
 inscription was admitted to have been copied from a pushola deed. Held 
 that the mural inscription in the absence of the pushola deed, the non- 
 production of which was satisfactorily accounted for, was admissible in 
 evidence, by means of a duly transcribed copy. 
 
 D. C, Kandy, 30,917 ... ... .. ... 2 
 
 Namptissement. 
 
 1. — On wliat documents allowable. 
 
 Where an instrument which forms the basis of an application for 
 provisional judgment is one which, according to plaintiff's own shewing. 
 
17 
 
 is not so complete in itself as to raise a strong presumption in favour of 
 plaintiff's claim, but is connected with others and calling for further 
 inquiry, namptissement should not be granted upon it. 
 
 D. C, Colombo, 27,514 ... .. ... ... 20 
 
 New trial. 
 
 1. — New trial — grounds for. , 
 
 Where for several months after evidence was taken, the court did 
 not pronounce judgment, and the judgment it pronounced is not strongly 
 in favor of plaintiff, held a new trial was necessary. 
 
 C. K., Chavakachcheri, 864 ... ... ... ... 129 
 
 Nindegama. 
 
 1. — Nature of- — tenure of Service. 
 
 The owner of a nindegama may alienate it by sale, with all the 
 rights incident thereto, and the purchaser may hold as fully as the last 
 owner. 
 
 Semhle — the fact of the purchaser not being domiciled in the Kandyan 
 provinces, is no objection to his exercising proprietary rights over the 
 nindegama. 
 
 Qu ? Whether the new proprietor can exact the services, if he be 
 of a caste inferior to that of the tenant. 
 
 D. C, Eatnapura, 7,126 ... ... ... ... 114 
 
 Ordinances- 
 
 1834, No. 8, cl. 2, [1871, No. 22, cl. 3]. 
 See Presckiption. 
 Servitude. 
 
 1840, No. 7. 
 
 cl. 2, See Contract, 2. 
 Growing Crops. 
 
 1841, No. 4, 
 
 cl. 19, See Gambling. 
 
 1843, No. 11, 
 
 cl. 12, [Ordinance 1868, No. 11, cl. 106]. 
 See False Prosecution. 
 
 1843, No. 15, 
 
 cl. 20, [Ordinance 1861, No. 11, cl. 167], 
 Set Frivolous and Vexatious Arrest. 
 
 1844, No. 10, 
 
 cl. 32, See Arrack, 2. 
 
 1846, No. 12, 
 
 cl. 24, [Ordinance 1865, No. 16, cl. 89]. 
 See Public Worship. 
 
18 
 
 1852, No. 5. 
 
 cl. 1, See Reconvention. 
 
 — No. 18. 
 
 cl. 96, [Ordinance 1869, No. 17, cl. 115]. 
 See Customs Ordinance. 
 
 1853, No. 7, 
 
 cl. 164, See Arrest for debt. 
 Court of Requests. 
 
 1861, No. 22, 
 
 cl. 17, [Ordinance 1867, No. 4, cl. 17]. 
 See Toll. . 
 
 1865, No. 16, 
 
 cl. 66, See Contract. 
 See District Court, 1. , 
 
 Interpretation. 
 Paddy and dry grain Ordinance. 
 
 1. — Prosecution thereunder — exemption from tax. 
 
 P. C, Kalutara, 22,777. ... ... — ••• 1 
 
 Partnership. 
 
 1. — Loan to partner — mortgage hy him of partnership property — 
 poller of attorney — subsequent ratification — benefit of the firm. 
 
 Where a partner holding a power of attorney of his co-partner, 
 pledges and delivers partnership property, for the security of loans ad- 
 vanced to him in his own name, and the acts of the partner were subse- 
 quently ratified by the firm, the pledger was held entitled to hold the 
 property so pledged to him, until the advances made thereon by him had 
 been satisfied. 
 
 The presumption of fraud or misapplication was held rebutted by 
 the particular circumstances of the case, 
 
 D. C, Kandy, 31,273 ... ... -. ... 9 
 
 Payment. 
 
 See Mistake. 
 Planting Share. 
 
 1 .—Custom, 
 
 It is an acknowledged custom of the country that) persons who have 
 entered upon land with consent of the owner, and have actually planted 
 it with coooanuts, are entitled to a share of the trees when they come 
 into bearing. 
 
 They may claim this by operation of law, and not as a consequence 
 of the terms of any agreement between them and the owners. 
 
 C. R., Calpentyn, 17,716 ... ... ... ... 113 
 
19 
 Pleadings. 
 
 See Procedure 4. 
 Police court. 
 
 !• — Practice — plaint hy whom to be laid — power of Court to reopen 
 order of dismissal — ramendment of plaint. 
 
 P. C, Jaffna, 1,882 ... ... ... ... ... ISO 
 
 2. — Posponement of cases. 
 
 P. C. Chavakachcliari, 19,860 ... ... ... 91 
 
 See Aeeack. 
 Customs. 
 
 Frivolous or vexatious arrest. 
 Gambling. 
 Maintenance. 
 Procedure (Criminal.) 
 Public worship. 
 Resistance. 
 Trespass. 
 
 Police Force. 
 
 1. — Quartering of. 
 See Proclamation. 
 
 Possession. 
 
 See Prescription. 
 
 Possessory action. 
 
 1 . — Its nature — practice. 
 
 The possessory action of the Roman Dutch Law lies only where a 
 party who has had possession for more than a year and a day is dispos- 
 sessed ty force. It is a summary remedy, and judgment given in it in 
 no way determines the title to the land, but leaves that an open question. 
 
 C. E., Balap. Modera, 9,163 ... ... .. ... 22 
 
 2. — Possessory right — evidence — R. and 0. 2nd July, 1842. 
 
 An action founded upon one's possessory right by reason of a year 
 and a day's possession may be maintained against a mere wrong-doer. 
 
 Under the R. and O., 2nd July, 1842, documentary evidence which 
 had not been filed in the case, do not for that reason become inadmissible 
 at the trial. The judge has always a discretionary power to admit a 
 right. 
 
 D. C, Mannar, 5,632 ... ... ... ... 19a 
 
:2() 
 
 Prescription. 
 
 1. — As to lands and immovables. 
 
 " Possession for ten years previous to the bringing of action," (cl. 2 
 of Ordinance No. 8 of 1834) is not possession next before tbe bringing of 
 the action. 
 
 C. R., Point Pedro, 41 ... ... ••• ••• 75 
 
 2. — Nature of prescriptive possession. 
 
 There are two jjoints regarding the law of prescription that should 
 be always well borne in mind : the first, that a possessor is always pre- 
 sumed to hold in his own right and as proprietor, until the contrary be 
 demonstrated. The second, that the contrary being once established, and 
 it being shewn that the possession commenced by virtue of some other 
 title, such as that of tenant or planter, then the possessor is presumed to 
 have continued to hold on the same terms, until he distinctly proves that 
 his title has been changed. 
 
 D. C, Negombo, 419... ... ... .. ■• 145 
 
 3. — Effect of nonsuit. 
 
 A former case though a nonsuit, bars prescription (Creasy C. J., 
 dubitante.) 
 
 D. C, JafEna, 9,601 ... ... ... ... 189 
 
 4. — Acknowledgment of tight. 
 
 Prescriptive possession will not avail, if within that period, the title 
 deed of the opponent has been acknowledged to be valid. 
 
 D. C. Batticaloa, 13,452. ... ... 189 
 
 See Servitude. 
 Priority. 
 
 See Mortgage. 
 Principal and Agent. 
 
 1. — Purchase of land — fraudulent transfer of property in agent's 
 name — action for cancellation of deed. 
 
 A supplied B with the necessary funds and deputed him to purchase 
 a land and obtain a conveyance thereof in A's favour ; but B in breach 
 of trust had the deed executed in his own favour. On A. suing B, held, 
 that petitioner was entitled to have defendant's deed cancelled and to have 
 a reconveyance of the premises to the plaintiff at defendant's expense. 
 
 D. C. Negombo, 23,754 ... . . . . . . 6 
 
 Probate. 
 
 See Will, 1. 
 
21 
 
 Procedure, Civil. 
 
 1 . — Special judgment — construction. 
 
 Where a judgment declared a party " entitled to, and to be placed in 
 possession of tlie land," held that such judgment authorised the ejectment 
 of the defendant therefrom. 
 
 D. C, Colombo, 21,041 .. .. ... ... 8 
 
 2.-. — Parti/ in default to plead-^putting him on terms — order of court. 
 
 In all cases where a party in default is allowed fresh time to plead, 
 if it is intended that, in default of such pleading being filed within the 
 time allowed by the court, judgment should be entered for the opposite 
 party without further notice to the party in default, such condition should 
 be expressly set out in the order allowing time to plead. 
 
 D. C, JafEna, 10,336 .. .. .. ... 25 
 
 3. — Pleadings insufficiently stamped procedure to remedy — nature 
 
 of order of court. 
 
 Where pleadings are insufficiently stamped, the proper course is to 
 apply to the court by motion, or to obtain a rule to shew cause why the 
 additional stamps should not be supplied within a given time. 
 
 An order allowing additional stamps, to be supplied, does not mean 
 that the additional stamps should be affixed to the pleading, but that the 
 party whose pleading is insufficiently stamped should apply for additional 
 stamps under cl. 7 of Ordinance No. 19 of 1852. That application 
 necessitates the payment of a penalty of £10. It will be for the party 
 in fault to consider whether it will be better for him to pay the penalty 
 or commence his suit de novo. 
 
 ISee cl. 38, 39 and 40, of Ordinance No. 23 of 1871.J 
 
 D. C, JafEna, 10,853 ... ... ... ... 104 
 
 4. — Claim in execution — claimant out of possession — evidence of 
 title. 
 
 A claimant in " execution" must give proof of title in all cases 
 where he is not reported to be in possession. ... ... 188 
 
 See Eight to begin. 
 Kandyan Law, 3. 
 
 Procedure, Criminal. 
 
 1. — Prisoner under sentence of death — escape from custody — re-arrest 
 — application hy Queen's Advocate for writ of habeas corpus — 
 power of Supreme Court to award execution. 
 Where a prisoner under sentence of death escapes from custody and 
 is re-arrested, he has a right to have an opportunity of pleading non- 
 identity. 
 
 The proper course in such a case is for the Queen's Advocate to have 
 
22 
 
 the prisoner before the Supreme Court on a writ of habeas corpus, so as 
 to be able to obtain a rule nisi on him for awarding execution. 
 
 The Supreme Court has the power to grant writ of habeas corpus for 
 the purpose. 
 
 /»i ;•« Valayudapody ... .. ... .,. ... 186 
 
 2. — Irregularity — summons — binding over to keep the peace — conduct 
 before J. P. 
 
 P. C. Trincomalee, 1549 ... ... ... ... 188 
 
 3. — Irregularity — want of summons — pleadings over — consent. 
 
 It is irregular to try an accused person without service of proper 
 summons on him. The defect is not cured by his pleading over. 
 
 P. C, Kegalle, 18,266 ... .. ... .. 191 
 
 See Police Coukt. 
 Proclamation. 
 
 1818, November, 21. 
 
 See Kandyan territory. 
 1848, August 7. 
 
 Construction of. 
 
 C. K., Galle, 20,002 ... ... .. .. 28 
 
 Proctor. 
 
 See Appeal petition, 3. 
 Promissory Note. 
 
 1. — Illegal consideration — annulment of insolvency proceedings — 
 
 forbearance in opposing certificate. 
 "Where a promissory note was granted for the consideration that the 
 payee would bring about the annulment of certain insolvency proceedings 
 against a third party, and would forbear opposing his certificate, held that 
 such consideration was illegal. 
 
 D. C, Colombo, 26,795 ... .. ... ... 81 
 
 See Evidence, 3 and 4 
 
 Provisional Judgment. 
 
 See Namptissement. 
 Public Worship. 
 
 1. — Disturbance of — [^Ordinance No. 16 of 1865, cl. 89J — nature 
 of service — " any place of christian worship." 
 
 A christian congregation, assembled in their regular place of worship 
 to join in public prayer, and to listen to the religious exhortation of their 
 minister, is assembled for the performance of " public worship," within 
 the meaning of the Ordinance. 
 
 The words " aw^'plaoe of christian worship, &c.," are general and do 
 not mean any place where a police force is established. 
 
23 
 
 Purchase and Sale, 
 
 1. — Sale of land — warranty of title — claim for value, and compen- 
 sation for improvement. 
 
 A having bought of B a land with warranty of title, built a house 
 on it, but STifEered eviction therefrom by a title superior to his vendors. 
 Held, that A. was entitled to recover both the purchase money and the 
 value of the house. 
 
 C. R., Kegalle, 1,047 .. ... .: ... 93 
 
 See Principal and Agent. 
 
 Recognizance. 
 
 1 — Forfeiture of — levy under warrant of distress — Ordinance No. 6 
 of 1855, cl. 11 — procedure. 
 
 D. C, Galle, 9,501 ... ... .. 147 
 
 Reconvention. 
 
 I. — Claim for freight — claim in reconvention for damages to cargo 
 and for short delivery — cross action — set o£ pleading — Ordinance 
 No. 5 of 1862, cl. 1. 
 
 Eeconvention is equivalent not to set off, but to cross action 
 
 A claim for freight may be met by a cross action for damage to cargo 
 and short delivery, though it is discretionary with the Judge, if he think 
 the claim in reconvention to be dubious and dilatory, to disallow it, with 
 liberty to defendant to reserve his claim for an independent suit. 
 
 Ordinance No. 5 of 1852, cl., introducing the law of England as to 
 maritime matters, does not exclude the power of pleading in reconvention 
 anything that could not have been pleaded in England by way of set off, 
 
 D. C, GaUe, 20,467 ... .. 191 
 
 Right to begin. 
 
 1. — Eight to begin — appeal — discretion of presiding judge. 
 
 The right to begin, the order in which parties are to call evidence, and 
 all similar matters as to the conduct of a cause are things in which the 
 presiding judge ought to be invested with very large discretionary 
 powers, and the Supreme Court will not interfere with the mode in which 
 these discretionary powers have been exercised, except in cases of gross 
 error and of serious hardship arising from such error. 
 
 D. C, Kurunagale, 15,830 ... ... .. ... 143 
 
 2. — Bight to begin — appeal. 
 
 A District Judge ought not to have made an order as to the right to 
 begin, and then suspended the proceedings to remit an appeal against 
 such order. 
 
 D. C, Jaffna, 11,493 ... ... ... .. 145 
 
Sannas. 
 
 1. — Mode of iproving the genuineness of sannasses. 
 
 D. C, Kandy, 28,620 ... ... ... ... 4 
 
 See MuEAL Inscriptions. 
 
 Sequestration. 
 
 1. — Grrant of second sequestration. 
 
 Ciroiimstances under whicli a second sequestration of property be- 
 longing to defendants was held unjustifiable. 
 
 D. C. Colombo, 26,952 ... ... ... ... 30 
 
 Servitude. 
 
 1 — Bight of way possession — Ordinance No. 8 of 183'4, cl. 2 [ol. 3 
 
 of Ordinance No. 22 of 1871.] 
 A right of way is a proverbial servitude and as such " immovable'' 
 Enjoyment of a right of way is included in the words "possession of 
 
 lands or immovable property," in cl. 2 of Ordinance No. 8 of 1834, (cl. 
 
 3 of Ordinance No. 22 of 1871.) 
 
 C. E., Point Pedro, 41. ... ... ... ... 75 
 
 Shipping. 
 
 1. — Master and consignee — action for breach of contract — bill of 
 lading — written agreement — evidence — implied promise. 
 
 In an action brought by the master of a ship against the consignees 
 oE certain machinery for breach of a contract to discharge the said ma- 
 chinery within reasonable time after the arrival of the ship in Colombo, 
 it appeared in evidence that the bill of lading signed by the master, though 
 in the usual form, contained a marginal note which referred to a written 
 agreement. Held that, in the absence of the written agreement, an 
 implied promise on the part of the defendants, to unload with due diligence, 
 could not be inferred from their acceptance of the goods under the terms, 
 of the bill of lading. 
 
 D. C, Colombo, 27,010 . . . . . . . . 25 
 
 2. — Shipping — shipowner and merchant — time of payment of freight 
 charterparty — deurrage — interest thereon. 
 
 In the absence of an express stipulation as to the time and manner 
 of payment of freight, the master is not bound to part with the goods 
 until his freight is paid. 
 
 Where according to the charterparty, the merchant was bound to 
 take the cargo alongside and from the ship's tackle, but did not, held he 
 was liable to pay demurrage. 
 
 But such demurrage does not carry interest. 
 
 D. C, Galle, 20,283 ... ... ... ... 141 
 
 See Eeconvektion. 
 
Tenure of land. 
 
 See "Mayoeaal." 
 
 " NiNDEGAMA." 
 
 Toll. 
 
 1. — Bemoval of bar — -fine. 
 
 No fine attaches, when the toll bar has heen put in a place different 
 from that appointed by the Proclamation. 
 
 P. C, Kalutara, 26,639 ... ... ... ... 129 
 
 2.— Evasion of—cl. 17 of Ordinance No. 22 0/I86I [_cl. 17 of Ord. 
 No. 4 of 1867.] 
 
 The words " not being a public highway'' are to be read in con- 
 junction with the word " land," and not with the word " road" which in 
 that connection means the turnpike road itself. 
 
 If there is a public highway running out of the turnpike road, a 
 traveller may turn off into that public highway without being liable ; 
 but if he shirks the toll by turning off the turnpike road over any adjacent 
 land, not being the soil of a public highway, he is liable to the penalty. 
 
 P. C, Negombo, 263 .. ... ... ... 143 
 
 Tortious legal proceedings. 
 
 1. — Want of corrupt motive — damages. 
 
 "Where no malicious or corrupt motive in prosecuting^an action was 
 alleged or proved, no action for damages will lie, even though inconvenience 
 and pecuniary loss have been caused. 
 
 D. C, Colombo, 24,345 ... ... ... ... 35 
 
 Trespass. 
 
 1 . — Cattle damage-feasant — damages. 
 
 The owner of cattle damage-feasant is liable to pay all damages 
 which are the natural and probable consequences of his allowing his 
 cattle to stray on another's land, but not damages which are the remote 
 or accidental consequences of such act. 
 
 C. E., Newera Eliya, 2,576 ... ... ••• ■■. 19 
 
 2. — Its nature. 
 
 When of a civil or criminal nature. 
 
 P. C. Jaffna, 27,760 .. ••• •• •• S5 
 
 3. — Who may maintain. 
 
 Any possession of real property is sufficient to entitle the possessor 
 to sue a mere wrong-doer. If the plaintiff had no occupancy or actual 
 possession but had merely the right to go .to tha estate occasionally for the 
 purpose of inspecting it , or some other temp'orary purpose, he cannot 
 maintain the suit. 
 
 D. C, Kandy, 30,033 ... •■. •• ••• 19- 
 
26 
 
 Voluntary payment. 
 
 See Mistake, 1. 
 
 Will. 
 
 1. — Form of — when admitted to probate. 
 
 An instrument, whatever be its form, may be admitted to probate ag 
 testamentary if there is proof, either in the paper itself or from clear 
 evidence dehors, first, that it was the intention of the writer of the paper 
 to convey the benefits by the instrument which would be conveyed by 
 it if considered as a will ; secondly, that death was the event that was 
 to give efEect to it. 
 
 D. C, Kandy, 314 ... ... ... ... 17 
 
 Witness. 
 
 1. — Batta. 
 
 Batta and expenses of witnesses when allowable in case of post- 
 ponement of case. 
 
 D. C, Colombo, 19,758 .. ... .. .. 29 
 
COREIGENDA. 
 
 Page, 
 
 7. — dele tlie arguments of counsel. 
 104 — line 17 from bottom — dele 'to h-'. unavailable.' 
 11^ — ^line 11 from bottom — ^for defendant rea,A plaintiff. 
 163— line 22 from top — for was read were. 
 
I860. 
 
 lOth January. 
 
 Present: — Steeling, A. C. J., Morgan, J. and Lawson, J. 
 
 The Honorable Richard Francis Morgan and George Lawson 
 Esquire, produce their warrants of appointment and take their oaths 
 as Acting Senior Puisne Justice and Acting Junior Puisne Justice 
 respectively. 
 
 P. C. Kalutara, ) rr 7 /tt. * 
 
 TVT 00777 r rernando v. lissera. 
 
 The Supreme Court held as follows : — 
 
 The title deed relied upon does not, in the opinion of the Su- paddv and 
 preme Court, establish the exemption which the defendant claims. dry grain 
 
 The Proclamation of the 3rd May, 1800, freed the tax which Ordinance- 
 all lands within these settlements had to pay to Government, ( see Mcemptiou 
 sec. 1, 8 and 10). Another dated at the 22nd April, 1803 directs "" 
 that " in all cases where no share of the produce of the land trans- 
 " ferred shall have been reserved to Government by any specific 
 " grant or title, or by any general Legislative provision, a share is 
 " to be reserved for Government," which is fixed at one-fifth in 
 some and one-tenth in other places. 
 
 The Proclamation of the 2nd March, 1824, expresses the 
 intention of Government strictly to enforce and levy the fixed duty 
 due to the Crown from the annual produce of all grounds ; and 
 whilst it exempts lands planted with cofBee, cotton or pepper, 
 expressly provides that nothing in it, the said Proclamation, 
 contained shall be " construed or taken to affect or extend to 
 " any low lands applied to the culture of paddy." 
 
 It has also been the invariable custom in this, country for 
 paddy lands to pay a share of the produce to the Government. 
 
 The Ordinance No. 14 of 1840 provides that " there shall 
 " continue to be levied by, and payable to. Government, a tax 
 " of one-tenth, or such other proportion, of the crops of paddy 
 " and dry grain in and upon all lands now liable there- 
 " to as by law, custom, or usage, is at present levied or pay- 
 " able." 
 
 * Tlie record of this case is not forthcoming and is said to have been 
 lost, The prosecution appears to be vinder cl, 14 of the Ord. No, 14 of 1840. 
 
1860. Under ttese circumstances, express words of relief -will be 
 
 Jany. 18. necessary to exempt the land of the defendant from the usual 
 payment. So far from any such occiurring in the deed now in 
 question, it is distinctly stipulated therein, that "the land shall be 
 " liable to such regulations as now exist, and as may hereafter be 
 " enacted relative to landed property in general." 
 
 18th January. 
 Present:— BTEViLma, A. C. J., Morgan, J. and Lawson, J. 
 
 ^<T ^'o^m'l^' i Yattewatta v. Gordon. 
 
 JNo. d0,917. J 
 
 Evidence — This was an action of ejectment. PlaintifE, alleging himself 
 
 Muraljna- ^q -jjg ^j^g giiigf priest of the Asgeri Wihare, based his title to the 
 
 jSjSfent'deed ^^^"^ ™ question on a royal sannas or grant to the temple of which 
 
 ' he was the present incumbent. Defendant claimed the land 
 
 by virtue of two crown grants. The crown intervened in support 
 
 of defendant's title. 
 
 The sannas relied upon by the plaintiff was inscribed on the 
 back of the rock-wall of the temple and purported to be a dedica- 
 tion to the temple by the late King of Kandy, Sree Wickrame Ea- 
 ja Sinha, and his mother. 
 
 The learned District Judge in an elaborate judgment held 
 (1) that there was an inscription on the rock wall, containing the 
 words set forth in the Sinhalese document filed in the case ; (2) that 
 that inscription constituted a royal sararaa« or grant of the lands there- 
 in named to the temple; and (3) that the' temple had not lost its 
 title; and he accordingly decreed that the defendant be ejected from 
 the premises. 
 
 On appeal, the Queen's Advocate and Berwick, D. Q. A. 
 appeared for the intervenient and appellant ; and DuniLwille for 
 respondent. 
 
 The following is the judgment of the Supreme Court: — 
 
 The Supreme Court entirely approves of the finding of the 
 District Judge, as to the genuineness of the mural inscription on 
 which the claim of the plaintiff is founded, and concurs generally 
 with him in the reasons adduced by him in support of this conclu- 
 sion. Upon this subject it is unnecessary to add anything; and it 
 only remains to notice the objections, which have been raised at 
 the bar, relating (1) to the admissibility of the document in ques- 
 tion in evidence; (2) to its legal validity and effect; (3) to its ap- 
 plication to the land in dispute; (4) to the want of possession 
 under the deed ; (5) to the character in which the present plaintiff 
 
1. It is objected that tlie mural inscription ought not to be I860, 
 proved in evidence, because it is not an original document, the '^^^Y- lo- 
 transfer intended by the' King of Kandy having, as it is alleged, 
 
 been completed by the puskola deed, of which the inscription is a 
 copy. The Court is rather of opinion that the inscription on the 
 rock should be considered as the original and principal document, 
 being intended by the King to remain as a perpetual memorial o£ 
 his donation, and that the puskola deed should only be regarded 
 as the rough draft, from which the principal deed was to be 
 copied; but it is needless to decide this point because this Court is 
 clearly of opinion that, if the puskola deed is the original, and the 
 rock inscription the copy, there is sufficient evidence to accoimt for 
 the non-production of the former, and to establish the accuracy of 
 the latter. It is reasonable to conclude that the puskola would 
 be. regarded as superfluous after the completion of the inscription ; 
 and the plaintiff tells us that there are no deeds relating to the 
 Alut Wihare except the rock inscription. The Supreme Court 
 cannot think it necessary that search should be made amongst the 
 the title deeds of the other priests of Asgiri Wihare, who are the 
 incumbents of other temples connected with that establishment, but 
 in no way interested in the Alut Wihare, nor likely to have 
 custody of its title deeds ; and this is the only search which has 
 been suggested at the bar as necessary. The accuracy of the copy 
 is proved by the cornparison made between it and the puskola, ia 
 the presence of the King, which resulted in the King bestowing 
 praises on the stone cutter for the fidelity of the transcription. 
 
 2. It is said that the deed can have no legal force or validity, 
 because it excepts the muttettoo lands from the operation of the 
 grant, and consequently reserves to the King the former services of 
 the nilacarayas, and at the same time grants the other lands of 
 the village to the temple, thereby creating a claim on its part 
 to new services, in addition to the old, which, as it is urged, would 
 be beyond the power of the Crown. This Court must put 
 such a construction upon the deed as may give it some force and 
 meaning, rather than one which would render it inoperative ; and if 
 the construction contended for would have the effect attributed to 
 it, the Supreme Court must hold that the reservation of the mutet- 
 too fields was intended merely to apply to the land, and not to the 
 services incident to it. Further, it is argued that the deed is void, 
 because it purports to be the act of the Queen-mother, and her 
 consent to it is not proved; but this Court holds that her presence 
 in the temple, when the grant was made by the King in her name, 
 is sufficient proof of her acquiescence in the grant, and of hia 
 having acted under her authority. 
 
 3. It is contended that the services in question relate only to 
 a portion of the land in dispute, and that the intention of the king 
 
1860. and Queen was to grant only such portion of the Wgli lands of 
 Jany. 18. Udu Asgeria as were appurtenances of the paddy field, transferred 
 to the temple. This is the most substantial of the objections raised 
 by the counsel, but an inspection of the transfer deed will prove 
 that the grant cannot be limited. The Queen grants to the temple 
 from the village Udu Asgeria, the fields included within certain 
 specified boundaries, excepting the mutteioo fields, and adds a 
 grant of all the high and low grounds, intending, as the Court is 
 • clearly of opinion, to transfer the whole of the royal chenas and 
 other high lands in the village to which the Crown was entitled, 
 except the appurtenances of the muttetoo, if any such there be, of 
 which this Court has no proof. There are no words to limit or 
 confine the expression " together with the high and low lands out 
 of the village Udu Asgeria," so as to exclude from their operation 
 any land within the village, the property of the donors, except the 
 muttetoo and its appurtenances. If there be, as suggested, other 
 private and temple lands within these boundaries, this judgment is 
 not binding with respect to them, and gives only to the temple what 
 the King and Queen gave, and had the power to give. 
 
 4. It is argued that an ancient deed should be accompanied 
 by proof of possession thereunder, and that such proof is wanting 
 in the present case ; but the Supreme Court is of opinion that there 
 is proof, both of ancient and modern possession under the deed, 
 and of the performance of service to the temple, sufficient to shew 
 that the deed was acted on, and that further proof of possession is 
 not required. 
 
 Lastly, it is objected that the plaintiff sues as the priest of 
 the Asgiri Wihare, and that he only proves title as priest of the 
 Alut Wihare. The fact is that plaintiff holds both offices, and the, 
 objection as to the pleading would be met by a slight alteration of 
 the libel ; but the Supreme Court is of opinion that no such amend- 
 ment is necessary, as it is proved that the Alut "Wihare is the pro- 
 perty of the Asgeri Wihare, and therefore that the priest of the 
 latter has a right to sue for the injury done to the former, by 
 which the interest of his own temple is prejudiced. 
 
 No 28620 r ^^^ Queen's Advocate v. Gordon. 
 
 The Supreme Court is of opinion that further evidence may 
 
 genuineness be adduced to throw light upon the genuineness of the sannas. 
 
 of' This evidence should relate to the language in which the sannas 
 
 is expressed, and its correspondence with the style in use in like 
 
 instruments of the same period f and the opinion of learned persons 
 
 skilled in the Pali language should be taken oii this point ; it 
 
should also be ascertained -whetlier the description of the high 1860. 
 lands by boundaries, as given in this sannas, was customary, and Jaiiy. 26. 
 comparison should be made with other sannases of unquestioned 
 genuineness. 
 
 The evidence should shew in what custody the sannas has 
 remained, and should account for the long delay in giving notice 
 of its existence. 
 
 86th January. 
 
 Present : — Sterling, A. C. J. and Moegan, J. 
 
 D. C. Kandy, ) In the matter of the Intestate Estate of Mollegodde 
 No. 338. J Coomarihamy, deceased 
 
 This was a contest for letters of administration. There were Kandvan 
 
 four applicants, the first being the paternal aunt, the second the law— ^eeraa 
 
 beena husband, the third the half brother, and the fourth the husband — 
 
 sister of the intestate. Administra- 
 
 The District Judge granted the letters to the first applicant. p «~ •_ 
 
 On appeal by the beena husband, Edema, Lorenz and Riist 
 appeared for him, and Dias for respondent. 
 
 The Court held as follows : — 
 
 The Supreme Court concurs with the District Court in finding 
 that the beena husband has no right to, or interest in, his wife's 
 estate after her death. Such has always been the received con- 
 struction of the Kandyan law on this subject, and the Supreme 
 Court has failed to discover any good reason or authority to induce 
 it to doubt the correctness of such construction. The case in the 
 Judicial Comissioner's Court, (Diary, August, 1829, No. 3133.) 
 referred to by the learned counsel for the appellant, (the 2nd 
 applicant), would seem to. depend more upon the construction given 
 to the deed referred to in the judgment, than to a deliberate consi- 
 deration of the abstract law on the subject. 
 
 It has been urged in siipport of the appeal that the beena 
 husband has, at least, an interest in the property acquired during 
 coverture. This plea was only taken however in the petition of 
 appeal ; the only question submitted to the District Court, at the 
 hearing, having been, that relating to the interest of a beena hus- 
 band in his wife's estate. This plea involves an issue of fact, and 
 the Supreme Court cannot allow the appellant to take it for the 
 first time in appeal. 
 
 In his original application, the appellant relied upon a deed, 
 by which his wife was said to have conveyed all her property to 
 him. This deed, if established, would have given the appellant an 
 all-sufliicient interest in his wife's estate, and an undoubted right to 
 
1 %0 represent the same. Its genuineness was however denied by the 
 Ja ly. 28. respondent, and yet, at the trial, the appellant called no evidence to 
 prove that deed. 
 
 Under these circumstances, and considering the necessity of 
 a speedy decision in these administration suits, and that an 
 affirmance of this order will not deprive the appellant of an oppor- 
 tunity to estahlish, if able to do so, his interest in his wife's estate, 
 either under the deed, or in respect of the property acquired after 
 converture, the Supreme Court considers that the oi-der of the 
 District Court should be, and the same is hereby, affirmed. Costs 
 to be paid out of the estate. 
 
 SStk Januan/. 
 Present: — Steeling, A. C. J. and Morgan, J. 
 i^'noqKA ' f Zefferino Godtnho v. Perera and others. 
 
 rieht toehold '^^^ plaintifE, (a Goa priest, who had been resident in Ceylon 
 
 land.fi, and to fo^" 20 years,) sued in ejectment under the following circum- 
 sue. stances. On the 23rd January, 1851, the plaintiff purchased a 
 
 garden for £150 and employed his servant, the first defendant, 
 to get the deed of sale drawn in plaintiff's favor, but the first 
 defendant, with a view to defraud the plaintiff and in breach of the 
 confidence reposed in him, procured the vendor to execute the deed 
 in his, the defendant's, own favor. 
 
 Shortly after the execution of the deed, the plaintiff discovered 
 the fraud, and threatened to charge the first defendant before a 
 justice, btit at the earnest request of the first defendant and one 
 Cassimero not to expose the first defendant, the plaintiff desisted 
 on the first defendant's solemn promise not to dispute the plain- 
 tiff 's right to the land, or to disttirb his possession thereof. 
 The plaintiff alleged that since 1851 he remained. in possession of 
 the land till November, 1857, when the first defendant having 
 attempted to set up in himself a title, he, the plaintiff, was obliged 
 to institute the present suit. The plaintiff prayed for a declara- 
 tion of his right to the land and for a cancellation of the deed in 
 favor of the first defendant. 
 
 . The defence set up was that the land was purchased by the 
 first defendant, and that he borrowed the purchase money from 
 the plaintiff; that out of the money so borrowed (£150), he, the 
 first defendant, paid plaintiff £110, leaving a balance of £40 still 
 due, which he, the first defendant, offered to pay to plaintiff. 
 Upon these pleadings, the case came on for trial, and several 
 witnesses were called by the plaintiff to prove the allegations in.the 
 
libel. The defendants called no witnesses, but it was contended 18G0. 
 
 for him that the plaintiff, upon his own admission, being an alien, Jany. 28. 
 
 could not hold real property in Ceylon, ^nd therefore could not — 
 maintain the action. 
 
 The District Judge over-ruled the objection on the authority 
 of Mayor of Lyons v. the East India Company, 1 Moore's P. C. 
 Eep., and gave judgment for the plaintiff, absolving all but the 
 first defendant. The first defendants appealed. 
 
 The Queen's Advocate (with him Rnst) for appellants: It 
 appeared from the evidence that plaintiff was in the habit of getting 
 deeds drawn up in the name of his servants, though he, the plaintiff, 
 was the party beneficially interested. The present was an attempt 
 by the plaintiff, admittedly an alien, to set up a right to land, 
 through the interposition of a third party, a proceeding wholly void 
 and illegal as being opposed to the policy of the Law. [ Morgan, 
 J., — The case here is different. The plaintiff employed the first 
 defendant to see the deed drawn in plaintiff"'8 own favor, but the 
 first defendant practised a fraud upon the plaintiff by taking a 
 transfer for himself. Steeling, C. J., — I do not think Alien law 
 forms part of the law of this Colony.] I admit that under the 
 Eoman Dutch Law, aliens have all the rights and privileges of 
 subjects except admission to public offices,! Burge Col. and For. 
 Law, p. 696, Vander Linden's /wsiti. 66. But the law of aliens 
 is a part of the prerogative law of allegiance, which follow the 
 footsteps of the crown into aU its possessions, 1 and 2 Blacks. Comm., 
 Chitty on Prerog., Wheaton's Intemat. Law, Harrison's Dig. tit 
 "Foreigner," Vattel's Intemat. Law &c. That being so, does the case 
 of Mayor of Lyons v. The East India Company make any differ- 
 ence ? [McEGAN, J. — If the plaintiff is not entitled to the land, 
 who else is?] The crown. [Morgan, J., — But the crown is no 
 party to the suit. We might decree the land to the plaintiff, with 
 out prejudice to the rights of the crown.] 
 
 Dias (with him W. Morgan, and Lorenz ) was heard for the 
 respondent on the merits. 
 
 The Court held as follows : 
 
 The decree of the court below must be amended and the deed 
 in question declared to enure to the benefit of the plaintiff for 
 whom and on whose account the premises it refers to was pur- 
 chased, and the first defendant condemned to reconvey such pre- 
 mises to the plaintiff at his own expense ; the first defendant ia 
 further condemned to pay £50 sterling damages and the costs of 
 the plaintiff and the other defendants in the District Court and in 
 appeal. 
 
 The Supreme Court concurs with the District Coui-t in the 
 
1860. view it takes of the merits, the amendment above directed being 
 Feb. 28. merely Avith a view to form. 
 
 — It is unnecessary to decide the question as to the right of aliens 
 
 to hold lands, as the crown asserts no claim to the premises and the 
 plaintiff is undoubtedly entitled to the same as against the defen- 
 dant. 
 
 In view of the fraudulent nature of the first defendant's con- 
 duct he is condemned to pay the costs not only of the plaintiff, but 
 of all the other defendants. 
 
 28th Febnianj. 
 Present : — Morgan, J. and Lawson, J. 
 
 D. C. Colombo, 
 No. 21,041. 
 
 Aserappa v. Silva, 
 
 ■practice — Plaintiff prayed in his libel that he may he declared the owner 
 
 J!°*™f 7~ of certain lands and the defendaiits may be ejected therefrom, and 
 decree. plaintiff may be put and placed in possession of the same. 
 
 The District Judge, after evidence heard, decreed that " plain- 
 tifE be declared entitled to, and placed in possession- of, the land 
 claimed in the libel," without however adding that defendant be 
 ejected therefrom. 
 
 The plaintiff sued out a writ of possession and by virtue 
 thereof the Fiscal directed the ' plaintiff to take possession of the 
 land in question, but refused to eject the defendant who would not 
 give up possession. Thereupon the plaintiff moved for a rule 
 against the defendant to shew cause why the judgment should not 
 be revived with costs and a fresh writ should not issue to eject the 
 defendant and to put and place the plaintiff in possession of the 
 said lands. The rule was granted, and on a subsequent day made 
 absolute, but without costs : against which order, disallowing costs, 
 the plaintiff appealed. 
 
 ' On appeal {Lorem for appellant), the order as to costs was set 
 aside, and costs of the rule allowed to the plaintiff, in these terms : — 
 
 The judgment declaring petitioner " entitled to, and to be 
 placed in possession of, the land," authorized the ejectment of the 
 defendants therefrom. Unless such a judgment expressly reserves 
 the defendant's right to pessession, or piirports to be made -without 
 prejudice to such right, — which is sometimes done in the case of 
 planters or parties entitled to joint possession, — it necessarily 
 involves the ejectment of the defendant ; for the plaintiff cannot be 
 said to be put into possession, (which, unless qualified as above 
 
stated, means nbsolute, full possession) as against the defendant, if 
 sxicla defendant is allowed to remain in possession also. 
 
 18G0. 
 Feb. 29. 
 
 C. R. Jaffna, 1 
 No. 24540. J 
 
 Fernando v. Nicolan. 
 
 Per Curiam : — Claims of preference and concurrence should be 
 decided summarily by the Court which issues the writ of execution 
 under which the claims are made ; and parties should not be 
 referred to a new suit, unless they are at issue upon material alle- 
 gations, which cannot be conveniently tried and determined in the 
 original cause. 
 
 Practice— 
 
 Uiaims of 
 preference 
 ■• n i concur- 
 rence. 
 
 a9th February. 
 
 Present: — Morgan, J. and Laatson, J. 
 
 D. C. Kandy, \ Nannytamby v. Assignees of the insolvent estate 
 No. 31273. J ' of F. Hudson cj- Co. 
 
 The plaintiff averred in his libel that Francis Hudson a part- 
 ner of the firm of F. Hudson 4' Co. became indebted to the plaintiff 
 Upon his bond in the penal sum of £12000, and as security for the 
 same mortgaged certain stock and assigned certain debts belonging 
 and due to his business in Kandy; that the plaintiff upon the 
 bond advanced £ 500 and promised to make fui-ther advances, not 
 exceeding £ 6000, and that the said Hudson undertook after 
 two months' notice to refund all sums so advanced, and also to pay 
 interest quarterly at 12 o/o ; that plaintiff, in terms of the said 
 bond, advanced from time to time the sum of £ 4556. 3. 6. And 
 the plaintiff further alleged that the said Hudson delivered 
 over to him the possession of such stock, debts &c., as he had, and 
 did not pay to him, the plaintiff, the whole or any part of the sums 
 advanced as aforesaid. And the plaintiff now complained that the 
 defendants, cljiiming to be assignees of the insolvent estate of 
 F. Hudson 4' Co. forcibly took possession of the said stock and 
 debis mortgaged and delivered to the plaintiff and disputed plain- 
 tiff's right thereto, to his damage of £ 6000. He prayed that the 
 defendants may he adjudged to deliver over to him the said stock 
 and debts, or to pay to him £ 6000 as damages, and that the said 
 stock, debts &c. may be declared specially bound and executable 
 fi/r the same. 
 
 Loan to part- 
 ner — 
 Mortgage by 
 
 him of 
 partnership 
 pioperty — 
 Power of at- 
 torney — 
 Subsequent 
 ratification — 
 Benefit of the 
 firm. 
 
10 
 
 1860. The defendants {D'Esterre and Willie) admitted that Francis 
 
 Feb. 29. Hudson executed the bond under which the plaintiff claimed, but 
 — stated that he, Hudson, did not thereby, nor had he any right 
 
 to, mortgage with plaintiff the stock, debts &c, belonging to 
 the firm of Hudson and Joseph Viseardi, neither did plaintiff 
 advance for the use of the said firm any sums of money whatso- 
 ever, neither had Hudson any right to put plaintiff in pos- 
 session of the stock, debts &c, of the said firm. And the defen- 
 dants further pleaded that at the time when Hudson executed the 
 bond, he was carrying on business in Colombo with one Wesche, 
 under the firm of Hudson and Wesche, and in Kandy with one 
 Viseardi, under the firm of F. Hudson ^ Co. and that both the said 
 firms were notoriously insolvent, which the plaintiff well knew ; and 
 that Francis Hudson, intending to cheat the creditors of the said 
 firm of Hudson 4r Co., fraudulently executed the said bond without 
 any consideration, so far as the said firm of Hudson ^ Co. was 
 concerned ; and that any sums advanced under the said bond were 
 advanced for the benefit of Hudson and Wesche, and that • Hudson 
 had no right individually to mortgage the stock, debts &c, of the 
 Kandy business, of all which plaintiff had notice. And the defen- 
 dants further pleaded that Hudson and Viseardi during their 
 partnership and at the time of their insolvency were jointly entitled 
 to the goods, chattels and debts which were in the stores of, and due to, 
 F. Hudson 4" Co. Also that on the 9th March 1858, the said firm 
 of F. Hudson 4r Co. became indebted to Nicol, Cargill ^ Co. in the 
 sum of £6418, and to other persons in large sums of money and 
 became insolvents ; and that a petition was presented at the instance 
 of Nicol, Cargill ^ Co. to the District Court of Kandy for the 
 sequestration of the said estate of Hudson and Viseardi ; that on the 
 12th March 1858, Hudson ajid Viseardi were declared insolventsand 
 the Court sequestered the estate ; that under the authority of the Court, 
 the Fiscal of the-Central Province entered into possession of the goods, 
 chattels and effects aforesaid, and that subsequently the defendants 
 were duly appointed assigneesof the estate and effects of the said insol- 
 vents, and the aforesaid goods, chattels and effects of the said firm of 
 F. Hudson & Co. were by the Fiscal peaceably delivered to the 
 said Assignees on the 12th May 1858, which was the forcible 
 possession complained of by the plaintiff. Defendants prayed for 
 judgment in their_£avour. 
 
 A general replication was filed. 
 
 The District Judge held that the defendants in their capacity 
 of assignees, were lawfully in possession of the goods chattels and 
 effects of the late firm of Francis Hudson ^ Co. and non-suited plain- 
 tiff mainly on the ground that the bond upon which he sued waa 
 granted by Hudson individually for loans to be made to him. 
 
11 
 
 and not by Hudson and Viscardi trading together as Hudson ^ 1860. 
 Co, or by Hudson for bimself and as tlie attorney of Viscardi. Feb. 29. 
 
 On appeal preferred by the plaintiff, Lor em (with him Dias and 
 Dunitwille) appeared for appellant ; Bust for respondents. 
 
 The Court held as follows : — 
 
 The principal objection made to the petitioner's case and upon 
 which the judgment of the District Court dismissing it was based, 
 is that the bond, upon which he sues, was granted by Hudson in- 
 dividually for loans to be made to him, and not by Hudson and 
 Viscardi, trading together as Hudson 4" Co., or by Hudson for 
 himself and as the attorney of Viscardi. It is clear that both in 
 the body of the instrument and in the signature, Hudson is 
 personally referred to ; but though such is the case, it is equally 
 clear that the goods pledged by Hudson, as security for the debt, 
 on the faith of which credit was given him by the plaintiff, were 
 " all the stock in trade, goods, office furniture, wares and merchan- 
 " dize then being or hereafter to be in his stores in Kandy, posses- 
 " sion whereof he (Hudson) with those presents delivered to the 
 " plaintiff; and all accounts and all sums of money whatsoever, 
 " which then were or hereafter might be or become due or owing 
 " to him on account of the said Kandy business." Looking only 
 to the bond, the case presents itself as one in which a partner 
 pledges the property of the firm for his individual debt; and the 
 first question for consideration is this, Is such security operative 
 and valid as against the firm? "It would seem," says Smith in 
 his Mercantile Law, p. 41, " that the unexplained fact that a part- 
 " nership security has been received from one of the partners in 
 " discharge of a separate claim against himself is a badge of fraud, 
 " or of such palpable negligence as amounts to fraud, which it is 
 " incumbent on the party who so took the security to remove by 
 " shewing either that the partner from whom he received it acted 
 " under the authority of the rest, or at least that he himself had 
 ,'! reason to believe so." " Although this," says Story in his work 
 on Partnership, " is the general doctrine in the absence of all con- 
 " trolling circumstances, yet the presumption of any fraud or mis- 
 " application may be reliutted by the circumstances of the particu- 
 " lar case." Thus it may be shewn " that the other partners have 
 " directly or by fair implication authorized or confirmed the appli- 
 ^' cation of the partnership funds, securities, effects or credits to the 
 " very purpose; or that the partner had acquired, with the consent 
 " of his partners, an exclusive interest therein, or that, from other 
 " circumstances, the transaction was actually bona fide and unex- 
 " ceptionable, although it went to the discharge of the private debt 
 " by one partner only. For it has been very justly remarked that 
 " the application of a single partner of a joint security in discharge 
 
12 
 
 1860. " of Ms individual debt by no means necessarily establishes that it 
 
 Feb. 29. " is a fraud upon the firm, for it may not only have been expressly 
 
 " authorized by the firm, laut it may frequently result from pru- 
 
 " dential considerations and aiTangements referrable to their own 
 
 " business and interests." 
 
 It is necessary to consider ■whether there is any such autho- 
 rity or controlling circumstances in the case. 
 
 It is proved in evidence, that at the time Hudson executed the 
 bond in question, he held a powei> of attorney from Viscardi, the 
 only other partner of Viscardi ^ Co., giving him power to " make 
 " any sales, mortgages, leases, assignments of leases, exchanges or 
 " dispositions as should or might be necessary or proper of any 
 " plantations or estates, or other lands, and cattle, stock, crop, pro- 
 " duce or other property, goods and effects whatsoever to or in 
 " which the said firm of Viscardi Sf Co., or he, the said J. 
 " Viscardi individually and apart from the said firm in his own 
 " right, should or might be entitled or interested." With reference 
 to the firm of J. Viscardi ^ Co. it may be necessary here to ex- 
 plain that that was a firm which did business in Kandy up to the 
 12th November, 1857, when it was put an end to by a notice 
 which was published in the local newspapers, and which set out 
 that the business in future would be carried on by another firm 
 then established, in which Hudson and Viscardi were to be the 
 partners, and which was to be carried on under " the style and firm 
 of F. Hudson ^ Co." to and by which the said new firm all ac- 
 coimts due to and by the old firm were made payable. 
 
 It is clear that this power of attorney authorized Hudson, at 
 the time he executed the bond, to pledge all Viscardfs right to or 
 interest in the Kandy stock. But it is objected that to bind Vis- 
 cardi, Hudson ought to have executed the instrument as an attor- 
 ney, and that the power given must be held to have been revok- 
 ed by the dissolution of the firm of Viscardi Sf Co., published ia 
 the notice already referred to. 
 
 Both these objections are of a formal character. With refer- 
 ence to the first, this Court cannot, as a Court of Equity, allow an 
 error in description to have weight, if Hudson really meant, as he 
 undoubtedly did, to act for his partner and pledge his partner's 
 property, and had substantially the power to do so. Hudson him- 
 self would not be allowed to take such an objection; nor can his 
 partner do so after giving him the unlimited powers he did, and 
 enabling him to make what dispositions of the property he pleased. 
 It follows, that others acting for such partner, and in his stead and 
 interest, cannot do so either. But jDledge of personal property, 
 such as the Kandy stock, need not be made by deed, simple delivery 
 of possession would be sufficient. (Ordinance No. 7 of 1852, ol. 22.) 
 The case is not therefore one in which any deed with formal re- 
 
13 
 
 quisites is necessary. The simple question for inquiry is, had Hud- 1860. 
 son at the time he pledged Viscardi's share and interest, a right to Feb. 29. 
 do so. ? and this the power of attorney, which he held at the time, 
 must decide in the affirmative. 
 
 If, however, the power of attorney had no operation at the 
 time, the proof of authority would, under this head, be wanting. 
 But the Supreme Court cannot hold that the power was revoked by 
 the dissolution of the firm of J. Viscardi Sf Co. The power was 
 executed by Viscardi on the 10th November preparatory to his 
 leaving Ceylon. The notice in question is dated the 12th Novem- 
 ber; both these acts were obviously in furtherance of the same de- 
 sign, to clothe Hudson with free powers to act for Viscardi, both 
 as attorney and partner; and it certainly was not intended by the 
 parties that one should supersede or put an end to the other. No- 
 thing but a positive rule of law having such effect, will induce the 
 Coui't to hold, contrary to the manifest intention of the parties, 
 that the one must operate as a revocation of the other, and there is 
 no such rule. 
 
 It must be also recollected that the power given to Hudson 
 was with reference to Viscardi's property, not only as a member of 
 the firm of Viscardi Sf Co., but to all which he, Viscardi, was 
 entitled to, and interested in, individually, and apart from the said 
 firm. 
 
 For these reasons, the Supreme Court holds that the power of 
 attorney shows that Hudson had full authority to act for Viscardi 
 Sf Co., and that the presumption of fraud or misapplication by a 
 partner of partnership security is rebutted. 
 
 If Hudson was authorised to pledge his partner's property 
 under the power of attorney, it is immaterial to ent[uire how far 
 a partner can, as such, pledge firm property, and whether such 
 pledge is within or without the scope of their business, — objections 
 which can only apply where there is no express authority, and 
 where a ^partner acts under the implied authority, which attaches 
 to his character as such. 
 
 In addition to the power of attorney, a letter was proved in 
 evidence dated the 21st January, written by Hudson if Co. to 
 Mr. Brown of Kandy, whom the petitioner had appointed to take 
 charge for him of the goods in Kandy, informing him that they had 
 given plaintiff " a mortgage upon stock and debts together, with 
 fixtures of their store in Kandy," and that Mr. Merritt was in pos- 
 session of the premises for the plaintiff. Here is a proof of ratifica- 
 tion by Hudson Sf Co. of what was done by F. Hudson. And 
 even where a transaction is prima facie fraudulent against a firm, 
 which there is nothing to shew this to have been, yet it will bind 
 them, if they subsequently approve of it. (Smith p. 47 ; CoUyer 
 p. 357 ; Ex parte Bonbonus, 8 Ves. 544.) 
 
u 
 
 1860. Having considered the evidence in support of the assent and 
 
 Feb. 29. ratification by Hudson ^ Co. of the act of F. Hudson, it is neces- 
 
 sary further to enquire, whether or not there are other circumstances 
 
 to rebut the presumption of fraud or misapplication which the act 
 
 unexplained would give rise to. 
 
 In the ordinary case of a partner pledging -firm property, he» 
 in giving partnership security for a private debt due by him, 
 commits an act for his own exclusive gain, and to the prejudice of 
 his co-partners. But such can hardly be predicated of the state 
 and result of the transaction now in question. Hxidson and Viscardi 
 were partners of the firm of Hudson ^ Co., trading in Kandy, 
 Gampola, &c. and Hudson and Wesche at Colombo. Viscardi 
 originally purchased the Kandy business from Hudson for seven 
 thousand pounds, in payment of which he gave fourteen promis- 
 sory notes for five hundred pounds each. But two, or at most 
 three, of the notes were paid, the others were afloat at the tim^. 
 Viscardi purposed to leave the Island, when Hudson, jointly liable on 
 these notes, which had been made over to Nicol Cargill Sf Co., 
 became his partner. It is clear that Hudson was in very embar- 
 rassed circumstances. Mr. Richmond, partner of Nicol Cargill ^ 
 Co., his largest creditors, swears that he was notoriously insolvent, 
 though he does not say the same of Hudson S; Co. Assistance - 
 rendered to Hudson, therefore, enured to the benefit of the firm, 
 and it was under these circumstances that Hudson pledged the 
 credit of the firm, not for a pre-existing debt incurred by him on 
 his own separate responsibility, but for the purpose of including 
 the plaintiff thereafter to make such advances as he (Hudson) from 
 time to time would require and call for. These are patent circum- 
 stances to rebut the presumption of fraud or misapplication in the 
 partner pledging firm property, and the creditor receiving such 
 pledge. Referring to circumstances not unlike these. Lord Eldoij 
 observed in ex parte Bonbonus (S Ves. 544), " There is no doubt 
 " now, the law has taken this course : that if under the circumstances, 
 " the party taking the paper can be considered as being advertised 
 " in the nature of the transaction, that it was not intended to be a 
 " partnership proceeding as if it was for an antecedent debt, prima 
 "facie, it will not bind them ; but it will, if you show previous 
 " authority or subsequent approbation, a strong case of subsequent 
 " approbation raising an inference of previous positive authority. 
 " In many cases of partnership and difEerent private concerns, it ia 
 " frequently necessary, for the salvation of the partnership, that the 
 " private demand of one partner should be satisfied at the moment ; 
 " for the ruin of one partner would spread to the others, who would 
 " rather let him liberate himself by dealing with the firm." 
 
 It appears to the Supreme Court that, whilst the power of 
 attorney and letter shew previous assent and subseqiient approba- 
 
15 
 
 tion, all the circumstances of the case effectually rebut the pre- 1860. 
 sumption of fraud or misapplication, which would be necessary to Feb. 29. 
 render the security given by Hudson to the plaintiff inoperative as 
 against the firm of Hudson 6) Co. The bond must therefore be 
 upheld for such advances as were bona fide made under it. 
 
 What were those advances ? Going through the account filed 
 with the libel with reference to the evidence, the Supreme Court 
 considers that the items proved are the 1 , 4 ,7, 9, 12, 15, 22, 27, 28, 
 31, and 32nd, amounting in the aggregate to three thousand and 
 thirty pounds, fifteen shillings and nine pence. The 0, 6, 10, 13, 
 16, and 29 items amounting to sixty one pounds, four shillinga and 
 eight pence, represent interest. The 2, 5, 8, 11, 14, 17, 18, 19, 
 20, 21, 23, and 30, being for commissions and guarantee, do not 
 properly come under the bond and must be disallowed. The 24th 
 item represents a claim of seven hundred and fifty two pounds, 
 fourteen shillings and six pence, being a debt alleged to be due by 
 Hudson to Mr. Brown, with interest and commission superadded, and 
 which the plaintiff says he undertook to pay. The undertaking, 
 however, is contingent upon the item being allowed the plaintiff as 
 against Mr. Hudson, and it appears further that Mr. Brown has 
 proved for this very item against the Insolvent Estate. Under these 
 circumstances, this item also is disallowed. Deducting these, the 
 amount to be allowed the plaintiff would be, principal and interest, 
 three thousand and ninety two pounds and five pence. 
 
 The greater part of the items are payments due by Hudson 
 and Wesche, as appears from the face of the documents under which 
 the advances were made by plaintiff, and they have hence been 
 objected to by the defendants. But the plaintiff having been bound 
 by the bond to make such advances as Hudson called for, and 
 having obtained possession of the property pledged, to cover such 
 advances, it was not for him to see to their application, nor, when 
 Hudson called for any, could he object to make the same, on the 
 ground that it was due on one account and not on the other. 
 Besides it has already been shown that, such was the state of 
 accounts and dealings that every farthing advanced to Hudson 
 helped the firm of Hudson and Co. And the same observation 
 may be made as respects the Kandy and Colombo firms, the princi- 
 pal work done by them seeming to consist in one drawing bills 
 Tjpon and making notes in favour of the other, by discounting 
 which funds were raised. A large amount of these bills and notes 
 were constantly afloat, and Mr. Wesche swears that, on the 20th 
 January, 1858 there was a balance due by Hudson Sf Co. to 
 Hudson and Wesche of two thousand and sixty pounds, and " that 
 Mr Hudson instructed him to consider the amounts advanced by 
 plaintiff as replacement of the amount due by Hudson and Co., but 
 that he himself did not make any entry to this effect, because he 
 
IC 
 
 18C0. kept the account open until the \vhole amount was paid." On the 
 Feb. 29. 12th March, 1858, when Hudson and Co. were declared insolvents, 
 — the balance of thejr old-standing accounts with Hudson and Wesche 
 
 was one thousand nine hundred and fifty one poimds, nineteen 
 shillings and nine pence in favor of the latter. To this extent, at 
 least, the creditors of Hudson and Co. were directly benefited 
 by the advances made by plaintifi, whilst the connection between 
 the two firms with each other, and between Hudson and both the 
 firms, was such that advances made on his order, whether to him 
 or to the Colombo fii'm, indirectly at least benefited the firm in 
 ICandy, whose property was pledged. The ruin of Hudson must 
 have spi-ead, as it eventually did, to both firms, and they were 
 interested in upholding his credit. 
 
 These observations furnish also an answer to another objection, 
 made by the learned counsel for the defendants, that the trans- 
 action was in fraud of Hudson Sf Co., in respect of which it must 
 be further remembered that there is no evidence to shew that at 
 the time the securities were given Hudson Sf Co. were not solvent. 
 The contrary must be inferred from the evidence of Mr. Richmond. 
 
 The Supreme Court has all along assumed that plaintiff had 
 possession of the goods pledged to him, and this it has done not 
 only on the evidence of Mr. Brown and Martin Ambrose, who were 
 called as witnesses by the plaintiff, but on that of Mr. Gray, who 
 was called by defendants. The facts established by him that 
 Mr. Brown took stock, was always there, kept the keys of the es- 
 tablishment, and that his clerk used to open the store in the morn- 
 ings and close it in the evenings, are strongly corroborative of the 
 plaintiff's testimony on this head, and indeed sufficient in them- 
 selves to shew that Mr. Broivn had possession. Reference was made 
 at the bar to the criminal case brought against Mr. Brown, and in 
 which he was convicted. But all that the Court found in that case 
 was that Brown was not justified in forcibly expelling the Fiscal 
 who had taken possession of the store, under the orders of the 
 Coiu-t, and was ia such possession at the time the force was applied. 
 Whether il/r. Merritt, who had ostensible charge of the store at the 
 time, had such charge when the Fiscal entered and took the keys— 
 Mr. Brown says, most improperly, stole them — for the insolvents 
 or for the plaintiff, was not then enquired into and determined. 
 The evidence taken in this case shews clearly however that Merritt 
 had charge of the store under Brown, for the plaintiff. 
 
 For the reasons given above, the Supreme Court is of opinion 
 that the pledge must be upheld, to the extent of the advances already 
 ref(>rrcd to, three thousand and ninety-two pounds and five pence, 
 for wliicli plaintiff is entitled judgment. Consid'^ring, however 
 that he has claimed much more than he now recovers, and that 
 
17 
 
 under all the circumstances the assignees had fair reason to put 1860. 
 the plaintifE to the proof of his case, the costs should be divided. Feb. 29. 
 
 D. C. Kandj, \ In the matter of the goods and chattels of Juan 
 No. 314. J Appoo, deceased. 
 
 On the question whether the document propounded was a deed instruments 
 of gift or a will, the Supreme Court remanded the case for the Dis- not purport- 
 trict Court to take proof of the document as a Last Will, and to ^^S to ^^ 
 issue administration with the will annexed. It held as follows: — !!!whe™*ad^ 
 
 The true principle to be deduced from the authorities, appears mitted to 
 to be, says Williams, in his book on Executors vol.1, p. 91 (5th Edn.), probate. 
 " that if there is proof, either in the paper itself, or from clear evi- 
 " dence dehors, first, that it was the intention of the writer of the 
 " paper to convey the benefits by the instrument which would be 
 " conveyed by it if considered as a Will; secondly, that death was 
 " the event that was to give efEect to it; then whatever be its form, 
 " it may be admitted to probate, as testamentary." 
 
 The translation upon which the District Court proceeded, con- 
 tained the words " to be possessed by him henceforward for ever as 
 his parveny property," which would indicate that the disposition was 
 to take effect from the time of the execution: but " henceforward" 
 does not appear in the original. It is executed before five witnesses, 
 which is the number required for a last will; and not before a No- 
 tary and two witnesses, as is necessary in case of deeds conveying 
 lands. Its being called a hand-note or rather acquittance, and the 
 provision as respects a more perfect instrument, can make no 
 difference. It was held in Masterman v. Maberly, 2 Hag. 247, 
 that " if the paper contains a disposition of the property to 
 " be made after death, though it were meant to operate as a 
 " settlement or a deed of gift, or a bond, though such paper 
 " were not intended to be a Will, or other testamentary 
 " instrument but an instrument of a different shape ; yet, if it 
 " cannot operate in the latter, it may nevertheless operate in 
 " the former character." The document in question, not being 
 notarial, cannot operate as a deed, and the fact that it was made 
 when the deceased was in extremis — for according to the affidavit 
 of death he died on the same day that he signed the paper (22nd 
 July, 1858) — and the reference made in it to his illness, as well 
 as the fact already adverted to — that it is attested by five 
 witnesses — are all indicative of his intention, that the document was 
 to operate as a Will, and to take effect after death. 
 
18 
 
 1860. 1st March. 
 
 March. 1. 
 
 — Present : — Moegan, J. and Lawson, J. 
 
 N ' ^7 7 ?4. °' I Dona Bastiana v. Menchy Hamy. 
 
 Illegal con- The plaintifi in this case claimed £5, being money lent and 
 
 tract— Money advanced by her to tlie defendant, and interest. The defendant 
 pawn in denied the plaintiff's claim to • £5, but admitted to have borrowed 
 breach of Ord. and received only £2, on the pledge of certain articles of the va- 
 No. 17 of lue of £6: whicli amount tbe defendant was ready to pay on the 
 m^rt' w' ^ifi plS'intiffs returning the goods pledged, 
 of 1865. At the trial of the case in the Court below, tbe plaintiff on 
 
 cl. 66-]' examination stated that she lent tbe defendant £5 on her pledging 
 two gold bangles and one gold chain ; tbat she had no writing or 
 other instrument in support of her claim; that no oiEcer of the 
 Police witnessed the transaction; and that she did not shew the ar- 
 ticles pawned to any officer of the police. Hereupon the defen- 
 dant pleaded the 25th. clause of the Ordinance No. 17 of 1844 in 
 bar of the plaintiff's claim. 
 
 The learned Commissioner held as follows: — 
 
 " The plaintiff, not having ( when she lent the money ) 
 received the gold bangles and gold chain by shewing them to the 
 principal officer of her division (as she was hound to do), is by the 
 25th clause of the Ordinance No. 17 of 1844 declared guilty of 
 an offence, and is therefore, in my opinion, precluded from coming 
 into a Court of Justice and seeking its aid to enforce the perform- 
 ance of a contract which originated on her part in a transgression 
 of the law. The benefit of the public, and not the advantage of 
 the defendant, is what the Court must look to. 
 
 " 'The object of all laws is to repress vice and promote the 
 ' welfare of the state and of society, and an individual shall not 
 ' be assisted by the law in enforcing a demand originating in a 
 ' breach or violation on his part of its principles and enactments.' 
 Chitty on Contr. p. 657, 3rd ed. 
 
 " This is a contract prohibited by statute, which the Court 
 cannot uphold. The 25th clause was enacted clearly for the pre- 
 vention of frauds, perjuries, and all other attendant evils, and it is 
 for the public good that its intentions should not be allowed to be 
 thwarted. * 
 
 '" A contract is void if prohibited by a statute though the 
 ' statute only inflicts a penalty, because such a penalty implies a 
 'prohibition.' In Bartlet v. Fiwo?", Holt, C. J, observed, 'Every 
 ' contract made for or about any matter or thing which is prohi- 
 'bited and made unlawful by any statute, is a void cohtract, 
 ' though the statute itself does not mention that it shall be so, but 
 
19 
 
 ' only inflicts a penalty on the defaulter; because a penalty implies 
 ' a prohibition, though there are no. prohibitory words in the sta- 
 ' tute.' Chitty on Contr. p. 695, 3rd ed. 
 
 " Under these ciroumstancea, the Court is of opinion that the 
 plaintiff ia precluded from recovering the amount claimed. Nor 
 can it make any order in favor of the defendant who also states 
 that no officer of Police was present at the transaction, and that no 
 deed or other instrument was executed in regard thereto. 
 
 " Plaintiff is therefore hereby non-suited; each party bearing 
 her own costs." 
 
 On appeal by the plaintiff, the Supreme Court held as follows: — 
 
 The decree of the Court below is affirmed forthe reasons stated 
 by the Commissioner, which appears to the Supreme Court con- 
 clusive ; and further because it appears that it was the intention of 
 the Legislature to avoid such contracts altogether, and not in part; 
 and that to lend any other construction to the clause in question 
 would enable the pawnee to commit a fraud on the pawnor by retain- 
 ing the property pledged and recovering the money advanced there- 
 on, although the pawnee is at least as much in fault as the pawnor. 
 
 1860. 
 March. 7. 
 
 7th March. 
 Present : — ^Morgan, J. and Lawson, J. 
 
 ' >■ Fowler v. Baba Appoo. 
 setting aside the decree of the Court below, 
 
 C. E. Newera Ellia, 
 No. 2,576. 
 
 The Court, in 
 held as follows : — 
 
 The defendant would be liable to pay any damages which 
 were the natural and probable consequence of his allowing his bidl 
 to stray on another's land, but not damages, which are the remote 
 or accidental consequences of such act. Injury done to the trees 
 and in plaintiff's, estate would be a case illustrative of the former. 
 But the consequence now complained of (" the animal having 
 " buUed an English cow of the plaintiff kept for the purpose of 
 " going to Mr. Kellow's English bull, so that the cow brought 
 " forth a calf worth one pound sterling, whereas she would have 
 " brought forth a calf worth six pounds,") is one by far too remote 
 and accidental to form the subject of a claim. 
 
 Trespass — 
 cattle 
 damage 
 feasant — 
 remote dama- 
 ges. 
 
20 
 
 mS' 7. ^']^o. S^U."' } ^''^^P'"'' «* «'• ^- ^2/loo Pulle et al 
 
 Provisional This was an action on a promissory note and on a bond grant- 
 
 judgment— gj \yy (;]j^g defendants to plaintiff, who prayed for provisional judg- 
 
 allowable. ^^^^ thereon. 
 
