ISffliilPj w>mi'' i,:'f.V:s-'Mn .■,-■/■ Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024946133 Cornell University Library KF 1569.51833 Digest of the decisions o( tlie Supreme 3 1924 024 946 133 Olorn^U Ham i'rljnal Hibrarg A DIGEST OF THE DECISIONS OF THE SUPEEME COUET SITTING AT COLOMBO, &u\ce t|« ^omttlaatton of f^e €^avttK OF MDCCCXXXIII. EDITED BY OWEN W. C. MORGAN, Esq., ADVOCATF. Colombo, 1857. ADVERTISEMENT. The following pages are intended to form part of a larger work, comprising all the decisions of the Supreme Court from 1833 to the present time. The rest of the work, a considerable portion of which is already in manuscript, will be published in similar parts, should the sale of the present part be attended wi*h satisfactory results. A full Index will also be i>rej)ared, as sonn as there is a suffi- cient number of parts to make up a volume. 0. A. L. Colombo, August 10, 1857. EXPLANATION OF ABBREVIATIONS USED IN THE PRESENT NUMBER. M.— The Hon'ble Sir Charles Marshall, Knt., Chief Justice. R. — The Hon'ble W. Rough, Esq., Sergeant at Law, Senior Puisne Justice, (appointed Chief Justice, Oct. 12, 1836.) N.— The Hon'ble William Norris, Esq., Second Puisne Justice, (appointed Chief Justice, Mar. 30, 1836.) C. — The Hon'ble William Ogle Caer, Esq., Second Puisne Justice, (appointed Apr. 9, 1836.) St. — The Hon'ble J^hn Frederick Stoddart, Esq., Second Puisne Justice, (appointed Oct. 12, 1836.) J. — The Hon'ble John Jeremib, Esq., Senior Puisne Jus- tice, (appointed Dec. 31, 1836.) Coll. — The three Judges at Collective Sittings. Jud. Com. — The Court of the Judicial Commissioner. Gov. Ag. — The Court of the Government Agent. S. M. — The Sitting Magistrate's Court. Prov. C. — The Provincial Court. D. C— The District Court. A DIGEST OF THE DECISIONS OF THE SUPREME COURT SITTING AT COLOMBO, SINCE THE PROMULGATION OF THE CHARTER OF 1833. Part 1.— From October 1833 to May 1837, Edited hy %m\\ M- <&- l^orptT, Advocate. Part II — From June 1837 to December 1838, Edited by Wi- IR. Olcntti|iiIag, Proctor of iJie District Court of Colombo^ and Paet III. — Fronr January 1839 to December 1842, With a copious Index to the whole work. Edited by mm, iticlmcl i(}Img. Proctor of tlie District Court of Badulla. COLOMBO, [I ] The following pages which together with Mr. Ad- vocate Owen Morgan's Digest from October 1883 to May 1837 will form a complete Digest from 1833 to 1842, are offei'ed to the Profession as a prelude to other volumes, containing the remaining Decisions of the Civil, and also others from the Tuesday and Collec- tive Minutes ; all of which are now in Manuscript and ready for the Press. To facilitate reference to the whole work numbers of the pages and paragraphs of Morgan's Digest have been continued, and a copious Index has been annexed. It may be necessary to observe, that the facts of the cases heard and determined in Appeal are, with some exceptions, imperfectly recorded in the Minutes of the Supreme Court ; and I doubt not that those who are in the habit of making reference to them will bear out the assertion. This circumstance, coupled with my ciom- parative inexperience in the work, will I trust atone for the defects and errors which the reader may dis- cover ill the following pages, and which would proba- bly have been more numerous but for the kind and invaluable assistance rendered me by Mr. Advocate LoRENZ, to whom I take this opportunity of retui'n- ing my acknowledgments. I think it also right to state that as the first portion of this volume, from June 1837 to December 1838, edited by Mr. Conderlag, had been very kindly placed at my disposed, I have availed myself of it to advantage. In my acknowledgments of the assistance rendered me by friends to further this volume, I am bound to offer my thanks to Me. J. E. VanderStraaten of the Re- gistrar's Office, who has spared no pains to afford me every facility to have access to the Minutes of the Su- preme Court, Wm. Michael Beling. Colombo, Small Pass 21st, October 1862. [ H ] ©able flf Jtbbreciations- R, — The Hon'ble W. Rough, Esquire., Serjeant-at-Law, Chief Justice, October 12th 1836. J. — The Hon'ble John Jeeemie, Esquire., Senior Puisne Justice, (appointed Chief Justice May 23rd 1838.) St. — The Hon'ble John Feedekick Stoddart, Esquire., Second Puisne Justice (appointed Senior Puisne Justice, May 23rd 1838.) C. — The Hon'ble William Ogle Carr, Esquire., Second Puisne Justice, (appointed Senior i^uisne Justice, February Ist 1840.) 0. — The Hon'ble SiR Anthony Oliphant, Knight, Chief Justice, May 1st 1839. H. — The Hon'ble John Godfried Hillebrand, Es- quire., Second Puisne Justice, November 23rd 1839. S. — The Hon'ble James Stark, Esquire., Second Puisne Justice, April 7 th 1841. Coll. — Collective Sittings. S. 0. — Supreme Court. D. C— District Court. D. J. — District Judge. Par:- — Paragraph. [Ill ] Errata. [N. B. — A few sheets of this work having run short they were subsequently re-printed ; and consequently some of the following errors which occur in the sheets of the first issue, were corrected in those that were re-printed.] Abbreviations. [/. n. foot note. m. n. margined note. ] Page. Linb. 172 22 for " he" read be. 179 25 for" and" read or. 182 20 for "regulation" read resolution. 182 42 (/. n.) for "Ante p. 52 by 223'; read Vide Morgan's Digest p. 52 par. 223. !83 IB f or " 23" read 523. 184 41 (/. n.) fm "See infra Dec. 20, :837" read Vide post p. 201 par. 542. 185 35 for "256" read 526. 185 ' 43 for " Vide infra October 18, 1839," read Vide post p. 199 par 538. 186 10 for "257" read 527. 186 17 /(>)■« 258" recwi! 528. 187 3 }'or"259"recMJ529. 188 2 /or" 260" read 530. 192 32 before names of parties insert 531. 193 12 before names of parties insert 532. 193 19 before names of parties insert 533. 194 25 before names of parties insert 534. 194 34 before names of parties insert 535. 195 2 before names of parties insert 536. 195 16 before names of parties insert 537. 202 6 dele " and" ' 211 38 for •' 504" read 550. 211 39 /or "ante p. 137" read in Morgan's Digest p. 137 par 463. 211 5 (to. 71.) for "marg. notes p. 137" read Morgan's Digest p. 137 par 463. 214 3 for " 505 read bSl. 21 7 37 for " 556" read 555. 218 36 for " 559" read 556, 222 — (/. 1.) for '• See infra" read Vide post p. 225 pal 559. 223 4 /or "Ante p. 107" read in Morgan's Digest p. 107 par 427. 225 12 fcrr " jurisdiction cases" read jurisdiction over cases. 225 37 for " See ante p. 218" read See ante p. 218 par. 556. 225 4 («i. «.) for "ante p. 218" read Ante p. 218 par. 556. 235 — (top) " 1883" read 1838. [ IV] Line. 1 8 (to. 5v.) for " a", read at. 7 /or "ante p. 154" read Morgan's Digest p. 154 par 488. 30 for " enferred" read referred. 6 for " destination" read description. 26 for " while" read which. 4 (m. n.) for " or" read to. 18 (m. n.) for "regular" read irregular 1 3 for " Proctors" read Proctor's. 1 dele "of." 3 for " Ther" read The. 6 (m. «.) after " their" insert claims. 7 (m. n.) dele " claims." A DIGEST 'OF THE DECISIONS OF THE SUPREME COURT, SITTINCt A,T COZ.OMBO, Since tiie Promulgation, of the Charier of 1833. 1833, October 9. 1. — By the Kandian Law, the consent of the Son is not necessary to enable the Father to dis- pose of his property in order to obtain assistance and support. Such a requirement would not only be unreasonable itself, but is at variance with the general rules of the Kandian Law, and op- posed to numerous decisions. — No. 4380, Jud. Com. Kaitdi/, (M.) 2. — In a ease between Kandian parties, where a person had transferred certain lands to enable him to procure support ; Held, that even if the deed of transfer should turn out to be invalid as an absolute transfer, it should at least be considered that the transferee had a virtual mortgage on the lands for any expense which he might have actu- ally been put to for the support of the transferor or the payment of his debts ; and therefore that he had a right to hold the lands as a security for re- payment. — Ibid. Oct. 12. (M. R. N.) 3. — The British Government cannot restore property which, though confiscated by the King of Kandy, had already been alienated by grant of the King : for the Act of Restoration could only operate on property which still belonged to the Crown as successor to the rights of the Kandian King.— No. 5344, Jud. Com. Kand^, (Coll.) Oct. 21. 4. — A party who claims property must gain by the strength of his own title, and not on the weak- ness of that of the adverse party. — No. 6284,.. Gov. Ag. Katnapoora, (M.) i8sa. Kandian Law- Transfer — Consent of soa. Kandian Law — Transfer to procure support Crown — Confiscatioa. Ejeotmerit- Title. [2] 1S33. rresei-iption— Possession under Mortgage. Conditisa •ieeutory. iiaudian Law- Succcssiou. Kandian Law— Ritihts of a Widow. Oct. 25. 5. — Possession under a mortgage or temporary- transfer gives no right of Prescription. This right can only be acquired by an occupation adverse to or at least independent of the claimant. Suppos- ing it to be an ordinary mortgage, the mortgagor has a right at any time to recover possession by repayment. If however the mortgage — bond has fixed a limited period for redemption, at the ex- piration of which therefore the power of redemp- tion would be gone, that would furnish a substan- tial ground of defence. — No. 1814, Gov. Ag. Kandi/, (M.) Oct. 26, 14. — No Prescription runs against the Crown, either as regards its general prerogatives, or as respects the Kandfan Proclamation of Prescrip- tion. — No. 6418, Gov. Ag., Ratnapoora, (M.) Nov. 2, (M. R.) 15. — Where a party has- admitted an instru- ment at the trial, he cannot bo allowed after the decision of the case to> retract such admission as a mode of obtaining a new trial, unless it can be shewn that he had been imposed upon — a, supposition which would be negatived by the circumstance of the admission having been made ia open Court.— tNo. 5080, Jud. Oomi Kandy, (M.) 18^:. Arbitration, Vexatious Appenl^- Costs. Frauds aiid- Perjories. Marriage iu Deega — Inlieritancc. rrcsoriptioti — Crown. Admissioa- Betraclion of. IR33. [4] ment of Trust. False Evidence —New Trial. Bona— nresGripuou. Pressription. Decree — Force of. Eaiidian widow —Gift to. 16. — MTiere a party, previous to his death, had enjoined his wife to give tip certain lands to the plaintiif, on receiving a certain sum of moviey as indemnity for expenses ; Held, that such an. injunction would he an acknowledgment that tl^ deceased had held the lands only in trust for the plaintifif.— No. 4901, Jud. Gf^m..' Kandy, (M.) Nov. 18. 17. — The naked assertion in a Petition of Appeal that witnesses have sworn falsely is no ground for a New Trial.; — No. 4489, Jud. CoiQ,. Kandj, (M.) Nov. 19. 18. — An instrument, whieh though inconse- quentially termed a Bond (for in words there is no magic,) is but a mere acknowledgment of a certain sum of money lent and advanced, io be recovered from the debtor personally, upon a condition, is no actual Bond, and does not require ten years to be prescribed. — No. 1315, S. M. Gcdle, (R.) Nov. 20. 19.— The Reg. No. 13 of 1822, (concerning Prescription) is not available- as a ground of defence, unless specially pleaded. — No. 14533, S. M. Caltura, (N.> 20. — The Supreme Court ordered that the decree pronounced in a certain case should be limited to dismissing the plaintiff's suit, without confirming the defendants in their possession of the land in dispute. Per Marshall, C. J. — " As the decree now stands, other parties might be excluded, having preferable claims to that of the defendant. And by this means a fictitious suit brought by the friend of a person possessing limd without a title to it, might be made to operate in favour of such possessor against the rightful owner." — No. 885, Gov. Ag. Korne. galle, (M.) 21. — The circumstances under which a party a Kandian woman, had been put in possession of certain lands by her brother, were held to warrant the supposition that he had never intended that [5] ISfl!?. Prescvir'tion — Posseasii'u mt- uer Moi-lgage. Disiuljerison \y deed. she sliould lie turned out of possession clurins; her life. Her state of destitution after her first hus- band's death gave her a legal claim upon her brother for assistance; and her receiving a second husband at his hands was a natural and sufficient consideration for the gift of the land to her, at least for her life. — Ko. 6332, Gov. Ag. Korne- galle, (M.) 22. — Possession, by virtue of a Mortgage can give no prescriptive right ; the contract being always determinable at the vs-ill of the Mort- gagor. — No. 6401, Jud. Com. Kandj, (M.) 23. — A deed disinheriting the Heir at Law ought to be proved beyond the possibility of a doubt or suspicion. The not calling the writer of such a deed, without accounting for the omis- sion by death or other uncontrolable circumstance, lias iu itself a suspicious appearance, especially where the names of the witnesses are (as frequent- ly happens) not signed by themselves, but insert- ed in the body of the instrument by their assent. — No. 8736, Gov. Ag. Kormgalle, (M.) Nov. 21. 24. — However improbable it may be that a EisU to mUIuc plaintiff should be able to disprove the defendant's ease, still he ought to have an opportunity of doing so, if by possibility he should be able, ex. gr., to prove that a deed produced by the defend- ant is a forgery, or to show a decree of a Gansabe, which would have the effect of destroying the defendant's title by prescription. — No. 5229, Jud. Com. Kandy, (M.) Nov. 22. 25. — A Gift loosely proved, followed by partial possessien, and rare exercise of ownership, is not sufficient to justify a decree in. favour of the donee. — Manabodde v. Marianatchy , Gov. Ag. Matelle, (R.) 26. — Where the names of the witnesses ap- pear to have been inserted in a deed (in the then usual manner) without any actual signature by themselves ; Seld, that the writer of the deed waa evidcntfe. Proof of Gift and I*ossesBion. Witneflses to a deed. Wiiter. IRS'?. [6 ] Witnesses — Acquillal from Peijury. Proof of fleetl- Material evi- dence. Cransabe — Awavd of. Interruption of Prescription. Fraticis and Per- juries. Disinherison — ■ Kandian Law. Partnership — ■ Evidence of. a very material mtness, and ou,a;lit to have been called.— No. 349, Gov. Ag. Maturatte, (M.) 27. — It by no means follows, because the wit- nesses for the Appellant were acquitted of Per- jury, that therefore their statement was true, or that the evidence adduced by the Respondent was false.— No. 412, Gov. Ag. Maturatte, (M.) 28. — If the witnesses or the writer of a deed were alive, the not calling them necessarily weara a suspicious appearance. \Tbere however the evidence was quite sufficient, without the assist- ance of the deed, the decree was afiirnied. — No. 6785, Gov. Ag. Ratnapoora, (M.) Nov. 23, (M. R. N.) 29. — The validity of the Award of a Gansabe does not depend on the obedience the defendant has paid to it. A Gansabe may not have the power of enforcing its decrees, but that ought not to prejudice a claim made and established before it.— No. 8450, Gov. Ag. Komegalle, (M.) 30. — A claim before a Gansabe is a sufficient inten'uption of prescription. — Ihid. 31. — The Proclamation enacting that no trans- fer of land shall- be good unless attested by two witnesses, must be taken with reference to the party taking the objection. Where the trans- feror avows the deed, a third party cannot take the objection. — No. 416, Gov. Ag. Komegalle. 32. — Authorities appear to be conflicting as to the abstract right, by the Kandian Law, of an owner of land to leave it away from his heirs at law. The balance of those authorities would ap- pear to be in favour of that right. — Ihid. 33. — To make a party liable as a Partner, it is not necessary to have proof of a real and bona fide partnership either by deed or otherwise. If a person holds himself out to the world as the partner of another, whether by express words or by the general tenor of dealings, he is liable for the debts of his ostensible partner. — No, 6070 Jud, Com. Kandy, (M.) [7] 1838. 84. — Though a Bond for the value of goods sold ^°^'^ ''y ""« was given by A, alone, it does not thereby fullow that the vendor thereby intended to look to him alone for payment, or that, even if such had been -Lis intention, he would not be entitled to pursue his remedy against a partner B, if it ultimately ap- peared that the latter was disposing of the gooils purchased, as partnership property. — Ibid. Nov. 25. 35. — A District Judge has no right to impose a fine upon a party, unless for conduct involving some specific ofi"ence, such as perjury, subornation, or other species of fraud, which would be cogni- zable as a criminal offence. — No. 767, Gov. Ag. Ruanuelle, (M.) Nov. 26. 36. — A former decision, if not between the name parties nominally, however identical their interests may be in reality, will not prevent evi- dence being gone into in a subsequent suit as to the respective rights of the parties. — Semiral v. Welltgalle, Gov. A^'. Matelle, (M.) 37. — A Donation in consideration of assistance to be rendered to the Donor, is by the Kandian Law revocable, subject in certain cases to com- pensation for assistance actually rendered. — Do- dandenia v. Koomare, G'ov. Ag. Matelle, (M.) 38. — Judgment cannot be given for more than is claimed. — No. 1890, Gov. Ag. Rwinvxlle, (M.) Nov. 27. 39.— The Reg. No. 13 of 1822, (concerning Prescription) is no bar to a claim, unless specially pleaded. — Dewadure v. AllehahooH, S. M. Baile- ipittimodera, (N.) Nov. 28, 4:0. — Where a party had left the country and died in a foreign district, and the defendant had during his absence performed rajekaria in respect of certain lauds mortgaged to him by such party ; Held, 1. that the performance of this duty did not in effect give any legal title ; and 2. that such Fining » party to a luit. liffi Judicata. Donation-— Kandian Law. Judgment. Preseriptioa. Performiince of Ritjekana. 13^8. 18 1 A'.teence. PlfS K~. vidian. I'enal Law. Couij^'^-'a-i'^ii- Chikli-cn— Sliai'es of. KcTniitieration— Kevciiue paddy. performance could not be considered as an argu- m-iit against the supposition that the defendant hac4 held in the character of mortgagee, for such an argument could only have force where the alleged mortgagor had been present and could perform it himself. The possession of the de- fendant, being thus reduced to that of a mortga- gee, was not such as to convey -a legal title by pre- scription.— Ceia V. Mabokka, Gov. Ag. Matelle, (M.) 41. — In Appeal, the case should be considered open to revision on both sides ; and the Supreme Court is bound to make any amendment which Justice seeins to req^lire, though not asked for by the party for whose benefit it is made. — No. 192, Gov. Ag. Maturatte, (M.) Nov. 30, (M. E. N.) 42.— The Proclamation of 14. January 1826 is a penal proclamation, and ought to be construed strictly. Before therefore a decree of Confisca- tion can be allowed to operate against a partj^, it must appear beyond all doubt that he himself has been personally concerned in a fictitious transfer of land for the purpose of evading the tax or duty on the land.- — No. &52, Gov. Ag. Madde- icelletenne, (M.) 43. — The fact of a mother having given either money or land to all her children except one, (to whom she had agreed to surrender her rights, provided he should succeed in obtaining the re- storation of certain property from the king of Kandy,) was held to be a strong circumstance to shew that she considered him provided for by the land which he had recovered. — No. 379, Gov. Ag. Madewellefenne, (M.) 44.— The 29th clause of the Proclamation of 21. November 1818, gives the inferior Chiefs an absolute right in a twentieth share of Revenue Paddy as compensation for services; but this right, like every other claim for remuneration can only be supported by first showing that the services have been duly and faithfiJly performed. —No. 1386, Gov. Ag. Komegalle, (M.) [9] ISSS. December 2, (M. E. N.) 45. — Where no reason is shewn in the Petition of Appeal or at the hearing why any fresh evi- dence which the appellant proposes to adduce might not have been brought forward in the first instance, he is not entitled to a New Trial. — No. 9414, D. C. l 1834, February 3. 62. — A Buddliist Priest is incapable, on ac- count of his priesthood, of possessing land (or of Bcquiring a prescriptive right thereto,) unless in trust for some Temple — i. e. a Wihare, not a mere Pavsellate living. — No. 5980, Jud. Ag. Ratna- jioora, (M.) Feb. 5. 63. — Marriage in Leega divests the wife of all qright of inheritance to the property of her parents. — No. 6i)3y, D. C. Eatnapoora, (M.) Feb. 6. 64. — "When one party has a bill of sale in his name, he is to be considered prima facie the owner of the property, and it is for the opposite party to shew that he is not, rather than for the plaintiff to be called on to prove that he is, the owner.— No. 3470, D. 0. Pantura, (M.) April 2, (M. E. N.) 65. — Payment to the defenda,nt's Accountant is in point of Law payment to the defendant, and the plaintiff is relieved from further proof. — No. 13046, D. C. Negombo, (M.) 66. — The foundation; pf the plea of Prescrip- tion, as regards alleged debts, is the presumptipn of payment which the Law raises after a' certain lapse of time ; and which presumption is always subject to be repelled by any promise of payment or other act by the defendant inconsistent with the idea of pavment, within the time prescribed. —No. 14026, D. C. GQ.lle, (M.) April 30, (M. E. N.) 67.^— Where the cause of action arose within the District, the plaintiff is equally entitled to sue in the Court of that district, as if the defendant were resident within that district. — No. 2099, D. C. Jaffna, (M.) J 834. Baddhist Priest — Property. Marriage im Veega. Prima-facit title. Payment— !■ Agent. Prescription. JarisdiclioB. 18S4. Notice — Service of. Eegulatioii of Frauds. Guarantee. Decree — Contempt. Attempt — Intention. Confiscation- Fictitious Transfer. [14] 68. — Leaving a Notice of Trial at tte last plac» of abode of the defendant, is sufficient service ; and the Court may proceed to hear the case ex parte.— 1^0. 1497, D. 0. Colombo, (M.) 69.— The Reg. No. 4 of 1817, (concerning Frauds and Perjuries) is intended to prevent cre- ditors from fixing debts, which they consider des- perate as regards their original debtors, on solvent persons, unless the guarantee of such solvent per- sons has been reduced to writing. "VMiere at a sale of goods by the plaintiff to the defendant, the latter had given an undertaking (not in writing) to pay the value thereof to N. 0. a third party, to whom the plaintiff was indebted ; Held that this was only a mode of payment ; and that though th« Reg. would have been a bar to an action by N. C. against the defendant upon such unwritten un- dertaking, it was no answer to an action by the plaintiff against the defendant for the value of the goods.— No. 11850, D. 0. Colmnho, (M.) 70. — If property already decided by both Courts to belong to the plaintiff should be again claimed by tlie defendant, or by any person act- ing in his behalf, such claim must necessarily be considered a contempt both of the Supreme Court and of the Court below.— No. 12029, D. C. Co- lombo, (M.) May 3, (M. R. N.) 71. — The mere intention to land cargo does not amount to an attempt at lauding under the Reg. (No. 9 of 1825 ?— )— No. 2106, D. C. Jaffnapa- tam, (M.) 72. — As to Confiscation under cl. 4 of the Procl. of 14th January 1S2B, — the former part of thia clause contemplates a person (not the Headman)- being concerned in the illegal transfer to the head-' man. And no prosecution can be sustained on the second part of this clause, without first shew- ing distinctly that the land belonged to some cither person, and that the defendant as headman was concerned in taking the land upon the ficti- tious transfer. — Govt. v. MettewilU O^ah, Gov, Ag. Matura, (R.) [15] 1834. Deega. Administi-atioa to Widow. Evidence in a former suit. 73. — A marriage in Leega does not divest the wife of her inheritance where she has always kept up a close connexion with her father's honse; and this independantly of the state of destitution in which she may be, and which of itself would entitle her to some assistance from the estate of her deceased parents. — No. 690, D. C. Madewelletenne, (M.) 74. — A District Judge may, if he entertains doubts of the safety of leaving an estate under the sole control of the Widow, join such other persons in the administration as may appear right and fitting to the District Court. — No. 1, D. 0. ^mblangodde, (M.) May 14, (M. E. N.) 75. — Evidence given in one case is not, strictly speaking, admissible in another ; every defendant having a right to hear the evidence of every wit- ness adduced against him. — Nos. 1835, 6, 7, & 8, D. C. Colombo, (M.) 76. — A District Court is justified in dismissing Administration- a suit on the ground that the plaintiff had not ^^™' °^"~" taken Administration to the estate of the party under whom he claims. — No. 14333, D. C. Cal- tu/ra, (M.) 77. — A plaintiff should be allowed to adduce Presoiiption. evidence to take the case out of the scope of the Keg. (No. 13 of 1822, cl. 5), as for instance of part performance by the defendant within the term prescribed, payment of interest, acknowledgment of the debt being still due, or any other act or expression by the defendant within that period, which would rebut the presumption of payment on which the defence of prescription is founded. — No. 216, D. C. CaUma,{M.) 78. — A Eeplication would be unnecessary. Pleading— where a general denial has been entered. Though Eeplication. the 7th Rule makes no limitation of the right of reply, still a Replication, if utterly useless, may be rejected as irrelevant, under the 8th Rule. — Ko. 296, D. C. Fantwa^fM..) m?4'. [16] Marriage in Beena. lUghts of the Wife- Mistaken claim. Marriage — not set aside. Pawn — Forfeitvire of. Confiscation of Temple. Gifts by Priest. @0Temment — ^ejudice to. Conditions of Sale. Ma>/ 17, (M. N.). 79. — Though a woman married in Beena may have mistaken the grounds of her right (viz. by inheritance), and rested her claim on a gift from her mother, there is no reason why that mistake should prevent her real claim from being enforced. —No. 706, D. C. Kandy, (M.) May 21, (M. E. N.) ■80. — A marriage if not set aside in the life-timfe of the parties, cannot be afterwards interfered with or pronounced void. — No. 343, D. C. JVe-- gomho, (K.) 81.— The Reg. No. 6 of 1806, cl. 15, prohibit* Pawning without the presence of a Police OfSaer ; but does not declare that the owner of the goods shall lose all right to recover them back. A par- ty infringing this provision, by pawning goods without the presence of the Officer, may render himself liable to punishment for that breach of the law ; but is entitled to recover th* goods on repayment. — No. 225, D. 0. Pantura, '(BI.) Jfay 24, (M. R. N.) 82. — The confiscation of a Temple and the consequent deprivation of the Priest being ad- mitted ; Held that such Priest had no legal pow- er to transfer his rights over the Temple, until his restoration : and consequently that of all gifts whether verbal or by deed, made by him, that which purports to have been made immediately after such restoration is the only one which he was qualified or authorized to execute, — No. 523, Jud. Com. Kandij, (M.) 83.— The probability of prejudice to Govern^ ment is no reason why a Court should hesitate to do justice between parties. — Qonigoda v. Woi* haraJegoda, Jud. Com. Kandy, (M.) May 31, (M. R.) 84. — A condition that in the event of any pra- fit arising from a resale, the purchaser (i". e. the person on whose default such resale takes place,) should not be entitled to such profit, thouo'h he would be liable for any deficiency, may be a very [17] 1S34. bard condition : but still, if a pai'ty becomes a purchaser with the knowledge that such condition exists, or with the means of obtaining that know- ledge, if he chooses to do so, he must be bound by it.— No. 857, Prov. C. Jaffnapatam, (M.) June 4, (M. N.) 85. — Conditions entered into in respect of Government rent, form of themselves a contract merely between the Government and the Govern- ment-renters, and are not binding on third par- ties, unless adopted by them. Where such conditions had been adopted by the defendant, one of which was " to pay the one- tenth share according to Government condition," the plaintiff was A«?(f entitled to compensation, not merely according to the then value of paddy, but at the highest rate at which paddy had been sold at the place in question between the time of harvest and the time of actual payment. —So. 128, D. C. Chavagacherry, (M.) 86. — Three Assessors were held absolutely in- dispensable to the existence of a District Court under the Chlarter. — No. 5159, D. C. Badulla, (M.) June 11, (M. E. N.) 87. — The Creditors of a deceased debtor are entitled to priority over his Heirs. — No. 14136, S. M. Caltura, (M.) 88.— There is nothing illegal in a Proctor acting as a Fiscal's Deputy; though it would be well that he should not act in that double capa-, city, in a case in which he is concerned for one of the parties. — Ibid. 89.— A Proctor is a competent witness for his client : and it is for the Court to say how far his credit is affected by the situation in which he stands towards the party. — Ihid. July 2, (R. N.) 90. — A sentence once passed cannot be altered or interfered with, unless by consent of the parties or through appeal. The rule 38 (sec. 1 of the Hules and Orders) does perhaps carry the power Conditions- Third Parties. Compensation- Calculation of. Assessors. Priority of Creditors, Proctoi^— acting as Fiscal's Deputy. Proctor — a competent Witness. Sentence— cannot be altered. ISSi. [18] Selief. Conflicting Evidence. fleading- Idbel. Stamp — " Money.' Beference to Arbitration. of District Courts beyond that which was formerly inherent, through the Government Proclamation of the 22. January 1801, in Sitting Magistrates and Provincial Courts ; hut it gives no authority to District Courts to amead their sentences given upon evidence offered and heard : and indeed it may be a question whether it really authorizes more than what was already authorized by cl. 29 of the Proclamation. — No. 238, D. C. Chavaga' cherry, (R.) 91. — EeKef in cases of manifest Mistake is of two kinds. Judicial or Sovereign. Judicial relief is granted in the Court itself in which the suit is depending ; and hence it can amend error in pleading, admit further evidence, and do other passing acts, such as are provided for in cl. 23 of the Proclamation of the 22. January 1801. Sovereign relief is necessary in the resolution of contracts on the ground of Fraud, Fear, &c. ; and this must be administered through appeal to a higher tribunal. — Ihid. July 9, (R. N.) 92. — In cases of conflicting evidence the Supreme Court is rarely disposed to question the judgment of the Court below as to the relative degrees of credit due to the Witnesses. — No. 21, B. C. WeUHffame, (N.) July 23, (M. R. N.) 93. — The claim of the plaintiff should always appear at the commencement of the proceedings, either in the shape of a written libel, or of his distinct viva voce examination. — No. 7728, D. 0. Amhlangodde, (M.) 94. — A conviction for a breach of the Stamp Regulation (No. 4 of 1827,) was set aside on the ground that the Regulation only made it penal to take receipts for Money without stamp, but not receipts for other things. — No. 94, D. C. Chava- gacherry, (M.) July 30, (M. N.) 95. — V^liere the Court below had referred a matter to Gomiiussiouers without Any asseut of the [19] 188*. parties either to the adoption of that course as a final mode of decision, or to the nomination of the two persons chosen ; the Supreme Court ordered the case to be referred back that evidence might be taken on both sides on the points at issue. — *' Where the parties bind themselves voluntarily to «ubmit matters in dispute to sirbitration and to abide by the award made, there can be no objec- tion to this mode of deciding the case ; but in th« present instance theOourt below merely' delegated to other persons the duties which ought to have been performed by itself." — No. 91, D. 0. Tentno' ratchy, (M.) 96. — The word " Nonsuit" isonly applicable to tlie dismissal of the plaintiff's claim, and is never appUed to a judgment given against a defendant. <^No. 2989, D. C. GaUe, (M.) Awgvst 6, . C. Matura, (N.) Assent of the Parties. Nonsuit. Money psid. Decree- Third par^. Demurrer. Stamp- Wrong claet. IRSl. [20} Frauds and " Peijuries. " Contract in writing, signed, &c." Stamp. Agreement to Many. Penalty. Prescription — Adverse title. Aug. 27, (M. R. N.) 101._0n the 21st March 1832, the plaintiff addressed a letter to the defendant, offering bim his gardens for sale for Rds. 800, and re- questing him to get surveys prepared. On the 27th March the Surveyor made his surveys, in .which the defendant was declared the purchaser, the plaintiff being present, stating that he had sold the gardens to the defendant, and desiring the Surveyor to insert the defendant's name in the survey ; Held that the letter, and the acts of survey, coupled with the evidence of the Sur- veyor, amounted to a " contract in writing signed by a person lawfully authorized by the parties," under the Reg. No. 4 of 1817.— No. 109, D. C. Caltura, (M.) 102.— The Stamp Ord. No. 4 of 1827, (Table E,) exempts "agreements and contracts to marry" from . stamp-duty. Held 1, that though this exemption was probably worded with reference to the parties themselves contracting the marriage, it must be extended to parents and guardians in : those districts in which marriage -contracts are always entered into between the parents, &c., on account of the tender age at which children are betrothed to each other ; 2, that a penalty of Rds. 300 by which the parties had mutually bound themselves to the performance of the con- tract should not be considered protected by thia exemption ; for, if the parties introduce a penal clause into such contracts they should use the stamp necessary for such obligations : and 3^ that as this stamp was insufficient to cover an obli- gation of that amount, the penalty could not be recovered, but that the instrument should be con- sidered as a valid contract without penalty for the marriage of the children. — No. 604, D. C. Trin- comalie, (M.) 103.^ The meaning of the expression "adverse title" is not that the title must in express terms negative that of the claimant (for this would be impossible) ; but that the right of the possessor should not be derived from that of the claimant as in the case of a tenant holding from his land- [21] }8Si. lord, — or dependant on that of the ckimant, aj? when a person is allowed to occupy by permissiun from the real owner, — or collateral to it, as in the case of one of two joint-tenants ; — in other .words, the possession must be such as is incon- sistent with the probability of any just right or title on the part of the claimant. — No. 1271, D. C. CMlaw, (M.) 104. — The ])laintift's witnesses being absent, and the plaintiff declining to pay the expenses of the defendant's witnesses ; Held that the District Court was justified in dismissing the suit ; but the case was referred back for re-hearing, on the ground that the summonses had not been served on the absent witnesses ; and that their absence might not therefore be attributable to the fault of the plaintiff.— No. 1270, D. C. Futlam, (M.) ■ 106. — Where the plaintiff's title to sue as Ad- ministrator was not called in question by the de- fendant, and might from the tenor of the plead- ings have been almost taken for granted ; yet the objection having been raised at the trial ; Held that the plaintiif ought not to have been taken by surprise, and must therefore be allowed to supply the deficient evidence on that point. — No. 114b«, D. 0. Caltura, (N.) Septemher 3. 106. — The mere fact of having delivered a Promissory Note to the plaintiff, is no answer to an action, unless the defendant could also prove either that the money had been ultimately paid to the plaintiff on account of the defendant, or that the plaintiff ha,d received the note expressly in satisfaction of the debt. — No. 512, D. C. Negombo, (M.) 107. — Where a debtor had granted a Bond, by which he bound himself, in default of payment within three months, to give possession of certain lands to the plaintiff, to be held in lieu of inter- est, and to be redeemed by payment of the prin- cipal simi ; Held that such Bond should have preference over a subsequent Sale, which must be eansidered subject to the previous incumbrance. Dismissal — Absence of Witnesses. Title to sue— pltaileJ, but not proved. Promissory Note- Payment by delivery of. Mortgage — Priority of, oveaf subsequent sale. 1834. [22 J Kemedy of Purchaser. Seeertion of Wife- Amount and mode of Uointenimce. Conditions — Overplus upon £e-«ale. Insanity— Erideuce of. Service of Pro- cess. •B to whicTi it was the duty of the purchaser to make enquiry. If the purchaser was defrauded by the seller, he should have sought his remedy against him, and not against the plaintiff, who was no party to, nor consulted about, the sale. — No. 3149, U. C. Amblangodde, (M.) 108. — \Miere a Wife had sued her Husband for having abandoned her and her children, and the District Court had directed "that the wife should be quieted in the possession of the garden and house in which she then resided, &c." — Held that the decree went further than the evidenco (which was very weak as to the wife's possession) or the relative position of the parties would war- rant. The Judgment was therefore modified as follows : — " that the defendant should be compelled to support the plaintiff as his wife and the mother of his children, and to allow her and them to reside in his house : and that if he should refusa or neglect so to do, the District Court, on com- plaint of the plaintiff, should then award her a reasonable proportion of the defendant's property: or, if he should desert and abandon his said wife- and children, the plaintiff should in that case be put and maintained in the undisturbed possession of the estate, mentioned in the decree of the Dis- trict Court." — No. 64, D C. Ratnapoora, (M.) 109. — Where a previous purchaser of lands which had subsequently been re-sold at his risk, was aware of the conditions under which he had become a purchaser, the overplus arising from sucli- re-sale was held to be due, not to him, but, under the terms of the conditions, to the Government, as vendor. — No. 857, Pr. 0. JaffnajpcOam, (M.) Sept. 6, (M. R.) 110. — As the question of Insanity, except in very decided cases, is a matter of mere opinion the naked expression of such opinion is not enti- tled to any great weight, unless followed by an explanation of the facts or circumstances on which it is founded. — No. 1448, D. 0. Islands, (M.) Sept. 17, (M. R.) 111. — Service ot a Notice (under rule 13 of sec. 1, Rules and Orders) at th« house of the defend- ' [23} 1834. ant, when lie could not be found so 'as to he sevr- ed personally, was held perfectly good service : but held irregular for the following reasons : — 1, that the man named Hendrick Appoo (for it did not appear whether he was a peon or not,) only reported that a copy of the notice had been left at the house ; whereas the officer who actually left it should sicear or declare that fact, as having been done by himself; and 2, that though a apace was left for the name of the Deputy Fiscal, the signature of that officer did not appear. But again this irregularity was held to have been waived ; because the Proctor for the defendant having shewn by his petition of appeal that the or- der had reached either himself or his client, (which is the only point really material as regards the information to be conveyed to the defendant,) the object of the order had been fully attained. It is absolutely necessary that the returns to all process and orders of the District Courts should be regularly made, as given in the Forms (sec. 1, Sules and Orders,) but which must of course be varied according to the circumstances under "which the service was really made or attempted to be made.— No. 460, D. C. Caltura, (M.) Sept. 24, (M. R.) 112. — WTiere a widow, claiming to sue as a pauper, was proved to be possessed of lands above the prescribed value, but it appeared that her children were entitled to certain shares therefrom, the value of which, if deducted, would have reduced the property below the amount pre- Bcribed ; Seld that as the children were to be presumed to be equally entitled to any shares which their mother might recover in the action, they ought either to be made parties to the action, or, being interested in the result, should contribute towards the expense of it. The per- mission to sue as pauper was therefore with* held. Held also, that the permission ought not to be granted to any one who does not come into Court free from all suspicion of fraud or decep- tion ; and that as the party had, in her statement, concealed the fact of her being entitled to land of any kind, she was not entitled to the indulgence aoiierht for.^No. 220. D. C. Amblangodde, (M.) Forms of Eetvirns. Suit in forma, pauperii. Joint-oifttcti, Concealinent of property. ISU. [24] Absence through illness. Pearl-Fishery — Failure of Consideration. Eight to a Eemi.ssion of the Price. Condition not implied. Dowry-property — not liable to httsband'B debts. October 8, (M. R.) 113. — If a party is too ill to attend Court on the day of trial, it is his duty to send some person to represent and prove that circumstance to the satisfaction of the District Judge, or to employ a Proctor to condiict his case. And on these grounds, the Supreme Court refused to set aside a decree pronounced against the appellant. — No. 2161, D. C. Colombo, S, (M.) Oct. 15, (M. R. N.) 114. — The defendant, on whom the Govern- ment had bestowed a charity or temple-boat for the ensuing pearl-fishery, agreed, by a deed, in consideration of £300, to transfer to the plaintiff the right of fishing this boat, (5 days' regular fish- ing being allowed by Government,) according to the price at which Government should sell its other boats, and after deducting that price to repay the balance of the £300 with interest. Owing how- ever to the boat not being provided with the necessary licence on the first day, that day's fishing was lost to the plaintiff, who brought au action to recover back one-fifth of the price ; Held that the plaintiff was entitled to recover. After the fishing was concluded, the result having turned out less profitable than had been anticipated, the Government granted a remission to those who had purchased boats, of one-third of the price; which remission, also the plaintiff claimed : but held that the Court could not in- troduce by implication a condition which the par- ties should have expressed in the agreement. The subsequent remission made by Government wag purely arbitrary, both as to its being made at all, and, if' made, as to its amount ; and the defend- ant could not be compelled to the performance, as a duty legally incumbent on him, of that which' was a mere voluntary act of indulgence on the part of the Government. — No. 1967, D. Co- lombo, N, (M.) 115. By the customary law of the Malabar Districts, dowry-property and the rents and pro- fits arising therefrom, are not ansv,-erable for th* [26] 1631. Imt-band'e debts, and need nottlierefore be includ- ed in the statement or Bchedule given in by J;he insolvent linsband.— No. 2089, D. 0. Jaffna, (M.) Oct. 17, (M. R.) 116. — y^liere a bond expressed an amount to have been " now received in cash," and the evi- dence as to the consideration was to the effect that the plaintiff's brother had previously assign^ ed to the plaintiff a debt due from the defendant for which the defendant afterwards granted to the plaintiff the bond in question; Heidi, that the variance was not necessarily fatal to the plain- tiff's claim ; and 2, that (supposinfjf the defend- ant to have granted tiie bond through the per- suasion of the plaintiffs brother,) the debt thus surrendered would form a perfectly valid consider- ation for the bond. — No. 115, D. 0. Jaffna, (M.) 117. — Double costs as taxed in England are the amount of the taxed costs and half that amount added.— No. 8409, D. C. Walligame, (M.) 118. — The Rules of Practice do not allow the Court to dispense with further evidence, except where it is considered that the point in question is already established to the satisfaction of the €ourt.— No. 3897, D. C. Jaffna, (M.) Oct. 22, (M. R. N.) 119. — The objection that a mortgage-bond has not been passed before a Notary, should be taken when the bond is offered in evidence. Where the judgment has been acquiesced in by the defend- ant, or, if appealed against, has been affirmed, it is too late for him or any other party to object to any alleged irregularity in the instrum^ent on which the judgment was founded. — No. 906, D. C. CMaw, (M.) 120. — Though a District Court may in the first instance have directed execution to issue only SigaiBst the property of the defendant, it is not by any means precluded from subsequently granting execution against the defendant's person, if it see sufficient reason nnder the particular circum* stances of the case 00 to do.— No. 1201, D. 0. Colombo, N, (N.) Consideration. Varianoe. Double costs. Evidence — dispensing witli. Regulation oC Frauds. Iks Judicata, Execution against person. ISSi. [26] Bocuments — Proof of. Costs — Several ili;fencl- ants. Res Judicata. ?riority of Deeds. Delivery. 121 . — No documents, nor c-venropies of 'lecrees, can be received as evidence, inilc -a regularly priiv- ed and Biie\\n to relate to the oiject in dispute.— No. 3ti5, D. C. CJulam, (?,L) Oct. 20, (M. E. N.) 122. — Where one of five defendants was the sole cause of an action, the Supreme Court hoM that all the costs incurred in the case should be borne by him alone. — No. 1, D. C. Pantura, (M.) Novemler 19, (M. N.) 123. — Where it appeared that a former suit, which had been brought against the same defend- ants and for the same piece of land, had been dis- missed ; Held that such dismissal was conclusive against a second action. If all the ■witnesses of the plaintiff had not been heard in the former case, that would have furnished a good ground of appeal against that decision ; but could afford no reason for a fresh action. — No. 3369, D. 0. Pan- tura, (M.) Nov. 26, (K. N.) 124. — Although with regard to Wills the rule of Law is clear that the last should prevail, the converse, in general, holds with respect to deeds among v.'liich, cffi.erts jjarihus, the first is entitled to preference. But in order to be entitled to this preference, the deed must not only be signed, sealed and attested, but it must also be delivered: and so essential a requisite is deliver}', that of several deeds, the one first delivered will prevail, even though, in point of date, it be last. Where there was no direct evidence to shew when the deed had been delivered ; Held that it mi,i,'ht fairly and le.;ully be presumed, from a party's long possession, that the delivery took plaop immediately alter the execution ; and such a deed would necessarily take precedence of another, which, though prior in date, was closiged with a condition by wliicii the dehvery of if was postponed to a period subsequent to the presum- ed delivery of the later deed. — No. 10157, D, C. Seven Corles, (N.) [27] ]83i. December 3, (M. N.) 125. — Where upon an application for Admi- nistration by tlie sons of tlie intestate, the oppo- nent disputed thflv legitimacy, Held 1, that the Regulation No. 9 of 1822 could not be insisted upon as necessary for the establishment of the parent's marriage, the provisions of that Eegula- tion beinij prospective from the 1st August 1822, previously to which the applicants were presum- ed to have been born ; and 2, that it was incum- bent on the applicants to offer some evidence either of their mother ha^^ng been married to their father, or of her having been treated by him, and considered by the neighbours, as his ■wife. This evidence having been offered,— and the District Court might safely content itself with slight evidence to this point,' — the presumption of Law would be that the applicants were the issue of that lawful connexion, unless the opponent were in a situation to offer positive evidence of their having been born out of wedlock. — No. Vdi2, D. C. Chilctw, (M.) Lee. 5, (M. E. N.) 126. — YroTai^eThesawalame (appended to Van Leeuwen's Comm. p. 763, 4,) it would seem that in the Northern Province the right of Pre-emp- tion only existed where the party claiming it held a mortgage or some other claim upon the land. At all events, it seems the height of injustice that this right should be enforced, except on payment of the highest price which any other person would offer for the land. The right must be founded on the contiguity of the land to be sold to that already possessed by the party seeking to exercise the ri.L'ht. To him therefore the land must be more valuable than to others, and he oiight consequently to pay the best price which could be got for it.— No. 210, D. C. Tenmoratehj, (M.) 127. — Although, by the Stamp Regulation, a Receipt is inadmissible in evidence unless duly stamped, there is nothing to preclude a party from proviu ; :in .dl-iged pa , merit hy less decisive e\'idence. — xS'o. IbbJ, D. 0. JbatUuaioa, (N.) Evidence ot Marriage. Eight of Pre- emption, Eeceipt— 8tamp. 1834. [28] Heintiff's Ven- dor. pauper — Certificate of Proctor. Tuzuuiary pay- ment. Title l)y Pre- scription. Creilitor — when bound to retvrni a Pledge. Dec. 10. 128 —A plaintiff is entitled to have liis vendor Bummoned as a co-defendant to ^^•arrant and defend his title to the prcpejity m dispute, or to call him as a witness to prove his right to dispose of the properly ; but the former is the more preferable course as in the event of the vendor's failure to make out his title, he may be decreed to repay to the plaintiff the amount of his purchase money -—No. 2194, D. C. Battkaloa, (N.) Bee. 17, (M. B. N.) 129. — A Proctor, to whom the petition to be allowed to defend in forma pauperis had bees referred, having certified that the petitioner had not, in his opinion, a g6od ground of defence ; Held that the District Court was bound by the Eules of Practice, to reject the petition. — No^ 414, D. C. Wadi7)ioratchij, (M.) Dec. 22, (M. N.) 130. — Where a man has paid money voluntari- ly, he cannot recover it back merely on the ground that the person receiving it could not have enforc- ed hia claim in a Court of Law. — No. 58, D. C. Hamhantotte, (M.) 131. — A title acquired by Prescription would not be affected by any irregularity in the instru- ment under which the claimant first obtained possession. — No. 1953, D. C. Idands, (M.) 132. — A creditor is not bound to deliver up a pledge until the whole of the money advanced by him upon it has been paid. He is therefore justified in refusing to accept the tender of a Bmallar amount, or to deliver up the pledge ; and the costs of a suit brought by the debtor for the recovery of the pledge should fall exclusively oa himself. It would seem sufficiently hard on a creditor that he should have been kept out of his money for several years without interest or any advantage, except the use of the thing pledged. But on this point the Supreme Court felt bound to recognize tlie custom stated by the Assessors [29] as I'cgnlatmg this description of dealin.s; in the District oi'Oiiilaw.— No. 1823, D. 0. Chilaw, (SI.) 133. — A dismissal or non-suit in a former case is not conclusive against the plaintiff, if he could, iu a subsequent action, shew by evidence not in his possession at the former trial, that at the time {ex-, gr.) of tlie alleged trespass he was the legal proprietor of the land. A receipt of the pm'oha?p-money paid for such land, dated two years after tlie cause of acticn had accrued, is not sufficient evidence that the plain- tiff was the legal owner of the land at the time the defendant committed the act complained of. — ■ No. 84, D. C. Caltura, (M.) 134. — EeUl, that though the word "Bond" had been used by the parties in their pleadings, yet, if the instrument was, in truth, a mere agreement, it would be governed by the prescription of three years : and 2, that the nature of the contract, by which the defendant had engaged to supply to the plaintiff a certain quantity of areca-nuts within twenty days from the date, made it improbable that the plaintiff would have allowed six years to elapse after the defendant's default, without su- ing for it.— No. 216, D. C. Caltura, (M.) Dec. 29, (M. R. N.) 135. — The Charter, in directing that the deci- sions or awards of Gansahes should be respected, never contemplated a party having recourse to that jurisdiction, after proceedings had been instituted before a more regular tribunal. The parties should resort to that mode of decision, before the com- mencement of au action in the District Court. — No. 1780, D. C. CMlaw, (M.) Dec. 31, (M. R. N.) 136. — If the defendant were resident in a re- mote district, it would be hard upon him to be sued in another court merely because one item of a long aecoimt had its origin within its jurisdic- tion ; but where the defendant resides in an ad- joining district, it can be no hardship on him to fee ealled' upon to aHswer. — ^No. 1434-, D. C. Galle-. iSii. Dismissal — Nonsuit. Evidence of ownership — " Bond"— Agreement. Prescription. Jurisdiction of Gansabes. Jurisdiction-— Besideuce. IBU. ; i'ftr the whole voyage. en Parole engage- ment of Sea- men. ftesoriptlon — SeiTJoes. Previous de- mand. Beasonable time for per- formance. [80] 137. The ftefpnclantp (Seamen) tad aarreed for av!>',ao-e froiii IJinnbay to MadvfiH or < 'iiluiitta ; and thiT, was held to include detention for _ nef.es- sary repairs. In refusing therefore to remain with the vessel during such detention, and to proceed with her afterwards, the defendants were guilty of a breach of their engagement, for which they would be liable in damages, if the Master could shew that by their desertion he had really sustain- ed a loss. The Master having brought his action to comw pel the Seamen, by the authority of the Conrt, to return to the vessel ; ffeld that it was necessary that he should have complied with the. Act of Parliament which permits the exercise of such - authority, by having had' his contract with the seamen reduced to writing. Not having done so, he could only avail himself of the ordinary action for damages.-^PowZier v. Cader, D. C. GaJle, (M.) 138. — The Proclamation of the 18th Septem- ber 1819 bars actions for the enforcement of ser- vices or to recover possession of land for refusal to perform them, where it appears that the party claiming them has allowed ten years to run with- out demanding th'e performance of them. — No. 7190, D. C. Ratnapoora, (M.) 139.- — lu an action on a bond for money bor- rowed by the defendants, who thereby promised that certain deeds about to be executed in their favor should be delivered to the plaintiff, who should then receive a mortgage for the amount due on this and other bonds, all of which should then be retu;rned ; Held 1, that no previous de- mand of performance was necessary on the, part of the plaintiff, because the defendants having un- dertaken to perform certain things, which, when performed, would have furnished a substitution of the bond in suit, it was for the defendiints to perform those engagements, if they wished to re- lieve themselves from their liability under the original bond ; and 2, that (no time having been fixed) three months and a half allowed a reason- able time for the performance of what was to be done.— No. 493, D. 0. CaH?jt,ra, (M.) 1835, January 14. 14:0. — In declaring a party to be confirmed in the possession of any land, the decree must be li- mited to his right as against the adversary in that particular suit, and cannot be taken as a^'ainst the rest of the world. — No. 6311, D. 0. Ratna- poora, (M.) Jan. 21. 141. — The evidence of a person to whom a matter has been referred for investigation may be of great weight ; but wiiere a party has given no consent to the matter being referred to the de- cision of an Arbitrator or Umpire, he cannot be bound by the award. — Kirihntcoemhoere v. Pare- coemhbre, Jud. Com. Kandy, (M.) Jan. 28. 142. — Where Security in Appeal had been re- ceived by the District Court, though the time prescribed had elapsed, it was presumed that it had been proved to the satisfaction of the District Court, according to rule 5 of section viii, that the omission was not imputable to any negligence on the part of the appellant ; and the Supreme Court therefore did not hesitate to receive the appeal.— JSTo. 1869, D. C. Chilaw, (M.) February 4. 143. — Where the defendant, by his answer, had admitted the plaintiff's claim, but it did not appear that he had tendered it previous to action; Held that the plaintiff might have had judgment for the same at once, and that all further pro- ceedings were unnecessary. It was therefore or- dered that tbe costs should be taxed against the defendant up to the time of filing answer inclu- sive, and those incurred subsequently to filing the answer, against the plaintiff. — No. 7S20, D. C. Batnapoora, (M.) ]R30. Decree — iThii'd parties. Reference to Arbitration. Consent of the parties. Security in Appeal. Tender Costs. nS35. Possession of deed. Minority. Necessaries. Temple-pro- pertj. Construction of deed. Condition im- plied. Donation — Grotrnd for Ee- vocation. Qualification for Office. [32] 144. — The poEPCssion of an inBtrumcrit by fhe plaintiff is a presumption against the jiaymcnc of the money due thereon, though certainly not con- clusive.— JSfo. 14516, D. 0. Caltura, (JI.) Feb. 7. 145. — If it can be proved that a party was open- ly engaged in trade, his minority would be no plea to an action : or if the money claimed agaiaist him v;ere advanced for the necessaries of life, either himself or his father is liable for the amount. The plea of Minority is a defence which should be admitted with some catition, lest it should be made the means of defeating a creditor of a debt justly due to him and incurred by the minor tinder circumstances which in justice ought to preclude his sheltering himself under a supposed incapacity to enter into contracts. — No. 864, D. C. Negombo, (M.) Feb. 11, (M. N.) 146. — 'V\Tiere a party (Francisco Caporede) had by deed " allowed the plaintiff the Temple at Uggahbodde, and authorised him to officiate there- in, whenever he, Francisco, should be unable to attend to it, or after his death ; taldng charge of the said Temple together -with the things requir- ed for the office of Caporale; Held 1, that this was not a transfer of the property of the Temple, but merely an authority to the plaintiff to officiate at, and take charge of the Temple as Francisco's deputy in case of his illness, or as his successor in case of his death ; 2, that to the enjoyment of these pri\ileges, one condition should be consider- ed as annexed, because' it was essentially necessary to such enjoyment, viz., that the plaintiff should qualify him.siJf to perform the duties of his office ; and 3, that even if tke deed were to be con- sidered as a donatio inter vivos, the non-fulfilment of this necessarily implied condition, would have furnished the donor with a sufficient ground of revocation.— No. 640, D. C. Caltnra, (M.) 147. — Where it was contended that a party (defendant) was incapable of succeeding to the office of Caporale, on the ground that he was [33] T83S. Insolvent — may sue, when. ilesoended from a female branch of ib.e family of Cannot be ques- the original Caporale ; the Supreme Court, with- Woned, when. out entering into that question, held that, as it appeared that the plaintiff, not being himself self qualified to act as Caporale, had agreed with the defendant that the latter should do the duties, he could not be permitted to argue that the defend- ant was legally disqualified from performing rites ■which the plaintiff had himself employed him to perform. — Ihid. Feh. 20, (M. R. N.) 148. — The rights of an Insolvent pass to his creditors on his receiving the benefit of the In- solvent Act. But it would be hard and unjust towards him, if he were precluded, by the disin- chnation of his creditors to take proceedings, from recovering debts which may enable him to dis- charge a part of those for which his future pro- perty is still hable. "VSTiere a party who had been declared an in- solvent, had brought an action for recovering money ; which action was, on the objection being taken, dismissed ; the Supreme Court referred the case back to give the plaintiff an opportunity of giving notice of such aetion to his creditors or their le^al representatives, and of making them parties to the suit if they wished it. If they de- clined interfering, the plaintiff was to be allowed to continue tbe action, but only in- the nature of a trustee for his creditors, to whose use any sums recovered bv the plaintiff would be received and held by the Court.— No. 1875, D. C. AlUpoot, (M.) 149. — Where a party had the assistance of a» experienced Proctor, it was held that the plea of ignorance could not be received as a plea for not having summoned the necessary witnesses. — No. 1029, D. C. Jaffna, (M.) 150.— Where the District Court recommended a plaintiff " to recover the costs from the Odear," (on account 9f whose alleged neglect, the plaintiff had been obliged to abandon his suit ;) Held that this was not a decree by which the Odear Fgnoranee. Decree— Eecommenda- tion. 1830. t 34 ] could be compelled to pay the costs, without heing himself heard in a separate action. — No. 442, D. 0. Jaffna, (M.) Conviction. 151.— The plaintiff is bound to point out the CI. oftheKegn. q\^-^^q of the Regulation on which he asks for a conviction. — No. 1281,. R. v. Neyna Moliamadoe, D. C. Trincomalie, (M.) Prescription— 152. — In an action to recover certain lands, it Interruption of. appeared that the defendant had previously com- menced an action against the plaintiff for disturb- ance of his possession, which however he had not pressed to a conclusion ; but it was in evidence that the defendant had been in possession ever since his purchase, remaining in possession during such suit, and continuing in possession up to the pre- sent action ; — Held that the mere circumstance of the defendant having commenced the previous action which he did not press on, was not suffi- cient to bar the right of prescription which his possession had conferred upon him. — No. 1623, D. C. Batticaha, (M.) 15S. — Where a Husband had sold dowry-pro- perty under circumstances which shewed that the wife must have been cognizant of the trans- action, and the (Wife the parties being Mahome- dans) contended that she had given her husband no authority to dispose of it, and that by the Ma- homedan Law he had no right to dispose of it without such authority ; per Marshall C. J. — " If this were so, the Law would be made the in- strument of gross fraud, — a purpose to which no Code of Laws should ever be aUbwed to be appli- ed."— No. 2461, D. C. Batticaloa, (M.) 154. — If the title deeds of any property be in the hands of the owner, there is nothing to pre- vent a stranger, or any one not acquainted with the fact of a sequestration of the property, from buying the property or taldng it in mortgage; the possession of the muniments being prima- facie evidence of the right to sell or dispose of such property. — No. 2696, D. C. BatHmloa, A previona Action. Dowry- property — Sale by Hus- band, Title-deeds — Possession of. [35] 1835. 165. — Wliere an order had been made on the lOth Nov,, that notices sliould issue for the ap- pearance of the parties on the 24th of that month; and it appeared that the notice had not been issued to the plaintiff till the 17th, and not served On him till the 22nd ; Held that the time allowed to the plaintiff was insufficient ; and the case, which had been struck off on account of the plain- tiff's non-attendance, was ordered to be restored to the list, to be proceeded with in due course. —No. 569, D. 0. Caltura, (M.) Feb. 23, (M. E. N.) 156. — A will executed in the Isle of France must be transmitted to and proved in Ceylon for the property in this Island. — No. 6047, D. C. Kandy, (M.) 157. — On a question as to the preferent right to Administration between the Widow and the Brother of the deceased (the parties being Maho- medans), it was held, upon the opinion of Moor- ish Assessors, that if the widow had a son or two or more daughters, she would be entitled to administration in preference, the joint interest of the widow and children being greater than that of the brother ; but if no children or only one daugh- ter, the brother having a greater interest would have a preferabie claim. In this case, it appeared that the widow was married to her opponent, the brother of the deceased ; and, she complained of having suffered ill-treatment from the opponent ; — Held that such ill-treatment, if proved, would be of importance in the case ; first, as tending to show that the interest of the children would probably be neg- lected ; and secondly, as entitling the widow, (if administration should be granted to her husband,) to expect good security from him for her share. — No. 20, D. C. Matura, (M.) Feb. 25, (M. E. N.) 158. — Where the plaintiff claimed a share in certain lands, on the ground that he had possessed them jointly with the defendant ; but it appeared that the occupation by the plaintiff and his mother had only been by permission of the defendant; Service of Process. Insufficimt time. Foreign 'Will. Adminisfcratiott— ' Preferent right. Character of Applicant, Possession ^sy pei'miseion. 1833. [36 J Action against a late officer of a Templo. Transfer of Cases. H»ld that if this ground were allowed to be valid, every similar act of charity or kindness might be construed into an adverse possession by which a prescriptive title might be acquired. — No. 168, D. C. MatelU, (M.) March 5. 159. — In an action against a late Basnaike Nillvme, it was held that, in the absence of any evidence of fraud, peculation or embezzlement of the offerings or produce belonging to the Temple, the defendant, being out of office, was no longer responsible in respect of them to the plaintiff (an Unanse), who should consequently seek redress from the ofSciating Basnaike Nilleme. — No. 1776, D. C. Allipoot, (N.) 160. — Where it appeared that the District Judge of the South Court, who had previously been the District Judge of the North Court, had heard the whole of the evidence in a case pending in the latter Court, and had been removed to the former Court before he could enter up judgment, the Supreme Court, on the motion of the plaintiff and with consent of the defendant, ordered the case to be transferred to the South Court under the 36th clause of the Charter, on the ground that the case was ripe for decision and that justice would be more fully and effectually done, if it Were decided by the same Judge. — No. 11553 and No. 11353, D. 0. Colombo, N, (N.) Mar. 11. Reg. of Fratids— ' 161. — Where an agreement appeared to have notretrospeo- been made in 1815; ^«M that the Regulation against Frauds passed in 1817 could not apply. — No. 11876, D. 0. Caltura, (N.) Absence on the day of Trial. 162. — A case was remanded to the District Court for hearing, on condition that the appellant should prove, to the satisfaction of the District Judge, the assertion in his Petition of Appeal, viz. that he had attended the Court on the day fixed for the trial, but too late to be present when the case was called on.— No. 11456, D. C. CoiUra, [37] 183S. Mar. 25. 163. — A party who attempts to deceive or vaii- Icad the Court may be fined, under rule 29. sec. i. of the Rvks and Orders.—'iso. 13682, D. C. Galle, (N.) 164:. — A person who, by his own shewing, has been so grossly careless as to pay off a bond with- out obtaining either a receipt or the bond itself from the creditor, should be left to protect himself, as he best may, from the consequences of his own negligence and folly, in the event of his being sued for the amount of the bond ; but it would be a dangerous precedent, were so solemn an in- strument recoverable by legal process from the hands of the creditor upon the mere parole evi- dence of two witnesses as to payment, especially in a country where such evidence is too readily obtainable.— No. 4627, D. 0. Colombo, A'", (N.) Aj>ril 1, (il. ¥.) 165. — A case was remanded to the District Court in order that the sgn of the defendant, who appeared to have been the real purchaser at a Kscal's sale, might be summoned as a defendant, and that the case might be proceeded with and decided as if the son had been originally a party ; and it was field that, though it might be singular that the plaintiff should have made no opposition to the sale at the time, yet he was entitled to have his evidence heard. — No. 543, D. C. Caltura, (M.) 166. — Though a debt is admitted by the An- swer, yet if it be not accompanied by 'payment of the money into Court, the plaintiff is entitled to his costs.