 To the note filed of record was attached an entry by the No- 
 tary Public as follows: — 
 
 I presented the annexed promissory note to S. Myloo Pulle and S. 
 Sanmogam,, and demanded payment thereof, when they handed to me the 
 annexed slip of paper, containing their answer, which is as follows: — 
 
 " The aiTangements upon which this promissory note was given to 
 Messrs. Thompson and Adams not having been carried out as agreed, we 
 decline paying the same." 
 
 Colombo, 30th July, 1859. (Signed) { " | Myloo pSe." 
 
 On the motion for provisional jugdment being pressed, 2nd 
 plaintiff was examined and admitted that no money passed from him- 
 self or Mr. Thompson to the defendants when the note was given; 
 that the note was given in pursuance of an agreement entered into 
 between plaintiffs and some creditors of one Mr. Ponnambalam, an 
 insolvent, whereby the plaintiffs were to quash the insolvency of 
 the said Mr. Ponnambalam. The 2nd plaintiff said: " the giving 
 of the promissory note was one of the reasons for acceding to the 
 quashing of the bankruptcy and for signing the agreement. I sup- 
 pose the consideration for defendants having signed the note was 
 our signing the agreement. No other consideration was given by 
 plaintiffs. It was our intention and that of the European creditors 
 to oppose Mr. Ponnambalam obtaining his certificate. I am not 
 aware that this intention was communicated to Mr. Ponnambalam 
 or to his friends. It may have come out casually. I have no 
 doubt he and his friends suspected our intention, from our having 
 summoned the female members of his family to give evidence. I 
 believe that it was to avoid publicity which would have taken place 
 if the investigation had gone on, that his friends came forward and 
 offered 10/s. in the £, and that the agreement was entered into &c." 
 
 The District Judge held as follows: — 
 
 " Two points have been urged by the counsel for defendants 
 against the motion for provisional judgment. 
 
 (1.) That the pro. note was given in pursuance of an agree- 
 ment, a condition precedent whereof has not been fulfiled, viz: the 
 annulling of Mr. Ponnambalam's insolvency, the same not having 
 been legally effected, according to the provisions of the 140th and 
 141st sections of the Ord. No. 7 of 1853. 
 
 (2.) That the note was given for forbearing to oppose the 
 insolvent's certificate, and reference was made to cl. 128 of the 
 Ordinance. 
 
21 
 
 " WLth regard to the 1st objection, it does not appear from the 1860. 
 2nd plaintiff's examination that the proposed arrangement was not Marcli. 7. 
 carried out; and further on reference to the insolvency case — 
 
 No. 129, the Court finds that in accordance with a motion to that 
 effect, the adjudication of insolvency was annulled. As to whe- 
 ther that order was legally made, its efficacy, and moreover how 
 far this Court can regard it as void, are questions which it would 
 be premature to decide on a motion of this nature, the plaintiffs 
 holding on the face of it a valid liquid instrument whereon the 
 provision is claimed. 
 
 " As respects the second objection, I also think that it is not 
 one, for the reason last stated, that should be allowed to defeat the 
 present application. The plaintiff does not acknowledge that the 
 note was given in consideration of forbearance in opposing Mr. Pon- 
 nambalam's certificate. And besides it may admit of considerable 
 questibn if the 128th clause can be held to apply to a composition 
 agreed to by the assignees and nearly all the creditors, with the 
 cognizance of the ourt." 
 
 The District Judge accordingly condemned the defendants to 
 deposit in Court the amount claimed. 
 
 On appeal, Lorenz for appellants cited Voet xlii. i. § 10 and 
 15, and Jones v. Barhley, 2 Dougl. 864. Rust for respondents. 
 The Supreme Court held as follows: — 
 
 It appears from the plaintiff's own admission that no money 
 passed at the time the note was given by the defendants, and that 
 the same was given in pursuance of a certain arrangement to 
 supersede and annul the bankruptcy of Mr. Ponnambalam. 
 It appears further that such arrangement was not fully carried 
 out ; the order made by the District Court being on the face of it 
 contrary to the provisions of the Insolvent Ordinance. Are the 
 plaintiffs to blame for this ? Does the non-supercession of the 
 adjudication furnish sufficient ground to the defendants to avoid 
 their note ? Whose business was it to see the arrangement carried 
 out ? These are some of the questions which the admissions of the 
 plaintiffs, when examined in Court, and the records referred to, 
 raise for consideration, and they are obviously questions too 
 important to be decided in a summary application made for 
 provisional payment. Where an instrument which forms the basis 
 of an application, like the present, is one which, according to plain- 
 tiffs own shewing, is not so complete in itself as to raise a strong 
 presumption in favor of plaintiff's claim (as in the case of bonds, 
 notes, bills for money lent on goods sold, &c.), but is connected 
 with others, and calling for such further enquiry as the instrument 
 now before the Court does, namptissement should not be granted 
 upon it. 
 
22 
 
 i860. 
 April. 11. 
 
 Possessory 
 
 action — its 
 
 nature — 
 
 Practice. 
 
 11th April. 
 Present: — Morgan, J. and Lawson, J. 
 
 E. Balapiti Modere, 
 No. 9,163. 
 
 Umma Haminey v. Edery Baademeya. 
 
 Per Curiam: — Set aside and the case remanded for the plaintiff 
 to amend his plaint by pleading title to the property, when the Court 
 will proceed to try and determine the same. Costs divided. 
 
 The suit, as originally brought, was a proprietory one; but in 
 amending the plaint, the clerk entirely altered the nature of the 
 claim and made it only a possessory one. The possessory action 
 of the Roman Dutch Law lies only where a party who has had 
 possession for more than a year and a day is dispossessed by force; 
 it is a summary remedy, and judgment given in it in no way de- 
 termines the title to the land, but leaves that an open question. 
 It is clear from the original plaint and the evidence that this is not 
 the form of action which the plaintiff intended to bring, or the 
 nature of the judgment which he sought to recover; and it will 
 save the parties the expense and delay which ulterior proceedings 
 may give rise to, were the plaint amended at once, as is now di- 
 rected. 
 
 Where the plaint filed by parties are in any way defective or 
 unintelligible, it will be better that the Commissioner should 
 examine such parties under the 13th section ofthe Eules attached 
 to Ordinance No. 9 of 1859, and thus clear up and ascertain the 
 issues to be tried, than that the clerk should be directed to enter 
 an amended plaint. 
 
 Intervention 
 — Practice. 
 
 12th April. 
 Present: — MoEaAN, J. and Lawson, J. 
 
 No 30819 f ^'^^'^^^^^^^^9^^ Appoohamy v. Punchy Appoohamy. 
 
 Upon a motion to intervene, the District Judge allowed the 
 intervention though it was adverse to both parties, on the ground 
 that he had no power to reject it in view of cl. 32, sec. 1 (civil 
 jurisdictiction) of the R. and O. 
 
 On appeal by the plaintiff, the Supreme Court set aside the 
 order and remanded the case to the District Court for the interve- 
 nient to file his petition of intervention, shewing the interest in the 
 Bubjeot matter of the suit. It held, — 
 
 The Roman Dutch Law requires a party seeking to intervene 
 
23 
 
 to file his articles of intervention, shewing summarily his interest 1860. 
 to justify such intervention. GailFs Obs. lib. 1. Obs. 69 et seq. -^pril- 20. 
 The practice in Colombo accordine;ly is, for the intervenient 
 to commence with his petition of intervention, which sets 
 out his interest, and ends with a prayer asking for leave to in- 
 tervene, and that his petition may be accepted and parties noticed 
 thereon. 
 
 Here there is no petition or even a motion shewing the interest 
 of the applicant and the Supreme Court is not in a position to as- 
 certain whether he seeks to intervene in support of either of the 
 litigant parties, or adverse to both, and if the latter, whether the 
 case is one admissible under the Roman Dutch Law, — and the rules 
 of Court must be considered and observed in reference to that law 
 of intervention. When the intervenient in this case files his peti- 
 tion and the District Court gives or refuses him leave to intervene, 
 either party may appeal against the order, when the Supreme 
 Court will be in a position, which it is not now, of giving its views 
 thereon. 
 
 20th April. 
 Present: — Moegan, J. and Lawson, J. 
 N '«?9 a.n9 1 Hammaddoo v. Sultan Saiho. 
 
 This was an appeal against an order of the District Judge _ Award- 
 discharging a rule nisi on the defendant to shew cause why an irregiilarity of 
 award given in his favour should not be set aside on the ground of ^"^aut of 
 certain irregularities. reasonable 
 
 The following judgment of the Supreme Court sets out the ti^g°of°arb^' 
 facts of the case: — trator. 
 
 Although an award " when duly made" should be held final 
 as respects the District Court (Mai-shall p. 37), yet it is competent 
 for that Court to enquire and ascertain whether it has been duly 
 made or not. It is open to parties to move to set aside an award 
 for irregularity of jsroceeding, or other siifiicient cause ; and such 
 motions hav« ere this been made in the District Court and sanc- 
 tioned by the Supreme Court. 
 
 Several grounds of irregularity have been urged against the 
 present award; but the one which has had weight with the Supreme 
 Court, is the want of reasonable notice to the plaintifE of the sitting 
 of the arbitrator on the 31st December. 
 
 It appears that notice was served on the plaintiff on the 29th 
 December at Matale, to appear with his witnesses before the arbi- 
 
24 
 
 1860. trator at Kandy on the 31st of that month; that the plaintiff wrote 
 April. 27. to the arbitrator to explain that he could not attend on that day, 
 not being able to get his witnesses up, and being himself obliged to 
 be present at Matale then, as some property of his was advertized 
 to be sold under execution; that on that day the defendant and his 
 witnesses were present, and the plaintiff and his witnesses absent; 
 that the defendant's counsel objecting to a postponement, the arbi- 
 trator proceeded to hear the defendant's witnesses ; and that after 
 doing so, he, on the 6th January, made his award in favor of the 
 defendant. 
 
 It appears to the Supreme Court that " though the precise 
 time at which the arbitrator should summon the parties is discre- 
 tionary, yet that time should be reasonable," ( 1 Stephen p. 191; 
 Featkerstone v. Cooper^ 9 Ves. 67.); that notice on the 29th served 
 on a person at Matale to appear with his witnesses at Kandy on 
 the 31st, was not reasonable; and that therefore the arbitrator 
 should not have proceeded, on the last named day, to hear the case 
 ex parte. Under these circumstances, the award founded upon the 
 ex parte hearing cannot be upheld. 
 
 C. E. Jaffna, 1 
 No. 25,491 i 
 
 Valliamme v. Valen. 
 
 JiirTsdiction— "^^^ Supreme Court set aside the judgment of the Court 
 
 mony. below and absolved the defendant from the instance in these 
 
 terms: — 
 
 The Supreme Court considers that the Court of Bequests has 
 no jurisdiction in cases of alimony. A court which can only 
 award ten pounds in the whole, cannot decree A to pay to B ten 
 shillings and six pence every month for life. The plaintiff should 
 sue her husband in the District Court for separation on the ground 
 of malicious desertion : that Court will be in a position to give her 
 alimony, pendente lite, and separation from bed, board, cohabita- 
 tion and goods. 
 
 S7th, April 
 Present: — Morgan, J. and Lawson, J. 
 • P. C. Matara, J „., _ 
 
 No. 27,115 / ^'^"^ '■• ^"""^y- 
 
 •gambling— Per Curiam:— ASam&A as respects the first accused, but set 
 
 1841 1 'iq° ^^^^^ ^^ respects the rest, who are acquitted. 
 
 ''use" ^* ^^ '^^^^ ^°^ ^^^ evidence that the first accused is the 
 
 person, "who keeps the place, and that he insists upon get- 
 
25 
 
 ting a share from the winner as soon as one wins, and that he has I860, 
 an interest in the garden. The others only come and gamble ■*• ^^y- 
 there." — 
 
 Such being the case, it appears to the Supreme Court that 
 the first accused is the only one who comes under the description 
 of "person who keep, hold occupy or use any house or other 
 place, open or enclosed, for the purpose of common or promiscuous 
 gambling." The case of keepers of taverns, shops, places for the retail 
 of spirits or other liquors, houses and other places, open or enclosed, is 
 provided for in the 16th, 17th and 19th clauses as contradistinguish- 
 ed from the case of persons who game, play or bet in the above- 
 mentioned places, which is provided for in the 4th clause, 4th 
 section. The single word " use " may at first seem to cover the 
 case of any person who resorts to the place for gambling ; but it 
 is clear from the explanation afforded in the 20th clause, that the 
 word refers, not to a person who resorts to a place to gamble, but 
 to the master or manager of the place, as distinct from the owner, 
 keeper or occupier thereof. 
 
 4th May. 
 Present : — Morgan, J. and Lawson, J. 
 
 N 10 ^^fi ' 1 Sedowa v. Casedew et al. 
 
 In this case the Supreme Court held as follows: — 
 
 In all cases where a party in default is allowed fresh time to Practice — 
 plead, if it is intended that in default of such pleading being filed Judgment by 
 within the time allowed by the Court, judgment should be entered "etault, 
 for the opposite party without further notice to the party in default, 
 such condition should be expressly set out in the order allowing 
 time to plead, in order that due notice may be given of the conse- 
 quence of any further neglect. 
 
 7th May. 
 Present; — Morgan, J. and Lawson J. 
 
 S' ^o7^niT^°' I- Wilson V. The Ceylon Bailway Company. 
 
 This action was brought by the Master of the barque " "Wood Action for 
 
26 
 
 1860. bine" against the Ceylon Railway Company for the recovery of £ 50, 
 May, 7. mainly for demurrage or detention of his vessel during the un- 
 loading of the goods. Under the bill of lading, the defendants, as 
 imDUednro^ consignees, had undertaken to clear the goods at the ship's hold " at 
 miee— Evi- their own risk and expense, the Captain to give the use of the 
 denoe — derrick and cordage on board, and the use of the crew in assisting 
 unstamped to discharge it, as per agreement, 11th April, 1859." 
 ^"*ment^^*' ^^® defendants pleaded that they never agreed to discharge the 
 
 vessel withiil any specified time, and if there was any detention, it 
 was not attributable to any negligence on the part of the defen- 
 dants, but to the plaintiff's own carelessness in not rendering the 
 assistance he had stipulated to give to the defendants. 
 
 The District Judge found on the merits for plaintiff, and held 
 he was entitled to four days demurrage @ £ 5 per day, but the 
 District Judge also held that plaintiff, as master, could not sue for 
 demurrage on an implied promise, the written agreement of the 
 11th April 1859, referred to in the bill of lading, not having been 
 produced. Plaintiff was accordingly nonsuited. 
 
 On appeal, Bust for appellant, Lorenz for respondent. 
 
 The Court held as follows:— 
 
 This is an action brought by the master of a ship against the 
 consignees of certain machinery for breach of a contract to discharge 
 the said machinery within reasonable time after the arrival of the 
 ship in Colombo. 
 
 The master signed bills of lading in the usual form but 
 containing a marginal note in the following terms — " The machi- 
 " nery to be taken out of the ship at consignees' risk and expense; 
 " the Captain to give the use of the derrick and cordage on board 
 " and the use of his crew in assisting to discharge it, as per 
 "agreement 11th April 1859." The goods were received on 
 board by the agent of defendants who proceeded to discharge 
 them, and it is argued for the plaintiff that there is an implied con- 
 tract on the part of the defendants to unload wdth due diligence 
 arising from their acceptance of the goods under the terms of the 
 bill of lading — ^but it appears from the abpve extract that there 
 was a written agreement which has not been produced nor its non- 
 j.roduction accounted for. 
 
 There being therefore a written agreement between the parties, 
 and in the absence of the written agreement, the Supreme Court 
 has no evidence of any contract whatever. It has been stated by 
 the counsel for the plaintiff that the agreement was not produced 
 because it was unstamped, but this will not excuse the non-produc- 
 tion. See rwraer i>. Power 7 B & C 625, Buxton v. Cornish 12 
 M & W 426. 
 
 The written agreement may for anything that appears to the 
 
27 
 
 contrary contain explicit directions as to the time to be allowed for 
 unloading and the amount to be paid for demurrage. 
 
 Upon this ground the judgment of the Court below is affirmed, 
 without entering into the consideration of the other questions raised 
 at the trial. 
 
 1860. 
 
 May, 18. 
 
 18th May. 
 Present : — Morgan, J. and Lawson, J. 
 
 N 14.015 I Keri Menica, V. Palleme Appoohamy. 
 
 Per Curiam: — Affirmed. The sum which the defendant was Mesne profits 
 decreed to pay in this case was two pounds, being the mesne profits ^?-^ o°^*n 
 received by him, and costs, which amount to two pounds, six ^^^1 aeainet 
 
 shillings and three pence. It appears to the Supreme Court that person Ord. 
 
 these items, fall within the description of debt contracted under No. 7 of 1853, 
 the 164th. clause of the Ordinance No. 7 of 1853, which disallows cI.164. 
 arrests against the person for sums under ten pounds. The mesne 
 profits awarded by the Court are so much money had and received 
 by the defendant from the produce of land which was found to 
 belong to the plaintiff, and as to costs, it is clear from the provision 
 at the end of the clause that the ten pounds was to be recovered 
 exclusive of interest " and of costs," and that the Legislature meant 
 to include costs under the general description of " debt contracted." 
 
 D. C. Kandy, J 
 No. 26,799. / 
 
 Punchi Menika v. Kiri Banda. 
 
 The defendant in this case was fined, under cl. 29, sec. 1 Civ. 
 Juris. R. & O., for deceiving the Court. 
 
 On appeal, the Supreme Court held as follows: — 
 Although the 19th clause of section 2 of the Rules and Orders, 
 Criminal Jurisdiction, is repealed, yet it is essentia] in view of the 
 principles of justice, that a man should be heard before he is con- 
 demned. When the Judge found that the defendant had made a 
 false statement, he ought to have distinctly charged him with it, 
 pointing out to him in what the falsity consisted. This mode of 
 proceeding, necessary in every case, was particularly necessary in 
 the present instance, where the statement for which the defendant 
 was punished was made five years before he was punished for it, 
 and before another Judge. The defendant was not, however, 
 charged with having made a false statement, and was not given 
 
 Deceiving the 
 Court — con- 
 tempt —pro- 
 cedure. 
 
28 
 
 1860, an opportunity of explaining it or defending himself. It appears 
 
 May, 18. from tte record that the Judge, immediately after he decreed the 
 
 lands to plaintiff, proceeded to impose the fine on defendant. With 
 
 every inclination to uphold the authority of the District Court, the 
 
 Supreme Court cannot sanction the present proceedings. 
 
 N 9ft ftft?' I Ahamedo Bawa v. Forbei. 
 
 Quartering of pgj. Curiam: — Set aside and defendant (the Government 
 
 Force— Sta- -^S^nt of Galle) decreed to pay to plaintiff the sum of 4« lO^d. 
 
 tutee charging with costs. 
 
 the^raVeot^ The Proclamation of 7th August, 1848, in establishing the 
 
 "Voluntary l™its of the Police Force for the town of Galle, sets out that they 
 payment to shall include "aU. that space of ground which lies to the south of, 
 
 public officer. " and adjoins to, the cross road leading from the main road to Co- 
 " lombo over the Naaoonda Bridge along the side of the canal 
 " through the village of Kandawatte across the Wakwalla Road 
 " through Poconswatte and Gallindewatte, and from thence to its, 
 " junction with the Matara Road." The house of the plaintiff, 
 though it adjoins the cross road above referred to, lies to the north 
 thereof; it does not therefore come within the limits which only 
 take in all the property to the south of the road. It has been 
 contended that as the house adjoins the road, and is equally pro- 
 tected by the Police, it falls within the terms of the Proclamation. ■ 
 It is clear, however, that the words cover only the houses on the 
 south of the road, and " it is a well settled rule of law that every 
 " charge upon the subject must be imposed by clear and unambi- 
 " guous language," and even where there is an ambiguity found, 
 the construction must be in favor of the public ; because where the 
 public are to be charged with a burden, the intention of the legis- 
 lature to impose that burden must be explicitly and distinctly 
 shown. Dwarris on Statutes, p. 749. 
 
 The second point urged by the Crown was that the money 
 having been voluntarily paid could not be recovered back. Money 
 voluntarily paid by a party who is under no mistake cannot ordi- 
 narily be recovered back; but there is a distinction between the 
 case of money paid upon a claim made by a public officer who has 
 the power of summarily enforcing his claim without reference to 
 the ordinary legal remedies, and money paid under a claim by a 
 private individual who has no power of enforcing it except by 
 adopting those remedies. In the former case, it is obviously con- 
 tra osquum et bonum, that the public officer should retain what he 
 has thus acquired, by taking au undue advantage of his situation; 
 
29 
 
 in the latter case, the claimant may have been impressed with a fair 1860. 
 belief of his own right, and, (if the party making the payment was May. 30. 
 not deceived,) then his retainer of the money, when paid, is no 
 more contra cequum than his claim of it on the first instance. See 
 notes to Smith's Leading Cases, Marriott v. Hampton, vol. 2 p. 
 339. (Ed. 1856.) 
 
 ' v Baban v. Abeyewardene. 
 
 D. C. Galle, 
 No. 18, 838 
 
 Per Curiam : — A Contract by which a renter sells to a person Contract to 
 the riffht to retail arrack in any tavern is not one which comes within ^^*^'l arrack 
 theOrdinanceNo. 7 of 1840 cl. 2. Such a contract conveys no m- land— Ord 
 terest in land. The fact that the retailer is bound by the Arrack Or- No. 7 of 1840. 
 dinance to retail spirits within certain territorial limits only, makes cl. 2. 
 no difference : his interest in the locality in which the tavern is held 
 must be, and is in fact, derived from a contract distinct from that 
 which he enters into with the renter. It is not necessary, nor is 
 it always the case, that the renter is the owner of the premises . 
 
 SOth May. 
 Present: — Lawson, J. and Morgan, J. 
 
 AT iq 7'iS ' ( Senewiratne v. Jayewardane. 
 
 On the 8th February, defendant moved for and obtained, on Postpone- 
 payment of costs, a postponement of the trial of this case which ment of case 
 had been fixed for the 19th of the same month. The costs of the —expenses of 
 postponement, as taxed by the Secretary, included an item of £ 37, 
 being batta and expenses of 15 witnesses. This item was objected 
 to on behalf of defendant, on the ground that plaintiff and his 
 proctor had timely notice of the postponement, and that several 
 of plaintiff's witnesses also had been noticed not to attend court on 
 the '21st February. 
 
 The District Judge allowed the taxation, " as the witnesses 
 refused to attend in pursuance of the subpoenas." 
 
 Defendant appealed. Rust and Lorenz for appellant, Dias 
 for respondent. 
 
 The Supreme Court set aside the order of the Court below and 
 disallowed the item objected to, so far as it included the charges of 
 the witnesses who received notice of the postponement of the trial; 
 and the Court held: — 
 
30 
 
 1860. 
 May. 30. 
 
 The appellant would be bound to pay all charges fairly and 
 honestly incurred by the plaintifE in consequence of the postpone- 
 ment. But the expenses of witnesses, whose attendance could have 
 been prevented do not fall under this class. 
 
 It was contended in appeal that the motion for postponement 
 should not have been made without notice to the plaintiff, and that 
 the notices of the postponement should have been sent through the 
 Court. Such a course would certainly have been better, judging 
 from the result. But the motion for the postponement having been 
 granted, and the Proctor for plaintiff having received due notice 
 thereof, he was bound to apprise his client of such postponement, 
 and the Court must presume that he did his duty. No steps hav- 
 ing been taken to set that order aside, the plaintiff must have 
 known that the trial would not come on, and was bound therefore 
 to see that all unnecessary expenses were avoided. The witnesses 
 had written notices served upon them at the instance of the defen- 
 dant, that the trial would not come on on the 21st. It is clear 
 from Mr. Navaratne's letter that the plaintiff wished him to come 
 to Colombo in spite of the notice served upon Mr. Navaratne 
 that the case was postponded. It does not appear whether he in- 
 structed his other witnesses also to do so, but seeing that notices of 
 the postponement were served upon them on the 11th, at or near 
 Chilaw, of which place the plaintiff is the Modliar, the Supreme 
 Court believes that he might with ease have prevented his wit- 
 nesses from attending, and that he was bound to do so. The 
 expenses therefore of their attendance was unnecessarily and 
 improperly incurred, and to allow such expenses would be to sanc- 
 tion a line of proceeding in the District Court, which this Court is 
 most anxious to discountenance and put an end to. 
 
 It will be open to the witnesses, all excepting Mr. Crespen, to 
 apply to have the bills taxed as against the plaintiff. The Sup- 
 reme Court excepts Mr. Crespyn, the Secretary of the Chilaw 
 Court, who from his position must have known, when he received 
 Mr. Maartensz's notice that the case was not coming on, and who 
 might easily have ascertained the fact had he doubted it by ^vriting 
 to the Secretary at Colombo. If under these circumstances he 
 chose to leave his duties and come to Colombo, he must personally 
 be3,r the expenses of his visit. 
 
 D. C, 
 
 Colombo, 
 No. 26952. 
 
 > Sdbapadia Pulle v. Pitche Neyna. 
 
 Appeal — 
 interest of 
 appellant — 
 
 • Writ of 
 
 This was an action by the consignee of certain goods against 
 the owner of two vessels, called the Royal Victoria and the Karti 
 Keyan, and their respective masters. 
 
31 
 
 The plaintiff averred that the first defendant, as lyndal, and 1860. 
 the 2nd defendant, as owner, of the Royal Victoria, received on May. 30. 
 board of her a certain quantity of rice, which they undertook safely "7" 
 
 and securely to convey from the port of Tranquebar and to deliver _i,Tactice 
 
 the same to the plaintiff at Colombo ; that they agreed that they r. & o., 
 would not delay the said vessel or tranship the said goods from the cl 15 sec i. 
 said brig, the Royal Victoria, to any other vessel; that in breach of 
 this agreement, the 1st and 2nd defendants, without proceeding 
 direct to the port of Colombo, sailed to other ports and delayed the 
 goods on board of the said vessel, and, afterwards, unknown to the 
 plaintiff, unloaded the said goods from the said brig and shipped 
 the same on board of the vessel called the Karte Keyan, also the 
 property of the second defendant, of which the 3rd defendant was 
 the tyndal ; that the said brig Karti Keyan arrived at Colombo, 
 but the 3rd defendant, though knowing the goods to belong to 
 plaintiff and though requested by plaintiff to deliver the said goods, 
 refused to do so, to plaintiff's damage of £68. 
 
 Plaintiff prayed for the value of the rice shipped and the 
 damage sustained. 
 
 Simultaneously with the filing of the libel, plaintiff moved 
 for and obtained a sequestration of the vessel Karti Keyan (then 
 riding at anchor at the harbour of Colombo) and of the rice referred 
 to in the libel. 
 
 The 3rd defendant duly filed answer but the 1st and 2nd 
 defendant did not, being reported not to be found in the District. 
 
 Thereupon the plaintiff moved for a writ of sequestration 
 against the property of the 1st and 2nd defendants, in terms of 
 cl. 15 of E. & O. sec. 1. The District Judge on the 3rd of April 
 allowed the sequestration. 
 
 The 3rd defendant appealed against this order, Rvst appeared 
 for him, and Dias for plaintiff and respondents. 
 
 The Supreme Court held as follows: — 
 
 A preliminary objection was made by the plaintiff to the 
 right of the 8rd defendant to appeal against an order affecting the 
 1st and 2nd defendants only. But the Supreme Court considers 
 that the defendant being a party to the suit, and being further as 
 tyndal of the vessel bound to maintain the interests of the owner 
 thereof, it is open to him to appeal and to appear in this 
 Court in support of his appeal. 
 
 His counsel has urged two objections to the order of the 
 District Court: 1st that a second sequestration should not have 
 been allowed, and 2nd that the District Court has no jurisdiction 
 as respects the first amd second defendants. 
 
 The plaintiff applied for and obtained a writ of sequestra- 
 tion, simultaneously with the filing of his libel, and in pursuance 
 thereof, he seized the rice, which he claimed as his, and the vessel 
 
S2 
 
 1860. to cover damages, to the amomit of ninety pounds. This, in the 
 June. 1. opinion of the Supreme Court, is all the security to which the 
 plaintifE is entitled in this action. Having obtained such security, 
 he applied for another sequestration under the 15th clause of the 
 Rules and Orders sec. 1, against the property of the first and 
 second defendants, they being reported not to be found within the 
 District, which the Couit allowed. This is the sequestration now 
 complained against. It appears to the Supreme Court that a writ 
 of sequestration having been once allowed against all the 
 defendants, and the plaintiff having obtained thereunder all the 
 security he was entitled to in this case, a second writ should not 
 have issued. The rules provide for the ordinary case where a 
 party commences by summons and enables him to arrest the 
 property of a defendant, who is out of the jurisdiction of the 
 Court. But the ordinary proceeding having been departed from, 
 and a sequestration issued in the first instance, the party has all 
 the protection that he needs, and cannot be allowed to harass his 
 opponent by a double sequestration. To enable the plaintiff to 
 proceed against the second and third defendants (there being of 
 course no other objection to his doing so,) the first sequestration 
 will answer all the purposes of the Rules. 
 
 This view of the case renders it unnecessary that this Court 
 should consider the second objection urged by the learned counsel 
 as to the want of jurisdiction. 
 
 1st June- 
 Present '. — Sterling, A. C. J., and Morgan, J. 
 
 D. C. Galle \ In the matter of Lebbe Marcar, a minor. 
 
 No. 1295 j {Lebbe Marcar v. Abdul Cader) 
 
 ward?^" ^P** Per Curiam, : Set aside and the case remanded to the Court 
 
 belonging to ^^^"'^ *o call upon the guardian to deposit in court the sum of 
 the ward, money belonging to the minor, or to give sufficient security there- 
 how to be for and also to deposit the transfer of the landed property belong- 
 dealt with, ijjg to such minor. 
 
 The Supreme Court observes with regret the loose nature of 
 the proceedings adopted in this case, and the want of due attention 
 to the interests of the minors, which interests it is the first duty of 
 the Court, as the proper guardian of all minors, to protect and up- 
 hold. 
 
 The guardian should not have been allowed to receive so 
 large a sum of money, without giving security of immoveable 
 property. The correct course is doubtless to insist upon all 
 
3S 
 
 monies being paid to the Loan Board, whicli has succeeded to the 1860. 
 functions of the Weiskamer ; hut where the sum of money is small, June. 1. 
 and the interest derivable from the Loan Board insufficient for the ' 
 
 maintenance of the minor, the Courts may, in extreme cases, allow 
 money to remain with the guardian, always taking however from 
 that guardian undoubted security, which in this country should be 
 nothing less than the security of immoveable property. Personal 
 security seems only to have been taken in the present instance, and 
 the securities have not even gone through the ordinary form of 
 swearing to their worth. The certificates of the Head Moorman 
 may be good as auxiliary evidence to satisfy the Judge, but is in- 
 sufficient in itself without the other cautions which the law 
 requires. 
 
 So many instances have come to the notice of the Supreme 
 Court of the manner in which the interests of minors are sacrificed 
 in this country, that it gladly takes advantage of the opportunity 
 afforded by this case, to call the earnest attention of the District 
 Court to the necessity of seeing that, in all cases where guardians 
 have the money of minors, such money should be brought into 
 Court to be deposited into the Loan Board, or real security taken 
 therefor as already pointed out. The direction given in the con- 
 cluding paragraph of the 4th clause of section 4 of the Rules and 
 Orders, if complied with, will enable the Court to see in what cases 
 it should interfere in requiring proper accounts and securities. 
 
 ivr 977fin I Sangerapulle v. Ramen. 
 
 The Supreme Court held as follows : — 
 
 This case is remanded for further evidence, as it does not 
 appear whether the act was found to be malicious, nor very clearly 
 whether the embankment was on defendant's own land. The 
 annexed cases will guide the Magistrate as to the law ruling the 
 cases, and afford directions in considering whether the case is not 
 of a civil nature. 
 
 2 EoUe's Abridgement, Trespass, (I) par. 1. 
 
 But semble that a man who has land next adjoining my land 
 cannot dig his land so near mine, that my land shall go into his 
 pit ; and therefore if the action had been brought for that, it 
 would lie. 
 
 Lord Tenterden's judgment in Wyatt v. Harrison, 3 B. 
 and Ad. 876,— 
 
 It may be true that if my land adjoins that of another, 
 and I have not by building increased the weight of my soil, 
 and my neighbour digs in hia land so as to occasion mine 
 
 Trespaai 
 
34 
 
 1860. to fall in, he may be liable to an action. But if I bave 
 June 8. that be is to be deprived of the right of digging his own 
 laid an additional weight upon my land, it does oot follow 
 ground, because mine wiU become incapable of supporting the 
 artificial weight which I have laid upon it. And this is consistent 
 ■snth 2 Rolle's Abridgement, Trespass, (I) par. 1. 
 
 Fishery — 
 
 maadel — 
 
 cuatom. 
 
 5th June. 
 
 Present: — Steeling, A. C. J. and Morgan, J. 
 
 C. R. Galle 
 No. 16645 
 
 ;} 
 
 Gnruway v. Bastian 
 
 The Supreme Court set aside the decree of the Court below 
 and entered up judgment for the plaintiff for the sum of £ 3 with 
 costs, in these terms : — 
 
 It is clear from the evidence that a person going out in a 
 small canoe to fish is entitled to continue that fishiag until the 
 maadel is being brought ashore. It is necessary for him to move 
 off only to permit the maadel to proceed to shore. Such a custom 
 is reasonable inasmuch as it secures to both people fishing in canoes 
 and those engaged fishing with maadels, the benefit of their labours, 
 and does not permit the one to interfere with the other more than 
 is absolutely and indispensably necessary. 
 
 According to the evidence, the plaintiff had the px-e-occupancy, 
 and the defendant coming with his maadel ordered him away from 
 the place, and by a demonstration of force procured his (the 
 plaintiffs') compliance with that order. This defendant did, not 
 when the viaadel was being brought ashore, but immediately after 
 he first threw in the maadel. The plaintiff lost therefore the 
 benefit of fishing on that day to which by pre-occupancy, and by 
 the operation of the custom already referred to, he was clearly 
 entitled. 
 
 Payment 
 
 under 
 protest — 
 peculiar 
 relation. 
 
 r resent: 
 
 C. R. Kalutara 
 No. 12546. 
 
 itara 1 
 6. I 
 
 8th June. 
 -Steeling, A. C. J. and Morgan, J. 
 Fernando v. Manzoni. 
 
 The Court, in afiirming the judgment appealed against, 
 held as follows : — 
 
 It was contended in appeal that the party paying the money, 
 having been under no mistake in fact or law, he must be held to 
 
35 
 
 have voluntarily paid the same and cannot be allowed to recover it 1860 
 
 back. . But the Supreme Court cannot lose sight of the peculiar June, 11. 
 
 relation which existed between the parties, which enabled the one, 
 
 a priest, to take advantage of the confidence which that relation 
 
 inspired, and, by undue influence, to obtain money from the other, 
 
 a member of his congregation. A Court of Equity is ever ready to 
 
 afford relief under those circumstances. The money paid by the 
 
 plaintiff was not money which could be legally demanded from him 
 
 or his brother-in-law ; but in a moment of trial and distress, he 
 
 was worked upon by a threat of having his sister buried without 
 
 the cross and banner, and the perfonnance of burial service, (he 
 
 having been taught to regard a burial without them as a disgrace) 
 
 and thus made to pay the money. He did so under protest and 
 
 must be allowed to recover it back. 
 
 11th June. 
 Present: — Steeling, A. C. J., and Morgan. J. 
 
 Plaintiffs' claim was set aside in these terms by the Supreme Action for 
 
 Court : tortious legal 
 
 proceedings , 
 
 The plaintiffs, as executors of Bamaya, complain that the — want of 
 defendants claimed a certain land, which was seized in execution malioe— 
 to satisfy a judgment obtained by certain parties against the Estate ^anrnum 
 of Bamaya, and brought an action to substantiate this claim, but jZr^i^Qaiis, 
 which action was dismissed ; that owing to such claim and action, 
 and the delay which they gave rise to in satisfying the debt due 
 by the estate, the plaintiffs, as executors aforesaid, sustained 
 damages to the amount of £600, which they seek to recover from 
 the defendants. The Court gave plaintiffs judgment for £300-4-6, 
 being the difference between additional interest which they had to 
 pay the holders of the vn-it against the estate, and the rents and 
 profits received from the gardens. Against which judgment the 
 defendants appeal. 
 
 It appears to the Supreme Court that no malicious or corrupt 
 motive in making claim or prosecuting the action being alleged or 
 proved against the defendant, they are not liable in damages. The 
 case is one falling within the principle of Davies v. Jenkins, 11 M. & 
 W. 745, in which it was held that though the act complained against 
 was productive of inconvenience, and even positive loss to the plain- 
 tiff yet it is damnum absque injuria, for which no action would 
 lie. The principle of the action is well stated by Mr. Broom in 
 
36 
 
 1860. his Commentaries on the Common Law p. 80. " In tte second of 
 June 11. " the three instances above put, that viz. of an action brought un- 
 " successfully, but which nevertheless causes inconvenience and 
 " anxiety of mind, nay even positive loss to a defendant, the reason 
 " why redress and pecuniary compensation for the inconvenience 
 " so caused cannot (at all events in the absence of any malicious 
 " or corrupt motive) be enforced, would seem to be, that our 
 " courts of justice are open to all suitors, who there seek to pro- 
 " secute their claims in the manner prescribed by law ; and that 
 " anything having a tendenc)*to stifle or prevent such inquiring, 
 "ea; gr. the fear of being mulcted in heavy costs beyond that oom- 
 " paratively reasonable amount ascertained by taxation, according 
 " to the scale allowed by law, would be highly inexpedient. 
 
 Inasmuch, however, as this objection was not taken in the 
 pleading, or at the trial, alid the same might have beem taken at 
 the outset by general demurrer, the costs are divided. 
 
 D. C. Galle ) j ^ , w „ . i 
 TV 17 fiOn I ""' "^ '***'"' ^^ ^^• 
 
 CoBj;B of The Court held as follows : — 
 
 Inteivenients. j^. appears to the Supreme Court that the judgment nonsuit- 
 
 ing plaintiffs with costs, subjects the plaintiffs to pay the costs of 
 the defendants, who have been brought into court by the plaintiffs, 
 and does not include the costs of the Intervenients who come into 
 Court of their own accord and are not entitled to costs, unless for 
 some good reasons moving the court, when such costs are express- 
 ly awarded to them. The orders of the 22nd November and 
 2nd December 1859 are set aside and costs therein referred are 
 hereby ordered to be paid back to the plaintiffs. Costs in appeal 
 divided. 
 
 15lli June. 
 
 Present: — Ceeasy, C. J., and Sterling J. and Morgan, J. 
 
 The hon'ble Sir Edward Shepherd Creasy Kt. produces in 
 court a warrant under the Hand and Colonial Seal of His Excellen 
 cy Sir Henry George Ward, appointing him Chief Justice of the 
 Island of Ceylou, and takes the usual oaths of office and allegiance. 
 
37 
 
 23rd June ]860. 
 
 No 26656 1 ■^^'"'^^"■y ^^ ^ ""• Oriental Bank Corporation et al. 
 
 This case will be found reported in i Lorenz pp. 31 — 90. 
 The plaintiffs had obtained judgment in the District Court of 
 Kandy on the 16th April 1855, which however was reversed in 
 appeal by the Supreme Court on the 8th of March 1856. Against 
 this judgment, dismissing the libel with costs, plaintiffs appealed to 
 Her Majesty in Council. 
 
 The following is the judgment of the Lords of the Judicial 
 Committee of the Privy Council, delivered on the 23rd June. It 
 sets out the facts of the case fully. 
 
 Present. 
 
 The Right Hon. Lord Kingsdown 
 The Right Hon. the Lord Justice Knight Bruce 
 The Right Hon. the Lord Justice Turner 
 The Right Hon. Sir John Taylor Coleridge 
 The Right Hon. Sir Lawrence Peel. 
 
 This appeal arises out of a suit instituted by the appellants in In an action 
 the District Court of Kandy, in the Island of Ceylon, against the to recover 
 Oriental Bank Corporation, George Smyttan Duff, personally and possession of 
 as executor of Alexander 5?'om;?i, deceased, James Ingleton, and ^.jjg jjig^j^^j. ^f 
 David Baird Lindsay, for the purpose, according to the prayer of Kandy, in the 
 the libel in the suit, of having it declared and decreed that an in- Island of 
 strument of the 11th of July, 1848, and a warrant of attorney of jp^/:"?' '^^ 
 that date, mentioned in the libel, were and are, so far as regards ^^^ ^whose" 
 the rights of the plaintiffs (the appellants) and the estate of Martin rights. were 
 Lindsay, deceased, wholly null and void, and insufficient to convey founded upon 
 or pass any interest in the said estate, or to create any charge or iustninients 
 incumbrance thereon; and of having it also declared and decreed ^wn^B-iitj, ^ 
 that the rights of the plaintiffs (the appella,nts), and of the estate form; -Held, 
 of Martin Lindsay, were not and are not in any way affected by (there being 
 any proceeding in a suit against the defendant, David Baird "° Particular 
 Lindsay, No. 8,997, mentioned in the libel ; and that by no pro- Djg+Iict-) that 
 ceeding had in the suit in respect of the execution against the the principles 
 effects of David Baird Lindsay, and the sale thereupon of the of English 
 Rajawelle estate, lands and premises, could the estate, lands and ^^'^ were to 
 premises be legally passed ; and that the same did not by any such p^]Jtg™f the 
 proceeding become the lawful property of the Oriental Bank parties in the 
 mentioned in the libel, or of any of the defendants ; and for the action. 
 further purpose, according to the prayer of the libel, that the The Eoman- 
 defendants might be ejected from the estate, lands and premises, Dutch law 
 and that the plaintiffs (the appellants) might be restored to their prevails 
 
38 
 
 1860. 
 June 23. 
 
 generally in 
 
 the Island of 
 
 Ceylon. 
 
 According to 
 
 the law in 
 
 force in 
 
 Ceylon, it is 
 
 essential to 
 
 the Talidity of 
 
 a deed, 
 
 affecting 
 
 immovable 
 
 property, that 
 
 the deed 
 
 should be 
 
 executed in 
 
 the Island. 
 
 (See Moore's 
 
 P. C. Rep. 
 
 Vol. 13, 
 
 p. 401.) 
 
 original rigtts, and put and placed in the possession of the estate, 
 lands and premises, on behalf of themselves and those minors and 
 others whose interests they represented, of which possession they 
 had, as alleged, been illegally and fraudulently deprived ; and 
 that the defendants might be decreed to pay to the plaintiffs (the 
 appellants), as and for mesne profits, the sum of £10,000 sterling, 
 with costs of suit. 
 
 Upon the hearing of this suit, the District Court of Randy on 
 the 16th April, 1855, made the following decree : That the de- 
 fendants be ejected from the premises in dispute; that the plaintiffs 
 (the appellants), as devisees in trust of the estate of Martin Lind- 
 say, be restored to and quieted in possession thereof ; that they 
 recover from the defendants mesne profits to the amount of 
 £6,457. 3s. \d. sterling, in the following proportions, that is to 
 say, from the defendant, George Smyttan Dnff, from the 10th of 
 February, 1849, to the 30th of April, 1850 ; and from the defen- 
 dant, George Smyttan Duff, as executor of the estate of Alexander 
 Brown, and from the defendant, James Ingleton, from the 1st of 
 May, 1850, to the 21st of May, 1853, at the rate of £1,500 per 
 annum ; and that the above defendants do pay the costs of the 
 suit, except the costs of the Oriental Bank Corporation, as against 
 whom the libel was dismissed with costs, and except the costs of 
 the defendant, David Baii'd Lindsay, which were to be borne by 
 himself. 
 
 From this decree of the District Coiu-t of Kandy, the defen- 
 dant, George Smyttan Duff, in his own right, and as executor of 
 Alexander Brown, and the defendant, James Ingleton, appealed to 
 the Supreme Coiirt of the Island of Ceylon; and that Court, by 
 Its decree, dated the 8th of March, 1856, reversed the judgment 
 of the District Court, and dismissed the libel with costs. 
 
 The appeal before us is brought by the plaintifEs (the appel- 
 lants) from this latter decree. 
 
 Martin Lindsay, the testator, to whom the estate in question 
 belonged, and who appears to have been domiciled in Scotland, by 
 his Will dated the 21st of December, 1844, after directing payment 
 of his debts and funeral and testamentary expenses, gave, devised, 
 and bequeathed his undivided share of the Eajawelle estate in the 
 Island of Ceylon, with the fixtures, implements and utensils thereto 
 belonging, which he held jointly with the heirs of the late George 
 Tumour, and all other messuages, lands, tenements, and here- 
 ditaments, and other property, whether real or personal, or mixed, 
 belonging to him in the Island of Ceylon, unto and to the use of 
 his wife, the appellant, Elsy Lindsay; his son, the respondent, 
 David Baird Lindsay; his brother the Eev. Henry Lindsay; his 
 brother-in-law, James Uadden, and his son-in-law, the appellant, 
 James Farquhar Hadden, their heirs, executors and administrators. 
 
39 
 
 upon trust, to manage and cultivate the same as they should think - Ao 
 most beneficial for the persons who should be entitled thereto ""^ 
 under his Will ; with very full and extensive powers of manage- 
 ment, and with a declaration of his most earnest desire that his 
 trustees should continue to manage the same as long as might be 
 practicable, without bringing the same to a sale ; and after declar- 
 ing trusts of the nett proceeds to be derived from the estate and 
 premises for the benefit of his wife and children, he provided that 
 any one or more of his sons who might feel disposed to take the 
 management of the estate and premises, and for that purpose to 
 reside in Ceylon, should be at liberty to do so if his trustees should 
 consider the same advantageous, but not otherwise ; and he declar- 
 ed that the son or sons so for the time being acting in the manage- 
 ment of the estate and premises should be considered as the agent- 
 or agents, and be subject to the control and direction of his trust 
 tees in the management thereof and othewise relating thereto. 
 He then gave power to his trustees to sell the estate and premises, 
 or any part thereof ; and gave, devised and bequeathed all his real 
 and personal estates, property and effects not before disposed of, 
 and not being real or heritable property in Scotland, to which he 
 should be entitled at the time of his decease, unto and to the use 
 of the same trustees, upon trust to convert the same into money, 
 and- invest the proceeds thereof, and to stand possessed of the in- 
 vested fund upon trusts for the benefit of his wife and children ; 
 and he appointed his wife, and David Baird Lindsay, Henry 
 Lindsay, James Hadden, and James Farquhar Hadden, to be his 
 executors. 
 
 In the month of April, 1846, after the date of his WiU, the 
 Testator made some arrangements with the heirs of Tumour, under 
 which he became solely entitled to the greater part of the Raja- 
 welle estate, and he mortgaged the part of the estate to which he 
 had thus become entitled, and which seems to have retained the 
 name of the Rajawelle estate, to Henry Alexander Atcheson, the 
 executor of George Twnoiir. 
 
 In the month of January, 1847, the Testator died, leaving 
 several children ; and at that time the sum of £4,000 was due 
 upon Atcheson's mortgage, and the estate, it appears, was also in 
 mortgage to other persons. 
 
 In the month of April, 1847, the appellants and James 
 Hadden (who afterwards died in the year 1848) proved the Tes- 
 tator's Will in Scotland, and in the month of July, 1847, it was 
 also proved in Ceylon by David Baird Lindsay. It is stated in 
 one of the deeds to which we shall have occasion to refer, that the 
 Will was thus proved by David Baird Lindsay under a power of 
 attorney from the other executors and trustees ; but this fact does 
 not appear to have been proved in the cause as against the respon- 
 
40 
 
 1800. dents. Henry Lindsay did not prove the Will or accept any of the 
 June 23. trusts created by it. 
 
 — Soon after the death of the Testator, the £4,000 secured by 
 
 Atcheson's mortgage was required to be paid ; and thereupon 
 David Baird Lindsay, who was the eldest son of the Testator 
 and resided in Ceylon, and had the management of the estate there, 
 came over to this country for the purpose of making arrangements 
 to provide for the payment of the mortgage, and for securing the 
 means of keeping up the cultivation of the estate. These purposes 
 were effected by an agreement which was come to about the end of 
 the year 1847, by all the trustees of the Will, including David 
 Baird Lindsay, with Mr. Canary, a merchant carrying on business 
 in London under the firm of " Shaw (J- Gaffary" and which agree- 
 ment was embodied in a deed made between the appellants and 
 David Baird Lindsay, and James Hadden of the one part, and 
 Caffary of the other part. By this deed, after reciting the Testa- 
 tor's Will, and that the trusts of the Will had been accepted 
 by the executors and executrix, except Henry Lindsay, and that 
 the Will had been proved by David Baird Lindsay under a power 
 of attorney from the acting executors and trustees, and that David 
 Baird Lindsay had, with the concurrence of the trustees, taken up- 
 on himself the management of the Rajawelle estate, it was agreed 
 that Caffary should forthwith pay £2,000, to the trustees, and 
 shoiild forthwith give David Baird Lindsay a letter of credit 
 authorizing him to draw bills at six months' sight to the extent of 
 £4,000, to be applied towards paying the mortgage-debt and 
 interest, that the trustees should procure the securities for the same to 
 be transferred to Caffary, and should, on Caffary' s request, execute 
 to him a legal mortgage for the full amount which shoidd have 
 been advanced by him, and for all further advances and supplies 
 which should have been made and furnished by him, and should 
 do all necessary acts for rendering the mortgage effectual according 
 to the laws of Ceylon, and for constituting it the first charge upon 
 the estate, and for enabling Caffary to sell the "estate in case the 
 interest should be in arrear for three months, or the principal 
 should not be paid within six months after payment should have 
 been required. That the produce of the estate should be consign- 
 ed to Caffary, he accepting David Baird Lindsay's bills against 
 the produce, so as to provide the funds for cultivating the estate. 
 That out of the moneys to arise from the sale of the produce, 
 Caffary, should reimburse himself the bills drawn against the 
 produce and keep down the interest on the mortgage, and should 
 apply the surplus, if any, in reduction of the principal, if he 
 should think proper ; and if not, then as the trustees should 
 direct ; and that if the consignments should be duly made, the 
 principal should not be called in before the 31st December, 1852, 
 
41 
 
 and the trustees should not be at liberty to pay it off before that 1860. 
 day unless Cafary should be willing to receive it. June 23. 
 
 It appears that, according to the laws of Ceylon, it is essential — 
 
 to the validity of deeds affecting immoveable property there, that 
 they should be executed in the Island (Ord. No. 7 of 1840) and this 
 deed, therefore, was not executed until the 15th of February, 1848, 
 when the several parties executed it in the Island by attorneys ap- 
 pointed for the purpose. The respondent, George Smyttan Duff, 
 who was the Manager of the Ceylon branch of the Oriental Bari, 
 was the attorney by whom it was executed on the part of Caffary. 
 
 In order to effectuate the agreement with Caffary, it was 
 necessary of course to provide for the negotiation of the bills for 
 <£4,000, to be drawn upon bin by David Baird Lindsay, and, 
 accordingly, contemporaneously with the agreement entered into 
 with Caffary, an arrangement was come to by the trustees with 
 the Oriental Bank for the Bank's discounting those bills. This 
 they agreed to do, on being guaranteed by the other executors and 
 trustees of the Testator ; and, accordingly, on the 20th of January, 
 1848, the appellants and James Hadden gave their joint and seve- 
 ral guarantee to the bond for the payment of the bills to the 
 amount of £4,000. 
 
 Upon the occasion of the power of attorney being sent by 
 Caffary to Duff, empowering him to execute the deed of the 15th 
 of February, 1848, on his behalf, Caffary, on the 24th of December, 
 1847, wrote to Duff to the effect, that when the deed was executed 
 by the attorneys of the executors, David Baird Lindsay was 
 authorized to draw upon him (^Caffary) for the £4,000, to dis- 
 charge the existing mortgage, and that the title-deeds of the estate 
 were then to be handed over to Duff, and he requested that Duff 
 would hold them on his behalf, ajid in answer to this letter, Duff, 
 on the 15th of February, 1848, wrote to Caffary that the deed had 
 been executed by the attorneys of the executors, and that David 
 Baird Lindsay had negotiated through the Bank the bills to the 
 amount of the £4,000, which was to be appropriated to the dis- 
 charge of the mortgage, but that there had not been time to pay 
 over the amount and receive the title-deeds. On the 19th of 
 February, 1848, however, he again wrote to Cafary that every- 
 thing requested in his letter of the 24th of December had been 
 complied with. In fact, immediately upon the execution of the 
 deed of the 15th of February, 18i8, David Baird Lindsay drevf 
 upon Caffary for the £4,000 ; the bills were discounted by the 
 Bank, and by means of the moneys thus raised, and of other 
 moneys raised by bills drawn by David Baird Lindsay drew upon 
 Caffary and discounted by the Bank, the mortgage was paid off, 
 and the title-deeds of the estate were handed over to Duff. 
 
 It seems that by the rules of the Ceylon branch of the Orien- 
 
42 
 
 1860. tal Bank, collateral security was required to be given with bills on 
 June 23. England, and that in consequence of David Baird Lindsay's 
 having negotiated through the Bank the bills beyond the amount 
 of £4,000, an arrangement was come to by Du§ with David 
 Baird Lindsay, who had then returned to Cei/lon, that he should 
 give a temporary mortgage of the estate, to become void on pay- 
 ment of the bills, subject to the mortgage in favour of Caffary. 
 In pursuance, as it would seem, of this arrangement, an applica- 
 tion was made to the District Court of Kandy by David Baird 
 Lindsay, on the 28th of February, 1848, for the authority of that 
 Court to mortgage the estate. This application proceeded upon 
 allegations that the testator, at the time of his decease, was indebt- 
 ed to the amount of about £12,500, of which £8,500 was secured 
 by mortgages which had become payable and had been called in, 
 and that David Baird Lindsay held full authority from the other 
 executors of the will to mortgage the estate, with a view to 
 discharge the above claims, and to meet the necessary expenses 
 attending the up-keep and cultivation of the plantations. 
 
 By an order of the Distict Court of Kandy, made upon this 
 application, and dated the same 28th of February, 1848, it was 
 ordered that David Baird Lindsay, as executor aforesaid, be au- 
 thorized and empowered to mortgage so much of the testator's 
 landed property in Ceylon as should be sufficient to raise £12,000, 
 to be appropriated towards payment of the testator's debts, and 
 the management and cultivation of the plantations ; and on the 
 13th of March, 1848, David Baird Lindsay, executed an instru- 
 ment of bond and mortgage in favour of Duff, in which he, David 
 Baird Lindsay, was described as sole executor in Ceylon of the 
 estate of Martin Lindsay, and whereby he bound himself, his heirs, 
 executors and administrators, and all his property whatsoever, to 
 Duff, in the penal sum of £4,000 ; and after reciting that he had 
 passed and intended to pass bills drawn on Caffary, and payable to 
 the Bank, to the amount of £2,000, he, as executor as aforesaid, 
 duly authorized thereto by the District Court of Kandy, by the 
 order of the 28th of February, 1848, in order to secure the due 
 payment of the bills to the amount of £2,000, mortgaged the estate 
 which was therein described as being the property of the estate of 
 the late Martin Lindsay deceased, to George Smyttan Duff, and 
 deposited the title deeds of the estate with him, but subject to a 
 mortgage for £6,000, thereafter to be made in favour of Caffary, 
 in pursuance of the articles of agreement of the 15th of February, 
 1848, and the bond was conditioned to be void, if, upon non-pay- 
 ment of the bills, the £2,000, with interest and expenses, should 
 be paid by David Baird Lindsay, his heirs, executors, or adminis- 
 trators, upon demand. 
 
 In the month of May, 1848, before the bills which had been 
 
43 
 
 had been drawn by David Baird Lindsay and negotiated through 1860. 
 the Bank had become due, Caffary, on whom the bills were drawn, June. 23. 
 stopped payment, and there was at this time due to him, on his 
 account with the testator's and trustees, a very large balance, a 
 considerable portion of which, to the amount of upwards of £2,800, 
 appears to be still remaining unpaid. 
 
 In consequence of Ga£anfs failure, it became necessary that ' 
 new arrangements should be made with reference to the payment 
 of the bills which had been drawn on Cafiary, and to the carrying 
 on the cultivation of the estate ; and David Baird Lindsay ac- 
 cordingly again came over to this country : but before leaving 
 Ceylon he was required by Duff to give further security to the 
 Bank, and, accordingly on the 11th of July, 1848, he executed 
 another instrument of bond and mortgage in favour of Duff, in 
 which he was also described as sole executor in Ceylon of the estate 
 of Martin Lindsay, and whereby he bound himself, his heirs, 
 executors and administrators, and all his property whatsoever, to 
 Duff, in the penal sum of £14,000, and after reciting that he had, 
 by virtue of an agreement made between him and the devisees and 
 trustees of the late Martin Lindsay with Caffary, dated the 15th 
 of February, 1848, drawn the bills on Caffary for £4,000, and 
 that Caffary had suspended payment, and that a bill which had 
 been drawn upon him by Messrs. Hudson ^ Chandler, on account 
 of the Rajawelle estate, and had become payable to the Bank, and 
 which he had accepted, had been returned protested, and that the 
 Bank had agreed to advance £230, on a bill drawn by him on his 
 mother, to carry on the Rajawelle estate during his absence from 
 Ceylon, and that other bills on Shaw & Caffary had been passed 
 by him to the Bank, with shipping documents for coffee shipped, 
 and which oofEee was supposed not sufficient to cover the amount 
 of the bills. He, as executor, as aforesaid, duly authorized there- 
 to by the District Court of Kandy, by order thereof, dated the 
 28th of February 1848, mortgaged the estate, which in this instru- 
 ment also was described as being the property of the estate of the 
 late Martin Lindsay, to Duff, for securing the due payment of the 
 bills of exchange and sums of money aforesaid, and the bond was 
 conditioned for the payment on demand of the bills of exchange 
 and other moneys aforesaid, with interest and expenses, but with a 
 ■proviso, that the sum to be recovered upon it should not exceed 
 £7,000. 
 
 David Baird Lindsay also, at the same time, executed a 
 warrant of attorney to confess judgment, and consented to the 
 issuing of execution upon the bond ; and on these securities being 
 executed, Duff, on the same 11th of July, 1848, wrote and deliver- , 
 ed to David Baird Lindsay the following letter :— 
 
44 
 
 T860 " Oriental Bank, Colomho, 
 
 Jnne^ 23. „ j^^^^ g.^^ « ^ j^j^ j^^^^ ^g^g_ 
 
 " With reference to the £4,000 bill drawn by you on Shaw 
 & Caffary, of London, on the 15th of February, 1848, at six 
 months' sight, to the failure of those parties, and to the yisit you 
 now propose paying to London, to endeavour to form a new con- 
 nection, I . hereby agree, on the part of this Bank, that, provided 
 the cultivation of Rajawelle is properly kept up, you shall not be 
 proceeded against on the said bills in the event of their dishonour 
 until your return to Ceylon, or say previous to the 1st Jany. 1849." 
 
 The arrangements thus entered into by Duff with David Haird 
 Lindsay were, it appears, immediately communicated to the Bank 
 in London. We do not, however, find amongst these papers the first 
 letter by which this communication was made ; but on the 15th o£ 
 August, 1848, we find a letter from Duff to the Secretary of the 
 Bank, stating to the effect, that these arrangenvents gave the Bank 
 the first mortgage over the whole property to the full extent of 
 their claim against David Baird Lindsay not otherwise covered, 
 and in this letter, after referring to arrangements which had been 
 proposed to the Bank by Mrs. Lindsay, Duff adds, " I suspect that 
 Mr. Lindsay is not exactly in a position, at present, to carry out 
 the arrangement proposed by his mother. The Bank of Ceylon 
 have a claim of about £1,500 against him, a settlement of which 
 is only delayed until his return to Ceylon, and he entered into an 
 engagement with them not to mortgage the crops ; and unless we 
 make him a bankrupt at once, they may lay claim to their share 
 of this year's produce/' 
 
 It appears that the Oriental Bank, in the first instance, intend- 
 ed to leave the final settlement of the transaction to Duff, but they 
 seem afterwards to have changed that intention ; for early in 
 November, 1848, they came to an arrangement with David Baird 
 Lindsay, who had then arrived in this countiy, which was embodi- 
 ed in a deed, dated the 4th of November, 1848, and purporting to 
 be made between David Baird Lindsay, described as one of the 
 executors and devisees in trust of Martin Lindsay, of the one part, 
 and George Smyttan Duff of the other part. By this deed, which 
 was executed in this country by David Baird Lindsay and by the 
 Secretary of the Bank here, and was intended to have been execut- 
 ed by Duff and by David Baird Lindsay by power of attorney in 
 Ceylon, after reciting amongst other things, that there was theii 
 due from David Baird Lindsay, as such executor as aforesaid, to 
 the Bank, the sum of £7,000, or thereabouts, exclusive of interest, 
 and that the Bank were also holders of bills to the_ amount of 
 £2,000, or , thereabouts, drawn by David Baird Lindsay on Shaw 
 & Caffary, which were unpaid, but as collateral security for pay- 
 
45 
 
 ment of wHch the Bank held bills of lading and shipping documents 1860. 
 of coffee; it was agreed, in substance, as follows: that David Baird June 23, 
 Lindsay, as such executor as aforesaid, should forthwith assign to 
 Duff all crops of cofEee then grown and being on Rajawelle, or 
 which should be grown or produced thereon for the space of two 
 years next ensuing, and should deliver over all such crops to Duff ; 
 and that in case David Baird Lindsay should omit to do so, Duff 
 should have power to gather the crops, and to consign the same to 
 the Bank in London for sale ; that David Baird Lindsay should 
 continue to manage the estate subject to the control of the Bank 
 or of Duff ; that David Baird Lindsay should not, during the said 
 term of two years, mortgage the estate or the crops without Duff's 
 consent ; that the Bank would during the two years or such part 
 thereof as David Baird Lindsay should fulfil the agreement, ad- 
 vance for the cultivation of the estate such sums as should be 
 necessary for the purpose, after applying the nett proceeds of the 
 crops of coffee, but so as not to exceed in any year a certain 
 average sum ftir every hundred-weight of coffee delivered to the 
 Bank in that year; that the proceeds to arise from the sale of the 
 coffee should be applied, first, in payment of the expenses of culti- 
 vation; secondly, in payment of £40 monthly to the appellant, 
 Elsy Lindsay ; thirdly, in payment of the sums advanced by the 
 Bank for cultivation, with interest ; and fourthly, in reduction of 
 the £7,000, and of so much of the £2,000, as the shipments of the 
 the coffee appropriated to the payment thereof should be insuffi- 
 cient to satisfy ; that at the expiration of the term of two years, 
 the Bank should have power to sell the estate, and that the proceeds 
 of the sale should be applied -in payment of the £7,000, and 
 £2,000, and of all other moneys advanced by the Bank, and as to 
 any surplus upon the trusts of the Will 'of Martin Lindsay, and 
 that nothing therein contained should prejudice the rights of the 
 Bank or of Duff over the estate under their two several bonds and 
 mortgagesj or over the title-deeds or any other property secured by 
 the bonds. 
 
 This deed, it appears, was forwarded by the Bank to Duff on 
 the 24th of November, 1848, with a power of attorney from David 
 Baird Lindsay to a Mr. Moir, authorizing him to execute the deed 
 on his, David Baird Lindsay's behalf ; but the deed was never 
 executed by Mr. Duff, nor, so far as appears, by Mbir, for before it 
 reached Ceylon, Duff, notwithstanding the undertaking contained 
 in his letter of, the 11th of July; 1848, had taken the following 
 proceeding in the Island. 
 
 On the 30th of November, 1848, he commenced the suit No. 
 8,997, mentioned above, against David Baird Lindsay. By the 
 libel in this suit, after setting forfih the bond of the 11th of July, 
 1848, it was alleged that the sums mentioned in the bond to be 
 
46 
 
 1860. paid by tbe defendant had been demanded, and had not been paid 
 June 23. and that there was due and owing to the plaintiff the sum of 
 ~ £7,838. 13«. Sd., with further interest on the sum of £7,805 7s. 
 
 part thereof, at the rate of 12 per cent, until payment ; and it was 
 prayed, that the defendant might be adjudged to pay the sum of 
 £7,838. 13s. Sd., with further interest as aforesaid, and costs. 
 Immediately upon the libel being filed, an admission in full of the 
 plaintiff's claim was also filed by virtue of the warrant of attorney, 
 and thereupon and on the same day it was decreed that the plain- 
 tiff recover from the defendant, the said sum of £7,837. 13«. 3d. 
 upon the bond dated the 11th of July, 1848, with interest on 
 £7,805. 7«., at 12 per cent., from the 28th of November, 1848, 
 till payment, and costs of suit ; and it was ordered, that execution 
 issue against the property of the defendant for the principal and 
 interest. A writ of execution was, thereupon, immediately issued 
 to the Fiscal of the Province, whereby he was directed to levy and 
 make of the houses, lands, goods, debts and credits oi David Baird 
 Lindsays, by seizure, and, if necessary, by sale thereof, the sum of 
 £7,838. 13s. 3c?.; and under this writ the sheriff caused the Raja- 
 welle estate to be seized and taken. 
 
 Notwithstanding the transmission to Dtiff of the deed of the 
 4th November, 1848, the execution was not withdrawn, the Bank 
 alleging that in the negotiations which they had had with David 
 Baird Lindsay he had misled them as to the power which Dujff' held 
 over the estate and its produce. This was the state of matters 
 when David Baird Lindsay, again returned to Ceylon, about the 
 month of December, 1848. He took no steps to impeach the pro- 
 ceedings which had been taken by Duff, and, on the contrary, in a 
 letter which he wrote on the 29th of January, 1849, to Ingleton, 
 who had been in the management of the estate during his absence, 
 and at the time when the property was seized under the execution, 
 he expressed himself thus: — " The steps which you took with the 
 Bank were perfectly correct. It was no use attempting to resist." 
 
 Under these circumstances the estate was put up to sale by 
 the Fiscal on the 5th of March, 1849, and was purchased by Duff, 
 on behalf of the Bank, for £2,500, and Duff thereupon entered 
 into possession of the estate. By order of the District Court, dated 
 the 11th of July, 1849, this sum of £2,500, was ordered to be set 
 off against the debt due to the Bank, and by a deed, dated the 6th 
 of September, 1849, reciting that, by virtue of the writ of execu- 
 tion, the Fiscal had caused to be seized and taken the property 
 thereinafter described, and further reciting the sale and the order 
 for crediting Duff with the purchase-money against the debt, and 
 that thereby Duff had become entitled to all the rights, title, and 
 interest, of David Baird Lindsay in the property the Fiscal con- 
 veyed the estate to Dnff in fee. 
 
The £40 per month, by the deed of the 4th of Novc.. .,_, 1860. 
 1848, agreed to be paid to Mrs. Lindsay, was paid to her by the June. 23. 
 Bank down to the month of April, 1849, but in April, 18.4y, the ~ 
 
 Bank discontinued the payment upon the same allegation, that 
 they had been misled by David Baird Lindsay in their negotiations 
 with him. They afterwards agreed however, to pay Mrs. Lindsay, 
 £25 per month, irrespective of the arrangement made by the deed 
 of November, 1848, and without prejudice, and they continued to 
 make this payment to Mrs. Lindsay down to the month of April, 
 1850, and, perhaps, longer; but the exact time when this payment 
 was discontinued does not appear. 
 