— No. 918, D. C. A^egomho, (M.) 167. — If, in consequence of the plaintiff's re- fusal or neglect to admit any facts stated in the defendant's Answer, evidence has become necessa- ry for the purpose of establishing those facts, and such facts appear to have been truly stated, the expenses incurred by the defendant's witnesses Bhould be borne by the plaintiff. — Ibid. 168. — Where the applicant for Administration hswi failed to tender security to the satisfaction of A party to a euiL may be fined. Proof of rayment. Action to recover Boivl from Creditor. A person subsequently joiDed as a defendant. Non-opposition at a Sale. Claim not tendered — Costs — Expenses of Witnesses. Administration— Security. 1835. Proctor — Absence of. rre^^cilption — ■ rrevious title. Variance. Defamation. [38] the District Court on the daj^ appointed for that purpose, the Supreme Court directed the admin- istration to be granted to some person better able and willing to perform the duties of that office. —No. 1923, D. C. Chilaw, (M.) 169. — No private interests ought to induce a Proctor to quit his post without either obtaining the consent of all parties to the postponement of such cases as might otherwise come on in his absence, or else transferinj? his cases with the consent of his respective clients to other hands. And where a case had been struck in consequence of the Proctor's absence, the Supreme Court or- dered it to be restored to the list, on payment by him of the costs incurred on the day of hearing by both parties.— No. 12241, D. C. Caltura, (M.) 170. — Evidence shewing that prior to the com- mencement of the term of prescription, the party had no just claim, does not aifect the prescriptive title.— No 183, D. C. Caltura, (N.) April 8, (M. N.) 171. — The libel stated that the debt in ques- tion had been " assigned by A. to the plaintiffs, in trust for the creditors of the said A ;" but the deed of assignment produced by the plaintiffs stated the transfer of the debt to have been made to the plaintiffs " to their own. proper use and benefit for ever," without referring to the cre- ditors or to any trust ,- — Held that the plaintiffs' claim should, on this ground, be dismissed ; for the deed, instead of supporting the plaintifTs claim, contradicted the character of trustees for the creditors, which was assigned to them by the libel.— No. 3740, D, C. Colombo, JST, (M.) 172. — Where the expression used by the de- fendant, though indecent and improper, yet ap- peared to have been uttered in a moment of heat and irritation, as mere idle abuse and ^vithout any intention of seriously imputing illegitimacy to the father of the plaintiff, or of reflecting on the cha- racter of that person or his family, the Supreme Court decreed each partv to pay his own costs. No. 767, D. C. Caltura, (M.) [39] lfi35. April 13. 173. — A Proctor who quits the District where- in he has practiced, leaving his business undone and unproyided for, renders himself liable for any damage which his clients may sustain by such de- reliction. Where however no damage has been sustained beyond loss of time, it is sufficient to order that the Proctor do account to his clients for the sums received by him on their account. — Pet. of W. D. Pauloe, (M.) May 2, (M. R. N.) 174. — The Law raises a contract by implica- tion only where the parties have failed to state their agreement in express terms. The defend- ant had promised the plaintiif, who was a Medi- cal Practitioner, that " if he succeeded in curing the defendant, he should be handsomely paid for his trouble" ; — Held that the plaintiff, having failed to cure the defendant, could not recover. A stipulation that the plaintiff should forfeit all remuneration in case he fails to cure the de- fendant, does not affect the validity of the con- tract ; and unless contrary to some positive law or order, is binding. — No. 3352, D. C. Colomho, S, (M.) 175. — A defendant is not absolutely precluded from applying to defend as a pauper, because the application had not been made in the first instance ; for misfortunes may befall a party during the progress of the suit, which may incapacitate him from pursuing his defence, though he may have been in circumstances to commence it in the or- dinary manner. — No. 6319, D. C. Colombo, S, (M.) 176. — Where the plaintiff sued an administra- trix for the funeral expences incurred by him ; and it appeared that the latter had already filed her final account ; Held that the lapse of time was a sufficient ground for dismissing the suit. — No. 1965, D. C. OMlaw, (M.) 177. — Certain property of C. M. had been s'e- qnestered by Government (under the Reg. No. 7 of 1809) in Nov. 1828. In Aug. 1832, C. M. Pi'octor neglecting his duty. Implieci Contract, Eemuneration of Medical Practitioner. Application to defend in fornui pauperis. SequCTtration— ■ Waiver ef. 1835. [40] Stamp — Registry of Cartoms, Evidence — Copies inadmissible. being dead, his administrator sold the property to the plaintiff hy a notarial deed attested by the Head-derk of the Cutchery, (who had previous- ly been Secretary to the Court which grantedtlre sequestration). Shortly after such sale, publica- tion was made of the property to satisfy the claim of the Government. — Held that the length of time suffered to elapse between the sequestration, and publication, the allowing the title deeds and keys to remain in the possession of C. BI., (which would always enable the possessor to hold him- self out to the world as the legal proprietor,) and the execution of the deed by the officer who, of all persons, must be supposed to have been best acquainted with the sequestration, if it had been matter of such notoriety (as was contended for by Government), must all be considered as amount- ing to a waiver on the part of Government or its officer to avail itself of the sequestration. — No. 2696, D. C. Batticaloa, (M.) 178. — On n, question as to the admissibility in evidence of a Cartom, it appeared that it had been the custom to enter the Cartonis themselves, the originals, in a public book kept by the Go- vernment Agent for that purpose, and that these entries had never been made on stamp ; — Held, as regards these entries, that it would be impossible to declare a stamp to be necessary without invali- dating the whole Registry of these instruments, — an injustice which would be so much the great- er, that the custodier of thsm was of all othors the most likely to object to the want of the requisite stamp, and whose acquiescence in these un- stamped entries must therefore have been the best assurance to the public that stamps were unneces- sary.— No. 6095, D. C. Jafna, (M.) See also Circuit Minutes, 9. July, 1834. 179. — In the foregoing case a Moorish Priest had stated in evidence that the original Cartom was a bare agreement for the marriage, and that before that agreement could be carried into effect, a copy should be taken on stamp; but Held tliat the recognition of such a doctrine would be subversive of a well-known and essentially useful rule of evidence, that a copy should never be t*!} 1S33. received in evidence where the original could be procured. — Ibid. 180. — In an action by the Government for the value of a certain quantity of paddy issued to the defendant by a Government store-keeper, the defendant disputed the claim on the ground that the store-keeper was not bound to issue the paddy, and that he ought not to have done so without the signature of the Government Agent ; — Held that this might possibly be true, but it did not by any means lessen the defendant's liabihty. The Servant may he wrong in dehvering the Master's property to another, but the person obtaining it would still be responsible for its value.— No. 2095, D. C. Trincomalie, (M.) 181. — It would be the height of injustice to deny a defendant credit for sums paid by him and received by the plaintiff or hie servants, merely because for some reason (whether good or bad is of no importance) it was not considered right to grant him receipts. If it was not intended to credit him with the payments, the sums paid should have been returned to him. — No. 1397, D. C. Trincomalie, (M.) 182. — The plaintiff appealed on the ground that she was not a party to certain former suits, — and literally speaking this was true ;— but as it appeared that her son had been a party to those suits, and his interests were identical with those of the plaintiff; Held that it was the same thing as if the parties were individually the same.— No. 1855, D. C. Kandy, (M.) May 6, (M. N.) 183. — Notes of Hand which do not contain any words importing the liberty of transfer to third parties (such as " or order," " or bearer", &c.) cannot be viewed in the light of negotiable in- strnments or bills of exchange by which the maker or drawer holds himself out as uncondition- ally liable to the holder, whoever he may be ; but must rather be considered as simple acknow- ledgments of debts due by the party granting them to tibe particular persons therein mentioned, Master and Servant — Contract with the Servant. Money paid ■without taking Receipts. Decree — ■when binding on Third Parties. Unnegotiable instruments. 18S5. [42] Dismissal- Nousuit. Aprilication to sue i't forma pi.">vcris — Former decree. Eecommenda- tiou to eue. Prescription of Judgments. Civil anfl Cri- minal sviit. Proetor'a costs- Two Answers. and, like any other debts, carrying with them, if transfered to third parties, the same condition and liabihty to objection which originally attached to them. And as the words " value received" would not preclude the plea of want of consideration as against the original creditors, neither can they as against a third party who has merely stepped in- to their situation.— No. 5232, D. 0. Kandy, (N.) 184. — A dismissal for want of sufficient proof is only in the nature of a non-suit, and will not bar the plaintiff from establishing his claim in another action. — No. 2U27, D. 0. Islands, (IM.) 185. — ^'^^lere there was a former decree against the plaintiff, which the District Court considered decisive of his claim ; Held that the Judge was right in rejecting his application to sue as a pau- per ; but that the party was still at liberty to commence his action in the ordinary way. — No. 445, D. 0. Walligame, (M.) 186. — It by no means follows that because a criminal prosecution against the same defendant has been dismissed, and the complainant has been recommended to bring a civil action, he must ne- cessarily succeed in the latter suit. — No. 87, D. C. Tenmoratchy , (M.) 187. — Judgments are not mentioned in the Eeg. No. 13 of 1822, (concerning Prescription,) nor do they fall within the intention of it. The only term that would bar a iudgment would be such a lapse of time as would form an irresistible presumption that it had been either satisfied or released.— No. 1096, D. C. Caltwra, (M.) 188. — Where a party has been punished cri- minally for a wi-ong committed, it ia discretion- ary with the Court whether it will entertain a ci- vil action for the same act or not. — No. 1035 D C. Galle, (M.) 189.— Where a Proctor filed an Answer for the first defendant, and the next day filed another Answer for the second defendant, in precisely the same words, he was disallowed both the stamp and his own fee for the second answer. A separate Answer can only be necessary where the defend- [43] 1835. ants make distinct and several defences. — No. 406, D. 0. Amhlangodde, (M.) 190.— Where the plaintiff sought to recover, Money p«M. among other sums, the amount of a debt which he had engaged to pay (but had not as yet paid) to a third person on behalf of the defendant ; Held that the demand was premature ; but in order to prevent unnecessary expense, the Su- preme Court ordered that when the plaintiff should have satisfied the debt, he should be allow- ed, on proof thereof, to have judgment entered up for it without a fresh action. — No. 6106, D. C. Kandi^, (M.) May 9, (M. R. N.) 191. — The Supreme Court, having consulted Separation — eight Moorish Assessors, transmitted the follow- fMlhometo^V ing as their opinion, for the guidance of the Dis- trict Court of Madewelletenne, in a case pending there : 1. That if a wife leave her husband of her own desire and contrary to his wishes, neither -she nor any one on her behalf can claim any re-* turn of the dowried property ; 2. But if the husband turn her out of hia house, or desert her, she, or any one duly authorised to act for her, may recover back such property ; 3. If they separate by mutual consent, such separation should be made the subject of an agree- ment, which should specify the terms on which the separation is to take place, and the proportion of property to be restored by the husband to the wife. — No. 98, D. C. Madewelletenne, (M.) 192. — ^In an action in which the plaintiff com- Cause of action- plained that certain property belonging to him Disputiui;; the ' had been inserted in a hat of Appraisement iiled pl^^'i^f's tide, hy the defendants, and prayed that such property might " be restored to him" ; it was objected by the defendants that the plaintiff asked J or tiie restoi'ation of property which was still iu iiia possession; but the Supreme i ourt held that the act complained of was a sufficient ground of ac- ■ tion. iiiirl over-ruled the objection, uUi.'.vine- the Amendment, ■plaintiff's hbel to be amended by suustitutiug ior 1835. [44 1 Defence, «s Ad- ministrator. Defendant in default — Non-join-ler of Plaintilfs. Personal deli- the words " restored to the plaintiff," the words " struck out of the List of Appraii^ement." The defendants indeed asserted their right, as administrators, to the property, and only pray- ed that the action mii,'ht be dismissed, in order that they might institute proceedings to obtain possession ; but held that this was a course which could only be suggested for the purpose of delay or swelling the costs, — either of which objects is contrary to the duty of Administrators ; — and that there was no reason why the real right to the property might not be tried in the action already pending. — No. 333, D. C. Amhlomgodde, (M.) 193. — Where a defendant filed no Answer, but, on the day of trial, attempted to rely on the partnership of the plaintiff with another person ; Held that he should have pleaded that partner- ship, so that if it existed the partner might have been joined in the action ; and that it was too late to make the objection at the trial. — No. 460, D. C. Caltura, (M.) 194. — There is nothing in rule 21, sec. i. of the "witaeslel" -^."^^« ^ ^-'■'-de'^^, to oblige a party to deliver his List of Witnesses in person or by proctor ; nor does the nature of the document require it ; and there seems therefore no reason why this document should not be sent by a servant or even by the post, provided it shew on the face of it enough to inform the officer of the Court in what case and on whose behalf it is sent,— the party of course taking the risk of the instrument not arriving.— No. llyS, D. 0. Caltura, (M.) 195. — The /ac< of a plaintiff's property having heen taken in execution would, if true, be a mat- ter of jjublic notoriety, which might be legally proved without the production of the writ. The legality of the seizure would depend on the regu- larity of the process and the due execution of it. —No. 706, D. C. Caltura, (M.) 196. — Whatever may be the weight of an ob- jection taken during the trial of a case, it ought not to be'allowed to stop the progress of the case by an immeciiate appeal to the Supreme Court, By rule 27 of sec. i. the objecting party has the Evidence- Proof of a Seizure in Exe- cution, Objections during Trial — Appeal. I 45 ] 1835. Opportunity reserved to him of appealing, after tlie decree is passed, against any evidence iinproperly received. — Ibid. Matj 16. 197. — Where it appeared that the; land in ques- tion was situated in the district of Madewelleteune, and that the second defendant, who was the only real defendant in the caae,£fepded within that "disMct ; the Supreme Court or|iored the case w^liich had been instituted in t]ip M^trict Court of Matelle to be transmitted t^^^ District Court qf'Madewelle- tenne, to be the^^roeeeeded in and decided. If the plaintiff \\je^^^rmitteii tc/^carry on the suit in the former Court na«nsJyloQ the ground of the first defendant (who itT^eared m^de no claim to the land,) having been joined in the action, a plaintiff might always choose the Court in which he would prefer his action to be tried, by includ- ing as defendant a person wholly uninterested in the matter at issue.— No. 632, D. C. Matelle, (M.) Mai/ 18. 198. — Where the security bond in appeal ap- peared to have been received by the Court below, notwithstanding the time prescribed by rule 3 of sec. viii. had elapsed ; Jleld that it must be pre- sumed to have been " proved to the satisfac- tion of the District Court that the omission was not imputable to any negligence on the part of the Appellant," (rule 6). — No. 459, D. C. Am- hlangodde, (M.)— Bee also No. 152, D. C. Ma- telle, (20. May, 1835.) May 20, (M. N.) 199. — Where a party had engaged himself as surety in appeal for another, viz., that the latter should " well and truly perform and abide by the judgment which should ultimately be pronounced by the Supreme Court ;" and the Supreme Court had referred the case back to the District Court, AWth directions that the District Judge " should receive further evidence and thereupon give his judgment ;" Held that such subsequent judgment of the District Court became virtually the judg- ment of the Supreme Court, and was binding ott the surety.— No. 6220, D. 0. Kandi/, (M.) Juris cUctioii, where th^ de- fendants reside in several dis- tricts. Seeimty in •Appeal received after laiise of Time, Secnrity in Appeal — Ultimate judg- ment. 1835. [46] Costs- One of several defendants con- demned in. Bes Judicata, Sequestration — Costs. Appeal nnder rule 5, see. viii. Merits. Appeal after lapse of Time — Belief. 200. — Wtere the plaintiff had needlessly join- ed a party as defendant, and at the trial the Dis- trict Court had absolved the first defendant and pronounced a decree against the second defend- ant condemning hiai alone in costs, the Supreme Court modified the decree by " condemning; the second defendant in the cost of the suit, except those incurred by the first defendant, which are to be borne by the plaintiff."— No. 633, D. C. Colombo, No. 2, (M.)* 201. — Where a defendant pleaded that a judg- ment had been improperly obtained in the late Provincial Court ; Held that if true, he should have appealed against it, and that to allow a de- fendant to question the propriety of the former decision by the present action would be to make the present District Court sit in appeal on judg- ments pronounced by those tribunals, which had been sitperseded bv the .District Courts. — No. 1486, D. C. Jaffna, (M.) 202. — "\"\'here a Sequestration had been set aside, but the District Court at the same time re- corded its opinion that " tliere had been circum- stances of suspicion sufficient to justify the seques- tration," the Supreme Court directed that each party should pay his own costs. — No. 6565, D. 0. Kaiidij, (M.) 203.- — On proceedings being referred to the Supreme Court to decide on the allowance or re- jection of an appeal under rule 5 of sec. viii., it may examine the merits of the case to see if there exists any ground for the appeal. — No. 152, D. C. Matelle, (M.) * In this case the above order seems to have been granted bj" way of relief on an application by the second defeudait, long after the lime for appealing had elapsed, as may be ga- thered from the sequel of the order : " If the decree bad been more explicit, and had ordered ex- prrssly that the second defendant should pay the costs of the first defendant as M'ell as tliose of the plaintiff, the second de- fendant would have been bound to appeal against that part of the judgment ; and if he had faUed so to do, he might now perhaps be without relief But as the decree stands, the se- cond defendant may have supposed till the demand was made by the iiist defendant, tliat it was only iiUende,! to make him ha. lie for the costs of the adverse jiarty, especially as his Ua- bility could not legally be extended further ." 147] 183u. 3Iay 27, (M. R. N.) 204. — A defendant appealed on tiie grouiiu that a certain table (the value of which he was condemned to pnj') had not been sold but only lent to him, and that if the cause of action had been truly stated in the libel, he would have had the option of returning the table to the plaintiff ; but the Supreme Court held that in order to make this a just and equitable ground of defence, the defendant ought (instead of drily denying that he was indebted to the plaintiff,) to have set it forth in his answer as that on which he intended to rely, accompanying it with a tender of the table. [It appeared that the defendant having received the table from the plaintiff, had left Kandy without giving any directions as to its being restored, so that the plaintiff might not unreasonably have concluded that the defendant intended to convert that which was originally a loan into a purchase]. — No. 5420, D. 0. Kandy, (M.) 205. — In order to support an objection to a party applying for the indidgence to sue as a pau- per, it is not usual or necessary to frame a hst of property and file the same in Court, and thereby put the party to an unnecessary expense. — No. 493, D. C. Amblangodde, (M.) June 3, (M. R. N.) 206. — There is no term of prescription as regards applications for or the issuing of Letters of Administration. "WTiere however a District Court has directed Letters of Administration to be taken out, it must be presumed that the Court was satisfied that the interests of the parties con- cerned made such a measure expedient Where a party appears to the citation and prays that Administration may be granted to himself, ha cannot afterwards question the neces- sity of Administration. — No. 1923, D. C. Chilaiv, (M.) Jvne, 10 (M. R. N.) 207. — Where an Appeal had been taken from a judgment of the Supreme Court to the King Defence — Geuei'al denial. Loan — Purchase. Application to sue in forma pauperis, — Opposition to. Administration- Prescription. A pai*ty when precludtrd from questioning necessity for Administration. Appeal to the Privy Council — 1886. [48] Troceedinge in a-espect of Secu- lilor in Appeal. Insanity — LiaLiJity of the Father. Arbitration. Agreement of Widow previous t» Administra- tion. in Privy Council, Perring for the respondent, on tlie 10." June 1835, moved for an order on the appellant to shew cause why the appeal should not be declared abandoned, on the ground that no fresh step had been taken since the filing of the petition of appeal. (7. March 1835.) Mile- brand for the appellant stated that the sureties were ready, but that he had waited until the case should have been heard in review. It was however ordered, by consent of the parties, that the security should be taken by the District Court of Kandy, and the security-bond forward- ed to the Supreme Court before the 17th instant, on which day it was ordered that the case should be heard in review, provided the security should have been then perfected, in default of which the Court would entertain the motion for declaring the appeal abandoned for want of compliance with the 11th condition of cl. 52 of the Charter. — No, 6047, D. C. Kandi/, (M.) June 13, (M. E. N.) 208, — On an action against two defendants for money lent to the first defendant, the son of the second, the latter pleaded that the first defendant was insane ; but the Supreme Court held that even supposing the first defendant to have been out of his mind at the time of the loan, it was the duty of his father to have taken those steps which the law justifies and calls upon him to take for placing his son under that restraint which would prevent him from obtaining money from others, who might not be aware of the state of his intellect.— No. 1194, D. C. Walligame, (M.) June 17, (M. R. N.) 209.— -Suitors cannot be forced to submit to Arbitration; but where they themselves desire that course to be adopted, they cannot object to the award.— No. 8364, D. C. Tenmoratchy, (M,) 210.— VSTiere a Widow, before obtaining adr ministration to her Husband's estate, agreed to assign certain lands to her three sons, after she should have obtained administration'; the Su- preme Court afarmed the judgment of 'the Court [49] ISSj. telow in setting aside the agi-eetnent, on the ground that it must either be an engagament to adniinister the estate according to law and there- foie superfluous, or an undertaking to deviate from sneh course and therefore fraudulent and illegal.— No. 2291, D. C-. Batticoloa, (M.) 211. — On an application for Edictal Citation, vhere the citations having been duly returned, the certificate had been refused on the ground that there v.as another person equally interested wath the applicant, \^ ho had not joined and whose share had not been set apart : the Supreme Clourt lield that the applicant's prayer to be allowed to amend was perfectly reasonable and w&s no more tlian is done in ordinary suits, where a party has been omitted by inadvertence ; and referred the case back in order that such other person might be called in and have an opportunity of joining in the application, or, if he refused, that his share might be excluded from the proceedings. — No. 436, D. C. Awhlangodde, (M.) 212.— (See § 206 s«p.) Carr, K. A., on behalf of the appellant to the King in Privy Council, produced an affidavit touching the execution of the security-bond before the District Court of Kandy, and a Bond entered into by Messrs. Hillehrand and Morgan (proctors for the appel- lant) for £300, conditioned for the prosecution of the appeal and for the paj'ment of costs in pursu- ance of the sixth rule and limitation of cl. 52 of the Charter ; and the bond was received and the case proceeded with in review. — No. 6047, D. C, Kaiidy, (M.) Jv,ne 19. 213. — A Foreigner, having no property within the jurisdiction, may be called upon to give secu- rity for costs ; but if unable to furnish such secu- rity, he is to be admitted to swear that he will satisfy the same. In such a case the Supreme Court directed that the security to be required from a foreigner for coats,- should be a bond by himself alone in the penal sum of £30 if he should not pay such Edictal Citation — Amendment of Application. Appeal to tli« Privy Council — Secuiity. Foreigner- Security for Costs. 188§. 50 1 AppeaT to tlie Privy Oouncil — Review — fresh Evidence. Collective Deu'ion — • Seview. Evidence — Notice to pro- duce. Arbitration — Reference b; par:iea to a suit. «50St8 ag miglit be awarded against him, oi* should leave the Island or attempt to do bo without first paying all such costs ; andjper Marshall, C. J. — " Under the present system parties are not al- lowed to swear in civil matters in their own be- half ; and a Bond as above directed seems much more Kkely to prove effective in answering the end proposed, than an oath would be."-^No. 7086, D. 0. Colombo, N. (M.) June 20, (M. R. N.) 214. — Where a judgment of the Supreme Court has been brousrht by way of review before the three judges collectively, previous to its going ia appeal to the King in Privy Council, the appel- lant cann(jt be allowed to adduce fresh evidence iu support of his case. — No. 6047, D. C. Kandi/, (,UoU.) 215. — It may be doubted whether the first ru]» or limitation in cl. 62 of the Charter, was intended to apply to a case already heard before the thre» judges collectively at Colombo ; for in such a case, the review in truth amounts to no more than a reconsideration by the same judges of the judg- ment already pronounced by them. But th* Supreme Court held it to be the safer and mora satisfactory course that the case should be agaia heard in review. — Ibid. 216. — Where the defendant had, by hia Answer, virtually denied the existence of a deed insisted upon by the plaintiff, the Supreme Court allowed parole evidence thereof, and held that the defend- ant had no right to object that he had not had notice to produce an instrument, which, if his owu answer be true, it was impossible for him to pro* duce.— No. 5276, D. C. Kandy, (M.) 217. — Where it was recorded in the proceed* ings that the parties had expressed themselves willing to abide by the decision of Arbitrators, the Supreme Court held that the losing party could not be allowed to object to their award ; but re» commended that in future wherever parties should agree to submit a matter for arbitration, their sig* natures to such consent should appear on" the proceeding*.— No. 1139, D, 0. W^ligmtt, (M.) 151] ma. 218. — The plaintiffs, as priests of a Mosque at Marendahn, in Barberyn, sought to recover from the defendants who were priests of another Mosqua in the same village, damages in consequence of the defendants having celebrated at the latter Idosque certain religious festivals, the right of celebrating which the plaintiff's claimed as exclu* sively appertainisg from time immemorial to their own mosqae. Held 1, That had the question related to the plaintiffs' right to celebrate these festivals «t their own Mosque, there was sufficient evidence to shew the right ftrom time immemorial; and the Supreme Court was bound to :protect all classes of people in the free .and undisturbed exercise of their religi- ous rites and cerenjonies. — 2, Had the enquiry been of a purely ecclesiastical nature, ex. gr,, whether these festivals could, consistently with the Mahomedan religion, be celebrated in more than one Mosque, and whether the plaintifla' Mosque was the favored one,— these would ba questions which the Supreme Court was neithep called upon, nor would consent, to decide ; for, granting that the Mahomedan worship may have been scandalized, and the veneration due to th§ plaintiffs' Mosque abated by the practices and as- -sumptions of the defendants, the Law did not a-ecognize thefse as civil injuries for which compen- sation could he claimed in a Court of Justice ; but they were matters purely ecclesiastical and the lemedy, if attainable at all, was to be sought for in ecclesiastical censure or penance. — S, That the plaintiffs had no right to the voluntary offeriags of the devotees. The assumed right adipitting of no legal remedy in case of the offerings being refused or withheld, was in truth no right at all ; And if it were ,no right, the present action seeiiing compensation for the disturbance or obstruction of it, fell to the ground. — 4-, That the case of tithes in England bore no analogy to the present case, tithes being not voluntary offerings, but a legal provision for the clergy which could not be legally withheld and was recoverable by the aid of the ci^ii power.— No. 12348, D. C Caltura, (M.) Moorish Mosque— Eselisive rig!it of celebratinE festivals. Voluntary offerings. 1S8». [52-J Breach of Promise of Marriage — Evidence. Pefendant in default. Evidence. Seller and Purchaser — Completion of Transfer, — Payment of money. Scrvioe-Parreny. Alienation. Second Marria.i^e — Administration of deceased ■wife'3 estate. June 24, (M. R.) 219. — In an action for damages, on breach of promise of Marriage, the plaintiil had failed to prove any positive or direct promise, but it ap- peared that the banns of marriage had been duly pubhshed, and that both parties were present at the publication ; and the Supreme Court lield that this circumstance alone would entitle the plaintiff to judgment. — No. 1134, D. 0. Valtura, (M.) - 220. — A defendant who is in default is not en- titled to go into evidence, except ts disprove the evidence adduced by the plaintiff. — Ibid. 221. — An Auctioneer is entitled to detain the purchase -money till the transfer is completed-; and the seller ought to be equally entitled to re- fuse that completion till the payment of the money. And where a dispute arose as to which act should take place first, the Supreme Court recommended that the signature to the deed and the pajrment of the money should take place simultaneously, and that the Auctioneer and the Seller should agree to meet at the house of the Notary at an appointed time for the performance of these mu- tual acts.— No. 4599, D. C. Colombo, (M.) July 1, (M. R.> 222.— The Reg. No. 8 of 1809^ is merely de- clatory of what the Law was at the time it wag passed, and makes no alteration or new laws ; but some allowance should be made for persons alienating before the passing of that Regulation, since the very necessity which existed for such a declaration, shews that the law as it stood was imperfectly known.— No. 714, D. 0. Matura, (JM.) 223. — The plaintiff sued his son, a minor, for opposing his second marriage, and without wait-- ing for Answer, moved that the son might be ordered to withdraw his opposition, and on refusal of that motion appealed to the Supreme Court. The Supreme Court however held that, if the defendant was a minor, it became the duty of the . District Court to protect his interests, and there- fore ordered that it should forthwith call upon, the [53] 1835. plaintiff to talie out Letters of Administration to the estate of his deceased wife, or in default thereof, should grant administration to the Secre- tary or other fit person ; and that until such estate has been duly administered, the plaintiff should be restrained from entering into a second marriage. The action was dismissed on the plaintiff's own statement that the defendant was a minor.— No. 15u2, D. C. Caltura, (M.) 224 — A District Court may award double costs against a party in the nature of a punish- ment for endeavouring to mislead the Court by his answers, under rule 29, sec. i. Rules and Orders. But it was doubted whether a District Court would he justified in imposing double costs merely because the action had been brought on insufficient grounds or even on no real grounds at all, unless such action were attempted to be supported by false statements made by the plain- tiff in open Court. — No. 823, D. 0. Walligame, (M.) 225. — Where it appeared that a plaintiff not having taken out adiiiiiiistration was not entitled to sue, the Supreme Court referred bacli the case to the District Court, and ordered the plain- tiff to take out Letters of Administration ; and jjer Marshall, C. J. — " His doing so may pro- bably prevent whatever decree may be passed in this case from being hereafter called in question by parties who might otherwise contend that they had not been duly repreaonted." — No. C583, I). C. Colombo, A'. (M.) July 8. 226. — Where the plaintiff sued for damages on {he ground that the defendant had asked him to a feast and had afterwards refused to associate or sit with him, and the defendant in his Answer tendered an assurance that he did not intend to insult or cast any reflection on the plaintiff. The Supreme Court (the Assessors dissenting) held that the defendant's answer constituted in itt-. If such " honorable amends" as ought to have satisfied the plaintiff; and refused to give dama'^^es; and as to costs, condemned^the defendant in aE- Minor Cliiidren. Punishment for false statements. Unfounded action. Administration. pending the suit. Honorable Amends — Costs. X»»B. yostponement — Absence of Proctor. Law— "District Orcler.' Cattle-trespass. Assent to a Sale of Lauds, Presence at the Sale. Eeg. of Frauds »nd Perjuries. [54] tlie e«sts up te Answer, and the plaintiff in all the subsequent costs.— No. 1126, D. C. Caliura, (M.) 227. — The absence of the Proctor is not a suf- ficient reason for a postponement, unless he be unavoidably absent, as from illness or other un- controlable cause. And when a trial is post- poned on such ground, it should be on payment of the costs incurred by the postponement. — No. 6105, D. C. Colombo, S. (M.) Jidi/, 15, (M. R.) 228. — Where the District Court of RuanweUs had awarded a fine on the owner of Cattle found trespassing on " Government works and espla» nade," (though no damage was proved to hav? been sustained by the prosecutor ;) and the Dig. trict Judge, on reference, stated that the fine had been awarded according to a " District order, which had been in existence ever since Ruan- welle had been a military post ;" the Supreme Court set aside the decree with costs, and Held that it could not recognize any authority except that of the Legislature ; and that where there was no law on the subject in force in the place, the own- ers of cattle found trespassing could only be sued civilly for the damage which might be done, in- eluding any expense or reasonable charge for securing the animals ; — Held also that the Reg. No. 9 of 1883 relates only to offences committed within the gravets of the towns therein enume- rated.— No. 2578, D. C. Ruamcelle, (M.) Jidi/ 22, (M. R. N.) 229. — Where it was contended that the plain- tiffs had given their assent to a sale of their pro- perty for the benefit of otliiers, the Supreme Court held that the mere presence of the plain.- tiffs at the sale could not be considered a suffi* cient assent ; and as to a verbal assent (which had been attempted to be established,) it was Iield in- sufficient, 1, because no consideration or motive had been proved for such assent ; and 2, because by the Regulation No. 4 of 1817, such con.sent or promise should have Leen in writing and duly signed. — No. 1261, D. C. Nsgomho, (N.) [55] 1P35. 230. — MTiere the defendant had cngasfed hy bond to pay a certain sum of money on the ^?l^t Au.4Tist 1820, and without any stipulation as to interest ; Eeld that though the bond authorized the creditor, in default of payment, to recover thi? amount by sale of certain property, it mii'ht still be a question whether the plaintiff, not having availed himself of that pov^er, had not a ri -;ht to claim interest. [The question vsras not however decided, but the case was referred ba«k to the District Court to take evidence of certain pay- ments of interest alleged to have been madej. — • is'o. lOiS, D. C. Caltura, (M.) July, 25, (M. R. N.) 231. — A construction in the shape of a Bou- tique is not land v?ithin the meaning of cl. 5 of the Reg. No. 4 of 1827, or of the Reg. of Frauds and Perjuries (No. 7 of 1834,) and a trans- fer of such a construction erected on the land by the permission of Government, to whom the soil still belongs, and given up to the plaintiff by the defendant on receiving the expenses which he had incurred in erecting it, need not be on stamp or reduced to writing. — No. 964, D. C. Ja^na, (M.) 232. — Where the appellant contended that as no damages had been awarded against him in a case for libel, he was not liable to pay costs; Eeld that this was by no means a necessary consequence. The defendant had called the plaintiff his «?ace, and if he could not prove his legal claim to the person so designated, the plaintiff ought to be indemnified the expenses to which he had been put in contradicting the assertion. — No. 788, D. C. Matelle, (M.) Jvly 29, (M. R. N,) 233. — Where a plaintiff had established the greater part of his claim to the satisfaction of the District Court, the Supreme Court held that there seemed to be no reason why he should be con- deuwed to bear iua own costs. — No. 333, D. 0. not cupiUateil Transfer of a mere building. Stamp. Frauds and Perjuries—' " Land." Damages- Costa. Action for Libel Gostc. 1S35. [56] General Hypo- jwthec of Go- Temment. 'Witnesses — -Court bound to htar, when. Magger, Kay- ■cooly, &c., when recoverable. Stamp. Trespass — Title of Plaintiff. 234. — Tke Government possesses a general hy- pothec over the property of its debtors, and has a right to prevent all alienations of such proper- ty ; but this right does not commence till the deb* has actually accrued due ; except in an ex- treme case, as where a party is endeavouring to alienate his property obviously with the fraudu- lent intention of defeating a debt about to become due.— No. 6975, D. C. Kandj/, (M.) 235. — Where the plaintiff has failed in estab- lishing his case, it is unnecessary to hear the de- fendant's -witnesses, unless sometimes for the great- er satisfaction of the Court ; but where the plain- tiff's case is proved on his part, however clearly and even unanswerably, the defendant is never- theless entitled in his turn to have his witnesses examined, except where his answer is such as, if proved, would afford no defence to the action. — No. 1160, D. C. Caltura, (M.) Attgust 12, (M. N.) 236.— Among Mahomedans, on the death of the husband or upon a separation, the wife and, after her death, her children, are entitled to re- cover from the husband, or his representatives, her Magger, Kaycooly, &c.— No. 7487, D. Q.Jaff- na, (N.) 237. — Where the defendant claimed the vihdle amount of several items specified in a Gartom, but her claim for Magger, the principal item, rested on other and sufficient evidence, independ- ant of the Cartom (viz. the admission of the plain- tiff in his libel and the testimony of one of her witnesses,) and the stamp on the Cartom was suf- ficient to cover the residue of her claim, Held that the Cartom, was admissible in respect of such residue, though insufficiently stamped as regards the whole of the claim. — Ibid. August 26, (M. R. N.) 238. — Where the plaintiff sued for a trespass' or encroachment on land ; and it appeared that the land belonged to Government ; but the plain- tiff offered to prove that he had a right to apply to Government for the land ; Held that his action [57 J 1385. Bad Tbeen properly dismissed, as the trespass or encroachment, if any had been committed, was an injiiry done not to him, but to Government, and any claim the plaintiff might have on the bounty of Government would be in no way affected by a decree passed in the District Court on the sub- ject of a trespass cotamitted on land which did not belong to him. — No. 400, D. C. Caltwra, (M.) 239.— 'W'nere the plaintiff succeeds in an action for breach of Promise of Marriage, she should be allowed her costs. The defendant might have prevented any costs being incurred beyond those «f the libel and summons, by admitting his engage- ment and offering to pay such moderate damages as the Court i&ight award. — No. 1134, D. C. CaW tura, (M.) 240. — 'VSTiere the value of the property in dispute in a case did not appear in the proceedings had therein, but the appellant alleged that it exceeded £500, the Supreme Court, previous to sitting in review cm aj^^eal to the King in Privy Council, ordered that th« District Court of Kandy should ascertain by Commissioners or by other satisfac- tory means, the valu« of such property, and report to the Supreme Court thereoa. — -No. 646, D. 0. Kandy, (B..\ September 2, Sept. 30, (M. K. N.) 244. — A plaintiff who complains of an injury done to his character, has as much right to the time of the Court, as one who seeks to recover property os redress from any other species of in- jury.— No. 7403, D. C. Kandy, (M.) 245. — The plaintiff having failed to shew any damage sustained in consequence of a breach of a Marriage-contract, beyond tiie- cost of the stamp on whieh the contract had been drawnj. for which however he had brought a separate action ; Seli that his suit had been properly dismissed. — No, 604, D. C. Trincomalie, (M.) 246 — A claim for the specific penalty imposed by a Marriage-contract aiid any further claim for the expenses to which, the party may have been put in consequence of the non-fulfilment of it, may be joined in the same action. — 'Ibid. 247. — ^Among Mahomedans, even supposing the assent of the Bride's brother to be necessary for the validity of the Marriage-contract, such as« sent may be implied from his having been pre- sent at the execution of it, his making no objec- tion to it, and his serving out cakes to the people after its exscution.— iiiS. C59] 249. — The non-payment of the pwrcbaso^mo- ney to the Fiscal within the stipulated time, does not entail an absolute forfeiture, but merely sah- jects the purehaser to the risk of a re-sale at the option of the Fiscal. — No. 256 S, D. C. RiMmwelU, (N.) October 7, (M. R. N.) 2i9. — The possession required by the Reg. No. 5 of 1819 should be established to the satis- faction of the Court, not by the naked affidavit of the party, but by that sort of proof which would satisfy the Court that he really did possess the land at the time, either by actual occupation' or cultivation, flr by the exercise of those acts of ownership which, according to the nature of the property, denote possession. And as tO' the Ci- tation, it should be shewn to huve been published with a degree of notoriety — of actual obtrusion on the notice of the neighbourhood^ — that should make it almost impossible to plead ignorance of it.— No. 2354, D. C. CkQaw, (M.) 250. — The certifleate of a Ptoctor that the al- leged pauper ha& a good ground of actioH is Bolutely necessary. — M. Cadergcemm' v. D. C, Wadimoratehiiy (M.> Oet. 10. 251.--— The sums actually paid by a party for getting his pleadings drawn by private persons, were directed to be allowed at the taxation of his bill, provided no Proctor had been employed, and such sums, if in the Ist or 2nd class, did not on the . whcJe exceed ten per cent, on the sum^ de- creed. — No. 584, (fee, D. C. AmMcmg&d^, (M.) 0bt. 14, (M. N.) 252. — It is a sufficient ground for dismissing the claim of the plaintifis, that they admit their inability to state who are the joint heirs with themselves or to point out the portions to which the plaintiffs are respectively entitled- — No. 124, D. 0. Amhtaaigpdde,, (M.) 2ik3. — The Civil; Law, in order to prevent un- necessary muitipiicity ©f suits;, aUawa any peison Fiscal's Sale— Defatilt of Purchaser. Citation — Possession how eatablisbed. Citation Vow published. Pauper — Certificate of Proctor. Pleadings drawn by pri- vate itactLes. BismisEol--- CriaoDds-of.. Intervention. J8SS. Defectivs Libel — Examinndon of Kanting-share. Joint owner- ship. Eight of S^«-em{itioa. Costs. D. C cannot rescind its own order. }?amptis9e> neat- Merchant's I)ay-!)ook — J*i'o\ i-ional }ad)gautat. [60 1 havinff aH interest in the subject-matter bettfeen Jitigants, to become a party to a suit already iu- Btituted. And this privilege is recorrnized and declared by rule 32 of sec. i, Rules and Orders.-^ No 1465, D. C. Caltura, (M.) 254. — Where a defendant applied that tlie plaintiff should be called upon to state what inj :ry had been committed by each defendant individu- ally, the Supreme Court lidd that that object was equally and satisfactorily attainable by the exarvii» nation of the plaintiff in Court. — No. 1784, D. 0, Caltura, (M.) 255. — A decree reserving a planting-share to the defendant, confers to a certain extent a joint right of ownership upon him ; nor has the plaintiff any right to insist on buying out the defendant's Bhare, unless by way of pre-emption, provided the defendant is willing to part with' it. — No. 2693, D, C. Galh, (M.) Oct. 28, (M. E. N.) 2S6. — A plaintiff who succeeds in the main object of his suit is entitled to his costs, unless it be shewn that the action was frivolous or need* Jess.— No. 2226, D. C. Chilaw, (N.) 257. — A District Court cannot rescind an order once made, but may refer the matter to the Su- preme Court.— No. 1859, D. 0. CaHura, (M.) November 11, (M. R. N.) 258. — The right to Namptissement forms part (rf the Roman-Dutch Law and should obtain where^ ever that Law is administered, though not noticed in the Rules, of Practice of 183S.— No. 8423, D. 0. Colombo, N, (Coll.) 259. — A Merchant's day-book, containing an account of the goods sold and delivered, is a document on which provisional judgment may be demanded ; and though the Roman- Dutch La\« requires that it should be supported by the oath or strengthened by the death of the merchant, yet» if the merchant be living but cannot under th« Bales take an oath in his own suit, his examina- tion under penalty, as dire.-ted by rale 2j see, i. is ioLy eijiuivakat to th« Mta.— i^id. 161] lass. 260.— A Merchant's account of goods sold afid delivered, though containing " mention concern- ing the time of payment," viz., " at two equal monthly instalments," was held admissible in evi- dence under cl. 9 of the Reg. No. 4r of 1827, there being nothing to shew that the mention of the time was intended to be binding on the de- fendant ; and the account not having been pro* duced with any such view. — Ihid. 261. — Where a defendant contended that with one exception, there was not a single instance in which a particular provision allowed by the Dutch Law had been demanded in any Court of Ju.-itice, since the cession of the Island ; Held that if the right exists, it is not the less Law because hitherto suitors may not have known of its exist- <>nce, or may not have thought it expedient to •exercise it. — IMd. 2'^-2.— Where the defendant had charged the plaintiff with havinac removed a quantity of Go- vernment salt to his own house, and, after calUng evidence, had failed to substantiate the chai-ge, though it was not stated whether the charge im- plied a mere infraction of the Reg. No. 2 of 1S18, or whether theft had been attributed to the plain- tiff; Held that the plaintiff had an action for damages. — Soetsz v. Morays, D 0. Chilaw, (AI.) 263. — The requisites of an action for a Malici- ous Prosecution, are 1, that the charge must have been false ; 2, there must have been a want of probable cause to justify the accusation ; 3, there must have been malice on the part of the inform- ant, (and the Law implies malice where no pro^ bable ground is shown ;) and 4, the plaintiff must have sustained damage, either in his person or re- putation, or by pecuniary loss. In the above case (§ 262) it was held that it was for th-e defendant to negative the first three requisites. — Ihid. -264. — Where a person has been actually brought, to trial for any offence, the conviction of which would be injurious to his character, whe- tljer as a member of society, or with reference to bis professien, ocaupatioa or o£&ce» it is not suf&- Stamp — Account, con- taining " men- tiou of the lime of payment." Rights uniler Roman Dutch Law — Nou-exercise of. Malicious Prosecution, Action for Malicioua Prosecution — KejuiisiteB of. Malicious Prosecution — • Eeparation. 18SD. [62] Decree — Third parties. Duty of Purchaser. Ijialiility of Wife— at Batticaloa, Coats— Several plaiatiifs. Answer — Creaeral Cenia]. cient reparation for that attack on his character that the want of evidence, or in other words, the want of probable cause, has rendered it unaucces- M.—Ibid. 2fi5. — A decree, though binding on the plain- tiff and defendant in a suit, does not affect a third party ; for otherwise no man's title would be se- cure ; since it would be an easy matter for knaves to collude together, and the one as defendant suf- fer judgment to go by admission or default in favor of the other as plaintiff, neither party per- haps possessing a shadow of rights. — No. 1584, D. C. Seven Carles, (N ) 266. — A purchaser ought to enquire into the seUer'a right before he accepts a deed of sale ; and he would then either discover the want of title in the seller, or be prepared to maintain it when questioned.— No. 5486, D. 0. Colombo, N. (M.) 267. — A case was referred back to the Distiict Court of Batticaloa for information whether, by the customary law of that place, the property of a wife who had been separated from her husband and was actually living a part from him at the time when judgment was recorded against him, would be liable for his debts.— No. 2912, D. C. Batticaloa, (M.) 268. — Where judgment having been given for the defendant with costs, it appeared that the first and second plaintiffs in the suit had acted without fraud, and had purchased the property in ques- tion from the third plaintiff on the supposition that the latter was legally entitled to dispose of it ; the Supreme Court deceed that the third plaintiff alone should pay the costs, unless she couM shew good and sufficient cause to the District Court why the first and second plaintiffe should be oh- Eged to pay any part thereof. — No. 3200, I>. C. Matura, (M.) JVow. la, (M. R. N.) 26^.— The facts on which a defendant hjtendk to rest his defence ought to be stated in his An- swer. Where on an action for a share of the pro- duce of a field cultivated by the defendatit, the [63 J 1835. defendant put in a general denial of all right on the part of the plaintiff, but at the trial went into evidence of particular facts, which if true might have furnished a defence to the claim, though they admitted the plaintiff's title, the District Court gave judgment for the plaintiff, and the judgment was affirmed by the Supreme Court. — No. 363, D. C. Manar, (M.) 270. — Where a defendant, instead of resting on the plea of prescription, had admitted the in-^tru- ment and pleaded payment, which however he failed to prove ; Held that the District Court could not change the ground of defence and sub- stitute the presumption of payment raised by the Ordinance, for the actual liquidation which the defendant had undertaken but failed to prove. — No. 1117, D. C. Caltura, (M.)— See also Dec. 2, 1835, Civ. Min. p. 706. 271. — Though the positive law of Prescription, not having been pleaded, cannot be insisted upon, it is still a question for the District Court whe- ther, putting that law aside, the Court may not feel convinced, from the lapse of time which had been suffered to elapse, that the instrument has been in some way satisfied. — Ibid. iVbu. 25, (M.R.N.) 272. — The defendant as Auctioneer having sold certain lands at an auction to the plaintiff, had recovered from the plaintiff the amount of stamps and other expences necessary for the trans- fer. and afterwards called on the plaintiff to pay over the purchase- money to the vendor, pro- mising to get the title for the plaintiff in a month. The purchase-money was accordingly paid to the vendor but no title was ever made out ; and it turned out that the vendor had really no title, and the piaintiff was ultimately ejected from the land hy the lawful owner. On aa action by the plaintiff against the defendant, the auctioneer ; Held that the latter was liable to refund to the plaintiff, not only the amount paid to himself for expenses &c., but also, the purchase-money paid at his request aad by his direction (and per Ma&shall, 0. J., — on his promise of procaring Evidence. Prescription- Pa\'ment. Fresumplion of Payment from lapse of Time. Liability of Auctioneer. 1635. [R4 J Claim under Edict. Citatioir. Cevlificntfi of Qniet Force of. Pauper — Pi-onf within reasonable lime. Order on a Shroff— r^virleace of payment. the title") to the vendor. — No. 4.-11, T). C. Colom- lo, A'. (Coll.) 273.— A claim tinder Edictal Citation maybe made at any time before the Certificate of the District Court is granted ; for claims ought to b» received as long as the application is kept open, whatever may be the day mentioned in the cita- tion and although the application is suspended in order to await the decision upon other claims. — No. 976, D. C. Amblangodde, (M.) 274. — The only force which ought to be given to Certificates of Quiet Possession, as obtained under the Ileg. No. 5 of 1819, is the arriving at the fact that the neighbourhood has been cited in a certain manner to come forward with claims, and that for a certain number of months none had been made. This fact would no doubt assist 8" party in proving title by prescription or in any other way founded on possession ; but it would not and ought not to be held conclusive against svibsequont claimants, if they can account satis- factorily for their silence during the time th& Citation was pending. — Ibid. 275. — A party applying for permission to sue as a pauper is entitled only to a reasonable oppor- tunity of establishing his poverty ; but at the same time there ought to be some limit to thff length of investigation into the value of his pro- perty, and the District cannot be required in every case of contested pauperism to enter into a trial of title to land. — No. 1238, D. C. Negombo^ (M.) December 2, (M. R. N.) 276. — In an action by the plaintiff (a Govprn- ment Servant) against a Shroff of the Cutcherry, the defendant produced a slip of paper containing the following order from the plaintiff: — " Private Account. — Shroff, I want £oO in JElO notes. Kandy, 3rd April, 1835.— G. Turnour." Held that this was a mere requisition which might or might not have been complied with, and that the bare production of it. though furnishiii'jj a strou» presumption, was not conclusive proof of thJ [65] 18SS. plaintiff having received the amount, imless en- dorsed by him as having been received ; and this, notwithstanding the course of dealing between the parties, by which it appeared that other sums of money had actually been received by the plaintiff on similar documents. — No. Tltji, D. C. Kcmdy, (M.) 277.— Where the defendant, a Shroff of the Cutcherry, claimed a commission of one -half per cent on sums held by him for the plaintiff, a Go- vernment servant ; Held that in the absence of any express agreement, he was not entitled to 8uch commission ; because the chief consideration on which the right of a Merchant or Banker (to •whom a Shroff was contended to be analogous) to commission is founded, was wanting in the case, viz. the expense of providing a place of safe cus- tody and other incidental expenses, and the risk of loss ; the expense being in the present instance borne by Government, and the risk nothing, the defendant having availed himself of the place of security which his office left at his disposal. And although the Government had declared that it would not be responsible for private deposits, it does not follow that the defendant, a mere depo- sitary, would have been liable, if any loss, not arising from gross negligence, had happened.— Ihid. 278. — A Judgment pronounced against a party is binding on his heirs. Where a previous decree had been given against a father, and it appeared that the subsequent action was, to all practical pur- poses, for the benefit of his heirs, it was held to be but a revival of the former suit, and therefore not maintainable. — No. 349, D. C. Caltura, (N.) 279. — A Brother has at least as good a claim to Administration as a Sister. She cannot how- ever claim sole administration to the exclusion of her Brother.— No. 42, D. C. Galle, (M.) 280. — WTiere the defendant had committed nu- merous defaults after issue joined ; Held that the District Court would be perfectly justified in pro- ceeding to hear the case with the least possibles delay, giving notice of the difi'ereat steps taken Commiesion on a deposit. liability of Depositary for Loss. Judgment tindiiig on Heirs. Higbt to Admiiiistratioa. Default, after issue joined. 1*35. Eight of Besnnjption on noii-pa;\'iuent of price- Waiver of. Appeal in forma pauperis. Property held »i Trustee for a Temple. Administration refused to a Saddhiet Priest. [66] fcy personal service on the defendant, if he couLl be found, or else by leaving the notices at his last place of abode.— No. 11969, D. C. Buanwelle, (M.) Dec. 9, (M. E. N.) 281. — Where a party had sold certain articles to the defendant, subject only to resumption by the seller on non-paynaent of the balance of the purchase-money within a certain time ; and it ap- peared that he had not exercised this right, but contented himself with th* verbal undertaking of a third party to pay th« amount due, (though upon what consideration it did not appear ;) Held that this agreement was a waiver of the ri;^ht of resumption, and left the defendant the absolute proprietor of the articles. — No. 1735, D. 0. Kandy, (M.) 282. — Where a plaintiff, a Buddhist Priest, ap- plied to be admitted to appeal in forma pauperis, and it appeared that he held certain deeds of lands in his name, which lands were however stated to be held in trust for a Temple ; Held that, if the purchases had been in trust for the Temple, that ought to have been inserted in the deeds ; and that a.s no such trust did appear, the applicant should he considared as the proprietor to all intents and purposes ; — Heldalao that the question whether the deeds being in the party's name were a con- travention of the rules of poverty prescribed by his religion, was one which could not affect the case.— No. 32, D. 0. Matura, (M.) 283. — Upon application for Administration by a Buddhist Priest, it was held that the District Courts are to compel all administrators, and even executors, according to the Charter, if they see reason to do so, to find security for the due exe- cution of their offices, and that nothing could be more at variance with the spirit of this highly sa- lutary provision, than to allow a person to ad- minister, who is avowedly a pauper, and for whom therefore, especially if he cannot legally possess property, no solvent person can reason- ably be expected to give security. — Ibid. [67] t88S. Dec. 16, (M. N.) 284. — It is the duty of the Supreme Court to correct any errors in the judgments ol' I'istrict Courts ; but it has no discretionary authority to alleviate those hardships which a strict enforce- ment of the Law will sometimes produce, further than the District Courts themselves possess that power. — No. 115, D. C. Manar, (M.) 285. — The fact that a party had for many years taken up his residence with his grand- daughter, and had openly declared her to be sole heiress to his property, and had even executed an instrument to that effect (which however, hav- ing been informally executed, was invalid in law,) is not sufficient to give her any right of succes- sion to the whole property of the grand-father, to the exclusion of the other legitimate heirs. — No. 972, U. C. Trincomalie, (N.) 286. — The following forms employed by the Supreme Court upon a reference to Arbitration made by the parties to a suit, may be considered useful. The parties having subscribed to a docu- ment in the following form : — " We, the undersigned A. B. (for myself and on behalf of the other plaintiffs,) and i '- D. (for myself and on behalf of the other defendants,) do hereby agree and consent that all matters in dis- pute in this case, (that is, whether &c.) be refer- ed to the award and final determination of E. F. and G. H. And w^e do bind ourselves to abide by the award and decision of the said Arbitrators :" The Supreme Court made the following order thereon : — " It is ordered, by and with the consent of the plaintiffs and defendants in this case, that all mat- ters in difference between the said parties be re- ferred to the award, order, arbitrament, final end and determination of E. F. and G. H., Arbitra- tors nominated by the said plaintiffs and defend- ants, so as they the said Arbitrators shall make and publish their award in writing of and con- cerning the matters in question, on or before the day of or on or before such r'ur- ther or ulterior day as the said Arbitrator* diall S. C. how far entitled to interfere with decrees. Ei^t of Succession. Eefei'enee to Ai'bitratioa. Form of Agreement to refer. Form of Beferencc 1835. L68 J Ketfiuneration for Meilical Services. Contract, ultimately appoint and signify in writing under their hands, to be endorsed on these presents. " And it is further ordered, by and with such consent as aforesaid, that all differences which may arise between the said Arbitrators be referred to the decision and umpirage of this Court upon a statement of facts made by the said Arbitrators. " And it is likewise ordered, by and with such consent as aforesaid, that the costs of this cause and of the said reference to the Court or in any manner relative thereto shall abide the event of the said award and decision or umpirage. " And that the Plaintiffs and Defendants res- pectively may be examined, if thought necessary by the said Arbitrators, and shall and do produce before the said Arbitrators all papers and writings touching and relating to the matter in difference between the said parties, as the said Arbitrators shall think fit, and that the Witnesses of the Plaintiffs and Defendants respectively shall be ex- amined upon oath also, to be sworn before the said District Court. " And it is lastly ordered by and with sucL consent as aforesaid, if either party shall by effected delay or otherwise wilfully prevent the said Arbitrators or either of them from making an award, he or they shall pay such costs to the other as this Court shall think reasonable and just.— No. 2939, D. 0. Amblcmgodde, (M.) 287. — In an action for Medical Services ren- dered by the plaintiff, it was contended by the defendant that the plaintiff should be satisfied with the same sum which it appeared the defend- ant had been in tne habit of paying the plaintiff's father yearly. But the Supreme Court held that although this mode of remunerating medical at- tendance by a stipulated amount was very com- mon, yet a contract to that effect must be shewn to have been expressly entered into and to be reciprocally^ binding upon both parties, before it could be insisted upon ; nor, if entered into by the- Father, would it necessarily follow that the Son would agree to the same terms as the father t No. 6876, D. 0. (Jolonibo, S. (M.) [69] 1835. 288. — A plaintiff, though only acting in truBt for others (executors of an estate,) was held en- titled to sue in his own name for monies which he had paid over to the defendant for greater se. curity. The defendant had in his answer denied the plaintiffs right to sue for money belonging to other parties, and averred that he should have had a good ground of defence to an action by the executors ; Held however, that there was no rea- son why the defendant should not have made any defence to this action which he might have against the executors' right to recover ; and judgment was allowed for the plaintiff. But the only evi- dence of the payment of the money to the de- fendant being his own admission, the Supreme Court allowed him an opportunity of establishing his defence by ordering that the money to be re- covered from him should lie in deposit in the Dis- trict Court for 14 days, and that if no proceed- ings be instituted by him against the executors within that time, it should be paid over to the plaintiff.— No. 6863, D. 0. Colombo, N. (M.) 289. — All infraction of the Revenue Laws, on ■which penalty, fine, or other description of pun- ishment whatever is imposed, should be proceed- ed against criminally. See Charter, cl. 28. — No. 98, D. C. Colombo, S. (M.) And see Dec. 23, 1835, Civ. Min. p. 761. 230. — Confiscation is rather in the nature of a civil action than of a criminal prosecution. — Ibid. 291. — It would be impossible to lay down any general rule as to how often a case may be postponed on account of the absence of a material witness. This is a matter which must be left to the discretion of the District Court nnder the conditions imposed by the Bules and Orders, and subject to appeal in any case in which a party may consider that the indulgence has been Tmjustly granted or refused. — No. 2502, D. C. Euanwelle, (M.) Dec. 23, (M. R. N.) 292. — The Supreme Coiu-t would be unwilling to leave a party in a state of destitution at the Action for money ■belonging to third parties. Deposit. Defence. Infraction of Revenue Laws. Confiscation, Fostponements. Rights ol CMWreur"- 18R5. BcKtitution of the Parent. Stamp — Acknowledg" mnit of a balance. Letters — Collateral Evidence. Assignment of a debt. Former Transactions. [tol stiit of her cliildren ; but if the latter insist upon their right, that right murit be euiorced, however harsh the proceeding may appear. If however the cnstomary law of the district would give her any right to the occupancy of the land claimed, during her life, on the ground of her relationship, her poverty and of her having been allowed to continue for so many years to reside upon it, the Court would gladly sanction a decree which would Secure her from being turned out of the land.— No. 1613, D. C, Wallegame (M.) Dec. 30, (M. N.) 293. — A document acknowledging a balaace to be due on settlement of account, was held admis- sible in evidence under cl. 9 of the Keg. No. 4 of 1827 (and conclusive against the party sign- ing it,) for the collateral purpose of shewing what the balance was, though it could not have been received in evidence, if attempted to be enforced as a Promissory Note. So a letter would be ad- missible if produced not for the purpose of en- forcing it as an agreement but to increase by its collateral evidence the probability of any fact having taken place. — No. 4099, l). 