 In the month of May, 1852, the Bank sold the estate to 
 Colonel Brown George Symttan, and James Ingleton, for the sum 
 of £10,000; and by a deed poll, dated the 4th of May, 1852, 
 Oeorge Symttan Duff, in consideration of £5,000, paid by Colonel 
 Brown, £2,500, paid by Oeorge Symttan, and £2,500, paid by 
 James Ingleton, conveyed the estate to those parties in fee, that is 
 to say, as to two fourth-parts to Colonel Hrown, one fourth part to 
 George Symttan, and one fourth-part to James Ingleton. James 
 Ingleton had been, as has been stated, the manager of the estate; 
 Colonel Brown was the father-in-law of the respondent, George 
 Symttan Duff; and it appears that this respondent advanced to 
 Colonel Brown part of the moneys which were required by him to 
 enable him to complete the purchase on his part. The respondent, 
 however, denies that he was interested in the purchase. It does 
 not appear that there is anything to cast suspicion upon George 
 Symttan in reference to his connection with the purchase. 
 
 The libel in the suit out of which this appeal arises, was filed 
 on the 21st of May, 1853, and answers having been put in, a great 
 deal of evidence, both documentary and parol, has been entered 
 into on both sides. Their Lordships, however, in the view which 
 they have taken of the case, do not think necessary to go at length 
 into the evidence. It is sufficient to state that, in their opinion, 
 it establishes the facts as above detailed, that it leaves no doubt in 
 their Lordships' minds that the mesne profits have been fairly and 
 justly estimated, and that the case attempted to be proved on the 
 part of the defendants, that Duff 's proceedings in Ceylon were 
 occasioned by the cultivation of the estate not having been properly 
 kept up, is by no means established to their Lordships' satisfaction. 
 Their Lordships have entered thus at length into the details of this 
 case, considering that although there are many points arising upon 
 the facts which it is not necessary, and would not, indeed, be right, 
 for them now to decide, it is upon the whole case, and not upon any 
 detached portion of it, that their judgment depends. 
 
 A formal objection to the suit was raised on the part of the 
 respondents which it may be convenient first to dispose of. It 
 
48 
 
 18G0. was objected on their part, that George Smyttan and the Oriental 
 June, 23. Bank ought to have been made parties to the suit ; but this is an 
 objection of form and not of substance, and is one, therefore, to 
 which their Lordships would be most unwilling to accede. They 
 do not find that the objection was pointedly, if at all, insisted upon 
 by the answers, nor do they find that either Smyttan or the Orien- 
 tal Bank was within the immediate jurisdiction of the Court, and 
 they readily adopt the view which seems to have been taken by 
 the Supreme Court on this point, that the objection was not one to 
 which weight ought to be given, unless the justice of the case 
 required it. It does not appear to their Lordships that this was 
 the case. They see no grounds on which it could be necessary to 
 add these parties to the record, unless there was a right of contri- 
 bution or of resort over against them ; and if the respondents, the 
 defendants of the suit, were wrong-doers as to the plaintiffs (the 
 appellants), each liable in solido to them, their Lordships are by no 
 means prepared to say, that they were entitled to set up any such 
 right to the prejudice of the plaintiff's claims against them, even 
 assuming the case to be wholly in equity. At all events, their 
 Lordships are satisfied that any possible injustice will be obviated 
 by the course which they are about to recommend for Her Majesty's 
 approval, and they have no hesitation, therefore, in over-ruling this 
 objection, and proceeding to dispose of the case upon the merits. 
 
 On considering the case upon the merits, the questions which 
 arise appear to their Lordships to resolve themselves into two 
 distinct classes ; the one relating to the claim of the appellants to 
 recover the estate, and the other the claims of the respondents 
 against the estate. The burthen is, of course, upon the appellants 
 as to the one class, and upon the respondents as to the other. As 
 to the first class of questions, the title of the respondents to this 
 estate rests upon the purchase made by them from the Oriental 
 Bank, who became the purchasers of the estate at a sale made 
 under an execution upon a judgment obtained, in effect, by the 
 Bank against David Baird Lindsay. The first point to be consider- 
 ed, therefore, seems to be, whether the estate was properly taken in 
 execution and sold under the judgment. We were not referred, in 
 the course of the argument, to any peculiar law prevailing in the 
 Province of Kandy which could affect this question, or indeed any 
 other of the questions which arise in the case, nor have we been 
 able to find that any such peculiar law exists. The case, indeed,, 
 was argued before us on both sides as depending upon the English 
 law, and was so treated in the Courts of Ceylon, and it is suflicientT 
 ly evident from the proceedings in the cause that they were not 
 taken under the Roman-Duch law which prevails generally in 
 Ceylon. "We consider, therefore, that the question must be deter- 
 mined according to the principles of the English law. It is to be 
 
4y 
 
 considered then whether according to that law, this estate was pro- I860 
 perly seized and sold under the judgment. Now,- the action on June. . 
 which this judgment was founded, was brought upon the hond of 
 the 11th of July, 1848, by w^hich David Baird Lindsay was bound 
 for the paym.ent of the sum of £7,000. It was upon the obligation 
 created by that bond the action proceeded, David Baird Lindsay 
 is described in the bond as the sole executor in Ceylon of the 
 testator, Martin Lindsay ; but although he is thus described in the 
 bond, the condition of the bond is for the payment by him, his heirs, 
 executors and administrators ; and their Lordships do not think that 
 the description in the bond can in any way alter the liability upon 
 it, or convert the debt which was by law his personal debt, into a debt 
 due from the estate of the testator. David Baird Lindsay could 
 not, as their Lordships think, have pleaded to the action that the 
 debt was not due from him personally, but firom him in his charac- 
 ter of executor only. Again, the warrant of attorney on which this 
 judgment was entered up is from David haird Lindsay personally, 
 and does not even purport to be given by him in his character of 
 executor ; but what seems to be even more decisive on this part 
 of the case is, that the judgment is that the plaintiff do recover 
 from the defendant ; that the order for the execution, is for execu- 
 tion against the property of the defendant, and that the writ of 
 execution is to levy of the houses, lauds, goods, debts, and credits 
 of David Baird Lindsay. It is to be seen, then, whether this 
 estate, was the property of David Baird Lindsay. Their Lordships 
 are of opinion that it was not. It is not disputed that the estate 
 was well devised by the will of Martin Lindsay. It was thereby 
 devised not to David Baird Lindsay alone, but t6 him and the 
 other trustees. It is clear that all the trustees, except Henry 
 Lindsay, accepted the trust, _ and the estate, therefore, vested in 
 them all. It was argued, on the part of the respondents, that 
 David Baird Lindsay having been the sole executor in Ceylon, had 
 full power over the estate, and several passages were cited from 
 the Butch Executors' Guide in support of that position ; but these 
 passages, as their Lordships understand them, relate to the powers 
 of a Dutch executor over property governed by the Dutch law. 
 They have no bearing upon the question of the power of one of 
 several executors and trustees over property, the disposal of which 
 is made under, and governed by, ihe English law. It was attempt- 
 ed, too, on the part of the respondents, to give effect to this 
 judgment, and to the proceedings under it, against this estate, by 
 reference to the power given by the Order of the Ceylon Court to 
 David Baird Lindsay to mortgage the estate to the amount of 
 £12,000; but without reference to the question whether this 
 power was well created ; and their Lordships are by no means 
 satisfied that it was, having regard particularly to there having 
 
50 
 
 1860. been no proof of the allegation on which the order proceeded that 
 June 23. David Baird Lindsay had full authority from the other executors 
 to make the mortgage ; their Lordships do not consider that David 
 Baird Lindsay's power to mortgage the estate can be called in aid 
 of this judgment and the proceedings upon it. The bond and 
 mortgage, although comprised in the same instrument, are different 
 securities, leading to different modes of proceeding ; and the power 
 to create the one cannot, in their Lordships' judgment, have any 
 influence upon the question as to the validity or invalidity of the 
 proceedings under the other. There are other considerations 
 which may affect the validity of this judgment and of the proceed- 
 ings under it ; the amount of the debt for which it was entered up ; 
 the times at which the several parts of the debt were payable ; and 
 the circumstances under which the judgment was obtained and the 
 execution issued : but these considerations, although they might 
 affect the case as between the appellants and the Bank, might not, 
 perhaps, be available to the appellants as against the respondents; 
 and their Lordships, therefore, must not be understood to rely upon 
 them. They rest their judgment upon the question as to the vali- 
 dity of the seizure and sale of the estate upon the fact, that the 
 estate was not the px-operty of the judgment debtor, and that so 
 far as he had any interest in it which was liable to be taken under 
 the judgment, that interest was vested in him as a trustee only. 
 
 It was ai-gued, however, on the part of the respondents that 
 whatever might be the rights of the appellants against the Bank, 
 they had no such rights against the respondents. That the res- 
 pondents were purchasers for value without notice, but it is clear 
 that the respondents are affected with notice. Their very pur- 
 chase-deed refers to the conveyance by the Fiscal to the Bank, 
 ' That conveyance refers to the judgment ; the judgment refers to 
 the bond and to the order of Court ; and both the bond and the 
 order of Court refer to the will by which the estate was devised 
 to the trustees. It cannot be doubted, therefore, that the respon- 
 dents must be taken to have had notice of the will, and of the 
 devise to the trustees which it contains: hut independently of the 
 notice which is thus traced to the respondents, their title rests 
 wholly on the judgment ; and as purchasers from those who 
 purchased under that judgment, they were surely bound to see that 
 the proper parties were before the Court to be bound by the 
 judgment which was the root of their title. Moreover, if the 
 Fiscal had not, as their Lordships think he had not, any authority 
 to seize or sell the estate, it is diificult to see how his conveyance 
 could pass any title to the Bank, or through them, to the 
 respondents. 
 
 The responpents, therefore, as it seems to their Lordships, 
 have failed to establish any title to the estate against the appellants 
 
51 
 
 by tlie direct operation of the conveyance under which they claim ; 1860. 
 and it follows, therefore, as their Lordships think, that the posses- June 2 
 sion miist be restored unless the respondents are entitled to 
 maintain their title upon some other ground. It has been argued 
 on their behalf that they are so entitled ; that the Courts in Ceylon 
 having both a legal and equitable jurisdiction, and the case present- 
 ing mixed questions of law and equity, the appellants can have no 
 relief, without, as it is said, doing equity by giving effect to the 
 equitable claims of the respondents ; but the possession of the' 
 respondents was illegally taken, and is illegally held, and their 
 Lordships are not prepared to go as far as far as the District Court 
 has gone, in decreeing payment to the appellants of the mesne 
 profits of the estate. They think that there are some views of this 
 case in which the respondents may be able to establish a title to 
 those profits, instead of being paid to the appellants, as directed by 
 the District Court, ought to be paid into Court, and impounded 
 until the respondents shall have had the opportunity of asserting 
 their claims. Whether they will assert their claims or not, and 
 upon what particular grounds they will rest their claims if they 
 think proper to assert them, it is for them and not for their Lord- 
 ships to determine. Their Lordships desire only to be understood 
 as giving no opinion as to the validity or invalidity of those claims. 
 They do not think it would be right for them to enter at all into 
 this part of the case. The case has been so complicated by the 
 course which has been pursued, that it would be difficult, if not 
 impossible, to unravel it in this suit, and their Lordships are not 
 satisfied that they have before them all the parties who may be 
 interested in the questions of equitable right. 
 
 It remains, then, only to consider the question of costs ; and 
 as to this point their Lordships are of opinion that no costs ought 
 to have been given "against the plaintifEs, the appellants in the 
 Supreme Court, and that the costs of this appeal ought to be borne 
 by the respondents, except the Oriental Bank Company, as to 
 whom their Lordships agree with the Courts in Ceylon that there 
 was no foundation for the suit. 
 
 Their Lordships will, accordingly, humbly recommend Her 
 Majesty to reverse the decree complained of, to restore the decree 
 of the District Court, so far as it relates to the defendants being 
 ejected, and the plaintiffs restored to the possession ; to vary the 
 decree of the District Court, so far as it directs the mesne profits 
 to be paid to the appellants ; and order those mesne profits to be 
 paid into Court ; to direct an account of subsequent rents received 
 by the respondents, and order the amount found due to be also 
 paid into Court. The moneys to be paid into Court not to be paid 
 out without notice to the respondents until the expiration of six 
 months from this time, with liberty to the respondents in the 
 
52 
 
 1860 meantime to take such proceedings as they may be advised for 
 
 June, 23. asserting their claims to the said moneys or any parts or part there- 
 
 — of, or to the said estate, otherwise than under or by virtue of the 
 
 judgment, or any proceedings thereon. The order to be without 
 
 prejudice to such claims. 
 
 Liberty to all parties to apply to the Court. 
 
 The respondents, Duff and Ingleton, to pay the appellants' 
 costs of the appeal. 
 
 The following Order in Council was made : — 
 
 It is hereby ordered, that the said decree of the Supreme 
 Court of Ceylon of the '8th of March, 1856, be, and the same is 
 hereby reversed, and that so much of the judgment of the District 
 Court of Kandy, of the 16th of April, -1855, as directed that the 
 defendants (respondents) be ejected from the premises, and that 
 plaintiffs (appellants) as devisees in trust of the estate of Martin 
 Lindsay be restored to and quieted in possession thereof, and that 
 the defendants (respondents) do pay the costs of suit except as 
 therein mentioned, be, and the same is hereby restored ; but that so 
 much of the said judgment of the said District Court as ordered 
 mesne profits to the amount of £6,457. 3s. Id. sterling to be paid 
 in certain proportions by the respondents, Oeorge Smyttan Duff, 
 and James Ingleton to the appellants be, and the same is hereby 
 varied by ordering, and it is hereby ordered, that the said mesne 
 profits of the estate be paid by the said last-mentioned res- 
 pondents in the like proportions into the Eegistry of the Su- 
 preme Court of Ceylon, and that an account of the subsequent 
 rents and profits of the estate in question received by the respon- 
 dents, George Smyttan Duff and James Ingleton, or either of them, 
 or by their or either of their orders, or for their or either of their 
 use, since the 21st of May,_1853, be taken, and that the amount 
 which may be found due upon such an account be also paid by the 
 said respondents into the Eegistry of the said Supreme Court. 
 And Her Majesty is further pleased to Order, and it is hereby 
 ordered, that the moneys so paid into Coui't be not paid out with- 
 out due notice to the respondents, Oeorge Smyttan Duff, and James 
 Ingleton, until the expiration of six months from the date of this 
 order, with liberty in the meantime to take such proceedings as 
 they may bs advised for asserting their claim to the said moneys 
 or any part or parts thereof, or to the said estate otherwise than 
 under or by virtue of the judgment in the [suit No. 8,997 bearing 
 date the 30th of November, 1848, or under or by virtue of any 
 proceedings in the said judgment. And Her Majesty is hereby 
 pleased to declare that this Order is without prejudice to such 
 claims, and that all parties are to be at liberty to apply to the 
 Supreme Court herein ; and it is hereby ordered that this case bo 
 
53 
 
 and the same is liereby remitted back to the Supreme Court of 1860. 
 Ceylon with, directions to give effect to the same. * Sept. 17. 
 
 29th June. 
 
 Present: — Creasy, C. J., and Sterling and Morgan, J. J. 
 
 C. R. Avisawelle, ) t> i -o n -it 
 ■KT 10 f -runchy Halle Y. Herea 
 
 In affirming the judgment of the Court below, the judgment of 
 the Supreme Court was as follows : — 
 
 With reference to the observations of the commissioner, the 
 Supreme Court deems it necessary, to call his attention to the 
 Eules, which do not require the drawer of a petition of appeal to' 
 affix his signature thereto, or witnesses to attest the signature of 
 the appellant. Wherjg the Court has well-founded reason to 
 doubt the genuineness of the signature, or mark affixed to the 
 petition of appeal, it should not reject the petition, but it should 
 receive it and send for the appellant, to ascertain whether the 
 signature or mark affixed is his. Any other course of proceeding 
 is unauthorized by the Eules, and only calculated to throw 
 difficulties in the way of parties, who seek their legitimate remedy 
 by appeal. 
 
 Petition of 
 appeal. 
 
 I'ith September. 
 Present:— tCreast, C. J. and Morgan, J. 
 
 ^;t^- f.^^f"^^' \ Peris V. Dissanayeke. 
 No. 1105. I 
 
 The Supreme Court set aside the judgment of the Court below 
 and remanded the case for a new trial, with liberty to the plaintiff 
 to amend his plaint by setting out the original debt. It held, — 
 
 The giving of a note or bill, without a proper stamp, in dis- 
 charging a prior debt, will not preclude the creditor from proving 
 his original debt by other evidence, Brown v. Watts, 1 Taunt 353; 
 Wilson V. Vysar, 4 Taunt 2'88 ; Farr v. Price 1 East 58 ; Chitty 
 on Stamps, (2nd ed.) 75. 
 
 See next page, under date Oct. 6th, for further proceedings in this 
 
 Promissory 
 note — want 
 of stamp — 
 proof of ori- 
 ginal debt. 
 
 case, 
 
54 
 
 1860. 
 Oct .6. 
 
 General judg- 
 ment- 
 liability of 
 ssTeral de- 
 fendants 
 thereon. 
 
 6ih October. 
 Present: — Creasy, C. J., and Morgan, J. 
 
 N '^fifififi r Lindsay et al v. Oriental Bank Corporation et al. 
 
 For the facts of this case, see pp. 37 to 53, ante. 
 
 In terms of the decree of H. M. in council, reported as ahove, 
 plaintiffs were put in posession of the estate and they now moTed 
 as follows : 
 
 " 1st. That the defendant George S. Duff he ordered to pay to 
 the plaintiff the sum of £701. 6. 7, being the costs in appeal before ' 
 the Privy Council. 
 
 " 2nd. That the said George Smyttan Duff be ordered to pay 
 into the Registry of this Court the sum of six thousand, four hun- 
 dred and fifty seven pounds, three shillings and one penny, being 
 amount of the mesne profits from 1st February 1849 to 21st May 
 1853. 
 
 " 3rd. That the record be remanded to the District Court of 
 Kandy to take account of the mesne profits from the 22nd May 
 1853 to 15th August 1860, being the date on which possession of 
 Eajawelle Estate was given to the plaintiffs and appellants." 
 
 Dias appeared for plaintiffs, and Bust for defendant Duff. 
 
 The Supreme Court made the following order, wherein are set 
 out all the facts pertinent to the matter: — 
 
 In giving judgment on the motion made in this case, it is 
 necessary to recapitulate briefly the chief anterior proceedings. 
 
 The suit was instituted in the District Court of Kandy to 
 recover prossession of the Eajawella Coffee Estate and profits, and 
 for other purposes which it is unnecessary to recount here. 
 
 The District Court gave judgment in favour of the plaintiff 
 and ordered that they do recover from the defendants mesne profits 
 to the amount of six thousand four hundred and fifty seven pounds 
 three shillings and one penny in the following proportions: from 
 the defendant O. S. Duff, from 1st February 1849 to 4th May 
 1850, and from defendant G. S. Duff, as executor of the Estate of 
 Colonel Brown, and J. Ingleton, from 4th May 1850 to 2ist May 
 1853, at the rate of one thousand five hundred pounds per annum. 
 
 The defendants appealed to the Supreme Court of this Island 
 which reversed the judgment of the District Court and dismissed 
 the suit with costs. 
 
 The plaintiffs appealed to Her Majesty in Council against the 
 decision of the Supreme Court of this Island, and on the 30th 
 June 1860 Her Majesty ordered among other things as follows: 
 " That the said decree of the Supreme Court of Ceylon of the 8th 
 March 1856 be, and the same is hereby reversed, and that so miich 
 
of the judgment of the District Court of Kandy of the 16th April 1860. 
 1855 as directed that the defendants (respondents) be ejected from Oct. 6 
 the premises and that the plaintiffs (appellants,) as devisees in 
 trust of the Estate of Martin Lindsay be restored to, and quieted 
 in possession thereof, and that the defendants (respondents) do pay 
 the costs of suit, except as therein mentioned, be and the same is 
 hereby restored ; but that so much of the said judgment of the said 
 District Court as ordered mesne profits of the amount of six 
 thousand four hundred and fifty seven pounds three shillings and 
 one penny sterling to be paid in certain proportions by the respon- 
 dents George Smyttan Diiffimd James Ingleton to the appellants be, 
 and the same is hereby varied by ordering, and it is hereby ordered, 
 that the said mesne profits of the Estate be paid by the said last 
 named respondents on the like proportions into the Eegistry of the 
 Supreme Cour*- of Ceylon ; and that an account of subsequent rents 
 and profits of the estate in question received by the respondents 
 Duff and Ingleton, or either of them, or by their or either of their 
 order, or for their or either of their use since the 21st May 1853 
 be taken and that the amount which may be found due upon such 
 an account be also paid by the said respondents into the Registry 
 of the said Supreme Court : and Her Majesty is further pleased to 
 order, and it is hereby ordered, that the moneys so paid into Court 
 be not paid out without duo notice to the respondents George 
 Smyttan Duff and James Ingleton until the expiration of six months 
 from the date of this order, with liberty in the mean time to take 
 such proceedings as they may be advised for asserting their claims 
 to the said moneys or any part or parts thereof, or to the said 
 Estate, otherwise than under or by virtue of the judgment in the 
 suit No. 8,997 bearing date the 30th November 1848, or under or 
 by virtue of any proceedings on the said judgment : and Her 
 Majesty is hereby pleased to declare that this order is without 
 prejudice to such claims, and that all are to be at liberty to apply 
 to the said Supreme Court herein, and it is hereby ordered that 
 this cause be, and the same is hereby remitted back to the said 
 . Supreme Court of Ceylon with directions to give effect to the said 
 report, and that the same be punctually observed, obeyed and 
 carried into execution." 
 
 Possession of the estate was given to the plaintiffs on the 25th 
 August 1860, and the motion which we now have to dispose of has 
 relation to the costs and mesne profits. 
 
 The motion was made against Mr. Duff only : the form of it 
 as settled by the counsel for the plaintiffs was as follows: — 
 
 " I move, first — That the defendant George S. Duff be ordered 
 to pay to the plaintiff the sum of seven hundred and one pounds, 
 six shillings and seven pence, being the costs in appeal before the 
 Privy Council. 
 
56 
 
 1860. " 2nd. That the said George Smyttan Duff be ordered to pay 
 
 Oct. 6. into the Registry of this Court the sum of six thousand, four hun- 
 
 ~ dred and fifty seven pounds, three shillings and one penny, heing 
 
 amount of the mesne profits from 1st February- 1849 to 21st May 
 
 1853. 
 
 " 3rd. That the record be remanded to the District Court of 
 Kandy to take account of the mesne profits from the 22nd May 
 1853 to 25th August 1860, being the date on which possession of 
 the Rajawella estate was given to the plaintifEs and appellants." 
 
 The first branch of the motion was disposed of almost by con- 
 sent. The counsel for Mr. Duff at first objected that the payment 
 of the costs therein- mentioned was not ordered by the judgment of 
 the Privy Council, but on its being pointed out that such payment 
 is ordered by the Report recited in that judgment, which report is 
 adjuded to be approved of by Her Majesty, and which report this 
 Court is directed to observe and execute, no further opposition was 
 made to that part of the application, and an order of the Court in 
 that behalf was made on the 17th day of September and these costs 
 have been paid accordingly. 
 
 There ia no dispute as to the second branch of the rule so far 
 af regards the sum of one thousand seven hundred and eighty five 
 pounds, which is admitted to be payable by Mr. Dufi for the mesne 
 profits from 1st February 1849 to 4th May 1850. The dispute is 
 as to the extent and nature of Mr. Duff's liability in respect of the 
 sum of four thousand five hundred and eighty two pounds, three 
 shillings and one penny, which represents the mesne profits from 
 4th May 1850 to 21st May 1853, and which, with the above men- 
 tioned sum of one thousand eight hundred and seventy five pounds, 
 make up the amount of six thousand four hundred and fifty-seven 
 pounds, three shillings and one penny, mentioned in the judgments 
 of the District Court and of the Supreme Court of Appeal. 
 
 With respect to the said sum of four thousand five hundred 
 and eighty two pounds, three shillings and one penny, the plaintiffs 
 contend that Mr Duff^ is under the judgments in this case liable to 
 pay the whole amount. Mr. Duff, by his counsel, contends that, as 
 it is a general judgment for that amount against him and another, he 
 is only liable to pay a moiety. 
 
 The case is one of very great importance. This court is most 
 anxious to observe, obey and quickly carry into execution the 
 judgment of Her Majesty in Council, and to give full and accurate 
 effect to the Report of the Judicial Committee in this matter. The 
 sum of money in question is considerable, — and it has become 
 necessary in determining this case to investigate the Law of Ceylon- 
 respecting the effect of a general judgment against more than one 
 defendant for the same sum : and we feel that the decision which 
 
0/ 
 
 we are about to pronounce may practically influence the proceeding 1860. 
 of our Courts and Piscals in a very great number of cases. O'^*- *'• 
 
 We have therefore had this case argued before us, and we 
 have given it our most earnest and careful consideration. "We 
 have come to the conclusion that Mr. Diifi is only liable under these 
 proceedings for a moiety of the sum of four thousand five hundred 
 and eighty two pounds, three shillings and one penny. 
 
 The original judgment of the District Court of Kandy in our 
 opinion (for reasons which will be presently set forth) gave the 
 plaintiff a right to enforce payment of a moiety of , the sum in ques- 
 tion, and of a moiety only, from each of the two defendants, Mr. - 
 D)iff and ^Iv. Ingleton ; and we think, after careful and repeated 
 examinations of the proceedings, especially of the language of the 
 judgment of Her Majesty in Council and of the Report therein 
 cited and enforced, that the said judgment of Her Majesty in 
 Council has not, in this respect, varied the original judgment of 
 the District Court, — but that, so far as regards the payment of the 
 mesne profits. Her Majesty in Council has only varied the District 
 Court's judgment as to what is to be done to the moneys when 
 paid : it has made no change as to the parties and proportions from 
 whom and which the payments are to be paid. 
 
 We will now state the grounds of our opinion on the several 
 parts of the case. 
 
 First, as to the qiiestion by what law the case must have been 
 governed if there had been no proceedings subsequent to the judg- 
 ment of the Kandy District Court, and the plaintifirs were seeking 
 to enforce their right under that judgment : 
 
 We take it to be quite clear that the extent of the liability of 
 each defendant must have been then determined according to the 
 Roman Dutch Law. The Ordinance No. 5 of 1852 is decisive as to 
 this. It enacts that where there is no Kandyan Law or custom, 
 having the force of law applicable to the decision of any matter or 
 question arising from adjudication within the Kandyan Provinces, 
 for the decision of which other provision is not specially made in 
 that Ordinance, the Court shall, in any such case, have recourse to 
 the law as to the like matter or question in force within the Mari- 
 time Provinces ; which is thereby declared to be the law for the 
 determination of such matter or question. 
 
 There was^ and there could be, no pretence in this case of any 
 local Kandyan Law existing which could apply to it ; and the law 
 therefore by which the question for adjudication was then to be 
 determined, was the law in force in the Maritime Provinces. This 
 is the Roman Dutch Law, with certain exceptions, not in the least 
 affecting the matter now before us. 
 
 What then is the Roman Dutch Law as to the extent of the 
 liability of one oixt of two or more defendants who had been jointly 
 
58 
 
 1860. sued, and against whom a general judgment has been given direct- 
 Oct. 6. iug them to pay a certain sum ? 
 
 The point does not appear to have been before this expressly 
 brought before our tribunals. We were now only referred to two 
 decisions as to costs, Galle D. C. 8262, Amblangodde, D. C. 1676. 
 
 But the authorities to which we habitually refer for guidance 
 as to Roman Dutch Law are ample on this subject ; and when they 
 are well considered, there is not any discrepancy between them. 
 
 The counsel for the plaintiffs cited in this branch of the case, 
 Voefs " Commentary on the Pandects," lib. 9, title 2, sec. 8. 
 
 " Si plures sirmd damnum dederint, adversus singidos hcec 
 cestimationis et ejus quod interest persecutio in solidum concessa est, 
 sic ut unius prcsstatione cceteri non liberenttir cum sui quisque, non 
 alieni delicti pcenam solvat ; sive constet cequaliter omnes occidisse 
 dum sirmd trabem dejecenmt hominemqve oppresserunt, sive alter 
 tenuerit occidendum, alter interemerit ; sive plures percusserint in rixa 
 forte, nee appareat cujus ictu Icesio aut ccedes facta sit." 
 
 They next cited Sande's Decisiones Frisicw, p. 595, giving a 
 decision of the Court of Priesland as to the " mulcta civilis " or 
 wergeld, payable to the heirs of a man who had been killed by a 
 number of brawlers, it not being known what hand had given the 
 blow. He says, " At dubitatum quandoque fuit an singuli rixantes 
 et tttmultuantes in hanc mttlctam teneantur, an vera una mulcta ab 
 omnibus sit solvenda; et curiae magis placuit (15 Julii Anno 1634) 
 singidos in solidum hanc mulctam solvere teneri." 
 
 Grotius, book 3, c. 32, sec. 15, and preceding sections (page 
 434 in Herberts translation) were also referred to us as an authority 
 that " wrong-doers are bound by natural law to make reparation 
 each in solidum, provided that on the one paying, the other be exo- 
 nerated. 
 
 They cited the dictum of Pothier, vol. 1, p. 409 (Evans' 
 translation.) 
 
 The third case of obligations in solido is where several persons 
 have concurred in any injury and are each liable to the reparation 
 of it. " They cannot oppose any exception of discussion or division, 
 being unworthy of it " — to which might have been added the words 
 of the same great jurist a little earlier in the book: "So if the debt 
 arises from an injury committed by four persons, each is debtor for 
 the whole in respect of the person suffering the injui'y, but as be- 
 tween themselves, each is only debtor for his share in the injury, 
 that is to say, for a fourth of the whole." 
 
 Wood's " Civil Law" was also referred to for a similar maxim. 
 
 But none of those authorities, and none that we have been able 
 to find, do more than establish the proposition that a man, who has 
 been injured by several wrong-doers, may sue any one whom he 
 pleases, and piake that one give him full compensation. But the 
 
59 
 
 question is, wliether, if the injured man think fit to proceed against 1860. 
 two or more jointly, and obtain, not specific judgment that each or Oct. 6. 
 some one is to be bound to pay the whole amount, but a general — 
 
 judgment against them all for one sum, he can then make one of 
 the co-defendants to pay him the whole sum ordered by the pro- 
 portion; for half, if there were two co-defendants; for a third, if 
 there were three, and so on. 
 
 There is an abundance of authorities on this ; and the autho- 
 rities are high and clear. 
 
 In book 7 of the Code, title 55 : " Si non singuli in solidum, 
 sed generaliter tib et collega tuus una et certa quantitate condemnati 
 estis : nee additum est, ut quod ab altera servari non posset, id alter 
 suppleret : effectus sententios pro virilibiis portionibus discretiis est 
 Ideoque parens pro tua portione sententice ab cessationem alterius ex 
 causa judicati convenire non potes." 
 
 The commentary of the Dutch jurist Perezius on this, deals 
 with the seeming difficulty of a wrong-doer's liability being dimi- 
 nished by a judicial sentence against him. He says : " Si plures 
 una sententia condemnati s^tnt, executio fieri debet non in solidum, sed 
 pro virili tantum parte, etiamsi omnes sint simpliciter condemnati, ad 
 miam et certam quantitatem, hoc modo, Titium et Caium et Sempro- 
 nium L Titio in centum condemno. 
 
 " JEt hoc utique verum est, etiamsi cceteri non sint solvendo, et 
 cum revera singuli ante condemnationem fuerint in solidum obligati 
 quia {ut paulo ante diximus tit. super) per judicaium prioris obliga- 
 tionis novatio inducitur, et prodest judicatum singulis, ita ut quisque 
 videatur condemnatus, in parte sua et absolutus a solidi exactione : 
 quae quidem interpretatio et in stipulatione locum habet, 11 ^ 1 ff 1. 
 De duobus reis. At dices, iniquum esse ut res adjudicata prosit 
 ei contra quem est i judicatum, quia ante condemnationem tenebatur 
 in solidum, nunc tenetur pro parte virili. Respondeo, hie non omnino 
 judicatum esse contra eum, nam ex parte absolvitur quodammodo, 
 scilicet a solidi exactione : Res judicata non prodest judicata, 
 quatenus est condemnatus; sed solum ex accidenti ei prodest, res- 
 peetu ejus quod in condemnatione est omissum, id est, quatenus 
 absolutus est a solidi exactione, qui ante condemnationem tenebatur in 
 solidum." 
 
 Faber who is quoted by Perezius on this subject, distinctly 
 says, {Codex Fabrianus, p. 870), that unless the judgment expresses 
 that each defendant is bound in solidum non tenentur singuli 
 nisi ad viriles. 
 
 The Pandects, book 42, tit. 1, sec. 43 declare, " eos qui una 
 sententia in unam quantitatem condemnati sunt pro portione virili 
 ex causa judicati conveniri, et si ex sententia, adversus tres dicta 
 Titius portionem sibi competentem exsolvit : ex persona cv* 'm 
 ex caiem sententia conveniri exm non posse," 
 
CO 
 
 1860. Another Dutcli jurist Brunnemann in his commentary on this 
 
 Oct. 6. passage, says, " Si phires condemnatittir in una sententia, non 
 cmsentur in solidum damnati, sed quilibet pro parte : quod Bartohis 
 de eo etiam casu intelUgit, ubi duo in solidum alias tenentur, et diri- 
 sionis beneficio renuncianmt : nam nihilominus novum ex sententia 
 exurgit beneficium divisionis, quia est, quod creditori imputari possit, 
 cur non contra unum egerit." (42. 1. 43.) 
 
 The same writer, p. 894, makes a similar remark as the 
 passage from the Code already cited. 
 
 The authorities which we have been reviewing shew that it is 
 in the power of the Court, which giyes judgment against two or 
 more defendants, to make any of them liable in solido by inserting 
 words to that effect in the judgment; and many cases might be 
 suggested in which it would be right and proper to do so. But the 
 District Court of Kandy did not do so here ; and we are clearly of 
 opinion that, tinder this judgment of the District Court, Mr. Duff 
 could only have been required to pay a moiety of the sum in 
 question. 
 
 The general effect of the proceedings subsequent to the judg- 
 ment of the District Court, is, that that judgment was set aside by 
 the Supreme Court of Ceylon, but that the judgment of Her Maj- 
 esty in Council has revived it with variations. This is the manner 
 in which the case has been dealt with by both parties during the 
 argument on this motion. The dispute, between them is as to what 
 are the variations. The plaintiffs' contention is as follows : Even 
 supposing that the matter might, under the original judgment, 
 have been dealt with according to the Koman Dutch law, and that 
 Mr. Duff would, under that original judgment, have been com- 
 pelled to pay a moiety only, that judgment, has now been varied 
 and each party has been made liable in solido by the ultimate 
 Court of Appeal. 
 
 The learned counsel for the plaintiffs did not, for proof of 
 this proposition, rely on any particular words of the judgment of 
 Her Majesty in Council, or of the Teport of the Judicial Com- 
 mittee ; but he endeavoured 'to shew that certain passages in that 
 judgment and report, which were seemingly opposed to his argu- 
 ment, were not so in reality when properly considered. The 
 passages which we mean, are those which respectively recommend 
 and order, "that the said mesne profits of the estate be paid by 
 the said last named respondents in the like proportions into the 
 Eegistry of the Supreme Cotu't of Ceylon." It is maintained on 
 behalf of the plaintiff that this direction about preserving the pro- " 
 portions, in which the parties are to pay, has reference solely to 
 that distributive part of the District Court's judgment, which 
 directed the pi'ofits for the time between the 10th February 1849 
 and the 30th April 1850, to bo paid by Jlr. DulT, ivhich is different 
 
61 
 
 from tte directions given as to the payment of the mesne profits I860, 
 whicli accrued after that date. '^'^'- ^■ 
 
 It seems to us more natural to understand the general words 
 of the judgment and. report of the Supreme Tribunal as generally- 
 applicable to the whole topic, and to consider that all the distri- 
 butive regulations of the District GoTirt, as to proportions of 
 payment, are preserved and re-ordained by the judgment of Her 
 Majesty. But we do not say that these passages would of them- 
 selves decide the case, if there were clear expressions to the con- 
 trary in other parts of the judgment and report: but no such ex- 
 pression can be found in either of those instruments. 
 
 The learned counsel for the plaintiffs chiefly relied on parts 
 of the printed judgment of the Lords of the Privy Council, deliver- 
 ed on the 23rd June in the year, at the conclusion of which they 
 stated the recommendations which they were prepared to make to 
 Her Majesty. That printed judgment is not itself the order of 
 Her Majesty, which we are to carry into effect, but of course it is 
 entitled to our deepest respect and we have studied it^ anxiovisly 
 before arriving at our decision. The words of the printed judg- 
 ment, on which the plaintiifs mainly rely, are to be found at p. 15. 
 Their Lordships are there dealing with an objection taken to the 
 suit on account of the non-joinder of Geoige Smyttan Diiff and the 
 Oriental Bank, and they use these words : 
 
 " They see no grounds on which it could be necessay to add 
 " these parties to the record, unless there was a right of contri- 
 " bution or resort against them ; and if the respondents, the defen- 
 " dants to the suit, were wrong-doers as to the plaintiffs (the ap- 
 " pellants) each liable in solido to them, their Lordships are by no 
 " means prepared to say that they were entitled to set up any such 
 " right, to the prejudice of the plaintiffs' claim against them, even 
 " assuming the case to be wholly in equity." 
 
 All, however, that this passage imports is, that one injured 
 party may sue one or more out of several wrong-doers, and 
 is not bound to sue all; if he sues one, that one is liable in solido, 
 unless the Court specially modifies such liability: if he sues two 
 or more out of a larger number, those two or more are collectively 
 liable to him in solido unless the Court specially modifies such 
 liability, and the suit cannot be stopped by a plea of nonjoinder. 
 Such, as we have said, is the Eoman Dutch Law also on this sub- 
 ject. But their Lordships say nothing which implies th^t the 
 plaintiffs here, who have sued a certain number of defendants and 
 who have got, in this part of the case, a genei'al judgment for the 
 same sum against two defendants, have a right to make any one of 
 the two pay in solido under that judgment; and it is this last 
 question which is the matter for our present determination ; not the 
 question of non-joinder, to which their Lordships remarks arc directed. 
 
62 
 
 I860. Other passages in tlie same printed judgment were referred to, 
 
 ct^ b. jjj which their Lordships spoke of certain questions with which 
 they were specially dealing, as questions which they were to 
 determine according to English Law. But this particular question, 
 as to the liability of one defendant to pay in solido under the 
 judgment against two, was not one of those questions, and is not 
 deaded by what was said as to those questions. Holding as we do, 
 that Mr. Duffs liability under the original judgment as to the 
 sum in dispute was only a liability to a moiety, we should be slow 
 to consider that limited liability changed into liability in solido, 
 not by any words in the judgment of Her Majesty, or in the 
 report embodied in Her Majesty's judgment, and not by any 
 express decision of the Lords of the Privy Council in their printed 
 judgment, but by vague inferences and analogies, drawn from 
 other parts of the printed judgment which expressly deal with 
 other matters. 
 
 If, indeed, we were to determine this point by analogical 
 reference to the report of the Lords of the Judicial Committee and 
 the judgment of Her Majesty in Council on other points, there is 
 a clear decision on a part of the case closely connected with the 
 present, which appears to show an intention not to make any of 
 the defendants liable in solido to the plaintiffs for mesne profits. 
 We refer to that part of the judgment of Her Majesty in Council 
 which deals with the mesne profits subsequent to the 21st May 
 1853. The printed judgments of the Lords of the Judicial Com- 
 mittee clearly shew (in the passage at page 16 already cited) that 
 attention had been expressly called to the fact that Oeorge 
 Smyttan had become interested in the estate to the extent of one- 
 fourth; and that an objection on the ground of the non-joinder of 
 Oeorge Smyttan was made and over-ruled ; and it was in dealing 
 with that objection that their Lordships used the words already 
 cited " if the respondents, the defendants to the suit, were wrong— 
 " doers as to the plaintiffs (the appellants), each liable in solido to 
 " them, their Lordships are by no means prepared to say that they 
 " were en'jitled to set up any such right to the prejudice of the 
 " plaintiffs' claims against them, even assuming the case to be 
 " wholly in equity." But what follows? Continue to read the printed 
 judgments and it will be found that their Lordships proceed to say 
 " at all events their Lordships are satisfied that any possible con- 
 " jecture will be obviated by the course which they are about to re- 
 " commend for Her Majesty's approval." To know what their Lord- 
 ships recommend, we must turn to the report, as it is recited in the 
 judgment of Her Majesty in Council, and which we are, by that 
 judgment, ordered to carry into effect. The recommendation ia 
 not, and the consequent judgment is not,, that Duff and Ingleton 
 pay the whole mesne profits of that period, it is not that Duff or 
 
63 
 
 Ingleton pay the whole mesne prpfits of that period, though in the 1860. 
 
 judgment of the Lords of the Privy Council Duff and Ingleton are Oct. 6. 
 
 wrong^doers, who, with or without the co-operation of ethers, haTe 
 
 deprived the plaintiffs of the lawful possession of their estate. 
 
 But the recommendation is, and the consequent judgment is, " that 
 
 " an account of subsequent rents and profits of the estate in question 
 
 " received by the defendants (respondents), Duff and Ingleton, or either 
 
 " of their or by their or either of their order or for their or either of 
 
 "their use, sinje the 21st May 185.3 be taken, and that the amount 
 
 " which may be found due upon such an account be also paid by the 
 
 " said respondents into the registry of the said Supreme Court." If 
 
 it should turn out that George Smyttan has during this latter 
 
 period received his fourth share of interest in the estate, neither 
 
 Duff nor Ingleton is required to pay over the fourth that may have 
 
 been so taken by George Smyttan or any portion of it. All that 
 
 they have to pay is, what has been received by them or either of 
 
 them. This seem to us inconsistent with the idea of the decision of 
 
 the Supreme Court of Appeal having established a liability of each 
 
 or any one defendant in this case under these proceedings to make 
 
 recompense in solido to the plaintiffs for the wrong conmiitted in 
 
 depriving the plaintiffs of the profits of the estate. 
 
 Another question was raised before us on this branch of the 
 rule, which we have kept distinct from the important and intricate 
 question which we have been hitherto considering. The rule is 
 moved as against Mr. i>M^ personally. His counsel says that in 
 respect of his liability to pay the whole or part of this sum of four 
 thousand five hundred and eighty two pounds, three shillings and 
 one penny, it ought to have beeen made against him as executor 
 of Alexander Brown, and our attention has been called to the 
 proceedings in the case, and especially to the judgment of the 
 District Court. But in this respect the order of Her Majesty in 
 Council is express. It says of the sum of six thousand four 
 hundred and fifty seven pounds, which includes the four thousand 
 five hundred and eighty two pounds, three shillings and one penny, 
 that it is to be paid by the said last named respondents. On looking 
 back to see who these last named respondents are, we find the 
 nearest applicable antecedents are the words " George Smyttan Duff 
 and James Ingleton." The words of the corresponding portion of 
 the report are precisely the same. Her Majesty's judgment requires 
 of us " that the report be punctually observed and obeyed." We 
 therefore do not feel ourselves at liberty to vary it, nor do we think 
 that it would be respectful or proper in use to enter into the enquiry 
 whether the omission of the words " as executor of Alexander 
 Broivn,\ after Mr. Duff's name in those parts of the report and 
 judgment, was caused by inadvertence or design. We dwell the 
 
64 
 
 1S60. less on this point of the case because it was treated on botli sides 
 Oct. 6 as of little or no practical importance. 
 
 ^Ye come now to the concluding part of his motion which has 
 reference to the enquiry to ascertain the rents and profits since the 
 21st May 1853. In addressing the Court, the counsel for the 
 appellants put this part of the motion in 'an alternative form, and 
 asked that the account should be taken either by the District ot 
 Supreme Court : though in the form of the rule ultimately handed in, 
 the alternative was omitted. The Order of Her Majesty in Council is 
 addressed to the Supreme Court to execute and carry into immediate 
 effect Privy Council judgments in such manner as any " original 
 judgment or decree of the said Supreme Court can or may be exe- 
 cuted." It appears to us that regard being had, as well to the 
 general directions given in the Charter, as to the specific instructions 
 issued in this case, we are ourselves bound to carry the judment 
 of the Privy Council into effect, so far as we can act in this Court, 
 and that we are only to employ the agency of the District Court 
 where the process of this Court, which has no civil jurisdiction, is 
 insufficient effectually to secure any particular object. Thus, for 
 instance, this Court does not originally issue writs of execution 
 against person or property, and it is necessary therefore to call in 
 the agency of the District. Court to carry into effect our orders 
 requiring parties to pay any sum of money to which we hold them 
 liable. But we have the power in certain cases to hear evidence in 
 civil cases (sec. 35th clause of the Charter, and Ordinance No. 2 
 of 1852 clause 9), and can therefore ourselves comply with the 
 requirements of the Privy Council judgment as to the accounting : 
 and what we can do ourselves we feel that we are bound to do. 
 
 We are the more confirmed in this impression by the conside- 
 ration that Tjy taking evidence ourselves we should save the parties 
 some portion at least of the delay and expense which an order 
 referring them to the District Court would necessarily give rise to, 
 and these are objects of moment in a suit pending since 1853. 
 
 It is ordered that the respondent Dvff do pay into the Registry 
 of the Supreme Court the sum of one thousand, eight hundred 
 and twenty-five pounds, and two thousand, two hundred and 
 ninety-one pounds, one shilling, six pence and half-penny, amouting 
 to four thousand one hundred and sixty-six pounds, one shilling, 
 six pence and half-penny in the whole. And that the District 
 Court do upon the application of the parties issue the necessary 
 writs of execution to enforce this order. 
 
 It is further ordered that the parties do appear before this 
 Court on the twenty-sixth day of October instant, with their 
 witnesses, for the purpose of taking the account directed by Her 
 Majesty in Council. 
 
65 
 
 On the parties appearing on the 26tli October, tte Supreme I860. 
 Court referred (27th Oct.) the account, directed to be taken by — 
 
 Her Majesty in Council, to the Eegistrar, -with power to him to 
 examine witnesses, if necessary. 
 
 The Eegistrar submitted the following report: — 
 
 In obedience to the order of the 27th October 1860, directing me to take 
 the account ordered of the Privy Covincil, and to report thereon, I have the 
 honor to inform your Lordships that after a careful examination of the 
 accounts by the parties themselves, they handed in a statement shewing a 
 sum of sixteen thousand seven hundred and twenty six pounds and four, 
 pence (£16,726 4), to be due in respect of the profits of the Rajawelle 
 Estate from 1853 to 1860. This sum exceeds by seven hundred pounds only 
 that shewn in the respondent's, Buff's account. In arriving at this sum of 
 sixteen thousand seven hundred and twenty six pounds and four pence 
 (£16,726 4), which both parties admitted to be due, the question of ■ 
 interest and commission were not however settled between them. Interest 
 (amounting to three thousand, nine hundred and sixty two pounds, one 
 dtiilling and seven pence) has been charged by Dnff in the accounts on the 
 capital embarked, and commission (amounting to four thousand one hun- 
 dred and forty three pounds, nine shillings and six pencej on the sales and 
 purchases on account of the estate. Both of these charges appear to me to 
 be reasonable and proper. The capital embarked in the undertaking was 
 the purchase money paid for the estate, and Mr Skand, Mr. Nicol, Mr. 
 Thompson, Mr. Mwray Rohertson and Mr. Ch/ristian, all agree, that interest 
 should be charged on capital in calculating profits. In the words of Mr. 
 M. Robertson " the profits cannot be arrived at, without." 
 
 The charge for commission is in like manner proved by the gentlemen 
 above named though differing somewhat as to the rate, it is also proved by 
 Mr. Rrorvn, called for the appellants; as to the rate, there is some slight 
 difference ; most however agreeing that 5 per cent is that rate, but all say- 
 ing that it is the rate where no special agreement is made, being that agreed 
 upon by the Chamber of Commerce. This commission also in rendering the 
 accounts to the proprietors, was always deducted by Mr. Duff. There re- 
 mains only to consider an item of one hundred pounds, being interest on a 
 sum of one thousand pounds, borrowed for estate purposes, and since paid, 
 and I can see no reason for treating this other than as interest on capital. 
 I therefore think that the amount eight thousand two hundred and five 
 pounds, eleven shillings and one penny inserted in the respondent Duff't 
 accounts being interest on 
 
 Capital... ... '.., ... ... ...£3962 1 7 
 
 Commission ... ... ... ... ... 4143 9 6 
 
 and interest on £1,000 borrowed ... ... ... 100 
 
 was properly so inserted, and should be allowed, and that the balance which 
 was agreed to between the parties freserving the determination of these 
 questions^, viz. sixteen thousand, seven hundred and twenty six pounds, 
 and four pence, should be taken to be the rents and profits of the Rajawelle 
 Estate from 1860. I beg therefore to report that the shares in which the 
 proprietors held the estate and divided the profits were as follows : 
 Estate of jBrore're, i)ii^ Executor ... ... ... one half 
 
 IngJeton ... ... ... ... one quarter 
 
 Dr.Smyttan ... ... ... ... one quarter 
 
 The profits- divided in these portions would stand thus: — 
 
 Estate of ^rorora ... ... ... ...£8,363 2 
 
 Ingleton ... ... ... ... 4,181 10 1 
 
 J}r. Smyttan ... ... ... 4,181 10 1 
 
66 
 
 1860. Considering the small amount added to the sum stated by Ihifi in his 
 
 ■ — original account, only seven hundred pounds, of whicli nearly three hund- 
 
 red pounds is not money actually received, biit " estimated profit," and 
 considering the great difference between the sum now reported, due to the 
 appellant and their claim, I beg to recommend that all costs of this 
 reference be borne by the appellant. 
 
 Dias was heard for plaintiffs. 
 ■Rust for defendants. 
 
 The Supreme Court made the following order, on the 3rd 
 Novemher: — 
 
 It is ordered that the defendant Ihiff do pay into the Eegistry 
 the sum of ten thousand three hundred and foi'ty four pounds, 
 eleven pence and half penny. 
 
 Costs to stand over. 
 
 The first objection to the Kegistrar's report is, that in ascer-. 
 taining these mesne profits, he has deducted inter alia from the 
 gross receipts a sum which represents the nature of the services ren- 
 dered by Mr. Duff in managing the sale of its produce. . . 
 
 The principal was disputed, and to the amount of the charge. 
 The rate of charge was admitted to be fair and reasonable; and in 
 answer to questions from, the Court, during the argument, it was 
 distinctly admitted on the side of the appellent that such services 
 as Mr Duff performed were absolutely necessary in order to 
 realize the profits of the crops ; and that if they had been per- 
 formed by any ordinary hired commission agent, the expense to the 
 estate would have been greater. 
 
 The Supreme Court thinks the deduction proper. 
 
 It is conceded on all hands that in order to ascertain how much 
 the defendants have received out of the estate during the time in 
 question it would be absurd and unjust merely to reckon the in- 
 comings. These give the mere gross ; all fair and actual outgoings 
 must be deducted in order to get the net receipts, that is, the real 
 receipts in the true sense of our enquiry. The outgoing in ques- 
 tion actually took place; it occurred honestly and bonajide, and the 
 Supreme Court does not think the appellants ought to profit by its 
 effects without allowing for the costs. 
 
 The true spirit of these proceedings is, or ought to be, a desire 
 to re-instate the plaintiff so far as possible in the position of advan- 
 tage, which they would have held if they had not been dispossessed 
 by tte defendants, during the time in question. This is all that 
 ouulit to be sought. If the Zm&ay« had been in possession from 
 1853 to 1860, they would have received the proceeds of the crops, 
 less, inter alia, four thousand one hundred and eighty three pounds 
 four shillings and five pence for commission on sales. The 
 Supreme Court thinks, that they have no right to it. 
 
 It is said that Mr. Duff is a wrong-doer, and ought not to take 
 advantage of his own wrong. In the strict legal sense of the word, 
 
67 
 
 Mr. Duff is undoubtedly a wrong-doer, for it turns out, at the end, I860, 
 that he did wrong in thinking himself and the co-defendants to be — 
 
 entitled to the Rajawelle Estate, and in acting accordingly. But 
 there can seldom have been a conflict of claims to property, in 
 which the bona fides, and moral integrity of the unsuccessful liti- 
 gant, were more clear than in the case of Mr. Duff. The true 
 sense in which the Supreme Court should understand an ambiguous 
 word, is sometimes best illustrated by comparing it with other 
 words, which are etymologically its co-equals, but which have res- 
 pectively acquired more decided meanings. In saying that these 
 defendants are " wrong-doers," this Court means that they are what 
 our old Norman French law calls " tort-feasors." It would be 
 absurd to say, that they are wrong-doers, in the popular sense of 
 the word — " malefactors." 
 
 The second item in dispute, is a deduction of three thousand 
 eight hundred and sixty-two pounds, and seventeen shillings for 
 interest on the original purchase money, by which the defendants 
 obtained the estate. The Supreme Court thinks this deduction 
 wrong. It would be monstrous for a defeated defendant, in eject- 
 ment, to claim from the rightful owner, the purchase money which 
 he, the defendant, had given, and which enabled him to obtain his 
 illegal possession. 
 
 The Supreme Court does not think that they can claim interest 
 any more than they could claim capital. The Supreme Court 
 intimated, during the" argument, its disposition to allow interest on 
 any working capital, that had been bona fide employed for the 
 benefit of the estate, but the defendants have not wished the 
 enquiry to be re-opened on this point. 
 
 Next, the appellants object to Mr. Duff being only required 
 to pay the half of the profits ; which half was what he really 
 received. They say that he ought to pay all, with regard to the 
 argument, that each defendant in a case like this is liable to pay 
 in solido. The Supreme Court considers that this point was decid- 
 ed by the judgment, which this Court recently delivered in this 
 case ; and in which this Court examined at great length, and with 
 great care, first, the question of what law was to regulate the 
 respective liabilities of these co-defendants, in the joint judgment 
 against them, and, secondly, what were the requirements of the 
 Eoman-Dutch Law on the subject. The Supreme Court adheres 
 to that judgment for the reasons therein given, and this Court thinks 
 that the language of the judgment of Her Majesty in Council, 
 requires this Court to make such of the wrongful recipients of the 
 profits of this estate, to repay what each had received ; and not to 
 make any one pay for what has been taken by the others. The 
 Supreme Court cannot give any weight to the argument that the 
 moneys went first into the hands of Mr. Duff, as manager and 
 
68 
 
 1860. banker, althougli he immediately credited Ingleton and Dr. Smyttan 
 
 Oct. 29. -with the proper shares. The Supreme Court expressly enquired, 
 
 — whether Mr. Duff had paid any monies over, after the decision of 
 
 the Privy Council was known, hut it was agreed that this had not 
 
 been done. 
 
 The last point brought before the Supreme Court regarded the 
 costs. The Supreme Court thinks that the question of costs 
 should stand over, until the Supreme Court sees what, if any, 
 further proceedings were taken in the matter, according- to the 
 leave given by the Privy Council, to the defendant ; and what may 
 be the result of such proceedings. 
 
 29th October. 
 Present: Oreast, C. J. and Morgan, J. 
 
 C, E. Jaffna, \ Folkard v. Anderson. 
 
 No. 25869 ) 
 
 Bmte animal The Court get aside the judgment of the Court below, in these 
 
 —injury terms: — 
 
 'Zwnter— This is an action brought on account of injuries which the 
 
 liability of plaintifE sustained from some dogs belonging to the defendant. 
 
 owner. Evidence was adduced before the Commissioner of the Court of 
 
 Eequests as to the pernicious habits of the dogs, but he considered 
 
 that there was no sufficient proof of the owner's being aware of 
 
 their ferocity.. ^ i_- • 
 
 We agree with him in thinking the proof as to this point 
 
 insufficient. . 
 
 The Commissioner dismissed the case, holding tliat proot ot 
 
 owner's knowledge of the dog's mi-cheivous habits (technically 
 
 called proof of the scienter) is indispensable for the plamtifE s right 
 
 to a verdict. . , . , ^ u 
 
 According to English Law, the Commissioner's judgment would 
 be correct. The English Courts hold that " the gist of the action 
 is the keeping of the" animal after knowledge of its mischievous 
 propensities," per Lord Denman C. J., in Mayy. Burdett, 9 Q. B. 
 101 But according to the Koman-Dutch Law, which we are 
 bound to follow, the deci^on ought to have been the other way. 
 The Eoman-Dutch Law does not require a man who has been 
 injured by the mischievous animal of another man, to prove that 
 the owner knew the animal's mischievous habits. The difEerence 
 between the two systems of jurisprudence is pomted out by Lord 
 Campbell in the very recent case of Gething v. Morgan, which is 
 cited and referred to in a very able article of " The Jurist, on the 
 liability of owners of animals for injury done by thc»3 animals. 
 
69 
 
 Lord Campbell in Geihing v. Morgan contrasted tlie law of I860. 
 Scotland (which like the Dutch Law is chiefly founded upon the Cfct. 29, 
 Roman Law, though the Scotch and Dutch systems are not in all 
 respects the same), with the Law of England upon this matter. His 
 Lordship ruled that the circumstances of the- case hefore him made 
 the defendant liable and shewed sufficient proof oi the scienter ev in 
 according to the English law, but his Lordship added, according 
 to the Law of Scotland, there is no occasion to shew the previous 
 habits of the animal on the scienter, and where an injui-y has been 
 done to an innocent person it certainly seems more reasonable that 
 the loss should fall on the owner of the animal, which has done the 
 mischief, than upon the party injured. 
 
 Lord Camphell in these expressions evidently alluded to the 
 well known jural principle that where one of two innocent persons 
 must suffer, the loss ought to fall on the one by whose act or omis- 
 sion the loss has been caused. 
 
 As the rules of law respecting the liability of owners o£ 
 animals are matters of frequent practical importance, we have, in 
 framing our judgment in the present case, thought it desirable to 
 deal more fully with the subject, than we should have done i£ 
 cases of this kind were more rare. 
 
 It is a general rule of Roman-Dutch Law that the owner of a 
 brute animal, which has injured another person, is liable for such 
 injury, but, the degrees of liability vary according to the nature and 
 the habits of the animal, and the circumstances under which the 
 injury was inflicted. The authorities on this branch of the law 
 are most fully collected in the Gommmtary of Voet on the ninth 
 book of the Pandects, tit. " Si quadrupes pauperiem f ecisse dicatur." 
 Van Leeuwen in the 39th chapter of his fourth book, being the 
 chapter on " Obligations arising from causes similar to crime," is 
 explicit on this subject. He also treats of it in the 31st chapter 
 of his " Censura Forensis." To these may be added Vanderwater's 
 Commentary on the ninth chapter of the 4th book of the Institutes, ' 
 the Commentary of Vinnius on the same, Groenewegen de Legibus 
 ahrogatis. p. 54, and Grotius, pp. 252, 253, Herbert's Translation. 
 
 The most ancient of all the authorities and the foundation of 
 a great part of the law on the subject, is a law of the Twelve 
 Tables, cited- and incorporated in the Institutes and the Digest. 
 By this law, an actio de pauperie was given to a person who 
 Lad "been injured by the brute animal of another, such brute 
 animal being of a genus not naturally mischievous to mankind. 
 The owner of the animal was under an alternative liability. _ He 
 was bound to make good the damage, or to give up to the injured 
 person the ' animal that had done the injury. The ^delian Edict 
 forbade the keeping of savage animals in or near the places of gen- 
 eral resort and thoroughfares so as to endanger the public. If such 
 
70 
 
 1860. an animal so kept injured a freeman, tte owner was bound to make 
 Oct. 29 fijll compensation, and could not relieve himself from sucli liability 
 by giving up the animal. "Without discussing here in detail the 
 subsequent legislation of Kome and Holland on the subject, we may 
 state the general results, as applicable to the administration of 
 justice in Ceylon, to be as follows: 
 
 Where a man's brute animal does an injury to another person, 
 (such injury not being done through mere accident, and not bfeing 
 provoked and caused by the wrongful act of the injured party, and 
 and not being immediately caused by the wilful act of a third 
 person), the owner is always liable. But the owner's liability is 
 limited, if the animal were not of a genus naturally savage, and if 
 also the individual animal were not of mischievous habits. The 
 limit of the liability of such an innocent owner is this, the amount 
 to be given for compensation must not exceed the value of the 
 animal which did the injury. But if the animal were of a savage 
 genus, or if though not of a savage genus, it were of mischievous 
 habits, whether the owner knew those habits or not, the owner 
 must make full compensation for the injury done by the animal, 
 and cannot limit the damages to be assessed against him by the 
 amount of the animal's value. 
 
 There may be cases in which animals not mischievous by 
 germs or by habit, may be kept in such places and under such 
 circumstance as to make them dangerous to the public. If in such 
 cases injury is done by such animals, the owner is liable to make 
 full compensation. 
 
 Applying these principles to the present case, the Supreme 
 Court finds abundant evidence that the dogs were of mischievous 
 habit. There is also evidence as to the place and mode in which 
 they were kept, which might be important as to fixing full liability 
 on their owner, but that full liability is already established by the 
 evidence as to the mischievous habits of the dogs. 
 
 It follows that there must be a verdict for the plaintiff. As 
 the defendant's liability in this case is not limited by the value of 
 the dogs, there is no need to remit the case for any evidence as to 
 this to be taken. It is proved that the amount of the plaintiff's 
 doctor's bill was three pounds and fifteen shillings. He asks in 
 his plaint for this sum only, and it is therefore unnecessary to esti- 
 mate what he might have received for personal suffering and 
 annoyance. The judgment of the Court is, that the judment of 
 the commissioner be set aside and that there be a verdict for the 
 plaintifE for three pounds and fifteen shillings and costs. 
 
71 
 
 1st November. 1860. 
 
 Nov. 1 
 Present: — Creasy, C. J., Sterling, J. and Morgan, J. — 
 
 No' ^ lOB I Bastian Appuhami v. Palhan et al. 
 
 Per Curiam. — Set aside and judgment directed to be entered PromissoTy 
 
 in plaintiffs favor for the amount claimed and costs. The promis- note — joint 
 sory note being in its terms joint and several, evidence should not ^"^^ several — 
 
 have been received to show that the second defendant was merely a ^^qIy 
 surety. (Abbot v. Hendricks, M. & Gr. 794.) As respects the 
 defence of the first defendant, it appears according to his own show 
 ing, that he did not deliver the brass pots within the time specified 
 
 ' No 1 40P8 ' \ ^^.nawatte Tikery v. Kottepitty Piunee et al. 
 
 The Supreme Court affirmed the order of' the Court below in Estoppel 
 in these terms: — ' P"'>'ies. 
 
 The doctrine of estoppel, so far as it applies to privies, proceeds 
 on the principle that a party claiming through another is estopped by 
 that which estopped that other respecting the same subject matter. 
 Thus an heir, who is privij in blood, would be estopped by a verdict 
 against his ancestor through whom he claims. Lock, v. Norbourne; 
 3 Mod. 141, Smith's Leading Cases, vol. S p. 619. 
 
 The plaintiff in the present case does not claim thrmigh the 
 plaintiff in the case Nol3747 nor are the interests claimed in the two 
 cases indentical. The plaintiff in 13,747 and the plaintiff in this 
 case are co-heirs, claming different portions of and interests in the 
 same estate and from the same ancestor. The parties are identified 
 in interest and the judgment in the former case will be evidence, 
 and very weighty evidence in this. But it cannot be regarded as 
 an estoppel, nor will it operate as such. 1 Taylor on Evidence, sec. 
 77 and 318. 
 
 5th November. 
 Present: — Creasy C. J. Sterling, J. and Morgan, J. 
 ivr ' 1 W^ "^""^ ( Samerenayeke et al v. Fernando 
 
 In the following judgment of the Court, the facts of the case Evidence— 
 , , . ,. ^ , ° •" ° depositions m 
 
 are clearly indicated :— one case put 
 
 In this case the defendant was charged before the Police in and read in 
 
 Magistrate of Pantura with keeping a house for the purpose of go^gg^^" 
 
 promiscuous gaming, in breach of Ordinance No. 4 of 1841 sec. 19. 
 
1860. The persons who were found gaming in the house were charg- 
 
 Nov. 5 ed before the same Police Magistrate under the fourth head of the 
 . ~" fourth section of the same ordinance. 
 
 prgiudiw '^^^ '^^^^ against the gamblers was taken first. 
 
 of substantial Evidence of the gambling and of the character of the place 
 
 rights of was regularly given against them, and they were duly convicted, 
 defendan t. rpj^g charge against the present defendant for keeping the gam- 
 
 ing house was then immediately called on. The defendant 
 appeared and was defended by a Proctor. 
 
 It seems that both the defendant and his Proctor had been 
 present while the former case was tried. The defendant pleaded 
 "not guilty." No witnesses were sworn against the defendant. But 
 the depositions which had been taken in the former case were read 
 over, and the persons who had given those depositions were offer- 
 ed to the defendant for cross-examination. This offer was declined. 
 
 The defendant's Proctor consented to the depositions being put 
 in and read as above mentioned 
 
 There was no other evidence against the defendant. 
 , He was convicted, and appealed, and the Supreme Court has 
 
 to determine whether the Magistrate in receiving the depositions 
 against the defendant, with the defendant's Proctor's consent, and in 
 convicting him on those depositions, committed an error in law 
 " which prejudiced the substantial rights of the defendant." 
 
 It is only in the event of this Court being of this opinion that 
 this Court can correct the proceedings. 
 
 The appeal came on first before His Lordship the Chief Justice 
 sitting singly. He considered the question, whether consent can 
 cure such in-egularities and error in a criminal case to be one of 
 great practical importance, and he therefore reserved it for the 
 decision of the Collective Court. As the defendant was bailed, he 
 has suffered no prejudice by the delay. 
 
 A cardinal principle of our criminal law, the rule that (with cer- 
 tain well known exceptions) all evidence given by witnesses against 
 a prisoner must be given by witnesses sworn in the case to tell the 
 truth, has been violated in this instance. These witnesses could 
 not be. indicted for perjury in reference to this case. 
 
 It would be difficult to indict them for perjury at all as to 
 part of their evidence. Their statement as to the ownership to the 
 house, as made by them in giving evidence against the gamblers 
 might be plausibly argued to be a matter not so material to the 
 issue then being tried as to make it legally possible to found and 
 sustain assignments of perjury on those parts of the evidence. But 
 in the case against the present defendant, those statements about 
 ownership were the most material possible. Yet, as against the 
 present defendant, those statements were not made on oath at all. 
 
 The Supreme Court thinks this to be such a breach of the 
 
78 
 
 substantial rules of justice that no consent could make it legal ; 1860. 
 and this Court thinks it such a prejudice to the substantial rights of Nov. 5 
 an accused man, that the interest which the public has in the due — 
 
 administration of criminal justice requires the error to be corrected, 
 even though the individual consented to his own wrong. 
 
 The Supreme Court does not feel obliged to decide in this 
 case, whether the consent of an accused party, or his Advocate in 
 a criminal case, can ever dispense with any of the strict rules of 
 evidence. 
 
 The Supreme Court is of opinion that no dispensation could 
 be valid in the present instance. 
 
 The authorities on this subject are not numerous^ probably 
 because attempts to break the good order and the conscientious 
 reverence for prisoner's rights which characterise the Criminal 
 Courts of England and her Colonies, have been, and this Court 
 trusts will always be, of very rare occurrence. 
 
 The Supreme Court has been referred to two cases in Carring- 
 ton and Payne's Eeports ; one of them (vol. 7 p. 495) is the case 
 of Rex V. Foster. There were two prosecutions against the 
 same prisoner for felony. It was proposed in the second case 
 that, as the facts were precisely the same, the evidence given already 
 in the first case should be taken by consent ; but Mr. Justice Patter- 
 son refused to allow this, and is reported to have said, " I doubt 
 whether that can be done, even by consent, in case of felony, though 
 I know that it may in a case of misdemeanour." Now, as our law 
 in Ceylon has no distinction between one kind of offence and 
 another, such as the English law makes between felonies and minor 
 offences, it is far better to keep on the safe and humane side, and 
 to make the strictness which the English law requires in cases of 
 felony, universal in all criminal cases whatsoever. 
 
 The other case is in the 8th vol. of Carrington and Payne, p. 
 675, Segina v. Thornhill. There Lord Ahinger refused to recognize 
 admissions that have been made by arrangement between the 
 attornies before the trial, but he is reported to have made his 
 refusal in these words : " I cannot allow any admission to be made 
 on the part of the defendant, unless it is made at the trial by the 
 defendant or his counsel." 
 
 The Supreme Court may observe in this case that in point of 
 fact no admission was received, and secondly that it was a case of 
 misdemeanour which makes our remark on the preceding case of 
 Rex V. Foster applicable. ' 
 
 The Supreme Court has indeed found a passage in the writings 
 of one of the highest authorities on the laws of this Island, which 
 forcibly implies that such a reception of depositions, as has been 
 practiced here, is contrary to law. In Sir Charles Marshall's Eeports 
 there is a very careful and clear chapter on evidence, and he tells 
 
74 
 
 1860. us (p 107) that it was composed with special reference to the state 
 
 Nov. 5 of things in Ceylon. At p. 147 Sir Charles says that " former 
 
 — depositions may also he received by consent of all parties in civil ' 
 
 cases." The word " civil " is printed in italics ; and it shews that 
 
 our late eminent Chief Justice considered that consent in criminal 
 
 cases would be sufficient. 
 
 The Su-preme Court ha,s said that it abstains, on the present 
 occasion, from giving a general decision that none of the rules of 
 evidence can ever be dispensed with in criminal cases by consent. 
 But it is quite certain that Judges and Magistrates are never bound 
 to sanction such arrangements, and the Supreme Court has no 
 hesitation in recommending most strongly that those who preside 
 in our minor criminal courts should never allow such waivers, but 
 that all criminal charges whatever should be regularly proved before 
 any man is convicted, whether he offers to consent to irregularities 
 or not. 
 
 Even in civil cases, where much is often done or left undone 
 by consent, it is always in the discretion of the Judge, and in his 
 power, to reject illegal evidence, though both parties agree to ad- 
 mit it. In the words of Chief Baron Pollock, in the recent case of 
 Barhat v. Allen, 21 L. J. Ex. 159, " a Judge is bound to admin- 
 ister the whole law of England, the law of evidence included, and 
 although a, practice has crept in of allowing objections to evidence 
 to be waived, it is always a question with the presiding judge 
 whether he will permit that, and he would always be justified in 
 calling on the parties to adhere to the law." This duly of admin- 
 istering the whole law is emphatically more binding in criminal 
 cases ; and he, the Chief Justice, states, that in a practice of more 
 than twenty years at the sessions and on the crown side on circuit 
 in England, he never knew an instance, in a criminal trial, of 
 proper legal proof being dispensed with by consent. He has more 
 than once heard the counsel for prisoners offer to admit parts of 
 the prosecutor's case, but the answer from the Bench, given too by 
 Judges of the highest eminence, invariably has been, " I cannot try 
 criminal cases on admissions, the facts must be regularly proved." 
 
 The present case must be remanded to the Police Court for 
 evidence to he regularly, taken and for judgment thereon to be 
 giren. 
 
 The Supreme Court thinks it right to add an expression of its 
 belief that the Police Magistrate, who received these depositions 
 against this defendant, did so in no spirit of unfairness, but out of 
 a desire to expedite the administration of Justice, — a desire laudable 
 in itself, and which this court should like to see more generally 
 prevalent in this Colony; but it must not be allowed to prevail at 
 the cost, or at the risk of impairing the great principles of our 
 criminal jurisprudence. 
 
75 
 
 C. 11. Point Pedro } . l i^r o- .. I860. 
 
 No. 41. f ^y«"*«'' ^"9^'' V- Stnatty j^^^ 5 
 
 The judgment of the court below was affirmed in these terms: — Eight of 
 
 In this case the plaintiff obtained a judgment in the Court criptive Ordi- 
 below against the defendant for disturbance of a right of way over nance, No. 8 
 defendant's land, which the plaintiff claimed, as owner and occupier °^ 1^34, cl, 2 
 of adjoining land. [Ord. ^22 of 
 
 The plaintiff proved clearly that he and those who had held _ '^possession 
 his (the plaintiff's) land before him, had exercised this right of way of lands or 
 over the defendant's land for more than twenty years before the immovable 
 disturbance complained of ; but there was not sufficient proof that ^'^"•^^f*^ "~ 
 the right of way had been exercised for thirty-three and a third of ,-^.jj ^uasi 
 a year, the period requisite, according -to the old Dutch Law, for possession— 
 the acquisition of a prescriptive right of way (see Voets Commen- "ser. 
 tary on the Pandects, vol. I, p. 409, and Van Leeuwen's Com- Possession 
 mentaries p. 190.) "for ten years 
 
 It further appeared that for the greater part of the year 1857 previoiie to 
 and 1858, the plaintiff _had not used the way, as the defendant had of^otion^— 
 obstructed the road in question by placing a fence across it. construction. 
 
 Afterwards the fence was removed and the plaintiff again 
 exercised the right of way until the defendant again set up the 
 fence. It was in respect of this last obstruction that the action 
 was brought. 
 
 The Supreme Court thinks that the decision in favor of the 
 plaintiff was right : though he failed to prove a right of way under 
 the old Dutch Law, he succeeded in proving one under the 
 Ordinance for the Prescription of Actions, No, 8 of 1834. 
 
 The second clause of that Ordinance is as follows: — 
 
 " And it is further enacted that from and after the first 
 day of July next, proof of the undisturbed and uninterrupted 
 possession by a .defendant in any action or by those under whom 
 he claims of lands or immoveable property, by a title adverse to or 
 independent of that of the claimant or plaintiff in such action (that 
 is to say, a possession unaccompanied by payment of rent or produce, 
 or performance of service or duty or by any other act by the 
 possession from which an acknowledgment of a right existing in 
 another person would fairly and naturally be inferred) for ten 
 years previous to the bringing of such action shall entitle the de- 
 fendant to a decree in his favor with costs. And in like manner, 
 when any plaintiff shall bring his action or any third party shall 
 intervene in any action for the purpose of being quieted in his 
 possession of lands or other immoveable property, to prevent en- 
 croachment or usurpation thereof, or to recover damages for such 
 encroachment or to establish his claim in any other manner to such 
 
76 
 
 1860. land or other property, proof of such undisturbed and uninterrupted 
 Nov. 5 possession as hereinbefore explained by such plaintiff or intervenient, 
 or by those under whom he claims, shall entitle such plaintiff or 
 intervenient to a decree in his favor with costs. Provided always 
 that the said term of prescription of ten years shall only begin to 
 run against parties claiming estates in remainder or reversion from 
 the time when the parties so claiming acquired a right of possession 
 to the land in dispute." 
 
 Two questions arise as to the effect and meaning of this 
 Ordinance in this case. 
 
 The first question was this. Is enjoyment of a right of way 
 included in the words " possession of lands or immoveable 
 property?" 
 
 L judgment of this Court (No. 22,606 D. C. Colombo) was re- 
 ferred to, in which it was held that the plaintiffs, under the cirum- 
 stances of that case, were entitled to a right of way by prescription 
 of a lost grant : but the Chief Justice in giving that judgment stated 
 that the language of the Prescription Ordinance was not sufficiently 
 precise to warrant the Court in holding that it applied to a servitude 
 or incorporeal heriditament of that description. 
 
 From respect of the late learned Chief Justice who delivered 
 that judgment, and also from a wish to maintain certainty and 
 ■uniformity in the administration of justice, the Supreme Court 
 attaches great weight to that decision ; but this Court nevertheless 
 does not feel itself consluded by it on the present occasion. 
 
 The opinion expressed there as to the Ordinance was not 
 essential to the decision then given in favor of the plaintiff. 
 
 The plaintiff maintained his judgment on another ground. 
 
 Moreover there is a conflicting decision of this Court, not 
 indeed on this Ordinance, but on a Proclamation, so closely analo- 
 gous as to make a decision on it operate as a high authority in 
 determining what the words of the Ordinance fairly mean. 
 
 The Supreme Court speaks of a decision of this Court, No. 
 493 Kandy, 19iA Nov. 1833, which is cited with approbation by 
 Sir Charles Marshall in the 526th. page of his well-known Reports. 
 The Supreme Court need hardly say how much additional value 
 is given by such approval. The Supreme Court there held that 
 the Proclamation of 8th September 1819 (establishing the periods 
 of Presciption for the Kandyan Province) applied to claims for 
 service due in resiDect of lands, though the material clause of the 
 Ordinance uses the word " lands." 
 
 This decision in the Kandyan case was not brought to the 
 notice, of my predecessor when the Colombo case was decided. 
 
 Altogether the Supreme Court feels itself at liberty to exercise 
 its own judgment on this question, and this Court agrees in 
 considering, that the words " possession of lands or immoveable 
 
77 
 
 ■property," as used in the Ordinance of 1834, are ample enough to 1860. 
 apply to the enjoyment of right of way. Nov. 5. 
 
 A right of way (or more correctly, ' speaking a liberty to a right — 
 
 of way) is a proedial servitude, and Voet is decisive as to this 
 being immoveable property. His words (Com. ad P and. 1. 8. 20, J 
 " Servitutes praediales quod spectat, non dubium quin i-erum 
 immobilium numero veniant." 3ee also Vanderlinde7i's Institutes, bk, 
 l,ch. a and Story on the. Conflict of Laws, pp. 308 and 5 79, Brown's 
 Civil Law and Notes. 
 
 The only difficulty as to this question arises out of the exclu- 
 sive employment in the Ordinance of the word " possession " in 
 connexion with the words " lands or immoveable property." Strict- 
 ly speaking, a man cannot be said to be possessed of a servitude. 
 Servituti vera possessio non est, see Voet on the Pandects, p. 
 422. The Eoman Jurists, when writing especially on the subject 
 of possession, drew the distinction between the exercise of property 
 over corporeal things, and the user of such an easement as a right 
 of way thereon. 
 
 They invented the .phrase "juris quasi possessio,'' when speak- 
 ing of servitudes. 
 
 This is fully explained in the well known treatise on Possession 
 by the great German Jurist Savigny (page 131 of Sir Erskine 
 Perry's translation), and it is most lucidly set forth by Mr. George 
 Long (formerly Professor in University College, London, and Eea- 
 der in Civil Law to the Inns of Court) in the article on Possession 
 written by him, in Smith's Dictionary of Greek and Roman 
 Antiquities. Mr. Long there says, " though things incorporeal are 
 "not strictly objects of possession, yet ihsie is a, jurii quasi pos~ 
 " sessio of them, as for instance in the case of servitudes (easements.) 
 " The exercise of a right of this kind is analogous to the possession 
 " of a corporeal thing, in other words, as real possession consists in 
 " the exercise of ownership, so this kind of possession, which is 
 " fashioned from analogy to the other, consists in the exercise of 
 "jus in re or of one of the component parts of ownership. In the 
 " case of possession, it is the thing (corpus) which is possessed, 
 " and not the property; by analogy then, we should not say that the 
 " servitus or the jus in re is possessed, but as in the case oijus in re 
 " there is nothing to which the notion of possession can be attached, 
 " while in the case of ownership there is the thing to which we 
 " apply the notion of possession. We are compelled to resort to 
 " the expression ywm quasi possessio, hj which nothing more is 
 " meant than the exercise of a jus in re, which exercise has the 
 " same relation to the jus in re that proper possession has to 
 " ownership." 
 
 It is to be observed that this phrase juris quasi possessio, has 
 not acquired currency and has not been rendered into moderiii 
 
78 
 
 1860 languages, and even in tte Roman Writers themselves, this distinc- 
 Nov. 5. tive phraseology was not always preserved. 
 
 The words " possidere," " possessio," "possessor" may be 
 frequently found in their writings as applicable to servitudes, as 
 Savigny has shewn in his treatise on Possession (p. 131 of Sir 
 Erskine Perry's translation.) So modern Jurists, including Savigny 
 himself, though at times they point out the distinction between the 
 true "possession" of corporeal property and the " ^wn's g'ttasi pos- 
 sessio " of rights like easements over it, employed in general the 
 words " possession " and possess," or their equivalents in the 
 various modem tongues as generally applicable to. all such things. 
 Brown's Civil Law, Van Leeuwen's Commentaries and many other 
 books on Jurisprudence will be found to contain abundant proof of 
 this. 
 
 Altogether the Supreme Court has no doubt that the words 
 " possession of immoveable property " in the Ordinance may apply 
 to enjoyment of a right of way. There must be actual 
 enjoyment, not mere claim of title or abstract right, and the 
 Supreme Court may define " possession," when applied in legal 
 language to a servitude, such as the^M* itineris, to be the exercise 
 of a jus in re, with the animus of using it as your own as of right, 
 not by mere force, not by stealth, and not as a matter of favour, 
 nee vi, nee clam, nee precario. 
 
 The Supreme Court might also draw no slight argument in 
 favor of holding that the words of the Ordinance extend to servi- 
 tudes, from the fact that, if the Ordinance were to be construed other- 
 wise, a solemn legislative enactment, which was designed and 
 which professes in its preamble to give a comprehensive system of 
 rules of limitation for all actions, would fail to include rights of 
 way, many rights to water, rights to light and the numerous other 
 easements which exist, and many of which are of such frequent 
 and such great importance. 
 
 It was further objected to the plaintiff's right to maintain this 
 action, that his user of the right of way had been interrupted for 
 the great part of 1857 and 1858, and that consequently he had not 
 had the undisturbed and uninterrupted possession for ten years, 
 previous to the bringing of the action which the Ordinance 
 requires. 
 
 The learned counsel for the defendant wished the Supreme 
 Court to read the words " previous to the bringing of the 
 action" as meaning next before the bringing of the action. 
 
 The Supreme Court thinks that such an interpretation would 
 be erroneous. 
 
 The English Statute of Limitations as to right of way and 
 other easements (which was passed in 1832 and which was doubt- 
 less present to the framers of our Ordinance in 1834), kas an 
 
79 
 
 express clause, enacting, that tlie periods of limitation mentioned 1860. 
 in it stall be the periods next hefore some suit, wherein the claim Nov. 5 
 shall have been brought in question, and it further expressly enacts j 
 
 that no act shall be deemed an interruption unless acquiesced in 
 for a year. 
 
 There is nothing of the kind in our Ordinance. 
 
 The Supreme Court thinks the omission was intentional ; and 
 looking to the mass of difficult litigation, and perplexing 
 opinions, which have- grown up in the English Courts in respect of 
 that Statute of Prescriptions, the Supreme Court should be disposed 
 to think the omission salutary. 
 
 The consequence of the Supreme Court introducing the word 
 " next " into onr Ordinance, as this Court was asked to do, would 
 be very serious. Clearly this Court could not take it upon itself 
 to introduce, by implication, a whole clause as to sufficiency of 
 interruption. 
 
 The result would be, that not only men who were disturbed 
 in the use of easements, but men who were turned out of lands and 
 houses, would lose all the benefit of prescriptive title, unless they 
 run of£ to the Court house, and instituted a suit on the very day 
 on which the wrongful act was committed. Nothing is more 
 common in the plaints for ejectment, which we daily read, where 
 the plaintiff claims by prescription, than an allegation that the 
 ouster occurred one or two, or more years (short of ten) ago.' 
 Every one of these plaints must be held bad on the face of them 
 if the Ordinance is to be construed as the present defendant desires. 
 
 The Supreme Court should pause long before it so 
 revolutionized the administration of justice in one of its most 
 important branches, even if there was anything in the language of 
 the Ordinance which seemed to favor it. But the- Ordinance is not 
 so worded ; and the Supreme Court has doubly cause not to invent 
 law to make mischief. 
 
 The fact of the present case seems, that at the beginning of 
 1857, the plaintiff had acquired a prescriptive right of way over 
 the defendant's land by iminterrupted user for ten years. Nothing 
 has happened since the beginning of 1857 that could deprive him 
 of it. 
 
 A right of way undoubtedly may be lost by non-user ; but 
 then the non-user must have continued for ten years, the same 
 length of time during which user may create a right. It would 
 perhaps, on considering the words of our Ordinance, be more 
 accurate to say, not that the owner of the dominant tenement loses 
 his right over the servient tenement by ten years non-user, but 
 that the servient tenement acquires liberty, and its owner gains 
 full exclusive property in it by the lapse of ten years without 
 the servitude being exercised, and without any act being done^ 
 
80 
 
 1860. from -ivhicli an acknowledgment o£ liability to such servitude 
 Nov. 5 would be naturally inferred. Neither is there anything in the 
 facts of this case from which a renunciation, or cesser of the right 
 of way, can be inferred. 
 
 Our law very wisely and equitably directs, that, where a man, 
 who has a right of way over his neighbour's ground, stands by, and 
 without interruption or remonstrance sees his neighbour build upon 
 the ground, over which the right of way exists, he cannot after- 
 wards make his neighbour pull the new house down and restore 
 the old road (see Van Leemven's Com. 204, Voet Com. ad. Pand. 
 418). But the fence which the defendant put up in 1857 and 1858 
 was clearly not a building of any such description; and as the plain- 
 tiff is suing for what has been done during the last two years only, 
 the ninth clause of the Ordinance is no bar to his recovering 
 damages. 
 
 The judgment for the plaintiff is affirmed. 
 
 isr' XI 78 I Cander -v. S angary et al. 
 
 Intervention. Per Curiam : — That the decree of the 10th, day of May 
 
 1860 be. set aside as respects that part of the judgment which dis- 
 misses the Interventions. 
 
 With every inclination to support the District Court in its 
 anxiety to put an end to the dilatory proceedings so common in 
 Jaffna, the Supreme Court is still unable to affirm the present 
 nonsuit. The Order of the Court of the 2nd May 1860 allowing 
 the first set of Intervenients a survey of the land, for the purpose 
 of the trial, and the course pursued, when the first Intervention 
 was filed, of allowing the original parties to plead to the same, 
 might reasonably have led the plaintiff to believe, that as the 
 , survey had not been completed and there was no pleading on the 
 second Intervention, the case would not be taken up on the day 
 for which it was originally fixed. Assuming such to have been 
 the case, it would be obviously unfair to affirm this judgment and 
 to expose the plaintiff to the expense and delay of another suit. 
 
 The Supreme Court observes with regret the dilatory proceed- 
 ings sanctioned in this case. The action was commenced in 
 August 1855, and had repeatedly come on for trial when on the 
 29th December 1858 an intervention was filed. The general rule 
 is that an Intervenient should take up a case in the stage in which 
 he enters it, and there was nothing in the particular claim of the 
 Intervenient, in the present instance, to justify an exceptional 
 course of proceeding. But both plaintiff and defendant had to 
 plead to this Intervention, and when they failed to do so, were 
 
81 
 
 proceeded against by rules nisi for judgment. All this led to 1860. 
 further delays ; but to add to them, a second Intervenient was Nov. 5 
 shortly before the trial admitted, and summons ordered to the 
 original parties. 
 
 An Intervenient should never be allowed, as a matter of 
 course, to intervene in a case. He should summarily show his 
 interests in the cause, before he is allowed to intervene. Had this 
 rule been observed in this case, the second intervention would not 
 have been allowed ; for he shews no such interest as would justify 
 his interference. As a general rule too, an Intervenient should 
 never be allowed to delay a case ; — if he choose to intervene, he 
 must take it up in the stage in which he finds it Lengthy pleadings 
 on interventions should never be allowed. 
 
 The law and practice on the subject of Interventions are 
 admirably summed in Mr. Lorenz's Notes on Civil Practice, p. BO- 
 SS. 
 
 21 th November. 
 Present: — Creasy C. J., Sterling, J. and Temple J. 
 
 IST ' 9fi7qf) ° f Thompson et al v. Nannytamby 
 
 This was an action for the recovery of £1000 and interest, Promissory 
 alleged to be due on a promissory note made by the defendant in note— illegal 
 
 COUSlCLSl'Si 
 
 favour of the plaintiff's. tion— 
 
 The main grounds of defence were : — Insolvency— 
 
 _ . agreement 
 
 I. That the consideration for which the note was given had to annul in- 
 failed, in as much as the arrangement agreed upon, viz, the annull- solvency pro- 
 ing of one Ponambelam's insolvency had not been carried out, and ceedmgs.and 
 
 II. That the note was void under the insolvency laws, it opposing 
 having been given with intent to persuade plaintiffs, first, to forbear certificate, 
 examining the insolvent, and second, to forbear opposing his certifi- 
 cate. 
 
 The District Judge found that the motive which actuated 
 defendant in voluntarily taking upon himself his share of the 
 liabilities (viz payment of 10/ in the £) imposed by the arrange- 
 ment, was the desire to extricate his relative from his difficulties, 
 by stipulating for the annulment of the insolvency proceedings 
 against him ; and that the plaintiffs did not succeed in effectually 
 annulling such proceedings. 
 
 On the second point, the Judge held as follows : — 
 " It was objected that the note was given to forbear the insol- 
 vent's examination, if not, to forbear opposing his certificate. 
 
82 
 
 IggO "The 128tli section of the Ordinance enacts that 'any contract 
 
 Nov. 5 ' or security made or given by any, insolvent or other person * • for 
 
 — ' securing the payment of any money due by such insolvent at his 
 
 ' insolvericy, as a consideration or vrith intent to persuade such 
 
 ' creditor to forbear opposing, or to consent to the allowance of the 
 
 ' insolvent's, certificate, shall be void.' 
 
 "It was contended by the learned counsel for the plaintiffs, not 
 only that the note was not given for either of the purposes alleged, 
 btit further that the Ordinance only applied to forbearance to 
 oppose an insolvent's certificate, and not to forbearance of ex- 
 amination. And in support of this position, he strongly relied 
 upon the case oi. Taylor v. Wilson, 5 Exch, Eep, 251. 
 
 " On the other side, the case of Nerot and Wallace, 3 Term Eep. 
 17, was cited as establishing the proposition that 'forbearing examina- 
 tion ' equally fell within the prohibition of the Insolvency Laws. 
 
 " The case of Taylor v. Wilson seems to me to decide no more to 
 than what the Chief Baron carefully limited himself to. ' Possibly,' 
 says that Judge, ' the question as to the nature of the arrangement 
 ' might have been left to the Jury ; but we find that the point reserv- 
 ' ed was to enter a verdict for the defendant, if the fact of the bill 
 ' having been given to forbear opposition to the last examination was 
 ' within the act of Parliament. "We are of opinion that it is not.' It 
 should also be remarked that the plaintiff was the indorsee of the 
 bill, and in the statement of the case the reporter expressly notices, 
 'there was no evidence that the plaintiff was not an innocent 
 indorsee.' 
 
 " And as in Birch v. Jervis, 3 C. & P. 379, I find it was held by 
 Lord Tenterden under 6 Geo. 4 c. 16 s.l25, ' that a bill given to 
 ' a creditor to induce him to sign a bankrupt's certificate, is void, 
 ' in whosoever hands it may be, but a bill given to a creditor to 
 ' keep him from taking steps to oppose the certificate would be good 
 ' in the hands of a holder for value without notice. The section 
 of the above statute, it will be observed, is not quite similar to the 
 corresponding clause in the present Act, the words in the former 
 being ' to consent to or sign such certificate.' 
 
 " The case however oiNerotv. Wallace is peculiarly applicable, 
 and it was there determined (the Act- Geo- 2 chap 30, containing 
 a section No. 11, in substance similar to our 128th clause) that 
 ' a promise made by a friend of a bankrupt that, in consideration 
 ' that the assignees and commissioners would forbear to examine 
 ' him, he would pay a certain sum, is void, as being against the 
 ' policy of the bankrupt laws. 
 
 " ' The examination of the bankrupt- on oath is a security 
 ' which the legislature has given for the benefit of the creditors, 
 ' and therefore even if the commissioners had joined in the agree- 
 ' ment, that would not have bound the creditors. 
 
83 
 
 "And again, ' even if such consent of the creditors had appear 1860. 
 ' ed, they could not have stopped the examination of the bankrupt, ^°^- ^ 
 ' because the public as well as the creditors have.a right to know 
 ' how the bankrupt has disposed of his property. The creditors 
 ' are only interested as far as respects the payment of their debts, 
 ' but the public are interested in knowing whether the bankrupt 
 ' ought to be restored to his former credit by obtaining his certifi- 
 ' cate. It has been contended that the creditors are not injured 
 ' by the agreement ; but it is a detriment to the public, which is a 
 * matter of great importance.' 
 
 " On these grounds, I am further of opinion that the defendant 
 is entitled to judgment on the second point, the agreement and note 
 being void, as contrary to the policy of the insolvent laws." 
 
 On appeal, Bust appeared for appellants and Dias for 
 defendant respondent. 
 
 The -following is the judgment of the Supreme Court: — 
 
 This ia an action by the payees against the maker of a promis- 
 sory note, for one thousand pounds ( £1000 ) payable at twelve 
 months, which bears date on the 30 July 1858. 
 
 The plaintiffs in this case were assignees of one Po- 
 nambalam, who was adjudicated an insolvent, according to the 
 Ordinance) on the 31st March 1858. He did not dispute the va- 
 lidity of adjudication. A great number of creditors proved their 
 debts, assignees were chosen, and a day for the insolvent's exami- 
 nation regularly appointed. The assignees had reason to believe, 
 and did believe, that Ponambalam had fraudulently disposed of much 
 of his property. They intended to examine him as to this ; and 
 for the purpose of making the investigation more efEective, they had 
 caused several members of his famUy to be summoned for the pur- 
 pose of being examined before the Insolvent Court. Thus far the 
 assignees had acted in the strict line of official duty, and accord- 
 ing to the true spiirit, and policy of the Insolvency laws, which 
 require the assignees to be prompt and vigorous in securing and 
 recovering all the available estate of the insolvent, and in causing 
 the assets to be expeditiously and equitably distributed among all 
 the creditors that have proved. 
 
 The intention of the assignees to examine the insolvent, and 
 the members of his family as to his disposal of his property was 
 well known, and caused the greatest alarm to the insolvent and 
 his friends. That alarm must have been evident to the assignees, 
 and ought to have made them still more vigilant and determined in 
 the performance of their duty. But when the examination was 
 coming on, the defendant and other friends of the insolvent made 
 an arrangement with the assignees, by which the examination 
 was stopped ; and part of which arrangement was the giving, by the 
 
u 
 
 1860. defendant to the aisignees, of this promissory note. The defen- 
 JNov. 6. dant now resists payment on the grounds, first, that the note was 
 given for an illegal consideration ; secondly, that it was given for a 
 consideration that has failed. If he sustain either of these defen- 
 ces, he is entitled to judgment. The District Court has found in 
 his favor in both points, and as the Supreme Court is clearly of 
 opinion, that this arrangement, in furtherance of which this note 
 was given, was an illegal arrangement, and contrary to the true 
 policy and spirit of the Insolvent laws, for reasons which will be 
 presently set forth, that judgment for the defendant will be 
 affirmed. 
 
 The complicated facts, and contradictory evidence of this case,, 
 are carefully sifted, and fully set forth in the judgment of the 
 Court below; and the District Judge in the same judgment cites 
 and comments on several leading cases on the subject, to which 
 may be added the cases of Hall v. Dyson, 21 L. J. Q, B. 224 
 and Staines v. Wainwright, 6 Bing. New Cases, 174. 
 
 The Supreme Court need not in this judgment enter into the 
 evidence further than to advert to some of the broad facts, which 
 are either admitted on both sides, or which, though nominally 
 disputed, are too clear to admit of any reasonable doubts. And 
 the Supreme Court premises that, in trying to learn the true nature 
 of the transaction, as part of which, the promissory note was given, 
 the Supreme Court does not look so much to the formal agreement 
 which was subsequently drawn up, as to the writings which passed 
 at the time, and the parol evidence of what then took place between 
 the parties. 
 
 When the insolvent's friends succeeded in stopping the dread- 
 ed examination, they offered a compensation of ten shillings in the 
 pound. The note now sued on was one of the securities for the 
 payment of that compensation. So far all the witnesses agree* 
 In return for this ten shillings in the pound, there was to be a stop 
 to the insolvency proceedings, and an attempt, at least, to annul , 
 the adjudication, and all that had already taken place under.it. 
 The Supreme Court uses the words " attempt at least," because 
 there is a dispute between the witnesses whether the undertaking 
 on the part of the assignees did or did not go further. The defen- 
 dants say that the assignees undertook to procure a legal and effec- 
 tual annulment of the insolvency ; and one of his defences to this 
 action is that , they have either omitted or failed to do so. The 
 plaintifEs contend that they only undertook to do all in their power 
 towards annulling the insolvency ; and that they had done all in 
 their power for that purpose. And it appears that on the 17th of 
 August, after the note was giTien, a motion paper signed by the as- 
 signees, the insolvent and many creditors, was laid before the 
 insolvent Court on which the order, purporting to annul and su&- 
 
85 
 
 pend tLe insolvency proceedings was obtained. That order has 3860. 
 already been brought before the notice of the Supreme Court, in i^ov. 6 
 another case, arising out of Ponnambalam's affairs ; and the Judges, 
 who then sat here, called it an order " on the face of it contrary 
 to the proceedings of the Insolvency Ordinance." The Supreme 
 Court quite agrees with them ; but it is needless to discuss now 
 the worth, or worthlessness, of that order, or whether it is all that 
 the assignees undertook to procure For it is clear to the Sup- 
 reme Court, that the plaintiffs on their own shewing, when they 
 made the arrangement with the Insolvent's friends, violated their 
 duty as assignees ; and that they cannot recover this note, which 
 was one of the inducements to that misconduct. 
 
 The Supreme Court does not base its judgments merely on 
 the indisputable fact that one element of the arrangement between 
 the parties ( and present to the minds of all parties,) was under- 
 standing that the'examination which might have led to his under- 
 going the inconvenience and the ignominy which the insolvent 
 laws ordain for fraudulent debtors, might also have led to the re- 
 covery by the assignees of property available for the benefit 
 of the general body of creditors. The Supreme Coiirt would de- 
 cide the case against the assignees were no facts against them 
 clear, besides the undeniable fact, that the assignees and the in- 
 solvent and his friends, knew perfectly well, when they made 
 this arrangement, that it had not the sanctionof all the creditors. 
 Every one of the parties in this arrangement was aware of this, 
 and every one also knew that it was hopeless to try to annul the 
 insolvency, in accordance with the 140th and 141st sections of the 
 Ordinance, although the substance of proceedings under the Ordi- 
 nance, was adopted in the motion paper for the Insolvency Court, 
 which was drawn up before this note was given, but not used till 
 some time afterwards. 
 
 Here, then, the Supreme Court finds assignees who were ap- 
 pointed, as all assignees are, to carry on the insolvency proceed- 
 ings for the benefit of all the creditors, agreeing to stop at least, 
 and to try at leagt, to annul those proceedings against the known 
 wishes of some of their constituents and cestuis que trusts. Such 
 conduct is legally indefensible, and no Court ought to up- 
 hold a security whereby such conduct was procured. 
 
 , In saying this, the Supreme Court does not mean to impute 
 any moral guilt to the assignees. They may, probably, have 
 tnought that in getting the ten shillings in the pound they were 
 doing a good thing for the mass of the creditors, and that the ar- 
 rangement would not be binding on such creditors as disliked it. 
 Thus the Supreme Court finds the second plaintiff on his first ex- 
 amination saying : " This agreement was entered into on the un- 
 " derstanding that the insolvency of Ponambelam, should be quashed, 
 
86 
 
 1860. " so far as regards the creditors who were parties to it," and Mr. 
 Nov. 5 Martensz, the Proctor for the Assignees, says in this evidence that 
 — " there was a general understanding that the agreement would be 
 
 " binding on the parties who joined, but not on others." But it 
 ought to have been remembered that the non-joining creditors 
 must necessarily be prejudiced by the arrangement, though it 
 might not be legally binding on them. The insolvency proceed- 
 ings, under which they had proved, had taken away from 
 them for a long time, at least, the opportunity of suing 
 Ponambelam and trying to obtain payment of their debts fi-om him. 
 They had each and all of them a perfect right to exercise an in- 
 dependent judgment, whether ten shillings in the pound was a 
 sufficient composition, or whether any composition at all ought to 
 be accepted in such a case. The minority could not be boimd by 
 the opinion of the majority, unless in a meeting convened accord- 
 ing to the 140th section of the Ordinance, which requires that the 
 bankrupt should first have been examined, so that the whole truth 
 of the case should have been made known, which requires long 
 notice, ample time for consideration, and a majority of not leas 
 than nine-tenths. It would have been mere mockery to tell the 
 non-joining creditors to go on with the insolvency proceedings, 
 after the assignees had abandoned them ; nor could they have been 
 fairly called on to take on themselves the trouble and expenses 
 of an application to this Court to set aside the superseding order 
 of the Insolvent Court, or of application to the Insolvent 
 Court to appoint fresh assignees or make the old ones 
 do their duty. In any event Ponambelam had gained time 
 for more effectually concealing the fraudulent transfers of property 
 of which he had evidently been guilty, and for making it difficult 
 or imposible to trace and recover that property. The whole 
 arrangement was an attempt to evade the letter of the law, and to 
 defy the spirit of the law, and the law refuses to uphold it. 
 
 The Supreme Court gives no opinion, here, whether even with 
 the consent of all the creditors, an Insolvency can be suspended 
 after adjudication, in any other way than by proceeding accord- 
 in to the 140th section. The Supreme Court is quite clear that, ' 
 without such unanimous consent, a private arrangement to annul 
 the insolvency is invalid and illegal, and has no hesitation, in this 
 case, in affirming the judgment against the assignees. 
 
1861. 
 
 19th June. 
 
 Present : — Ckeast, C. J., Temple, J., and Thomson, J. 
 
 C. E. Chavakaclicheri, 1 „ , , ^ ■, a-i i , ■, 
 
 ■KT Qj,, 'V Valayudan et al v. Staemberam et al. 
 
 The judgment of the Court was as follows: — 
 
 This was an action brought by the plaintiffs to recover pos- Intervention, 
 session of certain land. The defendants in their answer said they 
 had no claim upon the land and also denied occupation. The pre- 
 sent appellants, at the same sitting at which the defendant's answer 
 was taken, intervened, and in their petition of intervention they 
 claimed the land through their mother, under an ancient transfer 
 deed and also by prescription. At a subsequent sitting of the 
 Court, they filed this deed and a list of their witnesses. The case 
 was several tirnes fixed for trial but adjourned for various causes, 
 but never through any default of the intervenients, who appear to 
 have been ready with their witnesses upon every occasion. At 
 last comes the following entry by the" commissioner of the pro- 
 ceedings of the 6th March: — "Defendants absent, plaintiffs say 
 " they waive objection and costs. As defendants say they have no 
 " claim and are absent to-day, intervenient is therefore withdrawn 
 " from this case, since the case between original parties is at an end. 
 " Judgment for plaintiff to be quieted in possession. This judgment 
 " not to affect intervenients, who can bring a case of their own." 
 
 As the intervenients did not withdraw voluntarily, they ap- 
 peal against the judgment and insist on their right to contest the 
 plaintiff's claim and to have their title considered in the present 
 case. 
 
 The Supreme Court is of opinion that this appeal is well 
 ' founded and the judgment of the Court below in favour of the 
 plaintiff is accordingly set aside. " The principle of the law of 
 " intervention is, that if any third person considers that his interest 
 " will be affected by a cause which is depending, he is not bound to 
 " leave the case of his interest to either of the litigants, but has 
 " a right to intervene or be made a party to the cause, and take on 
 " himself the defence of his own right, provided he does not disturb 
 " the order of the proceedings." This enunciation of the principle of 
 intervention is part of the judgment in the well known case of 
 
18C1. tte President and Members of the Orphan Board v. VanSeemen 
 August, G ofid another, (1 Knapp's Privy Council Reports p. 91.) 
 
 It would be idle to allow an intervenient to come in to defend 
 his own rights, and then to sufEer him to be put out of Court by 
 the renunciations and disclaimers ( possibly collusive ) of the ori- 
 ginal parties. There is indeed express authority that this ought 
 not be done. See the Libri Practicanim Observationum Andrea 
 Gaili, p 125, " Renuncio Principalis non nocet Intervenienti." 
 
 We may also usefully refer here to a former decision of this 
 Court, cited in Morgan's Dig. p. 59. The Supreme Court there 
 rightly states a main reason why the ample power of intervention is 
 allowed by the Civil Law. It is done " in order to avoid multi- 
 plicity of suits." But the course which the Court of Requests in this 
 case has taken by directing the plaintiff to be put in possession of 
 the disputed property, and telling the intervenients that they may 
 begin another action, is a plain multiplication of suits and it, places 
 all the intervenients at manifest disadvantage. The judgment is 
 set aside. 
 
 Mohameclan 
 Law — cus- 
 tody of 
 children. 
 
 6th August. 
 
 Present : — Temple, J. 
 
 In re Aysa Natchia and others. 
 
 The Fiscal for the "Western Province returns the writ of 
 Habeas Corpus, issued in the above case, as served. ; 
 
 Mr. Advocate Lorenz appears for Ahamado Lebbe and Um- 
 ma Natchia, and contends that according to the Mohamedan Law 
 ( Hedaya B. 4. C. 13.), the maternal grand mother is entitled to 
 the care of the children in preference to their father, and quotes 
 a decision of the Supreme Court dated 14th June, 1843. 
 
 The Supreme Court declines to interfere on behalf of Aysa 
 Natchia. 
 
 Frivolous or- 
 
 vexatious 
 
 arrest — Ordi 
 
 uauce No. 15 
 
 SOth August. 
 Present : — Temple J. and Thomson J. 
 
 P. C. Kaigalle, } 
 No. 6546. j 
 
 Kolende Markar v. Hendrich et al. 
 
 The judgment of the Court was as follows : — 
 
 This is a charge for frivolously or vexatiously arresting 
 the prosecutor and detaining him in custody for three days, without 
 sufficient cause, on the 29th, 30th and 31st of May, 1861, in 
 
89 
 
 The clause enacts " that every peace officer, or officer of the 1861. 
 " law and every private person frivolously or vexatiously arrest- Aug. 20. 
 " ing any person, shall, over and above his liability to any action f , ^o 
 " for false imprisonment or other liability, be guilty of an ofEence °20 rOrdi-' 
 " and be subject on conviction thereof to such punishment by fine nance No. 11 
 " or imprisonment with or without hard labour, as the Court before of 1868, cl. 
 " which such conviction shall be Obtained shall think proper to ^^^J 
 « award." 
 
 The Court is of opinion that the judgment of the Court below 
 ought to be reversed on two grounds: — 
 
 (1). That the arrest was not in law a frivolous or vexatious 
 arrest ; 
 
 (2). That the defendants were acting ministerially only, and 
 are not liable for the arrest. 
 
 A frivolous or vexatious arrest can only be an arrest mali- 
 cious in its nature, or without substantial ground of suspicion, 
 or upon a charge plainly not an ofEence in law. In this case, a 
 principal officer of Police received information that the complainant 
 had purchased a bag of rice from a carter, into whose hand it had 
 been given with other goods to convey to Kandy. It is said that 
 the complainant acted in a straightforward manner and in open 
 day, and that he gave a good price for the goods, also that the 
 carter had a good reason for selling the rice. Much, however, of 
 this was the result of subsequent enquiry. The Court is of opinion 
 that the Inspector had, on the facts as related to him, a good 
 ground of suspicion that the complainant had been guilty of receiv- 
 ing stolen goods, and that not only was he entitled, but that it was 
 his duty, to order the arrest of the complainant. The arrest was 
 not, therefore, in the first instance vexatious and frivolous. The 
 Inspector may be liable for not bringing the complainant before a 
 magistrate, but that is not the charge in this case, nor is the 
 Inspector himself charged in this case at all. 
 
 In the second place, the defendants were acting under the 
 the orders of the Inspector, orders which they had every reason to 
 believe to be lawful, and as they are required by law to obey all 
 orders of their superior that they do not know to be unlawful, they 
 are not liable for such an arrest as this ordered by a superior 
 officer. If the Police were guilty of any excess in effecting the 
 arrest, that should be made the substance of a separate charge of 
 assault. 
 
 In the last place, the Police are protected in the execution of 
 their duty by the 19th. cl. ofOrd. No. 17 of 1844, which enjoins to 
 apprehend any person they may have reasonable cause to suspect 
 having committed any crime ; in this respect, the Court is of opinion 
 the Police did their duty. . 
 
90 
 
 1861. Sith August. 
 
 Aug. 27. 
 
 _ Present : — Temple, J., and Thomson, J. 
 
 No 59202^ °' ( -^^"'^^ Hamy v. Hendappoo. 
 
 ,. . , This case was remanded for a new trial in these terms : — 
 
 Maintenance 
 
 — illegiti- This is a complaint against the defendant for not supporting 
 
 mat€ children }^^ three illegitimate children. On certain admissions of the 
 
 marned complainant, the Court below has dismissed the case without hearing 
 
 woman — ,^.. ',^, ... ,, ,. ,,° 
 
 presumption "i®^ evidence. ihe admissions made by complainant are that she 
 
 of legitimacy has a husband living at Mutwal, and that she has been living 
 
 — evidence, separately from him for some time. On the face of these admissions, 
 
 the Court below has decided that as the complainant's lawful husband 
 
 is living within easy access, he is liable for the support of the 
 
 complainant's children, as there has been no legal separation. 
 
 This Court is of opinion that this judgiiient ought to be set 
 aside. The doctrine enunciated by the Court below may be said 
 to be the law, but it is not the whole law. The law in certain 
 cases recognises a conclusive presumption iu favour of legitimacy 
 Where the husband and wife have cohabited together, and no im- 
 potency is proved, the issue is conclusively presumed to be 
 legitimate, though the wife is shewn to have been at, the same time 
 guilty of infidelity ; and even where the parents are living separate, 
 a presumption of legitimacy arises so strong that it can only be 
 rebutted either by proof of previous divorce, or by cogent and 
 almost irresistible proof of non-access in a sexual sense. Nor is 
 the fact that a woman is living in notorious adultery in itself 
 sufficient to repel this presumption. By the very form of the pro- , 
 ceedings in this case, it is clear that the Police Magistrate, after 
 having viva voce examined the complainant, came to a judgment 
 without further hearing the case. There is nothing to shew that 
 the complainant was called upon to prove her case; even the very 
 process by which the admissions were obtained is not entered upon 
 the proceedings. 
 
 This then is not a case in which the Court thinks that any 
 affidavit of neglect of evidence is necessary to induce it to order a 
 new trial ; the proceedings themselves shew that the complainant 
 was not called upon for evidence. Until the complainant's evidence 
 is heard, how can any Court say that she had not " cogent and 
 irresistible proof of non-access to her husband." The judgment is 
 therefore set aside, and a new trial ordered, with directions to the 
 Court below to hear the complainant's case in full. At the same 
 time the Court below is directed that all evidence of the parents as 
 to whether they have or have not connexion must be rejected: not 
 ouh- all direct questions respecting access, but all questions which- 
 
91 
 
 have a tendency to prove or disprove tint fact, unless they are put 
 with a view to some different point in the cause; although there 
 appears to be no objection to this woman confessing her adulterous 
 connexion after the fact of her husband's non-access has been already 
 proved by independent evidence, and thus enable the Magistrate, 
 in the event of her evidence being corroborated in some material 
 particulars, to make the proper order. This exception to the general 
 rule of exclusion enunciated above is founded on necessity. 
 
 1861. 
 Oct. 1. 
 
 24th September. 
 Persent: — Thomson, J.' 
 
 N '51079 r Woutersz V. Andris, 
 
 The conviction and sentence were set aside in these terms : — 
 
 The accused was convicted of permitting arrack to be 
 sold in his house without a license. It was proved that ar- 
 rack was sold in the accused's house by his son in the absence of 
 the father. The evidence carries the case no farther. This is not 
 legal evidence of permission; for this Court or the Court below 
 cannot say that the arrack miay not have seen sold without the 
 wish, or even in fraud of the father. Some further evidence of the 
 connection of the father with the sale is necessary to a legal con- 
 viction. It would be a very dangerous doctrine to hold a man 
 liable simply because an evil deed is done in his house by a rela- 
 tive, although it may be a ground of suspicion. 
 
 Sale of 
 an-ack with- 
 out license 
 — evidence 
 of permis- 
 sion. 
 
 1st. October. 
 Present : — Ckeast, C. J., and Thomson, J. 
 P. C. Chavakachcheri, 1 
 
 No. 19860. 
 
 Saravanamuttu v. Cartegasen et al. 
 
 ment. 
 
 This was an appeal preferred by the complainant' against an Granting of 
 order of the court below directing the case to be struck off, postpone- 
 as the complainant was not ready to go on with it and assigned no •""" 
 reason for being unprepared. 
 
 The Supreme Court dismissed the appeal, and observed inter 
 alia as follows: — 
 
 If Police Magistrates would shew more firmness in re- 
 fusing applications for adjournment, except in very special instan- 
 
92 
 
 1860. 
 Oct. 8. 
 
 ces and wben the interests of justice evidently require more time 
 to be allowed, the business of their courts would not fall so heavi- 
 ly in arrear as now is frequently the case, and the proceedings be- 
 fore them would better deserve the title of summary, a title which, 
 at present, we can harHly give the long lists of repeated postpone- 
 ments, which we find so largely recorded in the books of Pohoe 
 Courts, which it is one of our circuit duties to inspect. 
 
 Practice — 
 iudgment 
 by default 
 — power of 
 
 Court to 
 re-open — 
 
 order not 
 appealable. 
 
 8th October. 
 Present : — Creasy, C. J., and Thomson, J. 
 
 C. R. Harrispattu } 
 2545. J 
 
 Alwis V. Yming. 
 
 In this case the Supreme Court rejected the appeal in these 
 terms : — 
 
 In this appeal, the plaintiff complains of an order of the 
 Commissioner whereby the defendant, against whom judgment by 
 default has passed for a second time, has for the second time been 
 let in to defend. 
 
 It is urged by plaintiff that there is no power to re-open judg- 
 ment by default a second time. We . do not agree in that view ; 
 but certainly such an indulgence ought never to be granted on 
 such an unsatisfactory affidavit as was used in the ■ present case. 
 The defendant's Proctor says in it that he himself Was prevented 
 by illness from attending the Court, and that it was impossible for 
 him to warn his client. He does not shew why or how it was 
 impossible to do so ; nor does he shew why he could not have ob- 
 tained tho aid of some other Proctor to act for him, at least to the 
 extent of requesting an adjournment. 
 
 This suit was instituted on the 27th April 1860. It was 
 prolonged till the 20th September by a string of adjournments, 
 none of which appear to have been caused by any neglect or 
 default of the plaintiff. On the 20th September the plaintiff 
 obtained judgment by default for the first time. Defendant appli- 
 ed on the 30th of November to open that judgment, and on the 
 27th of February in this year the commissioner decided that the 
 judgment should be opened, and the 9th of April was fixed for 
 the hearing. Defendant on the 23rd March filed his answer, but 
 on the 9th of April neither he nor his Proctor were present, and 
 the plaintiff had judgment by default for the second time. On the 
 29th of May the defendant's Proctor files an affidavit of excuse, 
 and on the 27th of June the defendant furnishes a stamp for 
 
03 
 
 notice to plaintlffi to sliew cause why jurlgment should not be re- 1861. 
 opened. The Court appoints July the 24th for hearing this matter, Oct. 10. 
 and on that day decides to re-open the judgment a second time, — 
 
 examines the parties, and then further postpones the case for the 
 plaintiff to get up his witnesses. 
 
 It is not to be wondered at that the plaintiff should 
 feel aggrieved at these fifteen months of the law's delay in a claim 
 for £ 5. 10 0. But we are of opinion that we cannot entertain 
 his present appeal against the order of July 24th. The Court of 
 Eequests Ordinance gives an appeal " to any party who shall be 
 dissatisfied with any final judgment or order having the effect of a 
 final judgment " But the order of the Commissioner to re-open 
 the judgment by default is not a final judgment, or an order having 
 the effect of a final judgment, as against the plaintiff, who, when 
 the case proceeds, may, for aught we know, be the successful party. 
 It is true that the following Ordinance as to Rules of Practice 
 speaks of appeals against any judgment or order of the Court of 
 Eequests; but we must interpret these words of the principal Ordi- 
 nance, expecially as the second Ordinance distinctly purports to 
 provide " Rules of Practice for regulating the jurisdiction in the 
 Courts of Requests," and it does not profess to do anything more. 
 
 We do not, however, wish it to be understood that the pre- 
 sent plaintiff, if the final judgment of the Court of Eequests should 
 be against him with costs, will not have the power of appealing 
 against that judgment and of bringing in that appeal before the 
 effective notice of the Supreme Court any errors of law or in fact 
 committed by the Commissioner in any part of the action (see the 
 latter part of the 19th cl. of the Court of Requests Ordinance); and 
 we wish at once to express our regi'et at observing such dilatory 
 proceedings in Courts, which ought to be Courts of summary 
 justice. 
 
 If Commissioners would be more strict in refusing applications 
 for adjournment and for re-opening cases, except on very strong and 
 on very stringent conditions as to payment of the costs occasioned by 
 delay, the burden of work on themselves would be much lighter, 
 and justice would be administered in a manner much more satis- 
 factory for the interests of honest suitors. 
 
 10th October 
 Present : — Creasy, C. J., Temple J., and Thomson, J. 
 
 ■NT ' ^(W7 I Sii^ho Appu V. Ookuwa. 
 
 In the following judgment of the Supreme Court, which suf- Sale of land 
 ficiently sets out the facts of the case, the judgment a[)pealed — warranty 
 
94 
 
 1861. 
 Oct. 29. 
 
 of title — 
 eviction — 
 claim for 
 value and 
 compensa- 
 tion for im- 
 provement. 
 
 against was modified by it being decreed that plaintifE do recover a 
 further sum of £ 4 with costs of appeal: — 
 
 In this case the plaintiff in 1857 purchased from the defen- 
 dant a piece of land, the deed containing a warranty of title ; 
 and having entered into possession, he built a house in the 
 land. Subsequently the land was sold by the crown at a pub- 
 lic sale to a third party, who is in possession. 
 
 The plaintiff sues his vendor for the purchase money 
 and the value of the house which he had built, and has ob- 
 tained judgment with costs for the purchase money £ 2, but 
 not for the value of the house. 
 
 He appeals on the ground that he should also have judg- 
 ment for the value of the house, in view of the Roman Dutch 
 Law, that " he who has built on another's land, of which he was 
 in possession bona fide, may on losing possession recover the use- 
 ful expenses " ( see Grotius b. 2, c. 10, s. 8, p. 108.; and Vander 
 Keessel b. 2, c. 10, s. 8, p. 67.) 
 
 The Supreme Court considers that plaintiff ought to re- 
 cover the value of the' house, it being only such an one, as, and not 
 more expensive than, might fairly have been expected by the vendor 
 to have been built on the land. 
 
 Defendant's evidence proves the house to be worth four 
 pounds. 
 
 Husband 
 and wife — 
 
 liability of 
 wife's share 
 of common 
 property on 
 
 obligation 
 of husband 
 arising out 
 of delict 
 amounting 
 
 to crime. 
 
 S9th October. 
 Present : — Creasy C. J., Temple, J., and Thomson, J. 
 
 isr ' 9fi4-l4- f Corey y. Fernando, etal. 
 
 The following judgment of Morgan, D. J., sets out the facts of 
 the case: — 
 
 " George Felsinger and three others were tried for theft in the 
 Supreme Court and found guilty. The complainant subsequently 
 brought a civil case. No. 26414, in this Court, and obtained judg- 
 ment against Felsinger and the three others, jointly and severally, 
 for £ 200 and costs. 
 
 "Execution having been issued, three gardens with the buildings 
 thereon, situate at Colpetty, were seized as the property of Felsin- 
 ger, and advertised for sale. 
 
 "His wife now moves for an order to exclude her half share of 
 the properties, and to declare the same free from liability. 
 
 "Having heard counsel, pro and con, and having duly consider- 
 ed the authorities cited by them viz., Grotius' Introd. 1. 5. 22, 
 Lorenz'a Van der Keessel, p. 24, Kodenburg, 308, Van Leeuwen's 
 
95 
 
 Commentaries, 525, Lceiiivis' Decisions, 103, and A. Wesel de dam. inter 1861. 
 conjug., 59, it appears to me that slie is entitled to such an order. Oct. 29. 
 It is clearly laid down in these authorities that a wife's property is 
 not liable for. the husband's delicts, but that her half should be re- 
 served to her. Some writers ( Voet ad Pand. 23. 2. 56 ) draw a 
 distinction between the higher and the lighter penalties. " But 
 such an opinion," says Vander Keesel in his dictata ( Praelect ad 
 Grotii Introdiic. lib. 1. pt. 5. § 22 ), " cannot in any manner be 
 supported. I am quite of opinion with Eodenburg and others that 
 whatever the husband has to pay ex delicto, whether the cause be a 
 civil or a criminal one, should be paid wholly out of his half 
 either of the common property or of the common profits, and that 
 the wife is not bound to contribute any portion thereof. Motion 
 allowed. Costs divided." 
 
 On appeal preferred by the plaintiff, the Supreme Court de- 
 livered its judgment as follows : — 
 
 The facts of this case make it necessary for us to determine 
 this question : — Is the wife's share of the common property of 
 husband and wife liable, in a civil action against the husband, for 
 the husband's obligation arising out of delict amounting to crime ? 
 
 We are of opinion, for the reasons we are about to set forth, 
 that the wife's share is not so liable, and we shall aiSrm the judg- 
 ment of the District Court in her favour accordingly. 
 
 The point is one of great practical importance, but no decision 
 of our own Courts, or of the Dutch Courts, on it is to be found. 
 
 The dicta of the text-books are, with one exception, not very 
 clear, and it has been necessary to examine clearly the whole of the 
 greater part of several treatises that have been cited, in order to 
 judge what effect is to be given to particular expressions of 
 the writers. 
 
 The dispute between the parties was thus far narrowed down : 
 It was admitted on all hands that the wife's share of the common 
 property is liable for all contracts made by the husband. It was 
 equally admitted on all hands that, when there is a criminal prose- 
 cution against the husband and he is to be punished by the sentence 
 of confiscation or fine, the wife's share is not liable to be seized 
 under the criminal judgment against him. 
 
 A distinction which some of the Dutch jurists had endeavour- 
 ed to make between lighter and more atrocious crimes in this 
 respect, but which had been repudiated by other and later au- 
 thorities, was very properly not attempted to be set up here. 
 
 The contention for the appellant (the judgment creditor) was 
 that, although in a criminal prosecution against the husband the 
 wife's share is not liable, it is always liable in a civil action against 
 him, whether on obligation arising out of contract or on obligation 
 arising out of delict of any kind. 
 
96 
 
 n^^^90 The contention for the respondent was that the distinction as 
 
 Uc^2J. to the liability or non-liability of the wife's share is created, not by 
 the form of procedure against the husband, but by the nature of 
 the act, that made the husband liable ; that the husband who ia 
 perpetual guardian of the wife and sole manager of the joint pro- 
 perty binds her share in the property by all his contracts, but that 
 when he commits a delict, the consequent liability affects him and 
 his share of the property only. 
 
 We were referred to Grotius, Van Leeuwen, Wesel, Groene- 
 wegen, Kodenburg, Loenius and Vanderkeesel. The general effect 
 of the writings of Grotius, Van Leeuwen, Wesel, Groenewegen and 
 Kodenburg may be stated thus : they all lay down on broad and 
 unequivocal terms that the husband's contracts bind the wife's 
 share of the property. They then cite cases and give reasons 
 which establish the non-liabihty of the wife's share in respect of 
 fines or confiscations imposed on the husband in criminal prosecu- 
 tions against him, but they do not expressly deal with the precise 
 point raised here : is the wife's share liable in a civil action, not a 
 criminal prosecution, for delict amounting to crime ? 
 
 Particular passages may be culled here and there from their 
 writings which, if they stood alone as their maxims on the subject, 
 might seem to determine it ; but when taken with reference to 
 their contents, they cannot be thought thus decisive. But on the 
 whole, the effect of their writings is to make us think that these 
 jurists would not have held the wife's share liable in such a i,ase 
 as the present. It is to be remembered that the wife's liability for 
 the husband in any way and to any extent is exceptional to the 
 Koman Law; and the Dutch jurists always regarded the Roman 
 Law as giving general rule in cases where the local Dutch Law was 
 silent or doubtful. We think that those writers took care to point 
 out the liability of the wife for the husband's contracts as an es- 
 tablished deviation from the Koman Law; that they there drew 
 attention to the criminal cases, where it had been attempted in 
 vain to involve the wife's share of the property in the consequences 
 of a confiscation or penalty decreed against the husband ; but that if 
 the present question, the liability of the wife's share- in an action 
 for the husband's delict amounting to crime, had arisen, they would 
 have followed the principle of the Roman Law, which is in favour of 
 the wife, in a case where the local laws were not clearly to the con- 
 trary. ('See Fa»Ze62(w««, I3t. 2, p. 525andGail, Pract. Obser., 494 j. 
 
 A case indeed was cited to us on behalf of the respondent as 
 deciding the non-liability of the wife for the husband's crime : it 
 is in Loenius, p. 670 : but on examination of it, it does not seem to 
 us to go beyond the criminal cases cited in Groenewegen and others. 
 It appears to have been a prosecution of the husband for homicide, 
 
97 
 
 in whicla the husband obtained a pardon to pay a sum of money to 1861. 
 the relations of the slain man. Oct. 29. 
 
 VanLeeuwen (Cenmra Forensis i. 1. 22J, in dealing with the ~ 
 
 wife's liability, specifies cases of criminal prosecutions only, but he 
 gives a reason for the wife's non-liability to the Treasury in a cri- 
 minal prosecution, which would make her also not liable to a 
 plaintifB in a civil action for the husband's crime. He says, ," the 
 " wife and husband enter into no partnership in crime, and there- 
 " fore neither party is bound by the misfortune of crime committed 
 " by another." It is proper however to observe that other writers 
 repudiate the idea of the wife's liability depending on any relation 
 of partnership. But there is one explicit authority on the subject, 
 and a very high one : Vanderkeesel, who is clearly in the wife's 
 favour. He states the question broadly : '' "What is the law when 
 " the husband has been condemned in a pecuniary penalty, either 
 " criminal or civil, by means of a delict ?" (Si ex causa delicti in 
 mulctam pecimiariam sive criminalem sive civilem fuerit condemnatus). 
 He reasons the matter very fully and decides emphatically in the 
 wife's favour ; Quicquid ex delicto solvit maritus, sive causa sit 
 criminalis sive civilis, illud ex ejus semisse vel bonorum communium, 
 vel communis lucri solvendum ess€ nee quicquam uxorem conferre 
 tenui. 
 
 On the whole, we think that the weight of Dutch authorities, 
 the general controlling influence of Roman Law, and the reason of 
 the thing, concur in bringing us to decide that the wife's share of 
 the common property is not bound, in either civil or criminal pro- 
 ceedings, by the husband's obligation arising out of delict amount- 
 ing to crime. 
 
 It will be observed that in giving judgment, we do not go to 
 the full length of deciding that there is no kind of delict which, if 
 committed by the husband, will create an obligation affecting the 
 wife. Cases may arise where the husband, in the bona fide manage- 
 ment of the ccrmmon property, may incur obligations ex delicto 
 without any criminal or morally wrong conduct. The plaintiff in 
 an action on such delict might urge arguments for his claim on the 
 wife's share which would be inapplicable here. We express no 
 opinion on such cases one way or the other ; but we have no doubt 
 that on the proceedings now before us, our proper course is to decide 
 in the wife's favour, and to affirm the order of the District Court. 
 
 Affii-med, 
 
98 
 
 18G1. 
 Oct. 29. 
 
 False or 
 frivolous 
 prosecution 
 —[Ordin- 
 ance No. 11 
 of 1868, cl. 
 106]— know- 
 ledge of 
 falsity — ■ 
 mode of ad- 
 judication 
 
 P. C. Galle, 
 No. 41172 
 
 ' > Rajapakse v. Angerisa et al. 
 
 The facts of this case are sufficiently indicated in the follow- 
 ing judgment of the Court : — 
 
 In this case the complainant charged the defendant with steal- 
 ing his fence sticks. He states before the magistrate that he made 
 the charge on what had been told him ; and he produced two 
 witnesses each of whom deposed to' having seen the defendant take 
 the sticks, and the first of whom stated that he told the plaintiff of 
 what he saw. These witnesses contradicted e?ch other on some 
 material points, and the final entry in the note of proceedings is : 
 " Case dismissed. Complaint is fined £1 for bringing- a false case." 
 
 The complainant appeals against this fine, and we think his 
 appeal must be allowed. The 12th cl. of Ordinance 11 of 1843 
 gives power to a Police Court to fine a prosecutor, " wheBever it 
 shall appear that any prosecution has been instituted therein on 
 false, frivolous or vexatious grounds." But in order to justify 
 under this section a fine for a false charge, it should appear not 
 only that the charge, when investigated, proved to be erroneous, 
 but that it was false to the prosecutor's knowledge at the time when 
 be instituted the proceedings : there is no proof whatever here that 
 such was the case. 
 
 The present appellant may have been told by the witnesses 
 that they had seen defendant steal the sticks ; he may have believed 
 them, and he may have, in perfect honesty and without any malice, 
 instituted the charge on the faith of their statements, though their 
 evidence afterwards was unsatisfactory in the magistrate's judg- 
 ment, with which in this respect we do not interfere. 
 
 The Supreme Court wishes also Police Magistrates to bear in 
 mind when they fine prosecutors, under the 12 section of Ordi- 
 nance No. 11 of 1843, (and such fines are often well deserved and the 
 infliction of them is often very salutary), there ought to be an 
 express adjudication on the face of the proceedings, that the prose- 
 cution was instituted on false, frivolous or vexatious grounds, as 
 the case may be. 
 
 P. C. Kaigalle, 
 
 Arrack, Ordi' 
 nance No. 
 10 of 1844, 
 
 cl. .'12 — inno- 
 cent and 
 
 No. 16940, 
 
 ie,) 
 ■ i 
 
 Fernando v. Fernando et al. 
 
 The following judgment of the Court sets out the facts of 
 the case : — 
 
 The defendant in this case was charged under Ordinance No. 10 
 of 1 844 with possessing 1^ gallons of arrack Avithout a license. 
 
unconscious 
 poesesBion. 
 
 99 
 
 Tke defendant, in answer to the cl; irge, admitted that a bas- 1861. 
 ket containing several bottles of arrack \'.as found in his dwelling Oct. 29. 
 house, but asserted that the basket had been left there by a cart- 
 man, who said that a person whom he named would call for it next 
 day ; and defendant further asserted that he, defendant, was 
 ignorant of its contents. 
 
 There was some slight conflict of evidence, and ultimately the 
 magistrate, as appears by the minute of proceedings, feeling a 
 doubt as to the truth of the matter, gave the defendant the benefit 
 of the doubt and acquitted him. 
 
 We have no authority to review the magistrate's decision 
 BO far as regards the facts ; but it is maintained before us in 
 appeal, that even supposing the facts to have been as asserted by the 
 defendant, he ought to have been convictpd ; and we are referred 
 to the words of the Ordinance which enact that " the possession by 
 " any person of any spirit distilled from the produce of the 
 " cocoanut or other discription of palm or of the sugar cane shall be 
 " unlawful," except under certain specified circumstances, none of 
 which existed or were pretended to exist in the present case. 
 
 Our attention was also properly drawn to the last part of the 
 clause, which says that " any person possessing any such spirit 
 " under any circumstances, not specified in some one or more of the 
 " abovementioned exceptions, shall be guilty of an offence and 
 "liable &c." 
 
 It is argued before us that these strong words make the mere 
 physical possession of the article enough for a conviction, though there 
 may not be the mens rea, or even the mens conscia, in the possession. 
 
 We think that it is not so, and that in applying the penal 
 clause of this Ordinance, we must bear in mind the general maxim 
 actus nonfacit reum, nisi mens sit rea, or as it is expressed by 
 VanLeeuwen, p. 453, "' crime considered in general is all punishable 
 " transgression of the law, wilfully andjrom an evil mind, which is 
 " very narrrowly considered : so that where no public fraud or evil 
 " intention is mixed with the deed, it cannot be punished as a crime." 
 
 The words of the Ordinance are certainly very strong, but 
 they are scarcely stronger than the words of the English Game 
 laws, which enacted {inter alia) that no person should upon any 
 pretence whatever have in his possession any partridges between the 
 1st of February and 1st of September. But when a qualified per- 
 son had in his possession, on the 9th February, partridges which 
 had been killed and possessed by him before the 1st, he was held 
 by the Court of King's Bench in Simpson v. Unwin, 3 B. & Ad. 134, 
 not to be liable to the statutory penalty, because, though the case was 
 within the literal meaning of the statute, it could not be considered 
 to be within its purview without absurdity, and Patteson, J. gave his 
 opinion that " the possession meant by the Act was an unlawful, 
 
lOtf 
 
 1861. " not nn innocent possession.'' So in Warneford v. Kendall, 10 
 Oct. 29. East 19, it was ruled that the possession of game by a servant 
 employed to detect poachers, who took it up after it had been killed 
 by strangers on the manor, in order to carry it to the lord, is not 
 a " possession" within the penalty of the Game. Laws, 9 Anne, o. 25 a. 2 
 and 5 Ann. c. 14. Lord Ellenborovgh there reasons on the absur- 
 dity of a literal construction and says : "if this be an offence, no 
 " case can be stated in which au unqualified person can innocently 
 " come in contact with game." 
 
 We certainly disclaim the almost unbounded latitude in 
 construing penal statutes which courts in former times have 
 assumed ; and we take as our general rule for the interpretation 
 of all Ordinances that which has often been, laid down by the 
 English Judges of late years, but which is most clearly stated by 
 the present Lord Wensleydale, when Baron Parke in Perry v. 
 Skinner, 2 M. and W. 471 : " The rule by which we are to be 
 " guided is to look at the precise words and to construe them in 
 "their ordinary sense, unless it would lead to any absurdity or 
 " manifest injustice, and if it should, so to modify and vary them 
 " as to avoid that which certainly would not have been the inten- 
 " tion of the Legislature, "We must put a reasonable construction 
 " on their words." 
 
 But if we were to read this Ordinance in the literal sense 
 contended for by the appellant, and hold that the mere physical 
 possession of the contraband article is punishable, though there was 
 neither the '' mens rea" nor " mens conscia," we must hold that the 
 man is criminally punishable, who, as an act of kindness to a 
 neighbour, takes into his temporary possession a parcel, the con- 
 tents of which he does not know, but which when searched is found 
 to contain arrack. Or if a spiteful person were, by any lie or trick, 
 to cause another to take innocently into his possesion a large 
 package of rice in which the ajrrack bottles were carefully concealed, 
 and then were to get a. soarch warrant and have the arrack dis- 
 covered on the defendant's premises, the Magistrate would, accord- 
 ino- to the ajipellant's interpretation of the- Ordinance, be obliged to 
 convict and fine the unlucky victim of such an artifice. 
 