0. Colombo, S. (M.) 294. — After a debtor has admitted a specific sum to be due by him on settlement of accounta, and after that debt has been assigned over on good consideration to a third party, the debtor is not at liberty to rake up old transactions of many years standing, and to bring forward admis- sions of the original creditor, so as to affect the assignee of the debt. And even if no assignment of the debt took place, and the action is between the original parties, the strongest evidence would be required to rebut the solemn acknowledgment of a debtor.-^Jbid. 1836. Costs against an Executor. Divisions of the Island into Provinces, Circuits, and Districts. Jurisdiction of District Coui-ts. Transfer of a case, Avhere tlie Jud^,. is a pai-ty. January 6, 1836. 2P5. — Where an Executor or Administrator pleads a false plea, lie is liable to the costs out of iis own property. — No. 565, D. 0. Manar, (M.) 296. — The Island is divided, by the Proclama- tion of the 1st October 1833, into Provinces as regards Revenue matters. It is divided by the Charter into Circuits and the District of Colombo, and again by the Proclamation sub-divided into L'islricts as regards the administratiou of Justice. It is the judicial division of District and not the Revenue division of Province, which must decide the question of jurisdiction. — No. 2432, D. C. Trincomalie, (M.) 297. — Where one of two defendants in a suit ■was the Judge of the District tlourt in whicli the suit had been instituted, the Supreme Court or- dered the case to be transferred to the (.'ourt of an adjoining District (Trincomalie); which, under cl. 24 of the Charter, was held competent to en- tertain the case as against that defendant, and having been elected by the plaintiff as one of the districts immediately adjoining, was bound to hear and decide it, unless some very strong rea- son should be shewn for transferring it to another Court. — Ihid. 298. — Where possession has been enjoyed for many years uninterruptedly and without contest, the title or right of possession becomes in fact an adverse one against all the world ; because as no body has disputed it, the law presumes that the possessor has aJWtter right to it than any other, even though he has not a single paper or docu- ment to shew in support of his title. And this is the very essence of a Title by Prescription. — No. 1652, D. 0. Negombo, (M.) 299. — MTi^re a Proctor has not been employed Proctor,— as a Proctor in the particular business which whencmnpetent forms the subject of the .enquiry, ie is not inad- Possessiou — Adverse title. 1836. Interpretsr — Opinion and Evidence of. Evidence to discredit a "W'ituesii. Sole of mortgaged property — Opposition by the Creditor. Amendment of Libel. 172] missible as a witness, even ttowgh he may have been consulted confidentially : and the reason is that any disclosures made to him by the party were not made to him as his proctor, in which charac- ter alone, viz. as the retained counsel or proctor, the ohh'gation to secrecy exists. — Ibid. 300. — The opinion of an Interpreter of the Court is the best that can be obtained as to the precise meaning of words and expressions in a native deed. But his opinion, as Interpreter, can scarcely be received as matter of inference that " if the plantation alone had been intended in a deed, the deed ought or would have specified the plantation," for this is a matter not so much of interpretation of languages as of law or custom. If he is sufficiently acquainted with the custom to give evidence of it, he may be asked, not as Interpreter, but as a witness, what the custom of the country is with respect to the wording of deeds in distinguishing between ground -share and planter's-sharer— No. 7991, D. C. Colombo, N. (M.) 301. — A deed should not he received in evi- dence for the purpose of discrediting a Witness. The rule on the subject is, that the general cha- racter only of a witness may be enquired into, but not particular facts or occurrences ; because every man may be supposed capable of supporting hig general character, though he may not be prepared to answer to particular facts, not in issue, and of which therefore he would have no notice. — No. 11371, D. C. Colombo, S. (M.) Jan. 13. 302. — It by no means follows that because a creditor did not assert his right, at a Fiscal's sale, so earnestly as he might have done, he has forfeit- ed his right to recover the debt due on a mort- gage of the land sold.— No. 2507, D. 0. CMlaw, (M.) 303. — A plaintiff is entitled to amend his libel, provided the proposed amendment be such as, if introduced in the first instance, would not have rendered the libel inadmissible. As it would be [73] 1836. HO objection to the receptiou of a libel in tbe first instance that it includes both principal and inter- est, so there is no reason \^hy the plaintiff should not be allowed to add his claim for the principal to one originally made for interest, without sub- jecting the parties to the expense of a double action.— No. 6776, D. C. Colombo, S. (M.) 304. — In a case from Ratnapoora, where the fact of the adoption of certain children had been proved to the satisfaction of the Court; Held that there was no good reason why the adopted sons should not be joined with the widow in the admi- nistration of the husband's estate. — No. 4, D. 0. Ratnapoora, (M.) Jan. 20, (M. E.) 305. — Where the plaintiff, a Buddhist Priest, claimed a certain field, by virtue of a sale and of ■uninterrupted possesssion on the part of the Tem- ple from the time of such sale ; and the evidence adduced in the case only proved a constant pos- session by the alleged vendor and the defendant, but paying anda to the Temple ; Held I, that if the plaintiff had rested his claim to the om«Za-share alone on the prescriptive right acquired by long payment, he might probably have been entitled to a continuance of that payment ; but as he had founded it on & sale and on uninterrupted pos- session (neither of which had been satisfactorily proved,) the action should have been dismissed ; but held 2, that the defendant having admitted that anda was due to the Temple, and that he had tendered thirty ridies, which liad been refus- ed, the field was liablo to the extent of that ad- mission, bnt no further ; and that the property in the field should be declared to be in the defendant, and, after payment of the thirty ridies, it should be exempted from the payment of the anda- ehare. — No. 747, D. C. Ratnapoora, (M.) 306. — The bare production of an instrument, tmsupported by proof, amounts to nothing at all. —Ibid. 307.— The Procl. of the 25th March 1824 has been virtually repealed, at least as regards the first BIX clauses of it, by cl. 56 of the Charter, taken in Adopted. ChiWren, ioined as Administratoi-s. Claim foUiiiled on a Sale and Variance. Admission by defendant. Proof of an Instrument. Stamp duty- 1886. Exemption in favour of Temples. Eules of Practice. Value of the property in suit, how ascertained. Appeal in forma piiuperis — i*rovisioii as to futui'e costs. Eights of the Govemment — Ohjeetion hy a third party. Eight of re-selling, on default of the purchaser. Confiscation — Delay on the part of Govt. Officers, [74] connection witli the order of the Supreme Court of the 1st October 1838, establishing the table of Stamps to be levied in District Courts, and in which no exception is made in favour of Temples and of those appearing on behalf of Temples. — Ibid. Jan. 27, (M. E.) 308.— The Rules of Practice were never in- tended to provide for every possible emergency or for every collateral step which might become necessary in the progress of a suit. Where the vakie fixed by the plaintiff on the property in dispute, is contested by the defend- ant, the practice of the Courts has always been to allow a Commission to appraise the property ; and it by no means follows that because this course is not expressly provided for by Regula- tion or by the Rules, it cannot be legally adopted. —No. 1982, D. C. Caltura, (M.) 809. — Where a defendant, as appellant, suc- ceeded in appeal, (the plaintiff proceediiig-.4!i8;,ss: pauper,) it was ordered that in case of the plain- tiff olitaiuihg a dftccee in his favour in the Court below, the costs incurred by the defendant in his appeal should be deducted out of the costs which might be awarded to the plaintiff. — Ibid. February 3, (M. R. N.) 310. — The objection that the property claimed by a party is Ratmahare land, is an objection for the Government, and not for a private party, to urge.— No. 2563, D. 0. Ruanwelle, (N.) 311. — The condition as to the creditor's option to insist on a resale in case of default in the pay- ment of the purchase-money, cannot be taken ad- vantage of in the way of redemption by the debtor, who forfeits all title to the land from the moment of sale if not of seizure in execution, far less by a person who is a mere claimant through the debtor. — Ibid. 312. — On an appeal against a decree confiscat- ing a dhoney, it appeared that the vessel had arrived at Calpentyn in September 1834, and that the action had not been brought until October [75] 1886. 1835. The only excuse alleged for this delay was that the plaintiff (the Onstom-master of Calpentyn) had waited till he was furnished with a copy of the Manar port-clearance. Per Marshall, C. J. — '' The Supreme Court can scarcely suppose that the plaintiff was serious in assigning as a reason for twelve months' delay in the execution of his duty, the want of a document which it must be presum- ed might have been procured with the greatest «ase in a week. The Crown, it is true, is not hound by the ordinary rules of Prescription ; but it is the duty of the Courts of Justice to enquire into any apparent neglect on the part of the Offi- cers of Government, by which hardship or injus- tice may be done to those who are prosecuted for breach of the Revenue Laws. And both hard- ship and injustice must be inflicted by any un- necessary delay in the institution of such prose- cutions. Unless therefore it can be shewn t±iat the plaintiff was prevented by some cause over which he had no controul from procuring the port- clearance within a reasonable time, the S. 0. will feel it to be its duty to r«;ommend to the Govern- ment a remission of the confiscation, even if the defendant should fail in establishing a good ground of defence."— No. 2547, D. 0. Chilaw, (M.) Feb. 6, (M. R. N.) 313. — The right of re-entry, on the ground of non-cultivation can only be enforced by a Court of Justice on proof of such neglect; and, as re- gards Crown-lands ; Held that if the Government had determined on resuming possession on the groimd of non-compliance with the conditions of the original grant, such resumption would not be presumed, even where it appeared that the Go- vernment-share had never been paid ; but should fee proved to hate been made in a public authen- tic shape, and recorded in the Court by which it had been adjudicated. — No. 6715, D. 0. Colombo, S. (M.) 314. — The abandonment of Cinnamon-grounds, during the time when the cultivation or destruc- tion of Cinnamon was prohibited by Government, does not operate as a dereliction of all future right Eight of Re-entry, how enforced. Dereliction of Cinnamon- grounds, 1836. Marriage lUegitimacy. GoTemment Fi'ocliunaUon. Prescription — Possession by Crown of Cin- namon-grounds. Matrimonial Jurisdiction. [76] to the land, so as to pTeclude the owner _ front reckiming.it from Government on the abolition of such exclusive right. — Ibid. 315. — It was urged in appeal, that the plaintiffs, who claimed certain lands as the children of A. appeared, according to a Thombo-extract produc- ed in the case, to have been born out of wedlock ; but ttiis objection not having been taken in the Court below, the Supreme Court refused to enter- tain it, and held that, even if it had been so taken, the answer would have been that half the natives in the Island might probably be dispossessed of their property, if it were necessary for them to shew a regular marriage between their parents. —Ibid. 316. — The effect of an Advertisement or Pro- clamation by Government would depend on the terms of it, on the degree of publicity given to it, and on the effect it might have produced on the public in general. — Ibid. 317. — Where the Crown had the right to ■iako the cultivation of Cinnamon -lai.d into its own hands exclusively, ond the owner of the soil, as he ^uid in no way interfere with, or impede such cultivation, ceased at length to derive any ad- vantage whatever from the naked right of pos- session ; Held that an occupancy by the Crown under such circumstances, was not that species of possession which the Law of Prescription con- templates, and which presumes a voluntary ac- quiescence on the part of the claimant — Ibid. 318. — The District Courts have jurisdiction over matrimonial causes and possess the power of dissolving a Marriage. The words " aU suits" in cl. 24 of the Charter, comprehend matrimonial causes as well as others ; it having been the in- tention of those who framed the Charter to con- fer the most extensive jurisdiction on the District Courts in all but criminal matters of a grave nature, and a matrimonial jurisdiction among others. IQu. whether the District Courts have the power of granting a divorce, when the parties belong to another nation or hav e married in a [77] ]83ff. foreign country ?] With respect to the Supreme Court exercising thia jurisdiction, Held that as the above clause does vest it in the District Courts, it must be exercised by them, under the terms of the 29th clause, exdusiveli/. — No. 11016, D. C. Colombo, S. (M.) 319. — In suits for Divorce, although it may appear at first sight that parties would be without appeal to the King in Council, where no value appears as the measure of the inj iiry sought to be redressed; yet the Supreme Court will supply that apparent omission by considering every case of this description as above the value of £500, since questions of this nature cannot be measured, as to their importance, by money to any amount. — Ibid. Feb. 18, (R. N.) 320.— The 7th Clause of the Reg. No. 13 of 1822, contemplates, as regards the wages of ar- tisans, labourers and servants, only minor earn- ings payable daily, weekly, monthly or at such other olrsW period as would justify the presump- tion of payment and the consequent prescription, if not sued for wifMn one year ; but where a party has agreed in writing to pay a fixed sum on the completion of a certain work, at some indefinite period, it cannot be considered as wages within the meaning of the 7th clause, but may be sued for at any period within 10 years, under the 4th clause, as explained by Reg. No. 6 of 1825. — No. 564, D. C. Wadimoratchy, (N.) March 30, (N. R.) The Hon'ble Sir William Norris, Knt., was sworn in as Chief Justice. April 9, (N. R. C.) The Hon'ble William Ogle Carr, Esquire, was sworn in as Acting Second Puisne Justice. 321. — The subject of Namptissement is not, it is true, mentioned in the Rules and Orders, but the same may be said of almost innumerable other matters, which it would have been useless as well as impracticable to have embraced within a com- pilation intended merely for the guidance of the Suit for a Divorce — Ap;ieal to the Privy Council. - Prescription — Wages of Artisans, &c. Namptisse- ment — Rules & Orders 1836. Priority of Creditors. Carrier — OLligations of. Proof of the voyage. Damages- Costs. Title under a I'itocal's Sale. [78] District r-ourts in matters of every-day impor- tance.— No. 2632, D. 0. Galle, (N.) 322. — Hard as it may seem, it is nevertheless clear that by the Civil Law the activity and dili- gence of a creditor are not sufficient to entitle him to the fruits of his superior diligence, to the exclusion of other creditors -whose claims are pri- or in point of date, so long as the property or its proceeds are within the custody or control of the Court.— No. 2368, D. 0. Jaffna, (N.) Jp«716, (N. R. C.)_ 323. — Everything is negligence in a Carrier or a Hoyman (master of a carrying vessel,) that the Law does not excuse. He is answerable for goods whilst in his custody and in all events, except they happen to be damaged by the act of God er the King's enemies. And a promise to carry safely is a promise to keep safely.* And though the party be no common carrier, yet if he takes hire, he may be charged upon his special promise.-j- Where it was attempted to be proved that the injury to the goods shipped in a vessel" had oc- curred through u- iuaworthiness of the vessel ; Held that this evidence was unnecessary, as the evidence was forcible in proof of the goods hav- ing been put on board dry and in sound condi- tion.— No. 6613, D. C. Colombo, S. (R.) 324. — Where damages have been allowed, they should cany costs with them. — No. 3696, D. C. Four Corles, (C.) April 20, (N. R. C.) 325. — A Fiscal's Sale is not of necessity bind- ing, so as to give an irresponsible title to the pur- • See Voet ad Pmid. iv. 9. — Van Leeuw Cms. For. part. 1. lib. XXX. tit. 3.— Bynliersh, Q. J. Priv. c. iv.— V. d. Keessel, Thes. 083, 3.— V. Linden, Jud. Praot. p. 370, and per Eough J.— " Tlie passage in Uollay b. ii. c. 3. § 13, stating tbat by the JWarine Law, he that will cliai-ge a Master with a fault, as in re- lation to bis duty, must not tliink that a general charge is suf- ficient in law, but ought to assign and specify the very fault wherewith he is charged,— certainly must have reference to suits ex dfhcto only. The dictum is inapplicable to cases of con- rwV'";;^^^ alsoZlaZe v. Hall, lWils.28], and Ooff^. CUnkard, 1 \\ils. 383. + liacon's Abridg. vol. Salk. Eep. 12. Carriers B.~Palm. Rep. 53S.-» [79 ] 1836. chaser against all claimants. — No. 5663, D. C. Matura, (R.) 326. — In an action to recover certain cattle from the defendant, the Supreme Court held that the length of possession of the cattle by the de- fendant, having been accompanied (as appear- ed by the evidence of one of the witnesses, a PoKce Vidahn,) by an acknowldgment of the title of the plaintiff, was no bar to the plaintiff's claim, and remanded the case for further evidence. —No. 2643, D. 0. BaUiccdoa, (0.) 327. — A District Judge may not alter his own decree.— No. 1624, D. C. Walligame, (R.) 328. — A case was remanded to the District Court, in order that the defsndant's witnesses might be heard and the case re-decided, if the defendant should satisfy the District Court that he had really been misled (sbs alleged by her Proctor,) by one of the clerks of the Court. — No. 7799, D. ^£,_(7o7ombo, iV. (N.) 329. — It did not clearly appear in what cha- racter a person called as a v/itness in a case Jiad acted, in amending a certain bill at the plaintiffs request, in a former suit : but held that if he was then acting as the Proctor for the plaintiff, or as an Interpreter or Agent for such Proctor between him and the plaintiff, his evidence of any commu- nications made to him in that suit by the plain- tiff would be inadmissible against the latter in the subsequent case. — No. 2196, D. 0. Batticoloa, (0.) April 27, (N. R. 0.) 330. — The plaintiff's admission of a part-pay- ment certainly discharges the defendant from prov- ing such payment, but it raises no presumption against the plaintiff's claim for the arrears due. Where the bond is admitted and has been allowed to remain in the plaintiff's possession uncancelled, it is for the defendant to discharge himself there- from.— No. 1370, D. C. Caltwra, (C.) May 4. . 331. — Where a party had expended money in defraying the funeral expenses of her deceased Possession — Acknowledg- ment of title. Decree, — can- not be altered. Party — misled by a cleric of the Court. Proctor — Proctor's Agent. Privileged communication. Admission of part-payment. Pond- Proof of payment. Funeral Expenses. 183G. [80T Agreement — Accexjtance of offers made. Eeyersal of a Decree on contradictory evidence and on Possession proved, though not pleaded. Decree — Third Parties. Arljitration — Want of Assent of the Pai-ties. Report of Uie Arbitrator. illeffitimate hustand, which she was not bound m law to provide for, she was held entitled to re- cover re-payment thereof from the personal repre- sentative of the deceased out of the assets or pro- perty left by him.— No. 3109, D. C. Trincoma- lie, (0.) Ilai/ 7, (N. E. C.) 332. — Where there was no satisfactory evi- dence to shew that certain offers made by the defendant had been accepted, either expressly or impliedly, by the plaintiff; ffeld that there could not be said to have been any Agreement between them.— No. 9645, D. 0. Colombo, S. (N.) 333. — A decree of the District Court of Kandy was reversed in appeal ; and per Oarr J. — " The Supreme Court discredits the evidence ad- duced by the plaintiff, considering the variances in the testimony of his several witnesses, more es- pecially as the length of time which the plaintiff has allowed the defendant to retain possession.pf the property in dispute, without hav-ng any writ- ten acknowledgment or evidonce in proof of his right and without instituting any action for the xeco-very of the said property, would have been a bar to theia- suit ui;der the Reg. No. 8 of 1834, if it tad been properly pleaded." — No. 7476, D. C. Kandij., 358. — The Supreme Court haa no power to al- ter or amend its own decree without the consent of both parties ; but may give any explanatory tence. A Judge may alter or recal an interlocutory sentence, tliongh he may not change or alter a definitive one B"t a* the lase is nowjilleged to stand, you have avoided and passed ovsr without notice youi' own previou& order." [87 1 1830. direction wLicli may be necessary in order to car- ry out a decree properly into effect. — No. ',173, D. C. Matura, (N.) 359. — "Where Possession ia alleged generally, without stating special circumstances, as planting, dwelling thereon, &c., the expression need not ne- cessarily be confined to mean the actual occupaiion, but is capable of being understood in its -more general sense of th« party being the proprietor or owner of the land, especially where the possession of the actual occupier, paying ground-share to the plaintiff, would in construction of law be the pos- session of the latter. — No. 905, D. 0. Four Corles, (C.) 360. — Where it appeared that the plaintiff had inherited the land in dispute from her parents, and that it had been mortgaged nearly twenty years before to the defendant, but that there had been an acknowledgmnt of the plaintiff's title till within the last eight years, when the defendant's possession became adverse ; Ihld 1, that such possession of the defendant did not give him a prescriptive title, and that the plaintiif would be entitled still to recover it on payment of the al- leged debt due on the mortgage, unless the defend- ant could adduce evidence ia support of his title to set aside the claim of the plaintiff; and 2, that it being a rule that the right of the Heir is favor- ed, and that he cannot be disinherited except on clear proof, the plaintiff had a right to know by what means, or under what deed he was to be disinherited; and therefore that the defendant should produce the deed under which he claimed, or shoiild give satisfactory evidence of his title. — Ibid. 361. — The payment of produce or ground-share by the defendant (who claimed as mortgagee,) to the plaintiff, was held not inconsistent with the usual practice of the mortgagees' retaining the produce- for their interest ; for it is not improbable, when, knd is mortgaged to a small amount and below tbe value thereof, that the mortgagees might be the goiyas of, or allowed to cultivate, the whole Und, on payment of part of the produce to the ' Possession''- Occupation. Possession^ Acknowledg- ment of Title. Presumption iu favour of the Heir. Payment of produce — wliere produce is to be letained in lieu of Interest. iraB. iDeecls — thirty yeaa'S old. X)emun"er. Action against tlie Executor of an Aclministra- 406. — The JVi7?e-proprietor may assert his right to cultivate the land on payment of the usual fees and performance of the accustomed services ; and the owner has no right to eject any such tenant but on clear proof of his not pajring such fees or not performing the usual services. And a Court of Equity will generally relieve against a forfei- ture for non-performance of a, condition or cove- [101] 1S36. nant of a Lessee, where compensation can be Made.* As to the custom of a succeeding or incoming tenant being entitled to the crop on the land when he takes possession, and the argument there- from that a party who had been ejected from th& land previous to the expiration of his term, could have sustained no hardship thereby as he must have himself in like manner enjoyed the produce of the crop of the preceding tenant ; Seld that Siuch custom obviously applies only to those cases. where the last tenant has occupied the land for the fuU period of his term, viz. one year, accord- ing to the accustomed tenure. — No. 794, D. C. Ralnapoora, (C.) 407. — A verbal bequest is void as to lands, and also as to goods, unless accompanied by a deUvery of such goods according to the Proclamation of the 2Sth Oct. 1820.— No. 971, D. C. Seven Corles, (C.) 408. — By the Kandian Law, Nephews and Nieces of the whole blood succeed before Nephews and Nieces, as well as Brothers even, of the half blood.f — Ihid. Oct. 29, (E. St. C.) 409. — A defendant who was sued for Me share of the rent o£ a garden held by him in partner- ship with the plaintiff, having altogether denied both the renting and the plaintiff's request to pay the amount in question, (which were proved,) was held not entitled to enter into evidence to prove payment of the amount claimed by the plaintiff. — No. 3331, D. C. Tri.ncoma.lie, (C.) 410. — In an action for the recovery of certain silver articles pawned by the plaintiff with the defendant, the Court, on examination of the plain- tiff, finding that the plaintiff had failed to secure himself either by a written instrument or by get- ting the Police to witness the transaction, (as re- quired by cl. 21 of the Ord. No. 3 of 1834), dis- Eights of in- coming Tenant. Custom. Verljal Bequest. Kandian Law. Succession of Nephews, ifee. Pleading — Proof of Payment. Pawn — Action t» recover. Compliance with Police Ordinance. • 12. Ves. 475. + Sawyer's Digest, p. 37. 1S36. C 102 ] Several claims in the same suit. Prayer for ' further relief.' Costs. Action against a MaiTied "Woman. Divorce. missed the plaintiff's action. The plaintiff having appealed against this judgment on the ground 1, that the articles had been pledged openly and in the presence of several people, and 2, that the defendant had subsequently promised to return the articles, the judgment was affirmed ; but Held that had it appeared from the pleadings that proof would be given as to the fact in the petition of appeal, of an acknowledgment on the part of the defendant of articles received, there might have been ground for referring the case back ; as such an acknowledgment would probably be held to take the case out of the Ordinance referred to. — No. 12169, D. C. Colombo, N. (E.) 411.' — Where the plaintiff by his Libel claimed certain lands and also certain expenses incurred by him for payment of debts &c., the Supreme Court, on the evidence adduced in the case, dis- missed the plaintiff's claim to the land in dispute, but remanded the case for further evidence as to the other claims ; a,ndper Oarr J., — " The plain- tiff, under the allegation in his Libel of expenses incurred, and the concluding prayer therein for other or further relief, was entitled in this suit to recover compensation for any such loss or expen- ses which he proved ; and as he sues as a pauper, it is for the advantage also of the defendant that another suit should not be now instituted for the above purpose. The case is accordingly referred back to the District Court to take further evi- dence as to and decide upon such claims of the plaintiff for compensation as aforesaid, and it is ordered that the defendant do Tpayfitture costs only in the class of the damages, if any, decreed." — No. 3609, D. C. Four Carles, 429. — A plaintiff having, during the hearing of the case, caUed and examined &, witness^ and ^en plaintiff to obtain Cession of Action. Evidence of payment, as against Tliird parties. Alteration of a Decree. Waiver of one of the grounds^ ofactioD/ 1838. Fiscal's Eetum. " Not to be found." Sequestration cannot be issued into other Districts. Waiver of Plea to tbe Jurisdn. tll2] intimated by lier Proctor to the District Court " that as the talipot upon which the action was brouglit was not before the Court, she would not adduce any evidence in proof of it ;" and having therefore proceeded to adduce evidence in support of her second ground of action, viz., a title by prescription ; Sdd that she could not be allowed upon a subsequent day to adduce evidence again in support of her first ground of action, that being a distinct part of her case on which she had al- ready gone into evidence on a former day, and had not only clearly failed to establish by proof, but was also considered on the above record of the proceedings to have been waived and aban- doned.— No. 7519, D. C. Kandy, (C), 430. — A Return from the Fiscal of Jaffiia on a Warrant, to the effect that " the defendant was gone to Aripo," which is within the same Fiscal's Province, was held not tantamount to the return of " not to be found."— No 2429, D. C. iS'e^om- 6o, (C.)* 431. — Sequestration cannot be issued into other districts under rule 15 of sec. I. This rule limits the Sequestration to property within the district in which the action is brought. Besides which, the subseqwent proceedings, — such as calling on the defendant to appear, the dissolution of the sequestration in case of appearance, the entertain- ing the claims of third parties, and the staying of original proceedings pending such claims, — would all be very difficult of execution in a district fo- reign to that in which the action was brought. Execution indeed may issue into other district* (rule 36, sec. i.), but the same objections do not present themselves in that stage of the proceed- ings. — Ihid. 432. — The objection to the defendant being out of the jurisdiction of the Court in which the ac- tion has been brought, (cl 24 of the Charter,) may be considered waived by his appearance and sub- mitting to the same. — Ihid. ' See' also Circular Letter of Ole STtJi- February 18&t. [113] i83e. 433. — Where the plaintiff, by his Libel, claim- ed only a specific sum of money, as house-rent, and that the defendant might be condemned " to dehver over the house and pay costs of suit ;" Seld that the District Court could not give judg- ment for subsequent arrears of rent ; and per Oaer J. — " The Libel has not even the usual conclud- ing prayer for ' such other relief as the Court may deem meet,' upon -which the decree for sub- sequent arrears might be supported." — No. 12126, D. 0. Colovnho, N, (C.) 4:34. — The Supreme Court expressed its re- luctance to refer back a trifling case for further evidence, where it felt satisfied of the moral jus- tice of the decision appealed against ; but held\\^i a defendant had an undoubted right to insist upon the claim brought against him being legally proved, though he might probably incur only further ex- pense by the objection. — Ihid. 435. — Though there is no express general order in the Rules and Orders on the subject of reviving a suit which has abated by the death of either of the parties, it has been the settled practice of the District Courts of Colbmbof upon any party (either plaintiff or defendant) dying, to allow the old suit to be revived instead of another action being brought ; and where a plaintiff had died pending the suit, a party applying to he allowed to revive it, was held entitled to do so, on his proving to the satisfaction of the District Court that he ■was the sole administrator of the deceased plain- tiff. The Supreme Court had, on a former occa- sion, upon a reference fi-om the District Court of Madawellatenne, expressed its opinion* as to the practice in such cases, that " if a plaintiff, upon a Buit having become abated by the death of the defendant, «hauld persist in bringing a fresh ac- tion, without being able to shew good cause for so doing, the costs incurred by such unnecessary pro- ceeding should be borne by the plaintiff." — No. 2874, D. C. Negombo, (C.> Claim of a specific Slim — Subsequent Arrears. Prayer fop further Belief. Deft.'s right to insist upon. legal proof. Eevivor of a suit abated bjt the death of a party. Fresli Actiony without revivor— Costs. ■ Letter Book, 9th Oct. 1834. i836. [114] Malice, •when implied. General Denial — Defence. Sreneral Denial — Bnrthen of Proof — viz. Fos3easiou — Titie— Value — Damages. Administration to deceased's Wife's estate->- Delay. (guardianship of the childien. 4:36. — Where a charge appears to have been clearly false aBil without any prohahle cause, the Law will imply malice. — No. 3361, D.C Chilcm^ (0.) 437. — Where the defendanthad omitted to plead the 21st clause of the Ordinance No. 3 of 1834, or the 6th clause of the Ordinance No. 8 of 1834 in bar of the plaintiff's claim, but had only put in a geaeral denial by Answer ; Seld that the case ehouM be decided on the evidence additced therein, —No. 10419, D. 0. Colombo, N, (0.) Ike. 21. (R. St. C.) 438. — Where th« defendant by his Answer " denies the claim set forth in the pkiatifFs Libel," it is incumbent on the plaintiff to prove every necessary allegation or fact therein in support of his claim. In an action to recover a carriage claimed by the plaintiff from the defendant, it was held that, upon the foregoing answer, the defend- ant's poBsessien of the carriage being admitted, the plaintiff should have proved his title thereta and the value thereof when the defendant first took it J or if he wished to recover back th« car- riage with a eompensatioa for damages wt(ich it hjid sustained since it had been, in the defendant's possession, that .he should have adduced satis-' factory evidence of siich diamageSi Where no proof of the value of th« carriage or of the da- mage done thereto had been offered, the utmost that the Court could decree, suppoaag the plain- tiff's title to the carriage proved, would be thff restoration of the carriage with costs of suit.— No. 3253, D. 0. Chdlaw, (C.) 439. — The Husband has a preferaMe claim to administration of the estate of his deceased Wife, and should not be deprived of it owing to a delay in applying for it, which may have arisen from error, if. he be willing to rectify it upon giviog security and taking out Letters of Administsa- tion within a short time (twenty days.) And as regards the guardianship of children, it could- be only under very strong circumstances indeed against the character and conduct of a Father, that the Supreme Court would allow him to be [115 J 1838. deprived of his child, of which he is the tia+tiral etiafdian, and appoint another person to be her ftiture guardian. — No. 10, D. C. Amblangodde, (C.) 440. — "Where, after the death of the wife, the husband, previous to obtaining administration to her estate, had, for himself and as guardian of his minor child, brought an action [in respect of pro- perty belonging to the common estate,] the Su- preme Court allowed the husband time to obtain Letters of Administration to his wife's estate. — Ibid. 441.— The rule laid down in No. 128, D. C. CMvagacherry, (4th June 1834,) and No. 2587, D. C. Ruanwelle, (20th Jan. 1836,) in respect of the double sum payable under the Government conditions as penalty for having reaped without due notice (viz. that these conditions form a mere contract between the Government and the Renter, but are not binding on third parties further than such parties may by their own acts have made themselves responsible to Government and the Renters,) was repeated in No. 792, D. C. Tenmo' ratch-t/, (C.) 442. — No alteration or insertion ought to be made in the minutes of evidence at the time when the witness is under examination ; and no omis- Bion in recording the depositions (if due attention be paid,) can possibly occur, which would not be capable of a very short interlineation ; for if a witness subsequently corrects his former evidence or is recalled for further examination, such addi- tional evidence must not be recorded by an alter- ation of the former statement or by inserting it on the margin of his former depositions, but should be duly recorded in the stage of the written proceedings in which it was made. — Ibid. Dtc. 28. 443. — On reading a letter from the District Judge of GaUe transmitting a case which had been heard in appeal, together with the decree passed therein by the Supreme Court on the 12th No- vember, it was ordered that the clerical error Administration ling an action. Conditions, not binding on Third parties. Mode of recording depositions. Alteration of a clerical error in a Decree. 1836. I" 116 3 ■pointed out by the District Judge in the said de- cree as to the date of a deed thereby required to be proved, should be amended, by the year 1831 in the date of the said deed (mentioned in the 7th line of the decree) being altered into the year 1834.— No. 2689, D. C. Galle, (0.) Dec. 31, 0SG of bringing the person accused to justice.* And thereupon the defendant was condemned in £15 as damages and the costs of suit. On an appeal against this decision, the Judges Judgment in of the Supremo Court affirmed it, hut deUvered- Appeal, their judgments severally ; and as these are not recorded in the Minutes, the original MSS. being merely filed separately in the Draft-Judgraent Book, they are here given, severally in a digest- ed form : — Rough C. J. — The question for enquiry is whether the plaintiff's action is maintainable, and whether he is entitled to recover damages against the defendant. The defendant writes to Col. Ar- buthnot stating his own conviction of the plaintiff's misconduct, with the view of protecting Colonel Arbuthnot's interests and to prevent the plaintiff from being retained by him. And it is argued that this was merely the performance of a duty,, and was unaccompanied by any malice ; and that, being a confidential communication, which he the defendant had a right to make, and being found- ed in the feeUef of its truth, he cannot be held responsible for it. But if in its form and structure pf expression, it bears upon it evident marks of an intention unduly -to injure, it is not because it is termed and designed to be confidential, that protection must therefore be extended to it. Such a communication is not the lees Kbellous, because meant only for the ear of the individual whose con- ductit is intended to guide and sway. Butitis urged again that circumstances may rebut the inference of malice ; that the letter being openly signed and aubscribed by the defendant, and the previous consultation entered into by him with respectable individuals as to the jjropriety of sending such a letter, tend to demonstrate that a sense of public or private duty alone was the motive influencing. * Giot. Intnd. iii. 36. §' 2,— D. Hamester, v. 2. t. 2, de injur. — Kersteman, Acad. a. ix. — ^Van Hasselt, Crim. 1). ii. o. 19. § 6, 1, 13' — ^Voet, Comm. ad Inst, lib, iv. t. i. — Van Zutphen, Fract. tit. de inJKr. § 4. — A. Gail, Obeerv. h. ii. obs. 99. — A. Corvinus, Dig. lib. xlvii. t. 10. — Lauterbach, Compend. lib. xItIj. t. 10. — A. Tirai. Cmvment. lib. iv. t. 4. — Van Leeuw. Cens. For. p. i. Ub. V. 0. 26. And see Hopman v. Sturk decided in January 182S, CGiffard C. J.,) by the late High Court of Appeal. 1830. C 120 I this act. I confess however, after cautions medi- ation, I cannot but be of opinion that the de- claration of the dissentient Assessor as to the can- donr -which is due frona one EngUshman to another and the John-Bull honesty of intention which guided the conduct of the defendant towards Ool. Arbuthnot, partakes more of the zeal of an Ad- vocate than the calmness of a sworn Juror. In opposition to this, I have the judgment of the Dis- trict Judge and the two other Assessors, and I' ata to express ray own, opinion upon the letter itself. It is clear from the evidence that this' letter was a work of great deliberation, and it is idle to talk of it as the character of a Servant' given by his Master. It is not indeed pretended' that it is such ; and it seems to me impossible not to feel that the existing motive for thus writing, though it be to serve Colonel Arbuthnot, is yet at the same time more effectively apparent; inju- riously to prevent the employment of the pMntifE- It must always be borne in mind that however impressed the defendant's mind was with a con- viction of the plaintiff's wrong doings, he yet' made no effort whatever to bring him through any magisterial enquiry to justice ; and yet, hav- ing avoided to do this, he in the most undoubting manner communicates to Colonel Arbuthnot his suspicion, as if suspicion was equivalent to proof. He scarcely leaves it to Colonel Arbuthnot to form a judgment, but boldly afi&rms what after all can only be suspicion ; and not only does he state his belief as to that in which he himself has a personal concern, but he goes out of his way to insinuate charges, the truth of which he possesses no means whatever of being at all assured of. I cannot think this a letter which should have been written on such an occasion, and to this act of writing such may well be applied the maxim cited by the Senior Puisne Justice,, that it is impru' dentta dolo proxima. But again a justification of this letter is sought to be founded on an allegation that the plaintiff was by common consent a man destitute of all character, and therefore not en- titled to recover damages at the hands of justice for any injurious expressions used towards, him. [121] The proof of this has however utterly failed ; for not only had he a character sufficiently good to entitle him to be recommended to service by Col. Arbuthnot's butler, but the very charge brought against him was founded on suspicion only ; and where there is a possibility of doubt, it cannot but be dangerous to assert criminality in the uncompromising manner in which this has been done. It is scarcely necessary, under these circumstances, to enquire whether or not the Dis- trict Judge has betrayed some inconsistency in re- ceiving evidence, amd entering upon the merits of the case, and yet giving as his judgment that in cases of written injury the truth of the slander cannot be received in justification, and scarcely in mitigation of damages. In the case decided by Sir Mardinge Gfiffard it appears to have been laid down by that learned Judge that the truth of an allegation can be received in justification neither of verbal nor written slander ; but he admitted evidence in mitigation of damages. In modern Boman-Dutch Law, the opinion seems to prevail that in cases of verbal injury, truth may be given in evidence, perhaps in justification, certainly in mitigation. Van der Keessel, Thes. 803. In Titter- ton V. Armstrong, decided in 1831 by the then act- ing Chief Justice (Sir Charles Marshall,) it seems not to have occurred to him that written injurious slander might not be justified, were the facts stat- ed proved to be true. The cases are not however irreconciliable ; and this point does not require to be gone into on the present occasion, conceiving this letter to be an unguarded, rash and in many material respects unfounded, and therefore in a legal view a mahcions, communication, I think the Judgment of the District Court must be affirmed. ' Jerbmib J. — Whilst confirming the decree of the District Judge, I differ so materially from him on the Law, that it appears bufr right to guard against the possibility of my sentiments being mistaken on a point of so much importance. I concur in the opinions of the two very learned Justices who determined in two preceding in- stances cases of this nature, that of Sir Hardinge Giffard in the case of Mo^man v. Stork, and of 18»7. 18S7. j; 122 3 Sir Charles Marshall in Titterton v. Armstrong. And I not only conceive that there is no discre- pancy in their opinions, but I also incline to think that their sentiments are in perfect harmony with the law of this country. The legal question subdivides itself into the fol- lowing points : — 1, Is the Court in cases of Libel to be guided by the- principles of the EngK^ Law or the Koman-Dutch Law ; and 2, "What is the actual difference between these laws on subjects of this nature '? It is, I conceive, an unquestioned doctrine that the laws of a conquered Country are silently adopt- ed by the conquerors, even if there were no ex- press capitulation ; and therefore that it requires a positive law from the conquerors to change, al- ter or amend the law as it stood at the period of the conquest. In this Colony there is no such positive law or reguhttion with regard to cases of libel. True it has been enacted by a recent Or- dinance* that the English Law of Evidence shall be observed in this country, but the question here is one of pleading and not of evidence. The ques- tion is not what evidence shall be sufficient to prove the truth of a libel, but whether the truth can be pleaded at all as a justification. And for this we must have recourse to the Roman-Dutch Law, which was avowedly the law of the country at the period of its cajHtuktion. But then comes the second question, what says the Boman-Dutch Law on this point ; or, as I have already stated it, in what respects does it differ from the Law of England ? The law of England admits of two kinds of action for Libel, — the one exclusively civil, and the other as ex- clusively criminal ; the one having for its sole ob- ject a reparation in damages to the party offended, the other the suppression and punishment of a pub- lic offence. In the civil action, the truth may not only be given in evidence if pleaded, but is under all circumstances in itself, if proved, a complete reply to and justification of the Libel ; whilst is the criminal action, it can neither be pleaded nor gi ven in evidence , and if taken into consideration • No. 6 ot 18S1, " C 123 ] .»88^- on affidavits filed after a verdict of guilty has been actually proaouneedby the Jury. The Roman- Dutch Law oa the other hand admits of none of these technicalities. It does not admit that the truth alone is of necessity a Bufficient reply to any libel, and tiierefore it does not allow the truth to be pleaded in justification ; but it does not thence follow that the truth may not be given in evidence j when it may be received in mitigation of damages, occasiondly also in justification, and at other times, though rarely, in aggravation, where for instance a person of station, honor and respectabi- lity, but labouring under some bodily deformity, has been held up to public ridicule, insult au4 contumely,, owing to such deformity. On the other hand, suppose a man guilty of some aeriotts offence or of a tainted character, who is likely to olAain a trust w^here he may have an opportunity to renew his culpable practices ;. here the occasion being such as to warrant the communication of the itvth by a person of ordinary discretion, the truth will under these circumstances amount to a suf- ficient justification of the act, for here ibe two fol- lowing circumstances combipe, viz. the occasion was sufficient to warrant the communication, and the communication is substantially true. In a word, the truth is considered an important ele- ment in forming a right judgment of the motive by which the defendant was actuated;; but, it ia only an element, and cannot therefore be exclu- sively pleaded as a sufficient reply to any defama- tory publication. And so in effect' has it been viewed by Sir Hardinge Giffard and Sir Charlet Marshall. I am aware that at a period not perhaps very remote, the doctrine which still prevails in the cri- minal courts of England was held by many writers of eminence on foreign jurisprudence, was adher- ed to and strictly laid down during the middle ages, and is supported by some texts in the Cor- pus Jv/ris. But it is by no means clear that thi? was the general doctrine of the Bomau Law ; whilst it ia tolerably clear that a jurisprudence more conformable to equity has now very gener- ally obtained in the coatineutal courts, whose 1887. |- 124 3 laws, like the laws of this country, have the Civil Law as their basis. And when this doctrine is farther confirmed by the concurrent judgments of the Supreme Court, on two important occa- Bions, there seems to be no necessity for recurring in this exclusively civil action to principles in a great measure obsolete. It appears therefore that evidence ought to have been gone into ; that it was correctly taken by the Court below ; and that there is an error in the judgment of that Court, inasmuch as the Judge has refused to take cognizance of the evidence, hut has proceeded to determine the case without re- ference to the truth of the charges contained in the letter. But these charges are not proved, and we are therefore bound to believe them not true. And the laws of every country, the very well-being of Society, command that conduct so rash and ill-advised, not to say wanton, as that of the defendant should not pass unchecked ; and that if injury has been suffered, as it undoubtedly has been, adequate reparation should be made. Stoddart J. — In the defence which has been offered in this case, certain averments have been made, the competency, the evidence and the effect of which are all equally disputed. The evidence must be estimated by the rules of the English Law of Evidence, which under certain limitations is the law of this Island by a recent Eegulation^ The effect must be determined by the Roman-Dutch Law, as administered in Ceylon at the period of the CoBquest in 1796. {Clark on Colonial Law, p. 4, ed. 1834.) It has been plausibly argued for the plaintiff that though the effect of the averments is to be decided by our Common Law, we must determine their admissitm to proof, as a question of proof, by the English Law. I apprehend how- ever that the Law of Evidence does not determine the nature of the averments that may be estab-' lished by evidence, but the nature of the evidence by which averments may be established. I have therefore no difficulty in concluding that the com* petency of the articles of this defence is not affeet* ed by the Begulatiou. [ 125 ] 3887. By the Roman-Dutch Law, the civil remedy against Slander consists of two actions, usually, but not necessarily, conjoined, — the actio ad Pa- Unodiatn and the uctw ad Irijuriaie Atitivnatio- nem. The former was unknown to the Roman Law, but the latter is in every respect the same as the civil action of Damages under the Prfeto- rian Edict, in the general case of slander, and un- der the Lex CorTxUa die injurm, in the instance of d-efamation by writing. The words of Van der Linden might indeed have led us to believe that the object of the Dutch action for profitable amends was the infliction of an arbitrary fin* pay- able to the poor ; but the language of Van Leeu- wen is more accurate : — " which amount is mostly desired for and on behalf of the poor." But Voet and the other authors, who have treated this sub- ject more fully, dearly shew that the action is no other than a a certificate of the sale in conformity with the above entry was given to the purchaser. At the investigation of the claim on the 7th June 1833, the claim of Neyna Sinnewen was admitted by the original debtor (the defendant in No. 2562) ; and the following entries were made in the proceedings : — " The amount of the writ ap- pears by a receipt granted by the plaintiff therein to the Fiscal to Jiave been fully acquitted ; and the plaintiff says he has no claim whatever on account of the writ. There appears to be in deposit in the Cutcherry the sum of £2. 4s. &d. being proceeds of the sale of the land of which the claimant lays claim to 9 lachams, as hav- ing been ottied to him for £3. 15s, The land appears to have been sold, for £2. 5s. only, when the otty-claim far exceeded it. The claimant is therefore entitled^ to hold the land in otty until the otty-condition be satisfied." The distribution of the purchase-money was thereupon stopped, and proceedings were commenced by the plaintiff in No. 3685, which was an action by him as pur- chaser at the Fiscal's sale against the otty-holder Nej/na Sinnewen. In this case the plaintiff prov- ed the purchase by him at the Fiscal's sale, and the refusal of the defendant {Neyna Sinnewen) to deliver the ground-share to him, whilst the de- fendant on his part proved his possession for some years past and the execution of the otty-bond ; and the sons dlf the original debtor, on being ex- [131] 18SB. Aniined as witnesses, declared that they had refus- ed to allow the land to be sold by the Fiscal, hav- ing paid and satisfied the debt previous to the sale. This statement was confirmed not only by their having continued in the possession of the un- ottyed share of the land, but by the Piscal's own statement (as above) that the amount of the writ appeared by a receipt granted by the plaintiff to .the Fiscal to have been fully acquitted. And un- der these circumstances the District Court annul- led the original proceedings by cancelling the Cer- tificate of Sale. On appeal, the Supreme Court pronounced the following judgment : — "The cancellation of the certificate may or may not be requisite ; but if requisite, it can only take place in presence of all the parties to these proceedings, and also in the presence of and after having fully heard the Fis- cal. But especially do the interests of public jus- tice and the public faith command that the plain- tiff be first completely indemnified in principal, interest and full costs at least. He has purchased at the bar of the Court, and "the Court is bound to see that he be not a sufferer by his confidence in it. The only question therefore is whether a secure title can be made out for the plaintiff, or who shall indemnify him, if it cannot : and for the purpose of determining this point it is decreed that the judgment of the Court below be reversed, the Certificate having been, under any circum- stances, prematurely cancelled and the plaintiff unduly condemned in costs. And it is fur- ther decreed that the present case No. 3685 and the case No. 2562 be conjoined, the parties to either being rendered parties to both ; and that the Fiscal, under whose authority the sale was effected, and who delivered the certificate of Sale, be rendered a party intervenient in this case ; the further hearing to take place before the Supreme Court on Circuit."— No. 3685, D. 0. Jaffna, (J.) Fehruavy 1, (R. J.) 448. — Where a party, a Dessave, claimed the power " to turn out the m7?e-holder8 of his estate whenever he pleased," the Supreme (%urt refused Cancellation of Fisefll's Certificate. Order for Consolidation of two Suits. Bights and Duties of Landlord!. 1837. [ 132 J Fine for Appeal. Presumption in favour of the Possessor. Proof to establish a Mortgage. Action for Libel- Defamatory words. Rules of Practice and Pleading, in Colonial Coui-ts. to recognize such a pretension ; and as the t«nure of the lands in question was an admitted fact, held that the lord of the soil -was hound to res- pect the rights of his tenants, whatever they may- be, as fuUy and completely as they are to respect his ; and that even if the lands were his property in fee, the moment the tenant had entered with his consent, he could no longer eject him in the ahove summary manner. — No. 794, D. 0. Ratna- poora, (J.) 449; — A decree of a District Court against which an appeal had been taken, was affirmed with costs, and by. the unanimous opinion of the Court and Assessors, an additional fine of five shillings was adjudged against the appellant for frivolous and vexatious litigation. — No. 731, D. C. Tennto- ratchy, (J.) Fib. 11, (R. J. St.) 450. — A person in possession is presumed to be the proprietor until the contrary be shewn. — No. 1760, D. C. Matura, (J.) 451. — "Where a nwrtgage- is alleged, the deeds should be produced and proved, or the cause of their non-produotion satisfactorily accounted for;^ and where no attempt of the kind had been made, but witnesses had only been called as to certain isolated statements of a deceased person.; Seld that such testimony had been justly deemed un- satisfactory by the Court below. — Ibid. 452. — In an action for Libel, the- plaintiff should set forth the immediate tenor, if not the exact VFords). of the libellous matter charged. — No^ 14321, D. C. Colombo, N. (J.). 453. — There can be no cpiestion that the Rule* and Regulations set down for the guidance of District Courts should be strictly observed ; and it is advisable in all cases to put an early period to frivolous or vexatious litigation. But it was a settled principle with Lord Stowell, in deter- mining Admiralty Appeals from the Colonies, not to tie these Courts down to the rigid forms of pleading or rules of proceeding adopted in the Superior Courts of Law ; but to look to the sub- [183] stantial merits of each cause, guarding at the same time against any undue laxity of practice, — a maxim, -which appears not inapplicable to the proceedings of the District Courts in Ceylon. — No. 2191, D. C. Negombo, (J.) 454. — In an action (No. 5691) before the Pro- vincial Court of Jaffna, commenced in May 1832, one Walliammy and her daughters, as plaintiffs, claimed by right of inheritance a part of cer- tain lands, which they stated the defendants (her brothers and sisters,) unjustly withheld from her. The defendants in their Answer stated inter alia that a considerable portion of these lands had been given in otty to the third defendant, Mayly, by her brothers and sisters, including the first plain- tiff {Walliammy)' s husband, on a dowry -bond dated November 1818 ; which deed the plaintiffs in reply maintained to have been forged for the purpose of defrauding them. At the trial, it ap- peared in evidence that the parties had ottied a considerable portion of the lands, but that on the other hand there was great reason to believe that the defendants had attempted to deprive the plain- tiffs of their fair share of the remainder, and that the deed then produced had been forged ; and the Court thereupon caused it to be cancelled, and decreed that the plaintiffs were entitled to their share in the property mentioned in the cancel- led Bond, (which share by the death of the fourth defendant without issue, had in the mean- time become augmented to one-fourth.) In a Bubsequent action (No. 608) the children of the late Mayly (the third defendant in the former suit,) claimed as against their co-heirs, the former joint defendants and plaintiffs and their repre- sentatives, the amount of the very deed thus can- celled, and introduced into their action as addi- tional defendants the two principal witnesses in the former case, who, they alleged, had given un- true evidence to their prejudice. They further stated that the then Governor had, under the former system, made an order that the case No. S691 should be heard de novo, but that they were unable to obtain. a cppy of the direction to that Action on a Deed, which liad been, proved to lie a forgerj- and Lccn cancelled. Ifi37. [134] Hes Judicata. KtTect of an Order for Re-heai-ing. A party to a iVaudnlent deed estopped from disputing tlie rights accruing under it. effect. This case having come in appeal, the Supreme Court pronounced judgment in the fol- lowing terms ; — " It is perfectly clear that the action in its present shape cannot be maintained against the 3, 4, 5 and 6th defendants (the plain- tiffs and witnesses in the former case,) as no proof has been tendered of the order for rehearing of No. 6691, and if it had been, that very circum- stance would render a second action unnecessary. It appears indeed that the joint defendants to the former suit (the present first and second defend- ants,) who then maintained the validity of the deed, now deny it; and it cannot be doubted that whether that deed be true or forged, all the defendants in that suit equally declared it true. The decree in No. 5691 is final and irreversible, inasmuch as related to the full one-fourth share of the then plaintiffs (the present third and fourth de- fendants,) and the bond was cancelled with refer- ence to them. But the other parties claimed no- thing at the time from the then third defendant (Mayli/,) and nothing could therefore be awarded. There is reason to conjecture from the evidence and the ancient possession of the plaintiffs that they had really once possessed an otty-deed, which being lost, they could contrive no better expedi- ent than to draw up a new" one. This as regards ; the then plaintiffs was most justly repi'obated by the Court, which with equal justice awarded them their full share of the estate and cancelled so frau- dulent a document ; but as regards fraud or no fraud on the part of the other defendants, they , were all parties to it and fully acknowledged the deed. The parties therefore stand thus ; — the otty-deed is invalid as regards the plaintiffs in No. 5691 ; but it continues in full force with respect to all the then defendants in regulating their rights as against each other. The decree in No. 608 dismissing the plaintiff's claim, is therefore af- firmed with respect to the 3,4,5,and 6th defendants, ,j and reversed as to the 1st and 2nd defendants; and the plaintiffs are allowed to resume posees- sion of that portion, if any, of the lands, whicli the 1st and Snd defendants h-ave admitted tohare been ottied by themselves to their sister Mayiif 135 J lajt in dower and of whicli they have since assumed possession tinder the decree in No. 5691, that de- cree being in this respect foreign to them." — No. 608, D. C. Tenmoratchy, (J.) 455. — Where it appeared that the plaintiff in a suit had been a party to a previous suit against the same defendant and in respect of the same •ubject-matter ; but that such former suit had been conducted by B, the first plaintiff therein, " for himself and on behalf of his nephevi? A.," the Supreme Court thought it requisite to ascertain whether A., the present plaintiff, was really a mi- nor at the time, and if so, what authority B. poss- essed to represent him ; and referred back the case for that purpose. — No. 1 806, D.C. Tenmoratchy, (J.) Feh. 13, (R. J. St.) 456. — Where a party had in the first instance neglected to file certain criminal proceedings or to produce further evidence in support of his case, the Supreme Court in appeal considered that it would be of inconvenient example to send back the case directing the District Judge to admit such proceedings or to hear further evidence there- in, the neglect not appearing to be attributable to the District Judge himself.— No. 665, D. C. Ne- t/ombo, (R.) 457. — In a case in appeal from Manar, where- in it had been ordered that evidence should be heard before the Supreme Court,* Rough, C. J. having, during the hearing of the case, proposed to withdraw, Stoddabt, J. objected to the case being heard in the absence of the Chief Justice, even with the consent of parties, as being in his opi- nion a course contrary to the terms of the Charter of 1833. He also objected generally, for the same reason, to any case from a District Court within the boundaries of the circuits being heard at Co- lombo otherwise than by the Judges collectively. But it was determined by the Chief Justice and Jbbemie J., (being a majority of the Court,) that by the practice all cases appealed and delivered into the Registry or in the Registry whilst the Former decree. Authority of a party to sue on behalf of another. ^lo^l-prod^lction of evidi'nce by Appellant — no grouuil for 4 NevT Trial. Constitution of the Supreme Court. Civil Jurisdiction at Colombo. ■ ai. Decemljej', 1836. ]P37. [136] Y.j-w of Poverty — does not excuse the perfoniianoe of duties under- t^ikeu. Fine for vexatious appeal. Petition to defend in foi-ma pauperis. Evidence of a good primaT facie defence. Suit by the Government of Ceylon, cannot be entertained Court was collective, might be heard by any Judge of the Supreme Court, and decided by him sing- ly, when he should think it unnecessary to con- sult the Court collectively, and that this practice, not being in the opinion of the majority inconsis- tent with the construction of the Charter establish- ed by usage, should be adhered to for the time ; reserving for the consideration of the Court the re^asion of its rules on the subject. The Chief Justice thereupon withdrew, the parties consent- ing to the case being tried before the two remain- ing Judges, who were to request the opinion and advice of the Chief Justice on any point which in their judgment might require his aid.— No. 84, D. C. Manar. Feb. 20. 458.^-The vow of poverty taken by a Buddhist Priest, according to the precepts of his religion, may be a reason for declining altogether to assume possession of property ; but it can be none for refusing to fulfil all the obligations of a Legatee, if he accepts the legacy. — No. 21, B., D. CAm^: MaiMfodde. (J.) Feb. 23. 459. — The Supreme Court having affirmed a decree which had been appealed against on frivol- ous grounds, decreed that a fine of three shillings should be levied on the Appellant for vexations litigation.— No. 13,315, D. C. Colombo, S. (J.) 460 — Where a party who applied to be allow- lowed to defend in fonria pauperis, produced two deeds, one of which appeared very new, whilst the other was an old deed ; Seld that the fact of un- doubted possession, coupled with the deeds, wm in itself a good prima facie defence, and that !f it were true that the defendant bad been in undis- turbed possession of the property in dispute for any length of time, say one year, he should be al- lowed to defend in forma pauperis. — No. 1277, D. 0. Wadimaratchy , (J.) 461. — In a case from Eatnapoora, wherein ^ Government of Ceylon was plaintiff, and -vdiicli had been tried by a Judge, who was also the [137] 1687. A New Trial, granted, in order to allow a party to produce evi- dence against Prescription. Action on &» Agreement respecting thft Pearl-Pishery. Acting Government Agent of Rathapoora, the ty a Judge, who Supreme Court ordered "that as the District '"^"^gent^*""' Judge had no jurisdiction, being also Acting Go- vernment Agent and the plaintiff therein, the case . shouldbe referred to the District Court ofCaltura." —No. 1220, D. C. Ratnapoora, (J.) 462. — The Court below having dismissed a claim as prescribed by the lapse of a year, the plaintiff appealed against the decree on the ground that the defendant had made a promise of payment within the year, though no allegation of such promise had been made previous to the petition of appeal. The Supreme Court however set aside the decree of the Court below and allowed the plaintiff an opportunity of proving such promise, on payment of all the costs previously incurred. — No. 2728, D. C. Galle, (J.) March 1, (J. St.) 463. — In an action for damages for the breach of an engagement for the purchase of the Pearl Fishery of Condatchy for the year 1829, it ap- peared that in December 1828 the plaintiffs had entered' into an Agreement with certain parties in India, whom he stated to be the partners of the defendants, by which, in the event of his taking the rent of the pearl-fishery from Government, they bound themselves for a quarter of that rent, and agreed to deposit £4,700 in ready money, and that when the dhoneys for the quarter-share should be delivered to them they would give up the above deposit and pay the remaining price of the quar- ter-share as the instalments became due. This instrument further provided that if the plaintiff should engage as partner with others without purchasing the rent (in other words should be- come an under-purchaser from the contractor,) the defts. were to have a fourth of his share, what- ever it might be ; and that the £4,700 to be paid by them should first be apphed to the payment of their share of the deposit, and next, together with the profits, to the payment of the remaining instalments ; and further that, whether the plain- tiff took the whole or the half of the rent (provid- ■'ed it was as contractor,) they would pay the I8ST. [ 138 "] £4,700; and that in case the plaintiff tooi a quarter or an eighth of the rent, the £4,700 were to be paid back. The parties in India, having signed this agreement {exhibit A.), gave the plaintiff, aa " ready money," a draft in favor of the defendants,^ native merchants in Ceylon. Having arrived in Colombo in January 1829, the plaintiff entered into an agreement {exhibit B,) with Goomarasamy and Moottooiomm/ that tha tender to Government should be made by Moot- toosamy, and that he should have two-eighths, Coomarasamy one-eighth, and tire plaintiff the re- maining three-eighths ; and the rent was accord- ingly obtained on this tender for £45,100 ; of •which £9,020 were to be deposited forthwith, and the remainder paid in instalments. The contract ■with Government being entered into by Moottoosa- my and one Akady Marcar, who was known to all the parties as the mere agent of the plaintiff. In the meantime the plaintiff had presented th« draft for £4,700 to the defendants, who gave him in exchange, and on receiving from him a receipt in fuU for the draft, an ola document, in the foria of a checque or- letter of credit drawn on Moottoo- eamy at the- fiAery ; which however Moottoosa- my declined to honor when presented to him. The fishery then proceeded, but in consequeno* ©f the dishonour of the draft, the plaintiff's share was reduced from five-eighths to, one fourth ; where- upon the plaintiff brought his, action against th« defendants, averring that they were partners with the parties to the agreement A., and that he had suffered special damages to the amount of the above mentioned difference. To this action th» defendants pleaded that the agreensjent was not mutual, that they had received no consideration, that the plaintiff had not performed his part of the condition, and was neither actually nor potentially the owner of the article mentioned to be sold by him by the agreement ; that the defendants had on their part compli«d with the stipulated conditions, having given a bill of exchange which had been duly accepted and paid ; nor had any notice been given to the contrary, nor any protest made for &on-acceptaii.ce or non-payment ; that the plaintiff' tl39] 188T. had waived his agreement, and that no loss had accrued to him as no profits had arisen from the fishery. The Supreme Court, after hearing evidence themselves, gave judgment as to the facts,— that the defendants and the parties to the agreement of December 1828 were partners,— that they were . aware of the rent which the plaintiff was to receiV/S under the agreement B, — that the India-draft for £4,700 had never been paid, having been only discharged by the partners at Colombo by means of 9, checque subseqxiently dishonored in their pre* sence and at their request, — ^that thete had been no waiver of the agreement on the part of the plain- .tiff, — and that damages did accrue to the plaintiff from such non-payment to the extent of £2,000.