 As is pointed out ,by Dwarris on Statutes, p. 594 : " In the 
 " construction of a statute, it is the office of an expositor to put 
 " such a sense upon the words that no innocent person shall receive 
 " any damage by a liberal construction." We accordingly construe 
 the word " possession," in the first line of this clause of the Ordi- 
 nance, as not including innocent and unconscious possession. 
 
 We are anxious that our decision in this case should not be 
 looked on as expressing an opinion that the finding prohibited 
 quantities of arrack in a man's dwelling house is not of itself suffi- 
 eient evidence for a conviction under this Ordinance. In the great 
 
UK 
 
 majority of cases it is by itself suiKcier.t evidence and cogent evi- 18CI. 
 dence ; for a man may, as a general rule, be fairly presumed to ^'-''-- -3. 
 know what the things are which he has in his house in which he is 
 living at the time, and stories about the contraband article having 
 been left there by people whom he does not produce ought to be 
 regarded with great caution and suspicion. 
 
 But we consider the finding of the Magistrate here on the facts 
 to amount to a finding that. the defendant's position was an un- 
 conscious and an innocent posseswion. We have no authority to 
 review his finding as to facts, and avc find that such a possession is 
 not within the meaning of this Ordinance. 
 
 Slst, October. 
 Fresent : — Creasy, C. J., Temple, J., and Thomson, J. 
 
 C- \ Katnapura, ) Samnahamij v. Silva. 
 
 No. 105b. j -^ 
 
 The judgment of the Court was as follows: — 
 
 In this case, the plaintiff sues the defendant for ^ share of the Crops of 
 crops of certain chenas which the plaintiff was prevented from Lgage— oid 
 taking by a third party, and he claims £2.15.0 damages. ]Sfo. 7 of 1840, 
 
 On examination, the plaintiff says "I took the rent of the cl. 2— "iu- 
 "lands on lease for one year, for 5/6;" but comparing the plaint *^™^* ™ 
 with the petition of appeal, it is clear that the plaintiff only bought ^^ ^psT* 
 the i crops. This is also admitted in defendant's answer. There 
 is nothing to show that the price was paid beforehand, so that the 
 contract is wholly executory. 
 
 On the trial, a nonsuit was moved for under the 2nd cl. of 
 Ordinance No. 7 of 1840, as the lease under which the plaintiff claims 
 should have been on a stamp and attested by a notary. The 
 objection was held good. Plaintiff was nonsuited with costs. 
 
 The plaintiff in effect excepts to this judgment on the ground 
 that a growing crop is not an interest in land, the 2nd cl. of 
 Ordinance No. 7 of 1840 requiring a notarial instrument. The 
 question as to what is " an interest in land '" has not only been the 
 subject of much judicial enquiry under the English Statute of 
 Frauds,' but also of express decision in Ceylon. 
 
 The 4th sec. of the Statute of Frauds (England), enacts: 
 " that no action shall be brought upon any contract or sale of lands 
 tenements or hereditaments o?' any interest of or concerning them, 
 unless the agreement upon which such action be brought or some 
 memorandum or note thereof shall be in writing and signed by the 
 party to be charged therewith or some person thereunto by hira 
 
102 
 
 1861 . lawfully autliorlzed." The Ordinance of Frauds and Perjuries sotne- 
 Uct. 31. what differs from this in language and also in a principle which 
 does not come into operation in this case. 
 
 The 2nd sec. of Ordinance No. 7 of 1840 enacts " that no sale 
 &c. of lands &o., and no promise, bargain contract or agreement for 
 effecting any such object, or for establishing any security interest or 
 incumbrance affecting land &c," shall be of any force or avail 
 in law, unless the same shall be in writing and signed by the party 
 making the same and in fact otherwise notarially executed. 
 
 The question what is an interest in land is common to both 
 enactments, and in determining the question, this Court has always 
 made use of the English precedents. An interest in land is not 
 created by any contract, unless the contract confers an exclusive 
 right to the land for a time,,for the purpose of making a profit of the 
 growing surface, (i.e. when the surface only is in question) ; then the 
 contract would be one for the sale of an interest in land. 
 Warwick v. Bruce, 2 Maule and Selwyn, p. 205. 
 
 This has been the principle upon which all the cases respecting 
 sales has been determined, and the English Courts have decided 
 that in the first place the sale of a growing crop does not give any 
 exclusive right to the land at any time, as even the right to go 
 upon the land to gather the crop is only an easement which does 
 not in any way pass any right to the land (per Holyrood, J. in Evans 
 V. Roberts, 5 Barnewall and Cresswell, 887). 
 
 Nor has the right to have the crop remain upon the ground to 
 infer any interest in the land; and this point the English Courts 
 have settled by analogy to the doctrine of emblements^ Lord 
 Ellenborough says : in a contract for the sale of potatoes at so 
 much per acre, " the potatoes are the subject matter of sale, and 
 " whether at the time of the sale they are covered with earth in the field 
 " or in a box, still itwas the sale of a mere chattel" {Warwick v. 
 Bruce, ante). Again in the case of Sainsbvry v. Matthews, 4 
 Meeson and Welsby, 347, Mr. Baron Parhe says that the sale of 
 a growing crop " is a contract for the sale of goods and chattels at 
 " a future day, the produce of certain land, and to be taken away 
 "at a certain time. It gives no right to the land : if a tempest 
 " destroyed the crop and there were no crops to deliver, the loss 
 " would clearly fall upon the owner and seller of the crop; " or in 
 other words, the owner of the land is the owner of the crops until 
 the crop is severed; and in fact no property passes until the crop is 
 delivered either by the severance by the owner, or "by the purcha- 
 ser being permitted to sever it for himself, which is indeed 
 constructively a delivery by the owner. 
 
 Thus by the law of England, growing crops come within the 
 description of emblements and are deemed ch-attels by reason of 
 their being raised by labour and manurance. This applies how- 
 
103 
 
 ever only to cereal crops, sncli as grain &o., and not to crops of 1801. 
 grass or fruit. The view taken by the law of England has been Oi^t. 31. 
 affirmed by the law of Ceylon in the cases No. 10286 Negombo — 
 
 and 5670 Negombo C. R. (Nell's Rep. p. 112) 
 
 The first case related to an implanted crop of tobacco, and in 
 this case, the Supreme Court makes a distinction between the sale 
 of a growing crop and the sale of a crop the seeds or plants of 
 which are not yet in the ground, deciding that a sale of the former 
 is not a sale of the interest in land, and that a sale of the letter is. 
 This is conformable with all the English decisions, and also with 
 the opinions of Lord Coke (Co. Litt., 556); and it may be laid down 
 as a principle on the basis of both English and Ceylon precedents 
 that the sale of any growing produce of the earth (reared by 
 labour and expense and within the definition oifi-nctus industriales 
 or emblements) in actual existence at the time of the sale, whether 
 in a state of maturity or not, is not to be considered an interest in 
 or concerning land within No. 7 of 1840. 
 
 The second case decided by the Supreme Court on this ques- 
 tion related to the sale of plaintain bushes. This case decided that 
 sale to affect an interest in land ; but it does not militate against 
 the principle laid down, as it does uot appear that the Court regard- 
 ed plantains a,sjructus industriales, or that they were planted prior 
 to the sale, 
 
 The result of these cases, and of the many others which have 
 been decided upon the subject, is thus stated in Williams Saunders 
 [.395, u. (g), Ed. 187 1] Duppa v. Mayo. A similar and very clear view 
 of this subject is also taken by Lord St Leonards (see Concise View of 
 Law of V. ^ P. 78, Ed. of 1851). " It appears to be now settled, 
 " that with respect to emblements orfructus industriales (i.e. the corn 
 " and other growth of the earth, which are producednot spontaneously 
 " but by labour and industry), a contract for the sale of them while 
 " growing, whether they are in a state of maturity, or whether they 
 " have still to derive nutriment from the land in order to bring them 
 " to that state, is not a contract for the sale of any interest in land, 
 " but merely for the sale of goods, Evans v. Roberts, (5 B. & C. 829), 
 " Sainsbury v. Matthews, (4 M. & W. 343). And it will make no 
 ' ' difference whether they are to be repared or dug up by the buyer or 
 " by the seller, Jones v. Flint (10 A. & E. 753). The true question 
 " is, whether, in order to effectuate the intention of the parties, it be 
 " necessary to give the buyer an interest in the land, or whether an 
 " easement of the right to enter the land, for the purpose of harvest- 
 " ing and carrying them away, is all that was intended to be granted 
 '■' to the buyer." In this instance it is left doubtful whether the crops 
 sold ^vere growing crops or not. The case is therefore remanded 
 for further hearing. 
 
104 
 
 1861. 
 Oct. 31. 
 
 I'. C. JaSna 
 No. 10853. 
 
 Nasavally v. Supramanian 
 
 Pleadings^ 
 
 iuBufficient. 
 
 stamps - 
 
 practice. 
 
 The judgment of the Supreme Court ran as follows: — - 
 
 This is a'snit for a divorce; but the only objection taken is 
 that the proceedings are not on sufficient stamps : the defendant's 
 advocate moved that the proceedings be quashed and the plaintiff 
 non-suited with costs. 
 
 On this motion, the Court below adjudged that the defendant 
 should have demurred to the libel, and not now take any objection 
 to the class, when issue is joined and the case ready for trial. 
 The Court below also held that the old stamps should be cancelled, 
 I and the pleadings written on proper stamps ; that the objection of 
 the defendant should be over-ruled, and the case proceeded with, 
 the same being otherwise ready for trial. It was ordered accor- 
 dingly. " _ _ . . ■ . 
 
 The practice in such cases is laid down in Marshall's Judgments, 
 p. 507, par. 7, p. 647, par. 18, and also in D. C. Oalle 17348, re- 
 ported in Lorenz's Eep. 
 
 Erom these precedents, it appears that when pleadings are 
 insufficiently stamped, the proper course it to apply to the Court 
 by motion, or to obtain a Rule to shew cause why the additional 
 stamps should not be supplied within a given time. The order of 
 Court (if it is satisfied that the application is correct) should be that 
 the party having insufficiently stamped his pleadings should supply 
 the additional stamps required within a given time. ' In this case, 
 the order is so far wrong that the Court has cancelled the first set? 
 of stamps an the pleadings, which, if it fiaeans anything, meana 
 that, in' the language of the Stamp Ordinance, it rules the pleadings 
 to be unavailable to be unavailable in Uw; whereas the Court 
 should have merely orderefl additional stamps to be supplied so as 
 to make up the deficiency in stamps. It appears that the plaintiff 
 has complied with the order as regards her libel, but not as regards' , 
 her replication, and that the defendants has not complied with the 
 order. 
 
 It must however be understood that it is not intended that 
 additional stamps should be annexed or affixed to the pleading 
 insufficiently stamped (that" is forbidden by the l^th cl. of the 
 Stamp Ordinance of 1852); but that the party whose pleading is 
 insufficiently stamped should apply for additional stamps under the 
 7th clause. That application necessitates the payment of a penalty 
 of £ 10. And it -will be for the party in fault to' consider whether 
 it will be abetter for him to pay the penalty, or commence his suit 
 de novo. One course or the other he must take. 
 
 The Supreme Court thinks that the order of the Cqurt below 
 should be set aside, a]id the parties left to adopt the course 
 
105 
 
 pointed out in the 7th, sec. abovementioned, or to agree to com- 1861. 
 mence the suit de novo from the anawev. At present by the 6th Nov. 5. 
 see. of the Stamp Ordinance, there ia no answer or replication avail- 
 able in law before the District Court. The defendant ought 
 therefore to fill a fresh answer in supply additional stamps under 
 the 10th clause, paying a penalty of £10. Similarly must the 
 plaintifE with her replication at the proper time. 
 
 5th November. 
 Present: — Creasy, C. J., and Temple, J. 
 
 No 28954 f Sobita Uname v. Ratnapale Unanse. 
 
 The facts of this case are sufficiently indicated in the following ■?«'" deliotiom 
 
 judgment of the Court: — w ^"^^ 
 
 ^ ° interest rei 
 
 This is an action brought by the plaintiff as executor of S^^^f^f^* 
 Dassankare Unanse to recover possession of certain land. The 
 defendant claimed the land by deed of transfer from the same 
 Unanse. 
 
 The sannas clearly shows that the land in question is temple 
 land, and that it was held by Dassankare, not as a proprietor, but 
 in the capacity of officiating priest of the temple. 
 
 This was admitted on both sides in the argument, and it was 
 equally admitted that the deed of alienation to the defendant is 
 void, and also that the plaintiff has no right in his character of 
 executor to recover the land as if it were part of the estate of 
 Dassankare. 
 
 But it appears also that the plaintiff is officiating priest of 
 the temple, and that in that character he is entitled to the land. 
 
 If the plaintiff had sued for this land as executor by mere 
 mistake or inadvertence, we should have had no hesitation in 
 amending the proceedings and giving him judgment as we have 
 been prayed to do. But we believe that the misdescription was- 
 intentional and that the plaintiff has been purposely endeavouring 
 to treat this land as the private property of his testator, and not 
 as temple land. We also believe that the defendant, when he 
 took the deed of transfer from Dassankare, knew perfectly well the 
 tenure of the land, and was wilfully participant in an attempt to 
 despoil the temple. 
 
 We have been strongly inclined to nonsuit the plaintiff, on 
 the maxim m pari delicto potior ett conditio possidentis ; but on 
 the other hand, there is the maxim interest rei-publicae ut finis sit 
 litium; and on the whole, we think it best not to make another 
 
106 
 
 1861. 
 Nov. 5. 
 
 action necessary, but to place at once the possession of the property 
 where it is clear it ought to be, i.e. in the hands of the officiating 
 priest. 
 
 We do not adjudicate the plaintiff to be officiating priest 
 de jure, but only de facto. If the defendants or other persons have 
 conflicting claims to the priesthood, as has been suggested, this 
 judgment is not to prejudice those claims which have not been 
 investigated in the present action. 
 
 We shall mark our sense of the plaintiff's misconduct by dis- 
 allowing his costs. 
 
 Office of 
 inayoraal — 
 his duties — 
 
 tenure of 
 land. 
 
 D. C. Matara, 1 Mathes v. Barton et al. 
 
 No. 19487. J (The Queen's Advocate, intervening.) 
 
 The following was the judgment of the Supreme Court : — 
 
 In this case, the plaintiff had for many years prior to 1858 
 held the office of mayoraal of NaimbeUa in the District of 
 Matara, and had during the time possessed the lands which tl\js 
 f. "tion was brought to recover. 
 
 In 1858 the Crown Officers dismissed the plaintiff from the 
 'ffice of mayoraal and took possession of the lands, alleging, as 
 'Jiey now allege, that the lands were crown lands, the use of which 
 was allowed to the mayoraal as remuneration for the discharge of 
 the duties of that office ; that the office was revocable, and not 
 hereditary ; and that, when plaintiff ceased by dismissal to be 
 mayoraal, he had no longer any right to the land. 
 
 The plaintiff maintained that he and his ancestors were here- 
 ditary mayoraals, and that he and they before him held these lands 
 as service paraveny lands, and that the effect of the Ordinance 
 No. 3 of 1852 had been to enfranchise them and make them the 
 plaintiff's absolute property. 
 
 After hearing the case very ably argued on both sides, and' 
 after repeated careful examination of the evidence, we feel no 
 doubt whatever that the lands were not service paraveny lands at 
 any time, to which the evidence refers, and we feel equally clear 
 that the office of mayoraal, in this district at least, was not, and is 
 not, hereditary. The plaintiff called as a witness his elder brother, 
 who had been also a mayoraal, and bad been in fact, until plain- 
 tiff's dismissal, joint mayoraal with him : the two brothers holding 
 each one-half of the land which had formerly been held in entirety 
 by one mayoraal. This witness described the duties of a mayoraal 
 as follows : 
 
 "1. To superintend the culture of the fields ; 
 " 2. To estimate the crop for taxation j ■ 
 
107 
 
 " 3. To sign the wattooroos upon which the government 1861. 
 " share is farmed out ; Nov. 5. 
 
 "4. To furnish returns of cro\yn lands when ordered ; 
 
 " 5. To attend at rent sales, and otherwise to attend to any 
 " order of the government agent or his assistant." 
 
 " The Government rents are still sold, crops still estimated for 
 " for taxation. Wattooroos are still signed and cultivation still 
 " superintended. All the duties of a mayoraal still exist." 
 
 This witness further stated : " I came into the lands on the 
 " death of my further, and also into the office of mayoraal 60 years 
 " ago / waa appointed to the office by the mudalyar of the time, and 
 " acted under the office which is now identified with that of the 
 " Government Agent, and I could not have held the office without 
 " being so appointed. It was the usual custom for the son to be 
 " appointed to succeed the father." 
 
 The plaintiff called One witness more, who proved that plain- 
 tiffs father was a mayoraal, and held the lands, which after^ his 
 death " were held by plaintiff and last witness, who in return per- 
 " formed the office of mayoraal." 
 
 If we were to take the case on the evidence for the plaintiff 
 only, we should be disposed to consider that the lands were not 
 paraveny,- that is, heritable, lands at all, but that the possession of 
 them was annexed to the office of mayoraal, and that the right to 
 that office was given, not by inheritance, but by Government ap- 
 pointment. But the remainder of the proceedings places this be- 
 yond a doubt. 
 
 In the first place, the plaintiff's proctor, while the cas6 for the 
 crown was being opened, made a distinct admission th3,t, the lands 
 were crown lands in 1829. We do not understand the specific impor- 
 ance of this particular date, but we certainly find nothing that could 
 have changed the lands from crown lands into service paraveny lands 
 between 1829 and 1852, so as to have made the Ordinance of that 
 year operate on them in the manner contended for by the plaintiff. 
 But without straining the force of this admission, we look to the 
 evidence for the crown, and we find the second defendant, who is a 
 mudalyar of the District, and a witness named Wrikremeratne 
 Christian, who is a kachcheri mudalyar, giving the most explicit 
 testimony that the office of mayoraal is not hereditary, and the 
 execution of its duties is remunerated with lands which pass with 
 the office to the successor appointed by government. The fact the 
 son usually succeeds to the father is not enough to make such 
 succession a matter of right ; nor does the fact of the appointment 
 being verbal make the office hereditary. If the offices and the 
 lands were taken by inheritance, there would be no need for the 
 son having a fresh appointment from the government, which the 
 evidence on both sides shews always to have been obtained. And 
 
108 
 
 1861. there is specific proof given for the Crown of the occasional dis- 
 
 Nov. 7. missal of mayoraals, and that in such a case, the lands do not 
 
 remain in the possession of the dismissed mayoraal or his family, 
 
 but that they go to the successor whom the crown appoints to the 
 
 office. 
 
 We do not think it necessary to determine what may be the 
 correct Sinhalese title for the tenure of these lands. We are quite 
 satisfied of the nature of the tenure, that the office is not hereditary, 
 and that the holder of it is liable to dismissal by the Crown, in 
 which case he loses the lands together with the office and does not 
 retain the pay after he is discharged of the duties. 
 
 The judgment of the plaintiff. is reversed. Judgment is to be 
 entered for the defendant and for the Crown. 
 
 tth. November. 
 Present : — Creasy C. J., and Temple, J., 
 
 N ^d^Qfi I Bandara Meniha et al. v. Palingo Menika 
 
 Kandyan Plaintiffs, as issue of one Siam Banda Coralle by his first wife. 
 
 Law — deed sued defendant, his widow, for an undivided moiety of certain lands, 
 of^alienation Defendant denied the claim of the plaintiffs and pleaded a 
 
 disinherison P^P^'"' writing or " deed of inheritance," dated 22nd August 1860, 
 whereby her husband, Siam Banda Coralle, " made over and grant- 
 ed in paravney " to the defendant and her minor children the lands 
 in question. 
 
 The plaintiffs demurred to this answer as insufficient, in that 
 the paper writing pleaded did not (as was essential, under the 
 Kandyan Law) contain a clause of disinherison in respect of plain- 
 tiff's share of inheritance. 
 
 The deed ran as follows: — 
 
 Know all men by these presents. Purport of a deed of inheritance 
 caused to be written and granta^jby me E. W. R. Siam Banda Coralle late 
 
 of and now residing att;Sulongamowa in the Kohensea Pattu of 
 
 Matela in the Central Province.of the Island of Ceylon, is as follows :— 
 
 That the field called &o., \yiames and homidaries of several lands being 
 Si t out, the deed proceeded^ : these said high and low lands, houses, gardens 
 and plantations, I the above named E, W. R. Siam Banda Coralle have 
 m ide over and granted in parajveny to my wife M. Palingo Menika of &c., 
 ani to my begotten children [duly namedl : to these six persons, with my 
 good will and pleasure. 
 
 That henceforth my said M. Palingo Menika and my said five children 
 [duly named'] shall render me every assistance during my life-time ; and 
 at'iur my death all the said high and low lands, houses, gardens and planta- 
 tions, my said wife Patingo Menika, Loku Banda, Calloo Banda, Punchi 
 
109 
 
 Banda, Muttoo Banda and Bandare Meuika : these six persons and their 1891. 
 descendants, assigns and heirs and every of them are empowered to possess Nov, 7. 
 
 for ever, and do whatever they may please, and they are hereby made over ; 
 
 and further from this day forth, none of the heirs, administrators and 
 executors of the estate of me, the said Siam Banda Coralle, shall have any 
 power or title to the said high and low lands, houses, gardens and planta- 
 tions or any of them ; and I have hereby covenanted that I have not hitherto 
 done any act whatsoever whereby this deed ofinheritance shall be cancelled; 
 and for a deed in that behalf, I the said B. W. K. Siam Banda Coralle have 
 set my signature &c. 
 
 The learned District Judge (Smedley) held that the document 
 purported to be a testamentary disposition, and as such was 
 governed by Ord. No. 21 of 1844, cl. 1. He was therefore of 
 opinion that a clause of disherison was unnecessary ; he according- 
 ly over-ruled the demurrer. 
 
 On appeal, the Supreme Court set aside the order, and enter- 
 ed up judgment, on the demurrer, for the plaintiff, in these terms: — 
 
 The Supreme Court is clearly of opinion that the in&trument 
 under which the defendant claims is a deed of alienation, and not 
 a last will and testament. 
 
 The case comes within the authority of D. C. Kandy, 27150,* 
 which the Supreme Court considers to have been rightly determined 
 and to be conclusive in plaintiff's favour. 
 
 * The facts of this case, as yet unreported, are these : 
 
 N 271B^' I IndejoH Unanse v. Keerale. 
 
 Plaintiff sued in ejectment, claiming the lands in question under a deed, 
 dated 1st lHay 1848, which was worded as follows : — 
 
 " Purport of a deed otparaveny, causeA. to be written and granted at 
 " Kandy on 1st May 1848, is as follows,— 
 
 •'I the undersigned Punchiralle &c., do hereby declare that my 
 " paraveny property inherited to me from my father Dingiralle and possess- 
 " ed since the last 50 years without dispute, and situate in &c., have been 
 " transferred and made over to my younger brother by relationship called 
 " Indejote Unanse, for the purpose of obtaining assistance to myself and 
 " my wife Suberat Ettena, as both of us have no children, and entered into 
 " the following agreement, to wit, that no dispute whatever can be made 
 " in future against this by any of my descendants, either by word or deed, 
 " and that the said Indejote Unanse shall during our mutual life render us 
 " satisfactory assistance, and after our death to inter our dead bodies duly 
 " according to the customs of the country, and perform all that is necessary 
 " as religious rites for the sake of the other world. That from this day for- 
 " ward, the said Indejote Unanse and his assigns shall possess the whole 
 " of the said lands in undisturbed paraveny possession for ever, doing what- 
 " ever they please with the same &c." 
 
 Defendant pleaded in effect that he was the son of Punohirale, and as 
 such was entitled by inheritance to the lands in suit. 
 
 The District Judge found defendant to be the admitted heir-at-law of 
 Punchirale, and that under the collective decision of the Supreme Court in 
 D. a Kandy. *iVrl '* ^^'^ absolutely necessary, in order to render valid 
 
110 
 
 1861. 12th November. 
 
 Nov. 12. , ^ ^ 
 Present: — Creasy, C. J., Steeling, J., and Temple, J. 
 
 D. C. Kandy 1 cv- ti 
 
 No. 31859. J Simpson v. Power. 
 
 Transfer of '^^^ plaintiff applied to the Supreme Court, for reasons stated, 
 
 case fi'om one that the above styled case be transferred from the District Court of 
 
 District Court Kandy to the District Court of Colombo. The Supreme Court in 
 
 to another sanctioning the application, observed as follows: — 
 
 " ■ There is a defect in the proceedings before us, which we wish 
 
 to mention as the matter is a point of common practice. 
 
 In all ajjpli cations like the present, when the motion is made 
 by one of the litigant parties, it ought to be shewn to the Supreme 
 Court that the other side had notice of the intended application. 
 This does not appear in the present proceedings. 
 
 a revocable deed of the nature put forward by plaintiff, that an express 
 clause of disinherison should exist. The District Judge therefore dismissed 
 plaintiff's case. 
 
 On appeal, the Supreme Court set aside the judgment of the Court 
 below and referred the case back to it, ordering special jurors to be sum- 
 inoned and, with their assistance, to find, — 
 
 "1. Whether according to Kandyan Law, a deed such as is put for- 
 ward by plaintiff ought to contain an express clause of disinherison, and if 
 so, in what specific terms. 
 
 " 2. Whether if such a clause be requisite, the deed ought to set forth 
 the reasons for such disinherison. 
 
 '• 3. To what degrees of affinity to grantor, such requirements would 
 extend. 
 
 " i. To specify in what Districts of the Kandyan Provinces such law 
 prevails." 
 
 And the Supreme Court ordered the District Coui't to give judgment 
 accordingly (19 November 1856.) 
 
 Special assessors being summoned by the District Court as ordered, they 
 were unanimously of opinion, — 
 
 "1. That in order that a deed such as the one in question may be 
 valid, it must contain a clause of disinherison. 
 
 " 2. That such a deed should set forth the reasons of disinherison, such 
 as, failure to render assistance, undutiful conduct, ill treatment, or generally 
 such conduct as is displeasing to the parent. 
 
 " 3. That such requirements extend as respects all persons who are 
 the lawful heirs of the proprietor, no matter how near or distant may be 
 their affinity to him. 
 
 " 4. That this law or custom, so far^as their knowledge extends, applies 
 to the whole of the Kandyan Country."' 
 
 Accordingly the District Judge found as follows : — 
 
 " Thus the assessors, three of the highest and most intelligent and ex- 
 " perienced of the Kandyan chiefs agree entirely with the law laid down in 
 " my original judgment, which must therefore stand." (16th June, 1857). 
 
Ill 
 
 To prevent delay, the Supreme Court gi-ants an order, but 
 only a conditional order for the removal of the crops as prayed, on 
 the plaintiff obtaining and filing in the District Court a written 
 consent of the defendant or his advocate or proctor. 
 
 1861. 
 Nov. 26. 
 
 26th November. 
 Present: — Creasy, C. J., Sterling, J., and Temple, J. 
 
 D. C. Kandy ) 
 No. 30632. J 
 
 Samsudeen Lebbe v. Assene Lebbe et. al. 
 
 This was a suit in eiectment brought on the 22nd December, -Ejectment^ 
 
 1857, by plaintiff, as administrator of one Casi Lebbe, deceased. 
 Plaintiff averred that a Packir Tamby, being indebted to the intes- 
 tate, mortgaged to the latter a house and grounds, with possession 
 thereof in lieu of interest; and that while the intestate was in such 
 possession, the defendants on the 6th day of December 1852, 
 wrongfully ousted him. Plaintiff prayed for ejectment, claiming 
 as damages £, 72, " being the issues, rents and profits of the said 
 house and grounds taken and appropriated by the defendants as 
 aforesaid." 
 
 The learned District Judge rejected the claim which defen- 
 dants had made to the property, and gave judgment for plaintiff 
 as prayed. 
 
 On appeal. Rust and Dias for appellant contended inter alia 
 that under cl. 9 of Ordinance No. 8 of 1834, damages could not 
 be recovered for any period more than 2 years before action brought. 
 
 Lorenz contra. 
 
 The Court amended the decree of the Court below in the 
 following judgment: — 
 
 The Supreme Court considers the decision of the Supreme 
 Court in D. C. Kandy 26750 * conclusive on this subject; even 
 had there been none such, we should have come to the same con- 
 clusion. The 9th clause of the Ordinance No. 8 of 1834 bars the 
 recovery of damages in respect of any period more than two years 
 
 damages- 
 preBcription, 
 
 * The following are the facts of this case, hitherto uareported. 
 
 ^- C- ^^^^'y I Sudhana v. UUv, Banda. 
 
 No. 26750. ) 
 
 Suit brought on 8th July 1853, in ejectment. Ouster, June 1849. 
 Damages claimed at the rate of £ 5 from June 1849, to December 1852. 
 
 Judgment as prayed for & 15. 
 
 On appeal, i^er EowE, 0. J., (12th August, 18S7)— Decree modified 
 " by the plaintiff being entitled to £ 10 sterling, the damages for two years 
 " only, under the 9th cl, of Ord, No, 8 of 1834." 
 
112 
 
 1891. before action brougM. We tUnk however that plaintiff is entitled 
 Dec. 3. to. have added to this, damages claimed at the same rate for the 
 time which shall have elapsed between the bringing of the suit 
 and the time the defendant gives up possession. The delay during 
 this interval is in no respect the fault of the plaintiff, but is the 
 inevitable consequence of the course of legal proceedings: actus 
 curice nemini facit injuriam. We think the plaintiff is not to he 
 driven to a fresh action to recover compensation for being kept 
 out of possession, while his case was before the Court. 
 
 The verdict will therefore be reduced to £ 36 in respect of 
 the two years before action brought, and also for the further sum 
 calculated at the rate of £ 1.10 from 22nd December, 1857, the 
 commencement of the action, to the day on which defendant shall 
 give up possession. 
 
 - Srd December. 
 
 Present: — Creasy, C. J., Sterling, J., and Temple, J. 
 
 C. K. Ratnapoora) rr i rr-^^- tt -. ^ 
 
 N fifiai f Unguhamy v. Kittia Unanse et. al. 
 
 Practice The following judgment of the Supreme Court sets out the 
 
 — non- joinder facts of the case: — 
 
 widow— IJ^ *^^^ c&ais, the plaintiffs father bequeathed certain land to 
 
 inesne profits a wihare of which the first and second defendants are the priests. 
 
 — ^prescrip- This bequest was set aside in the testamentary case No. 156 
 
 *'°'^" Eatnapoora, as being contrary to the Proclamation of the 13th 
 
 September 1819, when the lands so bequeathed devolved on the 
 
 present plaintiff as heir-at-law. 
 
 The plaintiff now sues to recover the mesne profits from 
 April 1853 till February 1860, the period during which the 
 defendants had possession of the lands. Judgment has been given 
 for the plaintiff upon evidence, the defendant declining to call any, 
 contending that the defendant should be non-suited because the 
 testator's widow has not been made a co-plaintiff. 
 
 The Supreme Court considers that the widow, being otherwise 
 amply provided for by the will of her husband, has no interest in 
 the land in question and should not be a party to the suit. 
 
 All that a vridow is entitled to under the Kandyan Law is 
 maintenance and support, and for this purpose she may receive 
 from the heir either a portion of the produce of the deceased's 
 paraveny lands, or she may have the temporary possession and 
 usufruct of a suitable portion of such lands, and in the latter case, 
 the heir-at-law shall perform the rajakaria or personal service due 
 
113 
 
 on account of that portion. But in this case, being otherwise 
 provided for, the widow does not require, and is not entitled to, 
 further maintenance. If the lands in question were the acquired 
 property of the testator, anH as such subject to the life-estate of the 
 widow, it was for the defendant to prove such to be the case, which 
 they have not done. 
 
 It is moreover clear from the will, that the testator in be- 
 queathing other lands to his widow, while he gave this land to the 
 wihare, never intended him to have any claim upon this land in 
 question. 
 
 The decree of the Court below is affirmed, except as to the 
 amount of daipages, the plaintiff, under cl. 9 of the Ordinance 
 No. 8 of 1834, being only entitled to recover the mesne profits for 
 two years prior to the commencement of this suit : such profits to 
 be calculated on the same data as those given by the judgment of 
 the Court below. 
 
 1861. 
 Dec. 5. 
 
 5th December. 
 
 Present: — Creasy, C. J., Stirling J., and Temple J.. 
 
 C. R. Calpentyn ) 
 No. 17716. j" 
 
 Sinne Wappoo v. Mohamado Aly et al. 
 
 The judgment of the Court below was set aside, and case re- 
 manded for trial, in these terms : — 
 
 It is an acknowledged custom of the country that persons who 
 have entered upon land with consent of the owner and have actual- 
 ly planted it with cocoanuts, are entitled to a share of the trees 
 when they come into bearing. They may claim this by operation 
 of law, and not as a consequence of the terms of any agreement 
 between them and the owners. 
 
 The plaintiff therefore should be allowed to prove that he 
 entered under such circumstances, and if he can do so, the absence 
 of a written agreement is not fatal to his claim. 
 
 It is moreover stated in the plaint, that plaintifE planted the 
 trees 22 years ago, and was only ousted one and a half years ago. 
 If so, he may be able to prove a prescriptive possession of the 
 planting share. 
 
 Custom — 
 
 planting 
 
 share 
 
 —Evidence. 
 
114 
 
 1861. D. C. Ratnapoora, 1 
 Dec. 5. No. 7126. / 
 
 Tilliieraine v. Dingey Ham?/. 
 
 Kandyan 
 Law — ninde- 
 gmtia^ its 
 nature — 
 tenure of 
 service. 
 
 The facts of this case are sufficiently indicated in the following 
 judgment of the Supreme Court: — 
 
 This was an action brought by the plaintiff, as proprietor by 
 purchase of a nindegama, against the defendant as tenant by service 
 for refusal to perform the customary services. The plaintiff claim- 
 ed damages for past refusal and prayed that the defendant should 
 be compelled to render the customary services in future, or be ejected 
 for default in so doing. 
 
 The defendant by his plea denied his liability to service to the 
 proprietor of the nindegama in respect of the lands held by him, 
 the defendant; he also denied that plaintiff had purchased the 
 rdndegama as alleged in the plaint. 
 
 "When the case came on for trial, the District Judge stated thiit 
 the case might be decided without hearing eviiieuce, and he pro- 
 i.pcded to nonsuit the plaintiff, after giving an elaborate judgment 
 to which we have paid careful attention. 
 
 The District Judge seems to hold that the plaintiff, as owner 
 of this nindegama, is not entitled to demand tho customary service.^ 
 from the tenants for these reasons: 
 
 (Ij that a nindegama including the right of the services, 
 cannot be acquired by purchase ; 
 
 (2) that a new nindegama proprietor cannot exact these 
 .services if he is not domiciled in the Kandyan Provinces ; 
 
 (.3) that no new proprietor can exact the services, if he is of 
 a caste infeilor to the caste of the tenant. 
 
 The learned Judge further states as a fact, that the present 
 plaiutiff is modliar of the Ratnapoora District Court and a native 
 of the Maritime Provinces. 
 
 None of these objections is raised by the defenda)ii in his 
 pleadings, and the only one that is supported by matter apparent 
 on the face of the record is the first. 
 
 We think this objection untenable. We find no authority 
 whatever for the general proposition that the owner of a nindegama 
 cannot alienate by sale, or that a Fiscal cannot, in due proceFS 
 against such owner's property, transfer the nindegama with all ins 
 proprietary rights, so that the purchaser may hold as fully as the 
 last owner. On the contrary, we find that in several crisos of such 
 sales, when disputes have arisen between the new owner and the 
 tenants, no objection of this kind has been raised. The District 
 Court Ratnapura case No. 7013 is one of these. The judgment of 
 the Supreme Court in that case directs the defendant (the tenant) 
 to continue in possession as theretofore, on tenure of service to the 
 plaintiff, the purchaser. 
 
115 
 
 Th.e second and third objections are partly based on assump- 1861. 
 tions of facts that have not been ])!-oved, and of which the Court Dec. 5. 
 cannot take judicial notice. The cise must go back for trial of 
 the issiies which the parties have r lised. But as, after what has 
 taken place, the defendant will probably amend his pleadings and 
 raise the suggested defences, we think it desirable to make some 
 remarks on them. 
 
 1. The anticipated objection about domicile ought not to 
 prevail. Even if any restrictive custom of the kind as to capacity 
 for holding nindegama ever prevailed among the Kandyans, (in 
 support of which we find no authority), the state of things is essen- 
 tially altered from what it was when Kandy was a separate and 
 independent kingdom, and when Kandyans and low country 
 Singhalese were aliens and foreigners with regard to each other. 
 They are now fellow subjects of the same sovereign. 
 
 2. There remains for consideration the expected objection 
 on the ground of caste. This can only arise after legal evidence 
 that the plaintiff is of inferior caste to that of the defendant, and 
 also after full and satisfactory evidence of the existence of such a 
 customary law in the Kandyan Provinces, as the District Judge 
 has assumed to exist. If evidence to that effect is tendered (on 
 pleadings properly framed), it must be received ; and the value of 
 it, and any authorities that may be cited, must be duly considered 
 at the proper time. At present, we are aware of no authority to 
 shew the existence of such a law. We have caused extensive and 
 long continued researches to be made on the subject, and though 
 we can find nothing expressly determining the question, the general 
 result of our enquiries is to make us disbelieve the existence of 
 such a distinction between the right of persons as is suggested here. 
 Such a distinction is opposed to the general principle on which 
 justice should be administered, the principle of the equality of all 
 H. Majesty'? subjects in the eye of the law. 
 
 We will not prejudge the effect of any proof or authority, 
 which the defendant may be able to adduce in order to shew that 
 there is an exceptional distinction here, but the burden of proof 
 lies on him and the proof ought in such a case to be full and clear. 
 It will be to his advantage if he shews that the services in question 
 cannot be performed by deputy, and that a low caste proprietor 
 cannot, if the pleases, exact a pecuniary compensation for non-per- 
 formance, even if he cannot treat such non-performance by a 
 high-caste tenant as a forfeiture, and eject the tenant on that 
 account. 
 
116 
 
 /, 1 Re apulicatioi 
 Dec. 6. No. 6625. 
 
 1861. T>. C. Kandy, 1 Re application of A. R. Shaw of Kandy for a 
 
 writ in the nature of habeas corpus. 
 
 District mi <■ ^ i ■ ^ ■•■> -in,,' 
 
 Courts— The facts of this matter are fully set out in the following 
 
 power to issue judgment of the Supreme Court : — 
 
 \pnt of _ 
 
 habeas oorptis '^'^^ i^ ^^ appeal from an order of the District Court of 
 
 — ^nature of Kandy for the issue of a writ in the nature of a writ of habeas 
 
 such writ— corpus directed to Ann de Lange and her husband Gerard de Lange, 
 
 interpretetion requiring them to produce, on Monday the* 21st October, the 
 
 bodies of the infants in the annexed affidavit mentioned, before that 
 
 Court, and there to shew cause why the said infants should not be 
 
 delivered to the custody of their legal guardians, the said Alfred 
 
 Shaw, for the causes in the said affidavit set forth. 
 
 The writ was (very properly) obeyed by the parties to whom 
 it was directed, and on the return, cause was shewn, and the writ 
 was discharged on the merits. But those parties have appealed to 
 this Court against the order of the District Court for the issuing 
 of this writ. 
 
 The appellants maintain in their petition of appeal that a 
 District Court has no power to issue writs of habeas corpus. The 
 question is one of great constitutional and of great practical impor- 
 tance, and we quite agree with the opinion expressed by the learn- 
 ed judge below that it is desirable to have the law on such a ques- 
 tion settled as soon as can properly be effected. We have therefore 
 given our prompt and most careful consideration to this case. We 
 caused the attention of the Queen's Advocate to be drawn to it ; 
 and we have had the benefit of the attendance and of the comments 
 of that learned functionary at the argument. No one argued 
 before us on behalf of the appellants, but the respondents, who had 
 to maintain the validity of the writ, were fully represented by coun- 
 isel, (Mr. Lorenz). 
 
 It was admitted by the counsel for the respondents (and the 
 fact is indisputable), that the power to issue writs of habeas corpus 
 is no where expressly given to the District Courts by any imperial 
 statute, by any Charter, by any Ordinance, or by any Order in 
 Council now in force. It is admitted also that the cases in which 
 the District Courts have taken on themselves to issue such writs 
 have been few and exceptional, and that the question of the validity 
 such writs has never previously to the present occasion been 
 brought before the Supreme Court. It is equally certain that the 
 Supreme Court is expressly authorised by the 49th clause of the 
 Charter to grant writs of habeas corpus, and that it has consistently 
 been in the habit of granting them. 
 
 The contention of the respondents is that the District Courts 
 are authorised by implication, though not by express words, to 
 grant these writs. In order to test the validity of this alleged 
 
117 
 
 implication, it is necessary to trace minutely the growth of an 1861. 
 important branch of the law of this colony, and to have regard also Dec. 5, 
 to the analogous law of England. . — 
 
 It is desirable in the first place to call to mind, and to keep 
 clearly before the mind, certain general facts and principles, and 
 also to consider if there is any peculiar canon of interpretation 
 which we should follow, when in the course of our enquiry we 
 have to deal with imperfect or doubtful phraseology. 
 
 We shall, therefore, by way of preliminary matter consider 
 (1) the general nature and character of the writ of habeas corpus, 
 and what Courts in England could issue it, (2) the general nature 
 and character of the District Courts and Supreme Court in this Island, 
 (3) what special rule, if any, of judicial interpretation is furnished 
 by the nature of the subject before us. 
 
 It is a maxim of law that " the writ of habeas corpus is a 
 very high prerogative writ, by which the king has a right to en- 
 quire the causes for which any of his subjects are deprived of their 
 liberty." Such is the definition given (after Hale and other 
 authorities) by Lord Eldon in Crowley's case, 2 Swanston 48, a 
 case that deserves the most attentive perusal of all students of 
 constitutional law, and in which some inaccuracies of Blackstone 
 are corrected. There is another definition of the writ of habeas cor- 
 pus by Sir John Wilmot, also cited by Lord Eldon with approbation 
 in Crowlej/s case, and which deserves citation with special reference 
 to the matter now before us. Sir John Wilmot says: "It is a reme- 
 " dial mandatory writ, by which the King's Supreme Court of 
 " Justice and the Judges of that Court, at the instance of a subject 
 " aggrieved, commands the production of that subject, and 
 " enquires after the cause of his imprisonment ; and it is a 
 " writ of such a sovereign and transcendant authority that no pri- 
 " vilege of person or place can stand against it." It is to be 
 remembered that Sir John Wilmot is speaking, as is Lord Eldon, 
 of the writ of habeas corpus at Common Law, and not as depen- 
 dant on the special provisions of 31 Car., 2, commonly called the 
 Habeas Corpus Act. 
 
 Originally, in England, an ordinary person who was detained 
 in unlawful custody could claim his writ of habeas corpus from 
 one of two Courts : each being in its sphere, a Supreme Court. 
 One of these was the Court of King's Bench, the supreme criminal 
 court of the whole realm. The other was the High Court of Chan- 
 cery, which, according to Lord Coke, is an officina justitiae always 
 open. If the aggrieved person was an oiScer or had other privilege 
 in the Court of Common Pleas at Westminister, or in the Court of 
 Exchequer, he might, if he chose, obtain his habeas corpus from 
 the court in which he was so privileged. Afterwards, by means of 
 certain -well-known legal fictions, almost any person could be treat- 
 
118 
 
 1861 ^'^ ^^ privileged in the Common Pleas or Exchequer ; and in 
 
 Deo. 5. Bushel's case, 1 Vmighan 133, Mod. 119, 184, 6 HowelVs State 
 . — Trials 999, in Charles ii's reign, the Common Pleas decided that 
 
 they could is-sue writ wholly irrespective of privilege. We shall 
 revert to this decision presently, because the argument in favour 
 of the present respondent seems to arise from it, to which we have 
 have given due weight and consideration. 
 
 It is clear that the High Court of Chancery and the three 
 Superior Courts of Common Law, each possessing a general juris- 
 diction over the realm of England, are the only English Courts that 
 have ever issued this writ. No inferior, no local tribunal, such as 
 the County Courts or the Sheriff's ToUrn or the Court of Quarter 
 Sessions, even assumed such a power. The very high prerogative 
 writ was an instrument to be wielded only by Courts of very 
 high order. 
 
 2ndly. When we consider the general nature and character of 
 the District Courts in this Island, we find (as either name imports) 
 that they have jurisdiction, not over the whole Island, but each 
 over a limited area. Within these limits, each District Court has 
 jurisdiction over all civil pleas, suits and actions, over idiots and 
 lunatics, over administrations and revenue causes, and over matri- 
 monial causes. There is a criminal jurisdiction also, but that 
 jurisdiction does not extend to offences of a grave character, which 
 the provisos in the Charter and in the subsequent Ordinances in 
 that respect define. An appeal from any proceeding of the District 
 Courts lies to the Supreme Court, which also may issue writs of 
 mandamus, procedendo, and prohibition to the District Courts. 
 The jurisdiction of the Supreme Court is general over the Island, 
 and it has expressly given to it an original jurisdiction in respect 
 of all crimes and offences wheresoever in the Island they are alleged 
 to have been committed. The Charter gives it expressly the power 
 to issue writs of habeas corpus, and a subsequent Ordinance gives 
 that power to any Judge of the Supreme Court at all times and in 
 any part of the Island. 
 
 3rdly. There is a special rule of interpretation to be observed 
 when we construe the various Charters and other legislative docu- 
 ments that bear upon the case before us, and when we examine 
 whether they extend to our District Courts the salutary power 
 of vindicating the liberty of the subject by the speedy and effective 
 agency of a writ of habeas corpus. It is the rule that a remedial 
 statute is to be liberally construed {Dwarris, p. 632). This rule 
 cannot be more strongly expressed than in Lord Eldon's own words 
 respecting the judicial advancement of the claims of the English 
 Court of Common Pleas to grant generally writs of habeas corpus 
 ad subjiciendum. He terms it "a remarkable example of the 
 " strength of the principle which our law has in it, that with respect 
 
lis 
 
 " to the liberty of the subject, the Courts are to struggle to secure 1891. 
 " it." Still, the Court cannot assume the power of making laws for this li^c. 5. 
 purpose. We can only interpret what we find made : we must 
 interpret it in the sense in which we believe it to have been framed, 
 when we cannot see clearly what that sense was ; it is only in 
 matters of doubt that the presumptioii in favour of liberty can be 
 applied. 
 
 We now address ourselves to the consideration of the actual 
 legislation that has taken place, as to the power of our colonial 
 Courts, or any of them, on this subject. And although the exis- 
 tence of our District Courts and of our present Supreme Court 
 dates only from the grant of the Charter of 1833, it is material to 
 look to what had previously taken place since the acquisition of 
 Ceylon by the British Sovereign. 
 
 It is not pretended that any of the Dutch Courts which we 
 found in existence here, exercised any remedial jui'isdiction against 
 illegal imprisonment analogous to the process of habeas corpus. 
 It is equally undisputed and indisputable that that writ was never 
 granted by the local Courts, called Provincial Courts, which under 
 the English regimen superseded, with a brief intermission, the 
 Dutch local Courts, called Landraad Courts, and which said Pro- 
 vincial Courts were in tiirn superseded by the present District 
 Courts; and it is also- equally certain that the Supreme Court, 
 which was created here by the Charter of 1801, did habitually 
 grant these writs ; it is further certain that the Charter of 1801 did 
 not by express terms give the Supreme Court that power, but that 
 it was assumed by implication down at least to the date of an order 
 in Council of the year 1830, of which more particular mention will 
 be made presently. 
 
 We fortunately possess very full and trustworthy means of 
 knowing the state of the judicature in Ceylon during the period of 
 which we are now speaking, i. e. from 1801 to l.s;'i(.). Authentic 
 copies are in existence of the answers given in 1 Soi' by Sir Kichard 
 Qttley and by Sir Charles Marshall to the questions of His then 
 Majesty's Commission of Inquiry into the Laws and Courts of 
 Ceylon. Sir Kichard Ottley" was then Chief Justice of the Island, 
 and Sir Charles Marshall, Puisne Justice. We have had the ad- 
 vantage of consulting these, and also we have extant the Reports of 
 Mr. Cameron, one of the Commissioners of Enquiry, on whose 
 recommendation, the Charter of 1S33 was pi-incipally framed. All 
 these speak of the issuing of writs of habeas corpus by the Su- 
 preme Court without express authority, and they all advise that 
 express legislative authority to that effect should be given to the 
 Supreme Court. Nothing of the kind is advised as to any other 
 Court. Sir Charles Marshall refers to the 82 cl. of the Charter of 
 1801 as impliedly giving that power to the then Supreme Court 
 by authorizing it to issue writs of error ; and he remarks that the 
 
120 
 
 1861. writ of habeas corpus ad subjiciendum is in the nature of a writ 
 Dec. 5. of error to review the valididy of a committal. That reasoning 
 however would only apply to cases where the imprisonment was 
 by color of legal process : it would not hold good with respect to 
 the numerous class of cases where a habeas corpus is needed to 
 remedy unlawful restraint exercised by one private person over the 
 liberty of another, such as was alleged in the very case now before 
 us. Perhaps the 44th clause of the old Charter might have been 
 called in aid, which ordained that the Supreme Court should ad- 
 minister criminal justice and have jurisdiction over (inter alia) aU 
 crimes, offences, misdemeanours and oppressions. The word 
 "oppression" need not be construed as having been used as a 
 term known in Roman Dutch Law (like the term " concussions" 
 which occurs in the same clause), but it might be fairly taken as 
 used in its common English sense, as it is employed in the English 
 statutes of 11 and 12 W. iii. c. 12 for the punishment of oppressions 
 committed in the Colonies. 
 
 In 1820, after (and probably in consequence of the commis- 
 sion of inquiry), an order of council was made as to the issuing of 
 the writ of habeas corpus in this Island, which requires careful 
 attention ; and that we may fully understand it, we must first look 
 at a Regulation of the Ceylonese Government which had been 
 made here in 1824 [we may also in passing observe that there had 
 been a new Charter in 1810, but that new Charter had, so far as it 
 increased the' power of the Supreme Court, been abrogated in 1811 
 and it is of no importance with regard to the subject before us.] 
 
 In 1824, a person named Rossiter had been arrested by order 
 of the Colonial Government, and had applied to the Supreme Court 
 for a writ of habeas corpus. Pending the argument, the then 
 Lieutenant Governor in council " declared and enacted that it was 
 " is and shall be lawful to any officer, civil or military, or other 
 " person in whose custody or keeping any person or persons may 
 " be, under orders from' the Governor, or in his absence the 
 " Lieutenant Governor of this Island, signified to him in writing 
 " under the hand of such Governor or Lieutenant Governor or by 
 " the signature of the chief or Deputy Secretary to such Govem- 
 " ment by authority of the said Governor or Lieutenant Governor 
 " to certify a copy of such order as the authority under which 
 " such person or persons is are or may be detained in his custody, 
 " in return to any process of any Court calling on him to produce 
 " the said person or persons, or to shew the authority for the 
 "detention of such person &c., and such return shall be and is 
 " hereby declared to be a sufficient return to such process, without 
 " the production of such person or persons, and shall be allowed 
 " as a good and sufficient return by every Court within this 
 " Island, and as barring every further proceeding of such court in 
 " respect to such person or persons upon such process." 
 
121 
 
 This Btranga regulation was formally dis- Uowed by Order in 1861. 
 Council made by His late Majesty William IV", on the 1st Novem- Dec. 5. 
 ber 183U. But the Order in Council of 183 J did much more. — 
 
 After the disallowing part, it proceeds as follows : " and it is 
 " hereby ordered that all or any person or persons that are or shall 
 " be in prison within the said Island of Ceylon by warrant of the 
 " Governor of that Island, signed by himself and by two members 
 " at the least of the Council uf Government thereof, for high treason, 
 " suspicion of high treason, or treasonable practices, may be detain- 
 " ed in safe custody for 1 8 calendar months next after the date 
 " of any such vrarrant without bail or mainprize ; and that no 
 " Court or judge or officer or other person or persons whomsoever 
 " within the, Slid Island, by virtue of any authority in him vested, 
 " shall discharge or admit to bail or try any such ]-;erson or persons 
 " committed, without order from His Majesty thnnigh one of His 
 " principal Secretaries of State, or from the Governor of the said 
 " Island for the time being, any law or statute to the contrary 
 " notwithstanding. Provided always, and it is further ordered, that 
 " the Governor of the said Island issuing any such warrant afore- 
 " said shall record in the Minutes of the Council of Government 
 " of the said Island the causes and grounds of any such commit- 
 " ment and shall transmit to His Majesty through one of his 
 " principal Secretaries of State by the first possible opportunity a 
 " full transcript of such minute, and that if it shall not appear to 
 " His Majesty fit that such imprisonment of any such person aa 
 " aforesaid should be prolonged, the said Governor shall, upon the 
 " signification of such His Maje.sty's pleasure through one of his 
 " principal Secretaries of State, cause any such person to be forthwith 
 " discharged from further im])risonment or admitted to bail, or put on 
 " his or her trial, as His Majesty shall be pleased to direct. But if 
 '' jnany such case, His Majesty shall through one of his Principal 
 " Secretaries of State signify his pleasure that any such person 
 " should be longer continued in prison, then the person or persons 
 " with reference to whom His Majesty's pleasure shall be so signifi- 
 " ed, shall be detained in safe custody, without bail or mainprize, 
 " until the expiration of such further time as His Majesty shall 
 " be pleased to direct, and during such further period of imprison- 
 " ment it shall not be lawful for any Court or judge or officer or 
 " any other person or persons whomsoever within the said Island 
 " by virtue of any authority in him vested, to discharge or admit to 
 " bail or try any such person or persons without order from His 
 " Majesty through one of his principal Secretaries of State or from 
 "the Governor of the sad Islind for the time being, any law or 
 " statute to the contrary notwithstanding. 
 
 " And /or the removal of all doubts, it is further declared by 
 " His Majesty with the advise of his Privy Council, that except in 
 
122 
 
 1861. " the cases aforesaid, it is and shall be competent to His Majesty's 
 Dec. 5. " Supreme Court of Cejlon or to any Judge of that Court to issue 
 " writs of habeas corpus or mandates iu the nature of such writs, 
 " as fully and effectually and under such and the like circum- 
 " stances as by the law of England writs of habeas corpus can 
 " 01" may be issued by any of His Majesty's Supreme Courts of 
 " record at Westminster or by any Judge at any of those Courts. 
 
 " And it is further ordered that the said Supreme Court of 
 " Ceylon shall and is hereby authorized and required to make and 
 " establish such rules of practice and proceedings as the local 
 " circumstances of the said Island may require, for adapting to the 
 " exigencies of the said Island so much of the law of England' as 
 " relates to the issuing and proceeding upon writs of habeas corpis, 
 
 " And it is further enacted that the present order shall con- 
 " tinue and be in force until the 31st December 1834, and no 
 " longer." 
 
 In 1833, the present Charter was granted by which the 
 District Courts were created with the powers already mentione:!, 
 and by which the present Supreme Court was established. It will 
 be remembere:! that Sir Richard Ottley, Sir Charles Marsliall and 
 Mr. Cameron had all strongly recommended that express power to 
 grant writs of habeas corpus should be given to the Supreme 
 Court, and accordingly we find in the 49th section of the Charter 
 these words : 
 
 ■' And we do further ordain and .appoint that the said Supreme 
 " Court or any Judge thei'eof at any sessions so to be hoklen aa 
 " aforesaid or in the District of Colombo or at any general sessions 
 "of the said Court collectively, shall be and are hereby authoviz- 
 " ed to grant and issue mandates in the nature of writs qf habeas 
 " corpus, and to grant or refuse such mandates to bring up the 
 " body of any person who shall be imprisoned within any part of 
 " the said Island or its dependencies and to discharge or remand 
 " any persjn so brought up or otherwise deal with such persons 
 " according to law." 
 
 It was contended in the argument before us in the present 
 case that the Supreme Court was hereby authorised to grant writs of 
 hobnas corpiis in these cases only when the imprisonment is under 
 colcr of legal jiroceas. But we are clearly of opinion that no such 
 limititiiu exists. The words are ample enough to comprise all 
 Ciises, ami we wl.ih that no doubt should for a moment be entertain- 
 ed as to the Kujireme Court having the power to grant the sovereign 
 and summary remedy of process by habeas corpus, iu all casss 
 whatever of unlawful imprisonment or forcible detention. We say 
 emphatically " all cases whatever," because the Order in Council of 
 1830, which we spoke of lately, and the Order in Council of 1835, 
 ■which we are about to speak of, have long ago expired. 
 
128 
 
 After the receipt and proclamation of tlie Charter, but before 1861. 
 the day on which it was to come into operation, a Regulation waa Dec .5. 
 made, 6 of 1834, which in order to obviate doubts declared that — 
 
 the new District Courts succeeded to all the powers of the Provin- 
 cial Courts and the local Courts (therein enumerated) which were 
 abolished by the Charter and which were to be replaced by tha 
 new District Courts. It is enough for the present to state" that 
 none of the old Courts had ever granted writs of habeas corpus. 
 
 In 183.5 appeared the first and only legislative document that 
 decidedly purported to give any power of granting writs of habeas 
 corpus to the District Courts. It decidedly and unquestionably 
 purported to give certain limited powers of the kind for a limited 
 period. Whether by implication it recognised any powers of the 
 kind and sanctioned such powers in perpetuity is a point of the 
 utmost importance in the present case, and every word of this 
 legislative document must be carefully examined. 
 
 It is an Order in Council dated at the Court of St James, 4th 
 of March 1 835. It runs as follows : 
 
 " Whereas by an order of H. M. in Council bearing date on 
 " on the 1st of November 1830, certain regulations were made res- 
 " pecting the issuing by the Governor of the Island of Ceylnn of 
 " warrant for the arrest and detention of persons charged with or 
 " suspected of treason or treasonable practices, and respecting the 
 " powers of the Supreme Court of the said Island in regard to 
 " issuing writs of habeas corpus or warrant in the nature of such 
 " writs for bringing before them the bodies of any person so arrest- 
 " ed or detained. And whereas the said order expired and ceased 
 " to be in force on the Slst December now last past, and it is ex- 
 " pedieut that the same be revived and continued in force until 
 " the time hereinafter in that behalf mentioned. Now therefore 
 " His Majesty by and with the advice of His Privy Council doth 
 " order, and it is hereby ordered, that the said Order in Council 
 " of the 1st of November 1830 shall be, and the same is hereby, 
 " revived and shall continue in force until the 31st day Dec. 1859." 
 
 " Provided always, and it is hereby further ordered by the 
 " authority aforesaid, that in all parts of the said recited Order in 
 " Council in which the Supreme Court of Ceylou is mentioned, 
 " reference shall, during the continuance of the present order, be under- 
 " stood and be taken to be made to the Supreme Court and the 
 " District Court resp ctively in the Island of Ceylon, mentioned in 
 " H. M's Letters Patent under the great Seal bearing dute at 
 " Westminster on the 18th Februaiy 1833." 
 
 When we look back to the order of 1830, we find that order 
 by its 3rd clause declaring and recognizing the power of the. 
 Supreme Court except 'n the cases specified in its first and second 
 clause. The order of 1835 by its secoad clause applies the 3rd 
 
124 
 
 Deif^5 ^^^^^^ of tte order of 1830 to the District Courts. It follows 
 J^ ■ therefore that the order of 1835 gave to the District Courts power 
 until the end of the year 1839 to grant writs of habeas corpus, ex- 
 cept in cases falling within the 1st and 2nd clauses of the order 
 of 1830. 
 
 The most favourable way in ivhich an argument could be 
 drawn from these orders in support of an enduring and still exist- 
 ing power as to writs of habeas corpus in the District Courts is 
 perhaps as follows : " The Supreme Court as existing in 1830 had 
 had no express power given to it as to writs of habeas carpus. It 
 claimed and exercised that power as given by implication. The 
 order of Council of 1830 recognised the existence in the Supreme 
 Court of that implied power, but ordained that for a limited period 
 Buch power should be subject to certain restrictions; so in 1885, 
 when District Courts had come into existance having no, power as 
 to writs of habeas arpus exjiressly given to them, but having (as 
 we say) a claim to them by implication, came an order in council 
 which recognized the existence in the District Courts of that implied 
 power, but subjected the exercise of it to restricticns for a limited 
 period. The restrictions were to be temporary: the recognition 
 is vested ivi perpetuity." 
 
 But in the first jjlace, there is no proof, there is not even rea- 
 son to suspect that the District Courts had, between 1833 and 1835, 
 been exercising or claiming the power to grant a habeas corpus ; 
 whereas the Supreme Court had undoubtedly exercised thHt power 
 from 1801 to 1*30 ; and (what is more important), there is a well- 
 known rule of intei-pretation which we cannot and ought not tu 
 disregard. It is the rule thatdirects effect to be given, if possible, to 
 every ssntence and to every word in a Legislative instrument. What 
 then is the meaning of the wor.ls " during the ci.ntimiiince <J' this 
 present order" in the 2nd clause of the Order which provides that in 
 all parts of the Order of 1830 in which the Supreme Court is 
 mentioned, reference shall during the continuance nfthe present order 
 be understood and betaken to be made to the Supreme Courtand the 
 District Courts. According to the construction which must be put 
 on the order for the purpose of raising the argument in it in favour 
 of the power of the District Courts, thcss words of limitation are 
 meaningless. It had already been declared that the nvival of the 
 Order of 1830 should not enure beyond 1839. The restrictive 
 parts of the Order of 1830 would therefore have expire;! at the end 
 of 1M39, without the use of the special wor.'s which we are con, 
 sidering. But the employment of those special words mike it 
 clear that the enabling part of the order Wiis to be as limited in 
 vitality asthe disabling. Until the 3 1 st December 1839, and no longer- 
 the words, which declared the Supreme Court of 18 '10 to have 
 power as to writs of habeas corpus, were to be construed as extend- 
 
126 
 
 ing to District Courts. The Order in Council of 1835 cannot be 1861. 
 re^iarded as more than a tem[)orary experiment in vesting a new l^^c. 5. 
 power in the District Courts for a defined period ; and at the 
 expiration of that period, it was not thought fit to renew the power. 
 
 Viewing the Order of 1 835 as thus transitory in effect, we have 
 not thought it necofsary to discuss the objection which the learned 
 Queen's Advocate raise I during the argument against the vitality 
 of that Order on constitutional grounds. 
 
 There has been subsequent legislation on the subject of h ibeas 
 corpus. In 184;-!, power w>is given to any Judge of the Supieaie 
 ('ourt to issue the writ at any time and at any place in the Island, 
 and full power to grant writs of habeas ccrpus has been carefully 
 assured to the Supreme Court by the Ordinance '2 of 1850, which 
 in s )me respects varied its constitution. Several Ordinances have 
 also been passed, which have modified the constitution of the Dis- 
 trict Courts, but not a legislative syllable later than the Order iu 
 Council of 1835 can be found which in any way ossociates the 
 District Courts and writs of habeas carpvs. 
 
 When on a review oil the whole subject, we spek and strive 
 in favt.rem libeitutis to find reasons in support of the claim of the 
 District Courts to grant this remedial writ, it seems to us that tlie 
 chief arguments (besides that based on the order of 1835, which we 
 dealt with in passing to avoid prolix repetition) for the present res- 
 pondents' case, are: 
 
 1st. The argument from analogy to be drawn from the 
 course taken by the English Court of Common Ple.is iu Biithel's 
 case. That Court thus resolved (though contrary tc) the opinion of its 
 Chief Justice) that it had by innplication general power of granting 
 writs of hubeas a,r/)iis irrespective of privilege. But in thiit case, 
 there was 'much to inijily from, to which nothing analogous can be 
 ft)und with respect to the District Courts. The Statute of 1 6 Car 
 i. had put the Common Pleas on the same footing as the King's 
 Bench us to certain specific writs of hi.be.is corpus and there were 
 general words about discharge, or payment of fees, which the 
 mijority of the Common Pleas judges construe 1 into the recogni- 
 tion of a general ])ower. It is to be rcmembei-ed also that the 
 Common Pleas was a BU|>erior Court of general jurisdiction in the 
 realm ; and special stress was laid on this by the judges who in 
 Bushel's case laid it down as a general principle, that if a subject 
 of the King is brouiht before one of the King's superior Courts, 
 and it appears that the impris:)nment is unlawful, the Court cannot 
 suluo jiirumenti) sun remand him to that unjust imprisonment. 
 
 ^ud. An argument by way of analogy may be drawn from 
 the fact of the Supreme Court of this Island having from 1801 to 
 1830 exercised an implied power of issuing these writs, which 
 power was ultimately expressly recognised. But there is no Char- 
 
126 
 
 1861. tor or Regulation or order or Ordinance that gives to the District 
 Deu. 5. Courts the express order of issuing writs of error or an express 
 juris liction over oppressions, such as the Supreme Court had by 
 the old Charter, and which has been above discussed. There was 
 an argument als.) (which is urged by Sir Charles Marshall in his 
 answers to the Commission) that it must have been iutended by the 
 sovereign, in granting a Charter for the full administration of 
 justice here, ti place somewhere the power of granting writs of 
 h ibeas corpus, and that the natural depository of such power was 
 the Supreme Court. Nothing of the kind can be urged in favour 
 of the claim of the District Courts, in as ranch as the very Charter 
 which called them into existence placed elsewhere the i)ower of 
 granting those writs. And there is the coutinuilly recurring 
 distinction between a Court with general jurisdiction over the Islaad 
 and a Court with jurisdiction limited to a section of it. 
 
 Lastly, there is the argument relied on iu the judgment of the 
 Kanly District Court iu this very case, the argument that District 
 Courts must have power to issue writs oihubeas curpus by implica- 
 tion as ancillary to higher powers which are expressly vested in 
 them. The learned Judge of the Kandy District Court refers to 
 its jurisdiction over idiots and lunatics, over testamentary and 
 miti-imonial matters, and urges that the duties of his Court in 
 ' these matters could not adequately be performed without power to 
 issue this writ. 
 
 We fail to perceive the strength of this reasoning. In the 
 first place, it seems inaccurate to treat the " very hiu:h prerogative 
 writ of habeas curpus " as inferior to any process or autboi'ity with 
 which the District Court is expressly entrusted. Next, as to the 
 necessity of such power as is now clamed to enable the District 
 Courts to perform their duties" with regard to idiots and lunatics 
 and as to matters testamentary or matrimonial. Assuredly the 
 District Courts have as a matter of fact discharged these duties for 
 iti years without issuing writs of hubens carpus, or at least with 
 such I'are and exceptional issues as to be of no weight iu the argu- 
 ment. With regard to idiots and lun itics, it may be observed 
 that by the Regulation of 1833 all the powers that had been pos- 
 sessed by the Provincial Courts are expressly vested in the District 
 Courts; and by the 3rd spc'.ion of the Rules of Court of 1st 
 October 1833 (confirmed by Ordinance 8 of 184H), the District 
 Courts are directed to exercis2 this branch of ttie jurisdiction 
 accnrJin.' to Regulation i of 1829. That Regulation empowered 
 the Provincial Judge to give notice to the persons in whose custody 
 any supposed idiot or lunatic was, or if no one had bpen in custody 
 to the constable or headman of the division, to produce the body of 
 the supposed idiot or lunatic before the Court on a day appointed, 
 and a summary punishment by fine or im^^risonment is provided for 
 
127 
 
 disobedience of sucTi order. We cannot see what need the District yJ^^^V 
 Court has for the further power of issuing writ of habeas corpvs in Eec^ o- 
 these cases. With regard to its testamentary and matrimonial 
 jurisdiction, how can it be said to be in such extreme need of the 
 power of issuing a habeas corpus as to acquire the. power by impli- 
 cation, when the ecclesiastical courts in England have for 
 centuries administered justice in these departments of the law with- 
 out possessing the power that is arrogated here. The truth is that 
 when a suit has been instituted in the District Court on any subject 
 within its jurisdiction, the Court can make its orders in that suit 
 and can secure obedience to them. But what is asked now is a 
 general power of issuing a high [)rerogative writ, and of summarily 
 deciding the most important matters of jiersonal right without 
 any suit on tha subject being before the District Court at all. ^ If 
 in the course of a suit or action in the District Court, any diffi- 
 culty should arise curable only by the writ of habeas corpus, the 
 writ can always be obtained from the Supreme Court or from 
 one of its Judges. The analogy also of the right to issue writs 
 of injunction tello directly against the present claim. The Dis- 
 trict Courts having an equitable jurisdiction can, as a necessary 
 part of equitable process, grant injunctions in the suits before 
 them, but it is well established that they cannot grant an in- 
 junction where no suit is pending. That general power can be 
 exercised by the Supreme Court. 
 