^ And as to the points of law, the Court pro- nounced judgment as follows :— " The objection as to the want of Mutuahty arises from the circum- stance of the plaintiff's signature not being at- tached to the agreement A., and from its being in language an obligation to him only, and not also one from him to the defendants. This however is a very ancient commercial practice well recog- nized not only in India but on the Continent of Europe. In mutual contracts, two parties, in- stead of entering into joint articles of agreement •which they both sign, each receiving a copy, draw up and sign singly separate instruments, in which •each sets forth the nature and condition of his ob- ligation to the other. They then exchange these instruments, and thus each obligee becomes the holder of his obligor's acknowledgment or obliga- -tien. Or sometimes, now indeed more frequently, the instruments are counterparts of each Other, though they each bear the signature but of one. Yet the mutuality equally exists in either ease, and the circumstance of one party holding the other contracting party's signature establishes a pre- tunvptie juris, that that other party has the counter- part bearing his. They therefore bear the shape rather of English bonds with the conditions set forth by each obligor, on which they respectively stipulate that their obligation »hBll be binding or Toid. Mataality in an Agreement may be presumed, though the de- fendant has not signed it. 1837. [ 140] Mutua] consent —a sufficient eonBideration. Objection that the plaintiif was not at the time the owner of the article •ontracted to he delivered. Damages — A Court cannot award more ihan is claimed, in the absence of a prayer for General Relief. Xttachment against an Officer of the Court. " As to the want of a consideration,' — what is the nature of the contract? It is a contract of that class in which the mutual consent of the parties is sufficient to render the agreement ohligatory on both, — in which, as in Articles of Partnership, it is a sufficient consideration that the party did and was willing to do -all that he had undertaken to •do, and that he has done nothing which could put this out of his power. " As to the objection that the plaintifl was not • actually or potentially' the owner of the articl* mentioned, this as well as the further question, whether if it were bo, this was not owing to the defendant's breach of promise, is determined in the plaintiff's favour by the evidence adduced in the case, that the -defendants throughout the trans- action well knew the portion which the plaintiff was to receive from the rent under the agreement B. " Then as to th« damages, — special damages are alone demanded by the plaintiff, no claim being made for damages generally ; and though this Court would not tie down parties, on occa- sions of this Mnd, to the strict rules of European practice, and would be prepared to afford them every relief against mere formal irregularities ; yet it cannot of itself consent to infringe settled prin- ciples by awarding uUra petita, there not being in the Libel or in the plaintiff's Petition of Ap- peal even a prayer for ' general relief.' The decree of the Court therefore is that the defendants do pay to the plaintiff Two thousand pounds ster- ling and costs ; and that the counter -part of exhi- bit A. in the hands of the defendants, be cancel- led."— No. 84, D. 0. Manar, (J. St.) 464. — An attachment against an Officer of the Court, though regular and admissible in cases of negligence or disobedience, should only be re- sorted to with caution. An application for an at- tachment is an appeal to the discretion of the Court, and though that discretion may be overrule,d by the Supreme Court, there must be strong grounds for doing BO.~ISfo. 3252, D. 0. GaUe, (J.) tl41 ] IBST. Mar. 2. 465. — ^Wli«re it appeared on an appeal (No. 2841) from the District Court of Nogombo, that another suit (No. 12939) was pending before the District Court of Colombo, North, between the game parties (who were both resident in the Dis- trict of Negombo,) and in respect of the same cause of action, and that neither of the cases had proceeded far ; the Supreme Court by a decree, pronounced in No. 2,841, referred both the cases for decison to the District Court of Negombo, and directed a notification to that effect to be made to the District Court of Colombo, North. — No. 2841, D. C. Negowho, (J.) 466. — In an action to recover certain lands from the defendant, the defendant asserted his right to them under a deed of gift previously granted to him by the plaintiff's vendor. The Supreme Court, after reading the evidence, set aside the deed, and pronounced the following judgment : — " Though the deed in favor of the defendant is set aside, the Court can scarcely pro- nounce it a forgery ; but it is convinced that on signing the deed, the donor's impression was that he was to be supported for life ; and that he was not duly supported is sufficiently proved. But in with- drawing the land from the defendant, he is enti- tled to recover from the plaintiff all that he actu- ally paid for the deceased ; the profits of the land on the one side and the maintenance of the deceas- ed whilst he resided at the defendant's, on the other, being compensated." — No. 23, D. C. Ma- telle, (J.) 467. — Where the evidence is clear as between the plaintiff and defendant, the Court cannot re- fuse to decide on the ownership to the property in dispute between them, merely because there ia a third person who also claims it ; for such a third person cannot be prejudiced by proceedings in a Buit to which he is not a party. — No. 2323, D. C. Maiwra, (J.) 468. — ^Where a party has taken no appeal against a decree, it becomes final and irreversible. —No. 1966, D. C. Malma, (J.) Transfer of a case commenc- ed in a wrong; Court. Cancellation of a Deed of Gift signed under t wrong impression. Failure of consideration. Compensatioa of Profits and Expenses, Judgment as between a a plaintiff and defendant. Third parties. Hes Judicata, in the absenca of au Appeal. 1837. [142] Miiiistei's of Beligion, calumnious charges by. Orde* for the return of the proceedings, upon Petition for leave to appeal to the Privy Council. Injunction Against a Sale — granted by the Supreme Court. A Dist. Judge bound to recoxd 469. — Though the Ministers of every Religion are upheld by Law in exercising a certain dis- cipline and controul over their congregations, they are not the less amenable to justice, if, on pre- tence of such controul, they should wantonly ia- dulge in calumnious charges or imputations.— No. 1086, D. 0. Matura, (J.) Mar. 15, (R. St.) ■470. — Petitions for leave to appeal to the King in Privy Council, under cl. 62 of the Charter, were presented in two cases ; and it was there- upon ordered that the proceedings be returned to the Supreme Court, in order that the decrees in the said cases, together with the proceedings had in the Court below, might be brought by way of Review before all the Judges collectively at Go« lombo.— No. 1083 and No. 84, D. C> Manar. April 19. 471. — H. Staphs, Proctor, filed a Petition of D. P. WijesekereHaminey, stating " that her late hus- band had beeU for the past twenty years and up- wards in the legal possession of a certain garden called Datoettigaha-caeroendoiewatte, situated in the village Lianegay -w,idle under the Raygam: patte of the Aloetcoer Corle ; and that the Agent of Government had advertised the said garden fo* sale on the pretext, as the petitioner believed, of Its being a Cinnamon^garden, the property of Qo- vernment." And two other parties severally ap- pearing in person being sworn " that to the best of their knowledge the contents of the said Peti- tion, which had been duly explained to them, were true ;" Mr. /S d to admin- howfiinespon- ister until April 183fi, wkon they were dismissed- ^^'''^ ^,^^7-^^' V ■»! /-< : L- 1 • T 1 . tors of Has- by the Court tor nialversatirin ; and their property taujl. Yi-as seized and their person ariested, for the aaiount of the defalcation, — the plaintiffs being enbstituted'a* executors in their place. Martensz was also tlie agent or attorney to tha estate of Johanna ElKohtth Mooyaart, the first vife of one jI/. 7^. .ffucitei, and a surety for tha management of her estate. The wife died iu 1813, and her husband about the year 1823 pro- ceeded to Batavix and died there. In this second capacity, Martensz had similarly failed iu his duty ; and actions Avere entered against him by the present defendants as special attorneys of the heirs of ./. E. Mooi/aait, for the purpose of recovering certain monies and effects belonging to that e«tate ; which actions v\ere still pending. In the meantime, the plaintiffs, as substituted executors ol'VerwycIc, commenced the present ac- tion aga'nst the defendants, not as attorneys to the heirs of J. E. Mooyaart, but as attorneys to, or rather as gener.'xlly r€.sponsihle for, the heirs of her husband Racket, {qt the amount of two bond* granted^by him to Verwyck in 1819 and 1823, and both therefore subsequent to the .demise of J. E. Mooyaart. The defendants alleged, 1. col- lusion between Marienw and the defendants ; ii. that 'he defendants'powers were general, orat least that they had undertaken to act generally ; 3. that the heirs of tfiie wife being also heirs of the husband, their attorneys were bound to meet this action for the debts of the husband ; and 4. that if the action were not maintainable, then they wer« entitled to the ancient remedy by Ediotile Citation against-the beirs-of the husband. To this the defendants repli- .1S37 ■ [ 160 ] eil that tliey Sveve only special attorneys. for the ex- clusive ]nirpGBe of obtnining a settlement of Moot)- aart's estate ; that they, were only empowered " to "recover Svh.it they conkl get ;" anil even supposing any claims were bronght against the children them- selves, they could not meet them.tnTich less answer to claims l)roua;ht against the hnsband. The CoHrt below, ht'ld that the action was not maintainable, .and dismissed the plaintiff's' claim Against this decree. the plaintiiTs took the present Appeal. The Supremo Court, in nffirmirig the deftee- of the Court below, gave ji'idgiii:;nt as follows : " As to the Jirst point, it appears that suspicioB attaches at the utmost to the conduct of the aU . torneys, and that here the interests of Van princi- pah are chiefly to ho considered ; with regard to V'hid; it is not; unreasonable to infer that if Mcr;'-, tensz has proved himself undeserving the eonfiii dence of Yerwyclc, he would not have been muck, niore scrupulous with I'cgard to Mr. or Jlrs. Racket. • " As to the second point, not only is the Power of Attorney special in its terms, hut it does not appear that the defendants have ever overstepped their authoiity, every act alleged in .this respect liaving been done (right or wrong) in the interest of the heirs of Mrs. J. ■£. 3Idoi/aart. It is alst) clear that tlio debt fur which they are sued is in no way connected with the estate of Mis. EacJeet. But when the defendants go further and assert that if it were, they would not be liable to answer it, because the}' sre only -authorized to recover, they carry the ])rincip'e too far, Tlxey 'are. authorizc-tl to recover the estate'or the inheritance, which includes the debts a's Well as the credits; and therefore when claiming the assets, they are bound (o ,meet every claim ag;\inst such estate. The estate coming to the heirs is in fact nothing more than the bmus after payment oi the debts. " As to \h(iihinl jioifit, tlierc can be no^doiibt that if the d-efeiidants' constituents be al.-^o the heirs' of ilf . P. Racket, they are rcipinsiblo fur.hia debt?, and so is all their properly hov>'cver origi- nally acquired, a covfusfo hsmormn having arisen [ IGl ]■ • issr SkS regnrils tliom from the time tliey assumed tlie responsibility of licirs to their fatlief'.' But \vlie- ilier they have assumed this responsibility or not, is a point that nnist be settled by a separate action directed against them. And xthelhcv, four iTilj/, the remedy in such action shouhi be by Ediciile Citation or by Scques- • tration under rule 15 sec. I of the Itules and Orders; is a point which cannot now be resolved by the Coiirt, althongh it appears tolerably clear; but the real parties are not before it. The Ap- pellants must therefore seek ou't their remedy." No. 4,000, D. C. Jaffna, (J.) 502. — P'eria Carpen Chettij v. A. Wirappen. In. this case, the jndgnient pronounced by the Supreme Court (on an. appeal by the defendant) is as follows : " Nothing appears in this case to prove the debt of Rds.Sl but the defcadant's own admission (far the plaintiff's witnesses enly prove for Rds. 6.) But this admission should be taken entire and not severed, , He admits' he hon-oued, but in the same breath declajres he paid. This circumstance, coupled with the evidence regarding the payuient of the £1, would induce the Court to consider that payment as. proved, and to reduce the judg- ment to'Us 6d, without costs."— No.. 3,648, D. C. futlam (J.) TUe admis-, S'on of a Party should be tak- . en entire. ' ,6.03. — In the estate of P. Enno Hamy. M. P. Don Andries, Administrator-^Appellant. jjeglect of Ad- No doubt gre^t vigilance should be exercised over Administrators,, and therefore the proceed- ings of the Secretary arc perfectly jegnlar. But considering all the circumstances of this case, that ample time'has been afforded to other parties to claim this estate, that it does fiot appear that there are any creditors, and that the Adrninistrator hai for a length of time been serioualy ill, he is ministrator, how far ex- cused, 1837 .[162] slioweil to continue in tliopossegsion of tlic esfnta, of which lie may be considered rattier in the light of an nndispnted iiropvietor than a mere sdminis- trstor. — No. 4, D. C. Amblangodde, (J.) June 21 (E. J. St.) *■- 504 — In the estate oi SuperynarLian Perianhelami ■ . * ■ . ' ' ■ ■ „ , „ S. Sinnetamhu v. Omeatte. ■ Proof of Mar- "^ legiiimation By a former decree of the Stiprpine Court proof ijy subsequent -jvaa required of the OpponeRt {Omeatte s) niani- ilamage. ege'with the deceased; and that there iras a son by that nrarriage horn to tbe_ deceased. The proof of tlic marriage was subsequently supplied ty the Cegistry, prodiicsd by the WannfoJi.. Ai regards the son, a certificate of his baptism was produced, mentioning the name of the-parents". And'the Supreme Court held that this, coupled ■xvith the Marringe Registry, vras all that need have l)een produced by the Opponent ; as it was clear law tliat a subsequent marriage renders the iagiie legitimate.— No. 3,835, I). C. Trincomalie, (J.} Contempt of Court — Indecorous ob- servations on a District . Court. SOo. — Eedopaddy v. Becjekenhoff, , Tlie defcnllant in. this casp, a Notary practisii^ within the District of Wadinwratchy^ had m1- dressetl a lelteV to the Supreme Court complaining of having I)een wrongly summoned ;. to wliich ha received a reply informing him that the Snjjrema Court could, not interfere in the matter ; and tb|(fc the proper coui-se for Kim to pursue Avas to put ni his plea to that effect, and if that be over-nileil, . to appeal against the order. Instead however of appearing before theDiatrist Court, he filed a Petition against an order obtain- ed by defaiilt, and in that petition made indeco«. tous observations on the proceedings of the Distfiet Court. ' ■ ■ ■ Such a proceeding (he Supreme Coui:,t thotiglit [ 1G3 1 mi it to' lie its' tlnty to ninrk witli sercre rcpi'fiionrtons The I'ctiLioii was tlipi'cfore clisuiisscd aa in-oi;'iiLiv ; r.nd th'o. Petiupnev fined Twenty sliiliingH fur con- tempt of the Uistnct Court, No. IjioT. D. C Wadimoratchj/ ( J .) • June 24, (R. J. St.) ' 50G,— In tlio mntter -of Don Vincentl. The King's Advocate tendered an affidavit of Arpjioatioinf^n- Jjon I t«ce);h, stating tiiat on the 12th Instant, in. ciimpd a a Medical Sub- Assistant, Mv. John Loftus, \w\ lU. tonocept Rfter' examination ccilifisd a Son of the deponent's to be affected with Sniail-Pox ; and that on llic 14th inst. tlie deponent ha.d applied to I). A. Blair •Esq., the Judge of the District Court of Columbo, No. 1 South, to allow him to enter into the usual Bond, cpnfonnably to the .Governor's InstruGtions of the lith March 1837, and that the 'said Judge, refused luch application ; and he thereupon moved for a Mandate, in the nat'ure of a Mandamus, to the said Jndge, requiring liira to allow the said . JJon Vincenti to enter into the nsual Bond. And the Supreme-Court granted a rule requiring the ■fikid Jndge to sliew cause why such mandate- should not issue. On a subsequent date, tCtUDlT. June2G, (R.J. St.) No cause being shown, the Rule was made ab-. golnte. and a mandate in the iiatxire of a writ of ^Mandamus was issuecJ to the said D. A. Blait, U. J. as aforesaid,, commanding him as roqinred by the said Instructions to take the Bond of the taid Doyi Vincenti in conformity witl-i ths .ipplica- tion made by him, or that lie do shew causa to the contrary on. Wednesday next. June 28, (R. J. St.) Gn this day, upon the production of the Insljuc- tions of the lith Maixh 1837 from 11. E.tha )P37 [ 164 ] Governor to the D. J., and on a comparison of (liy Fame with the writ of Mandamus issued, it ajipear- cd that tliey -n-ere not in coherence with oach other, and scarcely sufficiently imperative on Mr. Blair for the Snpreme Court to grant the jVIanJaraiis ]iray8d forj to enforce his compliance therewith. The said writ was therefore diaehar-ed. June 29, (J.) Authority to flct fts Curator ad Ittem, Transfer of a cause, on the ■ gi*ound of im- Itroper pro- eoedings of a I). J. 007.— ^Fullf'-j/en Welen v. Parjpadj/ 'WalXy. This case had been on a former occasion rjefer*- red back to the Court" below to ascertain whether the present plaintiff (who had been the 2ik1 plain- tiff in a previous suit. No. 5,839, in which tlio 1st ])laintiff sued on his behalf.) was really a minor at the time, and if bo, what authority the joint plain- tiff in the former suit possessed to represent him. No such' authority -was howev-er pTodi>ccd ; and the ca.^c having been returned to the Snpreme Court, Jeremie J', now pronounced judgment as follows : " It ii clear that the plaintiff's relative, ihen palled Uncle, now Cousin, had not any authority to proceed in the minor's name. " As to the mode adopted by the District Judge .for setting aside his predecessor's solemn record, by calling as a witness to prove the plaintiff to have been twenty- two 'years of age, the very person who on the fiice of his -original Libel had admitted that his co-plaintiff required some one to represent him, and then drawing vague sm-mises-. from depositions in the cause to which the present plaintiff, as a minor, was not legally a party^ — thus making him, according to some part of the evi- dence, about thirty, wuen lie had been pronounced, on view by the former Judge in No. 5,859 to be " under fourteen ;" it ia so unexampled, that, coupled with the circumstance of that Court'having repeatedly expressed an unusually vehement and erroneous opinion on this and its connected cases, the Supreitio Court feels' liound, without in any ■way ^uestio^nisg the parity of mstive or integrity ties J of piir.po'se of tlie "District Judge, to exorcise the powers confided to if by Sec. 3G of.tlie Ckartcr. " The (kuree of the Comt Uelow, \vhich was in favour of the defendant, was tlifnfore set aside, «nd the case oi'dered to be Jicard de novo, without any reference io the former suit No. 5,859 : and it ■ was also 'decreed that the' furtiier proeeedinga should take place before- the D.O. ofWaclii^oratchj/. No. 1,806, D. C. Tenmoratchi/^ {J .) " 1SS7.. 508 -^Edenadm-cgey v. Rangoddegey & others. The plaintiff, a.s wi.e of one Abere, claimed half jnint-nv-ricrs ■of certain. lands wliicli had b«en possessed bj' the oiLainl. •comnion ancestors of her husband and" the defori- ,, ., ila-nts. At the trial ot the case, her marruvgo \Mth tainiu" sharte. Ahere was snlfisfactorily proved, under the Regu- lation of the Olli of August lu22 ; and the qnes'tion iu appeal w-as, what share of the proj:>e>ty in dis- pute belonged fo Ahere. Jcr-eniie J^ — The three defendants are proved to be descended from the- sister of Abere s mother, jiftere does not'appear to h-ave had any brothers or sisters— at least none are present to disturb his claim. He is therefore at present to be presumed to have liad none ; and as each of the defendants clijoyed a sixth, '^Sere's. Aunt mnst have obtain- oda half of the joint inheritance. The pther half is therefore the share belonging to pliii^'ff.- As to the circumstance that the precise. ])ortions be- loiiging to Abere are stated with tinccrtainty by ■the witneisses, it is at all times difficult, wheii^ propjrty is so greatly subdivided, to ascertain the •exact shares by oral testimony, of posse.ision ;. and here it is the more difBcnlt, that tho' the })laintiff claims lirdf the property possessed by h«r husbnnd and the defendant's common aneeKto'r, . she does not claim the h&H oi any particular ficM. She. claims- half a corney from one field, a ocrnoy ami a half from another, evidently admitting that there are other proprietors of each piece of land, over whose share she pretends to^ have no- claim, and 'who probably possess under a totally different tiile. ISW [ 160 ] Tho pLdntiff U therefore ilerlarcd, jointly \\\'.]i her ehiidreri, to he owner of all the Jjrujierty for- nu'rlj' possoKsed hj' lifr hnshoiul Abere, which property is fsirthirrdeclared t ■ be a portion equal to that possessed hy'tho then d^fisndanfscoivjoiutly in Jn lRme'.)t nnt the laads inherited by them frcfm their and Abere i 'Aim- " eommon ancestors ; provided that tho share so libtl'. awarded to the plaintiff shall not in any case ex-' ceed th» exteju obtained by hc^- libel. No. 2,4;(J2, D. C. Matura. (J.) aiMuuiiL clivim !•■{ ill tilt July, 5, (R. J.) SQO*— BaddeUj/enege^ Von Btntian and others V. Duna Agcda widow of Baddeliijeuegey Don Siman. •» j?« jLiiii::h!— This was a snit tonr-hing a garden called Pe'/e- IVcMriiiiive ^i^alle whit'h had already lieen the, sn!:ioct of five I'll !-i;,-.um of . . .. •' , , •> Sar\k-ti'ar- actions, owing to ilisputfis between tlietame partiG» ymy Umds. or their immediate connexions. Two ot these suits, Nos. lii, 606 and 13,681, had been determined by Marshall 0. J., on the 11th Octoher 1833. In tho former one, Baddtliyenegey Bon, BasHan (the'pro.«!ent plaintiff) and the widow of Waftegcy Aiitln'es Fernando sued Litjcneraalegey Soemij ISiUa for tv^■o-eigllth3 of the above gardi-n, .which tlipy stated he had unlawfully surveyed, though tlieir.j I* right of inheritance. The defendant ans- ■wcred that the. Felleicattt which he had si.rvcyufl Mas ano.tber garden to the South of the one in ■ qtiestiiin, the latter being Pa.veny, the former Ralwaharre. The plaintiffs in tiieir Replication, however, persisted that thegarden surveyed was the one claimed by them and not the Raimaharre land ; adding that " from the land no surveyed by the -defendant, .one-eighth belonged to his talh'er- ■ja-iaw and iiis (the father-in-law's) brothecs, anil^ one-eighth to his mother-in-law and her brothers ; and that these two-eights had been formerly uur- veyed (in January 1827) in the name of his, tha defendant's, mother-in-law, in right of her and her husband." On reference to the survey of January [167 J 1S27, it appeared to be the survey of " a part of a garden called Pellewatte the property of B. Don Sijnan deceased, now possessed by his wife Dona j^.g'ecia;" and bounded on the North-West,' and. South by the other parts, and on the East by the garden Pelhwatte-paale-owitte ; while the Survey in question (of the 14th March 1831) purported to be of a garden Pellewatti-paale-owitte " said to belong to the defendant." And- evidence having been heard iu this suit, it . was proved that tho garden in dispute was the Pellewatte and not the Pellewatte-pacde-owitte ; and that together with the then plaintiff's land, the defendant had caused to be surveyed a portion A, which had been sur- veyed by his mother-in-law "in January 1827, — and with reference to which the plaintiff stated " which share the defendant's mother-in-ljiw is en- titled to, and they have nb claim thereto." And the District Judge decreed " that the defendant should leave to the plaintiff the unmolested pos- session of thztt part of Pellewatte now in dispute marked No. 1." [In this suit it did not appear that the tenure- of the land had been -distinctly explained : though it was by implication pronounc- ed to be Eatmaharre, and might also be said by implication to have been declared private property, and not service-parveny, since it was in part ad- judged to a female and possessed by females^] The other suit No. 13,681, against the same de- fendant arose . oi\t of the. same survey and was brought fur the remainder of the garden by other heirs, who claimed it by right of inheritance and purchase. It was again stated by the defendant to be Eatmaharre : but was on tliis occasion dis- tinctly pronounced to be service-parveny : tho plaintiffs (who claimed in right of females or by purchase) being thus non-suited. The garden was thus distinctly declared to be service-parveny in the one case, and presumed to be inheritance or simple-pavveny in the other. The defendant had thus won the former suit (No. 13,606) only for a time. He was only connected with the family by marriage, and four of tho female heirs (parties to No. 13,G81) having been Uefeated, the male heirs at once stepped forward 1837. 1887 [163 ] t» claim po^eesioij. This gave rise to the tli^ree • other suits Nos, 140, 400, and 497, all between the same defendants, (L. Soesey Silva) and thu male branches of his wife's family : and these suitg ended in the male heirs being finally confirmed in the possession oT six-eighths of the garden, it hav- ing been declared on each oceasion, in conformity to the decision in!No. 18,681, to be service-par veny. These four decisions having in the opinion of the present plaintiffs, .settled the question as to the tenure in their favour as male heirs, they brought the present case to prevent the present defendant (the mother-in-law of the former defendant) dis* posing- of the portions which in 1827 she had cans* ed to be surveyed, and of which he had ever since been in possession. This action the District Judge dismissed with costs, his opinion being founded 1. on the admissions in thB'first case No. 13,606; — ! 2. the circumstance that the defendant had not heen a party to any of the other four cases, and S. on Prescription. The Supreme Court however reversed this de- cision, and per Jeeemik J- — " Neither of the gi'ounds alleged by the Court beloW is oenelusive or satisfactory. It is true the defendaut was not a party to either of the four last suits;, but it is equally true she was not a party^to the first. The decision in that case is not therefore a regjvdicata. "With regard to her, therefore, the question is Aitniisslon ofa still open ; and as to admissions made iti the course '''° v?".'k "r '^" of the case, it must be remembered that thes& were made only by one of the parties to the pre- sent suit, and at.a time w hen the question as to tenure was not before the Court. All the iFemale heirs were then in possession ; they have all been since ousted by the conduct of her own son-in-law ; and though this need not necessarily, aifect herself, still -she must shew some additional title which renders her position different from that of the other female heirs, before she can expect an ex- ception, to be made in her favour. This additional title she does not shew ; for even the survey is of land " belonging to her deceased husband" ; and this survey, with the admissions, would 'prove »t binding. [169] 1837 beat bnt %« ttBtaoIested po^sessian at tb» tima it was made. " The question is tberefoM narrowed to tMs; . — I>oe3 the Ordinance relstive to preBcriptir* posses^oTt ftv.ail sgainst the Servieff-Parveny Regnktisa of 181)9; or, in other words, can females or purchasers acquire a title to Bervice- parveny lands a* agaiBst beira male, by ten years' possession. " The Goftrt is of opinion that tliey eaimot. Questions of ten ore are matters of pwbJie policy, wbich are governed by thIcb perfectly ladependent ©f the private interieats of iadivtdaak, — the latter becoBsiDg merely a secondary eonsideratiow. In iche case No. 1S,681, possesion . (for possesfiion in that case was scarcely a debateable point,) wag not allowed to avail against this law, and justly not ; iwr can it here i for though under the altered circumstances of the Colony, tbe policy of main- tainfog the Regul»ti<>D O'f 1809 may be qnestioned', this isi matter for the eonfflderatioii of the legiala- tare »lon«, " The male heirs are therefore declared the sole proprietoTB of tbe garden PellmvttUe ; but withoBt costs." No. S-.SS*, D. C. CalHra (J.) ServicfrParre- No prescripH- on against Male Heirs. 510. — Achy Umma v. Mdhamadot LtVhe. " On the motion of Mr. H. Staples, Proctor for the Appellant, stating that the District Judge of Caltwa reftfsed to- receive the Petitioa of the Appellant in consetjuenee of the stamped paper not having been purchased from the Secretary of the I>; C of Calfura : It is ordered that the said District Judge do receive- the said Petition as an Appeal Petition. It matters not where stam.ps are purchased from." No. 8,567 D. C. Caltura, Stamps. — The Courtis ■ boand to i e- ceive a docu- ment, wher- ever tlie stamp may have been ijU'jrcIiased fi'om. July 12, (R. X> • 511.— -^B^beterje Goeroenanselagey v. Von CKrit- tian Arachy. "Ibcjeare two points regardins the law of P'-esc iption. 1 e87 [170] Pofifiession pre- sumed to be adverse, uut 1 the contrary is shewn. Prescription, that should be always well borne in riiind ; or else from that law beiug a most whole- some one it may be rendered pregnant with in- justice. Theirs* is that a possessor is nlwayg presumed to. hold in his own right, and as proprie- tor, nntil 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 plaater, then the possession is. to he presumed to have continued to hold on the same terms, until he distinctly proves that his title has changed. In the present case all the doQumenta and much of the. oral' evidence shew that the defendant and his predecessors were the proprie- tors, the plaint)£f and his predecessors the planters; and. there is no document or other satisfactory and unequivocal proof to explain how or at what period these respective relations were changed, or that they ever have been changed. For the fact that the plaintiff was allowed, (being then the acknowledged owner, as planter, of part of the produce,) to sow a portion of the garden with vegetables, or to fence in the new plantation, proves, under such circumstances, only the for- bearance of the acknowledged owner, an.d not that he had renounced his rights as proprietor. No. 2,889. D. C. Caltura, (J.) . " Application to sue infenna pauperis. Mode of Pro- cedure. 612. — In the matter of Parmer Wyreweaaden. This was an appeal against an order of the Court below dismissing a Petitionpraying to be allowed to sue in forma pauperis. The Court had entered into evidence as to certain statements made by and against the petitioner, and thereupon pronounced the order now appealed against. Jeremie J. — Although there can be little doubt of the ultimate result of the suit, yet these pyoceedings mu.st be set aside for irregularity. The course to be adopted on applications to sue in forma pauperis is set forth in the 42nd and subsequent clauses of the Rules and Orders, and should be strictly adhered to. If there had been [171] W3T. a previous application, the order referring ttat application to a Proctor ought to have been,, and no doubt would have been, recorded ; and if so witnesses should not have been heard to that point until the records were duly searched. But according to the present proceedings, the case is disposed of on the merits, tiiough the petition be merelj' to be permitted to sue as a- pauper. The proceedings are therefore set aside, and the Peti- tion is . to be referred to a Proctor in the usual form ; except legal proof be produced that a pre- vious, application of a similar nature has been rejected. July 17. (J.) 513. — Van Heh v. Martensz. Toussaint, Intervenient. Ehell and others, Claimants. This case was taken up on the 17th July on a petition presented by the Claimants. The facts of the case are fully set out in the Judgment. Jeebmie J.— On the 14th October 1836 the executors of the estate of J. Verwyck made ap- plication to the D. C. of Jaffna for certain papers belonging to J. A. Martensz, an Insolvent. This was opposed by two several persons, the Insolvent himself, and F. A. Toussaint as Attorney of Mr. J. Vanderspaar ; and on the 25th October re- jected by the Court. ■" On the 2nd November the Executors, filed their Appeal Petition ; on which occasion they saw fit to omit the name of the 2nd opponent Toussaint as a party thereto ; and further by an endorsement on the petition by the Executors oti the one hand and Martensz on the other, the lat- ter dated 11th November, it is evident th&t Mar- tensz, and Martensz alolie, was,, in conformity to their own Petition; rendered a respondent to that appeal. Various proceedings were then had in appeal. The case appeared twice in the Supreme Court, and the original decree was finally modified. This Costs of party, who has been dropped in the course f this Courtis solemn and definite judgment is in the mean time suspended." " On the following day the Court, after hearing counsel on this pojnt, delivered judgment as fol- lows : 19. July, (J.) Jereuie J.— The Court will now proceed to examine the reasons assigned for this unpreceden* ted step. The remonstrants state that they could not render Toussaint a party to the appeal peti* tion of the 2nd November. Why not ? He had appeared in the cause, had iiled and signed an objectio-Q, been heard upoii and succeeded in es- tablishing it in the' Court below. What then was to prevent his bein^ made a party to the proceed- ings — taken for the express purpose of overruling his objection in appeal ? . Nothing, either techni- cally or substantially The respondents, when they required he should be condemned in costs, cotitrived to make him a party, and havekept him in the suit ever sinee^ Why then not have made him so before ? For, if he- conld become an appellant, he could be made a respondent. There is no limit to the possible number of intervenients; and every person who takes part in a suit and who is not either plaintiff or aefendant, is an inter venient. They next attribute the error or omissionto the Secretary of the Court. -What then ? Is a party to be condemned uncalled, or rendered responsible in pitrse and person for proceedings to which he is a stranger, under any possible or imaginable contingency? If there be fault in the Secretary, he and he alone is responsible for his faults ; but the fact is, ia the present caee, Eenionatvance _ against au or- der of the Su- " prome Court, 18^7 [174] Punishment ftir frivolous Uti'^ntion.- there was none ; the fault lay with the framers of the original petition of appeal. ■ The executors, finally ask, whether the Su- preme Court's decree of May is to affect Martensz'} ]Jid not JIfffrtgnz appeal ? If not, the Conrt is not likely to have committed precisely the same mistake that caused the reversal of the order of the 6th Fehruary, in coming to a decision on Marteniz's interesta, when Martensz had not ap- plied to it : and this is already quite clearly ex- plained in its decred. As to the authority -of the Court to award dam- ages as costs, it has already expressed its senti- ments in other cases. It is unacqu.iinted with the . practice of any appeal tribunal in modern or an- cient legislation, which has not possessed and occasionally erercise^as an undoubted part of its appellate jurisdiction, the power by an additional iimercement to check ftivolous and vexatious litigation. The Civil Law says " Ne temere autem ae passim provocandi omnibus facultas proebetur, orbilramur earn qui malam litem fuerit persecutus, mediocriler pcenam a corkpetenti judice suatinere." 1. 6. § 4. Cod. de Appell. Tn England there ara three established Conrts of Appeal, — the House of Lords, the Privy Coancil, and the Lord Chancel- lor's Court ; and in all these arc increased costs thus awarded. In France, in Holland, the ap- pellant formerly, as now, was invariably homid to deposit a fine which he forfeited, if the appeal proved frivolous. See among'others, Van Leeiiwpi, y. 646. b. v. ch. 25. § 18, And that the Suiirenie Court possesses all the usual and aeeustomed rights and powers of Courts of Appeal generally, as Well as that the tribunals established under fb Charter, possess all the various rights and pow- ers universally attaching to Courts of Law and Conrts of Equity, appears beyond doubt or ques-, lion. And that .again, this power in particular has been occasionally, but of course discreetly, exercised by the Supreme Court, as now consti- tuted, from the time of its institution, is a fact admitted. It is true that by various Statutes passed for [175] . 18ST the protection of persons charged with duties hi- volying considerable responsibility, such as Jus- tices of the Peace, it has been expressly enacted by the Legislature of Great Britain, that, if any persons who prosecute them shall fail in their action, such persons shall pay a penalty in tho shape of double or treble costs ; and these of course being penal statutes cannot bear any ex- tension : but this is quite a distinct branch of the subject both as regards the principle and its ap- plication. Then this pertinacious jesistance to a final C6nt;mpt of decree, whatever shape it takes, is in itself a Court coiitempt of the authority which pronounced the decree and as such punishable alike by every Court of Record. The executors are therefore, in addition to all other costs hitherto recoverable against them, adjudged to pay to the Appellant F. A. ToussairU ' the further sum of two pounds and ten ehillinga OS increased costs for frivolous and vexatious liti- gation, aud as an indemnification for the delay arising in the enforcement of the decree of this Court of the 31st May last,— No. 2,225, D. C. Jaffna. . 514. — Heerapitliye Lehbe v. Itobde and his wife Pattooma. ■ The plaintiff jn this case claimed certain lands i^^l!!ora1''Be. and moveable property, being the share allotted quest of Real to his brother hmael Pulle in their father's estate, and Personal on the ground that the 2nd defendant (the widow f^'P^"^ ^• of hmael Pulle) having no issue, was not, accor- ding to the Mahomedan law, entitled ts any of her husband's property. The defendants (the Ist of whom had married the 2nd) pleaded that the property had descended on the 2nd defendant, as the widow of Ismael Pulle; that he had a daughter by her who survived him ; and that the property had been bequeathed by Ismael Pulla to his widow and daughter. At the trial in tha Court below, it was proved that hmael PuUe had^ left a daughter; and oral evidence was also received in respect of the bequest alleged to have bee nmad« by him. 1887 [ 176 j The Supreme Court pronounced judgmtitit in appeal as follows : •" With regard to the bequest relied npoii by the defetdants, the oral testimony they have of* fered goes to confirm thd fact. As regards thS personal property, the Court therefore consider^ it as belongiiig to the defendants under thd bequest. But «aZ' property cannot be orally bequeathed. It remains to examine what is the Mahomedan law in this particular. " The Court has taken the best information it could obtain at Colombo,*- aiid it appears that the mother was entitled to one-eighth (besides her magger, which niagger however sjie must be pre- Butued to have received) ; the daughter to four- eighths or one-half ; and the' collaterals to the remaining three-eighths. And as if appears that the plaintiff, according to his own statement in his Petition of Appeal, is only one of fiv* collaterals, (there being three brothers and two Bisters of the late Ismael Pulle, surviving ot having loft issue), it follows that he is. only entitled to one-fourth of these three-eighths of RuleofDivisipn the real property;— the rule of division among r-mong Collate- collaterals being that the estate is divided into "'^' eight parts, of which the brothers take six, and the two sisters two ; so that as there are three brothers, the one-third of the sister is equal to two shares, or one-fourth of the eighth. ce..se(l Uaugh- " I' "o'**^ becomes further requisite to ascer- ter. tain who, according to the Mahomedan Law, are the rightfnl heirs of the deceased daughter. And it appears that the Mother is entitled to one- third, and the five collaterals to the remainder, which is t,9 be divided in the same manner, viz : the uncles taking six shares in eight, the aunts the remaining two." ^I'ctorf state-' Judgment was therefore given for the plaintiff menta of Plain- for 3-32 (or J of f ); by right of inheritance fronl. tiff hmael Pulle, and 1- 12th (or J of f of |) by right of inheritance from his daughter ; but coil- t The i'ollowiHg special Assessors liad been summoned, and Bat at -the hearing of the case,— ^Aaraarfoe ieJfte Segoe Molin- maditi Casim GanecapuUe , tambj/ Rasa Capetar Ayiroti LcHi Markar, and Oiim Lebbe Cajiitar Mamadoe Lebtt. ' [ 177 ]_ '837 eideijing the nutnerou* contradictovy and -untrue Btatem-ents made by the plaintiff, 'Snd the exorbi- tance of the original demand, the Court wndenin-. ed him in costs, except those of Appeal, which were divided. And taking the value of the r-eal property at 160 riddies, the defendants were ad- judged to pay to the plaintiff the, sum of 28 rid' dies, deducting the coats of the suit. No. 1.050, D. C Maddewelletenne, (J.) 515. — J)e Breard V. Tennehoon. Proof of a . Bond. This was an action on a Bond ; which the de- Att'stiug Wit- fendant denied. After evidence 'had been heard, nesses. tTie Court. below gave judghient for the plaintiff. HMKlwiiUng. The Notary, a reluctant witness, could not, when J)re»sed, deny his signature to the Bond ; but the two attesting witnesses were unable to identify their signatures. Two other witnesses however had spoken to the authenticity of the Bond. Tlje Supreme Court in Appeal, held the Bond to' have 1)eeh sufBcie,ntly proved; and per Jeremie J. '• It is to be hoped that constawe Alt's curious doubts and ignorance as to hia own signature may be attributed, to the lapse of time ; for that it is a forgery no one will believe who is in the ■least accustomed to compare signatures, and who compares his signature to this Bond, with the signature to his present d-eposition. And here the Court. thinks it fitting to observe that on ge- neral principles it is inclined .to credit the authen- ticity of documents of this nature, rather "than 'even inferentially to impute conspiracy, forgery, and perjury to parties and witnesses. The trutli is much more easily denied than a circumstantial tale supported by documents of this nature in- vented ; and a debtor's conduct in denying hia '■ signature is less dangerous and more intelligible than that of a stranger or creditor, in forging it. In this instance the Court entertains not a doubt of the anthentieJty of the original document, or that it is as well proved as under the circum- Btances it cau be. N.0, 1,166, D. C. Caltura, (J.) laST [ 178 1 61G.—Silva Cangany v. Arnaselam Canganif. The fact* of this case were almost similar tff 'those of the foregoing. Tlse Supreme Court pro- froofof a Bond, nounced judgment as foUows : " The contradictions in the testiinony of the plaintiff's third vritness are on points purely col- Minor ^.^^^^ lateral ; he swears distinctly to his having drawn "deuce. up the Bond and to its due execution, whilst minor discrepancies are fully explained by the lapse of time ; and this testimony, corroborating as it does the evidence of the second witness, greatly outweighs the suspicious testimony of the first, who begins by denying a knowledge of any dealings whatever between plaintiff and defen- Authenticity of dant, and then recognizes his signature, a circum- Documents pre- gjance which he accoimtsfor very vmsatisfaclorily. '' The Court on genera] principles is inclined to credit- the authenticity of documents of the des- cription of this Bond^ rather than on slight grounds • to impute forgery and double perjury to a party and witness. It can understand why a debtor will be prone to deny his signature, and how a single witness may at the expiration of seven years have lost sight of the actual circumstances of a case, much more easily than that three per. 'sons — the last evidently a reluctant witness- should, without any grounds, expose themselves to the terrific penalties attaching to such crimes, " Nor is it an immateriaj circumstance that the first witness was produced by plaintiff, which ha would scarcely have done had he had any doubt of the integrity of the transaction, without being CompariBon of first assured of the testimony he was likely ta Handwriting, obtain. " Finally on a mere cotuparison of the Bigna* ture to the Bond, with those attached not only to ■ the Power .of Attorney, but to the defendant's answer,— the Court would entertain little doubt, if any, of the authenticity of the former. " The decree of the Court below is t,herefor» reversed, and plaintiff's entire claim adjudged t9 him."— No. 8,536, D. C. Putlam, (J;) [ 179 ] ^ 617. — Lokoebadalliyenegey v. Castcriiaelalgey, ^ ssion— " The plaintiff in this case claims a portion of preaumP'iooB the planting share of certain gardens. It is ad- arising ""m. uiitted that he was formerly the owner of a por- tion of the ground also ; that this portion waa sold about six years ago under a writ of execu- tion, and that even then the plantiff claimed and wished to have his portion of the planting share sold (jlso, but that it was disputed The infer- ence from the circumstance of the ground having been separately sold, and which is principally, if not solely, relied upon by the defendant, falls to the ground. It is also admitted that the plaintifi though deprived of his ground-share has ever Bince resided in these gardens, both which now form one ; and this leads to the- presumption, though certainly not to the proof, of some remain- Proof of «n l«- ing interest in the gardens. But he further proves *^'*''*" ■''*" • by several witnesses that he was the acknowledged planter of some portion of these gardens ; one witness gave him the plants, and another aided him in planting ; and this, for a transaction of 30 years' standing, is quite ^s strong proof as can be expected. And he also proves that within the last 3 and 3 years, and therefore subsequently to the sale of his ground-share, he has shared in the produce of the garden. This clearly shews some remaining interest. " What then is that interest ? He claims one- fourth pf the planter's share of the second planta- tion ; and this is precisely the amount reserved, as evidently belonging to .another, in a lease of the 10th January 1832 of one-fourth of the same garden, made by the mother-in-law of the 1st defendant, and to which not only is the 1st de- feudant a witness, but on which, as appears by the endorsement, he personally received the ar- rears. And these are circumstances of which the 2nd .defendant (the purchaser of plaintiffs ground share, and previously a lessee,) cannot be presum- ed to have been ign6rant. " The pUintifif is therefore quieted in the pos- session of the one-fourth of the planter's share of the 2nd plantation."— No. 2,340, D. C Caltura, (J.J 1837 [180] 518. "Domingo Fernando v. Petronella Juitina Potenitz, Administratrix of Alphonso. PU-tingshare " A planting-agreetnent was entered into by ^Comproinise ([^^ plaintiff and others with the defendant's late -K*-s^to the jj^sband, on the 6tk March 1830. Its provisions are no donbt harsh, and were it now a question ■whether it ahoiild take effect, it would in all pro- bability be very considerably modified in regard to the pennlty and forfeiture.- A suit was how- ever commenced on this agreement by the de- fendant's husband against the present plaintiff, in the year 1826 ; which suit (No. 1,552, Proy. C. Cofom5o,) was finally determined by compromise, on the 22nd October. The Record of that day contains the following entry ;— " The defendant states he has entered into the agreement to pay to the plaintiff, in SO days, six fannms for ev«ry tree not planted according to his agreement, and resign all claims on the trees iilanted by him." And judgment was entered up accordingly. The original agreement bonnd him down to pay Eds. 2 forfeit for every unplanted tree ; so that three- fourths of the forfeit money was thus remitted. The defendant in that case has however continued to occupy the ground; and has occasionally pluck- ed fruits from it ; and he has n»w brought the present suit again-st the former plaintiff's admin? istrator to recover a sum of £15. as the value of the planter's share of the garden, which the de- fendant is allegied" to have gold. To this the defendant j leaded the former judgment. And the only question for the Court is in what capa- city has lie obcupied the property since that judgment ? No less 'than seven witnesses swear that it was Bs renter ; ho denies that it was by virtue of the interest he had expressly forfeited under the compromise in the former case. Under these circumstances, the Court can have no hesitation which to believe, especially when all the witnesses of the plaintiff, except the Snd and 3rd, prove only what is not disputed, viz : \k&\fheha*j)laid,- ed J whilst both the 2nd and 3rd, though they say that lie haiS retained his planting-share (in which howerer they are contradicted by the 6th, [ 181 ] 1S87 who says that the pkintiffa share has not been given to him as yet ;) also admit that ha has held as renter ; which shews that, to the full knovvledga of both, he did stand in the relation of a tenant to the defendant. " The decree i.s therefore reversed in favour of the defendant; but, in consideration of the extreme vigour of the covenants in the original agreement, under which the plaintiffhas forfeited his planting- share, without costs. — No. 1,338, D. G. Negomho, (J.) ^^ h\9.— Udagahapattoegey v. Kiidaliijenegey . " From the depositions of the 1st witness, it is P-aintiffs mt»r- proved bey'ond question that the plaintiffs had "''" """^ "^'• jiotat the time they entered this wit, nor hnvci they now,- a particle of interest in the cause ; and they are made parties only to enable, the real party (the Ist witness) to give evidence in his own favour, — a proceeding contrary to every principle, and which if countenanced, musit lead to £> total perversion of justice. Should t lie 1st witness enter an action, then will be the time to ascertain who is .the true proprietor of the pro- perty in dispute ; but it is certain according to .their own evidence, the plaintiffs are not. They are therefore non-auited with costs." — No. 3,212, Caltura, (J.) July 20, (J.) C20.—Ja the Estate of Sey«doe Mira Lehhe Ma- hamadoe Lehbe Marcar. The deceased left a Will, appointing his wife Administration the executrix ; but the grant of Probate to her '° Z' '■'•«^. . ' ,. , ,. 1,1 iviln consent of was opposed by two of the Creditors, Messrs. tho Executor. Ackland and Boyd and Jlessrs. Groves & Co. The question having been argued in appeal,, — the following order was ultimately agreed to by the pSrties: " The. parties having agreed between tlicm- selves that Edward Barley Esquire sliopld be appointed administrator with the V\'ill annexed, it is ordered that the said Edward Darleij be appointed administrator, with the Will annexed, but without seclir1t-y,in Conformity wih 'he arrange- 1887 [ 182 ] ment signed by the respective Proctors of the parties."— No. 16,792, 16,770, D, C. Colombo, N. ( J.) 621 —-Warnecoelle Aratchigey and another v. Magenta Perera and another. Banusof Mar- " The broad general principle is, that a publi. mge— opposi- gj,tjon of Banns can only be opposed on grounds ■which would render the marriage unlawful. And inconfirming the decree dismissing the opposition, the Supreme Court felt inclined to lay down that Estate of pre- Principle simply and without qualification. It deceased parent appears, however, that to far back as the year l«ft »uisettled.i780, a resolution was passed by the Councils of Ceylon, by .which on the decease of a Father or Mother leaving children under age, the survivor is not allowed to re-naarry, until the property has been inventorized and the orphaji's portion secured to them ; and by its decree of the 1st July 1835, (No. 1,502 D. 0. (Mlura*), this Court enforced this regulation, so that it cannot but be consider- ed law. But being an exception to the general law, it must be restricted within its original limits. . In the case No. 1,509, the child was a minor : the resolution has reference only to minor children; and to the cases of minor children only can it therefore be made to apply. Here the parties opponent are neither the children of the survivor, nor is either of them stated to be a minor : they nre the mother and brothers of her. first husband; arid as the right of opposition belongs but to the children by the previous marriage, during sneh children's minority only, the Court on the doubU ground of non-aiSUation and want of minority, confirms the decree. — -No. 606, D. C. Caltura (J.) July 86, (R. J.) 529. — Warnecoellearacliigey v. Wcmiecotlh Aratchigey. ^*d DC ^'' " ^' "PPS*'"* '" tl^is case by some of the depo- sitions, that there was an old fence in the garden in dispute, and that the defendant has removed it ; Se» mU, p. 6», by m [ ISO j isar. and erecied a new one, whicl^ seems fo liavS piven rise to tliis suit. Tha fizo nt' live gHrdeii itself is very doubtful ; so that it is in faot difficult to tell vliether tlie parties lias'e any cause of dispute at ail. Trne, much of the evidence is hearsay ; but the- above facts seem tolerably well-established by positive testimony ; and even hearsay, though utterly inadmissible as to matters of ])resent or vtcent occurrence, is admissible and" often the A'.icleu't Occur only testimony in questions of ancient occupancy, I"!:'!^^', /'''.'^^'^"' descent, or .ancestry. The decree of the Court below (which was for the defendant) is therefore siit aside, and the case remanded for a survey of the land in dispute, and further evidence on both sides. — No. 3,!-'JU D. C. Euanicelle, (J.) ^ 23. — MahaweUetenne v. WellegecJere M. Banda-. Darigamineiie Basnai/ce Killeme, Interveuient. The.se proceedings are intimately blended with Be; Ju.nmin— the suit No. 7,G01 hetsv&evi Behlgamme Lekam, .'^.f^^fl^^^^. as guardian of one /^UJ!(;% Jl/eni/i-a, and the pre- ties, sent defendant ; which suit was determined by a Aathovity to decree of this Court of the 4t;i February 183.5. *'' mu2'"' ■ That decree is of course final and irreversible, ex- cept under two hypotheses: 1 of Collusion be- tween the pirties to both suits; and 2, if the In- fant was not duly represented. But the evidence in this case tends to e.xcite suspicion ou both points. It is therefore, necessary that they be fully en- quired into in presence of the parties to either suit; and if is ordered in consequence, that the case be referred back to the D. 0. for the follow- ing purposes : 1. — Tliiit the said DeJiir/amme Lekam, guar- dian of the said Punchy Men icka, and tne said Punchy Menicka herself, be called to inlerveno in the ju'esent action, — the D. C, iu case the lat- ter should be still a minor, appointing some com- petent person to as.-ist her. 2. — That the said Dehigamme Ltliam be called ujion to shew by whose nomination and nnder what authority he u;;dortook to net as guardian ia the preceding suit ; ui:d to^xpl-vin if he is r-'!)- i^ . [184] ted to either of tlie parties; and if so, in what de- gree : either pnrty beiDg ai liberty to offer testi- mony an these points 3. — For further evidence in support, or in re- futafion. of the collusion on the occasion of the suit No. 7,601.— No. 940, D. G. liatna^oom, (J.) * 524. — Toutiaint \. Ilerft. Postponement, Piainiifif be^ng " It appears that issue being joined in this case, Sr^iTc use' ^^^® Proctor for the plaihtiff appeared on the day quen'ce of 'p. ■ of trial, and stated that he had refrained from fendant's Biis- summoning witnesses to prove his bond, owing rspresentatiou. j^ ^ j^,^^^. j^^ ^^^ received from defendant, which he prodtieed, and which he construed into a pro- mise of payment ; on which his ease was struck off with costs. " Had plaintiff failed to appear and defendant b6en ready to proceed, the Court wottld not have done otherwise than it did,— the 24th Eulo' leav- ing no alternative ; but that rule does not apply to this case, nor is there any that does; so that the Court in first instance, as in appeal, is un- fettered in its discretion. And it appears to the Supreme Coiirt that under the circunistanees, the payment of the costs hitherto incurred, is quite a ■ uufficient muTct for the plaintiffs omission' (an oniissiT:incaused h\' the act of the defendant) with- out conspelliog him in so simple a case, to com- mence anew. The cnse is therefore to be re- instated, and the parties are to proceed to a trial, but without any reinibursenient of the costs lutherto ineurred, which it seems have been paid. The costs .of this appeal are to -stand over and abide the definitive issue." — No. 3,234, D. C, Jaffna, (J.) Aanaden change 52'5 — Waltoeijagwmegeij v. Kirvjallt-Badakelk, in th" course • i.- i rf a rivei-, where- " It appears that some years ago a river which by land is trans- flowed between "the lands oF the plaintiff and the bank to' the op- defendant, suddenly changed its course, leaving posite, does not jiart of the ]>lai»tiff's property, to the extent of alt.r the pro- ^\^Qyyx three coruies, on the defendant's side. The I'BJ'ty- ^ . * See h'St-a, Dee. 30, 1S37. [ 185 ] iSS7 ilefendarit took possession of this share, asswedn- Qn? aa to the niized it, and appears to have eontimied to eulti- '"'S'^'f "! " I""^' . ■.. i_f /. 1 , z! , ,. ty, who has aes- vate It peaceably lor about five years ; scveFal of .wediimized the the plaintiff's own witfiesses agreeing that it never land of another. was asswediimized before. " The piaHitiff now claims the field back ; and he is entitled «o to do. A sudden and percepti- ble change in tke course of a Eiver, or a transfer of a large portion from one bank to. the opposite, •does not alter the property, though a gradual and imperceptible increment belongs to tlie owner of the land thus enlarged. " So far therefore the Cctirt wonld feel inclined to confirin the decree ; but the defendant has as- Bwedumized the land for some years without any interference oa the part of the plaintiff, whose con- tinued silence, though it cannrit be construed into an abandonment, cert'ainly amounts to an assept to the improvement. V>'hat then are the terms on which land belonging to one person,- but which ■ another has asswedumiied without any precise stipulation of share, isthenceforth held? On one occasion it was reported to this Court that the as- Bwednniizer became the proprietor of one half; As however Sciwer is silent onthe sabjeot, and the Court is not aware of any direct enquiry having been instituted under its authority, for the purpose of settling this very materixil point, this case is re- ferred back for evidence on both sides, as to the share, if any, which an original asswedumizer by consent of the proprietor, but without any distinct stipulation of shares, is by custona entitled to, in Saffragam, in the land so asswedumized." No. ^ 1383, D. C-. Ratnapoora, (J.)* 256i — Mevinhegey V. Merinhegei/. The Petition of Appeal in this case contained A Proctor nop . /. n . , \^i p ^ tt A n ^ bound to uphold the following entry at the foot:—' As Proctor, ^ ^^^^ which ha and one of the ilrawers of papers here, I am com- conceives to be pelled to sign this Petition ; but am of opinion groundless, that the Petitioner has no cause of Appeal what- ever." Held per Jeremib J. that the Proctor was in * Vide in/ra, October 18, 1839. [ ISO ] error. A Proctor is not in a Civil' suit bound ta uphold officially a case whieh lie conceives per- fectly groBMclkss or iniquitous ; t-linugh vvliore there is a fair and reasonable ground of defence, lie is at fnll liberty to, act in a cau<;e, whatever may he his private opinii lis of its. merits. But he should iirst state that opinion to liis client. Ke 'm n;it <-xpected or required to mention it elsewhere, ^"o. 3319, D, C. Cultura, (J.) Q57.—KirioroomsMeera Lehhe and another v. Raggamana Ahantado. A wnraan, under Where a wife under coverture hud alone pre - nor^peal. "*"' ««"^^'-l ^ Petition of Appeal, AeM that the docn- raent was void ; and the decree of the Court be- low was affirmed. No. 1888, D. C. Matelle, (J.) August 2. 258. — Uiai V. Peiera. ■> ]t>™"o'^'m ^"^ Wlienevcr on the day of trial either party state* discretion ofthe grounds for not immediately proceeding, which ap. Court below, pear to the Court reasonable and satisfactory, it i°aTppear"''°" ^^ "* ''"'^ ^''^^''^X ^° o^^^^' ■'' postponement on suck terms with regard to costs and other incidental points as the case seems to re(juire ; nor is there anything in the 24th KuJe or any other to fetter the Court's proceedings in this respect. But this exercise of its discretion is liable, as on other oc- casions, to revision and oontroul-in Appeal. ^Absence of The vmavoidable absence of Counsel or Agent Counsel orAgent, ig a sufficient reason for delavins: a hearing, so may ie a 1 .i n , • ,•,.-, i °, . . ." ground for post- •'°"o ^^ t"e Court IS satisfied, that the juint inter- ponement. esta of the parties and the public will not be ma- terially prejudiced by its so doing. A postponement cannot however bo insisted upon, as a matter of right, merely on this ground. The .decree of the D. C. is therefore set aside ; —and it is ordered that the case be reinstated on lilainliffs discharging all the coiits of the dav snd' ofthe Appeal. No. 13/363, D. C. Colombo, (J.> {, 187 1 1S37 verse. August 9. (J,) 259. — Garehingei/ v. Garehingey. This case in.wliieli the right to certain lauJs A party claim; v.as in qnestion, had been sent back on a pvevions ™f .'"H^ ^7 occasion for further evidence on the ji.art of the proved^ t^have defendant, the Supreme Conrt observina; that teen orighally. " ii fell on the defendant, who was proved to have f ""^r^ "^""ff 1 • • 11 ,1 1 • ,. 1 , , . tor, IS bound to been originally the cnltivator ot the land in qiies- shew when his tion, to shew when, his title became adverse to ^'''^ became ad- the plaintilif, the original proprietors; and that lie had iiudistnrbedly possessed under snch ad- verse title for ten years fjom the plaintiff's nia- fority." The case having come a second time in appeal, the Snpreirje Court pronounced judg- ment as follows : — " The defendant has not shewn when his title became adverse, for the deed is not better proved than it was before, the late Modliar who made the endorsement having .continued in office until 1829; nor has he called a single additional wit- ness to possession : his whole case therefore rests on testimony already pronounced insufficient. " On the other hand plaintiff has adduced the additional witnesses, who corroborate the pre- ceeding witnesses' evidence in his favour, and prove not only plaintiff's recent possession, but tha: the field in dispute was mortgaged by his mother and held for many years by the mort- gagees, (defendant being always the cultivator),, subsequently to the date of the Deed of Sale, Baid to have been passed by him, then a minor, . and his Sister, then under coverture, in 1813 ; snd all the witnesses who depose to this fact are the nearest neighbours, to whom not a shadow of suspicion attaches and whose testimony agrees on every material point. " "The Court cannot therefore but consider this as anothei" attempt on the part of a mere holder to usurp the title of a proprietor." The decree of the Court below, was therefore reversed, and judgment entered for the plaintiff. No. 9,343, D. 0. Maturh (J). 1837 [ 188 1 The claim of the children of a predeceased .KX>ouse on the property of the K u r V i V r, a- inount, merely to IT mortgage, Ki'i"g them pri- oiity in respect of- their share over subsequent creditors or pur- chasers. 2G0. — Tumour, 'Attorney of MaJiheii's v. Rosalroe. The judgment of the S.npreine Court in this case fully Bt't3 (lut the facts : ' " Jeronimvs de Eosairoe of Calpentyn is a .pri- soner for debt at Colombo, under various wints of execution; and the children of, his first v\ife claim a large portion of lUB ostensible estate. His af- fairs have in consequence been repeatedly brought under the consideration of the District Courts, uf Colombo, North awA Fiulani. " The following eases are now immediately or incidentally before this Court,. Futlam 1,923 Colombo, 'North, 2,983, 5,316, 9,568, 9,93o[ 13,227, 16,791 ; and these, consbined, bring the whole of the principal parties, together with the various questions now pending in both Districts before the Conrt. The parties are the debtor, the chief creditors, and the children, as heirs of the first wife ; and Vlie questions have roference, 1st to the couiU\ct of the debtor as it affects him- Belf, 2.ndly to the litiuidation of his- estate; i' On the first point, the Distriet Court of Co- lothbo. North, has by. its decree in the case No. 2,933, dated 4lh ' July 1837, pronounced him, iu effect, a fraudulent insolvent, and adjudged feim to suffer twelve month? imprisonment compntcd from tlie day on which his conduct was investi- gated. It further delares him- not entitled to tlio benefit of the Legislative Enactment No. 6 of 1835, " passed for the relief of honest Traders''^ and it has come to this-' opinion owing to his hav-, .iug mortgaged to others ' property which he all the time knew belonged to the estate of his de- ceased w ife and was subject in preference: to his children's claim.' " That the District: Conrt has formed not an incorrect judgment of the generally reprehensi- ble conduct of this debtor, as shewn by the papers now before it, this Court beliwcs. But ill matters of this moment, whilst concurring in a great degree in tiic view expressed by the Court below, the Supreme Court feels bound to notice one or two specific points in that judgmeilt, in which the language appears- to admit of a mistakea construction. [ 189 ] 1S37 " The Ordinance No. Gof 1835 applies alike to fill cases of Bankruptcy and Insolvenc}', whether the Insolvent be in or out of Trade, honest or fraudulent ; provided he has not laid himself open to a prosecution for some specific criniinal offence. If fraudulent; it punishes under the 39 Clause, and thus it postpones, hut does not deprive hiwi, of his discharge ; if not, it gives hini prompter relief. Again, the part of the Ordinance alluding to Bankruptcy relates .principally to Traders, the remainder to Insolvents who are not in trade. "Nor 'does any part of the jiroperty hold by Eosairoe belong to the estate of his deceased ■v\ife ' The whole" estate is as conipletely his, in point of law, as if he had never married ;- the children's claims merely amounting to a mort- gage, — a lien by operation of law,^ — viliich gives them priority or a.