 We have dealt with one by one the arguments that seem 
 fairly to arise in support of the respondents' contention. Each 
 singly proves unsttisfactory, nor when we look at them collec- 
 tively and think over their cumulative force do _ they succeed _ in 
 convincing us that the respondent is right, or in even making 
 us think the existence or non-existence of the alleged power 
 inatt-^r of doubt. . 
 
 We are quite clear that the District Courts have it not. Were 
 we to decide as desired by the respondent, we should decide that a 
 court of criminal authority can issue process in the course of 
 which it must deal with committals for offences expressly set out 
 of and above its jurisdiction: and that an inferior court might by 
 Buch process try the validity of committals by this, its Supreme 
 t'ourt. We should be giving this right to a mere local court that 
 can only act and enfore its orders within its own limited area. 
 Above all, we should be forgetful of all sound constitutional princi- 
 ples if we were to uphold the present proceeding. Once more let ua 
 remember (and Lord Mansfield's judgment in King v. Cowle, 2 Bur- 
 rows «3'' may remind us) what in the eye of the law a proceeding by 
 writ of habeas corpus is. The sovereign is supposed to be acting and 
 inquiring why one of her subjects is deprived of his liberty. Here 
 then we have an order of the District Court of Kandy before us by 
 
128 
 
 1861. which the soverign is Bupposed to be acting and using: one of Her 
 Dec. 5. highest prerogatives in an inferior and local court liable at ary 
 time to be controlled by mandamus, procedendo or prohibitions irom 
 this its yupreme Court and subject in all matters to the appellate 
 jurisdiction of this the Supreme Court of this part of Her Majesty's 
 dominions. 
 
 The validity of an order which must be based in such an 
 hypothesis cannot be established by mere argument of inference, of 
 implication or of convenience, even if such arguments in its 
 favour were far stronger of their kind than can be suggested here. 
 
 Our unhesitating decision is that the District Courts of this 
 Island possess no power to issue writs of, or in the nature of writs 
 of, h.beiis coj'pns ad snbjiciendiim. 
 
 The appeal is allowed and the order of the Court beloAv is set 
 aside. 
 
186S. 
 
 27th February. 
 
 Present: — Steeling, J.y and Temple, J. 
 
 C. E. Chavakachclieri, 1 /-y , c -, 
 
 j^(j gg^ J- Lander v. Seedavy, 
 
 This case was remanded for a new trial, in these terms : — j^g^ j.^^1 
 
 The decision in this case not having been given for several 
 months after the evidence, and the Court not having expressed a 
 strong opinion of the strength of plaintiff's evidence, i+ would be 
 more satisfactory to have the case reheard. 
 
 14th May. 
 Present : — Creasy, C. J., and Steeling, J. 
 P. C. Caltura, 
 
 •a,) 
 J./ 
 
 AT 1^/^oA r Fernando v. Fernando. 
 No. 26639. ' 
 
 This was charge under the toll Ordinance. On appeal pre- ~ 
 ferred by the complainant, against an acquittal. Bust appeared for movaT of 
 appellant. The Court affirmed the finding of the Court below, in bar — fine, 
 these terms : — 
 
 The toll-bar having been put up in a place different from that 
 appointed by the Proclamation, no fine attaches. 
 
 IVT * 1 741 8 ' I ■P*''*''* ■^^ Fernando et al. 
 
 Dias for defendant appellant, Lorenz for plaintiff respondent, . , 
 
 The facts material to this appeal are sufficiently indicated in notice of ten- 
 
 the following judgment of the Court : — derofsecu- 
 
 It appears on the proceedings that the District Court has dis- sec. 8, cl. 3, 
 
 allowed the appeal because the defendant gave no notice to the (page 83), 
 plaintiff of the tendering of security in appeal. 
 
1862. 
 June 17. 
 
 130 
 
 The rule of Court, section 8, clause 3, does not require such 
 notice in ordinary oases like the present, though notice is required 
 by the 8th clause in the special case provided for by the 7th and 
 8th clauses. 
 
 In giving this decision the Supreme Court is anxious not to be 
 understood as disapproving of the general practice which thfiy are 
 informed prevails in the District Court of directing the appellant to 
 give notice, and refusing to accept his securities- unless such notice 
 has been given. It is the duty of the District Judge to be satisfied 
 of the sufficiency of securities before they are accepted, and the 
 District Judge may well be satisfied when the appellant has" wil- 
 fully withheld the best possible means of having their sufficiency 
 tested. But the present case, as it now comes before the Supreme 
 Court, is not one where sureties have been refused for want of no- 
 tice, but where although they have been accepted, the want of no- 
 tice has afterwards been treated as a failure to comply with a sta- 
 tutory condition as to the right of appeal. 
 
 dth June. 
 Present: — Creasy, C. J., Steeling J., and Temple, J. 
 
 ^'-^0 148*34^' I '^**''""* "'PP'^ ^" ^"^'^^y^- 
 DilatorineRS ^^^ Court in sending the case back for a re-trial, commented 
 
 practice of as follows on the dilatoriness of proceedings : — 
 
 The Supreme Court observes with very great regret the long 
 and repeated delays in the proceedings in this case. A Court of 
 Bequests cause, which ought to be summarily and cheaply disposed 
 of, is protracted over a period of nearly four years, and it is then 
 determined in a manner which compels the Supreme Court to send 
 it back auain for trial. 
 
 Specially the Supreme Court notes with reprehension the 
 practice of adjourning cases merely on account of the parties not 
 being leady or of the absence of Proctors. 
 
 adjourning 
 cases 
 
 17ih June. 
 Present: — Ceeast, C. J., Sterling J., an-d Temple, J. 
 In re the application of Aysa Natohia for a writ of habeas corpus. 
 Haheaas The following is the order of the Court : — 
 
 e.orpv.s— rpjjjg jg g, second application for a writ of habeas corpus. The 
 
 custody of g^^^ application was made by the petitioner Aysa Natchia to 
 i^h^ iinds Mr. Justice Sterling. She then stated that sKe was the consm of 
 
131 
 
 Pattoo Muttoo, an orphan child of tender years, who had been un- 1862. 
 lawfully taken away from her, and who was detained from her by Jrne 17. 
 Don Cartalies Vidahn Aratchy. — 
 
 Oh these statements, a writ was granted. The parties appeared °_^onsent of'^ 
 before the Court and the matter was carefully investigated. relative &c. 
 
 It appeared that the mother of the child, a moorish woman, died 
 in destitution and extreme misery while travelling along the Kandy 
 Eoad, near the house of a Singhalese man, Don Cartalies Vidahn 
 Aratchy, who is a person of good m.eans and of great respectability. 
 The child Pattoo Muttu, then a mere infant, was with it? mother 
 when the woman died ; and the little creature was left by the 
 roadside utterly desolate and unprotected. Don Cartalies and his 
 wife, from motives of the most laudable humanity, took the orphan 
 child into their house, fed it, clothed it, educated it, and have main- 
 tained it with all the care and kindness that a parent could shew 
 towards its own offspring. The present applicant and the Mahome- 
 tan friends buried the dead mother, as they take care to inform 
 this Court, and were perfectly aware of the condition in which the 
 child was left, and of Don Carthalies taking it to his house. But 
 none of them then claimed the child or offered to provide 
 for it, or made any objection to its being taken by Don Carthalis. 
 These things hapjiened not some months ago, as is untruly asserted 
 in the petition, but some years ago ; and during all that time no 
 objection was made to the child remaining in Don Carthalis' family 
 till the present year, when the child has nearly arrived at [lubevty, 
 and is much above .six years old, the age falsely assigned to it by 
 the petitioner. 
 
 It further appeared that the petitioner is a person in abject 
 and squalid poverty, utterly unable to maintain the child in comfort 
 or even in sufficiency and decency. 
 
 Under these circumstances, Mr. Justice Sterling refused, and 
 the Supreme Court considers rightly, to order the child to be 
 delivered up to this applicant. 
 
 A petition was then presented by a number of moormen, in 
 which they endeavoured to treat the matter as one affecting the 
 credit and the religion of the Mahometan part of the population, 
 and requested that they should ha,ve the child delivered up to 
 them. This most improper and unwise petition. was of course re- 
 jected, without the reprimand which the petition deservsd, but 
 they were kindly informed by Mr. Justice Sterling, that if the 
 applicant Aysa Natchia thought herself aggrieved by his former 
 decision, she should petition the full Court on its re-assembling, and 
 that the subject should then be re-considered. 
 
 She has now petitioned accordingly, but the attempt to make 
 the matter a question as to the social position and the religious 
 feelings of the Mahometans generally is still persevered in ; and it 
 
132 
 
 1862. is asserted that " until this child is restored to the petitioner or 
 June 17. gome one of her own nation or kindred, their tribe will remain 
 degraded, their religion derided, and their society and respect most 
 awfully degraded." Nothing could be more untrue or unwarrant- 
 able than these assertions and the insinuaJtions which they are meant 
 to convey, that the Judge of this Court, who refused to deliver up 
 the child to the present applicant, was influenced in that refusal by 
 the circumstance of the applicant and her friends being of Moorish 
 race and holding the Mahometan creed. 
 
 Except in certain specified cases where we are bound to have 
 regard to the religion of parties, because part of their customary 
 laws, according to which they deal with one another, depends on 
 their religion, we know here no distinction of- persons, what- 
 ever may be their pedigree or their faith. All Her Majesty's sub- 
 jects of every race, of every clime, of every creed are equal in the 
 eye of the law. And with regard to the Moormen in particular, 
 whatever cause the Moormen of Ceylon may have had in former ages 
 to complain of the oppression or intolerance of the rulers of this 
 island, there has not been the slightest.ground for such complaint 
 ever since Ceylon has been under the British Government. Nor 
 does it become them or any of them to speak of .themselves, as has 
 been done in these proceedings, as a degraded tribe, when it is well 
 known that, as a class, they are generally, and the court believes 
 deservedly, respected on account of their intelligence and their in- 
 dustry and commercial energy. But the Suprpme Court decides 
 nothing here about Moors or Singhalese, about followers of Buddha 
 or disciples of Islam. Thg Court deoides that in any case where a 
 child's relative has consented to that child being taken at a time 
 of its extreme need by a person, who has maintained it, and is 
 willing to continue to maintain it, with all proper kindness and in 
 comfort and respectability, and when that relative after a long 
 lapse of time comes forward, at a very suspicious period of a female 
 child's, existence to claim possession of it, though utterly unable to 
 maintain it, this court will not misuse the right of habeas corpus to 
 take the child from a good and virtuous home and deliver it over to 
 misery and want, probably to vice, and certainly to grievous tempta- 
 tions. The application is refused. 
 
133 
 
 19th June. jI^^ 
 
 Present :— Creasy C. J., Sterling, J. and Temple, J. ~ 
 
 D. C. Galle,l , , „ . 
 
 No. 17665 I ■^'ndres v. Bastiana. 
 
 D. C. Galle,) ^ , . 
 No. 19934. f Endns v. Dinto. 
 
 Tlie plaintiffs in these cases prayed for restitution of conjugal Jurisdiction 
 rights, in that defendants did " without just cause refuse to live «* District 
 and cohabit " with the plaintiffs, their husbands, and to render Court-resti- 
 them the conjugal rights due. *]f - °^X' 
 
 The District Judge entered up judgment as prayed. 
 
 On appeal Dias for appellants, Rust for respondents. The 
 Supreme Court set aside the judgments and dismissed the suits in 
 these terms: — 
 
 These were suits for the restitution of conjugal rights ; and 
 before pxamining the special facts and merits of each case, it 
 became necessary to consider the general question whether a suit 
 for the restitution of conjugal rights is maintainable in our courts 
 
 The counsel who argued in support of the jurisdiction refer- 
 red the Supreme Court to cl. 24 of the Charter of 1833, to the 
 supplemental Charterof 1843, and to the Ordinance No. 12 of 1843 
 as proving that the District Courts have jurisdiction in matrimo- 
 nial suits. This was clearly established, but it at the same time 
 was conceded that the matrimonial suits spoken of in the Charter 
 and the Ordinance are such matrimonial suits only as were main- 
 tainable in Holland under the Roman Dutch Law. 
 
 The question was therefore narrowed down to an enquiry 
 whether a suit for the restitution of conjugal rights was main- 
 tainable in the old Dutch Courts, and the hearing of these cases was 
 purposely adjourned so as to give time for full and careful search 
 among the" records of our tribunals and among the Dutch juriss 
 for authorities on the subject. 
 
 The Supreme Court feels assured that the learned counsel who 
 argued in support of the jurisdiction has made that search with all 
 possible deligence and sagacity; and the result is that not a single 
 decision, precedent or dictum can be cited to shew that any suit 
 of the kind is or ever was maintainable under the Roman Dutch 
 Law. _ Those processes of the Ecclesiastical Law, which has ex- 
 isted some centuries, processes by which one party to an unhappy 
 marriage exacts the compulsory cohabitation of a reluctant, and 
 perhaps loathing, partner, are not such as this Court should be 
 anxious or astute to introduce into this colony, though it should of 
 
Voi 
 
 1862. course have bowed to authorities, if authorities could have been 
 
 June 20. found to prove that those things are part of our law. In the 
 
 absence of all authority in favour of the jurisdiction, the Supreme 
 
 Court holds that it does not exist, and that a suit for the restitution 
 
 of conjugal rights is not maintainable in Ceylon. 
 
 ^Oth June. 
 
 Present: — Cklasy, C. J., Sterling, J., and Temple, J. 
 
 ippeal peti- -f» ^e G. W. Dharmaratne, a Proctor of the District Court of 
 
 tion — false, Caltura. 
 
 and defama- The following judgment of the Supreme Court sets out the 
 
 tor J matter facts of this matter :• — 
 
 misooudurt T^iiis was an appeal against a decision of the Commissioner of 
 
 of proctor the Court of Requests of Pantura. 
 
 Dutyof-Judge On hearing this appeal, the judgment was affirmed, but cir- 
 
 as to reocord- cumstances appeared in the petition of appeal, and in the report 
 g I „ ce. ^£ j.-|^g Commissioner, which made it necessary to enquire into the 
 conduct of the Proctor and of the defendant in placing such alle- 
 gations on the petition. 
 
 The material parts of the petition of appeal are as follows: 
 " The appellant feels exceedingly sorry that he is constrained to 
 remark to your lordships that the examination of tlie plaintiff was 
 not properly recorded, that part of the respondents' examination 
 which is most beneficial to the defence being entirely omitted. 
 The appellant begs here to insert the very phrases that are wanting. 
 The respondent, on being questioned as to the southernmost 
 portion above alluded to, said that the whole land in question 
 belonged to nine brothers; that Anthony Fernando, who is one of 
 the said brothers, received the southernmost portion in gift from 
 his brothers, that the southernmost portion was transferred over to 
 him by his father-in-law the sa.id Anthony Fernando, that no deed 
 of gift accompanied the bill of sale in his favour, and th it Anthony 
 Fernando received no deed of gift from his brothers for the said 
 portion of land. These two last phrases, with respect to the deed 
 of gift, are entirely omitted to the great disadvantage of the 
 appellant. That questions respecting the said deed of gift were 
 put to the respondent, that they were answered by him, and that 
 the particular attention of the Court was drawn to such answers, 
 can be proved by affidavits if your lordships will deem such proof 
 necessary." 
 
 " With due deference to the court below, the appellant begs to 
 say that a certain title deed and a figure of survey, which he 
 allowed the court to read, were improperly illegally and forcibly 
 
IS.") 
 
 ■withheld from him by the court, and they were filed in the case 1862. 
 
 contrai*y to his wishes. Your lordships will further mark that June 20. 
 
 this appellant had been served with no notice to produce either the — 
 survey or the title-deed." 
 
 Eespecting thesethe commissioner reports as follows: 
 
 "In forwarding the case No. 2668 of this Court, I have the 
 honor to draw the attention of the Hon'ble the Judges to two 
 deliberately untrue assertions made in the petition of appeal filed 
 by ^ the defendant. They occur in the 4th and 6th paras, of the 
 petition. 
 
 " The first assertion is to the efEect that certain statements 
 m.Kle by the plain tif£ are noi recorded although the ■ particular 
 attention of the court was drawn to them. This is not true. No 
 statement to which the attention of the court was drawn is omitted. 
 The examination of the plaintifE was short, and every statement 
 that appeared to the court to be at all relevant was taken down, 
 whether attention was drawn to it or not. On looking over the 
 record, I find several statements which are alleged to be omitted 
 taken down in the form they were conveyed to the court. The 
 fact that the southernmost portion of the land was transferred to 
 the plaintiff by his father-in-law was repeatedly alluded to in the 
 course of the trial. That there was no deed of gift in favour of 
 the latter, or that the plaintiff knew of none was also admitted. 
 The only points in issue in the case are what is the defined portion 
 out of which the Fiscal sold ^th, and what is the southern 
 boundary ? These being the issues raised, I do not see how a state- 
 ment to the efEect that the plaintiff's father-in-law had no deed of 
 gift for the southernmost portion can be considered in the slightest 
 degree material. 
 
 " But if when such statement was made, the defendant's 
 Proctor had in any way called the attention of the court to it and 
 expressed a wish to have it recorded, I would have gladly done so. 
 
 " The assertion in the 6th para, is a gros.s and ])alpable false- 
 hood The title deed was of the defendant's own accord tendered 
 to the court after the examination of his third and last witness, 
 and when he was asked whether he had any other evidence to 
 offer. He was distinctly questioned whether he wished to have 
 the document read in evidence and a note made to that efEect, and 
 he said that he wished it to be so read. After the rising of the 
 court, the chief clerk communicated to me the defendant's wish to 
 have his deed back, and added that he was unable to return it 
 until after the usual time for appeal had elapsed; and this was 
 explained to the defendant. 
 
 " In connection with this remark, I may be permitted to 
 observe that the defendant gave the Proctor on the opposite side a 
 
1802. great deal of trouble by not answering questions repeatedly put to 
 JuM 20. him, and by evading others during the greater part of hia examina- 
 tion, which occupied considerably more than an hour, and the 
 impression left by him was certaiilly not a favourable one. 
 Mr. Dbarmaratne either on this account, or in consequence of a 
 delicacy he may naturally have felt in conducting the defendant's 
 case after having (very recently) as notary attested the two docu- 
 ments upon which the defendant claims, and with regard to which 
 the plaintiff suggested that they were not bona fide deeds but got 
 up for the purposes of this case, declined to appear for the defen- 
 dant during the remainder of the trial against the express wish 
 of the coui-t, 
 
 "Although the defendant alone signs the appeal petition, I am 
 fully satisfied with that it was drawn out by his Proctor Mr. Dbar- 
 maratne. It appears to me strange that a member of the legal 
 profession should be so unscrupulous as to make assertions which 
 he knows to be untrue, and that he should attempt to evade the 
 responsibility by throwing it on his misguided client. 
 
 " I trust such notice will be taken of this matter by the 
 Supreme Court as will effectually prevent the recurrence of similar 
 conduct, and impress on Mr. Dharmaratne the necessity of having 
 a greater regard for truth." 
 
 As it was intimated to us by the counsel for the appellant 
 that the Proctor would not dispute or conceal the fact of his 
 having drawn the appeal, we caused the Proctor to appear before 
 us, in the first instance, at chambers, on the 12th of this month. 
 
 Pie was cautioned that he might decline to answer any ques- 
 tion, the answer to which might criminate him, and after that 
 caution he admitted that he drew the appeal. 
 
 His explanation as to the charges against the commissioner 
 contained in the 4th para, of unfairly suppressing evidence favour- 
 able to the defendant, although the particular attention of the Court 
 was drawn to them, was that he, the Proctor, repeated the words 
 of the witness, and that he (the Proctor) considers this to be a 
 drawing the attention of the commissioner to it. 
 
 With regard to the 6th para of the appeal petition whicb 
 charges the commissioner with having improperly obtained and 
 withheld from thf defendant certain documents, the Proctor stated 
 that he the Proctor had left the Court before this part of the 
 proceedings, and that he drew this part of the petition on the ins- 
 truction and representations of bis client. ,He added that he took 
 no pains to ascertain the truth of these representations, he (the 
 Proctor) being then sick, aad the time for appeal nearly out. 
 
 He produced before us among other afiidavits one by the 
 defendant. 
 
 " C. Joseph Fernando maketh oath and saith that he is the 
 
137 
 
 defendant in case C. R. Pantura 2668, and after Mr. Dharmaratne, 1862. 
 wto appeared for the deponent, declined conducting the defence, June 20. 
 and left the Court, the presiding commissioner wished to read a 
 certain title-deed and a figure of survey that were in the possession 
 of the deponent, who accordingly allowed him to read them. 
 
 " The deponent further saith that he did not mean to file 
 them in the case, nor did he move that they be filed, but the com- 
 missioner aforesaid very improperly withheld them from him and 
 filed them in the case against his wish. 
 
 " The deponent further saith that he made repeated applica- 
 tions then and there for the said title deed and the figure of survey, 
 but the said commissioner would not return them." And he stated 
 that he drew that affidavit. 
 
 _ It now became necessary for us to have the defendant before 
 this Court, and accordingly he was directed to appear to-day. 
 
 Meanwhile the substance of the proceedings of the 12th June 
 were communicated to the commissioner, and he has sent the follow- 
 ing further report on the matter : — 
 
 " With reference to the explanation of Mr. Dharmaratne that 
 he repeated certain statements to the Court after the Interpreter, 
 I have to observe that this is frequently done by Proctors during 
 the examination of parties and witnesses, without any wish that 
 what they repeat should be recorded. Whether in this instance, 
 Mr. Dharmaratne repeated the words of the Interpreter I do not 
 know, but I am sure that the attention of the Court was not 
 pointedly drawn to the statements. Mr. Dharmaratne left *he 
 Court before the document referred to was handed in by the 
 defendant. Whether the statements regarding it were made on 
 the authority of the defendant, or whether they originated with 
 his Proctor I cannot take upon myself to say." 
 
 Two matters arise here for consideration. Did the Proctor 
 insert a wilfully false statement in the petition of appeal, that 
 the commissioner omitted to record material portions of evidence 
 to which the particular attention of the Court had been drawn ? 
 
 The materiality of this evidence may be matter of doubt. The 
 Proctor may have sincerely, though erroneously, thought it 
 material ; and the Judge may have similarly sincerely, though erro- 
 neously, have thought it irrelevant. It is a mere vulgar error that 
 a Judge is bound to write down all that is asked by advocates and 
 all that is said by witnesses. I use the words of Lord Denman in 
 saying that it is the duty of the Judge to take down only that 
 which is material and relevant. Ofcourse nothing should be 
 omitted that is even likely to be material and relevant, and al- 
 most every Judge would take care to make a note of a particular 
 statement, if distinctly requested to do so by the advocate, unless 
 indeed that advocate had previously abused the confidence of the 
 
138 
 
 1862. Judge in the honor of the advocate and in the advocate's implied 
 June 20. assurance that the matter which then appeared irrelevant would 
 — ultimately prove relevant and important. 
 
 Did the Proctor on this occasion, as he asserts in the petition, 
 particularly draw the attention of the court to such answers ?• 
 
 This is a most unsatisfactory explanation of the Proctor which 
 he now gives, when he, says that he the Proctor, repeated the 
 answers. The habit of Advocates repeating the answers of wit- 
 nesses is too common, and it is done by many of them whether the 
 evidence is important or trifling. It is frequently a habit acquired 
 by those who wish to spin out their examination or crosi-examina- 
 tion, and who are not sharpwitted enough to follow up one ques- 
 tion rapidly by another : while repeating one answer, they are really 
 thinking over the next question. It is a habit which the best 
 English Judges have often censured, and tvhioh one very eminent 
 circuit Judge, the late Baron Guemey, never would allow. I never 
 should suppose that the rejietition of an answer by an advocate 
 was equivalent to a request to me to note it down ; and it is 
 difficult to believe here any member of the j)rofession could so 
 consider it. But it is barely possible that Mr. Dharmaratne may 
 have thought so ; and on this part of the matter, we would not 
 decidedly condemn him of wilful falsehood in the petition which 
 he drew, though he is still guilty of gross misconduct in having 
 preferred such a heavy charge against the Judge of the €ourt in 
 which he is a practitioner, on such very slight and frivolous 
 grounds about his own mistaken fancy as to the natural effect of 
 the repetition of a witness's answer. 
 
 AVe now come to the charge of falsely and wilfully asserting 
 in the petition that the commissioner obtained possession of docu- 
 ments from the defendant unfairlv, used the documents improperly, 
 and detained than wrongfully. 
 
 The gross untruth of the assertions is clear. But we have to 
 find out with whom the blame rests of having placed such 
 - scandalous, false, and defamatory matter on the proceedings of 
 Court. Does the blame rest with the Proctor, the defendant, or 
 with both ? We think it clear that the Proctor >vas ■ not in Court 
 ^vhen the document* were vohuitarily produced by the defendant, 
 ^' nd read in evidence at the defendant's express request-; but the 
 defendant, who certainly has told us an untruth to-day, may 
 have told his Proctor an untruth upon the matter, when he went 
 to liis Proctor to get the petition of apjjeal drawn. But it does 
 not appear that the Proctor took the ti-ouble to enquire into the 
 matter, Avhich he ought to have done before he drew up such a 
 ( harge. He has used before us an affidavit, which he admits that' 
 he, the Proctor, drew, in which the defendant assorts that he did 
 not meiin these documents to be filed. AVe have no doubt that 
 
139 
 
 this affidavit correctly represents what the defendant told his 
 Proctor on the subject ; but whatever the ignorance of the defen- 
 dant may have been as to the meaning • of filing documents in a 
 case, the Proctor must have known the meaning of those terms, 
 and ought not to have drawn up such a petition without careful 
 enquiry, not only from the defendant, but from others, whether the 
 defendant had or had not consented to the docu.ment3 being read in 
 evidence. The record itself shews that the defendant moved that 
 the documents should be read. If the Proctor was too ill to make 
 enquiry, he ought not to have drawn up such a petition, especially 
 as there was another Proctor who had acted in the case. Taking 
 the most lenient possible view of the case as afEects Mr. Dharmaratne, 
 we consider he has been guilty of gross and culpable professional 
 misconduct and mark our disapprobation pf that misconduct by 
 suspending him from being, or acting"_as, a proctor for the term of 
 one calendar month from this date. 
 
 With regard to the defendant, C. Joseph Fernando, whatever 
 may be his ignorance of technical proceedings in Court, we con- 
 sider he has been guilty of wilful and mc.licious falsehood in con- 
 cealing and denying the fact that he was asked whether he wished 
 to have the documents in question read in evidence, and that it 
 was read in evidence at his express desire. We consi.ler that in 
 presenting to the Supreme Court a petition containing the wilfully 
 false, scandalous and defamatory charges contained in'jthe 6th para., 
 he has been guilty of a contempt of this Court, and we sentence 
 him for that contempt to pay a fine of £2 (two pounds), or in 
 default to be copirnitted to the gaol of Colombo for a. term of 
 one week. • 
 
 1862. 
 June 26. 
 
 26th June. 
 
 Present : — Ckkast, C. J., Sterling, J. and Temple, J. 
 
 D. C. Kandy, ) In re Petition of appeal of Basenruke Nilema,' 
 No. 33585. J defendant in the said case, 
 
 The following order of Court is explicit as to the facts of this Petition of 
 matter :— appeal— 
 
 Bcandalous 
 
 We have each of us carefully examined the petition of and defama- 
 appeal in this case, the District Court Judge's letter respecting it, ^°^J matter, 
 and the proceedings at the trial, not with the view of forming any 
 opinion on the merits, which would be premature and improper,but 
 in order to ascertain whether the petition' of appeal, or any part 
 of it, is so scandalous, defamatory or impertinent as to make it 
 unfit to remain in the proceedings. We all concur regretting the 
 
liO 
 
 1862. general tone of the petition, sanctioned as it is by tlie names of a 
 June, 26. Proctor and two Advocates. We also concur in considering that 
 — there is one passage in the petition so scandalous and defamatory 
 
 that it cannot be allowed to stand. 
 
 With respect to the mode of dealing with the rest of the 
 petition, there has been considerable diversity of opinion among 
 us, but we have ultimately agreed to follow the mildest course that 
 any of us has thought sufficient. ^ 
 
 The sentence specially referred to and complained of by the 
 District Jvidge occurs at the end of the following passas;e : — 
 
 " The District Court has declared that it cannot believe the 
 execution of this deed, because she (that is, the plaintifE) did not ob- 
 ject, though left utterly destitute. Prom what part of the evidence 
 the District Judge discovered this, your humble appellants is 
 at loss to discover. Not one word was uttered at the trial, and 
 your appellant cannot conceive how the District Judge came to 
 state as a fact that which is well-known to be untrue." 
 
 The last sentence of this part of the appeal is in every sense 
 of the term scandalous and defamatory. We hope the drawers 
 and signers of this petition did not mean to impute wilful un- 
 truth to the District Court Judge, and we have given them the 
 benefit of that hope. But such language, however it may be inter- 
 preted, is grossly improper. 
 
 Had the District Court Judge been in error in this matter, 
 and had it been necessary for the petitioner to point out that error 
 to the Supreme Court specifically, that might have been done in 
 proper language. But the evidence shews quite enough to warrant 
 that remark of the learned Judge, of the value of which remark 
 we here decide nothing, but which ought not to have been the 
 subject in the petition of such grossly offensive comment. 
 
 We direct that the words " and your appellant cannot conceive 
 how the District Court came to state as a fact that which iswell- 
 knovm to be untrue," be expunged by the Eegistrar 'from the 
 petition of appeal as scandalous and defamatory and unfit to 
 Remain on the proceedings of the Court. With regard to the 
 petition genei-ally, our present intention is to deal with it, if the 
 result of the case make it necessary, under the 3id clause of the 
 rules of Court of the 12th of December 1843. 
 
141 
 
 3rd July. 1862. 
 Present : — Ceeast, C. J., Sterling, J., and Temple, J, 
 
 D. C. Galle,) ^,7 r o 
 
 No. 20,283.} ^^""^ ^- ^"''■ 
 
 D. C. Galle,! „ „, , 
 
 No. 20,286!} ^o''^-^^<^<=^- 
 
 The facts are sufficiently indicated in the following judgment Shipping— 
 of tlie Supreme Court : — delivery of 
 
 These were cross-actions between a shipowner and a merchant, ship's^side— 
 and the main point in dispute was whether the shipowner was en- payment of 
 titled to require payment of freight as the goods were delivered freight — 
 into the merchant's boats over the ship's side, or whether he was demurrage- 
 bound to deliver the whole cargo into the boats and wait till it was 
 brought on shore, before he had his freight. 
 
 The merchant had by a charter-party dated 16th April, 1861, 
 chartered the ship to fetch a cargo of rice from Calcutta to Colom- 
 bo to be unladen there or at Galle, or part at each place, according 
 to instructions. The dispute arose as to the part which ( as was 
 agreed ) the ship was to deliver at Galle. The parts of the char- 
 ter-party material for the decision of these cases are as follows: 
 
 " Freight to be paid at and after the rate of one rupee and 
 four annas per bag of rice of two maunds and light freight at 
 £ 2.10 per ton as per Calcutta scales of tonnage on the quantity 
 safely delivered. Twelve w> rking days for loading in Calcutta, 
 and fifteen working days for discharging at Galle or Colombo, in^ 
 eluding both places, but exclusive of time occupied in changing 
 ports to commence from the time the master gives notice that he is 
 ready to receive and discharge cargo, or demurrage to be paid at 
 £ 20 per day for every day over and above the said working days. 
 The cargo to be taken alongside and to be taken fi-om the ship's 
 tackle at the port of discharge free of risk and expense to the 
 ship." 
 
 The ship delivered part of her . cargo at Colombo, and then 
 proceeded to Galle by instructions to deliver the residue. Various 
 quarrels took place between the parties into which it is unnecessary 
 to enter, but at last after some cargo had been delivered, the 
 master required the merchant to pay daily the freight for the 
 amount pi cargo delivered each day over the ship's side into the 
 merchants boats, and refused to deliver more cargo on the merchant's 
 refusing to pay on delivery as required. The question is, was the 
 master justified in such requirement and refusal. The Supreme 
 Court think that he was. 
 
 As a general principle, when there is no express stipulation as 
 
14:2 
 
 1862. to the time and manner of payment of freight, the master is not 
 
 July, 3. bound to part with the goods until his freight is paid. This is 
 
 — expressly laid down in Abbott on Shipping, the highest aiithority 
 
 on the subject, and the same doctrine in laid down in perhaps the 
 
 next highest authority, Kent's Commentaries, vol. 3. p. 299. 
 
 It was urged on behalf of the merchant in this case that where 
 the mode and time of paying freight are left uncertain by the con- 
 tract, the custom of the port of delivery is to prevail ; and sonle evi- 
 dence, though very feeble, was given that it is not usual at Galle to 
 pay freight till the whole cargo is brought on shore. Smith's Mercan- 
 tile Law was cited on this point. His words are " the manner of 
 delivery of the goods, and , consequently the period at which the 
 master ceases to be responsible for them, depends, in the absence of 
 agreement, on the custom of the place." Mr. Smith cites a case 
 from Espinasse, which by no means bears out his text; but even 
 if it did, that text has no application here. In this case, the 
 charterparty provides that " the cargo is to be taken alongsidt and 
 to be taken from the ship's tackle at the port of discharge free of 
 risk and expense to the ship." And the bills of lading provide - 
 that the cargo is to be taken from the ship's tackle, at the risk and 
 expense of the consignee and a receipt to be granted on board. ■ It 
 is further in evidence, that an agent of the merchant's was on board 
 of the vessel during the days on which the delivery went on, and 
 that he gave receipts, though the form of those receipts does not ap- 
 pear on the face of the proceedings before us. The Supreme Court 
 thinks it clear that in this case, it was intended that the master should 
 deliver, and the merchant receive, at the ship's side; that on such 
 delivery and receipt, the master ceased to be responsible for the 
 goods. It is clear on all authority and common- sense that he had 
 a right to be paid before he gave up his lien. 
 
 It has been said on the other side, that it was impossible for 
 the merchant to examine the condition and weight of the bags of 
 rice as they came out of the ship. 
 
 No evidence was given of this. The contrary would appear 
 to have been the case, from the fact of the merchant having for 
 several days before the quarrel sent his agent on board to superin- 
 tend the delivery and acceptance of the cargo from the ship into the 
 boats; and even if there had been any difficulty of the kind, it was 
 one which the merchant brought upon himself by the mode in 
 which he contracted. 
 
 As the Supreme Court holds that the merchant's refusal to 
 pay on delivery was wrongful, it must hold that his omission to 
 unload and receive the cargo on the proper term was wrongful also, 
 and that the part of the judgment of the Court below which fixes 
 him with demurrage is correct. Objection has been made to that 
 part of the judgment which gives interest on the dumurrage, and 
 
it is argued that demurrage is in the nature of damages, so that 1862. 
 interest is not to be given on it. The Supreme Court thinks that July 15. 
 this objection is well founded. — 
 
 The verdict in the case of Ease v. Black is therefore to be 
 reduced by disallowing the interest on the demurrage. In other 
 respects, the judgment of the District Court in both actions are 
 affirmed. 
 
 15 th July. 
 
 Present : — Creasy, C. J., Sterling, J. and Temple, J. 
 
 ^ ■ -iKJ^i ' > Kourale v. Dingery Menica et al. 
 
 The Supreme Court in remanding the case for re-hearing Mesne profits, 
 said : — 
 
 A party may sue for mesne profits even though in a former 
 suit for the land he declared for mesne profits, but gave no evi- 
 dence thereon. But he can only recover undeV the 9th clause of 
 Ordinance No. 8 of 1834. See District Court BaduUa 14674. 
 Supreme Court C. M. 27th May 1857. 
 
 N TiHmi '( Wieretoonge y. Sinneperumal Chelly. 
 
 Per curiam : — Aflirmed. The Supreme Court regret to observe K;,7bt to 
 the frequency of appeals about the right to begin and the order in ^^^ . 'V 
 Vi'hich j/arties are to call evidence. These and all similar ma'tera ^P' 
 as to- the conduct of a cause are things in which the .presiding ofp:es- 
 Judge ought to be invested with very large discretionary jniwers ; Ju " 
 and the Supreme Court will not interfere with the mode in which 
 those discretionary powers have been exercised, except in, cases of 
 gross error and of serious hardship arising from such error. 
 
 ■creiion 
 
 18th July. 
 Prei^ent: — Ckeasy, C. J., Sterling, J. and Temple, J, 
 P. C. Negombo 
 
 No. 203. - ^"■'''" ^- '^'■'™- 
 
 } 
 
 On appeal an-ainst an acquittal, the Court affirmed the order. Toll, evasion 
 as follows :— "l-?^- J 9* 
 
 The toll keeper [who is the complainant] seems to entirely xgei.'rcl )7 
 misuudtrstand the 17th clause of Ordinance 22 of 1861. The of Ord. 4 of 
 
 Old. -2 of 
 
 il, [cl. 
 
 Ord. 4. 
 
 1867.] 
 
144 
 
 1862. words " not being a public highway" are to be read in conjunction 
 July 22. with the word "land," and not with the wjrd "road," which 
 means here the turnpike road itself. 
 
 The clause is intended to prevent the evasion of payment of 
 toll by a trick, which is doubtless as common here as in England. 
 A man who has used a turnpike road tries to avoid paying toll, by 
 turning of£ the turnpike road when he gets near the toll-gate 
 and skulking round the toll-station till he he can get back at the 
 turnpike road on the other side of the toll-bar. For this he is very 
 properly made liable to a fine. If there is a public highway 
 running out of the turnpike road, a traveller may turn ofE into that 
 public highway without being liable ; but if he shirks the toll, by 
 turning off the turnpike road over any adjacent land, not being the 
 soil of a public highway, he is liable to the penalty. 
 
 Mahometan 
 Law — cus- 
 tody of child 
 — liability 
 of father to 
 maintain it. 
 
 22nd, July. 
 Present : — Cbeasy, C. J., Steblino, J., and Temple, J 
 
 D. C. Colombo, 
 No. 29370, 
 
 C. E. 
 
 No. 
 
 Colombo, 
 9370. 
 
 
 Hadji Marihar v. Ahamado Lebbe. 
 
 Ama Lebbe v. Mamona Lebbe. 
 
 The following is the judgment of the Supreme Court : — 
 
 The Supreme Court thinks that the plaintiffs in both these 
 actions are entitled to succeed. With respect to the law, the Sup- 
 reme Court think, 
 
 1. that the grandmother of a Mahometan child is entitled to 
 the custody of the child on the mother's death ; and 
 
 2. that the obligation of providing for the child's main- 
 tenance is paramount on the father, altljough the grandmother has the 
 child in her custody, and although the father wishes to have the child 
 in his own. 
 
 The right of the grandmother to the custody of the child is 
 given on the child's behalf, not on behalf of the grandmother. It 
 is the child's privilege. The remark therefore of the learned Com- 
 missioner in the Court of Bequests case, about those who chose to 
 exercise a privilege being bound to take it with its accompanying 
 burden, seems to the Supreme Court inapplicable here. 
 
 Some difficulty arose in the District Court from the action 
 being brought, not by the grandmother, but by the uncle, who in 
 fact lived in the house with the grandmother and the child, and 
 provided the necessary funds. That difficulty disappears when the 
 
14,- 
 
 case is considered thus. The plaintiff funclc) finds the child in 
 the proper place for the child to be in, i. e., in its grandmother's 
 custody. The plaintiff, as the child wants necessaries, provides 
 them. The plaintiff turns to his father, who is under the para- 
 mount duty of maintaining his child so supported, to repay him. 
 The Supreme Court think he has a right to do so, and that there is 
 sufficient quasi ohligalio ex contractu to make an action sustainable. 
 In the District Court case, the Supreme Court thinks that no 
 deduction should he made on account of the alleged receipt by plain- 
 tiff of the profits of the house which belongs to the child. In the 
 words of the Mahometan authority which has been cited : " the 
 money of the little child should not be expended, but kept till it 
 comes of age." 
 
 186:.', 
 August 5. 
 
 6t}i August, 
 Present: — Creasy C. J. and Templf J. 
 
 D, 
 
 C. Jaffna, 
 No. 11493 
 
 :} 
 
 Lindsay v. Dunlop. 
 
 The Supreme Court remanded the case in these terms:— 
 
 The District Judge ought not to have made an order as to 
 the right to begin, and then suspended the proceedings to remit an 
 appeal against such order. 
 
 In order to prevent a second appeal as to the right to begin in 
 this suit, the Supreme Court wish to draw the attention of the 
 District Judge to a case reported in Austin's Rep p. 200, in which 
 the effect of admissions in examinations and the proper course to 
 take as to the order of proof are very fully explained. 
 
 Evidence — 
 
 Right to 
 
 begin — onus 
 
 — appeal. 
 
 D. C. Negombo, i 
 No 419. I 
 
 Caloo Nuide v. Perera 
 
 The Court, in setting aside the judgment appealed against, said,- 
 
 The notes as to prescription are admirably laid down by Chief 
 Justice Serjeant Eough in a judgment given in D. C. Caltura 
 28S9 : " There are," says he, "two points regarding the law of 
 prescription that should be always well borne in mind : the first, 
 that a possessor is always presumed to hold in his own right and as 
 proprietor until the contrary be demonstrated. The second that 
 the contrary being once established, and it being shown that 
 
 Prescriptioa- 
 
Ni 
 
 18C2. tlie posaession commenced by virtue of some otlier title, suoli 
 August, 14. as that of tenant or planter, then the possessor is presumed to have 
 continued to hold on the same terms, until he distinctly proves 
 that his title has been changed." 
 
 14th Aiigtist. 
 Present: — Creasy, C. .1. and Temple, J., 
 
 "NT 9 4.77 ( Odapalate A'ofle V. Falle Aratchy. 
 
 The following judgment of the Supreme Court sets out the 
 facts of the case : — 
 
 Kandyan In this case the defendant was sued for land tax on certain 
 
 •territory— lands within the Kandyan territory. The defendant pleaded his 
 headman s exemption as a headman. It appeared that he was headman for 
 Proclamation ^ district in which these lands are situate. 
 
 of 21st Nov. The question was whether the exemption given by the Pro- 
 
 1818. cl. 23. clamation of 21st November 1818, extends to all lands (at least, 
 
 to all lands in the Kandyan territory) whereof a headman is 
 
 possessed; or only to his lands in that district for which he is 
 
 appointed headman. 
 
 The words of the clause in question (§ 23.) are as follows: " all 
 lai^.ds belonging to chiefs holding office, either of the superior or 
 inferior class, and of inferior headman, shall during the time they 
 are -in office be free of duty." 
 
 Does this mean that a personal immunity from taxation, so 
 far as land tax is concerned, shall be granted to chiefs and head- 
 man, while in office ? Or does it mean, not that all their lands 
 shall be free, but only such lands as be in the district for which 
 they serve. 
 
 We think that the first of these interpretations is correct. 
 
 The words of the Ordinance are that '• all lands belonging to 
 chiefs &c." shall be free. There is nothing in the context to 
 curtail the force of the words " all lands," and we inust give them 
 their natural construction. This opinion is confirmed by looking 
 at the 28th and 29th clauses, which seem clearly to treat the 
 immunity fromi taxation given to the chiefs as a personal immunity 
 and not as an immunity given to the lands which they hold in the 
 district where they bear office. 
 
 The 23rd section evidently means to treat chiefs and head- 
 man on 'the same principle as to relief from land tax; and therefore 
 any argument deduced from other parts of the Ordinance in favour 
 of the extended immunity of the chiefs applies in favour of the 
 headman as to lhe point now bpforp i!.«. 
 
We were referred to clause 1 of Ordiaauce No, 14 of 1840 as 1862. 
 making all lands liable to land tax. But that clause only " con- August 14. 
 tiuues the levy upon lands then liable thereto, as by law custom or 
 usage was then levied or payable." But Kandyan lieadmen's 
 lands being then exempt were clearly not within the meaning of 
 that clause. 
 
 The judgment of the Court below will be accordingly set 
 aside, and judgment entered for defendant with costs. 
 
 D. C. &alle, ) ,,,,, , , 
 
 No. 9501. / OUvad;iy..J^nsz. 
 
 The facta are sufficiently stated in the following judgment of Foifeiture 
 the Supreme Court. ofrecogni- 
 
 . Z2iHCG IsW 
 
 Dias appeared for appellants, the Queen's Advocate for res- ^mder -vear- 
 pondent. rant of Dis- 
 
 In this case one E. A. Jans2 gave bail to appear before the jjg^g^^ j^ggg 
 
 District Court of Galle to take his trial for assault. The appellants, gi' jj^ pj^.' 
 
 Anthony and SchefEer, were his securities under the bail-boiid. ce\ure. 
 Jansz did not appear on the summons to take his trial, and on the 
 motion of the counsel for the prosecution, the District Court 
 ordered the recognizance to be forfeited under the 29th clause of 
 Ordinance No. 5 of 1855 ; and at the same time, on the motion of 
 the D. Q. Advocate, a summons was ordered to issue to Jansz and 
 his securities under the 1 1 clause of Ordinance No. 6 of 1855 to 
 shew cause why the sums acknowledged in the bail-bond should 
 not be levied on their goods &c. To this summons, Jansz was 
 reported not to be found, and on the 9th June the sureties, appear- 
 ing by coimsel, shewed cause. The District Court however ordered 
 the amount of the recognizance to be paid into Court, and iu 
 default warrants of distress to issue under the 11 clause of Ordinance 
 6 of 1855. 
 
 Against this order the securities have appealed, and the 
 following objections have been urged by their counsel. (1) That 
 the commission of Justice of the Peace given to Mr. Fraser in 
 1853, and under which he acted, was impliedly revoked by the 
 subsequent temporary commission given to him in 1861 "under the 
 Ordinance No. 3 of 1853; (2) That the original recognizance 
 was not sent to the Fiscal by the Justice of the Peace, as required 
 by the 25th clause of Ordinance 5 of 1855. (3) There is no 
 evidence that the certificate of non-appearance was endorsed on the 
 recognizance, as required by clajase 10 of Ordinance 6 of 1855. 
 (4) There is no evidence that Jnusz was absent wh'>D oalh-d in 
 Couri , 
 
U8 
 
 1862- As to tlie first objection, there is no evidence that the com- 
 
 August 14. mission given to Mr. Praser in 1853 was ever formally revoked, 
 — and text of Chitty on Prerogatives p 89, 90, cited by the appellant, 
 
 does not bear out the allegation that it was revoked by implication. 
 As to the 2nd objection, there is no conclusive evidence that the 
 original recognizance was not sent by the Justice, and as it was 
 produced before the District Court, it is to be presumed it was 
 regularly transmitted ; neither does it appear how the sureties 
 will suffer, if the fact were otherwise. As to the 3rd objection, 
 this endorsement is to be made under the 1 0th clause of Ordinance 
 6 of 1855 by the Registrar or other proper officer of the court. 
 Now both the recognizance and the certificate are before the court 
 properly, and the certificate is to be considered the act of court, 
 and thereupon required no proof. As to the 4th objection, the 
 entry of non-appearance by the Judge of the court is prima facie 
 evidence of absence, and such entry being a record of the District 
 Court would be properly judicially noticed by it in its subsequent 
 proceedings. 
 
 Affirmed. 
 
 Mortgage — 
 priority — 
 effect of 
 creditor pay- 
 ing ofE a 
 more ancient 
 
 creditor — 
 advances for 
 cultivation 
 of estate — 
 prior special 
 mortgage — 
 preference. 
 
 p. C. Colombo, 
 No. 29669 
 
 •1 
 
 Marshall et al v. Edermanesingham, 
 Lee, applicant 4r appellant, and Sinnaya Chetty, 
 opponent ^ respondent. 
 
 The following judgment of Lawson D. J., sets out the facts 
 of the case : — 
 
 " This is a proceeding brought to determine the respective 
 rights and priorities of the mortgagees of an estate, called the 
 Koodoogalle estate, sold under the judgment obtained in this case 
 against defendant Edermanesingham. 
 
 " It appears that Edermanesingham purchased this estate from 
 Martin and Marshall for a sum of £10,000. Credit was given by 
 the vendors for £6,000 part of the purchase' money ; and on the 
 23rd October 1857 a bond in a penal sum of £12,000 was given 
 by Edermanesingham to Martin and Marshall, to secure the pay- 
 ment of this sum by five instalments annually of £1,200 each, 
 payable on 1st January in each year, commencing from 1859 until 
 payment in full with interest @ 7 o/o ; and for further security a 
 mortgage of the estate was given to them. On the 23rd December 
 1858, the defendant executed a second mortgage of the estate for 
 £1,000 with interest @ 15 o/o in favour of Sinnaya Chetty ; and 
 again on the 15th August 1859, he executed a further mortgage of 
 the same land in favour of Sinnaya Chetty, for a sum of £2,000. 
 
 " The first instahnent of £1200 was paid when it bccamp due, 
 
1.49 
 
 and before the second instalment hecame due, Edermanesingham 18C2. 
 entered into an arrangement with W. D. Lee, by which the latter August 14. 
 agreed to pay that instalmen,t, and to make advances to carry on — 
 
 the cultivation of the .estate, and to secure these sums Edermane- 
 singham on the 24th December 1859 gave Lee a further mortgage 
 on the estate. 
 
 •' Lee had no notice of either of the mortgages to Sinnaya Chetty ; 
 and Edermanesingham in the mortgage deed to Lee expreosly 
 declared that the estate was subject only to Martin and Marshall's 
 claim, and that there was no other incumbrance on it ; by the 
 same deed, Edermanesingham appointed Lee his agent and factor 
 for the estate with authority to visit and power to appoint, dismiss 
 and pay the superintendents. On the 5th January 1860, Lee paid 
 to Martin and Marshall's agent the instalment of £1200 then due, 
 with a further sum of £336, being interest @ 7 o/o on £4800 for 
 the previous year ; but, believing in consequence of the fraud 
 practised on him by Edermanesingham that his own mortgage 
 ranked next to that of Martin and Marshall, he took no assignment 
 of their claim against the estate. Immediately after the arrange- 
 ment with Lee was made, he was put in possession of the estate, 
 and thereupon removed the superintendent and appointed a fresh 
 one, imtil the sale in June last, hereafter to be referred to. Lee 
 also provided the necessary funds for the cultivation of the estate. 
 
 " After the instalment of 1861 became due, Lee discovered the 
 fraud which had been practised on him by Edermanesingham, and 
 thereupon obtained an , assignment from Martin and Marshall of 
 their claim agamst Edermanesingam under their mortgage to the 
 extent of £1536, but subject to their own claim to the residue of 
 the purchase money, viz. £3600 and interest thereon then remain- 
 ing due as a prior claim. 
 
 " On the 25th March 1861, Martin and Marshall obtained 
 judgment against Edermanesingam for the £3600 due in respect 
 of their mortgage bond. Under this judgment a writ was issued 
 and the estate was advertised for sale; but the sale was afterwards 
 stopped by Sinnaya Chetty, who shortly afterwards purchased the 
 judgment and mortgage bond of Martin and Marshall for £ 3852 
 12s 6(/., and took an assignment of their interest by deed dated 
 ISth A;>ril, 1861, under which he was also appointed their agent 
 for the purpose of I'ecovering this sum. A fresh wi-it was there- 
 upon issued, and the estate was put up for sale and purchased by 
 Sinnaya Chetty for £7500. Lee thereupon claimed a sun: of 
 £3157. 2. 7, as duo to him under his mortgage on account of ll.e 
 payment by him of the sum ol: £1536, and of his advances for the 
 up"kee[) of "the estue, and refused to give up possession, in conse- 
 quence of which claims Sinnaya Chetty paid into court this sura of 
 £31 -"17. 2, 7, and Lfe delivpred over possession of- the estate, on 
 
]:■)() 
 
 18^12. reouivuig an undertakiug from the Prootor of Siunaya Ohetty that 
 August 14. his claim should not be thereby prejudiced. 
 
 — • Lee now applies to be allowed eredit for this sum of 
 
 £3157. 2. 7, as a charge on the estate, subject indeed to the claim 
 of Sinnaya Chetty for the sum of £3600 and interest due to him 
 under assignment of the mortgage and judgment from Martin and 
 Marshall, but preferent to the mortgages for £1000 and £2000 of 
 the i'3rd December 1858, and of the 15th August 1859. 
 
 " Lee obtained judgment on the 21st May last againts Eiler 
 manesingham for £1536 due on his mortgage and assignment from 
 IMartin and Marshall, and for £889. 10. 6. for the balance due on 
 account of advances up to the 25th April 1861. He has tendered 
 the estate accounts for inspection of the court, and the court is 
 satisfied that this sum was due on that date on account of such 
 advances, and that there is a further sum due for his expenditure 
 Lip to the 11th of July when he gave over possession. 
 
 " The question is, whether Lee has a claim on the pioceeds of 
 the sale of the estate for these sums or either of tli^m, before pay- 
 ment to Sinnaya Chetty of the sums due to him in respect of his 
 mortgages. 
 
 " It is not contended on the part of Lee that Sinnaya Chetty 
 participated in the fraud practised by Ederm mesingham ; nor on 
 the other hand, is it argued that Lee was guilty of any negligence 
 or default in not having ascertained the existence of the mortgages 
 to Sinnaya Chetty before making advances on the estate. The 
 claimants therefore come before the court witli equal equities, and 
 the maxim qui prior est tempo''e poti 'v eHjure will apply except in 
 so far as any claim may be proved to be privileged. Now on 
 tiuhalf of Lee it has been contended that having ]j"id off the 
 debt of Martin and MarshaK to the extent of £1536, hehas suc- 
 ceeded to their rights in respect of that sum under their mortgage, 
 both by virtue of the assignment from them, and also, irrespective 
 of that assignment, on the ground that a creditor who pays o£E a 
 more ancient creditor than himself succbels to the mortgage 
 of that creditor. And it is further coui.ended that Lee is en- 
 titled to priority in respect of his advances t^w irds the estate, 
 because the value of the estate has been enhanced to an equivalent 
 extent by the expenditure, and that such expenditure creates a tacit 
 hypothec, having preference over a previouf. sjiecial hypothec ; and 
 .'ilso Lee, having been in possession of the est.io at the time of the 
 sale, was entitled to retain posse-^sion until his expenditure on the 
 estate was repaid him, and that, by ag:-eomcnt Letw.^en the parties, 
 his surrender of the estate was not to prejudice his i'iLj;hts. 
 
 " Each of these points has been very fully urgued at the bar, 
 and the Court will proceed to consider them iu iLo orjor in which 
 (.hoy have been ff a; cd. 
 
I r, I 
 
 " Isi,. Whether anything _passedhy the aesignmtnt from Muriin 1862. 
 and Murshjll to Lee ? August 14. 
 
 " On t,hi.-. point, the Court is of opinion that Martin and Blarshall's — 
 
 debt was extinguished and satisfied to the extent of the £ 153b by 
 the payment of that sum to them by Lee, and that there was no 
 agreement between them and Lee at the time of the payment fgr 
 a subsequent assignment, such assignment, made in pursuance of an 
 agreement entered into some time after the payment, is void (Sande 
 de actiomim ceasio7ie, cap. vii. sec. 1.) 
 
 " 2ndly. Whether, indej^endeiitly of the assignment, Lee ac- 
 nidred the rinnts of the prior mortgagees by the payment of their claim. 
 
 " In support of the affirmative of this proposition, the authority 
 of Domat is quoted to the following eSect: — 
 
 'He who being already a creditor pays ofE another creditor 
 of the same debtor, who is prior to himself, succeeds to his mortgage, 
 although be have made no such agreement, nor received any sub- 
 stitution. For his iiuality of creditor makes it to be presumed that 
 he pays him who is the more ancient creditor with no other view 
 than that lie miiy succeed in his place and thereby secure his own 
 debt, which distinguishes his condition from him who, having no 
 such, interest, pays for the debtor without substitution, and of 
 whom it may be s lid that perhaps he was under an obligation to 
 the debtor to pay for him.' 
 
 " This authority appears to the Court inapplicable to the jiresent 
 case for the following reasons: 
 
 " (a.) At the time when Lee paid the sum of £1536 to Martin 
 and Marshall, he was not a creditor of Edermanesingham, but had 
 only received a mortgage to cover future payments, of which this 
 sum appears to have been the first. 
 
 " (b.) It appears from the passage cited that where there is 
 a presumption that the person paying was under an obligation \o 
 the debtor to do so, that presumption will rebut the presumptiou 
 of an intent on the part of the payer to succeed to the rights 
 of the prior creditor ; a fortiori therefore will the latter pre- 
 Bumption be ri^butted by actual proof of such obligation on the 
 part of the payer. Now in the present case, Lee was bound 
 by the agreement wdth Edermanesingham, recited in the deed of 
 the 24th December 1859, to pay to Edermanesingham the sum of 
 £ 1500, which at the request of the latter he paid to Martin 
 and Marshall. 
 
 " (c.) The assignment of a mortgage of landed property, 
 being a contract for establishing an interest in such property, must 
 under the provisions of Ordinance 7 of 1840 be effected by nota- 
 rial instrument. 
 
 " The Court therefore in the absencr of such evidence is ]ive- 
 clirdnil from pi-o!--umin;j- sncli assicnmen. ^n hav^^ hcon nadt frum 
 
If<ti2. the acts of the parties or the circumstances of the case; anl this is 
 August 14. not tlie case of a tacit hypothec created hy operation of law, wiiich, 
 as has often been held, is not excluded by the operation of the 
 Ordinance, but a case of the assignment of a conventional hypothec 
 by the persous entitled thereto, which falls under the provisions of 
 the Ordinance as fully a a the original hypothecation itself. 
 
 ■' (d.) Lee having elected to. take from the debtor a special 
 mortgage to secure his advance, be cannot therefore be presumed 
 to have intended to take an assignment which would have rendered 
 such a mortgage unnecessary; and though Lee neglected to take 
 this assignment in consequence of the fraud of Edermanesiughatn, 
 this cannot prejudice Sinnaya Chetty who was no party to the 
 fraud. 
 
 " Before leavin? this question as to the effect of payment of a 
 prior debt in transferring to the payer the right of the formor 
 debtor, it is necessary to consider the decision of the Supreme Court 
 in- case No. 14008 from tbe District Court of Galle (LorenzlSOJ, 
 which was cited as an application of the principle relied on. 
 In that case, the defendant, who was indebted to two others, to the 
 one on a special mortgage of land, and to the other, the plaintiff in 
 the case, as it would appear, on simple contract, sold and transferred 
 the mortgaged property to another, who gave the mortgage credi- 
 tor his own bond for his debt. Shortly afterwards, the plaintiff 
 obt-iined judgment and seized the land which was claimed by the 
 tr;iust'eree. The Court held that the transfer wis fraudulent and 
 illusive, as intended to defeat the claim of the plaiutiif, and 
 accordingly set aside the ti-ansfer, but held the claimant entitled to 
 be paid the amount of the mortgage debt as a prefcrent claim. 
 The reasons of the judgment are not stated in the re; -rt, but it 
 appears that the property seized was vested in the claimant, and 
 that the plaintiff could not justly set aside the transfer on the 
 ground of fraud without paying to the claimant the money 
 bona fide e.Kpended by him or for which he had rendered himself 
 responsible in paying or settling a claim preferent to that of the 
 plaintiff. 
 
 " The Court therefore holds that Lee is not entitled to rank 
 before Sinnaya Chetty with respect to the claim for £1536. 
 
 " Srdly. We have next to consider whether advances f<,r the 
 cultivation of the estate give, in so far as they have enhanced its 
 value, a preferent claim to the person making the advances over a 
 prior creditor under a special mortgage ; and this poiut must be 
 considered first without reference to any rights which Lee may 
 have acquired by virtue of his possession of the property, which 
 will be considered separately. The point now in question was 
 considered by this court in the case No. 22317, and a decision was 
 
153 
 
 given unfavourable to the claim of a person who had spent Lis 1863. 
 money in the improvement and plantation of a garden even as a August, 14» 
 mortgagee holding a special mortgage considerably subsequent in '^ 
 
 date to the agreement under which the plaintiff conimenGed hia 
 improvements. The case however is cited by the counsel for Lee 
 on the ground that the decision of the court on this point was 
 reversed by the Supreme Court. On reference to this case, it ap- 
 pears to the court that though itg judgment was altered and modi- 
 fied by the Supreme Court, the alteration was in substance an 
 affirmation of its decision on the point now in question. In that 
 case, the plaintiff was the planter of a, cocoanut garden belonging 
 t;o the first defendant, which was sold under a writ of the 2nd 
 defendant, who held a special mortgage from the first, of date 
 subsequent to the agreement under which the plaintiff commenced 
 to plant. The plaintiff claimed the amount expended by him in 
 the plantation out of the proceeds of the sale of the estate, and this 
 Court, holding that the expenditure gave him no such preferent 
 claim, dismissed the case. The Supreme Court set aside this 
 judgment, but confirmed the non-suit as against second defendant, 
 holding that the plaintiff not haying completed his contract toi 
 plant might hold possession, until it was completed, and might then 
 have his remedy against the owner of the land for the time being. 
 By this decree the 2nd defendant was allowed his costs against 
 plaintiff. The effect of this judgment therefore is to allow the 
 special mortgagee to rank before a claimant who had expended 
 money in the improvement of the land, even where the mortgage 
 is of later date than the exdependiture ; a fortiori therefore must a 
 special mortgagee be allowed preference over one who has com- 
 menced his improvements after the date of the mortgage, and if 
 the Court is right in considering the judgment of the Supreme 
 Court as an affirmal of its former decision, it is not now competent 
 for it to re-open the question. 
 
 " 4thly. It remains only to consider whether Lee, being in poS' 
 session at the time of seizure, was entitled to hold possession, until 
 payment of his expenditure on the estate, against a prior mortgagee. 
 
 " Now the Court can find no authority for the position that a 
 subsequent mortgagee in possession can hold the property mortgaged 
 as against a prior mortgagee, without possession either for his debt 
 or for his expenditure in the improvement of the pledge. Such a, 
 doctrine would render all mortgages withoi^t possession unsafe, and 
 yet would not go far enough for the present case, for Lee was va, 
 possession, not as mortgagee, bu,t as agent of the owner under the 
 power of attorney annexed to his mortgage, and, after the sale of 
 the estate, his right to hold possession ceased, and an illegal pos- 
 session can confer no lien: the lien exists only over property pledged, 
 and does not affect the rights of a prior mortgagee. It was thro\^u 
 
154 
 
 1862. out in tlie course of the argument that the money paid by Lee to 
 August, 14. Martin and Marshall was privileged, as being money advanced to 
 pay for the purchase of the estate ; but Martin and Marshall, having 
 given credit to Edermanesingham for the purchase money, and 
 taken security for the payment, had lost the preference which they 
 would otherwise have had over the property sold for the payment 
 of the purchase money, and Lee by paying them could not acquire 
 a right which they had lost. 
 
 " Keference was also made by the counsel for Lee to a clause in 
 the assignment from Martin and Marshall to Sinnaya Chetty of 
 the 18th April last, by which it was provided that nothing in that 
 deed should prejudice the right of Lee under the previous assign- 
 ment to him of the £ 1536; and these words were relied on as an 
 admission on the part of Sinnaya Chetty of the right of Lee under 
 that assignment; but the words without prejudice cannot be con- 
 strued as intended to give the previous assignment any effect which 
 it would not otherwise have had by law, and the deeds in which 
 the words occur is a deed poll from Martin and Marshall, not 
 executed by Sinnaya Chetty. 
 
 " The Court in deciding against the claim of Lee,' is conscious 
 of the great hardship which he has suffered from the fraud which 
 has been practised upon him by Edermanesingham; but in the 
 absence of any suggestion either of participation in the fi'aud or of 
 concealment on the part of the Chetty, the proceeds of the mort- 
 gaged property must be administered according to the priority in 
 time of the claims against it, and the Court can in the present 
 proceeding give no remedy for the injury inflicted, without pre- 
 judicing the rights of another innocent party. 
 
 " The application of the claimant is therefore dismissed, parties 
 paying their costs respectively." 
 
 On appeal, the Supreme Court affirmed the judgment of the 
 Court below, in these terms : — 
 
 The long and careful judgment of the District Court Judge 
 in this case sets out the facts so fully, and states the law and the 
 reasoning on the law as applied to the facts so ably, that the 
 Supreme Court does not feel itself required to give a lengthened 
 judgment on the appeal. 
 
 The only matter on which we at all differ from the District 
 Court Judge is as to that part of the judgment in which he says 
 that before the 2nd instalment from Edermanesingam to Martin 
 and Marshall fell dvie, " Edermanesingam entered into an arrange- 
 ment with W.- D. Lee, by which the latter agreed to pay that 
 instalment and to make advances to curry on the cultivation of the 
 estate." This would give the idea that a principal and n primary 
 part uf the arraiigoment between Edermaiiesiugam and Lee ivas an 
 Jigrocmeiit Lb;'.l Lcc should take uu him.sulf EJcrmauesinffam's bia- 
 
155 
 
 den pf the mortgage to !Martin and MarsLall to a certain amount : 1862. 
 As'liereas we think on careful consideration of the parol evidence August, 14, 
 and documents in the case, that the main substantial agreement 
 between Lee and Edermanesingam was an agreement that Lee 
 should make advances for the estate, in consideration for which he 
 was to receive certain interest, and to have the powers of agent 
 and factor for the estate and the right to have all the crops con- 
 signed to him at a fixed rate (the proceeds to be employed in a 
 specific manner), and he was to have by \vay of security a mort- 
 gage on the estate, subject to the primary mortgage to Martin and 
 Marshall, which alone was disclosed to him. There was to be an 
 advance of £1500 on the first January then next, and further 
 advances for cultivation not exceeding £125 per month. The 
 application of this £1500 in payment of the instalment and inter- 
 est due to Martin and Marshall was, we think, a minor matter of 
 subsequent arrangement between Lee and Edermanesingam, though 
 doubtless the amount had been calculated by Edermanesingam 
 with regard to his requirements as to Martin and Marshall. 
 
 The opinion which we hold aS to the nature of the transaction 
 between Edermanesingam and Mr. Lee makes of course an addi- 
 tional reason for confirming the judgment of the District Court. 
 