})reference over all subsequent ereditops or purchasers for the actual vrJue of the mother's share of the community at the day of her death. But the children are entitled to no specific share. of the pi operty as owners; and as these 1-ights attach to them by laio and not by contract, the opposing creditors are presun)ed to have been as well acquainted with them as the • debtor himself ; for that he had married a first wife who had left issue, was too notorious a fai;t for a subsequent mortgageenot tf) haveascertained, if he had used ordinary diligence. The Supren)e Court draw s therefore its infer- ence as to the misconduct of the Insolvent from the immense mass of needless litigatiiai before it, — which is a 'deliberate squandering of the estate,— as well as from his behaviotir with regard to these very claims of his children, which he was strenuously- contesting in one Court at Putlam, whilst he acknowledged them in another at Colombo. When his children sued him, he owed them comparatively a trifle, and resisted to the. last the re^covery of this trifle. When his other . creditors sued him, he brouLiht forw ard the same claims, acknowledging them at once, to neutralize their proceeding, — conduct which cannot be over- looked, though it does not amouutr to that species of premeditated fraud in contracting debts, which ]N37 ■ [ 190 J the opposing creuitors seem to have-couteiitplated. " Pairing to the question ariging fi'om the ,|iro. ceedings held for tho purpose of liquidating tlie estate, — li appears that the sale of the estate on tlio part of the creditor under writs of Execution in the suit Nop. 16791, 9503, 9930 and 13337, Colombo, is opposed' by the chihlren in tile suit. No. IfJTSl, Colombo ; and the eale on the part of the children is opposed b}' the Insolvent in suit- No. 1923 Putlarii, whilst .the same Insolvent is elaiiniug the benefit of the Ordinance No. 6, of 1835, at Colombo in the suit aboveuientioned No. 2983. " This renders it at once nt'cessary to coreoli- date the whole-of these suits, and by transfeiing them to one Court to prevent a multiplicity of actions and cross-decisions. "•(!onsidering them as consolidated, it follosvs that, the Insolvent having filed his Petition for relief, he is bound to assign his whole estate under clauses 14 and 48 of the Ordinance, or the District Court will do it .for him under clause 48 ; and this does away with all possible oppositioh from him : and he is from that moment a stranger to the proceedings, and no application from him tending to stay the liquidation can be entertained. " With regard to the children's objection to the sale, the explanation already given to the nature of their claims, determines the value of their op- position. Their mothers estate is merely a cre«litor among sroditors, privileged it is true- but still a creditor. Nor indeed is, the amount of the claim yet ascertained, as 'it must be in pre- sence of the Assignee of their father's estate. In the mean time however thfy have applied for alimony, in the case No. 1923, Piitlam ; and, as the Court conceives, on vtry sufficient grounds. "The various questions before the Court having been thus discussed, it remains for it to pronounce its decree, in conformity with the opinion it has expressed. " And in consequence, /tVsf, it is considered and adjudge J, as regJirds the decree of the Dis- trict Court of Coloniho, Xurlh, dftCcd '4th July 1S37, that the term of the iiiipiisonmcr.t lio [ 191 ] ^w iiiiligateil to twelve uioiitbs from th-o dn-te of the hisolveut's filing his petition for relief, under the Onliuaiice No. of 1835, " And, secondly, as regards the liquidation of the Estate, it is also considered and adjudged, •'■ Ist.—That the s«ita No. 2983, 9668, 9930,, Order for 13927, and 16791, from the District Court of J^ofu.u";^ Colombo, Nmih, and the suit No. 1923 from the of several Ifisti'ict Court of Putlam, (the suit No. 5316 suits. Colombo, JVorth, though connected, being at an * "■ end), be consolidated and combined ; and that the whole of these -eases be referred to the Dis- trict Court of Colombo, North, where all further proceeding with regard to the liquidation of the estate of the said Jeronimus de Eosa^oe, are to be held. " 2nd. — That the oppoM'tion made by the Insolvent to the sale of his property, real or .per- sonal, in the suit No. 1923, Putlam, as well as the opposition made by the children, to the sale of any such property by the creditors, in the suit No. 16791, and all other appositions whatever, if any, on the part of the said Insolvent, or children, to the said sale, be set aside ; and that the said District Court of Colombo, North, pro- ceed, in consequence, to the liquidation of the whole estate of the said Jeronimus de Rosayroe ill manner following : — " l^t. — That it call on the prisoner, in terras of the 48th section of the Ordinance No. 6 of 1835, forthwith to assign his estate, for the benefit of his creditors ; and that in default of his so doing, the Court proceed to assign it for him. " 2nd. — That the assignee do then (subject to the orders of the Court) proceed to the sale of the real and personal property, belonging to the estate, at such times, and in such manner, as shall appear to him, (or to the Court),- most advan- tageous to the creditors ; and that in case of difficulty as to the distribution of the proceeds, the value be laid out temporarily in securities, public or private, approved by the Court,, or depoaitcd in case of opposition by the creditors OT children, in the public Treasury. IRS- [ 192 ] The ab- sence of a party is not in all cases a good ground Jbr postpone- laent. " And with a view of settling the amount of the children's lien, it is also decreed that the Court do in the presence of the assignee, and of any of the creditors, who at their own perssnal cost may see fit to appear, proceed to follow np the proceedings in the suit No. 1933, Putlam,B.nd to ascertain the clear value oi the said Jeronimus de Kosayroe's first wife's interest, in the coniniu- nity existing between ler.and her hnshand at the period of her decease. " And it is further decreed that the functions of the Official Administrator nominated in the said suit. No. 1993, PtitlcCm, do cease and de- termine, the said administrator heing duly al- lowed all reasonable costs and charges for the duties he has performed ; and also that aa alimony of three pounds per mensem, be allowed to the children of the first wife, payable from monies now in the hands of the commissioner^ administrator, or aesignee, or from the first monies to be received by them ; the said allow- ance commencing from the day of their father's imprisonment ; and that sueh alimony continue to be paid until the affairs of their mother's estate be liquidated. " Finally, it is ordered that the whole of these cases be remitted to the District Court of Colomr ho, North, and that a copy of this judgment, be transmitted by the Registrar of the Supreme Court, to the District Court of Putlam."— No. 2983, D. C, Putlam, (J.) Gintotte-parene-vidanegey vs. Don Juan and others._ "Although a D. C. is always at liberty, sub- ject to controul in. Appeal, to grant a reasonable time to the plaintiff or defendant, for the purpose of bringing all the partiss together, (which is generally the roost convenient course) ; yet the circumstance of one or more joint defendants being absent, or not be found, by no means renders' continued postponements an incumbent duty. The case <;an be decided between parties ■who are present, leaving it to the plaintiff to i; 193 ] 163', follow lip Ilia proceedings l)y default., against the absentees, and tp the latter, to defend themselves when they appear. " It appears also to this Court that these pro- ceedings might have boon much simplified, if instead of entering a fresh aetion; the plaintiff had adopted the practice established at Colombo of simply moving for a rule, to shew cause why the former judgment should not be revived, and execution issued thereon."— No. 1814, D. C, Matura, (J.) August 15, {J.) Barton vs. EyMngert and others. In this case the plaintiff having on the 7tli February 1837, obtained judgment against the 1st defendant as principal, and the 2nd defen- dant as his Bursty, issued Writs «rf Execution against them. The 1st defendant veas brought up on the 30th May and comraitted ; but oil the 19th June' following, on the motion of the plaintiffs Proctor, he was discharged ; and the writ of Execution was rerissued against the 2nd defendant. On the 2nd defendant being brought up, however, he objected to his committal on the ground, 1st, that the plaintiff and 1st defen- dant had agreed, and sold the property mort- gaged to the plaintiff, without the knowledge and concurrence of the 9nd defendant, (such a proceeding necessarily releasing the security, as declared; by the Supreme Court in No. 2004 and iecondly, that the plaintiff had not persevered in such peremtory manner against the principal debtor as would probably have secured payment; A superan- nuated judg- ment may l>e 1 evived on •» Rule Nisi. Soemen&jooltj Teroonanse vs. D. Juanis Jayaioichreme. " A final decree cannot be altered ty a D. C. But Judgments preparatory, and interlocutory, may at any time, previous to the final decree, be altered, amended, or cyen retracted." — No. 803, D. C, Matura, (J.) A. D. c. may alter its iaaterlocutory, orders, but not its finals decrees. I. A Surety who, after n itioe,does not object to the Salo of the mort- , gage, is not thereby dis- charged. 2. A creditor bydischarg- ingtheprin-^ eipal from gaol, with- out the consent of the Surety, thereby dis- charges tha surety. 1S37 [ 194 1 from him ; inasmuch as though arvestecl, he hai been since discharged at plaintiff's application, without the knewledge or consent of the surety. It was admitted by the plaintiff's Proctor that the mortgaged property had been sold, and the proceeds applied in payment of the defendant's debt ; but he also stated that he liad communi- cated to the 2nd defendant the intention to sell the property by private hale, but had received BO answer. It was admitted also that the 1st de- fendant had been discharged from custody .with- out consulting the Snd defendant. The Court below upheld both the objections, and discharged the 2nd defendant. On appeal the Supreme Court pronounqed judgment as follows : — " The notice given by the plaintiff to the de- fendant of the arrangement respecting the sale of the house, to which notice he as surety made no answer, would, if proved, be sufficient to set aside tho fint plea. But on the second, the discharge of the principal, without tho consent of the surety, amounts- beyond doubt to a dis- charge of the surety." No. 3,617, D. C. Galle (J.) Every Vil- Inse is en- titled to have a cart-road, on indemni- fji-ng the owner's whose lands a]'e tsken for that purpose. Security in appeal cannot he accepted after the ap- pointed time, nnlesa by consent. JFernando v. Ahamadoe LeVbe. There can be no doubt that every village ia entitled to have a cart-road, and if there is nrae to apply for one ; but then they must do so in due form, and will be expected to indemnify the proprietors of the land adjacent. The road, will also be- made to take the least inconveni- ent line. No. 2,823, D. C. Caltwa, (J.) September 1 5 (R.) Gooroenanselagey v. Liyeneaehigey. Whei;e the security in appeal Had been offer-. ed long after the due and affixed time, Md that it could not be accepted unless with the assent expressed of the plaintiff. No. 1,333, D. 0. AmMangodde. (R.) L 195 ] 1837 September 20, (R. St.) Blevin V. JonMaas. Tho rule of Court, in furthcratice of tlio design of the Charter, permits at any time during the proceedings, of an oral examination, at the discretion of the District Jndge; of the parties, plaintiff and defendant, litigant. In re- ference therefore to this rule, it does not appear that the Proctor of a party can equitably claim an exemption beyond' that which is given to his client. The Court will itself decide on the rele- y£incy of tho questions put, and on the expedi- ency of the answer. No. 3,469, D. C. Ruan- Ue, (R.) The T). C. has disevetion to allow the ex- ammation of a Party or his Proctor at any stage of the case provided the qiieslions are relcvaufc. October 18, (R,. J.) Had Vmma v. Cuttt/ Nahooda. The judgiaent of the Supreme Court in this case fully sets out the facts : — " So far back as the 11th May 1818, the present Eespondent obtained a decree against the executor of her late husband i/at/yie Ismael Nacoodah's estate, for four boutiques bequeath- ed to the said husband, and subsequently in January 1825 she obtained another decree for the arrears of the rent of this property. " On proceeding to enforce these judgments, she was opposed by the present Appellant Moo- lary Mohidien Cutty Nacodah, who assumed tho quality of agent of one Coenjie Pokey Cavey, heir to ths above Hadjie Ismael Nacoodah. " This opposition was however, set aside with costs by decree No. 1,307. " When the plaintiff was on the point of en- forcing this last decree, Mr. V. W. Vand-erstraat- en as official Administrator of the same Coenjie Pdkey Cavey , interposed, he having under a decree of the then Supreme Court seized ^nd sequestered the estate of the said Coenjie Pahey Cavey-. "Upon this another action was commenced against the Administrator in July 1835, ?ind the On a judg- ment ohtain- ed by a Lega- tee against tlie Exscutor, for the rents of the . proper- ty beqtieathed she had seized a sum of mo- ney lying in deposit in the Treasury. This sum had been dTeposit- ed by the Ad- ministrator of an Heir oftha Testator, (in pursuant of a judgment against him at the instance oftheLegatee) as a dividend allotted- to the Legatee on her claim. Held, that a third' party claiming un- der such heir had no reme- dy as against -1837 » [ 196 ] the Legatee, defendant having on the 9th November dnter- venf herdSw- ed a distinct admission of the claim " as per ingthe money judgment," but objected to paying the costs of from theTrea- g^jj.^ ^ decree (the fourth in the cause) was passed ^"''^' on the 11th, recording the admission of tho debt, but adjudging the defendant to pay costs, v/hich last clause led to an appeal on the part of the defendant. In appeal the latter put in a written statement, setting forth, first, a denial; that the present appellant Moolary Mohidien Cutty Nacodah, the opponent iu the third suit, ever was authorised to represent Coenjie Pakei/ Cavey ; — and secondly, that this very debt which the official Administrator had himself distinctly admitted in his answer of 9th November 1835 to be then due, had on the contrary long sines been paid . and satisfied by the deceased's agent Mr. Gibson. On these grounds the case was reopened by decree of the Supreme Court of the 18tii January 1836, and referred back for fur- ther investigation to the District Court of Galk^ This decree is as follows : — ' ' ' The proceedings in this case having been read, and explained by the Court to the Assessors.lt is considered and adjudged that the decree of the District Court of Galle, in this matter, be set aside : the case nevertheless to be proceeded in ; the plaintiff being at liberty to prnducei such further evidence, if any, as she may stand possessed of in support of her libel, and with, full 2'>ower to tlie defendant^ to make his defence as official Ad- ministrator. The costs of the present proceed- ings to be defrayed by the plaintiff.' " On re-appearing before the District Court, the official Administrator attempted to prove neither of the allegations contained in his state- ment in appeal, but reverted exclusively, as ap- pears by the proceedings dated lltji October and 23rd December, to be the question of costs, — which was in fact the only point reserved by the decree of November 1835, passed on his own admission. The District Court in consequence,,-; on the said day, 23rd December 1836, proce^dei '< to pronounce its fifth decree in favor of plaintiff [ 19T ] wliich decree was nfRrmed bv tliis court on the SSrd February 1837. " The ■ Plaintiff and Respondent Laving on these decrees sued out a writ of execution against the official Administrator, the latter, on the 28th April, announced to the Fiscal of the Western Province, that a sum of £54. 1. 1, was deposited in the Treasury allotted to Rasi TJmma's claim of £97. 7. 6. by dividenij. Bat when the latter was on the point of receiving this sum, Moolary Mohidien Cutty Nacodah, the author of the opposition to the two judgments originally obtained against the executor of Hadjie Ismael Nacodah, the same person who . had been taxed by the official Administrator . with having falsely assumed to himself the qua- lity of agent of Coenjie PaJiei/ (Javey, the in- dividual, in short, "by whose instrumentality the Eespoudent has been hitherto deprived during twelve years at least if not during the whole nineteen, of the benefit of five distinct decrees of the local Court, several if not all difinitively con- firmed in Appeal, — again opposed the payment. This opposition was notified to the Fiscal on the 16th May by letter from the Proctor stating that his client had obtained on the 8th January 1836 a judgment against the official Administrator of Coenjie Fakey Cavey for £520, and he therefore called on him " not to divest himself of any sum of money be may have seized or be about to seize by virtue of the writ of execution No. 3,402 from the District Court ot Galle, until the qnes- tion of preference or concurrence was decided." "The value of a judgment, of the kind alleged in this letter, (supposing it in existence, and it has not been adduced, though that there is such a judgment cannot as 9. matter of fact be doubt- ed,) considering, firstly^ the parties, Moolary Mohidien Cutty Nacodah . on the one side, and the official Administrator, wine following in his st«ps had thought fit to raise ground- . less plea upon . groundless plea to the effect of further postponing the payment of this most just debt, on ihe other ; secondly its date iR;i7 ]K)7 *^ [ 198 ■] (in January 1880,) the period ulien all the pleas tlins vcxatiously raised and abandoucd were put forth ; thirdly its evident object, to ob- tain indirectly what had in vain, time after time, been sought for directly for nineteen years, viz : the depriving tliis widow of her legacy ■; and finally considering the easy manner in which, so far as appears, this judgment was obtained, a manner strangely contrasting -as it does ^^ith the obstacles thrown in th« way of the ltespond«nt, —can scarce be doubtful. ■' Concert between two parties, for the purpose of causing an injury to a third, seldom if ever can be proved but by circumstantial evidence; there- fore it is a vveli-establislied legal maxim that where evident marks of such concert or of such a design appear, the proceeding, whatever form it assumes, judicial or otherwise, shall with refer-- CTice to the person whose interest it was th« pur- pose to injure, be deemed invalid. On these grounds therefore, if on these only, the Court would have no hesitation as to th'e decree it should pronounce. But if defective in principle, the pre- sent proceeding is equally faulty in form. The sum of £64. 1. 1. is stated by the Administra- tor to have been assigned to defendant " as a dividend," and to have been deposited as such in the Colonial Treasury. From that time forward, ' it can only be considered as ha^ng been lield by the Treasurer, as by any privateAgentorBankor, for account of the party for whose benefit it had been paid. This has been met in argument by the assertion, that the Administrator had received notice of the present claim from the Appellant prior to his divesting himself of this money. Should such be the case, of which not a particle of proof is tendered, perhaps a remedy might existagainst theAdministrator, — it certainly does .not againt any other j)erson. Then though the law favours generally, as far as possible, an eqital ]iartition of assets among creditors, yvas -an action on the part of Go- vernment against the purchasers of the Fish- rent at Colombo, for the period from 1st April to 31st December 1833. The defendant claim- ed a deduction from the rent, " owing to the Government having established a quarantine on account of the prevalencejjf the Smallpox," which had caused an interruption of theFishery. foreseen cala- To this it was objected that the defendants had, by an article in the conditions of sale, deprived themselves of all right to the remission claimed by them. The article in question was as follows : " The renter shall have no claim to a remission of his rent upon the plea of losses and deficiencies, except in cases of unforeseen and ■unavoidable ecdamilies, of ii'hich Government alone tion of- the will he the sole judge. And no claim for remission, which is not preferred to the collector, -immediateli/ on the occurrence of the event lohich gives rise to the claim, shall be deemed admissible, nor be en- titled to the subsequent consideration of Govenimcut with that view, unless preferred within throe months after the expiration of the rent." 'J'he Court below having given judgment for the defendant, the case came in appeal before lhe Chief Justice on Circuit, imd it was reserved for the opinion of the Collective Couit, and the judgment of the Court was this day delivered as follows : " The defendant argues, that quarantine being an act of the Government, the latter ig responsi- ble for his own acts, notwithstanding the above condition, which merely applies to losses caused directly and immediately by an unforseen cala- mity, or by an event perfecily independent of •the consent of the particp. There can bo no doubt thai covenants of this kind which place one contracting party entirely at the discretion of the other, are at all times to be viewed with jValonay l.y" Courts of Justice. Had tlierefufe ' tlie Act of GoveniineiH in the [.resent case, been iimvarranted by tlie emergency, or higlily un- reasonable, or such as could not have been fairly anticipated under the circumstances, flie Seidur -Puisne Justice \i of opinion that .the defendant's claim should have gone to proof. But it is ad- initted not to have been so. It is true the in- terruption arose directly from the qnarantine ; l)ut this quarantine wns a measure expressly. )iroviiled by Law to stop the jrrogress of a cala- mity which had already occurred. The calamity is therefore the sole original cause of the inter- I'uption ; for, hiid there been no calamity, there liad been no interruption ; nor can it have been in the contemplation of either party on entering into the original engagement, that the Govern- Tuent should be fetteied in the fair exercise of its discretion, with regard to the measures it might feel it its duty to ado^rt, in warding off a puljjic calamity of this uatuie. "It is therefore now decreed that the said order be set aside, and as this w, is the only ques- tion ill the case, it is further decreed that defen- dant do pay the plaintiff the sntn of £702 19s. ild., with interest at the rate of 9 per cent, per annum from the 2'2nd day of February l8o7, l)eiag the sum claimed in plaintiff's rejtjication, bearing date the 15th April 1837, without costs."— No. 101, D. C. Colombo, S. (J".)* January 6. (R. J. St.) foftegodegainef/ei/ v. Bohigamegei/. 5J.'J. — ^Jenickoegey v. GouapinowalatciHtrirjei/. The- judgment of the Court was delivered by Jeremle (J.) 3. Tlic il.^- '• 'J'liese two cases bearing directly upon the i™Ui"ation"''t ^""'f' subject, tlie Native Marriage Law, are ii»iiii> niilj ihc tiik^'ii and determined together, thougii not otlier- rUiiitiii; had ivijie connected. • All mj'tul WHS talirll ag;UI|s| |hi^ ..Uijlsi, ,i|, lO tilt QllL'«l iul'iiw loiiiu'il. (Str unler uf ilii; llih Jauuan. 1S3S, (_iv. Mm. oj); but s ,libuilUL'Hi!y u!ja .duiitd (I but. ]i. ii)U.) ■[ 207 ] 1838 "In one of them, No. 2,8o'S, the banns of marriage betvyeen the 2nd plaintifFanJ the 1st defendant having been duly published at her residence, the 1st defendant conducted her to his village, tut refrained from announcing the banns there ; and several months after, he i:«turned her to her parents, having, as the li- bel alleges, treated her with great cruelty. This latter fact he denies, admitting however that he had inflicted some trifling corrections to amend her conduct." The action now enter- ed is to get the banns which had taken place •cancelled, and to recover £9 17s. 9d., with costs, for advances made by the 1st plaintiff, the father of the 2nd. iJefendant, whilst he admits that he obtained some property from 1st plaintiff, avers that the suit is not maintainaWe, as he is willing to ''complete the marriage ceremony," and as the parties " have lived as man and wife for more than one year." The D. C. ha- ving heard sonre of the plaintiff's witnesses, and pronounced it needless to hear testimony as to the ill-treatment, has dismissed the claim; on the ground that the plaintiffs "have failed to support it.'-' This, on a question partly of LiQW, and partly of fact, especially when tho facts are already tolerably established by defen- dant's admission, is conclusive. That the mar- riage is incomplete and consequently void, is admitted by ^11 parties, though the marriage would have been complete according toaucient ■custom, by the " conducting" alone, and that the inconv-enience now felt arises from the adoption of forms equally complicated and for- eign to the habits ol native inhabitants, is also beyond question. The Court has therefore to inquire as follows : In point of Law, is' the defendant's reply, that he is willing to complete the cere- mony, or that the parties have lived as man and \Tife for a year, a sufficient bar to the ac- tion. Tho pi'oposal to publish the remaining banns, and thus complete the marriage, if made coBduotcd her' to his village, but subse- quently after . treating her ^Tilh cruelty, retained her to her parents. In an action by the plain- liff ■ and her father, to get the banns can- celled, and to recover certain advances, helJ, that the deft's.- plea, that " he was willing to complete the Tn.'u.riage,"and that " they ha I lived as manandwife," was not an an-, swer to the ac- tion.' within a reasonaWa tinic, and before he IiaJ liimself broken off the engagement, by deliver- ing her back to her- parents, would do doubt be sufficient. But under the present cireum- stances, it is thecoliective opinion of tlie Su- preme Coiu't that it i'S n.ot so ;. and as to the time they have lived together in this case-,, it is- merely an aggravation of the defendant s nib- conduct. In point of fact, have plaintiffs made out a prima facie case, taking together the evidence and admissions ? The Court is of opinion that they have ; for^ as regards the ill-treatment, if proof of this were necessary, it eonceives that the single fact of the 1st defen- dant having taken his intended bride to Iiis own house', and there instead of making hey his wife by proclamation of banns (which de- pended on himself,), having kept ber for a con- siderable time in an equivocal and degrading position, is as gTossan instance of ill-treattneritas can well be conceived, setting aside his admis- sion as to bis occasional corrections. And as to the amount advanced, the defendant's conduct - would probably have warranted an actios for damage^ independently of any advancer but taking the present proceeding as it stands, it is seldom that on occasions of this kind, the exact amount can be ascertained with precision: it must . therefore rest with the Court, if bo additional light is thrown on the facts by the further evi- dence, to affix a reasonable sum for, the advances, taking into consideration the station and condi- tion of the parties and the manners and customs of this portion of the population. In case 3,036, the banns were duly proclaimed and regiatered, subsequently to which, the plain- tiff alleges that the 1st defendant, instead of allowing the Snd defendant, his dang'htftr, to be " conducled" to the plaintiffs, transferred her to another person, the 3rd defendant, who took her to his house, where' he states they .have siuce lived as man and wife, and where, he adds, she was recently delivered of a child. These I ao;-. .1 IfiSS facts are denied by the defendant.'',, tlie former of whom offers now to conduct- his daughter to the plaintiff's. On the proof, the -Court is of opinion that a priina fade case 1ms been made out by the plaintiff. He has, it conceives, satisfactorily •shewn, that the Sr.d defendant has cohabited with the third, by consent of the first. But now arises the question on whi-cii the colleot-ivo judg- ment of the Snpveme Court was principaliy re- qnired, viz. : Is the marriage in this case •complete ? 'It is a circHmstance worthy of notice, that the Regulation regarding native marriages No. 9. of 1822, requires, in 'no part of it, as a condition ■essential to the validity of a marriage, that the consent of -parties shall be recorded by any functionary, cinl. or relignon-s ; or that they shall appear- together, or singly, before a-ny such offi- cer. The two sole conditions of that Law are -a jwlslication or licence with i-egistr.atton ofban-ns, -and subsequent oohabilation ; but even for the purpose of making proclamation and registration, it is BOt'incuTnbent on the officer to insist on'thc .^pl"iearahcc of both or either of the parties, — ho IS to proceed " when applied to^' ; — s-o that it is not only possible to go through these formali- ties without the consent o-r even knowledge ■of the parties, bnt bearing in mind the very tender age at which females are often affianced in this country — on which occasions the banns are frequently proclaimed, — it is probable, with re- gard to them, that. this will occur. The sole evidence of consent being therefore " subsequent cohabitation," it follows that the proof on tlfis point must be more conclusive than might oihervvise .be required, for if the previous consent of both parties were duiy recorded, a Court would presume cohabitation, except in very extraordinary cases. Now, however, Riibseqnent residence together, ■or the "conduct- ing" the bride according to custom, or the i roof,-! oi familiarity admitted in matters of this natu-rtv Tlie Ifc;. No. Sof 18-rf re- seiic'g- of thrt parties nei^ee- sai7 to Uie va- liility of tha Eegistration. Unless there- fore tlic con- sent of botk parties i« (tal.7 r,ecor(led,' tljo Court will re- quii-e strift e.vi.lcnee of suL^fiqseiitc©' liabitatiou. 183S I 210 ] Tlisreis no- thing to pre- vent a parent tccoming ' a pai-ty to the inarriage-oon- tracf of his ehilj, though ef full age ; and in ren- derino; him- self ■ responsi- ble in soiidum with the chilj, for the per- iwimance of the eontraot. Bnt after maii-iage, the remedy of the husbaud, in ease of seduc- tion, (evea ■with the pa- rent's con- sent,) is on^y against the aeducer. must be insisted on ; and to infoi' a marriage from the mere fact of occasional visits having been paid by the .intended husband at the bride's father, though after publication of banns, is raore than the Court would feel inclined to do. But in the present case, the plaintiff originally claira.^ ed the 2nd defendant " as bis wife ■" and the defendants in' corroboration state, that during 1st defendant's absence at. sea, the plaintiff and she lived together as man and wife at Ist defendant's-, which (as a fact) is in no way contradicted "by the plaintiff: it follows therefore -that the marriage is complete, howeverinclined the plain- tiifmay have subsequently felt to dispute it. Such being, the relative position of the parties, other questions arise as to the form atni mode in which these actions have been entered. In the first action, 9,S55,the father and daughter proceed against the father and son, which in other eoun- trfes would be irregular ; for either the intend- ed bride and bridegroom are of full age or they are minors ; in the former case they should pro- ceed alone, in the latter the parents only appear in a civil action, as guardians for them ; but in none is it necessary -to unite them in this shape. It appeai:s however to liave been viniversal in this Island, under every system of lavf that pb« tains here, tointroduce the parents on these occa- sions, and to render them responsible .in soUdiim with the children, whatever their age, to mar- riage engagements entered into, though verbal- ly,' with their consent :.and as there .is nothing unreasonable or contrary to an express Law in this usage, the Court does not feel inclined to disturb it. The case 3,036 is, however, decidedly irregu- lar ; either- the plaintiif was, or he was not mar- ried. If married, as he is shewn to have been,r he could have no remedy against the first de- fendant ; since, as the father of the second, he had fulfilled his engagement : nor against his wife for an , indemnification in damages. H is sole seraody is therefore -against' the third defendapt* [. 211 ] Ami tliis olijoctlon as regards tlie two first dc- fendanta is essential, and cailnot be overloolted. There ia another irregularity in. the plaintiffs claiming specific, -instead, of general,' damages. The purpose of the action being ho\Yever ob- vious, and the parties having gone. to proof, and 3rd defendant never having m^de the ob- • jection, which is purely of form, the Court considers it now too late to take further notice of it. The District Court, however, will do well to notify to the professional gentletnen engaged, that, should irregularities of this nature again occur, it is not impossible that ,they may be re- fused their costs. For the reasons above stated, the decree in 2,855 is set aside ; and the Court below is to. ■proceed to receive the plaintiff's further evidence. The costs to stand over. In case 3,036, as regards the 1st and 2nd defendants, the decree is affirmed ; with reference to the 3rd, it is set aside ; and the Court below is to proceed to hear this defendant's evidence. The co.stg, with regard to third defendant, are also to,.stand oyer. When the evidence in both or either of these cases is complete, the District Court wiil proceed to pronounce its opinion on the proofs, and then transmit the papers to the Supreme Court for its final adjudication. On the whole, the two cases shewforcibly the defective state of the Native Marriage Law,' which not only requires no official evidence of consent, but. sets' aside the universal principlo that the consensus,' and not the cenciihitus, facif nvj)iias ; . and is also evidently opposed from the complication of its forms to the habits and usages of the native population. (No. 9,835. 3i035.'D. C. Galle (J.) m^H 504. MoTiamadoe y. Veliappen Chelty. Jiiilqmentof T il • 1 ■ 1 -I ^ KoUUH, C. J. In this case, which was reported ante^. 137, inNo. Si.D.c. the Chief Justice now delivered his judgment. ManMir. See "When this case' (which now comes before i""?;, ''"*"' ISS-S [ 212 J us in l-cview) wns heard last (Felniary 13tli 1837), I was unavoidably absent, being com- jiclled immediately to leave Colombo for tlio Circnit. It was then however agreed, that the notes of the presiding Jiidge^ should be taken as evidenoe of what passed in the Supreme Court, and thatlny learned colleagues, if. they saw fit, should advise with me on any point ■ which might arise on argument, peuding their sitting. But although • they did not find it necessary so to do, stiUI am persuaded they would think me blameable, as 1 should also hold myself to bo blameabl'e, if now, upon this hearing in- rioview, I did not, should I have occasion to differ from them, either on the whole, or in any jiarticular, at once freely state that difference, giving my reason for such difference. I have- therefore felt it my dirty to read carehilly through the pages of these proceedings and the elaborate judgment given in the case on the 1st March. I have also attended to the argument urged this day ; but I discover no cause £or in., any respect dissenting from the judgment. which lias been given. I express my coneurrjence ift it, and my sfifisfaction with it. The Kind's Advocate in behalf of defendants ■ and appellants, Mr. Moiyan ior iilaiutiffand res- pondent,, are heard. 'I'hoy go over the legal and technical grouhds already discussed in the decree of tlie- Supreme Court. But this Court sees no reason to alter ita opinii>n with' regard to them ; the more so, that- ol jcctions. as to the form .ind wording of the .exlii bits, whether well or ill-founded according 1o Englisli practice, should not be made to apply in stiictne!^-s to agreements' enta-red into in a re- mote district in 'India, whi'eh shaald be intcrpre'- ted on broad principles of equity. As regards the objection, for instance, that the exhibit A contains the words " should you," or " if you should," instea'd of the more strict terras com- monly in use in covenants in England, muoli may depend an the translation, more on the idiom : [ S13 ] it is sufficient tliat tlio eonclitious were perfectly uiiderstood, and in part executed by. tlie parties themselves, specially as these conditions were renewed on the morning of the 10th February, as shewn by the receipts and olah of that date ; and that the exhibit A is only of importance as explanatory of the engagement then again re- newed, confirmed, ai)d ratified. It has not been disputed that Ramen Clietty named in the receipt, is the Ramenaden Clieky of the evidence, oi" that the Merapen Ghetty oi the evidence is i\\&- Meyappa Chetty of the re- ceipt ; nor,indeed, with persons acquainted with the usage among the native population, could there be a doubt on the subject. Objection has also been made to the amount of the damages, and it hag been stated that the Court in assess- ing damages referred to the evidence taken ex 2iarte,hnt not vnthout notice, in the Court I'elow, This is an error. Amidst many con- flicting statements as to the value of the Fish-; eiy, this Court was principally guided by the teatimony of two trust-worthy public servants, the District J-odge, Mr HusJcisson, and the Trea- sury clerk Mr. Ahvis ; and it gave full credence to Mr. ITiisIdsson's opinion (though he referred to the evidence of the renter Mootoosawmy an taken before him,) from the conviction that Mr. Huskision (the Government Agent of the Dis- trict, as well as District Judge) would not have referred to it, had he not known it to be not in- consistent with truth. Nor is there any reason why the Supreme Court should not refer to this evidence, which was duly taken before the Dis- trict Judge, and is regularly filed in the cause. It has heard Moofoosawmy anew for its own sat- isfaction, and to give the' defendants an oppor- tunity to • cross-examine him ; but it does not fallow that it was not at liberty to compare his present with -his past evidence in the same cause, though it has not done so. The decree of the Supreme Court is therefore uuHnitnously confirmed by the three Judges in Ecview. [No, 84, D. C. Manciar, (R.) 183« 1838 C 214 1 Jan. 10,- J. St. . 503. Mirando v. Rodiigo. [The following order, made in the ease No. 1,517, D. C. iVe^omSo, directing an examination of the parties before the Sni)rcme Court on cir- cuit, is inserted liere as a precedent.] Fovm of an "^Vliereas this case is now in appeal from the Order for the before mentioned District Court of Negomho ; ■ examination ^^^ whereas certain proceedings have since the I'.cforc the Su- date of the order of the Court' below been in- preme Court, gtituted and had ; and /whereas it is considered and resolved by this our Supreme Court of the Island of Ceylon that it will be expedient and fitting that' the parties and vvitn esses in this case shall be severally summoned for examination; personally and publicly before the Supreme Court. This'Mandamcnt is addressed to C. P. Lay- anl, Esquire, District Judge of Negomho, as well as to E. S. Waring, Esquire, our Fiscal of the Western Province, to the parties in this said appeal, to the witnessfes severally heard ■ and examined before oiir said District Judge herein, and all others whom it may concern; and it is hereupon directed and ordered that the said- 0. P. Layard, Esquire, Judge of the Dis- trict Court of Negombo, as aforesaid, shall give or cause to be given .to the said parties herein- litigant, due and distinct" notice, that' their' case is fixed and appointed for Hear- ing before our Supreme Court, on Wednes- day next, the twenty-fourth instant, .at eleven in the forenoon, and their attendance is com- manded at the Court-house, Hulfsdorp, at that (lay and hour. And it is further directed and ordered, that the said E. 8. Waring, Esquire, our Fiscal of the Western Province, shall hereupon give or cause to be given due and distinct notice to the wit- nesses in the said case now of' appeal, of these the premises above •mentioned, and that he do t 215 ] 1838 issue or cause to be issued summonses to the said witnesses, alike of appellant as of rospondent, and do require their attendance at the time and place as aforesaid , on pain of the usual penalties. ■V^'itnesses on the part of the plaintiff, A, B. Witnesses on the part of the defendant, C. D. £No. 1,317, D. C. Ncgombo. (St.) Jan, 13. (J.) 552. — Vidanelagey v. Isboe Lehte. In this case, the Court below had refused the plaintiff a postponement ; and in his Petition of Appeal against this order, the plaintiff made several allegations against the Proctor who had the management of his case. . Jebemie J. — If the facts alleged in the Peti- tion of Appeal be true, the Appellant has his remedy against his late Proctor ; and if not, this gentleman has a right of action against him for gross defamation ; but there can be no doubt that in the present case the Court exercised a Eound discretion in refusing a further post- ponement. [No. S,067. D. C. Ccdtura, (J.) On Petition of Appeal, ill whitili the ap- pellant com- plained of tlio conduct of liis Proctor, Held tliat lie had liis remedy agaiilst liis Proctor. January 95. (J.) 633. — Dissenaike v. Hetteliewagey. In this case, the Court, reversing the decree of the Court below, which was against the plaintiff, pronounced judgment as follows : Th-ere is reason to apprehend that it is not an tiniisual practice in some of the ■ districts far the ' real parties — persons of some substance^ — to put forward others, as claimants, and then to get themselves called as witnesses in support of their own case : this is the third instance, at least, of the kind within the Court's short experience. On such occasions, should they fail, their adver- sary is left with a very insufficient remedy for "^Vliere the real party en- titled to the property in dispute, puts forward others as claimants, in order to get himself called as a witness, he may be punishedsnm- [ 216 ] Coui''- mai-ily M for the costs, the nominal parties passessing little, if eontemrt of any, property ; and when they snceeed, as they had at first, in this and the two other instaiicea to which the Court more expressly alludes, they of course swear themselves into the estate in dispute. It cannot therefore be too generally known that such a proceeding is nothing more or leas than a gross fraud and contempt of the authori- ty of the Court, punishable summarily, indepen- dently of other consequences of fine and impri- sonment. A more evident instance of the mis- chievons consequences of this practice than the present case furnishes, could scarcely occur. A. L. E. Lehhe, when called upon to defend hia title in his own per-son, says, " I can have no claim to any part or portion of the land plaintiff BOW claims, and I have no evidence to adduce" j. he also explains that " his trees do not stand . within the portion of the garden included in ' plaintiffs surveys," — vihilst, when called as a wit- ness for the original Intervenients, he distinctly made oath as follows : — " I enjoyed the pro- duce of half the number of trees in the said gar- den in right of purchase from Lohoo, until four years ago, when Comister Aratchigey Dines die- possessed me of the said trees, asserting that they belonged to plaintiff, and that plaintiff had an- • thoriaed him to take charge of them." H«. , then proceeded to state that he had been deprived of an additional fourth, which he purchased from one Simey, by plainti|f in the same manner, adding that the remaining fourth belonged to one Bahey Tidahn ; and he thus accounted for the whole garden by giving to one Babey the fourth of which he now admits he himself possesses the principal share, and claiming exactly the three fourths (formed into a .new garden,) which belong to plaintiff as ground-owner, and first defendant as last planter. Under those circumstances, the Court cannot do less than charge him with the [ 217 ] IftSS costs incurred, by all the parties to this suit, nor can it refrain from announcing its determinaiion to visit with much greater severity any reiter- ation of thia offence. Indeed had not his depo- sition been already discarded, as proceeding from an interested witness (though it remains on record) it would have be&n the Court's duty to have di- rected even now a prosecutioa in nnotlier shape. It is therefore further decreed, that the whole of the costs iijcurred by plaintiffs, by the. several •defendants and the rfenoaining intervenients, shall be borne by A. L. H. Lebbe Conicapulie, the last-called latervenient. [No. 251, D. C. Tfuigalle, (J.) February?. (J. St.) 554. Toopahigay Antlwny v. Dona C^nstina. The plaintiff in this case claimed, amongst other things, certain nets left to him . by the will ciDanul Qitejo, the husband of the defendant, parties Imvo but which the defendant refused to deliver to the i>"^ several plaintiff. It was contended on the pai't of tho iwn'ranVinVc.' defen8 C 218 1 and occupa- tion, the plain- tiff filed an ap- plication stat- ing that the defendant had sub-let the property to anotlier party, and that they were doing in- jury to the house, and praying that they Ve eject- ed therefrom ; the Supreme Court directed that the case should be heard and decided forth- with. commenced on tlie 9tli December las, ati action against the latter for £3. 6s., amount of four months' rent then due, and £3 more for damages sustained by breaking down the Walla, &c. ' The case was fixed for hearing for May next. In tlie meantine the plaintiff filed, on the 16th Decem- ber, a further application, stating that defendant instead of personally occupying the house, had- allowed his brother-in-law Mr. Lovendahn, to to take possession ; that he had received rent? from neither, and that they were doing further injury to the house and garden ; and he there- fore prayed that the said occupant should be ejected therefrom, on which the District Judge determined as follows ; " On reading the application of the plaintiff, it is decided that it be refused, because whatever damage the plaintiff may sustain, he will be entitled to recover from the defendant, if he proves his case against him." This order was appealed from ; and the Senior Puisne Justice having considered the case, directed on the 7th February that it should be heard collectively ; and the Court in collec: tive sitting is now unanimously of opinion that the above order be set aside, and that the District Court do forthwith proceed to hear witnesses in presence of the parties, and to determine the case on its merits, reserving to either party the right of , appeal. The Court is also of opinion that a rule ' of Court is requisite for the purpose of establish- ing a summary form of process, to be adopted in cases, which like the present, are of undoubted ijrgency. [No. 5,063, D. C. Savan Korles, (J.). 1. The defen- dants having, on an advance of£'20(),agreed to supply the plaintitl", with- in a months S59. Parhtt v. Pctlachi/ Chetty. The principal question in this case arises from a claim of damages for a breach of covenant. By Agreement dated 22nd September 1836, defendants undertook to dclis'er to plaintiff 25,0 cwta. of coffee of good and approved quality ; L 219 ] 1S3S perfectly dried and picked, fit in all respects for shipment, and to tlie satisfaction of plaintiffs, at the rate of £2. per cwt. of 112 lbs, English. They received an advance of £260 and agreed to fulfil their engagement within three mouths, on a penalty of £200 over and above the repay- ment of the £250. On the 9th November, the parties entered into an additional agreement by which the defendant agreed to " deliver to plain- tiffs witHn 91 days, 500 bags, containing each 4 parrahs of good and merchantable coffee, picked and perfectly dried, and free from black and white beans, and entirely to the satisfaction of the plaintiffs, at the price of £3. Ss., per cwt. of 11'2[ lbs English. In part payment they received an advance of £360. There is no penalty stated in this latter agreement. Towards the acquit- tance of their undertaking, the defendants made four deliveries, for the three first of which receipts were given at the time. But they admit that they have not entirely fulfilled their engagement, and the plaintiff claims damages to the full amount of the penalty, in consequence. The defendants reply, that the fault lay not with them, but with the plaintiffs, who refused to pay them the balance upon what they had actually deliver- ed, and who made very unnecessary and frivolous objections to the coffee actually delivered. The Court is of opinion that damages are due, but not to the amount of the penalty. " Damages are due." The defendant was only entitled to payment at the close of the periods stipulated for the several deliveries ; or, with so heavy an advance, at the close of the contract ; and as to the objections made by the plaintiffs, they might at least have tendered ; and had the article so tendered been in every other respect conformable to their engagement, it is not the insertion of the words " to the. entire satisfaction of the plaintiffs," that would havo deprived the defendants of their remedy. Such stipulations are always very incautious ; but yet a ijarty entering into them must bo understood with 251 cwt. of Coffee dt £% a cwt. iirfd that they were not en- titled to pay- ment of tlie balance till the close of the period, &couli not refuse to deliver the Coffee on the ground of non- payment. 2. An agi-ee- ment to deliver Coffee " fit for shipment, and to the satis- faction of the plaintiffs, " is fulfilled by tho delivery of the best kind of Coffee obtaina- ble at aboutthe stipulated rate in the market. 3 The plain- tiff, tliough he objected to the quality of the Coffee delive.- ed, refused to allow the de- fendants tore- move it : Held that he had thereby elected to receive it in performance of the contract. 4. The mea- sure of dam- ages in case of non-perform- ance of such an agreement is the probable loss sustained by the plantiff; and not the a- mount of the stipulated pen- alty. 0. The dis- tinction be- tween_ penally 1838 [ 220 ] and lignidaietl to havo rendered himself dependent upon tlw damages is pe- pdgment, Biid not the mers pleasure or the ca- Law" ot°Eng^- P^ice of the other contracting party. They shew laud. that he lias stipulated to deliver the best kind of merchandize obtainable at about that rate in the market, at the time of the contract ; and if he offers goods of that description, he is to be considered as having fulfilled his engagement, though the goods be refused : for it can never be too strongly impressed on the minds of parties, that in all, and more especially mercantile, con- tracts, the most perfect good faith is expected from all sides, and Tvill be insisted upon. A breach of contract therefore can never be excused, except on the most satisfactory grounds ;, the more so, when, as in this case, the party, owing to a considerable rise in the market price of the article, had a direct pecuniary interest in infring- ing his contract ; but on the other hand, pro- vided it be executed in good faith, no mere form of words will prevent the Court's looking to the meaning and obvious intention of the parties ^vhen they entered into the engagement. " The full penalty is not due." On this point again, the same good faith enjoins that the mea- sure of damages should bo the probable loss. Penalties therefore which exceed that amount are reducible, " whilst to that extent damages are equally due, though there should be no stipulated penalty. It is true that in England the fnll amount of a stipulated penalty has been occasionally recovered as liquidated dam- ages ; but this is peculiar to the law of Eng- land. It does not obtain here, (See Censura Forensis and Vander Linden) ; and even iu England a penalty is hardly, if ever, recoverable, except it be expressly stipulated " as liquidated damages," and even when so expressly stipulat- ed, it is but rarely allowed ; the equity of the case overruling almost invariably the positive terms of the agreement, as it has in another country the plain meaning of the text of its re- .cent celebrated Code. A penalty in an agreement [ 221 ] is therefore nothing more or less than an esti- mate of probable loss, stipulated at the time of making the contract as a criterion of the risk, but subject to be re-considered on either side, ■when the loss has actually occurred. And this Court has already so ruled in a case between the same plaintiffs and another party, in January 1837, and it sees no reason to niter its opinion. The Court has now to consider the amount of the damages. But, the parties are at issue as to the quantity of merchandize delivered. This difference principally arises from the con- dition in which the Coffee was offered; the plaintiffs having, as they state, been obliged to ^dry, re-pick, and re-sort it, which occasioned a defalcation in the quantity. It appears l)y the receipts that of the three first deliveries, the first was accepted conditionally, the two last unconditionally, — the first receipt containing the following note, which is omitted in the two others, — " This mu«t be dried again.!' The Court is therefore of opinion that' the plaintiff's estimate ought to be taken for the fir-st ; the defendants, us stated in the receipts, for the two others. There remains the fourth, for which there is no receipt. Respecting this delivery, Mr. Lamhe, a witness called by the plaintiffs, states, — " The last delivery was the worst of all, it was wet and hot. It was objected to, as not according to contract. Defendant complained of the loss he sustained on the contract, and pres- sed us to receive it, as it then was. I refused to weigh it, as it was so wet and would lose about 20 to 25 per cent. Defendant then proposed to take it away, but we refused to allow that, as ho had large advances of money, and we required the Coffee, as a vessel, the ' Duchess of Clarence' was then in the roads. The vessel was consign - ed to us." From this deposition it is clear that the Coffee, instead of being declined was ac- cepted ; since, though the defendant offered to take it back, the plaintiffs, from motives of con- venienco to themselves, refused to return it. In 1838 ^888 [ 222 J so doing they have made this (Jelivery their own, for it remained with them to consider at the time, whether they would reject the Coffee and sue for the breach of covenant, or take the Coffee and carry it into account. They made their election in favour of the Coffee, and are now bound to carry it into account, — of course, at the rate at which it vi-as tendered, and must be considered as having been accepted. The more so, that it is questionable whether they were not at the time debtors instead of creditors of the defendants ; and that, whether so or not, there was nothing to induce them to believe that the defendants were less solvent then, than when they made the whole advance. The three last deliveries must therefore be calculated at the rate set upon them by the defendant, — the first, by the plaintiff. Defendants have consequently delivered, First delivery Cwt. 189 3 26 Second do." „ 191 1 10 Third do 116 3 25 Fourth do „ 12r5 624 1 3 But to establish the deficiency it is requisite to ascertain the quantity in cwt. stipulated for by the second agreement, on which the point the parties are at issue. The loss to be principally considered will then be, the difference in the market price of coffee at the time when these engagements were entered into, and when they should have been fulfilled. But on this also the Court is not satisfied with the evidence. Its final decision is therefore postponed for the pur- pose of enabling the Court to receive furtlier evidence, prior to its assessing the damages and definitely settling this account. [No. 16,230, D. C. Colomho S. (Coll.)* • See I«^r%. ISSS :\rarch 1, (K. J. St.) 557. — NaU^l V. CorteUiifi. Ebell and others, Intervenient^. [Tliis case is fully reported n?i^e, p. 1(J7. It cmiie npin appeal upon the subsequent proceed- ings, which, had been directed at the previous hearing on the 7th Deer. 1836; and the follow- ing' order was made thereon :] The Supreme Court having taken into its consideration, in collective sitting, the further proceeding in this cause, together with a petition iVom the plaintiff; liiod on the ISth-Feb. last, is of .opinion, that^ as there can be no donbt the SMid plaintiff had a personal and direct interest in discharging the debt due to Gilbert by the late Thomas Naijel, and that she has used due diligence for the purpose of obtaining a cession of action from the said Gilbert, as required by this Court's former decree, the case be referred back to the District Court, with directions, that, if it shall ap'pear to that Court that tlie said debt was discharged by plaintiff by any other means than from funds belonging to the Estate' of the said Thomas Nayel, she is to he taken and deemed subrogated in all the rights' of the said Gilbert against the Estate of the said Nagel, rh fully as .though she liad obtained a cession of action at the time she made the payment. — [No. 3,193, D. C. Jaffna (J.) A Co-obli- gfir haviiif^, pending • his. notion for cou- tiibution, ob- tained a ces- sion of. action from the cre- ditor, held en- 'titled to the rights of th» creditor, on proving tlie « due payment of the debt. 558. — Malcmictr Tamhy v. Ahdid Cader. This is a plea to the jurisdiction on the part of Intervenient. The plaintiff's reply is, that he comes too late, because the 1st Intervenient only appeared after the witnesses had been heard between the plaintiffs and defendants. To this opinion the Court would attach no im- poitauc?, the intervenients lieing evidently the right party, — the only one tliat should have been sued as defendant. 1. A Plea to the Jnria- diction, if foundeil on the residence of the deft, or the place of the cause of action .must be pleaded before discutishi,'; tli« merits. • 1S38 [ 224 ] 2nd. — But the Intervenient has liimself plead- TenfenV"'^- ®^ *'° ^^^ merits. Hence ^question arises partly ing filed his of law and partly of fact. Can an Intervenient Petition of jii- plead to the jurisdiction after pleading to the pleadinctothe merits ?' And has the intervetiieut actually merits, cannot pleaded to the merits ? ;i»ff''T'^!^ Exceptions to the jurisdiction are of two plead to the , . , '^ ^, . .■' ,i ,, ^ /. , .uristliction. Kinds ; as they arise from trie nature oi the case," — or are established for " the convenidnce of the parties," The first may be urged, at any time after, as before, joining issue, and even in appeal ; they should also bs taken by the Conrt, even, if overlooked by the parties ; and this class, when ' this Island was.divided as regards jurisdiction inti> various Courts, each having, its exclusive rights and powers — as is the case in most other countries even at this day — must have been very numerous. Bat at. present the original jurisdiction devolving on District Courts by the 24th and following clauses of the Charter, is so extensive, that they can seldom occur. True the 24:th clause provides that Civil cases shall be tried dt the " residence of tlie defendant," or in the District where " the act, matter or thing, in respect of which the suit is brought; shall have been done or performed." But both these specifications clearly -have refer- ence to the convenience of the parties alone. The " residence of the defendant" is obviously selected for his benefit ; and as regards the place Avhere the " act. was done," this' is chosen iii conformity to another principle, by which a person entering into an engagement by contract or quasi-contract in any place, shall be understood to have selected that place as his domicile, so far as regards tlie fulfilment of that particular en^ gageraeut. This construc'ion is further borne out on comparison of the 24th with the 2'Jth cliuse of the Charter, "by the latter of which, Dis- trict Courts are invested with an " exclusive jnvisdictiSn as between thetfi and all other Courts ;" but the District- Courts have no such " exclusive' [ 225 ]; 1838 jnrisdiction as among themselves by virtue of the 24th clause. The" assumption of the original jflrisdiction of a District Cpurt bj' the Supreme Court, ■would therefore leave an opening to an exception, which might be pleaded at any time as it arises, from the nature of the case, the Su- preme Court having no jurisdi-wtion in Civil matters except by appeal ; but as betvceen Dis- trict Courts themselves, the defendant may waive a privilege established principally, if not ex- clusively, in his favour ; for every District Court has jurisdictioji cases of the like nature, and the Court is not expected to know where parties come from, or where an " act" was performed. Exceptions of the second class must therefore be pleaded in limine litis, or before discussing the merits, and the Court is of opinion that this is an exception of that class. As to the question oifact, whether th6 Inter- venient has entered on the merits, it is clear he has done so by his petition of intervention, which ■went exclusively to the merits ; the plea to the jnrisdiction having been' only tacked on to the original petition subsequently, after the proceed- ings had been had on the merits. This plea can, therefore, only be viewed as a substantive and subsequent motion. The order appealed from is therefore set aside, and the case referred back to the District Court of Colombo. Though this case was not made ■collective, the three Judges of the Supreme Court were present at the argument, and concurred in the Judgment!— [No. 6,961, D. C. Celombo, S. (J.) Mar. 3, <,J.) • 559. — Parlett v. Fettachy Chitty, Final Decree In this case an order was made on the 15, Feb. •". ParUtt y. (seeante p. ai8.)dlrecting evidence to be taken on ^^(g'e" fate! the point of damages. The Court having now p. 318.) \m ■ •[ 2SG •] heard evidence on the point reserved, was of opinion, — " tliat the deficiency in the coffee stip- ulated for in both agreements, might lie taken at 2l6.cwts ; and the loss on that quantity, ow- ing to the rise of the price, at £1,50. And as no special damage had been pleaded, it awarded that sum as damages- for the breach of the cove- nant."— [No. 16,230, D. C. Colombo, S. (J.) Qui Whether Ord. No. 8 of 1H34 applies , to a joint in- heritance. 5^Q .-^Fernando v. Fernando. ThiB was a case concerning a Planter's share and possession, in which the Court below not having heard the evidence of the defendant's wit- nesses, the judgment was set aside, and the case remanded for -further evidence. Jerbmie, J. — It is not certain ' that the Ordinance of 1834^ regarding Prescription, applies to matters of joint inheritance. This, however, is too important a question to be incidentally discussed. The de- fendant's witnesses were therefore prematurely waived, and he is allowed to examine them on dis- charging the costs hitherto allowed. — [No. 2,866, D. C. Caltura.{3.) A sale in eiecntiop — hew establish- "ed iu fevifdence. 361. — Atchy Zlmma v. Mahamadoe Lebbe. A sale in execution cannot be deemed proved until the documents are produced, or their non- production is satisfactorily accounted for. — [No. 8,567, D. C. Caltura, (J.) March. 5, (J.) 562. — Ederevireachigey v. D. S. Wireivarne. It is a The plaintiffs in this case claimed a share ont known pac- of a drove of cattle, which they alleged to be- ly^^to'^hoid a long to them jointly with the defendants. The drove of cattle defendants denied the plaintiffs' right to any of [ 297 IRSS the cattle: and tlie Court below haviiie eiven for several gen- , judgment tor the detejulant, tlie plaiiitm ap- pealed therefVocu. Jeeemie, J. — It is a l! in the delivery. Under these circumstances the Court cannot allow "any damages. It has already on several recent occasions expressed its opinion that all stipulated penalties are reducible'; and most es- pecially would this principle hold when penalty is accumulated upon penalty for the same act, and where there is no reciprocity in the penal- ties : so that under any circumstances, the Conrt would never, grant more than a full and fair in- demnification, including however, in cases like the present, not only the pecuniary injury arising from a fluctuation of prices, but also an ample consideration for the very great detriment and inconvenience suffered by the public. But, on the other hand, the party contracting for Go- vernment, must expect to be bonnd down with equal rigour to his engagement, and if he fails in them, the consequences must fall on- him and him only. In the present instance there has been irregularity on both sides, and there. is suf- ficient reason to infer that it commenced with the plaintiff, and that it has caused serious loss to the defendant. A very great consideration withGov^rnment contractors is punctuality in the payments ; an.d no other time being stijiu- lated in this agreement, the monpy became due at the times stipulated for the bricks becoming . dne. The first delivery, was on the loth May; the first payment was therefore due on the loth ' May. It amounted to £93. The delendaiit had tli'^n received £8, and subsequently got £3. There is, consequently,a. balance of £12 still due on that delivery ah)ne. But it has been urged that the bricks were not delivered on the loth May. It happens that this agreement is dated the 2nd July, or six weeks snhseqiiently ; it is therefore retrospective. Now the Court 'never can for an instant enfertaiu the idea that it was plaintiff-'s deliberate intention to bind down the 1S3R [ 230 I defendant under accumulated penalties to the performance of a physical impossibility, — nor would snch an undertaking be valid if en- tered into. The only fair, or, indeed, pos- sible inference, therefore, to be drawn frpni Ibis material circumstance is, that on the and of July the plaintiff had no cause of corii- plaint whatever against- the defendant, and therefore that the deliveries due in i\Iay had been regularly made, or that any trifling de- lay had been most satisfactorily accounted for and remedied ;■ — :in either ol which alterna- five§, the balance was certainly due on the 9nd July, \vhen, instead of £5, a grgat object to ■ men of this class, the defendant received £3. And this does away with efiect of the first let- tcr put in by the plain titf, whilst it greatly alters the view to be taken of the rentainder of the correspondence. Next, as'to the observations that the defen- dant should, to obtain payment, have produced his. receipts for the deliveries, -and demanded payment. That he demanded payment is pro- ved by. his receiving £3, and it must be re- • membered that all the testimony, as to these extensive deliveries and ti*ifling payments is elicited from adverse testimony, in contradic-. tion, as rega-rds the deliveries, to the express averments of the plaintiff's libel. There is nothing to shew that the receipts vtere nego- tiable, or transferable by endorsement, and any objection on that head should have been • explained at the time the contract was signed-. The decree is therefore set aside, and plain- tiff's action dismissed ; and as there is no doubt of defendant's irregularity in the deliver- ies (he admits it,) he is not to recover costs. His right of action is, however, fully reserved to him for the balance, about £62, still due to him, which cannot be adjudged at present," as lie has made no claim in reconvention.' — [No. 171, ■!>. C. ColomlJo, S. (J.) [ 231 ] 1838^ May 9, (J. St.) 56i.