 We entirely reject the theory set up by Lee's counsel, the 
 theory that there had been a mutual arrangement between Lee and 
 Edermanesingam that he should be substitilted for Martin and 
 Marshall as mortgage creditor to the amount of the £1500. "We 
 do not say that Mr. Lee's present claim cotild have been upheld, 
 even if stich an arrangement had existed ; but its- non-existence is 
 enough to invalidate the greater part of the arguments that were 
 urged before us on Lee's behalf. 
 
 "We consider that when Mr. Lee paid Martin and Marshall tha 
 £ 1536, he paid it as one of the advances he was tcr make to 
 Edermanesingam, and not with any idea of becoming a substitute 
 of Martin and Marshall to that amount, and so protecting himself 
 against any intermediate mortgage. Indeed he was not only with- 
 out notice of any such intermediate mortgage, but he evidently 
 belieyed Edermanesingham's assurance that Martin and Marshall's 
 mortgage was the only one in existence prior to his own. 
 
 We further quite agree with the District Court Judge that 
 Lee, when he • paid the £1536, was not already a creditor of 
 Edermanesingam, and that when long afterwards he obtained an 
 assignment of Martin and Marshall's supposed right to that amount, 
 Martin and Marshall had ceased quoad hoc to be creditors. We 
 quite agree with the District Judge's comments on the passages cit- 
 ed from Domat and De Sande, and we with him consider this not to 
 have been a case where a prior creditor's enctimbrance was paid ofE 
 by a subseqrient creditor, 
 
15G 
 
 1862. We equally agree with him as to his decision on the 
 
 August, 14. second part of this case. We think that Mr. Lee has no claim, 
 certainly no claim in preference to the second mortgagee's, in regard 
 of the sum paid by him for the cultivation and improvement of the 
 estate. Mr. Lee did not take possession as mortgagee, but as the 
 mortgagor's agent and factor. We do not think that the monies 
 laid out by him in cultivation gave himl the tacit hypothec contend- 
 ed for, and even if they did, that hypothec being subsequent in 
 date would be inferior in obligation to the express special hyphothed 
 of Sinnaya Chetty. We will not repeat the excellent commenta- 
 ries of the District Court Judge on the authorities cited before him; 
 but as several authorities were cited before us in behalf of Mr. Lee 
 which do not appear to have been mentioned below, we will briefly 
 advert to them, and state the effect which due consideration of 
 them has produced on our minds. 
 
 On the first point, on the substitution of the third mortgage 
 for the first. Story's Equity Jurisprudence, vol. 1. p. 635 was refer- 
 red to. That does not carry the case further than the passages 
 from Domat quoted below ; it deals only with the position of the 
 later creditor who buys up the debt of an older, creditor ; and its 
 applicability here is refuted by the same reasoning which thei 
 District Court Judge has used as' to the citation from Domat. 
 
 The passage in 3 Burje refers to the Code Napoleon only. 
 
 On the second point, on the claini to be paid before Sinnaya 
 Chetty on the supposed tacit hypothec for the advancement of 
 inoney for cultivation, we were referred to Herbert's Grotius, p. 262; 
 That is merely an authority in favour of the hypothec of " whoso- 
 ever has lent money for the building or repairing of a house or 
 ship," and at p. 267 of the same book, it is laid down that " a tacit 
 mortgage has in every respect the sanie effect as a special r so that 
 between several tacit mortgages, or between one or moi'e tacit, and 
 one or more special conventional hypothec, regard is' to be had as 
 to the antiquity of the obligation." 
 
 Vanderheessel, p 438 is precisely to the same effect.- 
 
 The passage in 3 Burge is only as to repairing and rebuilding 
 & hotiSe, it cannot go beyond things imperatively necessary for the 
 preservation of the property in question. 
 
 We were referred in behalf of Mr. Lee to Voet on the Ins- 
 titutes, bk 20, tit. 2, sec. 28. This high authority is clearly against, 
 ihe present claimant. Voet limits the tacit hypothec to the case of 
 preserving and repairing a house. He gives a special reason why 
 such hypothec arises in such a case. The reason is " Publici 
 aspertus favor propter quem domini etiam inviti magistratus auotori- 
 tate coguntur asdes reficere " And in the same part of his commen- 
 taries, he says "Longi minus pignus legale illis qui in aliarum rerum 
 sire reparationem sire moliomtionem siA'e emptioaem credidorunt." 
 
157 
 
 iii. Burge 349,350 was next cited; This part of his work 1862. 
 when examined is found to apply solely to caSes connected with August, 14; 
 West Indian property. Bui'ge spfeaks of the peculiat nature of 
 that property, and says that there " exists no express law by which 
 a person furnishing the supplies of an estate has any lien on the 
 estate itself or its proceeds. 
 
 Sayers v. Whitfield, 1 Knapp 133, and the case in 14 Vesey 438; 
 ■which were cited, are both caseS as to West Indian property and 
 on special circumstances which have no bearing here; 
 
 On the whole, we are of opinion, as to the first branch of his 
 fclaim, that this was not a case of a later encumbrancer, bu;^ing up 
 the mortgage of a prior, so as to fentitle him to the lights of that 
 prior one as against an intermediate encumbrancer; 
 
 With regard, to the second branch, as to the claim in respeci of 
 advances for cultivation, 'v^e do not think that any tacit hypothec 
 was created ; and even if there were, such tacit hypothec can have 
 no priority as to payment oYer the earlier special conventional 
 hypothec of Sinnaya Chetty; 
 
 We fully agree with what the District Court Judge has said 
 as to the good faith of both Mr. Lee and Sinnaya Chetty in the^e 
 transactions, and in the regret eXptessed by him for the injury 
 which Edermanesibgham's fraud has caused to Mr. Lee. But \v^ 
 cannot relieve Mr. Lee at the expense of a third person, whose 
 claim is as good as his morally, and superior to his own in point 
 bf law. 
 
 i^ \ Vt C X i\ ~)^'°' *^® matter of the Insolvency of Durand 
 
 \ '' ■ ■ _ „ J'V TCp.rsba.w • SiinTiramanian Chettv and Tiaman 
 
 „ o- ' > Kershaw : Suppramanian Chetty and Eaman 
 JMo. bO. ^ pj^gj.^^ Appellants. 
 
 Plff. and Respdt. 
 
 Mrs. 
 
 Amelia Kershaw 
 
 ts. 
 
 ■ Messrs. Andrew Nicoll and Henry Birdj 
 
 assignees of the Insolvent estate of Durand 
 
 Kershaw, .:. ... Dfts. and Applts. 
 
 Andrew Nicoll and Henry Bird, assig- 
 ness of the Insolvent estate of Durand 
 Kershaw, . . . Plffs. and Applta; 
 
 ts. 
 Edward Grlfedstone Le Pelly and others 
 Dfts. and Eespdts. 
 
 The following judgment of the Supreme Court seta out all 
 tte facts of the case : — 
 
 These were appeals arisitig out of the Insolvency of Mr. 
 Durand Kershiw of Atgalle in the Kandyan territory in this Island. 
 
 (2.) 
 
 (3.) 
 
 D. C. Kandy, 
 No. 36105. 
 
 D. C. Eandy, 
 No. 36592. 
 
 Sluropeans, 
 
 leBident in 
 
 Kandy — 
 
 actual and 
 
 matiimonial 
 
ir.ft 
 
 1862. 
 August, 14. 
 
 domicile — 
 
 European 
 
 ■woman — 
 
 Kaudyauwife 
 
 — Kandyan 
 
 Law. 
 
 Husband and 
 
 wife— post- 
 nuptial settle- 
 ment — volun- 
 tary convey- 
 ance fraudu- 
 lent prefer- 
 
 auce — 
 insolvency. 
 
 Ml', KoTshaw was adjudicated an Insolvent on the l.jtli .September 
 last. His certificate was opposed by two of his creditors, named 
 Suppramanian Chatty and Raman Chetty, the appellants in No. -8,5. 
 
 While the Insolvency proceedings were pending, Mrs. Kershaw, 
 the insolvent's wife, brought an action. No. 36105, against the assig- 
 nees to establish her right to certain property called Elk Cottage 
 at Nuwera Eliya in the Kandyan territories ; and the assignees 
 brought an action No. 36592 against certain trustees of Mrs. Ker- 
 shaw's, to recover possession of a njoiety of an estate called Kaipo- 
 galle, situate also in the Kandyan provinces. 
 
 The questions raised in the Insolvency proceedings were to a 
 gteat extent identical with those raised in the two last mentioned 
 actions ; and the three cases were so closely connected that, by a 
 very proper arraiigement and on consent of parties, the evidence 
 taken in any one of the cases was considered to be evidence (so far 
 as applicable) taken in each of the other two, and judgment on the 
 three cases was given on the same day by the District Court Judge. 
 
 He decided the land actions against the assignees and in 
 favour of Mrs. Kershaw's and her trustees ; and he gave the insol- 
 vent a first class certificate. The assignees have appealed against 
 the first named two of these decisions, and the opposing creditors 
 have appealed against the last. 
 
 There are three substantial questions to be considered,-^ 
 
 1st. Are the conveyances by the Insolvent of the Kaipogalle 
 estate to his wife's trustees valid against the assignees ? 
 
 2ndly. Is the conveyance by the Insolvent of the Elk cottage 
 property to his wife valid against the assignees ? 
 
 3rdly. Hating regard to the insolvent's conduct in the con- 
 veying away of these estates, and also to his conduct in some other 
 respects (which will be hereafter detailed), is the insolvent entitled 
 to any, and, if so, to what class certificate ? 
 
 It was material in this case (especially with regard to the 
 question about the Elk Cottage property), to ascertain whether the 
 matrimonial domicile of Mr. and Mrs. Kershaw was or was not in 
 the Kandyan territory. 
 
 The proceedings in the cases, as they came up to us from the 
 District Court, gave no information on this point. They- shewed 
 that the actual domicile was Kandyan, but they gave no light as 
 to what was the matrimonial domicile. Instead of putting the 
 parties to the expense and delay which would have been caused by 
 our remitting the cases to the District Court, we, irnder the power 
 vested in us for taking fresh evidence vrhen the interests of justice 
 require it, examined Mr. Kershaw on this point ; and his answers 
 to a few questions distinctly proved that the matrimonial as well 
 as the actual domicile of himself and Mrs. Kershaiv was Kandyan. 
 
159 
 
 The insolreut's books were not in the first instance sent tip to 1862- 
 us. We desired to see them, and as we had reason to believe that August, 14. 
 they had not be™ very minutely examined, one of us has carefully — 
 
 and with the labour of some days gone through the accounts, the 
 Ittter books and the other documents contained in the books now 
 on the table of the Court. This examination brought many im- 
 portant things to our notice, some of which seemed to require 
 explanation ; and as the attention of the insolvent had not been 
 directed to them in the proceedings below, we thought it right and 
 fair that he should have an opportunity of explaining them before 
 ua, if he desired it. His counsel accordingly called him, arid he 
 and another witness were examined before us. 
 
 By consent and by arrangement similar to the course followed 
 in the District Court, all the evidence taken before us is to be held 
 as taken in each of the three cases so far as respectively applicable. 
 
 We shall adjudicate on these cases in an order like that 
 adopted below. We will determine, first, the validity of the Kaipo- 
 galle conveyances (these being first in date) ; next, we will determine 
 the validity of the Elk Cottage conveyance; and lastly, we will 
 consider the question of the certificate. 
 
 But there are many things to be considered which are common 
 to all three cases. And there ar-e certain main facts, clear and in- 
 disputable facts, which may be conveniently stated and arranged 
 in chronological order, 'before we come to the disputed points 
 in these several suits. 
 
 Mr. Kershaw first came to Ceylon in 1844. He returned to 
 Europe for a short time in 1855, having in the meanwhile become 
 proprietor of several coffee estates in the Kandyan territory. He 
 married Mrs. Kershaw at Guernsey in 1855, and at the time of the 
 marriage both he and Mr. Kershaw contemplated coming to Ceylon 
 and permanently residing on one of Mr. Kershaw's cofEee estates in 
 the Kandyan Provinces. They came here before the end of 1855. 
 Mr. Kershaw was for a short time in Government employ here, 
 but he left it in 1856, and thenceforward to the time of his 
 insolvency he and Mrs. Kershaw resided at one of his cofEee estates 
 at Atgalle, near Gampola, in the Kandyan territory. Besides his 
 business as a cofPee planter, he carried on engineering business also 
 within the Kandyan territory. Mr. Kershaw appears at the time 
 of his return fi'om England to have been possessed of considerable 
 property: but his affairs grew worse, especially in and after 1857. 
 
 He had made no settlement on his wife before their marriage, 
 but there was an antenuptial agreement signed and sealed at 
 (iiicrnscy (the precise effect of which will hereafter be explained) 
 by which a certain sum was to be paid to Mrs. Kershaw, if sil^ 
 survived him, 
 
16Q 
 
 A ^^^^'-lA On returning to Ceylon in 1855, lie placed tte Guernsey ante- 
 
 August, 14. nuptial agreeniont in -the hands of Mr. De Saram, the well known 
 Proctor of this Island; but that gentleman has proved that he 
 received no instmotions to prepare any settlement under it, until 
 the 2Qth March fSSS. It is stated that there was (and it is self- 
 evident that there must have been) some difficulty in preparing a 
 settlenient under it; but on the 25th May 1859, Mr. Kershaw by a, 
 deed, purporting to be in furtherance of the Guernsey agreement, 
 conveyed to trustees in Mrs. Kershaw's behalf a moiety of thq 
 estate of Kaipogalle, Tyhich estate Mr. Kershaw had bought in the 
 beginning of the preceding year. In August 1860, he conveyed, by a 
 similar deed to the same trustees, some forest land adjoining the 
 Kaipogalle estate and designed to form part of it. 
 
 In April 186Q, Mr. Kershavy boi^ght froin Mr. Macartney a 
 cottage called Elk Cottage at Nuwara Eliya. The purchase money 
 ■ was £110. Qf this only £10 was paid ^t the time, and 
 Mr. Macartney retained the title deeds till he got the balance. On 
 the 26th May 1860, an aunt of Mrs. Kershaw's died at Guernsey, 
 and by her will bequeathed a share of certain property to Mrs. Ker- 
 shaw, described by her maiden qame of Amelia Le Pelly in the 
 will, which had been drawn before Mrs. Kershaw's marriage. The 
 bequest to Amelia Le Pelly was not expressed to be to her sole 
 use, although the will did direct that the share accruing to Jane dei 
 Pelly (another of the legatees) should be secured to Jane de Pelly's 
 sole use. 
 
 On the 10th January 1861, Mr. Kershaw paid Mr. Macartney 
 the £100 balance of the purchase money of the cottage. 
 
 Early in January 1S[61, Mrs. Kershaw's attornies in Guernsey 
 (being attornies for her only, and not for Mr. Kershaw) received 
 fr.om the executors Mr|. Kershaw's legacy, amounting to £600. 
 Of this £50 is disbursed in Guem|ey in paying ofi some private, 
 accounts of Mrs. Kershaiy's; the, remaining £550 was on 10th 
 January 1861 paid by Mrs. Ker^aw's attornies to Mr. Kershaw's 
 Agent in London, Messrs. I)obree, and is by them placed to hia 
 credit in his account with them. 
 
 On tlie 18th January 1861, Mr, Kershaw directed Mr. Fer- 
 dinands, a Proctor here, to prepare a conveyance of Elk Cottage, 
 from himself to Mrs. Kershaw; and he on the 4th February 1861, 
 executed the conveyance to her of that property. 
 
 It is stated on Mr. Kershaw's behalf that he had improved 
 the value of the cottage since his purchase of it from Mr. Macart- 
 ney, and that altogether the sums, which he had laid out on the 
 cottage before his insolvency, a little more than equalled the 
 amount of the £550, the legacy to Mrs. Kershaw. On 12th 
 September 1861, Mr. Kershaw filed his declaration of insolvency. 
 
 The ap;;ount of his liabilities is upwards of £28,000. The 
 
101 
 
 assets hitherto realised are less than £10,000. This amount has 1862. 
 been effected by sale of -the coffee estates (exchisive of the August 11, 
 subject matter of the present litigation,) and it is stated that little — 
 
 more is likely to be obtained from the other property, exclusive of 
 that which is the subject of the present litigation. 
 
 The assignees impeach the validity of the conveyances, both 
 of Kaipogalle and of Elk Cottage ; and with regard to the con- 
 veyance of Elk Cottage, a curious and important point arises, which 
 we must deal with before we address ourselves to the scrutiny of 
 the insolvent's pecuniary position at the time of the transfer. 
 
 We must see whether Mrs. Kershaw had the right of a Kandyan 
 wife as to receiving and holding property independently of her 
 husband, and of entering into contracts with him or with any one 
 else in her own right, or whether she was under the Koman Dutch 
 Law, according to which there is community of property between 
 hu3band and wife, and according to which she could have no such 
 rights as have been exercised or attempted to be exercised here. 
 
 It is to be borne in mind that the legacy- to Mrs. Kershaw, 
 with the proceeds of which Mr. Kershaw says that he bought and 
 improved Elk Cottage, was not a bequest to her sole and separate 
 use, and that therefore there would be no equitable jurisdiction to 
 appoint trustees for her to receive it and hold it to her sole use. 
 Neither is this a case where either the husband or the assignees are 
 seeking the aid of the Court to compel payment of a fund accruing 
 due to the wife. So that there is no equitable power here to 
 compel a settlement of part, or of perhaps the whole of the money 
 on the wife, such as arises when either the husband or his assignees 
 claim a sum accruing jure nxoris but not reduced into possession. 
 
 This £550 came into the husband's possession when it was 
 paid to his account at Dobree's. 
 
 Unless Mrs. Kershaw is to be regarded as a Kandyan wife, 
 she had no separate right whatever to the monies when it had been 
 so paid to the husband; and unless she is to be regarded as a 
 Kandyan wife, the direct conveyances of the property from her 
 husband to her is a mere nullity. 
 
 It was in the expectation of this point arising in the case that 
 we considered it material to ascertain the matrimonial domicile of 
 the parties. If it had been proved elsewhere than in Kandy, 
 though the actual domicile at the time of these transactions was in 
 Kandy, we must notwithstanding the Ordinance No. 21 of 1844, 
 section 6, have addressed ourselves to consider, and to adjudicate 
 on, the very difficult question, whether in such cases the law of the 
 matrimonial, or the law of the actual, domicile must prevail as to 
 the status of the parties, a question on which so many of the 
 greatest jurists have differed, as may be seen by reference to the 
 authorities cited in the well-known treatises of Story and Burge. 
 
162 
 
 1862. But it has been clearly proved in this case that both the actual and 
 August 14. the matrimonial domiciles were in Kandy: and v/e must treat 
 — Mrs. Kershaw as having the rights of a Kandyan wife as to her 
 
 property not being the property of her husband, and as to her 
 capacity to contract in ier own right, unless we were to hold that 
 the Kandyan Law applies to native Kandyans only, and not to 
 Europeans who have become resident in the Kandyan Provinces. 
 
 This is a question of vei-y great moment in the administration 
 of the law in an important province of this Island ; and as we may, 
 while this case was being discussed, have raised doubts on the 
 subject, we think it right to state somewhat fully the reasons 
 which have led us ultimately to the conclusion that the operation 
 of the Kandyan Law is not limited to Kandyan natives, and that 
 we are bound to apply it in the present case. 
 
 The general principle is well known that a conquered or 
 ceded country is to be considered as retaining its former laws, 
 until the sovereign orders a change. But there may be exceptions 
 to this presumption, and it is easy to imagine, or to point out in 
 history, instances of nations or tribes having organization enough 
 to make them " states," within the meaning of International Law, 
 and with which obligatory treatises as to cession and other matters 
 might be made, but whose laws might be so savage, so iniquitous 
 and immoral as to make it impossible to presume that a Christian 
 European sovereign, who became sovereign of such a nation or 
 tribe by conquest or cession, would intend the continuance of such 
 laws, at least so far as regards the European sovereign's European 
 subjects, who might become settlers in the new territory. Without 
 imputing to the Kandyan Law generally a character as has b'een 
 just stated by way of hypothesis, we must say that it contained 
 much that imsuited it for European habits and feelings, and that 
 the whole Kandyan Marriage Law, especially as it existed until a 
 very few years ago, with its allowance of polygamy (and tha^ in 
 the form of polyandry, the form most offensive to European feel- 
 ings,) its allowance of arbitrary and capricious divorce, and the 
 easiness with which the rights of legitimacy are given to the issue 
 of loose and casual connexions, was utterly repugnant to the most 
 cherished feelings, and the most fixed principles of Christian 
 Englishmen and women; and it is hard to suppose that they, when 
 they came to live in Kandy, were intended to be under Kandyan 
 law, in their capacities and obligations as husbands and wives. (It 
 may be particularly mentioned, with special reference to the present 
 case, that the reason given in the best work on Kandyan Law, 
 Armour p. 9, for there being no community of gtiods between hus- 
 band and wife, and for their respective estates remaining distinct 
 , from each other, is that, according to Kandyan law, the husband 
 jauy at any time with or witliout just cause divorce his wife, and 
 V) may the >rif« divorce herself from the husband j. 
 
163 
 
 All this however is speculative as to what the will of the 1862. 
 sovereign should be supposed to be when no express directions have August 14, 
 been given as to the continuance and effect of a conquered country's 
 laws. Where there have been expressions of the sovereign's will, 
 they must guide us. 
 
 It is commonly said that the maintenance of the Kandyan 
 law was granted by the representatives of the English sovereign 
 when the Province was ceded in 1815. That Proclamation dated 
 2nd March 1S15 will be found at p. 180 of the first volume of the 
 Legislative Acta of the Government of Ceylon. If it stood 
 alone, we should consider it rather an authority to shew that the 
 Kandyan laws were to apply to Kandyans only. The 4th clause 
 granted those laws to the Kandyan chiefs and people. The 8th 
 clause provides that (with and under certain conditions) " the 
 " administration of civil and criminal justice and police over the 
 " Kandyan subjects of the said Provinces is to be exercised accord- 
 " ing to established forms and by the ordinary authorities." The 
 9th clause provides separately for the administration of justice 
 " over all other persons, civil or military, residing in or resorting to 
 " these Provinces, not being Kandyans, until the pleasure of His 
 " Majesty's Government in England may be otherwise declared." 
 
 But the terms of this Proclamation was not altogether approved 
 of by the Home Government, and at p. 190 of the same volume 
 of the Legislative Acts will be found a Proclamation issued here 
 on the 31st May 1816, which recites a despatch announcing that 
 H. E. H. the Prince Eegent had declined to adopt the pre-existing 
 laws and courts of Kandy as forms of the King's civil judicature, 
 until more detailed information should have been obtained, as to 
 the nature of the laws, and the changes which it may be expedient 
 to introduce in their administration. It recites also an opinion of 
 of ithe law officers of the crown (which opinion is preserved in the 
 archives of the Colony,) and then it proclaims inter alia that " the 
 " ancient laws of Kandy are to be administered till His Majesty's 
 " pleasure shall be known as to their adoption in toto as to all 
 " persons within those Provinces, or their partial adoption as to the 
 " natives, and the substitution of new laws and tribunals for the 
 " trial and punishment of His Majesty's European subjects for 
 " offences committed therein." 
 
 It appears from these state documents that a temporary 
 administration of the ancient laws of Kandy was designed, and no 
 distinction of persons is directed during such temporary administra- 
 tion. The royal legislation as to Europeans resident in Kandy, 
 which is contemplated in this Proclamation, was delayed, nor can 
 we find that it ever took place, at least not until the Ordinance of 
 1852 hereafter to be mentioned.. The Proclamation of 21st 
 November 1818, which was issued on the suppression of the 
 
164 
 
 1862. Kandyan Insiirrectiori in that year, contained pro\isions as to 
 August, 14. administration of justice, which, from clause 34 to clause 50 inclu- 
 sive, provide particular tribunals and processes " for hearing and 
 " determining cases wherein Kandyans are concerned as defendants, 
 " either civil or criminal." Clause 50 provided that- " the people 
 " of the low country and foreigners coming into the Kandyan 
 " Provinces shall continue subject to the civil and criminal juris- 
 " diction of the Agents of Government alone, with such additions 
 " as His Excellency may by special additional instructions vest 
 '• in such Agents." 
 
 This proclamation made some difference as between Kandyana 
 and non-Kandyans, so far as regarded the administrators of the law; 
 but it did not direct any variation in the kind of law to be adminisr 
 tejred. And the Charter of 1833, while it abrogated the then 
 existing tribunals and established District Courts for the whole 
 Island including Kandy, gave no direction for any change in the 
 application of Kandyan law. In point of fact, so far as we have 
 been able to ascertain, the old Kandyan law was followed in all 
 litigation in Kandy, whoever were the litigants, on all subjects as 
 to which any Kandyan law existed ; and on matters unknown to the 
 Kandyan law, recourse was had, not to the Roman Dutch law, or 
 to the English law, but to the principles of natural equity. 
 
 When we consider how few European residents there were in 
 the Kandyan Provinces before the time of the coffee plantations, 
 we shall not feel surprised that the legislation contemplated in 
 ..the Proclamation of 1816, as to what law Europeans in Kandy 
 were to live under, did not take place. No practical grievance 
 was caused by the delay, and the subject was naturally forgotten. 
 
 - But when the extensive coffee planting brought in a considei-- 
 and rapidly increasing European population, the unfitness of 
 Kandyan law for Europeans, especially as to the validity of marri- 
 ages and rights of succession, was felt and observed, and in 1851 
 the Judges of the Supreme Court, sitting collectively, recommended, 
 in answer to a communication from the Governor, that, among 
 other amendments in the law, the old Kandyan laws should be 
 retained in the Kandyan Provinces so far as regarded Kandyans 
 themselves, but that the laws of the maritime Provinces should be 
 observed in the Kandyan Provinces as to the persons and proper- 
 ties of all persons other than Kandyans. It is dear from this 
 document (preserved in the books of our Registrar,) and the docu- 
 ments connected with it and connected with the Ordinance 5 of 
 1852 (which last mentioned documents are in the colonial archives, 
 and which we have consulted,) that the Supreme Court at that 
 time considered the Kandyan law to, apply to all residents in 
 the Kandyan Districts, and that the change recommended 
 by the Supreme Court Judges, which have exempted all uon? 
 
165 
 
 Kandvaus from the operation oE Kandyan law, was thonght by the 18G2. 
 
 authorities hero too sweeping ; and that it wan proposed to legislate August 14. 
 
 sprain lly for partifukr subjects. Accordingly the Ordinance 5th — 
 
 ot lH."i2 was passed, and the second passage of its preamble recites 
 
 the expediency " that the law of the Kandyan Provinces should 
 
 '■ be assimilated as far as maybe to the laws of the Maritime pro- 
 
 '■ viiires." The 5th clause of .this Ordinance is as follows : 
 
 '• ^Vllere there is no Kandyan law or custom, having the. force of 
 
 " law applicable to the decision of any matter or question arising 
 
 " for adjudication within the Kandyan Provinces, for the decision 
 
 " of vvrhich other provision is not herein specially made, the Court 
 
 " shall in such case have recourse to the law as to the like matter 
 
 " or question within the Maritime Provinces, which is hereby 
 
 " declared to be the law for the determination- of such matter or 
 
 " question." 
 
 The 6th' clause extends the law of Namptissement to the 
 Kandyan Provinces. The 7th clause extends the criminal law of 
 the Maritime to the Kandyan Provinces. The 8th enacts that the 
 inheritance and succession to the property of Europeans and Bur- 
 ghers in the Kandyan Provinces is to be the same as in the Mari 
 time Provinces ; and the 9 clause ordains that marriages between 
 Europeans and Burghers, or between an European or Burgher on 
 one side and a Cinghalese on the other, within the Kandyan Pro- 
 vinces, shall not be valid, unless such marriage would have been 
 valid if contracted in the Maritime Provinces. The 10th clause 
 extends to Mahometans in the Kandyan Provinces the right of 
 being judged, in matters between themselves, by the Mahometan 
 code. 
 
 If we take this Ordinance and consider its meaning by an 
 examination of its contents only, without any light from exterior 
 .sources, it is impossible not to regard it as a Legislative declaration 
 that, before it was passed, the Kandyan Law extended to all per- 
 sons in the Kandyan territory, and as a declaration that the 
 Kandyan law was to continue so to extend, except in the parti- 
 cular cases wherein the Ordinance itself introduced new law into 
 Kandyan territory, or exempted particular classes of Kandyan 
 residents from the operation of the old Kandyan Law. 
 
 If we read the Ordinance with the aid of historical information 
 and of comparison with other legislative instruments in pa"i materie, 
 the conviction becomes still -stronger that Kandyan Law is not 
 limited to Kandyan natives, but extends to cases like the present, 
 always supposing that its operation has not been expressly limited 
 by any enactment on the subject. 
 
 We, therefore, iu determining the status of the parties here, 
 as to community of goods and as to the wife's ability or disability 
 to acquire, to hold and to deal with properly independently 
 
166 
 
 1862. of her husbancl, are bound to a.p'ply the Kandyan Law, as being 
 August 14. the law of their actual and matrimonial domicile, and we adjudge 
 — accordingly that Mrs. Kershaw had a separate estate in property 
 
 coming to her ; and that she could legally receive and hold pro- 
 perty directly from her husband or any one else, whether by way 
 of gift or under contract. 
 
 All this is ofcourse subject to the provisions of the Insolvency 
 Ordinance which, as has been rightly said in the argument, applies 
 to the whole Island, and the operation of which in the present case 
 we now proceed to consider. 
 
 All that we hitherto have determined is that Mrs. Kershaw is 
 not to be regarded as under a legal disability to receive and hold 
 property, or to deal in her own right, such as she would have been 
 under, if her matrimonial status were to be regarded according to 
 either Roman Dutch or English Law. 
 
 A conveyance to her in fraud of Mr. Kershaw's creditors is 
 not protected because she is his wife. The counsel for the assig- 
 nees has put this very fairly in the argument on the Elk Cottage 
 case (the one in which her marital position is material). He says 
 " let Mrs. Kershaw be regarded as a Kandyan wife. She was then 
 " one of Mr. Kershaw's creditors, and in conveying Elk Cottage 
 " to her. he gave her a fraudulent preference over his other credi- 
 " tors." The issue could not have been more fairly or more 
 tersely stated. 
 
 The material clauses of the Insolvency Ordinance which we 
 have to consider are the 7th, the 56th and the 50th (as will pre- 
 sently appear ; the opinion which we hold on the facts of the case 
 makes it unnecessary to consider the 51st). 
 
 The general effect of these clauses, as bearing on the present 
 case, may be stated to be, that if a person fraudulently transfers 
 any part of his property with intent to defeat or delay his creditors, 
 Buoh transfer is bad, and is an act of Insolvency ; that any trans- 
 action which by the contemporaneous Bankruptcy Law of England 
 would be a fraudulent preference of one creditor to others, is to be 
 considered a fraudulent preference under our Insolvency Ordinance, 
 aud as such is bad, and is an act of insolvency. 
 
 Before however we apply this law to the cases before ns in 
 their details, we had better deal with one defence of the Kaipo- 
 ' galle property, which is set up in the pleadings of the trustees, and 
 appears on the face of the deeds of transfer themselves. 
 
 It is said that these conveyances of the Kaipogalle property to 
 the trustees for Mrs. Kershaw were executed in pursuance of the 
 ante-nuptial contract for a settlement, which was signed and sealed 
 between the parties at Guernsey. 
 
 Let us see what the terms of this agreement are. The sub- 
 tantial part is as follows ; " It is covenanted and agreed between 
 
167 
 
 " tlie said parties to these presents, that in case the said Amelia De 1862. 
 
 " Pelly shall survive the said Durand Kershaw, she, the said August. 14. 
 
 " Amelia De Pelly, shall receive during her natural life from the — 
 
 " real and personal estate of the said Durand Kershaw, and in lieu 
 
 " of all thirds, dower or other claim to which she would by law be 
 
 " otherwise entitled, an annuity of £300 sterling, the said annuity 
 
 " to commence from the day of the decease of the said Durand 
 
 " Kershaw, and to be paid quarterly (the first paymentto be made 
 
 " three months after the decease of the said Durand Kershaw) to 
 
 " the said Amelia De Plley, free of all deductions charges or ex- 
 
 "penses whatever, out of the proceeds of the estate of what nature 
 
 " and kind soever which the said Durand Kershaw may leave at 
 
 " decease." 
 
 Now compare with antenuptial agreement the conveyances that 
 are said to have been made in pursuance of it. They give a cer- 
 tain and immediate benefit to the wife ; the agreement contem- 
 plates only a benefit conditional on her surviving her husband, and 
 not to commence till after his death. 
 
 The agreement does not charge the estate, which Mr. Kershaw 
 then had, or which he might acquire during the marriage, with the 
 contingent liability to pay this annuity to Mrs. Kershaw if she 
 survives, but especially provides that it shall be paid out of such 
 funds as he may leave at his decease. 
 
 The conveyances divest him of part of his estate while he is 
 alive : the agreement contemplates that he should have full power 
 to deal with it until his death. The obvious intention of such 
 agreements, when the husband is engaged in active business which 
 requires the free use of capital, is that he should have the unfet- 
 tered use of all his funds in carrying on his speculations ; and the 
 lady and the lady's friends must be considered as having relied on 
 his skill and his good fortune for his success, and on his leaving 
 property behind him, out of which his widow could claim her 
 annuity. It would give the widow a charge on all the husband's 
 assets at his death in preference to any heir or legatee. It would 
 enable the wife to prevent the husband from executing any fraudu- 
 lent disposition of his property calculated and intended to deprive 
 her of her rights over it at his death. There are several cases 
 cited and commented on in Atkinson's Conveyancing, p. 823, in 
 which the parent of one of the parties entered into an agreement 
 of this kind. The principle is the same, as to the power of the 
 father in-law of the husband to deal with his property as he pleases 
 in his lifetime, as to " altering the nature of it, as to givi'ng scope to 
 projects" and the like, although the wife or the daughter-in-law 
 has an interest assured to her in what he leaves behind him. 
 
 We cannot hold that the Guernsey antenuptial agreement 
 placed Mr. Kershaw under any obligation to convey any of his 
 
168 
 
 1862. property in the manner in whicli the ti-ansfers of the Kaipogalle 
 August. 14. Estate were attempted. It is a well known point in Bankruptcy 
 ~~ Law that the moral obligation of supporting a wife and children 
 
 cannot, as against creditors, be considered a valid consideration for 
 a post-nuptial settlement, when not required by antenuptial agree- 
 ment. 
 
 We must pronounce these conveyances of the Kaipogalle pro- 
 petty to have been voluntary and without consideration. 
 
 It does not necessarily follow that they were void. In order 
 to ascertain their validity or invalidity, we must examinvs the 
 insolvent's conduct and financial position at the time when they 
 were made. 
 
 In saying that these conveyances are not necessarily void, 
 because voluntary, we are following a very valuable judgment of 
 Vice-Chancellor Kindersley in the case of Thompson v.. Webste?; 
 reported in the 28th vol. new series, of the Law Journal, Chancery 
 p. 702. It is a judgment on the validity of a marriage settlement 
 under the well-known English statute 1 3 Elizabeth, which statute is 
 ■ so ably commented on in Smith's Leading Cases vol. i, especially 
 in the edition of that work by Mr. Justice Willes and Mr. Justice 
 Keating. 
 
 The material words of that statute, Avhioh render void all 
 conveyances &c., contrived " to delay, hinder-, or defraud creditors" 
 are nearly followed at the end of the 7th clause of our Insolvency 
 Ordinance, and the English decisions on the statute are made bind- 
 ing authorities on us in this matter by the 58th clause of our 
 Ordinance. Vice-Chancellor Kindersley points out that the mere 
 voluntariness of a settlement does not per se invalidate it, nor does 
 the fact of the grantor being insolvent per se do so. But still they 
 are most important facts to ascertain. The question isj whether, 
 looking to all the circumstances of a case,- we must conclude that 
 the conveyance was made with an intent to " defeat and delay 
 creditors." A man must be taken to intend the natural conse- 
 quences of his acts. And if we find a man, in insolvent and 
 embarassed circumstances, conveying or attempting to convey away 
 his property out of his creditors' reach, without there being any 
 legal obligation on him to make such a conveyance, the conclusion 
 is almost irievitable that he does so with intent to defeat his credi- 
 tors of the means or jjart of the means for the payment of his debts 
 to them ; and that consequently the conveynnce is an act of insol- 
 vency under the Ordinance, and one which his creditors have a 
 right to impeach as void against them. 
 
 Now then we must ascertain what were Mr. Kershaw's circum- 
 stances near to and at, the time of tlie conveyances. As has been 
 mentioned, ]Mr. Kershaw, wlum he settled as a coffee planter at 
 Atgalle in ISOIJ, appears to liave possessed considerable jTojjerty. 
 
]f,9 
 
 His London agents tlien were Messrs. Price and Boustead, and tlie • 1862. 
 correspondence between them and him which we have examined August 14. 
 very carefully gives very full information as to the subsequent — 
 
 decline of his fortunes. 
 
 It is clear (and it is a fact very much in Mr. Kershaw's favour 
 on the question of cei-tificate) that his circumstances became much 
 worse in 1857, not through any extravagance or neglect on his 
 part, but through the serious effect on the European cofBee market 
 of the commercial crisis in that year. This is clearly shewn by a 
 letter of Mr. Boustead's, dated 20th October 1857, which we dis- 
 covered among the books and papers. At the beginning of 1858, 
 Mr. Kershaw was in a far worse position than he had been at the 
 beginning of the preceding year; and the letters of his London agents 
 to him on the subject become very important, especially when we 
 mark the date of the first step taken by Mr. Kershaw towards convey- 
 ing any of his property in settlement for his wife. In a letter dated 
 22nd January 1858, Mr. Boustead points out to Mr. Kershaw thatthe 
 balance against him in their books is £ 9500, having increased by 
 more than £5000, during the last twelve months. Mr. Boustead 
 complains of this excess, and urges that it may be speedily diminish- 
 ed. In another letter, dated 5th February 1858, Mr. Boustead 
 complains still more strongly of the large amount in which Mr. Ker- 
 shaw had become indebted to them, and of the increase of the 
 balance against him by more than £5000 during the year 1857. 
 In this letter Mr. Kershaw is warned that this balance must be 
 reduced, and his attention is called to the fact of the O. B. C. hav- 
 ing announced a change in their rules as to discounting Ceylon 
 bills, which Mr. Boustead says is " equivalent to a larger with- 
 drawal of capital fi;om houses engaged in business with India and 
 Ceylon," and the last words of this letter repeat the warning that 
 the London house cannot continue advances to him to the present 
 extent. 
 
 Now these two letters must have reached Mr. Kershaw about 
 the end of February or early in March, certainly by the middle of 
 March 1858. And it is very remarkable that on the 20th of 
 March 1858, Mr- Kershaw gave the first instruction to Mr. de 
 Saram to prepare a conveyance of half the Kaipagalle Estate to trus- 
 tees for Mrs. Kershaw. Mr. De Saram's evidence establishes this. The 
 Guernsey antenuptial agreement had been left in Mr. De Saram's 
 hands in 1855 ; but he had no instructions to prepare any settle- 
 ment until 20th March 1858. It is impossible not to connect the 
 date of these instructions with the dates of the receipt of the warn- 
 ing and almost menacing letters from the London agents. The 
 inference is strong that Mr. Kershaw, on receipt of these letters, 
 thought that he was in peril, and that he had better take steps to 
 secure some of his property from the reach of his creditors ; a 
 
170 
 
 18G2. proceeding whicli it is the great object of the Bankruptcy laws to 
 August, U. prevent. 
 
 But this date of 20th March 1858, when the instructions for 
 the conveyance were given, though an important Hate, is not the 
 most important one. The first conveyance was executed on the 
 25th May 1859 ; and we must see whether Mr. Kershaw's finan- 
 cial position had improved or grown worse in the interval. The 
 evidence is irresistible, that throughout this time, the state of his 
 affairs had been growing worse and had become more and more 
 alarming. A letter of Mr. Boustead's, dated 16th February, repeats 
 the warning given in the former letters and apprises Mr. Kershaw 
 that a draft of his for £500 had been accepted " for the honor of 
 the indorser." A letter of the 24th of March shews the abso- 
 lute dishonor of another draft. One of the 9th of April contains 
 these expressions : " Two such years as the last and the beginning 
 "of this would lead to an absorption of £20,000 ; and without 
 " any apparent equivalent in the shape of consignments." The 
 same letter raises the rate of interest which he was to pay on the 
 balance against him. 
 
 Letters of similar tone follow and shew that Messrs. Price and 
 Boustead began to press for security, and the subject of mortgages 
 is discussed. In a letter dated 19th March 1859, they tell him 
 that " it is quite impossible to assist him further ;" and they state 
 their intention to place the correspondence in the hands of one of 
 their Agents in Ceylon, with a view to the recovery of their 
 claim against him, or of putting it on a more satisfactory 
 footing. A letter dated the 26th of the same month informs him 
 that they have placed the matter in the hands of Mr. Lee. 
 
 Mr. Lee has been examined as a witness in these cases, and 
 we have also letters of his, and letters of tho insolvent to him. 
 
 It appears that Mr. Lee, by letters written from Colombo on 
 the 3rd and 8th May 1859 respectively, advised Mr. Kershaw of his 
 (Mr. Lee's) being instructed by Price and Boustead, to require 
 from Mr. Kershaw a prompt payment of a, large portion of the 
 balance, £8418, due to them, and an immediate arrangement for 
 the gradual reduction of the residue. 
 
 It is very important to mark these dates of pressure for pay- 
 ment on Mr. Kershaw early in May 1859, because it was on the 
 25th of that month that Mr. Kershaw executed the first Kaipogalle 
 conveyance* It is also a very important fact that in this month of 
 May, Mr. Kershaw gave Messrs. Alston Scott & Co., a mortgage for 
 £4000 on his estates, not however including that half of Kaipogalla 
 which was conveyed in settlement. 
 
 We have not the precise date of the day of the execution of 
 this mortgage to Alston Scott & Co., but it is clear from the letters 
 alluding to it (and it was admitted in the discu.gsiou before us), 
 
171 
 
 that the mortgage to them was given aoraetime in that month of 1862. 
 May ; and even if not actually execated before the 25th (the date August. 14 
 of the Kaipogalle conveyance ), it must have been in contemplation 
 and in course of negociation. 
 
 It has been urged on behalf of Mr. Kershaw that his estates 
 were unencumbered at the end of 1858, except a mortgage in 
 Dickoya for £1000. But a man may be indebted to a far greater 
 amount than the value of his estates, without having yet encum- 
 bered them ; and it is moreover clear that Mr. Kershaw when he 
 signed the Kaipogalle conveyance had already encumbered or knew 
 that he was about to encumber the estates on a very considerable 
 amount. 
 
 Mr. Kershaw has given evidence to prove his solvency at the 
 time. He says that he was worth £3000 at the end of 1858, and 
 was worth £2000 at the end of 1859, but he admits that his 
 liabilities at the end of 1858, were £17,429 ; and that at the end 
 of 1859, they were £19,800. The existence of any surplus assets 
 over these large amounts depends (as Mr. Kershaw admits) entirely 
 on the accuracy of the valuation which Mr Kershaw has made of 
 his cofEee estates He estimated them as worth £22,000 ; but 
 Mr. Nicoll and Mr. Lee, two gentlemen well acquainted with such 
 matters, have given evidence that they were worth only 
 £11,808. The estates actually realized at the sale £9600-; 
 but it is in evidence that an advance of £700 was offered 
 immediately afterwards. And Colonel Bird has given evidence 
 -of their value in 1855 which (as far it goes) would ascribe to 
 them a higher value than that given by Mr. Nicoll and Mr. Lee. 
 But on the whole, we feel satisfied that Mr. Kershaw's estimate is 
 very greatly in excess of the real value ; and that at the time of 
 the conveyance of the 25th May 1859, he was in a state of insol- 
 vency, and was becoming continually more and more embarassed. 
 
 We form this opinion not only from the facts and figures 
 which we have cited, but also from the general effect of a perusal 
 of a large mass of other letters, accounts and documents respecting 
 his finanqial position. 
 
 "We ought not perhaps to omit to -mention that it was said on 
 the part of Mr. Kershaw that he could not have been insolvent at 
 the time of the conveyances, because his two chief creditors, the firm 
 of Price and Boustead and the firm of Dobree, were willing to 
 carry on his estates for him. But that is quite disposed of by the 
 evidence of Mr. Lee, who was agent for Price and Boustead. He 
 says, " we were willing in conjunction with Dobree & Co., to carry 
 on the estates for another year, but it was to be for ours and their 
 benefit, and not for that of the unsecured creditors. We do not feel 
 it necessary to enter into any detail of Mr. Kershaw's circumstances 
 down to, aad at the date of, the conveyance of the second part of 
 
172 
 
 1862. fcBe Kaipogalle Estate in 1860, because it is indisputable, and it is 
 August 14. undisputed, that Mr. Kershaw's affairs had been growing worse and 
 worse. 
 
 We bold with respect to both these conveyances that they 
 were voluntary conveyances, not having been execuied in conse- 
 quence of any obligation. "We hold that they were executed by 
 Mr. Kershaw while in a state of insolvency, and with the intent to 
 withdrew those portions of his property from his creditor's. We con- 
 sequently hold that those conveyances are invalid and that the 
 assignees have a right to recover those portions of the estate for the 
 benefit of the creditors. 
 
 We now conae to the transaction respecting Elk Cottage, which 
 We think is of a different character. The case for Mrs. Kershaw 
 is that a legacy had been left to her, and that part of ttie money 
 so bequeathed was laid out in the purchase of Elk Cottage from her 
 husband, who had previously bought it for himself. We have 
 already taken much space and pains to demonstrate Mrs. Kershaw, 
 being a Kandyan wife, had all the rights that a. feme sole would 
 have under Koman Dutch or English Law, and if the transaction 
 was substantially siich as it is described on her behalf to have been, 
 it is perfectly legal and valid. Now, there is no doubt whatever 
 about the moaey having been left to Mrs. Kershaw or about her 
 attorney having received it. There is equal certainty that £550 
 of it was paid to Mr. Kershaw's Ageuts, and that their balance 
 against Mr. Kershaw was reduced by that amount. Consequently, 
 the estate has had the benefit of Mrs. Kershaw's money5 and if pro- 
 perty not exceeding the amount of that money has been transferred 
 to her, the transfer has not been gratuitous. 
 
 This however is far from being enough to settle the question. 
 The counsel for the assignees put the case thus : " we will admit 
 for the sake of argument Mrs. Kershaw to have been a Kandyan 
 wife, with full right to separate estate. When her money was paid 
 to her husband's agents on his behalf, she became one of his 
 creditors. But he being in embarassed circumstances and in con- 
 templation of formal insolvency had no right to prefef her to his 
 other creditors. The conveyance of Elk cottage to her was a 
 fraudulent preference, and as such is void." 
 
 If this position could be maintained, the assignees would have 
 a clear right to the property, but on careful examination of the 
 facts, we do not think that this position is tenable. 
 
 Here, as in the other part of the case, strict attention to dates 
 is all-important. 
 
 In April 1860, Mr. Kershaw bought Elk cottage of Mr. Ma- 
 cartney. The price was £110, of which £10 was paid at the 
 time. On the 26th of May, the relative of Mr. Kershaw who left 
 her the money died at Guernsey. News of her death and of her 
 
173 
 
 having left a share of some of her property to Mr. Kershaw, would 18G2- 
 have been received before the end of the following month. The August, 14. 
 exact amount of the legacy was not then known, but it appears 
 from the correspondence between Mr. Kershaw and Messrs. Dobree 
 (who had become Mr. Kershaw's agent), and from that between 
 Mr. Kershaw and Mr. Cfrey (who acted as attorney for Mrs. Ker- 
 shaw in Guernsey), that Mrs. Kershaw's share was expected to be 
 about £700, and it was thought this money would be paid by the 
 executor to her attorney for her before the end of 1860. 
 
 On the 10th January 1861, Mr. Kershaw pays Mr. Macartney 
 the £100 balance of the purchase money of Elk cottage, and 
 receives the title deeds which the vendor had until then retained 
 as security although the conveyance to Mr. Kershaw had been 
 executed soon after the bargain. It is to be observed that it is 
 proved by a letter filed in this case that Mr. Macartney was in- 
 formed by Mr. Kershaw that the purchase was being made with 
 Mrs. Kershaw's money. 
 
 On the 18th January 1861, Mr Kershaw instructs the proctor 
 to prepare a conveyance of Elk Cottage from himself to Mrs. Ker- 
 shaw. On the 4th February following, the conveyance is executed. 
 There was some discrepancy of evidence between Mr. Kershaw and 
 Mr. Ferdinands the proctor, as to when the directions for this con- 
 veyance were given, but we think from the notes on the subject 
 filed after the parol examination, it is clear that definite instruc- 
 tions to prepare the conveyance were not given before the 18th Ja- 
 nuary, but thatthe subject had been mentioned by Mr. Kershaw as 
 early as the previous September. We found among the books and 
 papers a series of letters beginning as early as 2nd February 1861 
 from Kershaw to Mr. DufE of the Oriental Bank Corporation here 
 negotaiting an advance of money on mortgage of Elk Cottage. 
 These appeared at first very unfavourable to Mr. Kershaw, as it 
 seemed that he tried to raise the money on the property as if 
 his own, after he had conveyed it away. 
 
 But Mr. Kershaw's and Duff's examinations have completely 
 dispelled this prejudice. The mortgage was to have been by way 
 of bond from Mrs. Kershaw, and Mr. DufE states that he was all 
 through the transactions throughly aware that the cottage have 
 been bought for Mrs. Kershaw with Mrs. Kershaw's money, and 
 was Mrs. Kershaw's property. 
 
 Now the £550, balance of the legacy, after certain payments 
 on Mrs. Kershaw's accouut in Guernsey, was not paid in at Dobree's 
 until the 10th January 1861, and the first letter advising Mr. Ker- 
 shaw of such payment is dated in London as of January 19 th, and 
 could not have been received by Mr. Kershaw before the date of 
 the conveyance of Elk Cottage to Mr. Kershaw. 
 
 We cannot therefore see how Mr. Kershaw is to be looked oli 
 
174 
 
 1862. as having conveyed property- to a person wliom he knew to have 
 August, 14. previously become a creditor of his and whom he was preferring to 
 his other creditors. 
 
 We think that the case set up on the other side is substantial- 
 ly true. Undoubtedly no specific remittances of money from 
 London to Ceylon took place ; and the whole business was conduct- 
 ed in a manner that has not unnaturally created suspicion. But 
 we must remember that Mr. and Mrs. Kershaw, though having 
 separate estates, were husband and wife, between whom the same 
 strictness and formality in business transactions that would be 
 looked for is not to be expected. 
 
 We think that when it was known that a legacy somewhere 
 approaching £600 was coming to Mrs. Kershaw, it was arranged and 
 understood that the money or a large part of it should be invested 
 for her in property in Ceylon by Mr. Kershaw ; that he should 
 make the disbursements here for her, and that he should be paid 
 by Mr. Kershaw's agent placing the money to his account at 
 Dobree's. 
 
 There is one circumstance connected with this part of the case 
 which it is better to deal with here, both because it tends to shew 
 that the transaction was bona fide, and because if we deferred it, 
 we should have to repeat much when we come to settle the question 
 of certificate. Mr. Kershaw on examination before us stated, that 
 as soon as he was advised of the payment of the legacy money into 
 Dobree's, he credited Mrs. Kershaw with it in the account between 
 her and himself which he kept. 
 
 He referred to his ledger as shewing this. The ledger (p. 
 208) has an entry such as Mr. Kershaw mentions dated as of 10th 
 January. It was pointed out that this entry follows in the page 
 entries dated of March and May in that year, and could not have 
 been a contemporaneous entry. 
 
 Mr. Kershaw explained this by saying that he wrote the entry 
 when he received a formal account from Dobree's crediting him 
 with the £550, as paid in by Mrs. Kershaw's attorney to his account 
 but that he re-entered it as of the date when the payment was made 
 in London. We have found among the papers in the case an 
 account of Dobree's made up to 17th April 1861, in which the 
 payment of the £550 on the 10th of January is properly credited. 
 
 This appears to have been the first regular and correct amount 
 received from them since the payment. Their preceding letter 
 which mentioned the payment gave an evidently wrong amount and 
 contained evidently blunders as to the amount of other sums, 
 which Mr. Kershaw observed and complained of. This amount of 
 the 17 th of April would reach himm the course of May, and we find 
 that the entry as to the £550 in the ledger stands between some 
 May entries (no days of the month are given) and an entry of 
 
175 
 
 £88. 3s. 6d. in Mr. Kershaw's favor for profit on the sale of an 1862. 
 estate, which we know from other sources to have been accounted in August. 14. 
 June. We think the entry as to the- £550 an honest entry. When — 
 
 it was made, the conveyance of Elk Cottage had already been exe- 
 cuted. In the course of the examination about the ledger, some 
 rough books were mentioned, which Mr. Kershaw said it was his 
 habit to keep, but which he used to destroy when he made up his 
 ledger. 
 
 It does not seem that any of these rough books would have 
 thrown light on the matter in question ; but Mr. Kershaw inciden- 
 tally mentioned that after his insolvency he had destroyed some 
 of them. This sounded like a serious matter, and we felt it our 
 duty to enquire into it. It turned out that Mr. Kershaw's books, 
 when he became insolvent, were not regularly made up to date. 
 The assignees left these books with him requesting him to make 
 them up. This he did and according to custom destroyed the 
 rough books after he had posted their contents in the ledgers. 
 The whole proceeding was very irregular. Assignees ought to be 
 most strict as to the custody of books and papers, and the Insol- 
 vent ought not to be allowed to add anything, to alter anything, 
 or to destroy anything, though he must have proper access to the 
 books for the purpose of preparing his balance sheet. But the 
 irregularity of the Insolvent seems to have been caused by the 
 irregularity of his assignees, and we do not think him amenable to 
 the heavy penalties which the law justly imposes on the wilful 
 garbling or alteration or destruction of books by Insolvents. 
 
 It was said that Mrs. Kershaw's money could not have been 
 used for the purchase of Elk cottage, because it had been employed 
 in the purchase of the Hariison estate, which was afterwards sold 
 at a profit. We think it enough to say that we agree with the 
 District Court Judge in thinking that a comparative examination 
 of dates and sums does not support this objection. 
 
 Mrs. Kershaw's action is for Elk cottage only, not for its fur- 
 niture. The purchase money of the cottage was £110, but 
 Mr. Kershaw had been repairing and improving the building for a 
 long time before and after the transfer to .Mrs. Kershaw, he had 
 also placed various articles of furniture in it. His statement is 
 that all this was done for Mrs. Kershaw with Mrs. Kershaw's 
 money., leaking the view we have done of the main transaction, 
 we think that this statement is to be regarded as, substantially 
 correct. The total amount of the money laid out in and for this 
 cottage exceeds by very little the £550 received for the very legacy 
 and this surplus is more than accounted for by other credits in 
 Mrs. Kershaw's favour. 
 
 The present action is brought by Mr. Kershaw in respect of 
 the Cottage only ; but we think that the assignees will do well not 
 to raise any dispute about the furniture. 
 
176 
 
 1862. "We ttink it right to state that the opinion whioh we have 
 
 August, 14. expressed as to Mrs. Kershaw's rights in respect of Elk Cottage has 
 "~ been the gradual result of repeated examination not only of the 
 
 parol evidence, but of numerous letters, accounts and other docu- 
 ments, which it is impossible to refer to in detail. Our opinion 
 was at first unfavourable as to Mr. Kershaw's conduct in this 
 transaction, but the more closely we have examined the better 
 complexion it has assumed. 
 
 It remains for us to consider the objection to the certificate. 
 The assignees do not oppose. The opposition comes from two 
 creditors, whose claims against the insolvent, chiefly for rice suppli- 
 ed, are very heavy. Their grounds of opposition as used before 
 the District Court' Judge were (1) concealment of property. There 
 is nothing to support this objection except an answer of the Insol- 
 vent's in one of the oases, that he believed he had a reversionary 
 interest in some property in England, but that he did not know 
 what his interest was, or its amount, and that there was a lawsuit 
 about it. We quite agree with the District Court Judge in con- 
 sidering that the non-insertion in the schedule of such a visionary 
 chance of uncertain benefit as this is not a concealment of property 
 by the Insolvent as the Ordinance designed to be punished by de- 
 nial of certificate. We will add that a creditor, who means to 
 oppose on such a ground as this, ought to examine much more 
 searchingly about it. It is not fair to ask one or two vague 
 que.stions, and then to seemingly let the matter drop as if immate- 
 rial, but to reserve it to be urged against grant of certificate. 
 
 The second objection is a charge that the Insolvent obtained 
 supplies from the opposing creditors, on the faith of his being 
 owner of property which he had parted with. 
 
 This, if true, would be a very serious matter, but there is no 
 proof of it, though, if true, the opposing creditors might themselves 
 have easily proved it. They gave no evidence at all. 
 
 The next is that the Insolvent treated Price and Boustead un- 
 fairly. But Price and Boustead do not oppose him, and in the 
 absence of any opposition by them or of any opportunity of 
 examining them, we cannot withhold the certificate for supposed 
 wrongs towards them. 
 
 The fourth ground of opposition was on account of the frau- 
 dulent disposal of Elk Cottage and the Kaipogalle property. We 
 have held that the conveyances of the Kaipogalle property were 
 void and fraudulent in the sense in which the word is used in 
 Bankruptcy Law ; but it by no means follows that Mr. Kershaw's 
 conduct in that transaction shews that decree of moral fraud which 
 would justify us in applying against him the penal clauses of the 
 insolvency ordinance. 
 
 The existence of the antenuptial Guernsey agreement, though 
 
177 
 
 We hold that it does not legally sustain the post-nuptial conVeyan- 1862. 
 ces, is a circumstance entitled to much weight, when we look at August 2b. 
 the general character of the affair, to see whether his conduct in it 
 is such as to make him unworthy of a certificate. And in reading 
 this point we must also have regard to his general behaviour as a 
 trader. No extravagance, no negligence is imputed to him. 
 
 It is clear that his misfortunes originated in causes beyond his 
 control in the commercial panic in Europe in 1857, and that they 
 were grievously increased by matters beyond his control by a 
 succession of bad seasons for the coffee crops. 
 
 Having regard to all the circumstances, and specially bearing 
 in mind that his assignees do not oppose him, we see no reason for 
 altering the adjudication of the District Court Judge as to certifi- 
 cate. 
 
 The judgment in case No. 85 will be that the order of the 
 District Court Judge is affirmed. 
 
 The judgment in case No. 36105 will be that the judgment of 
 the District Court, declaring Mrs. Kershaw the proprietor of the 
 messuage and premises in the libel mentioned and quieted in 
 possession thereof, be affirmed. 
 
 The judgment in No. 36592 will be that the judgment of the 
 District Court for the defendant be set aside, and judgment enter- 
 ed for the plaintiffs as prayed. Costs of the assignees to be paid 
 out of the estate. 
 
 S6th August. 
 Present: — Creasy C._ J. 
 
 No^'4:3262' I Haliaey v. Juan et al. 
 
 The conviction of the defendants in this case, instituted by the Customs Ord. 
 Collector of Customs, was quashed in these terms by the Supreme ■^°' ■*:* °-^ ^^^^ 
 Court:— [17ofl869, 
 
 This is a proceeding before the Police Magistrate against the cl. 108] — 
 defendants for breach of § 88 of Ordinance No, 18 of 1852. -uri^diotion— 
 
 That section epecifies a number of acts and concludes as reduction oi 
 follows, — penalty — 
 
 " Then and in every such case, the party so offending shall [cl. 115 of 
 be guilty of an offence, and shall for every such offence forfeit any '^'^^ "V^mI^ 
 sum not exceeding £100, nor less than £10." , —"shall"— 
 
 There was abundant evidence of facts in this case, and the plaint by 
 magistrate convicted the defendants and fined them £10 each. wliom to be 
 
 It is objected to this conviction that the Police Magistrate ex- ^^*'^' 
 ceeded his jurisdiction in fining to that amount. The Queen's Advo- 
 
178 
 
 1862. cate replies that the objection i:an Toe cured Ly dimluisliing tLe 
 
 August. 14 amounts of the penalties to £5, as the certificate, required hy the 
 
 13th section of the Police Ordinance No. 13 of 1861, had been pre- 
 
 serited, and the Supreme Court has power under the 25th section 
 
 of that ordinance to make such amendment. 
 
 I agree with the Queen's Advocate and would accordingly up- 
 hold the conviction with a reduction of the penalty, were it not for 
 another objection which has been taken to the legality of the con- 
 viction. " All penalties and forfeitures which shall be incurred 
 under this ordinance shall and may be sued for and recovered in 
 the name of the Queen's Advocate in the respective Courts of this 
 Island, in like manner as other cases therein " § 96. [See § 115 of 
 Ordinance No, 17 of 1869.] 
 
 In this case before me, the proceedings were not instituted by 
 or in the name of the Queen's Advocate and the fact of the prosecu- 
 tor being the comptroller of customs can legally make no difference. 
 
 I think this objection fatal. The proceeding is clearly one 
 " to recover a penalty," and I am bound to give effect to the im- 
 jierative word " shall " in the 96th section,, imless there is anything 
 in the text of the ordinance to shew that the words ought to be 
 read as permissive or directory only. I do not find in the ordinance 
 anything of the kind ; and there seems to be a substantial reason 
 for limiting the right of prosecution for penalties under the 
 ordinance to the Queen's Advocate or those who act under him. 
 The ordinance has many very strong (and very proper) provisions 
 in favour of the prosecutor as to burden of proof and other matters. 
 Such unusual privileges may be safely allowed where the prose- 
 cutor is an officer whose legal station is a guarantee for the 
 propriety of his acts. But prosecution for these penalties might be 
 made the engines of great oppression and extortion, if any and 
 every person were allowed to institute them. 
 
 Conrirtioii qiiashcd. 
 
 29th September. 
 Present: — Creast, C. J., 8TERLiN(i J., and Temple, J. 
 
 f. Colombo, 
 Xo. 647 40^ 
 
 ' > Senanayike v. Rarenchy. 
 
 •The following is the judgment of the Supreme Court : — 
 
 Dishirbing In this case defendant and appellant was convicted for dis- 
 
 puhlic wor- turbing the performance of public worship in a chapel at 
 
 v>''\ is'iR f I'^pl^ipoii'^f' ^^'^ molesting the congregation. 
 
 ■.M [lU uJ' I'stiS '-'-"liE' 'hnrge was at first laid under the 20 th clause of ordi- 
 
179 
 
 nance 17 of 1844, and by an amendment, it was also laid under 1862. 
 § 24 of ordinance 12 of 1846. Sept. 29. 
 
 As no in-ooi was given that the chapel in question was one of ., 
 
 the particular description of churches contemplated by the last _nature of 
 
 mentioned ordinance, the conviction could r»ot in the present state service 
 
 ■ of the proceedings be maintained as under that last ordinance. " any place of 
 The Supreme Court confines its attention to the ordinance No. 17 christian wor- 
 of 1844, the § 36 of which is as follows,— ^'^P-" 
 
 " And it is further enacted that every person who shall under 
 any pretence whatever, either within, or from without, any place of 
 Christian worship, disturb the performance of public worship 
 therein, or in any way during such performance molest any of the 
 congregation, shall be guilty of an ofEence, and be liable on convic- 
 tion thereof, to any penalty not exceeding £5, or imprisonment 
 with or without hard labour for any period not exceeding three 
 months." 
 
 It was first objected that at the time of the defendant's mis- 
 conduct in the chapel, the minister was lecturing to his congrega- 
 tion, and that the delivering of a lecture did not amount to the 
 performance of public worship ; but it was in evidence that the 
 minister, was expounding a chapter in the Bible, and whether such 
 a discourse is called a lecture or a sermon can make no diflference ; 
 it was also in evidence that the congregation was assembled to join 
 in prayer as well as to receive instruction from their minister ; 
 and the Supreme Court think it clear that when a Christian con- 
 gregation is assembled in their regular place of worship to join in 
 public prayer, and to listen to the religious exhortation of their 
 minister they are assembled for the performance of public worship 
 within the meaning of the ordinance, and that any person who 
 molests them during such performance is liable to punishment. 
 
 The objection however based on the nature of the service was not 
 the main objection in the case. It was urged that this ordinance 17 of 
 1844 (commonly known as the Police ordinance) appliesonly to places 
 where a police force has been established under the provisions of 
 the second section. Unquestionably the preamble has regard only 
 to police in town, and all the clauses of the ordinance, except that 
 which We are now considering, and except the 82nd which directs the 
 side of the road to be observed in driving, are expressly confined to 
 " such towns and limits " as a police force is established in. But 
 the words of the clause before us are general. It makes it punish- 
 able to create a disturbance " in any place of Christian worship," 
 not " in any place of Christian worship within such towns or 
 limits." The words of the Ordinance are ample enough to reach 
 the mischief in the present case, and the Supreme Court do not 
 think that it ought to control them by reference to the clauses 
 which are worded differently, or because they go beyond the 
 preamble of the Ordinance. 
 
180 
 
 1862. With regard to the last point, the Supreme Court gladly adopt 
 
 Sept. 29. the language of Lord Denman in Felloivs v. Clay, 4 Queen's Bench 
 Reports : — 
 
 " Supposing the enacting words clear, there is no line of rea- 
 soning so dangerous as that which would deprive the statute law of 
 its fair meaning, or in other words repeal an act of Parliament by 
 a judicial construction founded on the mere fact that the remedy 
 provided is more extensive than the eyil to be cured. It is enough 
 to say in general terms, on this doctrine, that the mischief is but 
 the motive for legislation, and the remedy may both consistently 
 and wisely be extended, beyond the mere cure of that evil, to every 
 provision which the most comprehensive view of the law, the state 
 of manners and of society at large, may appear expedient." 
 
 The con^'iction is affirmed. 
 
 TV " 1 SS9 ' ( Worthmgton v. Raphiel, 
 
 The following judgments were delivered in this case: — - 
 
 Master and Temple, J., — This is a conviction under the 7th clause of 
 
 servant — Ord. Ordinance 5 of 1841 for disobedience of orders in defendant absent- 
 No. 6 of 1841, jjjg liimself from his mistress's house without reasonable cause, 
 otl^'ot °^ tlie night of nth August 1862. 
 
 orders. There are some irregularities m the proceedings, as the mak- 
 
 Practice — ing Valoo Armogam the complainant on behalf of Miss Worthing- 
 
 irregularities ton, and the not dismissing the case on the 15th and re-opening it 
 
 — ylamt by ^^ ^-^^ 18th. The former irregularity I consider was amended on 
 
 laid ^power *^s 18th by Miss Wdrthington being made the prosecutrix under 
 
 of Court to the 24th clause of the Rules. And as to the re-opening of the case, 
 re-open order the 1.3th clause of the Rules allows the Magistrate to adjourn the 
 ^f dismissal jjg^ring on the complainant's absence, instead of dismissing the case, 
 of plaint. ^^^ although the Police Magistrate may not have strictly foUowep 
 that rule, be seems to have acted under it. The substantial rights 
 of the defendant have in no way been prejudiced, and he has 
 waived any objection he might have made by subsequently plead- 
 ing to the charge without objection. 
 
 As to the merits,, the defendant admits his absence, and it is 
 clear from the evidence that when he went home he did not intend 
 to return that night, nor has he shewn reasonable cause for absent- 
 ing himself; his wife may have been unwell, but he has failed to 
 shew that anything serious was the matter with her, and he never 
 mentioned his ivife's illness to Miss Worthington as an excuse for 
 
181 
 
 his absence. I think therefore that the finding of the Police Court 1862- 
 ahould be affirmed. Sept. 29. 
 