—Jiodngo V. Fernando. The District Court has, in this case, directed Apirtywho a person suing 'm forma pauperis to give secu- '"•!t''/j" *'*" rity tor liis adversary's eventual costf. Tiiis m/rnnapaupe- is a jjroeeeding perfectly novel, and which "» cannot bo cannot be sanctioned. The precautions taken to"gfve S^ to prevent an abuse in suing as a pauper, are rityfor costs. set forth in the Kules, anid if further restric- . ^'^'■> '^ **^' ., . , , , . . . in costs, exe- tions on this lorni or process become requuite, cutioa may they can he considered by the Supreme Court be issued hereafter. But to require security for an ad- p|*g°„ *"* versary's costs, from a person who ha' proved that he has not the means to pay his own, were to deprive the pauper, at the outset, of all relief from any injustice; whilst, though his opponent may be exposed to some inconve- nience as things stand, yet, if he is succesful ia his suit, he will be always at liberty to sue out execution for costs against the person, and thus punish him by imprisonment, if he can- not pay. The order of the District Court is therefore set aside, and the case is to proceed. [No. 4,88S, and 4,886, D. C. Chilaio, (J.) May 93, (R, J.) [The Hon'ble John Jekhmie, Esquire, was gworn in as Chief Justice.] [The Hon'ble Johk Frederick Stoddart, Eiiquire, was sworn in as Senior Puiine Justice.^ M;iy 30, (J. St. C.) [The Hon'ble Wil iam Ogle Carr, Esquire, was 8»ora iu aa Second Puisne Justice.] 565. — Taldena Korale v. Gedera Araui. Upon very special circumstances being prnv- When after ed, with an offer made of payment of the plain- nia1'-"uie de- tiff 'e costs, the Supreme Court has granted the fendant pray- indulgence to a defendant of putting itr an an- *^ *^°' leave to ° _ 1- 1 . 1 1 1 " 1 answer, but Bwer after a general aenial has been entered ; atated no ape- W»8 [ 338 : fial oircum- but in the pregenl case na faets whatever; are """"rt fv" speciitlly alleged in support. of thia application; prayer, " the there is only the geiieral averment " that defeiid- Coort refused alit by unfortunate circumstances was prevented ****** to file answer." His Proctor had been appoint- ed also- some days before, and it does not .ap> pear even that there is any special ground, of de- fence, which conld not equally b» {j;iven in evi' dence under a general denial. Under tbe.se cir- cuniHtances, to permit the defendant on this ap- ph'cation to file an answer, would only be to allow of an evasion of the Bules laid down against delay ; and the Proctor drawing this frivolous l*eiition of Appeal, is decreed to pay the costs thereof —[No. 7,728, D. C. Badulla, (C ) ' June 6, (J. St. C.) 6^6.—Steema Lebbe, Odeyaf and others v. Setoette Oemma and others. When on a Jjhe plaintiffs by their libel state thai they •nestion of .i » r 'n r\ j i disputed title are tlie stepsons 01 lonria Oemma deceased, to real and whose fiist hu3l)ai)d Awakka Lebbe was their perty,"thebAT uncle, and the second S/«e»ia Zeifce Odeyar their found that the father. They claim as "heirs at la«," to all- plaintiffs were tjjg property left l.y her, which, they say, wa* m'e«(i«,'""'*and chiefly derived from her two husbands. Thia that the pro- property, real and personal; amounts to £!J29. 12!)., Sie\an*8 of ^cconiiflg to an inventory filed by them, inclad- two of the de- iug a Royal Sannas fot the land. fendai ts who 'fhe ■ first defendant replies that He is in pos- had'"nr^dtmn *eSsion of the lands and two rooms on account to it; the case of the estate of Tanga. O.mma^ which he holds with^^°*diito'^ under authori^ty from the 3rd defendant, ■ tions to ■ the Taiiga Oeifirm'i si«tef . This pro^ierty he states D. C. to ap- origin.dly beloihged to Aboabaker Lebbe Adjari drin'ovefthe ^'^'^ bestowed all his moveables and dwelling, plaintiffs, and hous© oB his wife Tanga Oemma, by a written als-ova Beceiv- document^ and h,is ren)aining estate, the lands, property"; and,. '^-Y ^cbal request. The 1st delendaut states thirdly, to himself to have been iu this person's service,, causer the per- and, charged with- the management of his pro-- sonalty to be, ' re. rj i •. l u jai4 into party tor forty years. He adimta be iias no ■ 233 ] • WS8 legal claim to the esfate, and adds, that he is p»«- Court, pending pared to aconnt. The 2nd defendant acfcnow- the.suit. ledges to the possession of Tanya Oemmas pfT- sonal property, which he holds hy consent of all parties, and also declares his readimeRS to account, but denies that he has the Royai Sannaa. The 3rd dt-fendant, who states herself to be " uterine sister" of the deceased Tanya Oemma, claims the whole property as her next of kin. She denies that the plaintiffs were ever brought up by the deceased as their guardian or fustermother, and maintains that the pmperty in dispute belonged to the deceasedi in right, not of their father, her second husband -^bat of their linele, her first ; states that the plainiiff-i enjoy the estate of their father, frye againat one whose claim h as be«n let abide. The Court feelow after hearing the witnesses of both parties, gave judgment in favour of tjie plaintiff and the 1st and 6th def'endantg,, accord- ing to certain rights proved by them res- pectively. On appeal by the 1st defendant, the Supreme Court pronounced the following judgment : " The only defendant- who, in the estima- tion of tlie District Court, has made out a case fligainst the plaintiff and the 1st ilrfendant, is the 6th defendant, Cattadiegey Bahha; but this happens to be the v«ry person who opposed the certificate of quiet possession, and then fail- ed to follow up his claim ; and though it be. true that, by a judijKiPnt of this Court on appeal from Amblangodde, No. 97G, it was held that Edictile Citatiiin under the old form "would not, " and ought not to be held conclusiye against " subseqiient claimants, if such claimants " could account satisfactorily for their silohce " during the time the citation was pending ;" this process has never been considered otherwise; than cpnclusivOt against clai(nantB who actually came for\\ard, and whose claims, it. matters not from what cause, had been set aside.. The decree is therefqre/reyerae.d in so far as it relates to the .f?th defendant; and the plaintiff and 1st defendaiit are in then- several rights quiet- ed in the possession of the priip°rty claimed ty the libel, with costs. — [No. 565," D. C. r. — Cader Lebhe y. Walker. In an action for woik and lal^oar, wLere tiie defundaiit pleaded a ■written agrte- - tftent, and ♦hat one o( the conditions thereof had be«n brokt-n fty thepIahiLiiT, bnt relused to ptoduca the itj;reer&ent; the Court en'ered up. judgment for Jjhe plain- tiff. It is proved that a s.peeial agreement was drawn up and dthei-\visj b« Inquired of hioi. 581. — Casie LMe v. Sinne Packier. The plaJKitilf brought this a/ction to recovei- certai.n monies fi^om tlie defendant ; to which ihe d^fdHdant answeited that i»e had^giveti-a iBond for tJhe amoant to the plaintiff^ kitic part- «ier Gatioe LeMe Mmrean. .Judgment having been given in favour of the plaintiff in ihe'Gourt Where a (le'bt- or ot -a injn graritea a 136tid to one of the partner's and the other part- ner, after a suh- aecjuent (Usse- 18SS [ 2tf5>. ] hition of the partnership, sued the debtor for the amount, Held that the plaintiff had no right of action. A Proctor «hpn called Qpon to report upon n Pau- per-petition, is bound only to inquire in- to the case of the petitioner, and not to go into the possi- ble defence of the opponent upon informa- tion obtained firooa liim. below, the defendant appealed llierefrom, and per Jeremie, J. — " The individual who has been examined as a witness, being plaintilTs late partnor, should, if heard at all, have been made to intervene and examined as a party. But the District Court will perceive on referring to this Court's last deeree. {ante, p. 154), that the onut ^ro&aredr fell upon the plaintiff: it was for him to establish the fact that he had notified to the de- fendant that he the plaintiff was the liquidating partner, which he has not done. Indeed it is now shewn by the production of the Bond, given by defendant to Cattoo LehheMarcan, which bond is not disputed by the plaintiff, that it was given before the dissolution oi the partnership, so that the plaintiff never had from that date a right of action against the defendant. For the bond w.-ts legally given to his partner, and the defendant was bound thence- forth to pay the bearer of the bond. Plaintiff's action is therefore dismissed with costs. The partners roust settle their accounts among them- selves ; but are not to molest third parties because of their private differences". — [No. 4,788, D. C. Uttuan Kandjj, (J.) 682. — Oedoema Lehhe v. Govt. Agent, N. P. It appears to the Supreme Court that Proctors throughout the Northern Province go somewhat beyond their duty, when Pauper Petitions are enferred to them. They ought, in fact, only to enquire whether the applicant has made out a good jjrima facie case, and not to go into the possible answer to that case by means of informa- tion obtained from his opponent. The check upon paupers wilfully deceiving the Court is by punishment, which n)ay also, m some cases, ex- tend to the witnesses who have made an affida- vit in their favour ; but to call upon a Proctor to investigate both sides, before the pauper can bring his case into Court, is to make hira an additional Judge in the cause, which was never contemplated. [ 243 ] lK.S.*t On tlie sooond point taken by ]\ili\ Toiissnint in llie present case, be is clearly inistaken. Tlio Prescription Ordinance does not apply. And as rejiariis the first, did be obtain proof that the applicant was still indebted to Government from the admission of ihc applicant himself, or bis own witnesses; or did he get it from the Government ? If frciHi the former, viz. the applicant, or bia witnes.ses, he was right in reporting as he did ; if from the latter, he was not warranted in mak- ing the inquiry. 'J~he Supreme Court is aware that Proctors have erred in this respect from tlie best motives ; it theref ne imputes no blama to them, whilst it feels bound J^o correct a defec- tive' practice. The case is referred back for the Proctor's farther report. — [No. 37, D. C. Jaffna, (J). Sept. 19, (J). 683. — Welayden v. Appoo Chetty. The defendant in this case appealed against the judgment of the Court below, on the ground that he had not been served with notice. Jeremie J. — This is a very frivolous appeal. The appellant must have known that if his state- ment was true, viz., that he was not served with !i notice, though the Fiscal had duly reported Bervice of notice, bis remedy was not by appeal. His object was, however, evidently to obtain a delay. The decree of the District Court of Jaffna is affirmed with double costs. — [No. 5,608, D: Q.Jaffna, (J). 6&4. — Oemeatte v. Welayden. It appears to the Supreme Court that Proc- tors throughout the Northern Province go some- what beyond their duty, when Pauper Petitions •re referred to them. They ought, in fact, only to enquire whether the applicant hss made out a good prima facie case, and not to go into the possible answer to that case by meaus of informa- judgment lias been entered against a de- fendant wit'i- out notice, liis remedy is not by appeal. The Ajjpeal being frivo- lous, the ap- pellant wna cast in doubltt costs. A Proctoi-, when called upon to re- port on a Pan- per vetition, is not bound to investigate both sides of the case. 1S8S [ 244 lion obtained from his opponent. Tlie clieck upon paiVpevs wilfully deceiving the Court is lay putiishment, which may also, in some cases, ex- tend to the witnesses who have made an affida- vit in their favour ; but to call npoB a Proctor te investigate both sides, before the patiper wn bring his onse into Coilrt, is to maks him an ad- ditional Jndge in the cause, which was never contemplated. — [No. , JD. C. WeUegamme, (J). No action lies agoinat « Surgeon for having orler- ed out the Main tiff from a room in which the -for- mer -was per- Jbrming his dttties as Vac- cinatot. Sept. ae, (J. c.) 585. — Armogem v. Starh. The defendant use<] aiigry gestnTes towards the plaintiff; he ordered -him to leave the place they were in, without aiiy insulting language and without striking him. . Now what was tlie provocation ? The pliaintiff is a servant ; the defendant a Regimental Surgeon, employed at the time in an important but unpopular Government duty — vaccinating the native inhabitants, Th« «-pSt selected for this purpose was a Government School, into which premises the plaintiff -entered Vy leading over the wall. He then failed in the usual courtesies to a superior in station, -and so conducted himself as, in the estrmatiwn both ■»( defendant 'and his Medical Assistaajt,, beAlea others, to interrupt them in their duty. £xtt thfi place was " as public as the Court." Supposing it to have been bo, will it be cointended that he, who in the opinion of the judge disturbs, the proftecdinigs of a Court — whatever the natuTe of the tlisbiirba'nce — is not liable to be vemove'l, •whetlireT standing iTnmediately outside or insidte the Court ? And what the j'udge bad a right to tlo, so had DticlOf Stmk -. tie was at liberty to in- 8«t 'ofi .proper order being inaititfiined ; "to TEt[t)iit* the TOtbiiraW*! «f those wlio iiiterrnpt*d %■; t» [ 245 1 '«« •- "• \ ^ — ' enf(«-Ce his oi-dei" by the use af modevftte force ; and if they still disob&yed^ he might bring them to punishment before the Judge ; whilst the latter eoiikl pn^ish them himself. This is the only difference. But whatever may huve been tlie ^neraJ or usual destination of the place occupied -Uy tkfendant, the Supreme Court c.innot admit, that it was on that particular occasion as public as the Court. Publicity is necessary and gene- rally prescribed by Law in judicial uffiirs ; but this is evidently by no meajis the case with medi- cal operations, which being generally fir ifior* conveniently conducted in private, it, was fur the diifen.Lint and him alone to determine who should be admitted to them. The locality signifies nothing, for so long as he occupied the school room by permission of the proper authority, he was invested with all the rights of a proprietor over those premises, and as such w.is at perfect liberty to remove any person whatever from them whose attendance was not required there. As to the defendant's tone and manner, whilst the Supreme Court perfectly concurs with the Dis- trict Court, that courtesies are perfectly optional, it cannot but add, that if a person standing in the relation of life that plaintiff did to defendant, refnaes him the usual courtesies, he can soarcelv in his turn expect that any peculiar civility of deportment will be exhibited towards himself. The Court therefore, so fav from considering the defendant's conduct worthy jf censure, (no blow having been struck, no improper huiguage used.) conceives, on the' contrary, that he was fully justilied in ordering t,he> plaintiff to quit the pre- mises, and that he is perfectly exouseable in the naanner in which he did it. But it holds tha whole coaduGt of the plaintiff highly censurable ; 60 much so, that nothing but the deference it en- tertains for the opinionaijd jndgmeat of the Dis- trict Court, however, oa this occasion, ccmtrany to its own, could have induced it to coufineitself, as it now does,, to the dismissul of plaintiff's ae- tiou.,— [No 6,76-2. D. C. Tri/icornaUe,/J').' ]f<.ss [ 346 ] Thougli, as » general rale deeds of thirty years standing do not require proof; yet the rule is open to exception Tvhenever the deed is of a BuspiciouB na- ture. bS^.—Adam Lehbe v. Hamado Nachi'a Abdul jRahim, Intervenient. Tliis was an appeal by the defendant against a judgment pronounced by the Couit below decreeing certain lands to the plaintiff, i he judgment, in appeal, (|)«- JjaiEMiE J.) sets out the facts : " As regards mero possession, the Snpretne Courtis by no means satis-^^fted with tlie evidence, especially that for the phdntiff. And with res- pect to the docnments, the District Court has fallen into an error in stating tlnit hoth the deeds are produced by the plaintiff. The tecond (B), the original grant, the authenticity of which cannot be disputed by either party, as it is the original title under which they lioth claim, was filed by the defendant on the 17th January 1867. " Document A the Su| renie Court cannot but consider a very suspicious one ; it conveys tlie whole estate, whilst the plaintiff only claims half; then it would, if genuine, have been accompa- nied by the transfer of possession of the original grant, which would in that case have been tiled by the plaintiff, as the District Court origi- nally supposed it had been ; and there are other circumstances leading to the same conclusion set forth in the petition of ajipeal. " Though therefore, deeds of thirty year's standing are, when accompanied by possession, to be generally considered as not requiring proof, this rule is open to exception wherever the deed is deemed of a suspicious nature. In such cases the best proof that can be got must be produced. For instance, when the writer and all the wit- nesses are dead, the party must prove them dead, and then iirove their hand-writing, or the hand-writing of some at least of them. On these grounds the present case is referred back for proof by the plaintiff', subject to the counter-proof by defendant, of the authenticitv of the said deed Lr. A."— [No. 2,98G„D. C. 'Rmnwelle, (J). i 5ii7 J isas 587 — D. Bona Susana Hanmj and an other v. O. Scmchj Hamy widow of O. Andris Appoo and others. Judgment. That the decree of the Court below be rerersed, and the 1st plaintiff declared entitled to one-fourth of th« land in dispute, which she has possessed uninterruptedly so many years. The Eegulation No. 8 of 1809 is merely declara- tory of what the law was at the time it was passed ; it makes no alteration or new law ; and the Supreme Court has in former cases of this nature, favoured alienations of such lands made before the passing of that Regulation, not only because the very necessity which existed for such a declaration shews that the law, as it stood, was imperfectly known, but because under the prior enactment of Governor North such lands were considered alienable as private property. Possession for ten years subsequent to the Re- gulation No. 8 of 1809, could not certainly, be considered as giving a prescriptive title to the possessor, under the Ordinance regulating the prescription of actions ; but the long enjoyment by the 1st plaintiff and her mother, of the above share prior to the said Regulation No. 8 of 1809, being for a period of 40 or 50 years, raises a presumption in law of an old grant in their favour, which is confirmed even by the defendant's own witnesses, who state that the plaintiff's mother had been given a portion of her brother. The above decision is between the parties in this suit only, and not affecting any claim of, or title in the Go- vernment to this land. D. 0. Colombo, S. No. 164,63. (C.) 588- Oetober 2. (C.) -Sidowey widow of Cadiren and her son Alienation of Service Praveny lands Effect of Reg. No. 8 of 1809. Prescriptive Possession of Service parven^. land. Oadiren Sidembery v. Bamer Wayramottoe and others. The District Court, in deciding cases upon the pleadings orexaminations of the parties, without Course to 'je adopted in dc- 1838 [ 2^8 ] ciding cases upon the plead- ings and ex- aminations of parties. Tlie remedy against any omission or defect in the Judgment of a D. C. is appeal to the S. C. and not by a fresh action. examining witnesses, should decide only on the Law, and on the established facts then clearly ap- pearing in the proceedings before it, either by the direct admission of the parties or under docu- ments produced by, or admitted by them ; but the Court ought not so to refuse to hear evidence iu support of allegations by parties in a cause, merely because the Court itself does not believe the probability of the alleged facts which the jiarty wishes to prove : provided only that such facts if satisfactorily proved, would be relevant to the issue in the suit, or any matter in dispute therein between the parties. No. 3,046, J). G, Wellecjame, (C.) Oijtober, 10 (J. C.j 589 — Sembate v. Coleiide. The decree of the Court below, which was in favour of the defendant, was afSmied, and the proctor for the plaintiff disallowed his costs. The action which was to set aside the decree in a former suit, was extremely irregular, as any omission in the proceedings or defect of decree in the former Case, should have been rectified by application to this Court, on an appeal being made to it. D. 0. WadimorateJuj, No. 1979, (C.) 590 — Jonldass v. Tuachiralle. Where a De- fendant has ap- peared and answered, lie cannot after- ■vvaj'ds object to the jurisdic- tion. The D.J. can- not dismiss a case hy a mere It has been decided by the Supreme Court collectively in former Cases that where a defendant appears and answers to the merits of a case with- out putting in a plea to the jurisdiction any ob- jection by him on that ground must be then con- sidered to be waived, by his having put in an appearance and answer without such plea. The District Court accordingly will retain this cause and proceed in the usual manner therein — Z>. G. Colombo, No. 3, No. 3736, (C.) 591 — Oodoema Lebbe v. Micyna Nina. It is quite clear that no action for defamation could be maintained on this libel. The words L ^-ly J spoken are not in tliemsclres actionable according to the English Lnw of defamation, unless special damage therefrom were laid and proved, and ac- cording to the Dutch Civil Law also, the cir- cumstances alleged could not support the action. The endorsement, however, by the District Judge upon this libel of his opinion only of the grounds of action, is certainly an informal order or mode of dismissal of the action on the pleadings — D. G. Chilaiv and Piitlam No. — (C.) October 17, (J. St. C.) 592 — In re William Clarli a Bankrupt. Charles Velligal, Provisional Assignee Appellant, and William Clark, Bankrupt, Appellant. Two orders of the District Court are now before the Supreme Court in Appeal; the first dated 25th September last, and the second the 8th Instant. With reference to the first, by which the Dis- trict Court has ordered certain letter books to be forwarded to the Court, " because they are said to contain private letters which can be of no use to the Provisional Assignee and may, if the con- tents be known, be prejudicial to claims now in dispute," the Supreme Court is of opinion that this is a very insufficient reason for withdraw- ing books from the custody of the Provisional Assignee that, on the contrary, both he and the bankrupt should long since have had the fullest access to them, and that the bankrupt should have been examined upon every circumstance whatever connected with his estate, which requir- ed elucidation. A balance sheet should have been given in by him or by the Provisional As- signee, or both, and every explanation offered with respect to it. That the Assignees should also have long since been named, but that in the mean time the Provisional Assignee is bound, under the superintendence of the District Court, to take every measure requisite for the security and preservation of the estate, and for the ascer- tainment, of its actual condition. 1838 eiiLlorsenuut on the libel, al- thougli such libel discloses no sufficient cause of action. 1 . The cir- cumstance that the letter books are^said to con- tain private letters, which may, if the contents be knoMra, be pre- judicial to cer- tain claims in dispute, is no reason for with- drawing such boolcs from the custody of the ProvisonalAs- signee. 2. TheD. C. is never re- quired to take the initiative in any act con - nected with the Bankruptcy. 3. A Court may issue in- junctions to public func- tionaries ; but cannot give them instrue- tions to do any act. 18.38 [ 250 ] Louldng generally to the proceedings, as they are now before this Court, it will observe that a District Court is never required to take the initiative in any act whatever connected with the bankruptcy ; its duties are purely of superinten- dence and control. The requisite forms should bo gone through up to the nomination of the Assignees by the petitioning creditor, except a Provisional Assignee be named ; in which case the latter takes upon himself, so long as his authority endures, the management of all the proceedings prescribed by Law, and is bound to carry them through within the shortest reason- able time. As regards the second order which directs that the Post Master General be instructed to dehver to the said Provisional Assignee all letters what- ever that may arrive to the address of either William Glarh or WJiite ClarJc & Co. the Court will observe that no judicial authority has a right to issue instructions to the administrative officers of a Government. Courts may in cgrtain, cases issue injunctions to public functionaries, as well as others ; but instructions are out of the question. That part of the order however, vfhile relates to letters for Mr. William Olarh, it is understood, has been alone remonstrated against before this Court. The Court will therefore direct its atten- tion exclusively to it, and it is of opinion that all such letters should be delivered to the bank- rupt, against whom no imputation whatever of a fraud has been thrown out ; and he if they concern his estate directly or indirectly, is bound to give them over to the Provisional Assignee. The latter may also require him to be examined at any time with regard to the nature, and (so far as may be necessary towards ascertaining whether they do or do not belong to the estate) with regard to the contents of all such letters. The order dated the 25th September, is there- fore set aside, and in lieu thereof it is ordered that the said books remain in the custody of the Provisional Assignee, but that the banltrupt be at all times allo'wed full access to them, And [ -'51 ] 183S as regards the order dated 2iid instant, it is hereby declared that William Glarh is entitled in the first instance to receive all letters whatever addressed to him. No. 21,638, D. C. Oolomho, No. 1. S. (J.) 593 — John Morris v. James Garoll. The decree of the District Court of Colombo No. 1. S. of the 23rd day of July 1838, is af- firmed as to the amount of damages awarded, but the plaintiff is decreed to recover costs only in the fifth class, and to pay the deft all surplus costs incm-red by him owing to this suit having been brought in a higher class, — in other words, the difference between defendant's costs in the fifth and sixth classes. The test by which the question of costs should be tried, as a general principle, is whether the plaintiff was justified, by the whole result of the suit, in bringing his action in the higher class. If the plaintiff materially fails to prove that his loss amoiints to the extent claimed by him, he will be deservedly made to pay the whole extra costs occasioned by his having thus wrongfully brought this suit in such a high class. In the present suit looking to the amount of damages awarded (£ 18) ; and that there is evidence of farrier's expenses also incurred, the Court is of opinion that the suit would not improperly have been brought in the fifth class, and that the costs shoidd therefore be awarded between the parties accordingly. It would be neither fair to the suitors nor proc- tors to reduce this case to a lower class ; for, though it be true that the Court looks to the amount of damages actually decreed to be re- covered, as an important criterion to guide it in awarding the costs, yet it is not conclusive there- in, as the Court will, in considering costs, always look to the whole merits of the case, and the conduct of the parties ; and judge also whether there_ were reasonable grounds for the plaintiff bringing his action in the class which he did ; nor Tbougli tlie amount of damages ulti- mately decreed is an impor- taut criterion in awarding cost ; yet the Court ■will al- ways look to the whole merits of the case and the couduct of thepartiesinde- terminingwhether the costs should be in the ori- ginal class or in that of the amount of the Judgment. 1838 [ 252 An adminis- trator is at liberty to alie- nate or or encumber the whole estate entrusted to him. A party who has consented to a reference to Ar- liiration, cannot artcrwarcis dis- sent from the de- cision, merely, because it is against him. It is regular for ]). J, to sit as an Arbitrator. will it refuse to make a just allowance for that fair latitude and exercise of sound discretion ■wliicli an honest suitor, and a prudent counsel, might be expected to use in estimating the probable damages which might reasonably be given on the cause of action.— No. 20,079," D. C. CoJomlo, No. 1. S. (C.) October 24, (J. St. C.) 594 — Philip Briton v. Bastian Moel;oeiaa. The Supreme Court having coUectirely con- sidered the proceedings in this cause, is of opinion that, by the settled practice, an Administrator is at liberty to alienate, and consequently to encum- ber the whole of the estate entrusted to him. The remedy of the right heirs to the deceased for malversation is against the Administrator and his securities, except in cases of collusion. That the system of administration requires to be revised in this particular, there can ,be no doubt ; but sitting judicially, the Com-t cannot deviate from a practice so thoroughly established. D. C. Chilaw and Putlam No. 4416, (J.) October 31, (J. St. C.) 595 — Bayma Lehbe v. Wava Lehhe. When parties agree to be bound by any form of Arbitration, neither can afterwards dissent from the decision, only because it happens to be made against himself. The Supreme Court cannot, however, refrain from observing that the District Court sitting on an Arbitration with seven As- sessors was a most irregular proceeding B. C Colomho, No. S. No. 20941 (,C.). PT" 596- [ -^53 ] Jannavy 8 (J. -Oiiiial and other v. 1839 St. C.) Taniar and others. Whatc^-cr may be the real merits of this case, Any objec- the conduct of the defendants in their delays f;'"" '° ™° '" and frivolous objections to the progress of the sIuXTade suit, is very blameable. Any opposition which on the first the defendants had to offer against the plaintiff appearance, being allowed to sue in forma pauperis on ac- count of her pecuniary cireumstances, should have been made on their first appearance, and now comes too late. To allow such objections to be taken in succession upon failure of a previous appeal respecting the Proctors report, would be to contravene the rule requiring it to be made upon the appearance of the defendants, and to sanction litigious procrastination in the subse- quent proceeding in forma pauperis. No satis- factory reason is even urged in the present instance for the delay, and the Supreme Court observes with marked disapprobation that the un- necessarily long Petition of Appeal of the defen- dants is drawn by the same Proctor who made a wrong report in the plaintiff's case, and he is accordingly disallowed his costs, thereon the in- terlocutory order of the Court below is afirnied. — [No. 3861,] D. G. Walligama, (C.)] A parol ad- mission is s\x{- ficient under the proviso in the 7th clause oftheprescrip- tionOrdinance. 597 — Achland Boyd d Co. v. Awadoe Lebhe. The decree of the Court below is afftrmed, the majority of the judges of the Supreme Court having, upon the point being referred for their collective opinion, decided that a parol admission within the time limited for bringing the action, by the Ordinance No. 8 of 1834, is sufficient, under the proviso in the 7th clause thereof, to prevent the claim being barred by the plea of Prescription.— [No. 8976,] B. C Kandij, (C.) January, 16, (St. C.) 598— if. A. Marshall v. David Perera. T. . ,. 1 , , ■ ■ 1 1 1 Landlord and It IS directed that this case be required back, Tenant, 1839 [ 254 ] A receipt not under seal, is not conclusive against the party giving it, but only a primd facie evi- dence, which may be contra- dicted by parol. If a Land- lord give re- ceipt for the rent last due, it is to be pre- sumed that the former rent has been paid. in order that evidence may be taken on both sides as to the payment of the second quarter's rent in dispute. In general a receipt not under seal, is not conclusive against the party giving it, but only a prima facie acknowledgment that the money had been paid ; and parol evidence may be properly admitted to shew, that, the giving of the receipt, was a fraudulent transaction, or, that the money was not paid {STcaife v. Jackson, 3 B. & C, 421 ; and 5 B. & A. c. 11.) In the present case it must be noticed that the second quarters rent not being due till June, it would not probably be paid in advance on the 11th April 1837, and still less without any express receipt for it in similar form as has been given for the first and third quarters' payments. Mr. Marshall, moreover on a question from this Court states, that the 11th April 1837, is the date of pay- ment of the first quarter's rent, and in his own own hand writing ; but he denies that the " 35 rixdollars," immediately following the above date, w.ts ever written by him, and charges, the defen- dant with inserting it. The above circumstances of suspicion and frand in this case certainly requu-e strict investigation by examining the parties and taking evidence. Though the District Court has been in error in considering the plaintiff estopped by his re- ceipts on the margin of the lease ; yet, it is a rule of evidence, that, if a Landlord give a re- ceipt for the rent last due, it is to be presumed in Law, therefrom, that the former rent has been paid ; and the last receipt having been, in their this case, given expressly for the third quarter ending 30th September, the onus lies on the plaintiff to prove by satisfactory evidence, that the June, or previous quarter's rent, was not paid, and to rebut, the above presumption in Law in favour of the defendant. In case the plaintiff should fail to do so, he would only be entitled in this action to recover the fourth quarter's rent, which is admitted by the defendant to be still due, and owing to him.— [No. 21,339, J). G. Colombo, No. (C.) C 255 ] 599 — Miii-iu Porera and anotlier v. Diogoe Fer- nando. It is a well established principle of Equity, that, where a surety discharges the debt of his princi- pal, he is entitled to stand in the place of the treditor, as to all securities for the debt ; and to have any benefit therefrom, and remedy, which the creditor had against the principal debtor. In the present case the defendant has retained the securities in his own possession upon paying off the debt, and the only main question is with whose money the creditor was paid. It has not been the practice in this Colony, for a surety, on paying off the debt of the principal, to obtain " cession of action" from the creditor, and this Court has in a Jaffna appeal. No. 3193, dated 7th December 1834, decided that it was not necessary for such cession to be made at the time of payment, but that the surety might sub- sequently obtain it, even pending the suit against the principal debtor. If the defendant has not, therefore, already clothed himself with this ex- press authority, he ought to obtain it now from the creditor.— [JVo. 3787. D. 0. Colomlo. (C.) 600 — Perera v. Plntappoo. The Eegulation No. 8 of 1809 is merely declaratory of what the Law was at the time it was passed, — it makes no alteration or new Law ; and the Supreme Court has in former cases of this nature favoured alienations of such lands made before the passing of that Regulation, not only because the very necessity which existed for such a declaration shews that the Law as it stood was imperfectly known, but because, under the prior enactment of Governor North, such lands were considered alienable as private property. Possession for ten years subsequent to the Ee- gulation No. 8 of 1809, could not certainly be considered as gi\'ing a prescriptive title to the possessor, under the Ordinance regulating the prescription of actions ; but the long enjoyment of the share possessed by the defendants and their parents since their mother's marriage, appears to have been prior to the said Regulation No. 8 of 1839 Debtor and SuREir. A Surety paying the debt, is entitled to stand in the place of the creditor. The Cession need not be made at the time of pay- ment. Alienation of Sen'ice Pai- veny lands. Effect of Keg. No. 8 of 1809, Prescriptive possession of service Parv- eny lauds. 1839 [ 256 ] The admission of one Co-De- fendant does not bind ano- ther, if they put in separate answers. 1809, being for a period of between 30 and 40 years, which raises a presumption in Law of an old grant in their favour. The plaintiffs therefore, after such uninterrupted long enjoyment of this share by the defendants and their parents for so many years, cannot support this claim to take it away from them upon the simple proof of the land being service parveny, and of their being male heirs to Juan, who transferred it to his daughter on her marriage. No satisfactory reason is given for the plaintiffs' delay in instituting their present claim, and this Court always discountenances stale de- mands, when by the death of parties and wit- nesses, the real fact in issue cannot be so clearly known and proved. — [_No. 3400, D. JJ. Colmnbo (C.) GOl — Siman Gomes v. Oahriel Pulle and another. In the present stage of the suit the plaintiff is only entitled to Judgment against the first defen- dant for 50 Rix dollars, being the value of the pair of bullocks, as admitted in the answer to- gether with the cost of suit : the first defendant having admitted in his answer that the bullocks belonged to the plaintiff, and that he had sold them for 50 Rix dollars. If the bullocks were really of a higher value or worth 65 Rix dollars, as alleged in the libel, the plaintiff must, to re- cover their full value, prove the same, — it not being admitted by the defendants. As regards the second defendant, the admission of one co-defendant does not bind another, if they put in separate answers ; and Judgment can only be given against the second defendant who denies the plaintiff's libel, after taking evidence. The case is accordingly referred back to the District Court, with liberty to the plaintiff to proceed to evidence against the first defendant as to the full value of the bullocks, or against the second de- fendant generally. The costs of appeal of the second defendant must be paid by the plaintiff. — [No. 14,978, D. C. Colmnbo, (C.) 602. — Abmham Appoo v. Andris Aponso. It is ordered that this case be referred back [ 257 1 )S;i9 to the District Court to allow the plaintiff to summon the Notary and attesting witnesses to prove his deed of sale, and to decide the case upon the evidence to be adduced on both sides. As the plaintiff named the Notary and attesting witnesses in his first List, and they appear to, have been summoned on the 4th September, and on the Intervenients putting in their claim on the 6th September they were not named in the second list of witnesses filed by the plaintiff. The Supreme Court is inclined to give credit to the plaintiff's stoiy, that he thought the evidence, to disprove the right of the Intervenients, was alone to be gone into ; and that it was not necessEtiy for him thereon to first substantiate his own title. There are few rules also less generally understood than that the plaintiff in ejectment must stand upon the strength of his own title, and not on the wealmess of the defendant's. And to show that the error of the plaintiff" in this instance arose purely from ignorance, it may be further observed that he made no application for any postpone- ment on account of the absence of a material witness, nor does his previous conduct appear to have been dilatory ; while, on the other hand, if the plaintiff's deed of sale be a true one, the de- fendant is guilty of fraud. Under such circums- tances, this Court will, in favour of a plaintiff erring only thi'ough ignorance, and contesting his claim against prima facie fraudulent parties, shew the above indulgence ; but the plaintiff must pay the costs of this appeal, as well as the expenses occasioned by the attendance of defendant's and Intervenients' witnesses on the day of trial in the District Court, — in the same manner as if the case had been postponed on his application, owing to the absence of material witnesses : — [No. 14,326, D. C. Colombo, S. (C.) Where the plaintiff h.'is manifestly pr' - ceeded in ig- norance, the S. C. ■will allow a new trial. February 16, (St. C.) 603 — Amis and another v. Emanis. The record of conviction in a criminal prosecu- tion for assault is not admissible. Evidence, in an action for damages, by the complainants for The Record of a convic- tion in a cri- minal prosecu- i8n9 [sris tion for As- sault, is not admissible in a civil action for the same as- sault. The sur- geon's receipt is not by itself evidence of his attendance. An applica- tion to amend a written de- cree after a lapse of two months, dis- allowed. Seconday evi- danceofaDeed, when admissi- ble. Qii ? as to the custom of Saf- fragam respect- ing a Beena husband's right to succeed to wife's property. the same assault, as the verdict being in part procured on the evidence of the complainants, it would be indirectly to admit their testimony in their own cause. Boscoe on Evid. p. 102. Indeed, it has been rejected even on the plea of guilty, 2 Phil, on Evld. 203, Ed : 7. The only evidence of the Surgeon's attendance and charge is his Bill and receipt, which is not admitted by the defen- dants, (who has filed a general denial), nor prov- ed ; and the evidence of the Secretary by itself is clearly insufficient to support plaintiff's claim. ~[No. 3366. D. C. Colombo, (C.) • 604— Juan Sameretue v. Asso and others. This was an application by a Proctor to amend a written decree of the Court below. Per Cabr J. — " It was the duty of the Proctor for the plaintiff to have seen whether the decree was correctly drawn out, in order to have appealed therefrom within the time limited, if the interest of his client required it. This Court will not after the lapse of two months attend to an ap- plication to amend a written decree, upon the vague recollection of a Proctor of what he un- derstood the decree as to be pronounced. The plaintifTs Proctor has clearly in this case neglect- ed his duty to his client, who is not to suffer therefrom, and he his accordingly disallowed Ins costs in this case". INo. 2705, D. G. 2Iati(ra, (C.) 60b—J)inegame and another v. Lolcoo Ettena and others. Before the secondary proof can be. admissible of the contents of a Deed, the Court should have satisfactory proof upon oath if its having been surreptitiously taken by defendants (who plead that it never was made ;) or else of the loss thereof, and that due diligence had been made in searching for the same. The vague recollection of the District Judge or Secretary, not on oath, that an application was made about the loss of such a Deed by plaintiffs, will not supply such omission. In default of such proof to support this alleged Transfer by Deed, the custom of [ ^-'l' ] ISM Safi'agam as to the right of surviving liusbaiid to' inherit the landed property of his deceased wife, by Beena marriage, should be ascertained, Boloswelle Dessawe, and the other Chiefs, appear- ing to have expressed opposite opinions thereon as stated in Mr. Sawyer's Digest. The adoption of the second plaintiff would also probably vary that right in the present ease.— [JVb. 1643, B. C. Colonibo. (C.) 606— J. W- Husldsson y. Walker and another. Though the first defendant is alone charged ■with writing the letter of the 16th day of June 1837, yet both the defendants are charged ex- pressly with having addressed the letter of the 18th day of June 1837 to the plaiiitiff ; and also in pursuance of their design, to injure the jolain- tiff's honour, of having caused copies of the al- leged Kbellous Letters to be made and published, and of having moreover spoken scandalous and defamatory words against the plaintiff. If the second defendant has been in any way concern- ed with the first defendant in advising, dictating, writing, delivering or publishing such letters, or copies thereof, (which is not denied,) he his pro- perly made a co-defendant in this action ; and where two or more persons conspire unlawfully to injure another, all the acts of one, in further- ance of the common design, may be given in evidence against the other. The Libel in this case however is very care- lessly drawn. It should have commenced with an express charge against both defendants, of combining and confederating together for the unlawful purpose alleged, and it should more explicitly set forth when, where, and to whom copies were read and published, and what were " divers" libellous word or expressions used ; and when, where, and to whom uttered ; otherwise the defendants can never be prepared to answer these latter charges, or ha^e notice to what cir- cumstances they would have to call their evidence to rebut that adduced by the plaintiff.— [JVb. 7285, D. G. Trincomalle. (C.) Action for Defamation. Wliere two or more per- sons conspire unlawfully to injiue another, all the acts of one in fiirther- ance of thecom- mon design, may be given in evidence against the other. Form of libel in such a case. 1839 C ^co ] Admissions in an answer do not operate as an estoppel except in cer- tain cases ; and may be ex- plained by evi- dence. Bights of claimants to property seized in execution. February 27, (C.) C07 — Silra and anotlier v. Dissa and another. The defendants should not be concluded, or estopped by their admission in their Answer re- ferred to, as the plaintiffs cannot be considered to have been induced by it to alter their condi- tion ; nor was the fact in dispute between the parties to this case, or any decree made against the defendants on the points in that former suit. The general rule as to third persons, is, that a party is not bound by, or estopped by such ad- missions, but is at liberty to prove that the same were mistaken or untrue. The defendants might possibly be able to prove that they were misled by fraud, mistake, or ignorance of facts to make such admission, and prove' by general evidence their title. Though the defendants be not es- topped or concluded, the admission is strong evi- dence however for the plaintiffs, and will require very satisfactory proof to rebut it. — [^No. 2503, v. G- Arriblangodde. (C) 608.— Naina Lebhe v. Code Moopo. The 6th clause of the Regulation No. 13 of 1827 declares, that, where property seized under execution is claimed by third parties, the Court shall call the several parties to establish their respective claims ; and the constant practice has been for the claimants, upon giving security, to institute proceedings to try the respective right. The defendant in the present suit has never abandoned his claim to the property in dispute, which must be considered constructively, as be- ing still seized,- the re-possession being only granted to the plaintiff conditionally, upon the security given. The defendant moreover should in the first instance have been called upon to prove his title, the regulation declaring that the possessor is to be, prima facie, considered as the owner. [JVb. 2339, D. G. Golombo. (C) March 6, (C.) 609—Poiisiaiio Siman v. Mrs. 8. P. de Breard. Where a mortgage Bond was executed on a [ -'«1 J Sunday, and not numbered, nor duplicate copy therof filed in the District Cdurt, Jidd, that these were no grounds to declare the instrument, upon this plea invalid. The -ith and 6th clauses of (he Ord. No. 7 of 1834 certainly require this Deed to be executed in duplicate, and the duplicate copy to be filed, under a penalty upon the Notary ; hut they do not declare the instrument invalid in de- fault thereof, otherwise, proof of the duplicate hav- ing been executed and duly transmitted, must be always adduced, similar to evidence of enrollment of bargain and sales &c, required by the Statute to render such deeds admissible. The above facts are however strong circumstan- ces of fraud, which, if unexplained by evidence at the trial, must be considered as tending to throw discredit on the instrument, though the plaintiff must not he estopped thereby from proving, if he can, the due execution of the Bond by the attesting witnesses. — [N'o. 5036, D. C. Culomho. CC). March 20, (J.) 610 — 2Iadache v. MarJcar. In this case the plaintiff originally alleged that the property in dispute was the nwdioiom, or here- ditary property ; but this (as is admitted by the District Court) she has not proved. On the contrary it appears from the testimony of the majority of her witnesses that these were acquired by herself and by her husband since the marriage, and therefore it falls into the community. That the husband is the sole administrator of the com- mon property, and is at liberty to encumber it at his pleasure, during coverture, is a well establish- ed principle. Had this property, indeed, been parveny or hereditary, it might have been advisa- ble to have ascertained whether there is any local custom at Batticaloa which secures such property to the wife, when there is no marriage contract ; but under the circumstances the enquiry is un- necessary.— [A^'o. 3473, v. 0. Batticaloa. (J.) 611 — Parpadian v. Coeamaroe, and another. The defendants, in this case, obtained writs of i8;in Execution of a Deed oii a Sunday, and the failure to number and to file the dupli- cate copy of .1, Bond do not render the in- strument in- valid. In Batticaloa, property ac- quired during coverture come i into commu- nity, and is under the sole controul of the Husband. 1839 [ 262 ] Proof of. Xo publica- of execution in a former suit, and caused the tion of sale, plaintiff's property to be sold under it. The present action was brought to recover tne pro- perty sold in execution from the defendants ; and Per Jeeemib J. — The question more immediately before the Supreme Court is simply whether the sale of plaintiff's lands, was actually published. Eight persons, all neighbours, including the two Police Vidhans, the Notary, and the tom-tom beater, who should have published the sale, all distinctly swear, that to the best of their know- ledge and belief there was no publication. They swear to it as distinctly as a negative can be sworn to. It is said that some of these witnesses are not entirely above suspicion, principally from their being relatives, which is no doubt true ; nor, in cases of this nature, can it ever be othenrise : but surely in the very populous neighbourhood of Copaij, some respectable witnesses might have been called, who had heard the publication, or seen the notices affixed. One single witness deposes to these facts and he, as proved by the record at- tached to the Petition of Appeal, is convicted of prevarication. The decree of the Court below is in consequence reversed, and as it appears that the amount of the original debt and costs is depo- sited in the District Court, it is ordered that the plaintiff be forthwith reinstated in the property now in dispute, and she is hereby quieted in the possession of the same as fully and effectually to all intents and purposes whatever, as if no sale thereof imder the writ of execution No. 1676, had ever taken place. It is not an immaterial circumstance that the present action was entered within twice twenty four hours after the sale. — [No. 2136, D. C. Jaffna. (J.) March 27, (J.) 612 — Corndis'Fonseka and another v. BonAadiis and another. This in an action de condlctione indehiti, or for the restitution of money actually paid ; the whole [ 263 ] 1839 proof falls therefore on the plaintiffs, for their own admissions make out the defendant's case. The defendants are Cinnamon-planters; the plain- tiffs apparently Native Merchants. The transac- tion took place in September 1837, when the goods were, as is sworn to, examined, tested, weighed, delivered, and paid for; — and that they were actually delivered and paid for is admitted by the plaintiffs. But they say that this sale was condi- tional. If oral testimony of so unusual and impro- bable an engagement, as a covenant of warranty for merchandize of this description, be admissible at all, it is perfectly clear that nothing but the most convincing proof could induce the Court to credit it ; and here the evidence is not only very contradictory, but in many other respects doubtful, whilst the witness most worthy of belief produced by plaintiffs, rather uphold the defendant's than the plaintiff's case. The decree is therefore rever- sed, and plaintiff's action dismissed without costs. [No. 19,372, D. G. Colombo. S- (J.) April 17, (J. C.) 613 — Tikiercude v. Kiri/ Menieka, The object of the Proclamation against forcible dispossession, was to prevent violence and breach- es of the peace, and to compel parties disputing to have recourse to a civil suit to settle their respective claims, instead of taking the Law into then- own hands. All that the District Court ought to enquire into upon the criminal proceed- ings is, whether there has been a forcible eject- ment of a party quietly in possession; it never investigates into, or can finally decide upon, the respective titles of the parties, but leaves the claimant to his civil action of Ejectment. For instance if A and his brother were joint proprie- tors of a field, and A bequeathed or sold his undivided moiety to B, but the brother retained exclusive possession of the whole field ; if B ford- lly ejected him from the half, he would be pun- ishable under the Proclamation, though he has a better title to it, and, by a civil action, would be put in possession thereof. Action for the restitution of money actu- ally paid. Evidence. Proclamation of 5th August 1819 against forcible entry, considered. 1839 [ 264 ] By tbe Law of Jaffrm, a eon is not lia- ble for hia father's debts, unless the lat- ter has left property, and the son has taken posses- sion thereof. The lilaintiff in this action is following a legal remedy which he ought to have had recourse to in the first instance ; and he was punished under the criminal proceedings only for ejecting hy form, instead of bringing this action to recoTer possession. — [_No. 3682, D. (7. Kaigalle, (C.) April 24, (J. St. C.) 614 — Gander v. Eamasarnij. The plaintiff and appellant, in this case, is a creditor of defendant's deceased father, and he claims the amount of his debt against the son. He alleges that the son inherited property from the father ; but, he adds, whether he did or not, the mere circumstance of his being his son ren- ders him liable for all the father's debts. In this demand there can be no doubt that he is borne out by the text of the Thesewalleme, which distinctly states that, " although the parents " do not leave any thing, the sons are never- " theless bound to pay the debts contracted by "their parents ;" and again, " although the sons " have not at the time wherewith to pay the said " debts, they nevertheless remain accountable for "the same." The District Judge has however thrown out this action on the ground that, " there is no " proof adduced that the defendant inherited or " received any of his deceased father's property; " and that, in fact it appears, that he died leav- "ing no property, as per Eeport of the Headmen " made on the writ which was proved by plaintiff " himself. Such being the case it is indeed hard " to make the defendant sacrifice what he has " acquired,' with his own labour and industry, "for his father's debts. That although the Coun- " try Law directs that the sons are to pay the " father's debt, it at the same time declares that " it is a hard one. Under the foregoing circum- " stance and consideration and with the opinion " of the Assessors, it is decreed that plaintiff's " claim be disiiiis>.od, and he do pny defendant's " costs of suit," [ 205 ] 1839 The Supreme Court, wliilst it also admits tlie Jiardship of the law, would not have felt war- ranted in overlooking it on that ground alone ; but as the TJieseivaUeine is, in fact, nothing moi-e than a Eeport of the customs and usages of the Country, it conceived that it might occur in this as it often has in other instances, that the usage admitted of modiiications wliich softened the ri- gour of the general principle, and reconciled it to the rules of natural equ^ity. For the purpose of ascertaining this point it directed three special assessors, well acquainted with the Malabar tisages as practised at Jaffna- patam, to be selected ; and it further proceeded to examine several of the most experienced among the native inhabitants on the custom. The following questions were then put to the latter. First, — A Father dies in debt leaving no avail- able property. Are his sons liable to discharge his debts from the property accruing to them from their own industry : and if so, are they also liable to personal arrest for such debts ? Second, — Are lands given in dower to a daugh- ter liable to these debts ? Third, — Was there any ancient, or is there any known form, by which, after the decease of the parent, the sons, by renouncing to his inheri- tance, could exempt themselves from this liabi- lity ? The answers were as follows : — Three of the witnesses declared, That the sons were liable in person and pro- perty. ITiat lands given in dower to the daughters were not ; and that they did not know, nor had they heard of any form by which the sons could exempt themselves from this liability. Mr. Mootiah, the District Judge, who was the fourth witness, gave the same answer to the two first questions ; but to the last he answered that he had heard of instances, and was himself aware of one, in the time of Mr. Dankin, when, on the sons coming forward and repudiating altogether 1S39 [ 266 ] Letters of Administration have supersed- ed the appli- cation for the Benefit of an Inventory, their father's inheritance, thej had been exempt- ed from the payment of his debts : and this he understood to be the present Law. He also quoted an instance in the High Court of Appeal of about ten years standing, in which the sons had been exempted from liability on the grounds now taken oy the District Judge, (" the extreme hardship of the Law") ; but, he added, that this precedent had never been considered Law, and had been over-ruled by the subsequent practice. The three Assessors concurred entirely in opi- nion with Mr. Mootiah, and the first Assessor stated that he had a full knowledge of the case in Mr. BunJciWs time, to which Mr. Mootiah re- ferred, which he considered consonant with the usage. It thus appears that the above passage in the Thesewaneme, though correct as far as it goes, is nothing more or less than a rule of the Civil, or rather Eoman-Dutch Law, — the common law not not only of Jaffna, but throughout the Maritime Provinces — ^by which law the heir is responsible for the ancestor's debts, unless he had repudiated the inheritance, which he is at liberty to do whenever he is sued for any such debt ; except he should, in the mean time, have intromitted or done any of those acts which show that he intended to appropriate the inheritance to him- self. Nor has this Law been in any way rescinded or modified up to this time. Formerly, indeed, where the heir entertained a doubt whether the estate could discharge all its liabilities, he was at liberty to apply for the Benefit of an Inventory, and now he applies for Letters of Administration. The latter form, as in many respects the more convenient and consonant with our present judi- cial institutions ; having in effect, superseded the former ; but this has not done away with the doc- trine of intromission, or removed the responsi- bility of the heir. Letters of Administration are only requisite for Tiis protedion, and they are also requisite when a stranger, such as a credi- tor, or others haying claims upon a vacant estate, [ 267 1 1839 are desirous of obtaining a title which will war- rant them in recovering the assets and manag- ing the property. On these grounds the decree of the District Court is affirmed, unless the plaintiff shall un- dertake to prove that the defendant has appro- priated to himself any portion of the property of his deceased father, without having obtained Letters of Administration. Should the plaintiff not undertake this proof, and should his debtor have actually left any property, the said plain- tiff will still have his recourse against such pro- perty, on taking out Letters of Administration to that estate.— [Jfo. 1531, D. C- Waditnoratchy. (Coll.) 615—Assena Lehhe v. 'Siwne Marhwr and others. It being clear, in this case, that the property in dispute , whether liable to the plaintiff's claim or not has been taken possession of and appro- priated to their use by defendants as heirs to their uncle, the Snpreme Court is of opinion that Letters of Adininistration are unnecessary, the defendants having rendered themselves res- ponsible for all the liabilities cf their ancestor. In the case from Wadimoratchy No. 1531, the principles by which the Court is guided are in a great measure laid down, but in further elucidation ot its sentiments it will now observe that the practice of granting Letters of Adminis- tration, peculiar to the English Law, has never extended in England to real estates. A contra- ry rule has however sprung up in Ceylon, and an extension has been given to this practice very recently, by which it would seem to have been understood, in some parts of the Island, that Letters of Administration are absolutely necessary in all cases whatever of real or personal inheri- tance db intestato. This course it is understood is considered called for by the 27th section of the Charter ; but even in giving the very amplest construction to that clause, and taking the word Estates in its broadest sense, a construction how- ever contrary to the ordinary and accustomed An heir who takes posses- sion of the property, ren- ders himself liable for the debts of the intestate. 1839 [ 268 ] one, for the words are ." estates and effects," and therefore the former expression is limited by the latter, still there is nothing in the clause to' make it incumbent on all parties to take out these Letters, — it merely grants District Courts, and District Court only, full power and authority to grant them when they ought to be gi'anted. The original jurisdiction of the District Courts is rendered exclusive, evidently because previously they were sometimes also granted by the Su- preme Court, but the words are not imperative, they merely empower and vest a discretionary authority in the District Coui't to make such grant. It is also said real property is by the Civil Law assets for the payment of debts, but where there are no debts, or where the right heir un- dertakes to pay the debts, there is and can be no no good reason for burthening him with new and unaccustomed forms .and thus increasing his dif- ficulties. The heir is, by Law, unless he has repudiated, the Administration to the estate, he can as such maintain at once as plaintiff or de- fendant any action concerning it ; and where he is not solvent, or the estate is not likely to be secure in his hands the present Law has always afforded an adequate remedy by tlien authorizing a separate administration, if applied for, within five years from the decease of the intestate : and it is to this that the law Dig. 42. L. 1. § 13. erro- neously quoted, as referring to the division of estates in the old case No. 2364, applies ; — as many be seen in the Censura Forensis L. 4. c. IL § 13. The effect of this new practice if pushed beyond due bounds, would be pernicious in the extreme. Already have settlements of thirty years standing been called in question, whilst by rendering real property always convertible into money at the mere pleasure of an Administrator, all hereditary predelections for ancestral estates, — a feeling existing as intensely here as in any part of the world, were destroyed. These incon- veniences are felt even when the assets of the " estates are forthcoming ; but in other instances [ 269 ] 1839 the estates have disappeared altogether, they have been sold, their value squandered away, and a remedy against an Insolvent Administrator and an Insolvent Security is all that remains to the right heirs. Nor is even this all, one anomaly has led to others, and it has followed as a corollary from the first mistaken principle, that as, until Letters of Admin- istration are actually taken out, no action will lie ; persons have taken possession of estates, enjoyed and disposed of them, without observing this form ; and no sufficiently available remedy remains against them, for the first step required from any one having claims on estates so possessed, whether creditors or heirs, is to compel them to take out administration, which they cannot obtain except on giving security by themselves and others to double the value of the whole estate, much of which the wrong doer may have already dissipated a step so onerous that few are found to take it, and the practical result has already too often been that the intruder has been held perfectly harmless in his wrong doing. Now by the Law of England a person acting in this manner is an Administrator de son tort, and to the extent of the assets liable for all the debts of the deceased ; whilst the Civil Law goes further and renders him liable, not only to the extent of the assets, but to the full extent of the liabilities however they might exceed the assets ; and this he is by the laws of the both countries responsible for immediately, and on mere proof that he has intromitted. Nor are these objections entirely of recent date. So far baok as 1822, though then the practice of taking out administration was by no means so frequent, for, in 1834, (see judgment Supreme Court 14th May), it had scarcely extended to Caltm-a. The Court in jironouncing its judgment observed as follows : — " The taking out of " Administration to Mwrtha seems to have created " much of the difficulty of this case, and this " difficulty shows how very catitiously a branch of " a totally different system shonld be transferred to 18.39 [ 270 1 " any code of Laws ; the Dutch Roman Law, not- " withstanding what the Provincial Judge has been "pleased to propound, knows nothing whatever of " administrations, which are derived wholly from " the English Code. How an administration " to Simon could operate at all upon the rights of " the Respondent and his wife, vested absolutely " by the death of Martha, I can in no wise conceive; " or why it should have been thought necessary " by Simon to take it out. Indeed the wJwle " subject of these administrations in the subordinate " Courts is involved in a preplexity, ivhich it would " he a matter of public utility to Jiave explained by " competent authority" And now that it has begun to be more generally insisted upon by District Courts, it is not too much to say that this practice had already become the most serious grievance connected with the administration of justice, of which the mass of the population complained. But it has been urged that by these means the rights of absentees, and of the actual parties to the suit against the absentees, are protected. This may be a sufficient reason to induce the parties themselves to apply for admin- istration, when the inheritance is not already duly represented ; but it is none for compelling them to do so. The principle is equally novel and untenable, that, before a party can maintain his own rights or defend his possession, he is to give security that he will at his own peril, cost and charge, defend the interests of the absentees, and others who do not think fit to come forward and defend themselves ; nor may it be, on the other hand always perfectly fair and just towards these absentees that their interests should be thus vicariously disposed of. The power vested in the District Courts under the Charter being purely discretionary, and this practice to the extent now noticed being not only unfounded in law but inequitable, it follows that it cannot be affirmed by the Supreme Court, which conceives that the old established Law of the Island continues in full force ; and that, whilst District Courts are " empowered" to grant admin- [ 271 ] 1839 istration in any case, subject of course to appeal, they will exercise an undue discretion and lay tjieir judgments open to reversal if they ever grant them when the rightful heirs, being solvent and of full age are willing to accept, or when such rightful heirs have de facto accepted the estate with all its liabilities. This will not prevent their being still grantable, as stated in the other ease this day determined, whenever the estate is actually vacant or unoccupied, or whenever the rightful heirs apply for them for their own protec- tion, or to make out a title, — provided they do so before they have actually accepted. The decree is therefore set aside, and the Dis- trict Court is to pronounce its opinion on the merits. It would be very advisable before it does so, that it should examine both the parties as to any deeds that either may have in his possession, relating to this property. — [_No. 1959, X>. G. Mamaar. (Coll.) 616 — Brook v. Jones. The question in this case is simply whether a iamaintainable party can recover upon a private Lottery Ticket, . on a lottery and the Supreme Court is of opinion that he can- ticket, not. Unsanctioned Lotteries are a species of gaming prohibited by Law. Such is the express opinion, among other authorities, of Vinnius, in which the Court concurs. The decree of the Dis- trict Court is therefore reversed, and plaintiff's action dismissed, but without costs. — [No. 7024, B. 0. Trincomalie. (Coll.) 617. — Caylan v. Ghirmepulle and another. ^•^- *." v,.