 Steklisg, J., — I concur in the judgment of my brother Temple, 
 inasmuch as I conceive the mere practical irregularity is cured by 
 the reasons a,ssigned, and as, on reading the evidence, I had a strong 
 and certain conviction that the defence was untrue. 
 
 Ceeasy, C. J., (dissenting) — I am of opinion that this conviction 
 should be quashed. I think that there was a substantial fault in the 
 original plaint, the root of the whole proceeding. It was a complaint 
 " by Valoo Arumugam on behalf of Miss Worthington." Any per- 
 son may be the complainant in a Police Court case (Rule 1, 
 Shedule A, Ordinance 18 of 1861), but I know of no authority for 
 one person to prefer a complaint which is expressed to be on be- 
 half of another. The proceedings when so foamed do not shew on 
 the face of them (as I think they should do) who is the party that 
 institutes the prosecution, whether it is Miss Worthington who 
 institutes it through the agency of Arumugam, or whether it is 
 Valoo Arumugam who institutes it out of regard for Miss Wor- 
 thington's interest. I think the defendant has a right, and a 
 substantial riglit, to know at once who it is that is instituting the 
 prosecution, and who it is that is liable under the 21st clause of 
 the Police Court Ordinance to be fined and to pay the defendant's 
 expenses, if the prosecution is held by the Magistrate to have been 
 instituted on false, frivolous or vexatious grounds. I am of course 
 not to be understood as saying that this particular prosecution was 
 instituted on false frivolous or vexatious grounds. I think quite 
 the other way. But the necessity of substantial compliance with 
 the requirements of the Police Court Ordinance is a matter of 
 general principle, and decisions on it should not vary according to 
 the supposed merits of the parties in particular cases. I think also 
 that when on the 18th August, the day appointed for the hearing, 
 no complainant appeared, the complaint should have been dismissed 
 or the complainant noticed according to the 13th rule of the Eulea 
 and Orders, and I think that the Magistrate had no authority to re- 
 ■open the case, as he did, on the 18th at the complainant's instance. 
 Special powers to re-open are specially given to District Courts and 
 Courts of Requests by Ordinance and Rules of Court confirmed 
 by Ordinance. But no power to re-open cases is given by Ordi- 
 nance .or Rule of Court to Police Courts, and I consider that they 
 do not possess any. I also greatly doubt the power of the 
 Magistrate to amend the plaint, as was done, by striking out all 
 about Valoo Arumugam, so that Miss Worthington only appeared 
 as prosecutrix. I do not think that this is a kind of amendment, 
 such as the 24th Rule contemplates. I have already pointed out 
 how substantially important it is for the accused to know at once 
 who his adversary is ; and I may observe that the rules require • 
 
182 
 
 1862. that the summons, which in the first instance Is served upon the 
 Sept. 29. defendant, shall contain the uanie and residence of the complainant. 
 ■ It seems to me useless, and worse than useless, to give him this in- 
 
 formation, if when he comes before the Magistrate, another com- 
 plainant is to be substituted. I do^not think that these eVrors were 
 cured bj the defendants pleading to the amended plaint. I cannot 
 feel that it is our duty to apply the subtle doctrine of defects cured 
 by pleading over, to the proceedings in Police Courts. The defen- 
 dants' in such proceedings are generally poor and uneducated 
 persons without the means of procuring legal advice, and them- 
 selves utterly ignorant of legal forms and processes. If the 
 proceedings against them have been so faulty as to have deprived 
 them of any substantial safeguard or privilege which the law meant 
 to give them, I think that the Supreme Court should protect, them 
 by quashing convictions based on such proceedings, whatever may 
 have been the subsequent pleadings. Indeed unless the Court does 
 so interfere, I do not see how any adherence to the Police Court 
 Ordinances as to process can be secured. Defendants are sure in 
 99 cases out of 100 to plead over: and if this is to cure all faults, 
 a most mischievous laxity of practice is most likely to be' introduc- 
 ed, and great practical hardship is likely to be inflicted on accused 
 persons. 
 
 There has also in my opinion been an error, a substantial 
 error, in applying the evidence taken in the case. I am of course 
 not going to lose sight of the clause of the Police Court Ordinances 
 which limits our power in appeal to questions of law. But if the 
 convicting Magistrate had considered the evidence with reference 
 not to the true point in the case, but to a collateral point, an error 
 in law has been effected, just as if a judge in Engla,nd were, in 
 summing up the facts to a jury, to direct them to give their verdict 
 according to the opinion which they might form on a particular 
 point, such point not being the real one, on which the decision ought 
 to turn. 
 
 The main facts of the case as proved for the prosecution may 
 be briefly stated. On the 11 August, the proseeutrix gave orders 
 to the defendant, who was her head-servant, that he was to sleep 
 in the house that night. No objection was made to the order, and 
 the prosecutrix, an English lady, in the absence of her brother, 
 required the safeguard of her servants being in the house. The 
 defendant was to go to his own house that evening to get his sup- 
 per and was then to return to his employer's house and remain 
 there. He knew that tea would be wanted at 5 next morning, as 
 his mistress was going then to join a boating party of some of her 
 friends. The defendant told another servant to prepare the morn- 
 ing tea and went away, but did not return to tlio house as ordered. 
 His mistress did not see him there till 11. 80, the next day. Ac- 
 cording to a witness for thu dcl'cucc, he came to the house a httle 
 
183 
 
 before G in tlie morning, but certainly he was absent all night. 1862. 
 J lis absence caused considerable inconvenience to his mistress: he Sept. 29. 
 made no excuse for it, and she did not hear anything about any 
 illness in his family, till that defence was set up by him at the 
 trial in the Police Court. It was proved that he had before this 
 occasion repeatedly'disobeyed orders. And I think that, though it 
 would have been more correct if the proof had been given by men- 
 tioning specific instances of previous disobedience and not by a 
 general statement, such statement was substantially admissible. It 
 was material to ascertain whether the defendant's not fulfilling his 
 mistress's order in this case was wilful and without reasonable 
 excuse ; and I think that it comes within the class of cases, such as 
 cases of maliciously killing, of receiving property with guilty 
 knowledge, and others, which will be found in 1 Taylor on Evidence, 
 34, 2 Eussel on Crimes, 777, where in order to ascertain the exis- 
 tence of a guilty animus, evidence of other guilty acts of the same 
 kind is (under certain restrictions) admitted by law. 
 
 That under the circumstances above stated. Miss Worthington 
 should write to the nearest Police Magistrate, complaining of her 
 servant's misconduct seems to me perfectly natural and proper, nor 
 do I see that the Police Magistrate committed any impropriety in 
 advising her to have proceedings taken under the Ordinance appli- 
 cable to such a charge. Such advice not prejudicing the merits of 
 the case: it merely amounts to saying to the complainant " if you 
 want this matter investigated before me, the following is the mode 
 of doing so." 
 
 But I must turn to the defence set up by the defendant, and 
 see whether that defence has been considered by the Magistrate as 
 bearing on the real point in the case. The accused called four 
 witnesses, whose evidence, as I read it, proves that about 9 p. m. 
 of the 11th (which would be about the time when the defendant 
 was to return from his supper at his own house to hia mistress's) 
 the defendant's wife was ill and that he fetched a doctor to attend 
 her. She was in the family way and near the time of her confine- 
 ment. She does not appear to have been very ill ; and the doctor 
 did not think it necessary to remain there more than half an hour. 
 There is no proof that she had Cholera, as asserted by the appel- 
 lant in his petition of appeal ; indeed, before the Magistrate, he 
 only said that his wife was ill. But I think that the evidence 
 adduced by him does shew that, considering the woman's condition 
 there was that amount of illness, which might make her husband 
 naturally and fairly think it hia duty to stay by his wife to attend 
 to her, and to be ready to bring the doctor back, if shew gi-ew 
 worse. If his not returning to his mistress's house was caused by 
 these facts and feelings, I do not think that he was punishable 
 under this Ordinance. 
 
184 
 
 18G2. The JIagisti-ate in his judgment says " I am perfectly satisfied 
 
 Sept. 20. " from the accused's own statement, that when he left his mistress's 
 ~" " house, he had no intention whatever of returning hefore the 
 
 " morning, notwithstanding Miss Worthington's order that he 
 " should sleep at her house as he had engaged to do ; otherwise, 
 " he would not have delivered her orders, intended for himself j to 
 " the second servant, to have tea ready in the following morning 
 " by 5 o'clock, to enable her to go out boating as she had engaged 
 " to do with Mr. Polkard, and his refraining from her any explana- 
 " tion of Ms conduct, in thus disobeying her orders, clearly shews 
 " not only his want of proper respect for his mistress, but an 
 " amount of indifference towards her closely bordering on imperti- 
 " nence, and which it is very necessary should be put down and 
 " punished." 
 
 Now it appears to me that the Magistrate was confining his 
 attention to what was the defendant's intention at the time when 
 he, the defendant, left his mistress's house to get his supper ; and 
 he adjudicates that he, the defendant, at that time intended to dis- 
 obey her orders. I accept, because I am bound to accept, the express 
 finding of the Magistrate on a matter of fact. But this does not, 
 at least, it ought not to, determine the case. The defendant did 
 not disobey orders by leaving the house to go home to get his sup- 
 per. The disobedience in the case was the not returning. When 
 he left the house, he committed no offence ; but he is found to 
 have intended the future commission of an offence. But no princi- 
 ple of criminal jurisprudence is more certain than that mere intent 
 is not in itself an offence punishable as the commission of an 
 offence by our tribunals, The time for the commission of the offence 
 was when the time came for the man's return "after supper to his 
 mistress's house ; and before that time had come we see (unless we 
 reject the evidence for the defence) that a state of things had arisen 
 which gave him a fair reason for not returning according to orders. 
 I do. not feel bound, I do not feel at liberty to reject the evidence 
 for the defence. The Magistrate does not in his judgment, or in. 
 any of the proceedings before us which form the regular record 
 state that he disbelieved the witnesses. I take the wife's illness, 
 such as before described as a fact in the case ; and it seems to me 
 that there has not been an adjudication, that the man in remaining 
 at home with his sick wife uninfluenced by the fact of his wife's 
 illness and was acting in mere pursuance of his original intent to 
 disobey his witness. His omission to tell his mistress the next 
 ■morning of his wife's illness does not seem to be conclusive against 
 him. His mistress did not ask him why he had been absent. His 
 fellow-servant appears to have asked him the question, and it 
 appears that he did tell his fellow-servant that he did not return, at 
 the appointed time, because his wife was ill. 
 
185 
 
 After the appeal waa lodged, two documents liave teen sent to 
 tis, one a petition from ihe brother of the prosecutrix, and the other 
 a letter from the Magisti-ate, complaining of the comments of the 
 press on the case, and justifying the conduct of the prosecutrix and 
 of the convicting Magistrate. 
 
 I do not think that either of the parties to an appeal, or the 
 judge whose decision is appealed against, or indeed that any person 
 whatsoever, ought to address such communications to this court, 
 and I have paid no attention to them in considering his case. Our 
 judgmont-s are based solely on the records and proceedings that are 
 brought regularly before us. We sonaetimes ask for further ex- 
 planation from the judges whose decisions we review, and every 
 attention is paid to information given in answer to such requests. 
 But I do not think that comments on the case ought to be volun- 
 teered, even by the Magistrate ; and from any other quarter they are 
 wholly inadmissible. 
 
 I am expressing the opinion of my learned brothers, as well 
 as my own, as to the impropriety of such communications being 
 made to us. With regard to the case before us, in my judgment 
 the conviction ought to be quashed; but as a majority of this court 
 think differently, the judgment of the convicting magistrate will 
 stand affirmed. 
 
 1862. 
 Novr. 7. 
 
 cession — 
 alienation. 
 
 7th Novemder. 
 
 Present: — Ckeast, C. J., Steuling, J., and Temple, J. 
 
 N iQj.''^ I ^('f>^<^pc^ci Tei'unanse v. Rewitte Terunanse. et al. 
 
 Fer Curiam : — In this case, one Sangarakkitte Terunnanse by a Vihare pro' 
 deed in 1812 granted certain vihare property to his three pupils, perty— sue 
 and the one-third now in question came in regular succession to 
 one Sidharte Terunnanse as a pupil of one of the original gran- 
 tees; he however tiled without any pupil, and before his death con- 
 veyed his interest in the vihare property, by a deed dated 24th 
 July 1857 to the plaintiff, a stranger ; and the question for deci- 
 sion is whether Sidharte Terunnanse could thus convey away his 
 interest in the property to a stranger, or whether, he nut having 
 left any pupil, it .should not revert to the other two original grantees 
 and their pu])ils in succession. This question dei)ends entirely upon 
 the construction to be put upon the deed of 1812, which the 
 Supreme Court considers expressly declares that the property there- 
 by granted shall descend from pupil to pupil in succession. 
 
186 
 
 1862. 
 
 Novr. 7. 
 
 Execution — 
 criminal 
 process — 
 Sentence of 
 death — war- 
 rant for 
 execution — 
 escape of 
 prisoner — re- 
 arrest — 
 application 
 by Queen's 
 Advocate 
 for habeas 
 
 power of 
 
 Supreme 
 
 Court — rule 
 
 to order 
 
 execution. 
 
 In re conviction of Valaidepody for murder. 
 
 The Queen's Advocate filed affidavit of Mr. John Morphew 
 and Mr. Thomas Wambeck, and moved thereupon for a writ of 
 habeas corpus to the deputy Fiscal of Batticaloa to bring up, or 
 cau.se to be brought up, the prisoner Valaidepody, tried and con- 
 victed of murder at the last sessions held in Batticaloa, in order 
 that execution might be awarded by the Court and a day appointed 
 for that purpose. He further moved that the Deputy Fiscal of 
 Batticaloa be directed to send to this Court the Calendar signed by 
 the Judge at the last sessions held at Batticaloa, and the Governor's 
 warrant for the execution of the prisoner. 
 
 The following order was made by the Supreme, Court: — 
 
 This prisoner was on the 24th August last tried and convicted 
 for murder at the. criminal session of this Court held at Battitiloa 
 in the course of the last Northern Circuit. Sentence of death was 
 passed on him by the judge who tried the case in the form thathas 
 long been used in this Island, directing execution to take place at 
 the common place of execution in the District of Batticaloa between 
 the hours of 9 and 11 in the forenoon of the 6th October then next. 
 
 A report of the case with a copy of the evidence was duly 
 sent immediately after trial to the Governor, who appears to have 
 considered the case to be one in which it was iit that the law 
 should take its course; and (in accordance with long "stablished 
 custom in such cases) a written warrant signed by the Governor 
 for the execution of the sentence, at the time and place named in 
 the judge's sentence, was sent to the Fiscal. 
 
 Preparations were made by the Piscal" for the execution of the 
 sentence on the 6th of October, but on the morning of that day, 
 the prisoner escaped from gaol, but was re-taken in the evening. 
 
 The execution not having been performed on the day which 
 had been specified both in the judge's sentence and in the Governor's 
 warrant, and the prisoner having been for a time (though only for a 
 short time) out of the Fisoal's custody, the present motion is made 
 to the Supreme Court; and it is made with the avowed purpose of 
 applying to this court, when the prisoner is brought before it, for 
 a rule to order the execution. 
 
 This is done on the analogy of several cases that have occur- 
 red in England, where difiiculties have arisen as to the execution of 
 capital sentence. In such cases, the prisoners and the records of 
 their trials having been brought before the Court of Queen's Bench 
 by habeas and certiorari, that court " being the Supreme Court of 
 criminal jurisdiction " (see Chitty's Criminal Law, i. p 698) has 
 awarded execution, and has exercised a discretionary power of 
 directing in what county the execution should take place. The 
 case Rex v^ Garside, 2 Ad, and El. p 266, is the latest of these 
 
187 
 
 cases, and the whole subject was on that occasion very fully dis- 1862. 
 cussed and considered. Novr. 7. 
 
 We have no doubt as to the Supreme Court of Ceylon possess- 
 ing a power analogous to that exercised by the Queen's Bench in 
 England. The Charter in clause 3 directs that "the entire 
 administration of justice, civil and criminal, in the Island shall be 
 vested exclusively in the Courts created by the Charter," with some 
 reservations as to the Admiralty Courts which are immaterial here. 
 The 5th clause appoints that there shall be one Supreme Court in 
 the Island ; and the 31st clause grants to the Supreme Court 
 " power, jurisdiction and authority to hold an original jurisdiction 
 for inquiring of all crimes and offences committed throughout the 
 said Island, and for the hearing, trying and determining all pro- 
 secutions which shall be ooinmenoed against any person for or in 
 respect of any such crimes or offences or alleged crimes and 
 offences." 
 
 The power of ensuring and enforcing the execution of 
 sentences is obvioiisly necessary for the administration of criminal 
 justice. Without it, all other powers v/culd be idle ; and the 
 pei'versity, the caprice or the negligence of an inferior officer of the 
 executive might baffle the arm of the law, and secure impunity 
 for the worst of offenders. We decide unhesitatingly that this 
 court has the power to grant the writs now asked for for the pur- 
 pose mentioned ; and as in the case of the King v Garside, the 
 court of King's Bench held that the attorney-general, moving on 
 behalf of the crown, was entitled to the writs as of course, we feel 
 bound to hold that the advocate-general here, moving on behalf of 
 the Crown, is entitled to the writs as of course, if he demands them. 
 
 We at first thought it would be necessary for us to go at once 
 into the, whole subject of the effect of the words as to the time and 
 place in the sentence passed on this occasion, and as to the effect 
 of the Governor's warrant. If it had been quite clear to us that 
 the Fiscal had still authority and was still bound to execute the 
 sentence at the first convenient opportunity, and that no legal right 
 of the prisoner could be prejudiced by such a course, we should 
 have suggested to the learned Queen's Advocate the expediency 
 of first ascertaining, whether the Fiscal would not, on being informed 
 of the judgment to this Court, proceed at once to do his duty and 
 execute the sentence at Batticaloa, and of so avoiding, if possible, 
 the delay and risk of escape consequent on bringing the prisoner 
 from Batticaloa to this place. But the Queen's Advocate has very 
 properly pointed out that tlie prisoner not having been continuedly 
 in the custody of the Fiscal has a right to have an opportunity of 
 pleading before us non-identity : that is, of asserting that he, the 
 man now in custody, is not the same person as the man who was 
 sentenced, The Queen's Advocate cited on this point Badcliffe's 
 
188 
 
 1862. 
 Kovr. 14. 
 
 case reported in Foster; and the aiithority of Chitty's treatise on 
 Criminal Law, i 777, may be added. As therefore the prisoner ia 
 to come before its, we think it better to defer tlie consideration of 
 the form and efBect of the sentence and warrant until he is present. 
 He will have a right to be heard on these matters, and we will not 
 in any way prejudge him by discussing them in his absence. 
 Writ granted as prayed. 
 
 Practice 
 — claiin in. 
 execution. 
 
 ISih Novomber. 
 Present: — Creasy, C. J., Sterling, J., and Temple, J. 
 
 . E. Pantura, 1 
 No. 3602. I 
 
 Fernando v. Soyza 
 
 The judgment of the court below was affirmed in these 
 terms: — 
 
 The Supreme Court has reason to believe that it has been 
 the practice for the claimant in execution to be required to- 
 give proof of his title in all cases where he is not reported to be 
 in possession. The Supreme Court think it best to follow the 
 established practice in. this instance. 
 
 14ih Noveniber. 
 Present: — Creasy, C. J., Sterling J., and Tehple, J. 
 
 P. C. Trincomalee, ) 
 No. 1549. J 
 
 Buttery v. Keating 
 
 Irregularity 
 — summons — 
 binding over 
 
 The order of the Police Magistrate was affirmed as fdllows: — 
 
 Had it not been for the 8th section of Ordinance 4 of 1855, 
 
 peaM— state- ^^e Supreme Court should have bf en disposed ot think that these 
 
 ments by J.P. proceedings could not be sustained. There is a serious and substan- 
 
 ' tial fault in the summons. The defendant (Kev. L. M. Keating) 
 
 is summoned to answer a charge of assault. On coming before the 
 
 Justice, be finds that the proceeding against him is not to obtain a 
 
 conviction for assault, but to cause him to be bound over to keep 
 
 the peace under the special power given by the Ordinance ; and ho 
 
 is" refused time to bring his witnesses on account of the peculiar 
 
 wording of the 4th clause, which directs the Justice to hear such 
 
 evidence on behalf of the party who is called on by the compainant 
 
 to give surety, as the accused party may have ready. 
 
189 
 
 But the 8th clause enacts, inter alia, that a person who in the 
 presence of say Court or Justice of the peace " evines an intention 
 of committing an offence against the person of another," may be 
 ordered by such Court or justice to give security to keep the 
 peace. And in this case the Justice has recorded (in effect) that 
 the demeanoiir and manner of the defendant throughout the pro- 
 ceedings before the Justice have been so excited and of such a 
 nature as to be of themselves sufficifent to the Justice's mind to 
 make him believe that the defendant would (unless restrained by 
 law) commit a breach of the peace, and that he, the defendant, 
 ought to be bound over to keep the peace. The Supreme Court 
 must give full credit to the statement of the Justice as to whnt 
 took place before him : and the Supreme Court thinks that it 
 warranted him in binding the defendant over. 
 
 The Supreme Cotirt affirms the order on this ground — on the 
 conduct of the defendant when before the Justice. The Supreme 
 Court gives no opinion as to the merits of the parties in the trans- 
 action, which gave rise to the proceedings. 
 
 1862- 
 
 Novr. 2 
 
 57/A November. 
 Ceeast, C. J., Sterling, J., and Temple, J. 
 
 D. C. Jaffna, 
 No. 9G01. 
 
 Canepady v. Vally. 
 
 Per ' 'uriam: — The Supreme Court held in a case from Kurune- 
 gala 29111, decided in Supreme Court 19th July 1854, that a former 
 case, although nonsuit, is a bar to the Prescriptive Ordinance, and 
 therefore considers the case No. 1699 by the plaintiff against defen- 
 dant a bar to defendant's prescription. 
 
 Creasy C. J., (dubitante): without positively differing fi'om 
 the opinion expressed by the majority of the Court in this case, 
 and from the judgment of our predecessors in the Kurunegala case, 
 I must state the question is one in which I" entertain great doubt. 
 
 Prescription 
 — effect of 
 non-suit. 
 
 No m52'^°'''l ^alletamby r. Madatte, et al. 
 
 The Court set aside the judgement of the Court below in Prescriptive 
 these terms : — Ordinance, 
 
 The plaintiff produced a title deed in his favou dated 
 in 1837. This, if there were nothing else in the case, 
 
190 
 
 1862. would give him a right to recover; but the defendants meet 
 Novr. 27. it by proof of their possession for ten years. On the other 
 hand, the plaintiff proves that within the 10 years (in January 
 1852) the defendants joined in a notarial deed, whereby they 
 recognised the plaintiff's deed of 1839 as the still existing and valid 
 title deed of the property. This was an " act by the possessors from 
 which an acknowledgment of a right existing in another person 
 must fairly and naturally be inferred." This act therefore brings 
 the case within the proviso in the 2nd clause of Ordinance 8 of 
 1834, and defeats the right which ten years possession would 
 otherwise have given the defendant. 
 
 N hi'^n-?' I Carupan et al. v. Veeran. et al. 
 
 The following is the judgment of the Supreme Court: — 
 Resisting In this case, the plaint .alleged that the defendant resisted 
 
 execution of (i^g complainants and a Fiscal's peon in the apprehension 
 ' ■ ■ of certain coolies under a warrant from the Justice of the Peace. 
 
 This warrant was in the common form of one for apprehension, 
 directing the Fiscal of the Province to bring the bodies of certain 
 persons before the Justice who issued the warrant; or some other 
 competent J. P. forthwith. 
 
 Sometime after the warrant was issued, it was returned to the 
 Justice with " non est inventus" endorsed on it ; and after it had 
 been so returned, the clerk, without the authority of the Justice, 
 handed this wari'ant back with this further endorsement made by 
 himself without the Justice's authority — " warrant re-issued." 
 
 The complainants in acting on the warrant so re-issued were 
 resisted : whence came the charge contained in the plaint. ' 
 
 The Police Magistrate dismissed the charge on the ground 
 that the extension or re-issuing of the warrant was made by the 
 clerk of his own motion, and not by the J. P. 
 
 This judgment now comes before the Supreme Court in appeal. 
 Mr. Lorensz for the appellant relies on the case of Dickinson v. 
 Brown, 1 Espinasse's Reports, 218 ; biit this court consi-lers it not 
 to apply as one decided on the doctrine of consent; and further re- 
 garding the 9th section of the 13th chap, of Hawkin's Pleas, vol ; i, 
 it affirms the dismissal of the plaint. 
 
191 
 
 No' 20467 f ^hamadoe Lebhe v. Muttappa Chetty. Novr. 27. 
 
 No' 20466 I ■^^o.'nado Lehbe v. Alagappa Chetty. 
 
 The following is the judgment of the Court : — 
 
 These were cases in which the plaintiff sued for freight, and Claim for 
 in which the defendants set up claim by way of reconvention freight — 
 against the plaintiff for damage to the cargo and for short ^^'^^^ ^"^Z^' 
 delivery. _ foTdlmage'to 
 
 Evidence on both sides was taken. At the conclusion, the judge cargo and for 
 gave judgment for the plaintiff for the full amount of freight in short delivery 
 both cases, stating as his reason for such judgment that defendant's °™ss action 
 claim for damages cannot be maintained as a set-off against the Ordinance 
 freight claimed by plaintiff. No. 5 of 1852, 
 
 The Supreme Court think that this is an erroneous view of the clause 1. 
 nature of re-convention. Reconvention is equivalent not to set-off, 
 but to cross-action, and the English authorities that have been cited 
 to shew that this defence could not be maintained by waj of set- 
 off are therefore inapplicable. It is clear that a cross-action could 
 be maintained for the damage to the cargo and .short delivery ; and 
 according to Roman Dutch Law, the defendant may bring this 
 matter forward by way of reconvention, subject to the discretionary 
 poAver of the judge to disallow the reconvention, and to direct the 
 defendant's claim to be brought forward in an independent action, 
 if he, the judge, thinks the plaintiff's claim to be dubious and 
 dilatory. 
 
 Had the District Court Judge exercised such a discretion here, 
 the Siipreme Court should not have lightly interfered with it; but 
 he has not done so. He has considered that the defendant's claim 
 by way of reconvention is absolutely inadmissible, and this was in 
 the opinion of the Court, an error of judgment. 
 
 The Supreme Court has been pressed with the Ordinnnce 5 of 
 1852, S 1, as bringing these cases under the exclusive operation of 
 English Law, not only as to the rights which give the parties their 
 causes of action, but also as to the conduct of the cases ; and it has 
 been argued that the Ordinance thereby shuts out the power of 
 pleading in reconvention anything that could not have been plead- 
 ed in England by way of set-off. 
 
 The Supreme Court do not think that the Ordinance has that 
 operation. If the defendant here were denying the plaintiff's right 
 of action, this court should follow the Ordinance and the English 
 Law which the Ordinance points out, and this Court should decide 
 against the defendants. But the defendants do not deny the plain- 
 tiff's right of action : they say in effect, " it is true that you have 
 a right of action against us for freight, but we have a right of 
 
192 
 
 1862. action against you for damages, and let the two matters be con- 
 Deer. 2. sidered together, and let the Court determine on which side the 
 "~ balance inclines and what amount." 
 
 This power is certainly not taken away by the Ordinance in 
 express terms, and this Court does not think that it is taken away 
 by implication. To hold the contrary would make a very serious 
 innovation in the law of this Island, especially when we remember 
 that the 2nd section of the Ordinance a])plies English Law to bills 
 of exchange and promissory notes quite as fully as the 1 st section 
 applies it to maritime matters. 
 
 As the whole evidence is now before the District Court Judge, 
 he had better consider it and decide the cases on their meritb. 
 
 Tre!=pa=!=! — 
 
 plaintifE 's 
 
 right to the 
 
 property 
 
 injured. 
 
 2nd December. 
 Creasy C. J., Sterling J., and Temple J, 
 
 D. C. Kandy, 
 No. 30033. 
 
 Duncan v. Keria, 
 
 This case was remanded for re-bearing in tbese terms: — 
 
 Remanded. In this case, the plaintiff sued for cattle trespass 
 to a coffee estate. In his examination he stated that he was not 
 the proprietor, but the manager of this estate and other estates of 
 the proprietors, Messrs Tindall. He also stated that he held no 
 power of attorney from the proprietor. 
 
 On this he was non-suited. The nonsuit was to say tbe least 
 premature; further inquiry must be made, and it must be ascertain- 
 ed whether the plaintiff was iti actual occupation and possession "f 
 the estate at the time of the trespass. If so, he has a right to 
 maintain this action against a mere wrong-doer. 
 
 The authorities, which shew that any possession of real pro- 
 perty is sufficient to entitle the possessor to sue a mere wrong-doer, 
 will be found collected at p. 580 of Koscoe's Nisi Prius, and p. 
 1127 of Lush's Saunders on evidence and pleading:, vol 2. The 
 Supreme Court will refer to the only case in particular, that of 
 Elliott V. Kemp, 7 Meeson and Welsby p 312, on account of the 
 authority of Lord TVensleydale, who there lays down the law most 
 distinct!}'. 
 
 ■If upon inquiry, it should turn out tbat tbe plaintiff had no 
 occupancy or actual possession, but had merely the right to go to 
 the estate occasionally for the purpose of inspecting it, or some 
 other temporary purpose, this court does not think that the plaintiff 
 can maintain this action. 
 
193 
 
 2nd December. 
 Present : — Creasy C. J., Sterling, J. and Temple, J. 
 
 C. R. JafEna, \ 
 No. 27355. J 
 
 Cadirgamen v. Worthington, 
 
 On appeal preferred by the defendant, the Supreme Court 
 affirmed the judgment of the Court below, in these terms : — 
 
 In this case the plaintiff sued the defendant for wages 
 due to him as gardener. The defence was that the plaintiff 
 had forfeited his wages under the 7th clause of Ordinance 5 of 
 1841, by wilful disobedience. 
 
 The commissioner rightly held that there had been no dis- 
 obedience of orders proved, inasmuch as the plaintiff who was hired 
 as a gardener was not bound to do horse-keeper's work ; and it 
 appeared that his master, the defendant (G. E. Worthington), had 
 dismissed him impaid, for refusing to do stable duty. 
 
 The commissioner also rightly held that the master cannot 
 decide in his own behalf, that the servant has committed a forfei- 
 ture of wages, under clause 7 of the Ordinance, so as to found a 
 claim of set-off -in his (master's) behalf. If the master wishes to 
 enforce the 7th clause against a servant, he must institute a proper 
 judicial pi'oceeding, and not make himself summary judge in, his 
 own favour. 
 
 The Supreme Court wish, while upholding the commissioner's 
 decision, to guard against any one supposing from this case, that a 
 master, when sued for wages by a servant, who has seriously mis- 
 conducted himself, cannot set up such misconduct as a defence, 
 either complete or partial, to a claim for wages. 
 
 The law is very different. Independently of any Ordinance, 
 the law empowers a master to discharge without notice a servant 
 guilty of gross misconduct, and the servant so discharged is not 
 entitled to any wages that have not previously accrued due. See 
 notes on Smith's Leading Cases, vol. 2, p. 23, and Chitty on Contracts 
 p 501, and Addison on Contracts, p 493. Mr Addison gives two 
 very useful lists of instances of such conduct as justifies the sum- 
 mary dismissal of a servant ; and of instances of such slight mis 
 conduct as does not amount to sufficient grounds for dismissal 
 without notice. 
 
 Besides this common law right, the 9th clause of Ordinance 5 
 of 1841 enables the Court, when a servant sues for wages, to make 
 abatement from the wages, on account of the servant's absence from 
 or neglect of work, and also for the value of breakages or damage 
 done to the employer's property, through the servant's misconduct, 
 gross negligence or carelessness. The master may, when sued for 
 wnses, avail himself either of the common law defence or of the 
 
 Deer. 2. 
 
 Master and 
 
 servaut — 
 
 action for 
 
 wages — plea 
 
 of forfeiture 
 
 by disobei- 
 
 dienoe or 
 
 miecouduct — 
 
 Ordinance 5 
 
 of 1841 clause 
 
 7 [Ordinance 
 
 11 of 1865, 
 
 clause 11] 
 
 — Eights of 
 
 master. 
 
194 
 
 1862. statutory defence, wliicli we liave mentioned, if tlm facts warrant it, 
 Deer. 8. whetlier he has prosecuted the servant under the 7th clause of the 
 — Ordinance or not. 
 
 The SupreiHe Court make these observations on account of the 
 general' practical importance of the «ubject, and will only further 
 remark that the present defendant has suffered no substantial 
 damage through his mistake in law about the 7th clause of Ordinance, 
 inasmuch as the facts of the case clearly shew that he had no 
 defence on the merits. 
 
 Irregularity 
 — Justice of 
 peace pro- 
 ceedings — 
 conversioa 
 into Police 
 Court case — 
 doctrine of 
 consent. 
 
 8th December. 
 Present : — Creasy, C. J., Sterling, J., and Temple, J. 
 
 P. C. Kaigalle, ' 
 No. 18266. 
 
 Perera v. Kandasamy, et al. 
 
 Dias for appellant. 
 
 The following judgment of the Court sets out the facts of the 
 case : — 
 
 In this case the defendant was taken up under a J. 
 P. warrant on a charge of assault. He was bailed and he appeared 
 on the day appointed before the J. P. On this so appearing, the 
 prosecutor applied to have the case ti-ansferred to the Police Court. 
 The defendant does not seem to have objected. The case was then 
 treated as a Police Court case. A plaint for an assault was forth- 
 with entered, and the same Magistrate (being a P. M. as well as a 
 J. P.) proceeded there and then to try the case as a Police Court 
 case. No appointment of a day for trial was made, and no sum 
 mons under the Police Court Ordinance appears to have been served 
 The defendant pleaded "not guilty," and he does not appear to 
 have taken any objection to the manner of the proceedings. He 
 called a witness in his defence but was convicted. He now appeals 
 against that conviction. 
 
 It is quite clear that the proceedings were very irregular, and 
 we think that the irregularity was such as to prejudice the defen- 
 dant in a substantial right. This court has before now quashed a 
 Pelice Court conviction, because the summons had been defective 
 (see 9534 Matalle, Lorenz's Eep. p 192). In the case before us 
 there has been no summons at all. It is true that the appellant 
 had notice by the justice of the peace proceedings of the matter 
 which was to be charged against him ; but we think that there is a 
 ai-eat difference between notice to undergo a preliminary examination 
 li-om which the J, P, is to decide whether m- not he will send the 
 
195 
 
 accused to meet Ids trial bclore another tribunal, and notice to the 
 man to prepare to stand a final trial at once before a Police 
 Magistrate. 
 
 We are further of opinion that the defects in these proceedings 
 are not cured by the defendant's having pleaded to the Police Court 
 plaint, even if his conduct is to be treated as an assent to what took 
 place. There is a judgment of this court in P. C. Pantura 1S83, 
 delivered on 5th November 1860, in which we decided after much 
 consideration, that even an express consent on the part of an accus- 
 ed person in a criminal case cannot legalize a substantial violation 
 of law. 
 
 1862. 
 Deer. 16. 
 
 16th December. 
 Present: — Creasy, C. J., Sterling, J., and Temple, J. 
 
 Mascoreen v. Oenys. 
 
 D. C. Manaar, 
 No, &632. 
 
 The plaintiff (the Eev. Mascoreen) brought this action, 
 founded on his possessory right by reason of a year and a 
 day's possession, against the defendant (the Eev. Genys), who 
 had turned him, the plaintiff, out of possession of a Church, and 
 had possessed himself thereof. 
 
 , The defendant's justification in substance was that the Church 
 belonged to the Roman Catholic Bishop of Jaffna, that the plaintiff 
 had been placed in the Church by that Bishop, but had since been 
 contumaceous to his Bishop and had thereby become liable to be 
 turned out by him, and that the defendant by the Bishop's orders 
 turned him out accordingly. 
 
 As to one point in dispute between the parties, namely whether 
 the plaintiff held under the Roman Catholic Bishop of Jaffna or 
 not, certain evidence was, we think, erroneously held inadmissible 
 by the District Court Judge. Letters on the subject, purporting 
 to be written by the plaintiff, were produced by the defendant at 
 the trial ; but the Judge held that as they had not been filed, he 
 was bound to reject them under the 8th Rule of 2nd July 1842. 
 He does not seem to have exercised any discretionary power as to 
 admitting or rejecting them, but to have considered them absolute- 
 ly inadmissible. This is not a right construction of the Rule. 
 The last part of the rule gives the judge a discretionary power to 
 admit the evidence if it seems to him just and expedient. This 
 power has generally been and ought to be very liberally exercised. 
 It is almost always best to let the objection of late production tell 
 against the value, and not against the admissibility, of testimony. 
 
 Proprietaiy 
 rights — 
 Christian 
 Churoli — 
 evidence — 
 B. and O, 2nd 
 July 1842, 
 rule 8— new 
 trial — ^preca- 
 rious posses- 
 sion, 
 
19G 
 
 1862. 
 Deer. 18. 
 
 If tlie District Court Judge thinks that the evidence has been 
 unfairly and trickily kept back, he will be quite right in viewing it 
 with suspicion, which indeed in such a case will naturally be ex- 
 tended to the whole conduct in the cause of the party who deals 
 with his evidence in this manner. 
 
 As the letters in (question would not be unimportant as to the 
 dispute about the plaintifE being or not being subject to the Eoman 
 Catholic Bishop of Jaffna, the Supreme Court would have sent the 
 case back for a new trial, if there had been no other point in the 
 case on which the defendant was bound to satisfy the court in his 
 favour, in order to obtain a verdict. But there is. The defendant 
 asserted and ought to have proved that he turned the plaintiff out, 
 by the Eoman Catholic Bishop of Jaffna's orders. He not only 
 failed to prove this, but he himself disproved it in the most positive 
 manner, when examined by thecourt, when he stated that he acted 
 by nobody's orders. ~The Supreme Court do not grant new trials 
 for erroneous rejection of evidence, where it is clear to us that the 
 evidence, if received, would not enable the party who tended it to 
 a verdict. 
 
 The Supreme Court decides nothing in this case as to any 
 proprietary rights ; it only determines that the plaintiff, who 
 has proved his possession of the church for many years before the 
 defendant tttrned him out, can maintain this possessory action 
 against a mere wrong-doer. The Supreme Court investigated a 
 few days ago, in a case (G. R. Kandy, 30033) the English author- 
 ities as to the right of action which possession gives as against 
 trespassers. Two Eoman-Dutch authorities have been cited in the 
 present case, which strongly confinn the opinion to which thE 
 Supreme Court then arrived: a passage in Grotius, p 109 shewed 
 that precarious possession is not enough as against strangers ; ano- 
 ther passage, cited from Bort's Tracts, establishes that possession 
 virtute officii is precarious possession. 
 
 ISth December. 
 Present : — Creasy, C. J., Steeling J., and TEiaPLE, J. 
 
 Lebbe Saibo v. JIarikar et al. 
 
 D. C. Galle, 1 
 Ko. 9516. ) 
 
 In this case the 1st appellant was defendant in a suit 
 brought against him by one Saibo (who is complainant in the 
 lubiBtance to pi'egent case) to recover possession of a certain house. 
 
 The plaintiff obtained judgment and a writ issued directing 
 the Fiscal to place the plaiutiJf in possession of the house, describ- 
 
 Contempt 
 of Court — 
 
 process, 
 
197 
 
 ing it specifically. On going tLither for that purpose, the Fiscal's 18(j2. 
 officer was resisted by the defendant (1st appellant) and by the Deer. 18. 
 defendant's son (the 2nd appellant) who lived in that house with 
 his father. 
 
 After a due investigation of the subject, they were both very 
 deservedly lined by the District Court Judge for contempt of court. 
 
 As regards the 1st appellant, the case was too clear to adroit of 
 the slightest doubt. With regard to the 2nd appellant, we wished 
 before giving judgment, to look to some decisions which were said 
 to have been pronounced formerly by this court, as the power of 
 District Courts to punish for contempt persons who resisted their 
 process, not being parties to the suit in which the process issued. 
 
 By the kindness of Mr. Lorenz, we have been furnished with 
 reports of these cases. The first is D. C. Matara, No. 303 (decided 
 20th January 1857): there commissioners had been authorized by 
 process of the Court to take, not any specific article of property, 
 but such property as wholly belonged to the deceased. They 
 tried to seize some articles in the possession of a man who 
 was not a party to the suit, and it was held that the man was not 
 punishable for contempt in refusing to give up the things to them, 
 inasmuch as there had been no legal adjudication that the goods, 
 which the man claimed, was the deceased's property. So in the 
 other case, D. C. Matara 19011 (decided 20th May 1857), the writ 
 of sequestration ordered the Fiscal generally to seize the defendant's 
 goods. The Fiscal's oflScer endeavoured to seize some plumbago 
 which third parties claimed ; and there again this court held that 
 it would be premature to commit such claimants for contempt, 
 before it had been judicially ascertained that the plumbago was 
 the defendant's property, and as such within the scope of the writ. 
 
 Both these cases differ widely from the present one. The 
 evidence in the present case clearly proves a wilf ut contempt by 
 both appellants. And the judgment as against both is affirmed. 
 
 '^\^' 2'^?^}°' \ Xaitnytamhy v, Samvanamiitlii. 
 ISo. 28,555. J y ^ ^ 
 
 The plaintiff in this case sued the defendant on a bond lip.arinjr pgp^ of 
 
 date 19th April 1860 for a sum of £300. The defendant pleadfd avvansemcnt 
 
 that, by a certain deed dated the 10th of August J .SGI, an agree- —preference 
 
 ment was entered into between himself and certain of his creditors, *°t°^^go^^'^' 
 
 of whom plaintiff was one, whereby the defendant was to have ceabueiit 
 
 time to pay the several sums of money Avhich he then owed to tliem by debtor, 
 (including plaintiff), by two equal instalments, one half whereof 
 was payable within two years from the date of the agreement and 
 |.he other half within three years of that date. 
 
198 
 
 1862. The plamtifi: admitted the execution of the deed, but pleaded 
 
 Uecr. 18. that his signature was obtained thereto by fraud and misrepresen- 
 tation on the part of the defendant, in that he, the defendant, at 
 the time of obtaining the plaintiff's signature, undertook to secure 
 the signatures of all his other creditors, whereas two of those whose 
 names were mentioned in the deed did not sign it, and there were 
 other creditors who were not made parties at all to the deed in ques- 
 tion; and further that the defendant had paid off certain claims in full 
 before the expiration of the period contemplated by the agreement 
 referred to in the answer. 
 
 The learned District Judge set aside the " composition deed " 
 and entered up judgment for plaintiff. 
 
 On appeal, the Supreme Court affirmed the judgment in these 
 terms : — 
 
 The defendant in this case had on the 10th April 1861 made 
 an arrangement with his creditors, by which they agreed to give 
 him time to pay his debts. He was to pay half within two years, 
 and the other half within three years from the date of the agree- 
 ment. At the time when this agreement was made, there was a 
 private understanding and agreement between the defendants and 
 one of the creditors, named Sinnetamby, that Sinnetamby should 
 have the defendants promissory note at four months for £180, being 
 about half the amount of Sinnetamby's claim. 
 
 When the plaintiff discovered that this prefei'enoe had been 
 given to Sinnetamby, he (plaintiff) brought his action to recover 
 the debt due to him (plaintiff) at once; and he contends that he is 
 not bound by the agreement or "composition deed" of April 1861. 
 The plaintiff says that ' the composition deed is vitiated by the 
 private arrangement between the defendant and Sinnetamby, which 
 was a fraud upon him, the plaintiff, and the other creditors, who 
 signed on the faith that all were to be treated alike. 
 
 The Supreme Court thinks that this contention is well founded, 
 and that the plaintiff is entitled to recover. To adopt the language 
 of Chitty on Contracts, p. 591 : " Where a debtor in embarassed 
 circumstances enters into an arrangement either by deed or other 
 wise with his creditors to pay them a composition xipon their claims, 
 or to discharge the demands in full or by instalments at stated 
 intervals, any private agreement between the debtor and one of 
 the creditors, who professes to join in the general arrangement, 
 that the debtor, or a third party for him, shall pay a further sum 
 of money or give better or further security than such as is provided 
 for other creditors, is void as a fraud on them. The creditors 
 bargain for an equality of benefit as to payment and security; 
 there is a tacit understanding that all shall share alike pari passu, 
 and that it shall not be competent to any one of them, without 
 their knowledge; to stijmlato for any additional benelit or security 
 
199 
 
 to himself." And a little further on, he rightly says " It makes no 1862. 
 difference that the favored creditor has realized nothing under Deer. 18. 
 such agreement, for it is the mere fact of such an agreement being 
 made which constitutes the fraud on the other creditors." 
 
 The general principle laid down in this passage (and many 
 similar passages in other text-hooks might easily be added) has not 
 been denied in the argument for the defendant in the present case. 
 It was suggested that no real preference was given to Sinnetamby, 
 in as much as the debtor was by the terms of the composition deed 
 at liberty to pay the first moiety to his creditor at any time within 
 two years, and the promissory note given to Sinnetamby was for the 
 payment of a moiety of the debt due to him at a period within the 
 two years. But it is obvious that a creditor, who was to be 
 necessarily and definitely paid at the end of four months, would 
 be in a better position than creditors who might be kept waiting at 
 the debtor's option for the full term of two years. And the mere 
 fact that the promissory note was to be a further security for Sinne- 
 tamby than was given by the deed which was common to all, would of 
 itself stamp this private agreement with Sinnetamby as an illegal 
 one. See Leicester v. Rose, 4 East 371. 
 
 But it was further maintained on behalf of the defendant, 
 that although the private arrangement with Sinnetamby was illegal 
 and void, so that Sinnetamby could not enforce it, yet that it did 
 not operate so as to vitiate the composition deed as between the 
 debtor and the other creditors, and so as to remit them to their 
 original rights. No case was cited to support this proposition, but 
 we were told that no case could be found in which th contrary had 
 been held. A remark like this was made during the argument 
 in Mallalieu v Hodgson, 20 L. J. Q. B. 343. The observation 
 there was as follows :" there is no direct decision that a creditor 
 can recover his original debt, the composition deed being tainted by 
 fraud." This observation is not strictly correct; for there is the 
 case of Weriham v Fowle, Bowling's Practice Cases, vol 3. p 43, in 
 which a debtor had fraudulently misled his creditors as to the 
 amount of his assets. A composition deed, which they had signed 
 under the influence of such misrepresentation, was held void, and 
 his creditors were decided to be at liberty to sue him for their 
 original debts. The same point was similarly determined in the 
 case of Vinci v Mitchell, reported in Moody and Kobertson 337. 
 These are authorities on the principle of the present case; for it is 
 just as much a fraud on a debtor to conceal a private agreement of 
 preference from the bulk of his creditors, and to keep 'them under 
 a delusion as to their being fair play and equality in the trans- 
 action, as it is in him to conceal part of his property, and so keep 
 them under a delusion that he is a poorer man than really is the case, 
 nov does it make anv difference whether there is any express 
 
200 
 
 1862. covenant in tlie deed for fair disclosure, and equal treatment, or 
 Deer. 18. whether these things are left to the implied covenant which always 
 exists in such matters. 
 
 The paucity of express authorities on the subject is not to be 
 wondered at, if we consider the circumstances under which com- 
 position with creditors generally takes place. The debtor is 
 generally not merely insolvent, but almost penniless; and it is 
 generally his friends that provide the means of making same pay- 
 ment to the creditors, for the sake of which they forego their 
 lialances or give a long letter of licence. If it turns out that there 
 has been a fraudulent preference of one or more creditors over the 
 rest, it is seldom that the debtor is worth the trouble and expense 
 of sueing; 
 
 On principle, the case is quite clear. The plaintiff had a just 
 claim against the defendant payable imitiediately. The plaintiff 
 gave a promise not to enforce that claim for two years. Why did 
 he give that promise ? On the faith, among other reasons, that he 
 and all the other creditors were being fairly and honestly dealt with 
 and that none was in any way preferred to the rest. The defen- 
 dant was deceiving the plaintiff all the time. The defendant, in 
 obtaining the plaintiff's signature to the deed, committed an act of 
 dishonesty, of which the law will not permit him to avail himself. 
 The plaintiff's promise to forbear suit, having been made without 
 adequate consideration and in consequence of fraud practised on 
 him, is not binding on him either morally or legally. He had a 
 perfect right to bring this action. Affirmed. 
 
APPENDIX. 
 
204 
 
 I 
 
 [See ante pp. 54 — 68.] 
 
 The following is the judgment of the Judicial Committee of 
 the Privy Council, (delivered on the 19th July, 1862,) on appeal 
 from the orders of the Supreme Court of Ceylon, dated respective- 
 ly the 16th of October and 3rd of November, 1870. 
 
 Present : 
 Lord Justice Knight Bruce. 
 Lord Justice Turner. 
 Sir Edward Eyan. 
 
 ^Na' 2^656.'} ^'""^'"^ ^- ^"-^^- 
 
 Proceedings under English law — Liability/ of parties under a judg- 
 ment depending on that law — Kandyan District — Maritime 
 Provinces — Ordinance No. 5 of 1852 — law of the forum — 
 rights of wrong-doers — account of profits. 
 
 In carrj'ing out the judgment of the Judicial Committee, on an appeal 
 from the Supreme Court of Ceylon, which reversed a previous decision 
 of the District Court of Kandy, where the proceedings had been con- 
 ducted and carried on according to the English law and course of 
 procedure, and treated as depending on that law, — 
 
 Held, that the Supreme Court was wrong in applying the principles of 
 the Koman-Dutoh law, so as to render parties subject to a joint account 
 liable only for a share or proportion: the decision of the Judicial Com- 
 mittee intending, and the English law rendering, them equally liable in 
 aelido. 
 
 The Eoman-Dutch law is the prevailing law in force in the Maritime 
 Provinces of Ceylon, but as the procedure of a court is the law of the 
 forum, the Ordinance No. 5 of 1852, cl. 5 is not applicable to a case where 
 the whole procedure has been carried on according to the Bnglisi law, 
 and not the Eoman-Dutch law. 
 
 A wrong-doer, one who is in wrongful possession of another's lands, 
 is not entitled to any [commission for the sales he may have effected 
 of the produce of those lands. 
 
 An account of profits is an account of receipts, after making all just 
 allowances. In the case of a wrong-doer, commission on sales made 
 by him, does not constitute a just allowance. 
 
 This is an appeal from two Orders of the Supreme Court of 
 the Island of Ceylon, made in the cause of Lindsay v. Duff, 
 and bearing date respectively the 6th of October and the 3rd of 
 November, I860. The grounds of the appeal are, as to theOrder of 
 the 6th October, 1860, that by that Order, the defendant, George 
 Smyttan Duff, who is the respondent to this appeal, was ordered 
 to pay into the Eegistry of the Court only the sums of £1,875 
 
205 
 
 and £2,291. 1«. 6^d., amounting to the sum of £4,166. Is. 6^d., 
 in the whole, when, as the appellants contend, he ought to have 
 been ordered to pay into Court the sum of £6,457. 8s. Id. ; and 
 as to the Order of the 3rd of November, 1860, that'by that order 
 the court, over-ruling an objection taken by the appellants to a 
 i-eport in the cause, allowed the defendant, Duff, commission on 
 his sales and purchases on account of the estate in question, and 
 ordered him to pay into Court only the sum of £10,344 Os. ll^d., 
 when, as the appellants contend, he ought to have been ordered 
 to pay into Court a much larger sum. 
 
 The cause of Lindsay v. Daff, out of which this appeal 
 arises, was instituted by the appellants as plaintiffs against the 
 respondent, Duff, and against James Ingleton, Alexander Brown, 
 David Baird Lindsay, and afterwards continued against the 
 respondent, JJiiff, as the executor of Alexander Brown, in the 
 District Court of Kandy, for the purpose of recovering the pos- 
 session of a coffee plantation or estate in the above-mentioned 
 district, called the Bajawella plantation or estate, with mesne profits ; 
 and by the decree of the District Court, bearing date the 16th of 
 April, 1855, it was decreed that the defendants be ejected from 
 the premises in dispute, and that the plaintiffs, the now appellants, 
 be restored to and quieted in the possession thereof, and that they 
 do recover from the defendants mesne profits to the amount of 
 £6,457. 3s. Id. sterling, in the following proportions from the 
 defendant, Duff, the now respondent, from 1st of February, 1849, 
 to the 30th of April, 1850, and from the defendant, Duff, the now 
 respondent, as executor of the estate of Colonel Brown, and from 
 James Ingleton, from 1st of May, 1850, to 21st of May, 1853, at 
 the rate of £1,500 a year. 
 
 From this decree of the District Court, the defendants ap- 
 pealed to the Supreme Court, and by a decree of that Court, 
 bearing date the 8th of March, 1856, the decree of the Kandy 
 Court was reversed, and the suit instituted by the now appellants 
 was dismissed. 
 
 The appellants then appealed from the decree of the Supreme 
 Court to Her Majesty in Council. That appeal was heard before 
 their lordships who reported to Her Majesty their opinion ; and 
 thereupon Her Majesty, by an order in Council bearing date the 
 30th of June, 1860, was pleased to approve the Report and Order, 
 and it was thereby ordered that the decree of the Supreme Court 
 of the 8th of March, 1856, should be, and the same was thereby, 
 reversed, and that so much of the judgment of the District Court 
 of Kandy of the 16th of April, 1855, as directed that the defend- 
 ants, the respondents to that appeal, should be ejected from the 
 remises, and that the plaintiffs, the appellants, be restored to and 
 
206 
 
 quieted in the possession thereof, and the same was thereby restored, 
 but that so much of the said judgment of the District Court as 
 ordered mesne profits to the amount of £6,457 3s. Id. sterling, to 
 be paid in certain proportions by the respondents, Dvff and Ingleton, 
 to the appellants, be, and the same was thereby varied, by order- 
 ing, and it was thereby ordered, that the mesne profits of the 
 estate be paid by the last-named respondents, in the like propor- 
 tions, into the registry of the Supreme Court of Ceylon, and that 
 an account of subsequent rents and profits of the estate in ques- 
 tion, received by the respondents, Duf and Ingleton^ or either of 
 them, or by their or either of their order, or for their or either of 
 their use, since the 21st of May, 1853, be taken ; and that the 
 amount which might be found due upon such account be also paid 
 by the respondents into the registry of the Supreme Court. And 
 after directions as to the moneys so to be paid into Court not being 
 paid out without notice, and as to the order being without pre- 
 judice, and as to the parties being at liberty to apply to the Supreme 
 Court, it was ordered that said cause be, and the same was thereby, 
 remitted back to the Supreme Court of Ceylon, with directions to 
 give effect to the said report, and that the same be punctually 
 observed, obeyed, and carried into execution. 
 
 Upon this order of Her Majesty in Council reaching Ceylon, 
 the appellants moved before the Supreme Court for the payment 
 into the registry by the respondent, Dvff, of the sum of £6,457 
 3s. Id., being the amount of the mesne profits from the 1st of 
 February, 1849, to^ the 21st of May, 1853, as fixed by the decree 
 of the District Court of Kandy, and for a reference to the District 
 Court to take the account of the mesne profits from the 22nd of 
 May, 1853, to the 25th of August, 1860, when possession of the 
 estate had been given to the appellants. 
 
 It was Upon this motion the first of the orders now under 
 appeal, the order of the 6th of October, 1860, was made, directing 
 the respondent, Dvff, to pay into the registry the sum of £4,166 
 Is. (>\d., that sum being the aggregate amount of the sum of 
 £1,875, the amount of the mesne profits at the rate of £1,500 a 
 year, from the 1st of February, 1849, to the 30th of April, 1850, 
 which by the decree of the District Court of Kandy was ordered to 
 be paid by the respondent, Dvff, and of one-half of the sum of 
 £4,582 3s. \d., the amount of the mesne profits from the 1st of 
 May, 1850, to the 21st of May, 1853, at the same rate, which by 
 the same decree was ordered to be paid by the respondent, Duff, 
 and by James Ingleton. By this order of the 6th of October, 1860, 
 it was also, in conformity with Her Majesty's order in Council, 
 ordered that an accoiTut should be taken by the registrar of the 
 . subsequent profits of the estate received by the respondent, Duff, 
 
207 
 
 and hj James Ingleion, or by their or either of their order, or for 
 their or either of their use. 
 
 In pursuance of this order the registrar made his report, by 
 which he found £16,726 Os. id. to be the amount of the subse- 
 quent mesne pfBfits ; but he certified that in arriving at that 
 amount questions of interest and commission had been settled, and 
 that interest amounting to £8,962. Is. Id. had been charged by 
 the respondent, George S. Duff, in the accounts on the capital 
 embarked, and commission amounting to £4,143. 9s. 6c?. on the 
 sales and purchases on account of the estate ; and he certified that 
 he had allowed both these charges in the respondent's accounts. 
 He further certified that the shares ' in which the proprietors held 
 the estates and divided the profits were as follows : estate o± Brown, 
 one-half ; estate of Ingleton. one-quarter ; estate of Dr. Smi/ttan, 
 one-quarter ; and that the profits divided in these proportions 
 ■would stand thus : estate of Brown, £8,363. 0«. 2d. ; estate of 
 Ingleton, £4,181 10s. Id. ; estate of Dr. Smyttan, £4,181. 10s. Id. 
 
 The appellants objected to this report, in respect of the 
 allowance to the respondent, George Smyttan Duff, of the interest 
 on capital, and of the commission ; and upon the case coming on 
 before the Supreme Court upon the report, the Court disallowed 
 the interest on capital, but allowed the commission, and made the 
 seocnd of the orders complained of in this appeal, the order of the 
 3rd of November, 1860. The sum of £10,844 Os. llirf. by this 
 order directed to he paid into the registry by the respondent. Duff, 
 is the aggregate of the sums of £8,363 Qs. 2^d., by the report 
 certified to be the proportion of the subsequent profits belonging 
 to Brown's estate, and of the sum of £1,981 Os. 9^d., being one- 
 half of the sum of £3,962 Is. Id., the interest on capital dis- 
 allowed by the Supreme Court. By this order the Supreme Court 
 so ordered that the question of costs should stand over until it 
 should be seen what, if any, further proceedings were taken in the 
 matter under the leave given to the defendants by the Order in 
 Council, and what might be the result of such proceedings. It is 
 under these circumstances the appellants have again brought this 
 cape before us. 
 
 Three questions arise upon the appeal, and were argued at the 
 bar : first, whether the respondent, Dvff, ought not to have been 
 ordered to pay into Court the whole, and not one-half only, of the 
 sum of £4,582. 3s. Id., which, according to the decree of the 
 Kandy Court, was payable by him and by James Ingleton ; secondly, 
 whether he ought not to have been ordered to pay into Court the 
 full amount of the subsequent profits found by the report of the 
 Eegistrar, and not one-half of those profits only ; and thirdly, 
 ■whether he ought to have been allowed the commission which has 
 been allowed to him by the Supreme Court. 
 
208 
 
 As to the first of these questions, their Lordships find them- 
 selves unable to agree in the conclusion at which the Supreme 
 Court has arrived. That conclusion rests upon these grounds: that, 
 by virtue of the Ordinance, No. 5, of 1852, the effect of the 
 judgment of the District Court of Kandy, if it had remained un- 
 disturbed, would have been to be determined by the Koman-Dutoh 
 law, and that Her Majesty's order in Council has revived and re- 
 ordained that judgment, not merely as to the proportions in which 
 the mesne profits were to be answered by the respondent, and by 
 him and James Ingleton, but also as to the liability of those parties 
 under the judgment, and that, according to the Eoman-Dutch law, 
 that judgment did not give the plaintiffs (the now appellants) the 
 right to recover against both or either of those parties the full 
 sum payable by both of them, but gave the plaintiffs the right to 
 recover a moiety, and a moiety only, of that full sum against each 
 of those parties. 
 
 Upon this question, as to the effect of the Eoman- 
 Dutch law if applied to the judgment of the District Court of 
 Kandy, their Lordships do not think it necessary to give any 
 opinion, for they are of opinion that it ought not to be so applied. 
 They are satisfied (as they observed in their judgment upon the 
 former appeal in this caiise) that all the proceedings in this 
 cause have beisn conducted and carried on according to the English 
 law and course of procedure, and treated as depending on that law. 
 They are not even satisfied that the proceedings of the respondent 
 himself, which necessitated the institution of the suit on which this 
 appeal is brought, were not so conducted, carried on, and treated ; 
 and they are not disposed to think that upon the sound construc- 
 tion of the Ceylon Ordinance, No. 5 of 1852, it was meant to pro- 
 vide by it that the Eoman-Dutch law should be applied to deter- 
 mine the operation and effect of a judgment or decree pronounced 
 under a different law. They are, on the contrary, much disposed 
 to think that this Ordinance was intended, and ought to be held to 
 apply only to cases in which there rnay be a Kandyan law or Kan- 
 dyan custom having the force of law, applicable to the rights of 
 the parties in issue in the suit, and to be determined by the Court ; 
 but even if the Ordinance ought to be held to go further, and to 
 apply not merely to the substantive rights in issue in the suit, but 
 to questions arising on the law of procedure, their Lordships are 
 led, from tho procepdings in this suit, to believe that the procedure 
 in the District Court of Kandy is according to the English law ; 
 and the procedure of a Court being the law of the Court, this alone 
 would, as they conceive, prevent the Eoman-Dutch law being ap- 
 plicable under the Ordinance. 
 
 Their Lordships have less difficulty in concluding that the 
 
209 
 
 Eoman-Dutch law ouglit not to have been applied to this case in 
 the mode in which the Supreme Court has applied it, from the 
 fact tljat it appears by the judgment that it has never before been 
 so applied, and from the conclusion and inconvenience which would 
 result from attempting to apply the doctrine of one law to the 
 proceedings under another. 
 
 It is not, however, necessary, in their Lordships' judgment, 
 for them to give, and they do not therefore give, any final opinion 
 upon the construction of this Ordinance ; for assuming it to bear 
 the extended construction contended for by the respondent, they 
 do not think that it was competent to him to insist upon the Roman- 
 Dutch law when he had throughout, both in the proceedings in 
 the District Court of Kandy and in the Supreme Court, and ulti- 
 mately upon the former appeal to Her Majesty in Council, con- 
 curred in treating the questions in the cause as depending upon 
 the English law. Moreover, the duty of the Supreme Court was 
 to carry into effect the order of Her Majesty in Council, 
 and there can be no doubt that that order proceeded upon the 
 footing of the English law being applicable to the case. Their 
 Lordships, therefore, think that the order of the 6th of October, 
 1860, cannot be maintained upon the grounds on which it has been 
 rested in the judgment of the Supreme Court ; and they have no 
 doubt that, according to the English law, the respondent was liable 
 to pay into Court the full sum which, under the decree of the 
 District Court, was to be paid by him and by James Ingleton. 
 
 They are of opinion, therefore, that this order ought to have 
 been for payment into the registry of the Court, by the respondent, 
 of the full sum of £6,457. 3«. Id. What has been already said 
 applies even more forcibly to the subsequent profits ; for the pay- 
 ment of them rests wholly iipon Her Majesty's order in Council, to 
 which it was not pretended that the Eoman-Dutch law could be 
 applied. 
 
 Their Lordships are of opinion, therefore, that the order of 
 the 3rd of November, 1860, ought to have directed the whole of 
 these profits to be paid by the respondent into the registry of the 
 Court. It was attempted to distinguish the case, as to some part 
 of the rents received by the received by the respondent, upon the 
 ground that he received and paid them over as agent. But their 
 Lordships are of opinion that the respondent ca,nnot protect himself 
 from his liability to the appellants upon this ground ; for as to the 
 rents up to the 21st of May, 1853, the title of the appellants was 
 established by the order of Her Majesty in Council, and as to the 
 subsequent rents they were received and paid over pendente lite, 
 when the defendant was in possession as part owner, and was wrong- 
 fully insisting on retaining that possession against the appellants. 
 
210 
 
 Then as to the commission allowed to the respondent in his 
 accounts, their Lordships are of opinion that this allowance ought 
 not to have been made to the respondent. According to their 
 Lordships' judgment on the former appeal, which was approved by 
 Her Majesty in Council, the respondent's possession of the planta- 
 tion or estate was a wrongful possession, and he cannot be permitted 
 to make a profit to himself out of his own wrongful act. The 
 Supreme Court in making this 'allowance seems to have proceeded 
 on two grounds ; first, that if the allowance was not made, the 
 appellants would recover more than they could otherwise have rea- 
 lized ; and secondly, that the account directed was an account of 
 profits merely ; — biit as to the first ground, if it was maintained, 
 every wrong-doer would equally be entitled to make and maintain 
 such a claim, a proposition which is quite untenable ; and as to the 
 second ground, it is sufficient to say that an account of profits is 
 an account of receipts, after making all just allowances, and that 
 under the circumstances of this case the commission claimed by the 
 respondent could not properly be held to be a just allowance. 
 
 The appeal also complains of the reservation of the costs 
 contained in the order of the 3rd of November, 1860, but their 
 Lordships see no reason to alter the order in this respect. 
 
 Their Lordships, therefore, will humbly recommend Her 
 Majesty to reverse the order of the 3rd of November, 1860, so 
 far as it overrules the objection taken by the appellants to the 
 report, and to declare that by the order of the 6th October, 1860, 
 the sum of £6,457 3s. \d. ought to have been ordered to be paid 
 by the respondent into the registry of the Court ; and that by the 
 order of the 8rd of November, 1860, the sum of £24,831 lis. 5i., 
 being the aggregate amount o£ the sum of £16,726 Os. Ad., the 
 subsequent profits, of the sum of £3,962 Is. Id., the interest on 
 capital disallowed by the Supreme Court, and of the sum of 
 £4,143 9s. 6rf., the commission allowed to the respondent, ought 
 also to have been ordered to be paid by him into the registry, and 
 again to remit the cause to the Supreme Court with directions to 
 carry into effect this order ; and further to order that the costs 
 of this appeal be paid by the respondent. The order of course to 
 be without prejudice, as provided by Her Majesty's former order 
 in Council. 
 
211 
 
 II 
 
 [ See ante pp. 141 — 143. ] 
 
 Present : 
 Lord KiNGSDowN. 
 Sir John Eomilly. 
 Sir John T. Coleridge. 
 
 D. C, Galle, ) Base v. Black 
 No. 20,283 [ and 
 
 & 20,286. ) Black v. Rose 
 
 Their LordsMps do not think it requisite to call on the 
 respondent's Counsel. The case has been extremely well argued 
 on behalf of the appellant, and everything that could be urged been 
 brought before us ; but their Lordships think, after giving every 
 consideration to the arguments addressed to them, that the whole 
 question resolves itself into one of construction of the charter- 
 party, and is not affected by the custom of the port of delivery, even 
 supposing that custom to be satisfactorily proved. They agree 
 entirely with the learned Judge of the Supreme Court, and adopt 
 his construction of the instrument in qiiestion, considering that the 
 terms of the charter-party, " the cargo to be taken alongside, and 
 to be taken from the ship's tackle at the port of discharge, free of 
 expense and risk to the ship," entitled the master to demand freight 
 upon such delivery, irrespective of the custom, if any, of the port 
 of delivery, to take from him his lien. For these reasons their 
 Lordships affirm the judgment of the Court below, and will re- 
 oommend to Her Majesty to dismiss this appeal, with costs.