-.> A creditor, on a Bond entered into by husband ondWUfe^ O* and wife, can only take out execution against the a JuSginent person and property of the husband ; and against against hus- the property, but not against the person of the ^^^^ and wife, wife, during coverture._[Fo. 4086, D. C BaUi- '^l ^^^f- ««««• (Coll.) taken up. 618. — Bastion Fernando and others v. Bona Fromcina. The Supreme Court has Collectively decided . The posses- that the possession of one joint-heir is not adA}erse s:on of a jomt 1839 [ 272 1 heir is not ad- Verse to the other. In the Kan- dyan Territo- ries, as else- where, a mar- ried woman cannot sue or be sued alone ; and a Judg- ment against her is void. One tenant in common can- not prescribe against his co- tenant under thirty years. to tlie otlicr, so as to vest a prescriptive title under the Ordinance in ten years. — [_No. 3025, P. G. Colombo. (C.) 619. — Uingeri/ MenioJca y- Arachigey Vidahn. This case having been considered Collectively along with Badulla, No. 7482, and Madawelletenne No. 1461, and it having been determined that in the Kandyan Territories, as elsewhere, a married woman can neither sue nor be sued alone ; and it appearing that the plaintiif in this case is a married woman, and that neither her husband nor any curator ad litem, is a party to the suit : it is adjudged that the proceedings are null and void, and the case, is accordingly dismissed. The District Judges are required in every case to direct that it shall be recorded in the libel, answer, or petitions of intervenients whether the parties are married or unmarried, minors or of full age.— [ATo. 7830, D. C Badulla,— Also No. 7482 D. C. Badulla and No. 1461, D. G. Mada- welleteivne. (St.) 620 — David Perera and another v. Carolus Perera and others. The point before the Court in this case was as follows : viz ; Is an action by a coparcener or tenant in common who has not taken possession, against his caparcener or co-tenant in possession, for his share of the common estate, barred by a prescription of ten years, or any less term than thirty years ? Judgment — The question thus stated resolves itself in the first instance into this, — is the pos- session of the co-heir or co-tenant an adverse or independent possession, for, if it be not so, the above section clearly does not apply ; but if it does not, no other part of the Ordinance can ; and all preceding local Regulations on the same subject, are distinctly repealed by that Ordinance ; so that reference must thenceforth be had for the decision of the point, to Roman-Dutch principles. The Court is of opinion, that, by the known Laws of all Countries, English and Roman, as well as the modern Laws, derived from the [ 273 ] Roman, including expressly the Roman-Diitcli, the possession of a coparcener or co-tenant is not an adverse, but a concurreni possession ; the original title is the same, and the possession of one is the possession of the whole : so that the one is neither adverse to nor independent of, the other, in the only sense in which the latter word can be used in an Ordinance on Prescription ; — for, it is impossible to make out the title of the one, without at the same time, making out the other. There can be doubt that the possessor entered as a coparcener, — his coparceners having llien an equally good title, and in all questions of prescription of real estate, the tenure under which possession conwnenced, is held to have conti- wued until the possessor proves that it has been changed or introverted. The possessor is there- fore never called upon for his title, until a title is proved against him, and then he must make out a better title by something- more than ten years possession. To establish, in short a ten years prescription, the possession must have com- menced in good faith ; it must therefore be found- ed on such a title as is entirely inconsistent with the claimant's right : so that both titles cannot be valid at the same time and consequently the possession of the one must be irreconcilable with the right of the other. But though these prin- ciples, taken generally, are beyond dispute, it is contended that the following words in the above section of this Ordinance show what was intended to be an " adverse" possession under that Ordi- nance : — (" that is to say, a possession unaccom- " panied by payment of rent or produce, or per- " formance of service or duty, or by any other " act by the possessor from which an acknowledg- "ment of a right existing in another person " would fairly and naturally be inferred.") The Court cannot but consider such definitions insert- ed in a parenthesis, as given by way of example ad demonstrandum, and not by way of limitation, the passage enacts nothing : it merely designates a few instances, concluding with words so vague and general, as to leave the definition exactly as it stood at Common Law. 1S39 1839 [ 274 ] Then, though the period of prescription, whether of five, ten, or twenty years, or of any less or longer time, varies in different Countries, and is universally regulated by positive Law, — (Cujas quotes several hundred of these periods ranging from a day to a century, as existing in the Roman Law alone), — ^yet, the principles upon which such questions ought to be determined are matter of doctrine : they are equitable rules com- mon to all countries, with which, no doubt, every Legislatm'e may deal, and occasionally will deal ; but with which a Legislature will never be pre- sumed to have dealt by mere inference, nor indeed unless the terms it has used are terms of enact- ment express and distinct. This rule applies with peculiar force to the present subject. Most of the land throughout this Island (garden or field) is occupied by others than the proprietor, — by planters, by cultivators, by tenants, — and these several holdings are occasionally handed down from father to son, not only for a few years, but actually for centuries. Can it be contended that such possessors, holding under a title entirely precarious, are, because they fail for ten years in paying their annual redditus, to become by such their laches the usurpers of the soil 7 That they are to throw out their landlords, and chang- ing their own title, to become incommutable pro- prietors, and that this benefit is to commence accruing to them from the first day they failed in their engagements ? Then, when a tenant does actually pay his rent the receipt is in his hands. The proprietor has no written proof of the payment ; so that, whether such holders have paid or not, he would, if this opinion were allowed to prevail, incur the risk of being deprived, however clear his original title, however clear the ground of his tenant's occupa- tion, not only of his income, but of the fee simple of his estate : except he could at all times adduce oral evidence of an actual payment within the ten years preceding. A fraudulent trustee again would be protected by ten years continued mis- conduct. The construction endeavoured to be put C 2-0 ] on the Ordinftnce embraces all these cases as ivell as the case under consideration. It either applies to all, or it applies to none. It has been re- peatedly maintained that it applied to all ; but the established jurisprudence of the Court in ac- cordance with every well known principle of Law, good, faith, and equity, has ruled that it applied to none and that an adverse possession is still, what an adverse possession was at Common Law. The plea for the opposite opinion is that it tends to secure titles ; but titles so easily won, may be as easily lost : such titles are scarcely worth having. To give value to property a title must not be easily obtainable by fair means, but lost with difficulty by dishonest means, or the very object in obtaining any title is defeated. Nor are the dangers above stated merely imaginary. A tenant under a Notarial lease in due form has already been known to claim the fee simple in the soil, mainly on the ground, that he had not paid the rent he unquestionably owed for ten years, in which plea he was certainly borne out by the construction attempted to be put upon this Ordinance, for " no act had been done by the possessor within the ten yea/rs from which a title could be in any way presumed" ; and if this act may be done wpwards of ten years before, then the original entry as an heir is an act from which the right of all persons in the same right not only "may'" be "fairly amdnoMrally," but must neces- sarily be presumed ; and the attempt by planters and cultivators to usurp the fee simple are very numerous. See among others, cases Caltura 4944, 2889, and Matura 2343. What thenis the Common or Roman- Dutch Law ? The Court, perfectly acquainted with the decision in case No. 2364 before the High Court of Appeal, would question the correctness of the judgment then pronounced with great hesitation ; for few judicial opinions does it entertain so high a res- pect as for SirHarddnge Giffard's. He has, how- ever, with his usual straight-forwardness of pur- pose and disposition, quoted the authority on which he relied ; and there can be no doubt that, 1839 1839 [ 276 ] according to tlie sentiments of all Commentators on the Roman Law, the Dig- Lib- 42. Tit. 6. § 13. so quoted and relied upon by him has no reference to this point. Nothing short of this uniformity of opinion among authors could hare induced the Court to confide in its own previously formed judgment, thus opposed. The applicability of this quotation is not however a point of doctrine but of fact, and upon this fact it entertains not a doubt. To multiply citations from any large number of Commentators were superfluous. The Court will limit itself to three, viz : the principal among the more ancient writers, Cujas ; the princi- pal among the moderns, Pothier ; and one of the first — the most familiar in these Courts among Roman-Dutch writers on Civil Law, — Van Leeuwen's Censura Forensis ; and this author is selected in preference, as it is probably owing to a mistranslation of a passage in his more popular work " The Commentaries," that the doubt sug- gested itself. The Law quoted by Sir Hardinge Giffard is as follows ; — " Quod dicitur post muttum temporis separationem impetrari non po-^se, accipiendum ut ultra quinquennium post aditionem numeran- dum separatio non postuletur." The construc- tion which the Court itself puts upon this Law has been explained in its judgment of this day's date, Maiiaar, 1959; it refers, not to a division of common property, but to the right possessed by creditors of insisting on the estate of a deceas- ed person being kept separate from that of his heirs when the latter are insolvent, or nearly so, which by this Law they are at liberty to claim for five years, by which means they prevent a " con- fusio" or merger of the debts and credits of the two estates. So Cujas observes ; — "Ultra quinquennium post aditionem hereditatis creditores defuncti separa- tionem non impetrare." Pothier : — "Est superioris " Tituli sequela hie Titulus ; in quo agitur De " Separatione Bonorum, quam impetrant creditores " defuncti, cujus hereditatem adivit is cujus bona " proscribuntur;" — PothiWPamh'dg, Lib. 42. T!t.6 . [ 277 ] 1839 And Van Leeuwen in Lib. 4. cap. xi. § 23. (whilst quoting the same Law in his margin L. 42. Tit- 6. De Separationibus,) comments on it as follows : " Aliud porro privilegium est, quod credi- tcrri contra debitoris sui heredem suspectum eompetit, etiam eum qui solvendo non sit ; " and then he proceeds to show that a quinquennial prescription is a bar to this privilege by virtue of the passage, quoted by Sir Hardinge Gi'ffard, which forms § 13. of this Title 6. — But superior in authority to all Commentators, what is the first Clause, § 1. of this veiy Title 6. Lib. 42. in the Digest itself? It distinctly explains the sense in which the word " separatio" is used throughout. It states " solet autem separatio " permitti creditoribus ; ut puta debitorem quis " Sejum habet, hie decessit hseres ei extitit Titius; " hie non est solvendo patitur bonorum vendi- "tionem: creditores Seji dicuntbona Seji sufRcere " sibi, creditores Titii contentos esse debere boni " Titii, et sic quasi duorum fieri bonorum vendi- "tionem; hie est igitur sequissimum, creditores " Seji desiderantes separationem audiri ; impet- " rareque a Praetore ut separatim quantum cujus- " que creditoribus prsestetur," which separation this Law proceeds to say (Section 13.) must be applied for within five years. What then are the passages of the Civil Code applicable to this subject, and what the term of prescription settled by that Code ? Those appli- cable to this subject are the Laws, " de communi dividundo famili% erciscundee, et de petitione hereditatis," ff. 10. Tit. 3: ff. 10. Tit. 2 : S. 5. Tit. 3 : and to all these the same period of prescrip- tion by the Koman Law applies, viz : thirty years. So Cujas ; — " Secundum, est de prescriptione " 30 annorum, qua tolluntm- actiones personales " et mixtjB, veluti petitio hereditatis, communi "dividundo, familiae erciscundee;" so that even the prescriptiu longi temporis (10 years among persons present, 20 if absent,) did not apply to either. See also the Code, L. 7. Tit. 40. § 1. By the Eoman-Dutch Law however it would appear that the rule is not so clearly established. Some 1S39 [ 278 ] authorities favor the Eoman term ; others main- tain that the period is one third of a century, or thirty three years and four months. This in the present case is perfectly immaterial, and the Court does not therefore feel warranted in going into this last point. It is true that by the present English Law the right of a coparcener is barred by twenty years prescription, but it required a very recent Act 3. and 4. Wm. 4. C. 27, to effect this, previously it was not barred by any lapse of time whatever, which is also the case by the Roman Law when either of the coparceners actually in possession claims a division, for the right to sever a common tenure is unprescriptible, and it is to this the Law L. 9. Cod. Gom/nwn. uiriusque Judic. (iii. 38.) applies. The Court deems it right to conclude with the following observations. If any sale or bona fide transfer by legacy or gift had taken place in favour of respondents, so as to produce a change in the title, and 10 years had expired from the period of such change to the date of the action, no doubt the appellant's right would be affectually barred. Here indeed there is a legacy, but ten years have not expired from the date of that legacy. Nor would the Court have it supposed that, though in its opinion nothing short of a thirty or thirty three and one-third years prescip- tion is an actual bar to this action, the lapse of time whether of ten years or more, or even less, ought not to be taken into consideration as a faM tending to induce a presumption that a division has really taken place, on the contrary very little additional proof (as for instance of a separate holding of any portion of the property) will easily induce it to presume such division. All that is before it, — all that it definitely rules, is, — that a possession by coparcener, or other tenant in common, is not an adverse possession ; and that neither the prescriptive Ordinance,, nor the Law, L. 42. Tit 6. § 13. apply to such cases,— which, consequently are not barred by a less prescription than thirty years. The decree of the District Court is therefore L ^7'J ] 1839 reTei'sed, and the case referred back for further proceedhig, without costs.— [Xo. 19,620 D. C. Colomho, S. (Coll.) May 1, (0. J, St.) [ The Hoh'ble Sir Anthony Oi.iphant was sww'n in as Chief Justice of t)te Island of Cey- lon ■'I May 20, (O. St.) 621. — Fernando v. Laxa Miidianse and others. It was held, in this case, that the privilege of Kandyans does not extend to the Regulation of the Law of Evidence, either in matters Civil or Criminal, by their own customs. The Law of England, in as far as it is applicable to the Laws of this Colony, is to be followed, in rejecting or admitting testimony. — [JVb. 1164, D. C- Colombo, (St.) May 27, (St.) 622. — Ameresekeregey Carolus v. Salmon Perera. The statement of parties on mutual examina- tion forms no part of the pleading, and the plead- ing of the defendant does not appear to the Court to bear the interpretation put on it by the District Judge. The doctrine of the District Judge that erroneous or defective pleading ought not to deprive a party of a right is altogether fallacious. He is to decide on the case as pleaded and has no right to consider any averments not »-e5f»Zar?y before him. — [2Vb. 20,179, D. C- Colombo, S. (S.) June 19,(0. J. St.), 623. — Ohimus v. Q-roeff. The Court is unanimously of opinion that by the Dutch Law as administered in Ceylon under the Dutch Government, a father was bound to apply to the Weeshamer for authority to receive all legacies lett to his minor children, as their guardian. It is also unanimously of opinion The privileges of the Kandy- ans do not ex- tend to the Law of Evi- dence. Pleading. Effect of ex- aminations of Piirties. A Father is not entitled to receive a le- gacy left to his minor child, without the authority of 1839 [ 280 ] the S.C., which has in this res- pect succeeded to the powers of the Wees Jeamer. Accord andSa- tisfaction how pleaded and proved. Intervenient's right to call Evidence. that, at the date of the death of the testator in this case, the Supreme Court possessed all the powers which had been formerly vested in the Weeskamer, and that the father of the wife of the plaintiff, therefore, was not entitled to receive the legacy as her guardian, without authority from the said Court.— [JVo. 16,782, B. G. Golombo, S. (Coll.) June 26, (0. J. St.) d-li — .Kvdiiian V. Fernando. Pedro Percra, lutervenient. The plaintiff claimed certain property of the defendant by purchase, and he produces his Deed of purchase and several old bonds. The defendant alleges that he has discharged these bonds by means of payments in money and in goods. Per Jeeemib J. — " This fact is however inconsistent with the passing of the purchase deed ; and although satisfaction and pay- ment as well as a set-off may, by the established practice of this Island, — a practice long since judiciously adopted from the English Rules of Pleading and Evidence, and now in effect ratified by the Ordinance relating to Evidence, — be pleaded and proved in discharge of a bond or other specialty, still the payments must be notified Kspecifically, and must be of a liquid nature. The Court therefore very properlv rejected, inasmuch as regarded the defendant, the proof of payment tendered so loosely by him. " But a new party has intervened who states that the property sold to plaintiff, and now in dispute, was, at the time of the sale, under sequestration for a debt due to the Government, for which debt the Intei-venieut was defendant's security ; and that defendant and plaintiff are, or were at least at the time, of passing the sale and the bonds, acting jointly, in collusion, for the purpose of defeating the Intervenient's undoubted right, — nothing being in fact actually due by defendant to plaintiff. It is shewn that the pro- perty was under sequestration, and the District Com-t has, accordingly, cancelled the sale ; but it has given the plaintiff a right of priority over [ 281 ] over the Intervenient upon this property for the amount of the original bonds, — having thus re- jected the Intervenient's offer to prove that the whole transaction was nothing more or less than a covert arrangement to protect defendant's pro- perty from the claims of his land fide creditors, viz: Intervenient and Government. In so doing the Supreme Court conceives that the District Couvt has gone too far. The Intervenient's plea is perfectly regular and he ought to have been admitted to prove the alleged collusion, leaving it to the opposite party to meet his proof in the usual way by counter evidence.— [^o. 2702, B. 0. Gohmho. (J.) July 24, (J.) 62.5. — AiigoJiaitiy v. Samuel Ap^oo. AVhere it was stipulated by a mortgage deed that the property mortgaged should be redeemed within a given time; and on its being proved that the property was not so redeemed, held, that from that time the possession became adverse. Ten years adverse possession clearly covers any defect of title ; so that it becomes immaterial to enquire whether the stipulation as to the repayment was sufficient per se, or not, to establish a perfectly valid title.— [JVo. 21,429. D. C Colomlo, xV.(J.) 1833 Possession o Mortgagee be- comes adversef after the lapse of the period fixed for re- demption. Ten years posses- sion will give him a title by prescription. 626- July 31, (0. J.) -Imiibo Natchia v. Ibrahim LaUbe. The evidence in this case has fully confinned the opinion originally entertained by the Supreme Court, whilst the defendants first witness a Priest, furnishes another satisfactory ground for adjudg- ing damages. He says " That if a man ( a Ma- homedan) has once made a promise of marriage, he should fulfil it before he contracts another." — [No. 2363, B. C. Matura. (J.) 627. — Maloeachigey v. Babacha Hamy. The principal point in this case, is tliat the Tmnsfer of land in dispute being originally Service Parveny, A Mahome- dan having once made a promise of mar- riage is bound toflilfil it be- fore he con- tracts another 1839 [ 282 ] veny Lands previous to 1809, held valid. A party who bonti fide builds on another's Land, is entitl- ed to compen- sation- and therefore not liable to be mortgaged or trans- ferred ; Jebemie J. — That, it appearing that the deeds bear date in 1804, whilst Governor North's Proclamations of 1800 and 1801 were in force, by which Proclamations " tenure of service was established," (though this tenure was subsequent- ly revived in 180&), the transfers were valid. — [No. 14,775, D. C. Colombo, N. (J.) September 17, (J.) 628. — Poimits v. Albertsz and another. The Supreme Court concurs fully in the opi- nion of the Distiict Court as to the right of the respondent to recover her share of the property in dispute. But it appears that the land has been built upon by a purchaser from her co-heir the first appellant, under a title which there were certainly very strong grounds, owing to respon- dent's own laches, for their believing valid. It conceives therefore that the equity of the principle laid down in Van Leeuwen p. 190, and acted Upon by this Court in other cases since the Promulgation of the Charter, applies here, and that a full indemnification in money for her share of the said property is all that the respondent can expect or be permitted to recover. On these grounds that part of the decree appealed from by which a specific portion of the land in dispute has been adjudged to the respondent, is set aside, and in lieu thereof it is ordered that a commission of three persons, one to be named by respondent, another by appellants, and the third by the Dis- trict Court, do proceed to the spot and there enquire and report upon the value of the whole of the piece of ground formerly belonging to the common ancestor of respondent and first appellant, exclusive of the value of the house built by Mr. Be Quaker thereon ; and that the present proceedings with the Commissioners' report be then remitted back to this Court. — [No. 2893, D. 0. Colombo. (/.) November 6, (O. J.) 629. — Gamegey Elias v. Bala Etfsnu and others. It is ordered that this case be referred back with [ 283 ] 18.19 directions tliat the District Court receive evi- dence forthwith of the attempt to tamper with the appellants' witness, as stated by the said ap- pellants in their Petition of Appeal ; and that it do further forward the evidence and proceedings against the plaintiff for prompting his first wit- ness, as also stated in the Petition of Appeal, together with such further evidence on the merits as either party may think fit to adduce. The Supreme Court observes that marginal observations have been made on one of its own decrees in the Eegistry of the District Court, which would tend to show that the Supreme Court was in error on the points to which these notes refer. This is a proceeding equally irregular and indecorous. The Supreme Court will always willingly receive suggestions submitted in due form from any quarter calculated to correct any of its opinions on points of fact ; but a course of this kind it cannot but record its disapprobation of. MaUepaUe, as defined by the best authority on the subject, Bertolacci, " is land that was for- " merly granted under a tenure, subject to per- " sonal services to Government ; and which has "reverted to Government through failure of male " issue to perform those services," and that is the case here. "Nillepalle land," he adds, "was grant- '■ed under the same tenure as the '^ Mcdlepalle, " and which has reverted to Government in con- " sequence of the holders having failed to per- " form the services to which they were bound by "that tenure," which is entirely foreign to the present subject. The duty, if strictly enforced is undoubtedly one-half as stated by Bertolacci ; but this amount is in fact often reduced to less, it being the practice to treat them frequently in the same way as Batmaherre when these lands are cultivated by consent of Government. — \_Nu. 2317, D. C. Galle. (J.) Appeal oii thegroundthat the appellant's witnesses were tampered with. Marginal ob- servations by D. J. on the S. C. decree. MaZUpalh de- fined. November 23. [The Hon'ble John Godpried Hillbbrand Esq. was sworn in as Adlmj Bccond Puisne Jutike.'] 1839 A, D. 0. can- not give Judg- ment ultra fe- tita. 1840 The Court ■will reject an. ill-written libel In trespass, where a Deft sets up the title of a third par- ty, the Court is not bound to make him a party, unless he chooses to intervene. [ 284 ] November. 27, (O. J. H.) 630. — Moorger v. Wallial. Ther only demand before the Court was for the bond filed by plaintiff. The defendant's bond was only put in evidence without his making any re- conventional demand for the amount. The Dis- trict Court went therefore beyond its powers when it pronounced a claim invalid which was not in suit before it. The decree is in consequence affirmed, in that the bond filed by plaintiff is set aside and his action dismissed ; but in all other respects the said decree is annulled, the Court having pronounced ultra petita. Each party will bear its costs. — [No. 2127, D. C. Wadimioratchy. (Coll.; January 15, 1840 (0.) 631. — Coder v. Batteralle. The plaintiff's libel is so ill-written and full of interlineations and blots that it must be taken off the proceedings, and a fair copy put on : the expences to be paid by the plaintiff's Proctor INo. 9575, D. C. Badmlla.'] February 1, [The Hon'ble Wm. Ogle Carr Esquire was sworn in as Acting Senior Puisne Justice.'} April 8, (H.) 632. — Gomes v. Bomingo and others. It does not appear to the Supreme Court that the title to the land is just now in dispute, in- asmuch as the defendants do not claim title to it, or to any portion thereof, either in their own rights or under the first defendant's father. If Don BastioM Appoo is entitled to half of the land as is asserted by his son the first defendant, it should be left to him either to intervene or not in this case, as he shall be best advised ; but there is no necessity for the Court ex-offiaio, so render him a party to this case, particularly as it is merely a case of trespass to the establishing of [ 285 [ 1840 vliifli, the possession at the time of the trespass complained of forms the chief ingredient, but not the title to the land. It is therefore ordered that the Interlocutory order of the District Court of Colombo No. 2. dated 11th of February 1840 he reversed. — [No. 6015, D. C- Colombo.'\ April 15th (H.) 633. — Selenchy Ajipoo v. Salman another. The Applicant having totally failed to put on record his reasons for ajiplying for Letters of Administration to the estate of his deceased father who died according to his own admission, about fifty years since, and there being also reason to suppose from the circumstance of the length of time that had intervened and from the state- ment of the Opponents that the property which the deceased died possessed of, has been divided amongst his respective heirs and that they and their heirs or others on their behalf have been in the possession of the same ever since that time, — It is ordered that the decretal order of the District Court of Colombo be reversed with costs. — [No. 255, D. C. Colombo.^ 634. — Hendrich Ferera v. Bines Appoo. Where the D. C. omitted to record the ground upon which its decision was based the S. C. re- ferred back the case to supply the omission. — [No. 25,569 D. C. Colomho. S.] At Chambers (H.) 635. — Joan and another v. Arma and others. "Where it appeared that the Appellant's failui-e to file the Petition of Appeal in due time was in consequence of the adjournment of the D. C. during the Session of the S. C. held that the Ap- peal was to be allowed on the Appellant giving the required security.— [xVo. 1258, T). C Ainblan- 'jodJe.'] Application for Adminis- tration reject- ed, whore it appeared that the deceased had died about 50 years ago, and the pro- perty been di- vided amongst the heirs. The course adopted where the D. C. om- itted to record the reasons of its Judgment. The course adopted where an Appellant's failure to ap- peal was ow- ing to the ad- journment of the D. C. lt*40 L m; ] Injunction refused for want of proof of title. April 23, (H.) 636. — Jai/eiranleite Modliar v. Seneu-iiutae Appoo Hamy and others. Judgment. — It does not appear to the S. C. that the ground set forth in the application of the plaintiff is sufficient to entitle him to the Injunction applied for, particularly as he has failed to make an averment of his title to the land in dispute and of the matter contained in his application and also to shew by the oath or affidavit of any third person that the matter set forth in his application is true, to the best of his belief — The Interlocutory order of the D. C. of Chilaw and Putlam is therefore affirmed. — [_No. 7765, D. C GUlaw and Putlam.^ 637. — VapoecaTido v Wagamoettoe and another. Interlocutory order set aside, and the case re- ferred back to the Court below to be proceeded with, as the poverty or insolvency of the plaintiff furnishes no ground to compel him to find se- curity for costs. Besides all applications of this nature ought to be made at an early stage of the case, which however does not appear to have been observed in this instance. — [^Sfo. 5497 D. C. Jaffna,'] May 6, (H.) 638. — G. Louis v. Yattamalagala G. Andris. The Court Interlocutory order set aside, it having been survey at any made at too early a stage of the case — If the time after the Court should consider after the filing of the list ListofWitness- of witnesses, that a survey is ahsolutely neces- filed'*'^ *'^™ ®*^'y *° come to a satisfactory decision of the case, it is perfectly at liberty to make an order to that effect, care being taken to direct the wit- nesses on both sides to be present at the survey, in order to enable than to speak when they come to give their evidence, with precision and accuracy with respect to the boundary, extent and posses- sion of the land. An application on the part of the plaintiff praying- to fcummon the vendor of the land to The pover- ty of the Pit. furnishes no ground to compel him to find security for costs. [ 287 ] 1840 warrant and defend Lis title, is appended to this case ; but no record is however made of it ; if it be an omission it should be rectified, and the application, which appears to be a legitimate one, disposed of.— [JVo. 6933, D. 0. GalU,'] 639. — Don Adrian v. lAwne Appowe and others. The D. C. non-suited the plaintiff because he had failed to summon certain witnesses, who in the opinion of the Court were absolutely neces- sary to prove certain payments made by him to the Record Keeper. Held, that the decision was premature and it ought to be set aside. Per Hille- BRAND J. — The claim of the pLiintifif consisted of two items, and the ground of non-suit had reference to one only ; and also because the Court ought not to have anticipated that the plaintiff would not have availed himself of the right allowed him by the 28th clause of the Smles and Orders Sect. 1. and examined the Record Keeper and Secretary, both officers of the Court, although not regularly summoned. — [^No. 6765, D. 0. Oalle.'\ 640. — Happooarachigey Von Gabriel Appoo. v. Pedro Silva. The Court cannot non- suit a Pit, merely because he had not s umm oned certain wit- nesses. A witness may be called and examined, though not summoned. The facts of this ca=e are fully set out in the Judgment, which is as follows : This is a case of some importance, not only on account of the parties themselves who are Na- tive Merchants, but also on account of the magni- tude of the amount, which it involves. The facts of the case as detailed in the plead- ings are shortly these. The defendant in the course of his mercantile transactions with the plaintiff, which must have been very entensive became in arrear and indebt- ed to the plaintiff, in the sum of £374. 9. 3 J for which he granted his personal bond dated 20th September 1838 payable in four monthly instal- ments. In compliance with the terms of this bond, the defendant paid £ 150, but as he had made de- 1. A Plain tiff cannot sue out execution after taking the Defen- dant's bond for a part of the judgment in satisfaction of the whole. 2. Proofof actual deli- very of the bond is not ne- cessary, where a constructive delivery has been proved. 3. The Su- preme Court 1840 [ 288 ] will under cer- tain circum- stances stay executi o n pending ap- COStS. fault in the payment of the residue, the bond was put in suit and judgment recovered, on the 21st June 1839 for the balance sum, interest and On the 8th November, the plaintiff sued out execution against the effects of the defendant for the sum of £224-9-3| in satisfaction of the judg- ment, and by force thereof, a house of the defen- dant situated at Kandy has been seized by the Fiscal of that Province, but the precise date of the seizure, does not however appear, nor is it material ; but this Court is inclined to believe that it was sometime before the 20th of Decem- ber, as the writ was returnable on that day. From this time till the 22nd of April the writ remained in suspense or abeyance, when on the motion of the plaintiff's Counsel, it was re-issued to the Fiscal of the Western Province, who seized a cer- tain sum of money in the hands of Messrs. Wil- son Archer and Co., but the amount however is not stated by the return to the writ. On the 24th of April the defendant filed an ap- plication, setting forth that, in consideration of the sum of £75 paid by him to the plaintiff in satisfaction of the judgment, he had remitted to him £24-0-5| and consented to accept his bond for the balance sum of £160-10-0 payable in one year with interest, and that a bond for that amount containing those conditions, prepared by Mb. Deiebekg the Notary, at the plaintiffs express de- sire, was executed by him in his name, but whe- ther the plaintiff was to perform any and what condition on his part, beyond the remission afore- said is not stated ; but it is to be implied from the nature of the agreement between the parties that he was to enter satisfaction of the judgment, or to grant a release, otherwise he would have two securities or payments, for one debt. The defen- dant then goes on to state that notwithstanding the premises, the plaintiff subsequently to wit on the 22nd of April took out execution against his effects, and that it was then in progress against his property and that part of it had already been [ 289 J 1840 seized by the Fiscal of Colombo ; and -therefore prayed that the writ might be recalled and can- celled. This application being filed, supported as it was by the affirmalion of the defendant and the affi- davit of a third person, as far as regards the exe- cution of the bond, the District Court ordered on the 24th of April, the execution to be stayed till further order, and a Rule Nisi to issue to the plaintiff. On the day the rule was returnable, which was on the 28th of April, the plaintiff or rather his Counsel appeared before the Court ; but instead of shewing cause or taking time to do so, com- menced examining the defendant ; at the conclu- sion of which, the District Court, on his motion discharged the order for the stay of execution, and sentenced the defendant moreover, to one ■ month's imprisonment, on the ground that he had, as is stated, attempted by his averment and affir- mation to deceive and mislead the Court. Against this order and sentence, the defendant interposed an appeal and the case was called on for hearing on the 29th of April, but it was or- dered to stand over for this day, the Counsel for the plaintiff stating to the Court that he had no notice of the appeal and was consequently unpre- pared to argue the case. Whilst the Court indulged the plaintiff in the postponement of the case, it took care to prevent the commission of an irreparable injury in the interim, by ordering on the motion of the defen- dant's Counsel, the execution to be stayed till further order; and the Court also ordered the defendant to be discharged, as it appeared to it, upon the first blush of the case, that the District Jttdge in his anxiety to do justice between party and party, had fallen into an error, by not being much familiar with the dealings of Native Mer- chants. It is contended by the defendant's Counsel that the plaintiff has no right to enforce the writ against him, inasmuch as he has paid him through Mb. Ritchie's Conicoply the sum of £75 and iMO [ 290 ] executed a Bond in his name for the halance sum of £160-10-0 in tenns of the agreement. Of the fact of the execution of the bond there cannot be the slightest doubt, as the plaintiff himself through his Counsel admitted it before the Dis- trict Court. What right then the plaintiff had after that to refuse, as he says he did, to receive it, and to enforce the writ against the defendant's property, this Court cannot conceive. The defen- dant to a question pointedly put to him certainly stated that the bond was not delivered by him to the plaintiff, this question was proposed with with a view no doubt, to shew that the bond although executed, had not been delivered to the plaintiff, which is certainly necessary according to the English Law, whatever it may be by the Roman-Dutch Law ; but that Law even does not require a formal delivery ; circumstances equivalent to it are sufficient; as a deed may be delivered cither by actual delivery or by words, or acts equivalent to a delivery. The question therefore is, whether the facts appearing in this case amount to a delivery ? The plaintiff admitted before the District Court that he refused to re- ceive the bond, which shews clearly that it must have been delivered to him by words or acts equivalent to a delivery, otherwise he could not have declined to receive it. The statement of the defendant when he says that he did not deliver the bond to the plaintiff, must therefore betaken or construed to apply to the actual, but not to the constructive or circumstantial delivery. Upon this and other circumstances this Court is satisfied that there was a delivery of the bond. This brings the Court to the question, whether the plaintiff supposing the £75 had not been paid him, as he alleges he was not, had a right to en- force the writ against the defendant after he had, as already said, executed and delivered his bond to him and thus performed part of his agreement ? This Court is disposed to think not, as the par- ties cannot be placed in the exact situation in which they respectively stood, when the agreement was entered into, and aUo because there is no right vested in the plaintiff by the agreement [ 291 ] iH4n (as far as the Court can collect from the facts in the case) to rescind it, by him alone, without the concurrence of the defendants. Besides if the plaintiff were allowed to proceed with the writ, it would be a fraud on Me. Ritchie's Conicoply, who with a view of preventing defendant's pro- perty from being sold and his person immured within four walls at least for the space of one year, undertook and promised the plaintiff, to pay him £75, but whether he did so or not in point of fact, is a point for evidence ; bnt there are however circumstances in the case as will be noticed presently, which impress the Court with a belief that if the payment had not been made, the plaintiff had at least accorded time for it, or sus- pended his right for a while. In the course of tho argument it has been said by the plaintiffs Counsel that the payment of £75 was a condition precedent, thereby intending to convey to the Court that it ought to have preceded the remission promised by him and the execution of the bond by the defendant, and even if it were so that would not in the least alter the case, because it is not denied by the plaintiff that Mr. Ritchie's Conicoply promised and undertook to pay him the sum of £75 and that he has con- sented and agreed to receive it from him, and what is more, he himself directed the Notary to prepare the bond for the defendant's signature, which leads the Court to suppose that the plain- tiff, has either been paid by Me. Ritchie's Coni- coply or that he has given him time to do so, or that he has at least waived his right to receive the payment before the execution of the bond and the remission of £24-3-3|. But although in point of fact the payment had not been made by Me. RricniE's Conicoply, still that would not entitle the plaintiff to consider the agreement at an end and to treat it as wholly de- t3rmined, as the defendant had performed part of it and the parties cannot consequently, as already said, be put in statu quo, his remedy therefore was (after due notice of such default of the defendant, which however does not appear to have been the 184(. I 292 ] case) an action for compensation in damage for such default, or to enforce the writ for the £75^ after suggesting on the record of the Court, all the circumstances of the case if there were no- thing to the contrary in the agreement, either expressed or implied, which this Court at present is unable to judge, from the whole facts of the case not being before it, which is mainly to be attributed to the line of procedure or defence adopted by the plaintiff. It is admitted by the Coimsel for the plaintiff that the District Court was perfectly justified tipon the facts laid before it, to order as it did, the stay of execution till further order, if so, what is there in the answers given by the defen- dant while under examination, to justify it to re- scind it, the plaintiff's Counsel says the District Court disbelieved the defendants statement in toto ; but how could that be when the plaintiff himself through his Counsel admitted before it a part of that very statement, namely, the direction given by him to the Notary to prepare the bond and the execution of it by the defendant. If the District Court disbelieved any part of the defen- dant's statement it must have been that part only, where he speaks of the payment of £75 to plain- tiff, because in his examination he stated that Mr. Eitchie's Conicoply undertook to pay it for him, but that he was unaware whether he did so or not ; but this Court cannot see any very ma- terial difference in these two statements, because the defendant might have had reason to believe, as will be stated presently that Mr. Eitchie's Conicoply had paid the £75 according to his pro- mise and undertaking, although in point of fact he was not aware of it at the time of his examina- tion. If the District Court had any doubt upon the subject, as it appears it had, the course to be pursued for it was, to allow the case to go to evi- dence ; but not to dissolve its order for the stay of execution, and sentence the defendant to one month's imprisonment as it did. This leads the Court to the question, whether there is any thing in the application filed by the defendant [ 293 ] 1840 Gontrasted with his answers to call forth the punishment awarded against him by the Dis- trict Court? This Court is inclined to think not, because according to the dealings between the Native Merchants here, to which class the parties belong, an undertaking and promise of a third pel son, as in this case, to pay the debt of the defendant to the plaintiff, and his under- taking to receive it from him (which it appears the plaintiff did from the question proposed by him to the defendant) are considered equivalent to actual payment (but whether such an under- taking can be enforced in Law, is a question which much depend upon the merits of each case, and upon which this Court will express no opinion as it is now not called upon to do so) and con- Bequently when he instructed his Counsel to draw his application he without entering into any de- tail, merely stated to him that he paid to the plaintiff £75 not liowever with an intention to mislead and deceive the District Court, as it was led erroneously to believe, but from a conscien- tious belief that such undertaking to pay and consent to receive was equivalent to an actual payment. As the fact placed on the record are imperfect, it is quite clear, and it is also admitted by the plaintiffs Counsel that the case must be remitted to the District Court for hearing ; but it is con- tended by him that there is no evidence before the Court to authorize it to continue the order for the stay of execution ; but this Court is satisfied that the facts appearing in ' the case, are quite sufficient to justify it to continue the order till hearing ; a contrary direction would be attended with very great mischief, the defendant's property will be sold, his credit ruined, he himself perhaps incarcerated, while the District Court is enquir- ing whether the plaintiff is entitled to his execu- tion or not, and if it should turn out that he had not, and he in the mean time happens to die, or turn a bankrupt, the defendant will, be with ut any remedy whatever ; on the other hand, the suspense of the execution for a time, 184n [ 294 ] will not be attended with equal prejudice, particu- lary as the property of the defendant has already been seized under the writ. It is therefore ordered that the decree and sen- tence of the District Court of Colombo of the 28th of April last be reversed and the case remanded to the Court below for hearing with direction to stay the execution still such hearing. The costs to abide the ultimate decision of the case.— [No. 24,601, D. G. Colombo, S.] May 13, (H). 641. — Janis Fernando v. Joseph Piris. Rule as to Prevarication. If the plaintiff had proved his case, as in the Costs in Slan- Opinion of the District Court it appears he has, in der cases; and which opinion however this Court cannot agree, as to Fine for ^\^Q District Court would have been perfectly jus- "" tified in awarding the amount of damages claim- ed by him, or such portion thereof, as in its opi- nion he was entitled to have for the injury sus- tained by him at the defendant's hands ; and even if he had failed for want of sufficient proof the Court would have been fully warranted to award him his costs, if it were satisfied that the impro- per conduct of the defendant gave rise to the ac- tion, and the justice of the case demanded it ; but the 29th Clause of the Rules and Orders Section. I. does not authorize the condemning a defendant to pay plaintiffs costs, or any sum of money to the Crown, merely because the plaintiff has evin- ced no vindictive or improper feelings. The re- cited Clause only subjects a party to pay costs or fine, which the Court may think proper to award, if he by his answers attempted to mislead and deceive it ; but no such thing is imputed to the defendant here, and even if it were, the Supreme Court would not have felt itself justified to affirm it, as it cannot ascertain to what part the obser- vation has reference, and as the defendant has been examined upon facts which form no part of the slanderous words laid to his charge in the libel, and upon which no verdict could have been found against him. [ 296 J IMU Decree of the District Court reversed in so far as it condemns the defendant to pay plaintiff a 8um equal to his costs, and the sum to the Crown.— [JVb. 25,868, D. C Colombo, S.J May 20, (H), 642. — Meera Lebhe v, Seesma Lehhe. The decree in this case is not founded upon the Best Evidence, best evidence which the nature of the case admits of. It stands, moreover, upon the testimony of one single witness, unsupported hj any other evi- dence, although it was capable of corroboration. The a'k'ged purchase aud receipt of articles by thi' defendant, took place, — if the witness is to be believed, — at the plaintiff's shop, aud yet his sliopraan who is the best or primary evidence has not been called, nor his Journal or Waste-Book produced in support of it, or their abRence ac- counted for. The decree of the District Court ia therefore reversed. — [JVo. 28,190, D. C. Golmnbo, N.] May 30, (O. C. H.) 643. — Weregalle Mohotta v. Weregalle Peruma. This case was referred back to the D. C. to take evidence on the following j)oint laid down in Sawer's Treatise : — " The father is not the heir of the property of his children born in a Beena marriage, which they have acquired through their mother. The maternal uncles or next of kin on the mother's side are the heirs to such children."— [JVo. 5807, D. C Seven Korles.— (Coll.) June 24, (H). 644. — Gader Lebhe Issuboo t. Andoo Lebbe Markar. Where the trial of a case was postponed owing to the absence of plaintiff's Proctor, and not in consequence of any fault on the part of the plain- tiff, Eeld that the batta to defendant's witnesses, if any, should be paid by the Proctor and not by the plaintiff.— [JVo. 6823, J). C Galle.'] The Father ia not of kin to his Beena chil- dren. Qu? On a post ponement in consequence of a Proctor's ab- sence, the S. C. directed the Proctor to pay the batta of the witnesses. 1840 [ 296 ] The District Judge cannot, without the consent of the Parties, a p- poiut an Arbi- trator or Um- pire. Deficiency of Stamp how Bupplied. 645. — Bon Philip v. C- Swarne and others, Although the parties to a suit have a right, ■with the concurrence of the Court, to refer their differences to Arbitration ; yet the District Court has no right to delegate its authority to others (as it did in thi'? case) by appointing two Arbitra- tors for and on behalf of the Court, and by reserv- ing, moreover, the right of nominating an Umpire jn case the Arbitrators named by the Court and the parties, should be equally divided in opinion : particularly as the parties have not signified their assent to it by subscribing the Record, containing such order of reference. The decree of the Dis- trict Court is set aside, and the case remitted back to the District Court for hearing, with liberty to the parties to enter into an agreement or acts of submission to refer the matter in dispute for the decision of such Arbitration as they may choose to name ; and in ■which case the agreement or sub- mission should be made a Record of the Court and signed by the respective parties. It should be advisable for the parties, either to name an Umpire at the time of submission to de- cide the question in dispute, in case the Arbitra- tors should differ in their opinion ; or to vest the Arbitrators (also at the time of the submission) ■with the power of choosing an Umpire, before they enter into the investigation of the matter in liti- gation. — l_No. 5464, D. C Matum.^ July 8, (H), 646. — BenJ : HopTcer v. Susanna W. Pfdffer. The Ordinance No. 6 of 1836, and the repealed Regulation No. 4 of 1827 do not render deeds or other instruments void, which are not properly stamped, but merely prohibit such deeds or in- struments from being given or received in e^vi- dence ; and the 9th Clause of the said Ordinance allows (as did the 18th Clause of the repealed Regulation) every deed or instrument insufficient- ly stamped to have the same duly stamped at any time, on complying with the, requisitions therein stated. And as the application to have the dis« ] i»*fp pted instrmnent properly stamped was made by the plaintiff before it was read or given in evi- dence, supported as it was by an affidavit that no fraud was intended ; and he has likewise paid into the Court the penalty fixed by the 9th Clause of the said Ordinance, this Court can see no reason why the application should not be granted. It has been contended by the deft : that the Regulation No. 4 of 1827 ought to govern this case, but the Court is inclined to think otherwise, as that Regulation has been repealed by the sub- sequent Ordinance No. 6 of 1836 with the ex- ception therein excepted ; which exception how- ever does not at all affect plaintiff's case, save and except as to the amount of stamp the instrument ought to have been written upon, and the annexa- tion ot stamp to make up such amount. It has been urged on the part of the plaintiff (but which he had no right to do from the line of procedure adopted by him before the Court below) that the instrument bears a sufficient stamp, inasmuch as there is another stamp on the other half sheet of the same paper, on which the instru- ment is written and hence not annexed ; but this Conrt is of opinion that according to the 19th Clause of the said Regulation the instrument it- self must bear the proper stamp, which however is not the case here. The decision of the Court therefore is that the instrument in question is insufficiently stamped. — [No. 28,096 D. G. Colombo, S.] July 15, (0. H.) 647. — W. Ahamado v. C. M. Candoo. The Appellant having failed to take out the subpcenas on the day fixed by the District Court, the latter imposed upon him the condition of pay- ing the costs already incurred before he could be allowed to take them out. Held that the Court was not justified in doing so, and Tefr Hillebrand J. — " The object of the order of the 25th April to " cite the witnesses before the 10th June was, no " doubt, with a view to ensure their attendance Where e n instrument ia written on half the sheet only, it is not suiB- cient that the other half sheet contains a stamp equal to the deficiency. Where a. party fails to issue subpcenaa on a day ap- pointed, the Conrt cannot impose condi- tions on his is- suing them af- terwards. 1640 [ 298 ] T h e S. C. will correct a manifest error in a decree ai- re a d y p r 0- nounced. Where a party failed to give security in appeal through ig- norance, the S. C. allowed him to do so after the limited time.'' '• on the day of trial, by timely service of sub- " poenas on them, but the object could by no " means have been defeated by the subpoenas be- " ing taken out to them on the 15th or 16th as the " trial was fixed for the 25th, and the witnesses are " living, as the Appellant says, (and which is not " contradicted,) within one or one and a half mile " from the Court. " If the witnesses failed to appear on the day " of trial, owing to the Appellant's neglect to take " out subposnas to them in due time, then, .ind " in that ca^e, the Court would have been justi- " fied to order him to pay the costs of the day, " or to make such other order as the nature and "justice of the case required; but it was not " warranted to order him, as it did, to pay all the " costs, merely for an unimportant and perhaps " an unintentional neglect on his part." — \_No. bde3,D.C.Jafrm. (H.) July 18, (O.) 648. — Wapwn^urea v. M. Mudianse. Where it appeared that the judgment of S. C. for the plaintiff was erroneously entered for one animonaui of rice, instead of one ammonam of paddy, the fcj. (J. ordered the Eegistrar to amend the fcaid decree by altering the -s/urd " rice" inco "paddy."-[ No. 1434, D. 0- Colombo.] August 5, (H.) 649. — Don Ahram de Silva v. L. Christian and others. Where the S. C. was inclined to believe that the Appellant was not aware that he had to give securities for appeal, it ordered that the appeal be allowed, provided the Appellant do give the requisite security within fourteen days after the communication of its order to him. — [No. 1034, D. 0. Amblangodde.'] August 19, (H). 650. — JvMina Seytan Admx. of A. Seytan v. L. Fernando and another. According to the Roman-Dutch Law in force [ 299 J 1840 in the Maritime Provinces of this Island, the community of goods between man and wife takes place on the completion of the marriage, unless excluded by an Ante-Nuptial Contract ; — which however does not appear to have been the case here. — A just half of the common property which belonged to the plaintiff's intestate and his wife ought therefore to devolve on his children ; hut as he had left :ione, it ought to go to his other heirs at law, or to his legal representative. The half belonging to his wife, who died after her hus- band must devolve on her daughter, though il- legitimate.— [m. 5097, D. C. Colombo.'] 651.. September ] 9, (C;. -Tins V. Perera and another. Dutch Law rule of Com- munity. The wife's half- share de- volves on her children, though illegi- timate. Under the 32nd Rule of Section I, any third par- ty may intervene at any stage of a suit before exe- cutiun, but it is a ijoluvtanj and not a compulsory proceeding in the first instaiiCi.', though after a person has oi-ce intiTvenud, he becnmes amenable to ]irocess in defnv/ii like other parties. The iiroper couv.^e where any vendor is required to be a party to ihe f nit is 'iiot to order him to intcrvere, but to onltr the plaintiff' to amend his libel by making such vendor a co-defendant, and then ccmpulsory proiepp, in <'('far.lt of appearance or aiis-vvfr, cm be coiTectly enforced against him. As the Court also ought never to make any decree ^ithf.ut all ]jroper parties beins? before it, tbe defendant can always avail himself of the ob- jection for w;itt of parties, so as to furce the plaintiff to bring ki.cIi parlies before the Court. — [A'o. 19,557, B. G. Colombo S. (C).] 652. — Juan Na'Ja v. Siman Silva. The iilaintiff's Notarial Bond though of prior date, is not entitled to be saii-.Ccd out of the pro- ceeds of the land in dispute, in preference to a subsequent special mortgage of sucli land; and if the defendant proves that ho has redeemed the whole mortgage out of his own money, he is en- A party can- not be compell- ed to inter- V e n e ; but where a ven- dor refuses to intervene the plahitifr may amend his li- bel ly making him a party defendant. A special Mortgagee is entitled to pre- ference over a prior creditor, though hold- ing a ]S'otarial Bond. 16. C Colombo, S.] G7L—DeWodde Appoohamy and another v. Bingi- hamy. The simple point for the S. C. to decide is, Res JmiAcaia. whether the decrees in the previous cases can be Identityof pleaded in bar to the plaintiff's present action, gi^lj^jj^' ^"^ as heirs of Balhamy ; and this Court is clearly of '^ ojjinion that they cannot, the plaintiffs not being 1841 [31-t ] Res Judicata. Pai'ties and Privies. The existence of other debts is no answer to a creditor's suit against an Administrator. parties on the Eecord in those cases (excepting in the case No. 1242, where the 1st plaintiiS claimed, not by inheritance, but by sale and dow- ry ;) and the plaintiff's present claim as heirs of Balhamy, not being put also in issue in the above cases. The cases nevertheless afford strong do- cumentary evidence in favor of the defendant against the present claim of the plaintiff. — [No. 3257, D. G. Golomho.li 675. — Ukhooliamy v. Menichliamy and another. The Decree of the D. C. is affirmed as to the dismissal of the plaintiff's claim to the estate or share alleged to have belonged to the plaintiff's uncle Ukkoohamy, because the decree in the former suit may be properly pleaded in bar by de- fendant against all persons claiming title by de- scent through Ukkoohamy; but as regards the plaintiff's claim by inheritance to the share which his father Balhamy inherited direct from the grandfather Gameralle, and which never belonged to the uncle, the decree in the former suit affecting the estate and title of Ukkoohamy only, cannot be pleaded in bar thereto, though it be strong documentary evidence in proof of defendant's long adverse possession. The case is therefore refer- red back to the D. C. to hear further evidence on both sides in respect to the said share of the es- tate alleged to have descended by inheritance from the grandfather Gameralle to plaintifTs father, and from him to plaintiff, and the D. C. will de- cree accordingly. — \_No. 3053, D. G. GolomboSl July 14, (C.) 676. — Andris v. Fonceka and another. It is clear that the plaintiff's claims as a cre- ditor should not be defeated by the unsupported allegation of the defendants that there are out- standing debts and charges upon the estates, to which the defendants are appointed as Adminis- trators, which will swallow up the whole estate from the heirs. In Simon Fonseka's estate it appears from the list filed by the plaintiff that there are other property to satisfy the bond-debt due to the C 315 J first defentlant, and the memorandum also en- dorsed upon the bond of a private transfer of the i of the garden Karipinchayawatte to the first de- fendant tlie Administrator, for liis own debt, forms no legal bar to the plaintiff's right ; especially as the alteration apparent in the date thereof, and the value of siich ^ being alleged by the plaintiff to be Eds. 600, or double the amount of first defendant's debt, shew fraud and collusion in the transactions ; and this Court suspects that it was made only with the view of defeating the plaintiff's and other just creditors' claims on the share of the family estate due to S. Fonseka. Steps should be therefore forthwith taken to com- pel a proper account of the two estates being filed by the respective Administrators (the defendants) as there is no excuse for the delay therein which has been permitted for so many years. — [_No. 5193, D. C. Colombo.^ Jnly 28, (C.) 677. — Achland v. Oomes. Interlocutory order of the D. C. set aside with costs. Looking to the bond of the 6th September 1836, with tlie Indenture of even date ; and also to the subsequent correspondence filed, the risk of the debts in the fii'st instance must ^clearly be considered to fall upon the defendant. But the Supreme Court does not understand how the amount of the debts due to the " Observer" establish- ment, (which item is specifically objected to in the Answer) can be justly included in the account agamst the defendant. A Court of Equity will open a settled account though it has been signed, and a security (as a bond) taken for the baknce, upon oppression, and a particular error specified in the pleadings, and supported by evidence. (See GMtty's Eq. B. " Accmmt.'") and the Supreme Court thinks under the circumstances in this case that the " Observer" debts ought to be deducted from the amount to be decreed due to the plain- tiff, unless the plaintiff can adduce evidence to satisfy this Court that such demand was not un- fairly included in -the accoimt. The defendant A settled Account will be opened up on proofof error or oppression. A Trustee for the recovery of debts is liable for negligence. i^-n [ 316 ] rnoreover having assigned the whole debts to the plaintiif upon trust for recovery, it was the duty of the latter to use due deligence for their recovery, not only in instituting actions, but in taking fresh acknovrledgments on demand made, or security, so as to prevent the debts being barred by pres- cription &c ; and if any such debts can be proved to be now lost or irrecoverable owing to the laches or neglect of the plaintiff in these respects (and being shop bills, on any such default occurring as aforesaid, the greater proportion must now be liable to be prescribed in law,) the defendant is entitled to have the amount thereof deducted from his debt. A proportionate abatement from the charge of interest upon the whole debt should also be made upon sums received in satisfaction of the debts assigned, as the same were recovered, and also on the amount for bricks, kekuna-nut &c., (otherwise the plaintiff would be charging interest for money actually in his own hands;) and the account filed by the plaintiff is defective herein. Not only upon the above points therefore further evidence must be required, unless the parties by admission agree to dispense therewith, but furthermore the subsequent Deed of Sale, and the original Title Deeds mortgaged should be filed, and evidence must be entered into upon the facts put in issue in the Answer, as to whether such sale was made upon the further considera- tion, understanding and good faith of the defen- dant receiving thereon a general release, the plain- tiff keeping the bills assigned ; or else that defen- dant should thereon have delivered up to him bills of £450 on his executing a bond of £100, which it would appear has not been finally done, owing to the unpaid debts being found since to amount to only £375, when the defendant declined giving more than a bond for £50. The Supreme Court looking to the letters filed, and the apparently very low price of £350 being given as the full value of four seperate fields, with the brick-kiln and buildings thereon, situate at Kandy, is strong- ly inclined to give credit to the defendant's asser- tions as to the above price not being the sole consideration, or full value for such transfer, and [ 317 ] 1841 that tlie whole contract has not, (as it ought to have been) completed and carried into effect. If upon taking further evidence, it appear that the above sale was in part performance only of a contract not finally carried into effect or fully completed on the plaintiffs part, as alleged by the defendant, or that the sum given was a very inadequate consideration, and that advantage had been taken therein of the defendant's embarrass- ment, the sale must be wholly set aside. — [iVo. 13,339, D. C. Kandy, S.] August 21, (S.) 678, — Sinnatamby v. Amasalam and his wife. The D. C. should not have stopped the case on reference to the Letters of Administration not having been granted. Parties must conduct their own cases and take their own exception. — [_lSfo. 6285, D. G. Jaffna.^ September 8, (0). 679. — In the matter of the Registry of Marriage between PayTci&r M. Coder Meyedden — Appellant, and M, Nachm, daughter of S. Neyna Marcar — Respondent. Per Oliphant C. J. " How can the Court decree a maiTiage to be registered when the consent of the intended bridegroom no where appears, and the bride consents by proxy." — [iVo. 10,243, D. C, Jaffna.^ 680. — Wayr&moUoe v. Oaderyiainby. Interlocutory Order affirmed. The plaintiff has not stated in the libel any legal cause of action. No action lies for including property in an Inven- tory.— [JVo. 10,038, D. G. Jaffna.'] 681. — Miera Leble v. Arla^en Tulle. Plaintiff cannot be called upon to prove that he advanced the money. Of this the bond is suf- ficient prima facie evidence, only to be rebutted A. D. C. can- not stop a case on an excep- tion not taken by the parties. Consent to Marriage can- not be given by Proxy. An Action does not lie for including pro- perty in an In- ventory. Want of Con- sideration. Burthen of proof. 18-U [ 318 ] Appeal to Privy Council. Procedure on abandonment. Procedure in case of imper- fect pleading. by satisfactory evidence to the contrary, which in this case has not been adduced. — {_No. 8,787, D. G. Cliilaw and Putlam.^ September 22, (0.) 682. — MahcMimado Cassim v. Welley Appa Ghetttj and others. Mr. Advocate Selby files Power of Attorney of the plain tiif and respondent in favor of M. L. Alim Hadjiar and a proxy of the said M. L. Alim, Hadjiar to Louis Jumeaux Esquire Proctor of this Court, and moves for a Rule Nisi upon the defendants and appellants to shew cause on Wed- nesday the 10th day of November next, why their Appeal in Council should not be declared aban- doned ; and why the plaintiff and respondent should not be allowed to avail himself of the judg- ment of this Court in his favor dated 1st March 1837*, and why the said defendants and appel- lants should not be decreed to pay the costs of this motion. Ordered accordingly. — \No. 84, X>. C. Ifawosr.f ] September 29, (0). 683. — Maria Fernando widow, v. Lovento Silva and others. No doubt, in strictness, the defendants are en- titled to absolution from the instance. The plain- tiff's Proctor has filed a libel which evidently does not set forth the real facts of the case, and which there can be little doubt he could have obtained by questioning the plaintiff. She has not speci- fically set forth the circumstances of her title by inheritance as she ought to have done. On the part of the defendants, a suit is referred to, the decree in which is not tiled, but a Thombo Extract to which no reference is made in the answer. The parties' rights have not properly been brought before the Court. It may tm-n out that they are not able to set forth any clear title either one side or the other, but as the pleadings a re so defective • Vide Morrjan's Dvjest p. 137, par. 463. t Vide ^ost p. 320, par. 6S8. [313 ] 1841 tlwy must be struck off the Record, and the Dis- tiict Judge must question the parties, take their oral statement and make up the issue himself by the case, and give judgment anew. — \_No. 7,960, D. C ColowAo.^ 684. — Madelena Fernando widow v. PhilUppo Feriiando, Administrator &c., It is ordered that the proceedings be referred ■* Partition back to the District Court to call upon the first cour3eVf°Ad° defendant to pass without delay his accounts as miniatratiou. Administrator of his deceased father Boosabadu- gey Markoe Fernando, and to ascertain thereafter whether the plaintiif is entitled to any, and what share, in the garden in question by purchase or otherwise, and to have the garden properly divi- ded, and the plaintiff put then into possession of her just share thereof. It appears that the father has been long since dead, and his heirs have been several years possessing the garden in common according to their respective shares, and that Let- ters of Administration were granted four years ago to the defendant, so that plaintiff may now fairly seek for an account and partition of his estate.~[A'o. 5502, D. G. Colomho.} October 6, (0.) 685. — Silva v. Jayekade. Judgment. — That the decree of the District CouH of Colombo No. 1 North of the 9th day of July 1841 be reversed. The Law prescribes the time after which the presumption arises, namely thirty years. " Papegaay. — Vol. 1. page 82. "Sentences of " towns and villages are superannuated after one " year. The Sentences of the Court of Holland " after five years. The Sentences of the Supreme " Court after ten years. The same may not be " carried into execution after such time, unless " execution has been fii'st and previously decreed " thereon." "Dutch Lcm Diotion(wy—Yo\. 1. page 492. " Lastly although the action on a judgment con- Prescription of Judgments. 184] [ 320 ] ' tinues for 30 years, as being a personal action, ' by reason of which it was anciently called per- ■ petual, and thus only lost its effect by a prescrip- ' tion of the longest time {longissimi temporis,) ' it has nevertheless been thought right by our ' practice, that it should become antiquated, that ' is superannuated, or of no force, in a much ' shorter period, namely to this effect, that after ' the lapse of the time fixed, no execution on ' account of a Judgment can be sued out, unless ' the same has first been anew declared executable, ' which is the same as though the first Judgment ' were renewed, after the party has first been ' summoned there concerning, which time is one ' year for the Town Courts ; fire years for the ' Court of Holland ; and ten years for the Su- 'preme Court."— [JSTo. 16,9141}. C. Colombo, F.] 686. — Sly ma October 20, (O.) Lehbe and another and others. Nioliolapulle Master and Servant. A Master not liable for tres- pass by i5er- vaDt. Costa of a previous action must be paid bafore a new- action is com- menced. Appeal to Privy Council. Procedure on abandon- ment. The decree of the D. C. as regards the first defendant was reversed. Fer Oliphant C. J, — It does not appear in evidence that he had anything to do with the wrong ; and a man cannot be made liable for a wrong done by his servants or others. — [No. 9530, D. G. Jaffna.'] 687. — Fernando and another v. Jumeaux and another. The costs of a former suit which has been with- drawn must be paid, before a new suit for the same claim can be instituted. — [JVo. 8,815 D. 0. Colombo.'] November 10, (0.) 688. — Mahamvmadoe Casim v. Welley Appen Chdty and others. Mr. Advocate Selby produces theEule Nisi issued in this case on the 22nd September last, calling upon the appellants to shew cause this day why their Appeal to His late Majesty in Council should not be declared abandoned, and why the plaintiff and respondent should not be allowed to avail himself of the judgment of this Court in [ 321 ] 1841 bis favour dated the first day of March 1837,t and why the said defendants and appellants should not he declared to pay the costs of this motion. The said Advocate produces these several affi- davits to wit. One of Louis Jumeav/a Proctor for the respon- dent verifying that copy of a Rule Nisi obtained in this case was enclosed in a letter addressed by him to /. G. HiUebrand Usqmre, formerly Proctor for appellants, and that the deponent received the answer hereunto annexed ; Colombo, 8th November 1841. Sir, I beg leave to return the Eule Nisi in the Manar Appeal case No. 84 being no longer Counsel for the Appellant in that case ; your letter of the 5th instant enclosing the above order was delivered to me only on Saturday last. I am &c. (Signed) /. G. Hillebrand. L. Jumeauas Esquire. One of Simon Bodrigo verifying that he was personally acquainted with Palliniappa Chetty who traded in Colombo imder the style of Moottoo Palliniappa Chetty ; that he has made diligent inquiry after the said Palliniappa Chetty, and that the deponent is credibly informed and doth, verily believe that the said Palliniappa Chetty, a defendant and appellant in the Manar case No. 84 left Ceylon to proceed to the Coast, and is not to be found in Colombo, whereby this deponent is prevented from serving this copy and translation of a Rule Nisi obtained in the above case. One of the said Simon Bodrigo verifying that he was personally acquainted Welley Appen Chet- ty, Supramanian Chetty, Palliniappa Chetty, and Kisnappen Chetty, all of Natta Cottah, the de- fendants and appellants in the Manar case, No. 84 ; that they have all left Ceylon, leaving Sell- appa, Meyappa, Arnasalem, and Raman Chetties, their respective partners to represent them ; fur- ther that he did on the fifth day of November f Vide Mm-gcm'f! Vic/eft p. 137, par 463, 1841 [ 322 ] Mahomedan Law. Divorce among Maho- medans. Alimony. instant seiTe on each of the said partners, a copy and translation of the within Kule Nisi. The said Aflidavits are read and filed. Mr. Advocate Staples is heard on behalf of the Ap- pellant, and undertakes to produce to-morrow a Power of Attorney with its translation. Ordered that this case do stand over till to-morrow after- noon at 4 o'clock. — [iVb. 84 D. C. Manar-I November 11, (O.) Mr. Advocate Staples produces two severa' Powers of Attorney which he afterwards with- draws. The said Advocate is heard on behalf of the ap- pellant and Mb. Selby on behalf of the respon- dent. Me. Staples moves that the Kule Nisi issued in this case on the 22nd September last be dis- charged. Mr. Selby consents. Ordered accordingly.— [JVo. 84, D. C. Maiiar.'l November 19, (0. C. S.) 689. — Segoe Lehhe and another v, Marcar Mohan- drom Sahcutty. The decree of the District Court of Batticoloa is affirmed as to the dismissal of the plaintiffs' claim for Oayooolly and Maggar ; the Supreme Comrt being of opinion that the evidence is insufficient to establish a divorce in conformity with the Spe- cial Customs of the Moors concerning Matrimonial Affairs, Tit II, appended to Van Leeuwen. The Supreme CoHrt however consider that the second plaintiff should be allowed to recover under this action a reasonable sum for maintenance for the time of her separation up to the date of the decree of the District Court ; and it is accordingly fur- ther ordered that the District Court shall proceed to assess such reasonable sum for maintenance, after hearing the evidence of the second plaintiff and defendant on the point. AU parties are moreover decreed to pay their own costs of this case.— [lYo. 6G72, B. C. Bafticoloa. (Coll.) [ 323 ] 1841 690. — MoJiammadoe Gaslm v. Welhij Appen Chetiy and others. Mr. Advocate Selby for the plaintiff nnd res- pondent files three affidavits. Upon the application of the plaintiff and respondent it is ordered that the security tendered by him shall be produced before the Judges of this Hon'ble Court Collec- tively at Chambers on Monday next the 22nd In- stant at 1 1 o'clock in the forenoon, and that, if the said Judges shall be satisfied of the sufSciency of the said security the plaintiff and respondent shall be allowed to sue out execution. — [_No. 84, D, C. Mmiar. (Coll). November 22, (O. C. S.) 691. — Mahammadoe Casim v. Welley Appen Cheity and others. On the motion of Mr. Advocate Selby, it is ordered that upon the plaintiff and respondent, or his lawful Attorney, entering into a Bond to the Eegistrar of this Court in the sum of £2,000 ster- ling for the performance of the Judgment to be pronounced upon the Appeal which has been noted to his late Majesty the King in Council, and on depositing by way of mortgage the title deeds of the property mentioned in the report of the Appraisers, Messrs. Loos and Oorlofp, dated the 23rd day of May 1840 filed in this case, the plaintiff and respondent be allowed to sue out exe. cution for the amount of the Judgment in hi favour and Costs. — [2Jb. 84, D. C- Jfawcw.* (Colls December 11, (0.) 692. — Don Louis v. R. Allis. The Court sitting Collectively has considered the Circular Letter referred to and are of opinion that it is invalid, not being a General Kule or Order of Court and never having been transmitted to * S. C. Vide Morgan's Digest p. 137, par. 463, and p. 142, par. 470. Ante p. 211, par. 550. p. 318. par. 682, p. 320, par. 688. et seq. And Post 30th June 1842. Appeal to Privy Council. Security in Appeal. A p p e al 1 Privy Council. Security in Appeal. ACircnlar Letter is not b i n d i n g as a Rule, unless &c., 1 841 [ 324 1 A. D. C. can- n»t grant Pa- rate Execu- tion, or appoint a Commission, unless autho- rized by Law. Qu ? Whe- ther the D. C. can award tri- ple costs. Proceedings on BxParte Trial Qu ? If plain- tiff be a mar- ried woman. Where a par- ty appears by Attorney, the D. C. may re- quire the pre- sence of the pai-ty. England for approval as required by the Charter. — [No. 8692, D. 0. Galle.^ 693. — Sibila v. Silva and another. Interlocutory order is reversed. — The District Judge has altogether mistaken his powers. Parate Execution cannot be granted in this case, and the Judge of the Supreme Court before whom this case is heard in Appeal does not know by what authority the District Judge appointed the Com- mission.— [iVo. 7481, D. C. Galle.'] 694:.— Silva v. Juan Naide. The decree in this case was affirmed, subject to the opinion of the Collective Court whether the District Court has power to award triple costs, and therefore that point was reserved for CoUective decision.— [JVo. 8931, D. C Colombo.'] 695. — Candepermal v. Pen-atey. The 24th Rule of Court directs that if the defendant do not appear, the case shall be heard for plaintiff ex parte, the meaning of which is, that the plaintiffs must prove his case ; but no proof has been entered into in this case. The Court observes that the defendant is a married woman, if so is it not necessary that the husband be joined in an action of this nature ? And if so let the pleadings be amended and the case proceeded with. The present decree must be reversed in any event for the reason stated above. — [_No. 7102, D, C Batticaloa.'] 696. — Fonseka v. Fernando and others. Fernando and others. Intervenients, In this case the real Intervenients have given a special procuration to an Attorney, and in the ordinary case, that Attorney fully represents the principal ; but it is in the discretion of the Judge to require the presence of the principal if he shall so determine. Voei Lib. 3. Tit. 3. § 14. " In- " tervenire potest procurator in omnibus causis " civilibus, nisi circumstantioe exigant ipsius domi- " ni proesentiam." The Judge here finds that by the Rules of Court the presence of the principals themselves is required, and he is entitled to en- [ 325 ] 1841 force it. Decree of D. C. is afmned. — [_Nu. 7416, p. C. Colombo.} December 30, (0. C. S.) 697. — Arawipolle TJnamse v. Malia Naike Unanse' Mk. H. Staplbs moves that the proceedings in this case may be renewed in the Bistrid Court of Kandy. South, in terms, of the motion made by Mr. J. Staples at the last Eastern Circuit for the purpose of the case being prosecuted in Ap- peal to Her Majesty in Council. Ordered that this case be brought before the Coiwt on Monday next the 3rd Proximo, leave being given to Mr. Staples to make this or any other motion on that day which he may deem ex- pedient, giving reasonable notice to Me. BsLrnGthe Counsel lor the opposite party. — [No. ^ D. C- Kandy, N.] January 3, 1842, (O, C. S ) 698. — Anlochy and her husband v. Maria, widow and Administratix. It is clear that the Testators gave the property to plaintiff as her inheritance, she is therfore not entitled to claim it as a legacy and claim her inheritance also. \^No. 3626, 1). C. Battic(lua'\ 699. — Kiri Etiena v. Appoo Naide. No appeal having been taken against the Judgment overruling the objection to the non- joinder of the husband, the Court did not enter- tain the question. [_No. 2364, D. C. Matelle.~\ February 4, (S.) At Chambers, 700.— 7n re Donald Davidson Esq, Merchant' On reading the affidavit of Donald Davidson of Colombo and upon the motion of Mr. Advo- cate Henry Staples on behalf the said Donald Davidson. It is ordered that an Injunticion do issue against the Collector of Customs at Galle, the Controller of Customs for the Southern Pro viace, and to all and every other persou or per- Appeal to Privy Council. Procedui-e. 1842 Where a le- gacy was in tended as a satisfaction for an inheiitance, held that the legatee cannot claim both. The S. C. refused to en- tertain an ob- jection which was not made a ground of appeal. Injunction to restrain sale of goode. 184-2 C 326 ] The right to cut down over hanging bran- ches,is a Com- ni n Law right. Joinder of parties order- ed, on appeal. The Court will not inter- fere with the proceedings of an Administra- tor, excupt on a regular ap- plication. sons acting on their, or either of their authority, so desist from selling the following goods to wit ; 2 Cases manifested as sundries, 18 Chests manifested to contain opium. 119 Bales of Cotton. 33 Casks with salt provisions in them ; until the decision of any suit that may be insti- tuted relative to the said goods or until this Court shall make other order to the contrary. May 27. (0.) 701. — Juse Fernando v. Juanls Sielve. This case was remitted to the District Court to assess the damages done to plaintiff's roof by defendant's cocoanut trees, if any ; with permis- sion to defendant to call evidence if he shall be so advised to prove that plaintiff's house or any part thereof, is on defendant's property ; and leaving to plaintiff to exercise his Common Law right of cutting off any boughs or parts of trees which overhang his premi-ses, and that judgment be given thereupon. — [_No.']']0o, DC. Colombo.2 May 31, (0.) 702.—Silva V. Chrisloffdsz. The necessary parties not having been all join- ed, it is considered that the decree of the District Court be set aside and the purchaser made a de- fendant.— [iVb. 7561, B. C. Colombo.2 703. — Senetviratna v. Senewiratna. An applicatian is made to the Court to cause the Administrator to deal with the Estate in a particular way. This cannot be done ; the pro- ceedings must be quashed ; the parties to which must pay their own cost. If any party thinks the Administrator is about to sell the Estate not hav- ing power so to do, he may restrain the Adminis- rator by injunction,— [iVo. 277, D.C.Colombo.'} June 1, (0.) ^4. — Kolombooffame Vidahn v. Lokuhamy and others. No proxy is filed from the 3rd defendant Pleadings «ither to Rebeira or Fernando. How then do we ^''"W ^e sign- find their names to pleadings purporting to be an *j,g party him- admission and an answer ? Either the Proctor aeif, or aProc- who holds proxy or the party must sign ; hut not tor holding a both. The Secretary should take no pleading ex- Proxj- cept from a party or proctor holding a proxy, or his ■clerk. In the former case the party's name alone must be affixed or his mark. In the latter the proctor's name^one. In this case the defen- :dant must be allowed the benefit of his answer, and the judgment must be reversed. — l^No. 3581, D. C, Colombo^ •Tune % (0.) 705. — In re Assen Lebbe Marlcer. Neyn-a Marltan v. Neyna Markan. The Assessors being of opinion that a young MahomedaB man of 21 years of age is quite competent to I'arties. manage the afiairs of the Estate, and that the minhtration to jieace of the family will be much better kept and a young maa the general interests forwarded by the appoint- of 21. ment of the applicant, the order of the District Court must be reversed and Letters of Adminis- tration be granted to the applicant ; costs to be borne by theEstate.-[^No.32,296, D.C.Colombo.J June 9, (C.) 706. — Rajepakse v. Dingei ihaniy. Judgment. That the decree of the DistriotCoiirt ]sfi„degamir.e of Colombo No. 6 of the 23rd day of May 1841, decreed on de- be reversed with costs, and that the plaintiff be feult ofpaying decreed to be entitled to the lands in dispute as Ottoo. being the sole proprietor of the Nindegamme Kanuggale, to which th«y belong ; and thnt the defendant accordingly be decreed to pay to the plaintiff as tenant of the above Nindegamra* the sura of £Q for Ottoo, and value of services due on account of the above lands. And it is further decreed that on the defencfant's failure to pay the IW« [328] said sum within three months from the date of this decree, that she be ejected from the said lands and the plaintiff be thereupon put in posses- sion thereof.— [iVb. 2633, D. C. Colombo.^ 707. — Kin e Hattena v. Kirri Hattena and others. Plaintiff con- The decree of the District Court is affirmed ex- co3ts"ofDefen- "^P* ^^ *° costs. It being decreed that the first, dants, wlio Second and third defendants do pay their own, have been vex- and the plaintiff's costs ; but that the plaintiff do atiously made p^y the costs of the seventeen other defendants, par les, ^^ ^^^^ appear to have been vexatiously made parties to this suit by the plaintiff, and it would be very hard to make the three first defendants therefore pay these unnecessary additional costs. ^[_Nq. 3657, D. C. Colombo.'} June II, (0.) 7O8. — Maymo v. Cando and another. living" miles ^^^ Interlocutory Order of the District Court of the Court is reversed, as it appears by the Rules that wit- not entitled to nesses are in no case entitled to bStta if they Batta. live within 4 miles of Court.— [A^o. 6206, JD. C. Colombor[ 709. — Don Carolis v, Alwis. Where Sure- jt jg considered that there is no order of the ille^aUv^ ^^" District Court on which to ground an appeal. The ceeded against securities appear to have been illegally proceeded their remedy against and they have their remedy by an action is by action, at law.— [iVo. 4898, D. C. Colombo.'} June 15, (C.) 710. — Kirri Menika v. Mirapeliia. KandyanLaw. An only Judgment. That the decree of the District daughter by a Court of Colombo No. 6 of the 22nd day of previous mar- May 1840 be afiirmed with costs, the plaintiff ed^Vhalfthe '^^''"S entitled as the only daughter of Tickery father's lands, ^udianse by his first, marriage to halt of his lands. [13293 ^8*2 The Supreme Court considers tbe Deeds of Prescriptioi' loth parties wholly undeserving of credit, the does not ran Exhibit A. filed by the plaintiff being of a very against the suspicious character and unsatisfactorily proved, ^^" pending and the Exhibit B. filed by the defendant having ijfefinterest'' ^ been already set aside in the former case 2779> on account of the signatures of the grantor and attesting witnesses not being written thereon, so •*■" o n 1 y that they have clearly been fradulently added ^^{"f^^/jt ^°|^ since; from the whole evidence however the par- rights by a ties are satisfactorily proved to be both daughters Deega marri , of Tickery Mudianse by separate marriages, and ^S^' his widow Lokohntni) having possessed a life in- terest in his Estate, the defendant cannot main- tdn now any prescriptive title against the plain- tiffs claim, (as recorded by tbe District Court on the further proceedings) because the plaintifi" ac- quired a right of possession only upon the wid- ow's death which has happened within 10 years, and the proviso at the end of the Clause 2nd of the Ordinance 8 of 1834 expressly declares, that the term of prescription shall only begin to run against parties having estates in remainder or re- version from the time they acquire a right of possession. A question of Law has been also raised by the Proctor for the appellant, whether the plaintiff, has not lost her right to her father's property by her Deega maiTiage, (which is fully proved ;) and the defendant being married in ■Beena is therefore entitled to succeed to the whole of his property ; but it is laid down in Mr. Sawers Digest of the Saffragam Customs p. 89, that '• the daughter being the only child of a " man's first, second, or third marriage, will "have equal rights with her brother of the half " blood in her father's estate, even if given out " inBeega," and as a sister of the half blood mar- ried in Beena could clearly have no preferable claim to the brother of the half blood, this Court considers that the plaintiff is entitled to an equal share with the defendant in their intestate father's land.— [A'b. 2765, D. C. Colombo.^ ^sts [3302 June 16, (S.) At Chambers. 71 1 . — In the Matter of Anthonelia Conderlag. Injunction to Anthonetta Conderlag alias Anthonetta Perera r -' -iin waste, appearing in person is sworn to an Affidavit. Ordered that the said Affidavit be filed, Mr. Martensz appears on behalf of the said! Anthonetta Conderlag alias Anthonetta Perera, and moves for a Writ of Injunction directed to the Agent or Acting Agent of Government of the Western Province, his Assistant or Assistants^ and to all persons concerned directing him, anj each of them to desist from cutting, rooting up, or othervf ise destroying the trees and plants grow- ing in the garden situated and lying in the Dam Street of Colombo and in which the house at present occupiod as the office of the said Agent stands. Ordered accordingly.* June 25. (O.) 712. — Slema Lehbe v. Leva Marhart. Where the Jn this case the Supreme Court on reading the ^uestered ° i^ Petition of the defendant, ordered that leave he giv- BuflScient t o ^ii *" ^^ defendant to proceed in the prosecutioa cover the judg- of the appeal noted by him without giving secmi- ment and costs ty for the amount of the judgment or for the costs no secunty jj^ appeal J provided it be made to appear to the will DG rCQUlT" •• ■ *-- ^ ^ e\ in appeal, satisfaction of the District Court, that the pro- perty of the defendant which has been seques- tered at the suit of the plaintiif in this action, is sufficient to satisfy the amount of the said judg- ment, and such costs as the plaintiff may proba- bly be put to in prosecuting the said appeal. — \_No. 81259, D. a Colombo.2 , _ June 30, (O.C.S.) the P r i V y 7lS.—Maliamadoe Casim v. Welley Appeii Council. Cfietty, and others. A surety dy- It is ordered that the Appeal to Her Majesty ing, the S. C. in Council be allowed on giving another Security Tn'olher Tul \« "^"^ "^ *« «"« ^1^° i« dead._[iVo. 84, D. C. stead. Manar.2 * The Writ of Injuction issued in this case was subse- quently (23rd June 1842) dissolved. [331] 1812 714. — Ishnacl Lehhe Adinr. v. Miniie Markai: It may Tie doubtful whether there is any rea- At what stage, -■ son to suppose that any mistake has occurred in ? P'*'''5' ™" framing the 32ud Rule, because it is in strict ac- "^^"'' cordance with the Roman-Dutch Law on the subject " Xon eliam interest, quo loco jam lis sit, 4-c. {Voet. Lib. 5. Tit. L § 36.) The Judgment which prevents the party from intervening on ac- count of doing so at too late a stage of the proceed- ings is reversed, saving to all parties all other ob- jections. [A'o. 31,533, D. C. Colombo. 5".] 715. — Baslian Appoo and another v. Baba Ap- poo and another. The plaintiffs sue defendants as heirs and re- Where adeft. presentatives, not stating that they are sole heirs « sued as heir pr how they are representatives, as Executors &c. '"' '■epresenta- The defendants neither admit nor deny the alle- J^^^f^'j ^h'Tw that gation. The lands are not mortgaged. The de- he is sole heir, cree of the District Court is therfore set aside, or how he is a and the plaintiflfs are allowed to amend their de- representive. elaration within fourteen days from notice given of this decree (otherwise defendants to be absolv- ed from the instance) and the defendants to an- swer in due course and the case to be proceeded with. [Ao. 33,878, D. C. Colombo. N.} September 14, (O.) 716. — Anna Hamy and another v. Madelena Fernando widow. Where the The libel being unintelligible, the decree of the telligible,""the District Court was set aside and the defendant s. C. absolved absolved from the instance. [No. 8342, D, C. the deiendant, C6lotnbo.2 September 15, (O.) 717 Silva and another v. Fernando and others. Action a- The purchaser is not made a party to the suit, gainst Auctio- the Auctioneer is ; he must be absolved from the »eer- 1842 [332] instance with costs, and the case is remitted for the purpose of the purchaser being joined. £No, 8907, D. C. Colombo.'} 718. — Perera v. Soseuw and others. Form ofsu- The wife should not be joined as co-plaintiff. ing on behalf and the Court amends the title of the cause by ad ' of a wife. jjjjg jq tjjg plaintifTs name the words " who sue for, and on hehalfqf Dona Bastiana Hamine his wife" the usual form in like cases. \_No 32,761* -D. C. Colombo N.} 719. — Batagedere Gooneratne Unanse. y. Bat- tagedere TJnnajise. Seidarte Unnanse. Interyenient. Succession to The decree of the District Court in this case Temple pro- ^^^ affirmed, subject to the opinion of the Judges, whether the plaintiff as pupil of Godegamuwe Unanse had any and what right ? Whether the the bequest of Marepane to defendant does not become void on defendant's becoming a sectarian ? Whether the property does not devolve to any pu- pils of Marepane if any such are in existence ? Or whether the property does not lapse to the donors and their heirs, or to the Crown ? And subject to their opinion on any other point, which they may discover. In the meantime the case was referred to the District Court to ascertain, whether the defendant was professedly of the Amarapoore sect at the time of the date of the Deed of Sacca 1743 from Marepane to defendant ? \_No, 2746, D. C. Colombo.} October 6, (C.) 720. — Cattayen Chelly and another v. Arnasa-^ lem Modliar. The Law of The two principal questions raised on this ap- ment"onsTder- P®^^' "^'z-^st. Whether the Lawof Namptissement ed. ' has been introduced into and is in force in this Colony ? and 2ndly Whether the District Court [333] 1842 can grant Provisional Sentencefor payment there- under, when no mention thereof, or of the form of process thereon is contained in the General Rules and Orders for regulating the practice of the District Courts, are both points fully settled by the previous decisions in the case of Gibson v. Rodney 12th November 1830.* Clarke v. Sego- deen Lehbe Marcar decided on 1 1 th November ]835,t in Colombo Appeal 8425; and in Galle Appeal 2532,t decided on 9th April 1836. The Proctor for the Appellant (Mr. Richard F. Morgan) has vraived the other objections tak- en by him in the District Court, excepting that he contends that Provisional Sentence for pay- ment cannot be granted in the present stage of this suit, the defendant not having filed any an- swer on the general merits, nor issue having teen yet joined thereon between the parties ; and also that the defendant is entitled in this, as in ordinary cases, to the usual time allowed for an- swering viz. 8 days. This Court is however of opinion after referring to the authorities cited, that wherever a summons with a copy of the instrument upon which the claim for Provisional Sentence or Condemnation for payment under security de restituendo, is prayed for in the libel, has been personally served upon the defendant calhng on him to appear on a day certain named therein, and to then acknowledge or deny his handwriting or signature to such instrument, and to shew cause if he has any, why Provisional Sentence for payment should not be granted thereon, the defendant must on appearing on the day so fixed for hearing of claim for obtaining Provisional Sentence peremptorily answer by ver- bal pleading to such claim for Provisional Sen- tence ; and if the defendant shall upon examina- tion acknowledge his hand writing or signature * Lorenz's Treat: on Namptissement. p. 1. — Mar. Judg, p. 425 par. 2. et. seq. + Lorenz's Treat: on Namptissement. p. 5, — Mar. Judg. p. 430. par. 4. et. seq. — Morgan's Digest p. 60. par. 2S8. % Lorenz's Treat: on Namptissement, p. 14. Morgan's Digest ^.77. par. 321,^ 1842 :334] to the said instrument, and shew no sufficient cause why Provisional Sentence should not be granted thereon, as prayed for, the plaintiff would he then entitled to such Provisional Sentence. But if the plaintiff omitted to serve with the summons, a copy of the instrument upon whieli the claim for Provisional payment was grounded, then the defendant would be entitled to demand such copy and a sight of the instrument previ- ously to answering, and should be also allowed in such case until the next day, or some other early convenient day, to be then fixed by the Court, to answer to the said claim of the plaintiff for Provisional payment. This Coiirt must here repeat, what it has ex- pressed in a former decree, that so far from the Law and Practice of Namptissement not being suited to the mode of administering Justice in this Colony, it seems to go hand in hand with the main objects, vfhich the system of Judicature under the present Charter has in view, viz. speedy decision, and the extracting as much as possible of the facts from the lips of the parties themselves; and the provisions in the Rules of Court for the mutual examination of the parties, and that their verbal statements vfhen reduced into writing, should be taken as the pleading of such parties, may be particularly noticed. In respect to the Dutch Civil Law authorities, the Court has relied chiefly on Foet. Lib. 42. Tit. 1. §6 — 14. — VanderLinden pages 407 and 4l9,and FanLeeuwen pages 586 and 699. — [_No. 35,001, D. C. Colombo, iV.] 721. — Demmer v. Van Eyck. In this case the Order of the Court below was On Amend- reversed without costs. Per Carr J.— The prac- ment of Libel, jj^gjg^^^jjgj,g ^ plaintiff amends his libel after morougMto answer, and requires a" further answer from the issue. defendant to such amendments, he must take out a fresh summons for the defendant to appearand Practice of gjjg^^g^ t„ tj^g amended libel; and when Provi- Na^mptiBse- ^.^^^^j Sentence for payment under security de resfitiiendo is prayed for by tjie lilul, [\\o defen- dant may tie called on to plead by verbal answe.i to such claim without the delay and Corni of filing a written an'swer thereto according to the Rules of Court in ordinary cases ; and the Court may tlrereou grant such Provisional Sentence with- oVlt issue having been joined between the parties on the general merits. The proper course in this case is ior the plaintiff" to serve a fresh summons on the firet defendant annexing thereto copies of . the amended libel, and of the instrument upon which the plaintiff's claim for Provisional Sen- tence is founded, calling on the defendant by such summons to appear and answer on some cer- tain day to the phiintifF's claim for Provisional Sentence ; contained in such amended libel, and to acknowledge or deny his signature to the said instrument, and to shew case if he has anj', why Provisional Sentence should not be granted as prayed for, when, if the defendant appears on the dav so fixed for hearing claim for Provisinal Sen- tence, and acknowledge his signature to the said instrument, the plaintiff would be entitled, to Provisional Sentence thereon ; unless the defen- dant could shevv either on the facts alleged in the lihel, or inspection of the instrument, that the plaintiff is not entitled to Provisional Sentence thereon ; or unless the defendant then produce some instrument or document in the handwrit- ing of, or signed by the plaintiff or obtain admis- sion by the^ plaintiff, upon his being then examin- cdj from which the Court shall be satisfied tliat the plaintiff is not likely to succeed in the ordinary action. — See Font. Lib. 42. Tit I § fi. — 14 — Vander Linden p, 407 and 419 and Van Lcearveit p. 58t) and 699 ; and Cl'irke v. Segodeen Lehhe Marcar decided on 11 th No- vember 1835 ; in Colombo Appeal iVo. 8423 ; and the Galle Appeal Nu, 2532 decided on the 9th April 1836. As the plaintiff applied for and was refused a fresh summons in the District Court, both parties are decreed to pav their own costs of this Appc;il. [No. 35,460. D.'C. Colombo, -S'.] i842 l^^ L336] October 13, (C.) 722. — Politiffii V. C/irisiia. not rat^/dMi '^^^^ proceedings in this case were remanded on his own l>ack to the District Court to hear further evidence land so as to on both sides and to decide the case de novo. Per •".j"'"e his Carr J.— The rule in Law is '• Prohiheiur, ne fence, °"" " ?'"*/"""«' «'« «"o. quod iiucere poAsit aliino, et " sic utere luo, ni alietnim 7.011 Iccdas." — The de- fendant has clearly 110 right to dig a new ditch upon his own side to close to the plaintiff's par- tition fence, as to cut the roots thereof and cause it to fall ; and the neglect also of the plaintiff im- mediately to repair the injury so done to his fence, would not defeat his claim against the de- fendant for damages occasioned by, or consequent on the above wrongful act of the defendant. The plaintiff moreover has not examined his witnes- ses as to the amount of damage suffered by him ^ and the main point in the ease also appears t& have been overlooked, viz. — Whether the defen- fant had cut a fresli ditch, or had re-opened only an ancient ditch, which had been wrongfully fil- led up by the i)laintiff. [^No. 8284, D.C. CV lombor\ October 22, (C.) 723. — Latigslom v. Whiting. Grounds for William Gardiner Gumming is^SAVorn to an Af- transfcning a fidavit which is read and filed. Buit from one William Henry IVkiline/ appearing in persoH tjjjj." afi&rms to an Affirmation whidi is read and filedr Mr. Ciimming on behalf of the said W. H. Whiting thereupon moves upon the facts set forth in the said Affirmation and in the said Af- fidavit, that an older may be })ronounced trans- ferring the above suit from the District Court of Colombo No. 1. iSctith to the District Court next adjoining thereto, for the hearing aud decision of the said suit in terms of the 36th and 46th Clauses of the Charter, aud fuither moves foF [3371 '^■'^ such further order as to this Ooart may seem meet. Mr. B. Morgan appears on behalf of the plaintiff opposes the said motion and he is heard. ilfr. Ciimmtiig is heard in reply. The Assessors deliver in their opinion that the case in question ought not to be transferred from the Disrici Court of Colombo No. 1. South to another District Court of Colombo because " Mr. " Lavgshio the District Judge is aLawyer and he " knows more Law than any other District " Judge, and because there is a report that he " does justice in every case which comes before " him." The Court dissents from the opinion of the Assessors, because it considers, as a general rule, whenever a party objects to a District Judge acting in a case, upon a ground which would be good cause of challenge to him as an Assessor under the 6th Rule of Section VII, viz ; " on the ground of direct interest or near relationship to one of the parties," the Supreme Court ought up- on the application of such party to transfer the cause to the next adjoining District Court under the provisions of the 36th and 46th Clauses of the Charter. The District Judge in this instance is objected to by the defendant as being the fa- ther of the plaintiff, living together in the same house ; and as having also expressed a pre- con- ceived opinion against the defendant upon the principal point put in issue in this cause. The several authorities cited by the defendant's Proctor from Dutch and English Law Writers are very strong, as shewing that a Judge ought not to be allowed to try a cause where he stands in such close relationship to one of the parties, as father to son ; and the Court connot be guided in this matter by report or rumour which the As- sessors state as the reason of their opinion, nor could the Court admit any legal evidence on the point, whether any District Judge thus objected .to, was more or less likely from his general cha- racter to be actually biased by his being so close- 1W2 [338J ly related as father to one of the parties. TL* Law presumes partiality in such cases, and that every one has the natural feelings and bias from such close relationship, which it generally intends to guard against; and on public policy it will not allow any individual under such circumstances to discharge the public duty of a District Judge, an Assesor, or a Juror. The Court therefore or - ders that this case be transferred from the Z)/.v- iricl Couit of Cotombn Xo. 1. South to the Dis- trict Court of Colombo No, 4. Caltura. \_ya. 36,943, D. C. Colombo S.2 October 27, (C.) 724. — Delkandura v. Hathanghamy and other?. One of Bcve- '^^^ proceedings are referred back to the Di?- ral co-h e i r 3 trict Court to hear further evidence and to decide may sueforhis the case de novo ; with liberty to either party to phare, produce in evidence the Hee Lekam Mitiyij, and Commutation Eegister of the District at the fur- ther hearing. By the Dutch Civil Law " not- " withstanding any one has joint partners in one " and the same cause, he may sue any one at; law " for his share alone,or be sued by another."(^«» Leeiiwen Bk. 5. ch. 3. §. 11. p. 524.) — .4.nda(j- cordingly it has never been the practice in this Colony to require all the co-heirs or joint-owners of land to sue together ; and if they were com- pelled to do so, it would in some Districts owing to the minute subdivision of landed property and the number of co-heirs, be tantamount to a total denial of justice, as it would be impracticable in many instances to get all the heirs to join as co-plaintiffs or else to appear as co-defendants or intervenients, whilst it would be also attended with the most ruinous expence to poor parties. The plaintiff does not moreover in his libel dis- tinctly allege himself to be the sole proprietor, though he seeks the rent and services due to himself without mentioning that there are other co-heirs,but he can only recover his own share in [339] li!->-2 tills suit; and if he clearly luid claimed in his lilifl more than was due to liim,it would only affect his lightto costs.It would certainly be preferable how- ever if the other joint-owners to the Nindegaine (beinpr few) were parties to this case; and should they refuse to intervene on having notice, the plain liif shall be at liberty to amend his libel by making them co-defendants, if he be advised to do so by his Proctor.— [iVy. 336, D.CColombo.^ November 3, (C.) 725. — Handakanda v. Yahapathamy and others. It is considered that the Orders of the District The D. J's. Court be set aside, not being signed by the Dis- signature isne- trict Judge, and that the defendant's appearance ceasaiy to eve- be properly entered and the answer be thereon ^^ ''^'^''" received. Under the 7th Clause of the Rules the District Court might also have granted redress, — [A'o. 4261, D. C. Colomho.2 726. — Ismael Lebbe v. Leva Markeii. The variance between the Libel and the state- Variance, ment of the plaintiff upon his examination in respect to whether the plaitiflf paid the money himself or paid it through his son, is not fatal, because the rule " Qui facit per alium facit per sc, " may applied there ; but the District Court will do well to consider the circumstance in jud- ging hereafter on the credit due to the plaintiff's evidence in proof of the payment of the j615. At. the same tiine this Court is inclined to make ■ great allowance to the plaintiff thereon, from his • Libel having been so shamefully drawn out by his Proctor, who wholly forgets that brevity and clearness are the principal features of good plead- ing, whereas the Libel is most unnecessarily lengthy and confused ; and the Proctor is dis- allowed accordingly his costs thereof beyond the first sheet of 120 words. [No. 8319. D. C. Colom'ju.'J 18'-^ [340] November 10, (C.) 727- — Perern, Adnir. v. Don David. Practice, in If the plaintiff can satisfy the District Court cases where a that he attended during the day fixed for trial, Tvoidlbli' "b ^"*^ "'''^ delayed at the ferry, the case shall be sentonthedaT '''^^*°''*''^*° the List of Cases pending for Trial of Trial. ' in *he said Court, upon the plaintiff's paying the defendant's costs of the dismissal in the District Court, and also of this Appeal. The plaintiff has not been dilatory in the previous proceedings, and his present excuse appears a plausible one, whilst he is entitled to some indulgence from Lis suing as an Administrator, otherwise no one ■would incur the liabilities of that office. The prac- tice moreover in the Districts Courts in Colombo is not to strike any case off the List for default of the plaintiff's attendance until the rising of the Court, the cause on the absence of parties being postponed to the bottom of the List for the day i so that if the plaintiff should attend during the sitting of the Court on that day, and be ready to proceed, the case would be then heard, though the plaintiff might be reprimanded probably for not attending earlier.— [No. 9028, B.C. Cohmbo No. 4] 72y. — Jllia%and another v. Kirrihatta. Stale Writs. The proceedings in this case were remanded back for the District Court to hear proof on both Presumption sj^gg^ gg (-q any of the property seized under the former AVrit of Execution having been delivered over to, and received by the plaintiff in satisfac- tion of his demand. And Per Carr J. — This Court is not inclined to favor these stale demands after a lapse often years under old Writs of Exe- cution for the recovery of petty sums, especially if it can be shewn, that the defendant has for a long time with the knowledge of the plaintiff been openly in possession of the property which is now sought to be seized under the renewed Writ, as a presumption would arise from the plaintiffs' laches during so many years, of the debt being satisfied ; though the demand be not barred by prescription. — \_No, 5971) £•• C. Colombo7\ L.^lll" 1842 129.-00)1 David V. Dc Mel. The Interlocutory Order of the District Court Motion fo a- is affirmed. .Tiie plaintiflphas not, on tlie motion, mend must be complied with the 4th Rule, which requires any "1'°" cause such motion to amend pleadings, to bo made up- *''"-'^"'' on an affidavit of merits " or other suificieiit cause shewn to the satisfaction of the Court." Tiie plaintiiTs Proctor (Rlr. VanHaghtJ is ordered to pay the costs of the said motion, and of this ap- peal. [No. 4201, D. C. Culombo,2 December 5, (C.) 730.' — Tnmd V. Isa, widow. The plaintiff' should amend his libel bj' stating Allegation of that his father died intestate and that the plain- intestacy, tiff was his sole heir, and had succeeded accord- r*'!'"! "|!.v iiigly to all nis Jistate. Ihe heir or personal representative of the deceased husbfiud of the defendant should also be made a party co-defen- dant, if he also has died intestate, and she has not taken out Administration. [No. 8685, D.C. Colombo.^ ' L 731.' — Pcrera v Lokoa Manika, widow. The decree of the District Court is set aside Ser\ice of a: for irregularity, and the defendant to be admitted notice in Eng- to enter her appearence and answer. It does ''*|' "" ''*-'"!" not appear on the Record, — excepting by ^'»e ^^j^^il J^^ -Y^^.. statement thereof in the Proctor's motion, and in ^j^^ <■ the Petition of Appeal, — that the notice of mo- tion for Judgment was actually served ; and if only the notice in English, which is filed in the . proceedings was served without any Cingalese translation or copy thereof, as stated in the Pe- titon of Appeal, it is certainly not " due iiolicc' iis required bv the 7th Section of the new Rules. [No. 4224, i). C. Colotnlio.J 732. — Deeningeij v. Memkhnim/ and others. Examination That the decree of the District Court be rever- <) f Witnesses gg^}^ j^^^f j-jjp pggg -^^ ggj. j(j,vn for further hearing, no on '^ when the witness objected to will be examined together with the other witnesses on the parties' lists, whose evidence the parties may respectively wish to be taken and the Court will then decide the case tie novo. The District Court should have acted under the 28th Clause Section 1. wherein it is provided that, "no party shall be precluded from calling " and examining any witnesses whom theCoiiit " shall consider necessary for his case, though " their names should not appear on the list of " witnesses, and though they should not have " been regularly summoned by citation." The defendant in this instance could not fairly urge that there has been any surprise upon him, or that he was really misled or doubtful, as to who the witness was, so that he could not make any previous enquiry about him, and come prepared ■with evidence to discredit or rebut his testimony ; the District Court therefore, — as he was a most material witness for the plaintiff's case — ought to biive admitted his evidence. \_No. 2783, D. C. Colombu.~\ December 7. (C.) 733. — ValJy Kahn v. Corjie Cunjie. PowOT to ad- The Interlocutory Order and Judgment of the Vance cases on Distiict Court in this case were set aside with theTi-ial Roll, costs, for irregularity ; and the proceedings were remanded back to re-examine the witnesses who gave their evidence on the ] 3th October (the date of the judgment,) and to take such further evi- dence as the parties might wish to adduce, and to give judgment rfe novo. And yje/- Carr J. — "The 9th Section of the new Rule of the 2nd July ]842 requires causes to be entered in a Book or ]jist of Cases for Trial, in the order according to priority of time, in which they are brought to be [343] 1842 entered ; and that the said causes shall be called on, heard and tried, in the order in which they shall have been so entered. The District Court therefore has no power to advance this cause in the list for hearing, or to take it out of its usual order, without the consent of both parties." [^No. 26,203, D. C. Colombo S.J December 8. (C.) 734. — Don Abraham and another v. Punchy Ha- my, Admx. of the Estate of Don Andris deceased. mi^-hetTa Gentotte Appoo and others. Intervenients. "^^ . ^f *he This case is remanded back to the District for C shire. Court for the second Intervenient to file a proper Petition of Intervention setting out his respective Claiming more title, and for the other parties to file their an- *''^° '^ ^^ ^ swers thereto, when the District Court is to de- abSl, but cide the case de novo upon evidence. Per Carr J. may affect tha — ^The plaintiff's as two of the next of kin had a costs. right to bring this action against the Administra- trix for their shares of the intestate estate, with- out joining all the other next of kin or co-heirs, asco-plaintiflfe; — CFan Leeuwen Bk. 5. Ch. 3. § II. p. 524.J And if the plaintiffs by their libel claim more than their share, it may affect theii: claim to full costs, but it should not deprive them irom recovering what is due to them with costs according to the value of their real share or in the class in which judgment is given for them. It is obvious also that the main point in issue, is whether Don Andris possessed the whole or only one-fourth of the property in dispute, and not whether there were other next of kin or co-heirs to Punchy Hamy besides the plaiutLfis. The joinder of the second Intervenient as co-plaintiff would not therefore have probably obtained an admission of the plaintiffs' real claim by the de- fendant and first Intervenient as suggested by the District Judge. INo. 21,550, D. C. Colombo N,J 735, — Wama Saibo Moorish Priest T. Bawa Saibo and another. The proceeding are referred back to tlie Dif* Hahomedaiuy 1842 [344] Biffht of Moo- *""* Court to require the plaintiff to produce in r i 8 h Priests, evideuce his alleged appointment in writing ifram under acts the Government, The defendant shall be at li- from Govern- \,^ty also to put in eridence, — df be be so advi- ment, «'="«»- ged, On inspection of the decFee of the District * ■ Court, — ithe judgment in former suit No, 2466, wherein it appears thati:he plaintiff failed io es- tablish his exclusive right by custom to perform the marriage ceremony amongst the Moors -at Negombo, and the whole proceedings in tshe above suit fthall thereon be appended as a con- nected case to these proceedings and returned thetewith i.o this Court for its 'final decision on this appeal. Notice of this action should moreover be given by the plaintiff to the Government Agent, in or- dJer that the Government may intervene in the case, if it think properto maintain its sole -right of appoihting the Moorish Priest at Negoffibo, as well as to adduce any further proof in its power; that the Priest so appointed by it, or the Priests acting under his license or permission, can alone perform the marriage ceremony amongst the Moors in NegomVa.— :£iVb. 7659,1). C. Colombo .^ December 9th, (C.) 'JZQ.-^Frandna Fernando widow v. Adrian and others. Res Judicata. The decree of the District Court of Colombo Prescription ig affirmed as to the dismissal x)i the plaintiff's wiUM"? behefd "^^^ to the garden, because the decree inHhe as'aTar,^ * former suit No. 11,324 is conclusive agalnstihe plaintiff's'right thereto, and she cannot seek to set aside such decree in this case, although it may really have been founded npon wrong evi- demce. In regard to the plaintiff's right however to recover back the purchase money of £4 — 10,-the defendant has not pleaded in bar th^ proper Clause of the Ordinance for Prescription of -ft, and as the Court never favors such a defence against an apparently just claim, so much of the decree as dismisses the plaintiff's claim to reco- ver repaymentof the said purchase- amount of ^64 1315] ^_^ -10,is set aside, and the proceedings are remand- ed back to hear evidence on both sides as to the game, and to decide the case de novo thereon. riVo. 316,3, D. C. Colombo.'] December 12, (C) 737. — Sirrewardene v. Ran^hamy, widow. KandyanLaw. This case was remanded back to the District ■*-'^ ^^^ "*"" Court to hear the evidence on both sides as to ^ted^ ^thout the plaintiflf being the only son of the deceased cause of disin- Arawegeddere Naide Hamy by his first marriage, herison stated And Per Carr J. — ^The evidence hitherto taken '" t*"® Deed, in respect to the deed filed by the defendant is '"^I'li^CTeB^'^*" very doubtful and suspicious, though the defen- dant's witnesses are the most credible, especially as the Olah does not appear to be a new one ; but by the Kandyan Law it is clear that the only son and heir cannot be disinherited by a voluntary Deed of Gift, or Will, unless the cause of disin- herison he expressly mentioned in it ; and if the plaintiff be satisfactorily proved to be the only child of the deceased Arewegeddere Naide Hamy by his first marriage, this Deed would be wholly void against him, and he would be entitled not- withstanding it, to succeed to his father's lands, subject to the life interest therein of the defen- dant, as his fathers widow; unless by mutual agreement they like to divide the estate by taking half each [No. 3262, D. C. Colombo.'^ December 16, (0. C. S.) 738. — Charles Delegal Agent and Attorney of F. Lambe and E. J. Darleif Esquires of Colombo. Assignees to the Estate of E. H. Brook a Bank- rupt — Plaintiff and Appellant. V. James Davidson — Defendant and Respondent. The Power of Attorney given to the Appellant An Attorney does not entitle him to appear in Court for his J^","°g^"^;"g"' Principals. The Charter expressly declares that authori^zedr no person can appear, plead, or act for another as Advocate or Proctor unless admitted and en- rolled as such. INo- 13,884, D. C. Kandy, S. (Coll.) ,au THE END, 347 1843 1M3.—Januart/ 14, (C.) ~"~^ 739.— TVedda v. Balea. There are no prescribed forms of adoption under Kandyau Law. the Kandyan law, which are, nevertheless, very ^^^0 jtion°re-^ strict in requiring clear proof of the adoption be- quired to slic- ing openly declared, and recognized in such a ceedasanheir. manner as can leave no doubt of the adopting party's intention, that the child adopted should thereby succeed as an heir to tlie estate of the adopting parent. Thus, it has been held, though a child may have been reared in a family, and con- tracted marriage, and dwelt with his wife in the house of his patron, and cultivated his lands, yet such circumstances alone would not be construed into a regular adoption, unless it could be also shewn that by agreement with the natural pa- rents of the child on its removal, or by subse- quent declarations and acts of the adopting party, a clear intention was manifested by him to adopt the child as his own son, and to make him an heir to his estate. [No. 3569, D. C. Colombo. June 2, (0.) 740. — Lama Naide v. Camis. "The f'ourt makes the person called the fourth n^x. r ^ defendant a defendant, which it hadno right to do. j^^g ^^ ^"^j. ^ He makes a statement, and so do other defendants, make a person or persons called defendants, which are not evi- a ricfendant. dence or oral pleadings, not being signed by them Statements net as directed by the rule. These, therefore, must all unless they' are he treated as nullities, but the second and third de- signed. fendants admit quite enough to warrant the judgment, which has been given to apply to them," [No. 8497, D. C. Colombo. June 14, (O.) At Chambers. 741 . — In the matter of a male child of M. S. U. Lebbe Markar. " It appears by the Mahomedan Law, Hedaya Mahomedan B. 4, C. 13, that the maternal grandmother is en- Law. The Ma- 1843 348 temal grand- mother is en- titled to the care of the child. titled to the Hezamit, that is to the care of this child, in preference to his father. The child, ■who was only born in December last, has, since the death of his mother, been in the custody of his grand mother, against whose care no imputa- tion is made." June 17, (O. C. S.) 742. — Mattambegammegedere v. Malpittia- gedere. Admissions The judgment in this case was reversed, and under the the proceedings were remanded back to the Di strict Ordinance of {^ovlyX, to take evidence on both sides, and proceed must not be tojudgment. "The only admission of the plaintiff vague. is in these words, hoe offered him his money about ten years ago', which does not iimount to the full time required by the prescriptive Ordinance, and is in itself a vague expression, and occurring on an examination sixteen or seventeen months after the suit was instituted". [No. 1321, D. C. Kandy. Probate when necessary. June 21, ( O. C. S.) 743. — Rajepakse v. Rajepakse. A legacy, and appointment of executors, con- tained in a Will, held sufficient to render probate necessary, and to sustain the Will {pro-tanto,') although the remainder of it may beinva id, upon which the Court gives no opinion. [No. 51, D. C. Amblangodde. June 23, (O.C. S.) 744. — Gooneratne Unanse v. Batagedere Vnanse. Temples held Affirmed. " The plaintiff claims the temple as in Pooteyalika, held in : angilia but it is satisfactorily proved maybe that it is held in Pijo^. C deci- ded that there was not sufficient evi- denceof undis- turbed pos- session by de- fendants by title adverse to and inde- pendent of plaintiffs, and absolved de- fendants from the instance. 858— Weireman v. Jayesmdra. The parties in this case brought an action jointly against one Theodoris de Silva Amer- emhe Aratchy in the District Court of Galle, No, 30?9, and it was decreed therein, " that " the case be dismissed, the plaintiffs paying " the costs. " A Writ of Execution was issued Where two plaintiffs were cast in costs, and one of them paid the whole amount, and 1815 400 afterwards instituted a case to reco- ver half the amount so paid from the other plain- tiff, and the D. .1 . thought his claim pre- scribed by Old. 8 of 1834, clauses 5 and 6 S. C. set aside the judgment and considered costs to be a joint and several debt and as such a compulsory payment. upon that judgment against both the plaintiffs and one of them paid the whole coats, aud after the lapse of three years, brought the preaent action to recover half the ampunt so paid by him, from his co-plaintiff, the present defend- ant. The dt!fendant pleaded the 5th and 6th clauses of the Ordinance No. 8 of 1834 in bar of the plainliff's claim, aud issue was joined on their applicability to the case. The District Court held the plea of the defendant good, and the esse having been brought before the Su preme Court on Circuit, by appeal, it was reser- ved for the opinion of the Judges collectively, and argued before them at the General Ses- sions. Judgment. Decree set aside, and the plain- tiff to recover from the defendant the sura of M6 15s. 3id. and interest. It has been urged before this Court on the part of the respondent that the appellant was not in the former case liable to pay the whole of the costs, and that efich of the co-plaintiffs, in that case, was by that judgment bound to pay only his share of those costs and no more- (Voet. lib. 4. tit. 1. s, 24.) That the payment upon which the present ac- tion IS founded was voluntary, and that there- fore the case comes under the 5th clause of the Ordinance as either a " contract relating to moveable property," or " money lent without bond &c." That monies and debts of this kind class under the head of " moveable property," (Viin. Leeuweu's Gomtn. p. 102. Swinburne On Wills, vol 3, p p. 928 — 936 ;) but it mighb even fali under the head of ■' money lent," &a the distinctions of " money paid," " laid out and expended," " had and received," are crea- tures of the English Law, by which they would all class under the head mutuum. That the appellant as the negotiorttm gestor of the res- pondent, his co-plaintiff in the former case, paid money for him, and the transactions ought to be looked upon as a mutuum. (Viunius Inst. lib. 3. tit. 17. p. 627 ) That there is a case similar in some respects to the present, and in which such a transaction has been, even by the English 401 1845 Law looked upon as a case of money lent:. {Wade V. Jfilson, 1 East, 195.) That the" Ordinance, like the English Statutes of Limitation, which have been emphatically termed " Statutes of Kepose" (2ud Chifty on Stat, p. ,697, in note,) ought to be liberally and beneficially expounded, and therefore ought to be-considered to include cases of " money paid ," " laid out and expended." &c., (2nd Chitty on Stat, p. 702. Blanchard on Limita- tions, p. 87.) '1 hat the appellant had no cession of action, and has not therefore the same rights ns the judgmeflt creditor. That without this cession he has propria nomine an action pro mandati or pro socio ; (Vinnius lib. 3, tit. 17. p. 637. Voet lib. 45. tit. 2 sect. 7. Pothier on Obligations, vol. 1. p. 166 ;) and the judgment nut being the basis of the present action, but only collateral evidence in support of it, the prescription of a judgment would not apply- But this Court is of opinion that although the Dutch Law may be as stated by the learned counsel for the respondent, yet this Court is bound by its decision of the 28th December 1837, in the AmUangodde case No. 1676,* and by the practice having been invariably such as stated therein. It is now established that when parties are condemned in costs generally they are all liable singuli in solidum, and it follows, therefore, that this was not a voluntary but a compulsory payment. The Court is further of opinion that an argument cannot be main- tained, as indeed none was offered, that the case comes under the 6fh sect, and the only question has been whether it comes under the 5th. As the payment is held to have been a compulsory one, this action cannot be said to be for the recovery of " money lent." Neither is it founded upon an unwritten "promise con- tract, bargain, or agreement relating to move- able property," and the only question which remains for consideration is ' whether it is action " for any moveable property." The * Se« Morgan's Digest p. 203, par 645. 1845 402 words " moveable property" must be coustrued iti the limited sense of corporeal property, ex- clusive of chosea in action. For, otherwisp, after the words " moveable property" should have been inserted the words " except as afore- said," to shew that the 5th sectioa was not repugnant to the two immediately preceding it, and wliich pi ovide different terms of limita- tion for the moveable (taken in the wide sense of the word) therein mentioned. Neither can " moveables" have been intended to comprehend money ; for then there would have been no occasion to add the words " or to recover money lent." The Court has no reason to suppose that under the term "moveable property" it was meant to include either action to which a plain- tiff had a right by action, or which he was en- titled to bring eo nomine. [No. 3262, D. C. Galle. Non-pay- snent of costs by a pauper no bar to his proceeding on with the case. Estimated value of arti- cles proved to have been stolen, and not account for, can be re- covered from defendant. Auff. 5,(^0.) 859. — Cade)' Bible v. JSicol Qualies. The following order was made in this case:— "That the plaintiff be at liberty to ■ amend her libel, and pay any costs the defen- dant may incur by her so doing ; but that as the plaintiff has been admitted to sae in forma pro- peries, the non-payment of such costs shall not be any bar to her proceeding with the action." "Where the plaintiff cannot be supposed to know accurately the articles claimed, by her, nor the precise value thereof, the Supreme Court directed her to insert all things which slio presumed to have been taken away by the defeu- iiant, and the estimated value thereof, and what- ever of these she could prove to have been taken and nut aecunted for by the defendant, she will be entilled to recover from him, [No. 4469, D. C. Manaar. Taxation of ^^^^ ~ '^'^^"''^ ^' ^^rigerepMe. costs— Prac- Ou the 7th April an application was made tice, by way ofmouou for a notice on the defendant 403 1845 lo be present at the taxation of costs. And the same waa ordered by the Judge. " The 41st rule of sect. I, Civil Jurisdiction, does not suggest the necessity of coming to the Court in the first instance, but only_ after the taxation has been made by the Secretary if either party be not satisfied ; and the rule of 80th December 1844 clearly points out the prac- tice to be adopted. Instead of troubling the Court the plaintiffs Proctor should have appli- ed to the Secretary of the Court to appoint a time for the taxation of costs, and given notice thereof to the defendant's Proctor, if he had one, or to the defendant, if he had none. At the time appointed the Secretary should have taxed the costs in his own office, and if either party were dissatisfied, then, for the first time, should the Court have been applied to. " Then follow two irregular orders consequent on the former, and on the 26th the defendant is required to file objections in Court to a Bill of costs which the Secretary has not yet taxed, and the objection is by another order referred to the taxing officer, all of which proceedings appear to be irregular and against the Rules." [No. 5578, D,C. Walligamo, Aug. 19, (0,) 861. — Salmcm v. Zuan. " The Court is not obliged to be satisfied by an ' affidavit of merits* in all cases, but may . be satisfied on " other sufficient grounds" that the defendant ought to have leave to purge his default J but the defendant and not the plain- tiff, ought in such cases to pay the costs occa- sioned by the default. The plaintiff appears to have acted regularly according to the practice adopted in the Galle Court, and admitted from the alleged necessity of the case, namely, by serving the notice of motion for judgment thro' the Sheriff, instead of moving for judgment in Court, and there proving the service of notice that such motion would be made, as the rule Affidavit of merits by itself, not suffloient to purge defen- dant's de- fault. Practice of local Court. 184S 40^ prescribes. It is, therefore, ordered that the lu- terlocutory order of the Court belOw be set nside and that the defendant Lave leave to purge his default on payment of all costs occasioned thereby, and be allowed to file Answer within eight days after notice of this order," [No. 11735, D. C. Galle. Where Notice and copy of Plead- ing not correctly copied and served, the Proctor cast in costs. It is unpro- fessional for a Proctor to draw plead- ings without a Proxy. 8G2. — Maersayboe v- Qanden. Judgment.'] The 6th rule of 1842 requires a " notice with a copy of the pleading filed to be served" &c., the object of which is to avoid the necessity of the party receiving the same coming up to Court to examine the original pleading, and to enable him to give his Proctor instructions to draw hi« counter-pleading. It is, therefore, with the copy that he has to do, and not with the original. It wasthe duty of the Proctor for defendant to draw the notice and copy correctly ; he has not done so, and has occasioned the mischief and expense which has followed. It is, therefore, ordered that the interlocutory order of the Court below ba af- firmed, save as to such part therof as relates to the paytnent of casts, which shall be paid by the Proctor for defendant. It is further ordered that the plaintiflf do either join issue with or reply to the answer within eight days after no- tice of this order. The Libel purports to be drawn by W. Martensz Pr, which letters " Pr." are supposed to mean Proctor, but no proxy is filed by him. Surely no Proctor draws pleadings irregularly as a Petition drawer, if so he is cautioned against such an unprofessional practice in future. No. 880, D, C. Jqfna. Proctor may elect to proceed with- out an Advo- cate; but he cannot do the 863. — Bird v. Sinne Marhar. In a case of a simple nature upon a Promis- scry note, it is competent for the Proctor for plaintifi" to make his election either to do all the professional business himself without em- ploying an Advocate, or to employ an Advocate d05 to do that branch of the busines8 more proper for the Advocate ; but it is not competent for tbe Proctor to do the Advocate's more peculiar work, to charge for tlie same, and to employ an Advocate to peruse and sign. [Ifo. 423. D. C. Colombo. 1845 Advocate's work and charge for it. Sept. 2, (0.) 864. — Don Bastian v. Cripps. Tbe Court is not able to draw any distinc- tion between tbis case, and the case of a corres- pondence between an Agent of Government and a Secretary of State, which, on grounds of being prejudicial to public interests, is not per- mitted to bo disclosed. Phillips Uvid. vol. 1, p. 181, ch. 6. sec. 2. [No. 10965, D. C. GalU. 8G6. —Mudianseley v. Madolumea. Defendant had no right, on account of tres- pass, to break an animals leg by any law at present in existence of which tbe the Court is aware. Fiie Ordinance No. 2 of 1835. [No. 152, C. E, Batnapoora. Sept. 9, (0,) 866. — Don Domingo v. Walon Appoo. Menik Hamy, intervenient. On the 16th April Proctors for plaintiffs and defendants being present, the case was ordered to stand out of tbe trial roll and interrenienta to amend ; on the 16bh July, the amended petition was filed, and on the I7tb a motion was made to reinstate the case. The District Court refused, and tbe Supreme Court thought properly. The plaintiff's Proctor should have resisted the case standing out of the roll when be bad an opportunity on the 16th April. [No. 34872,' D. C. Colombo. Disclosure of State cor- respondenca prejudicial to public in- terests. Trespass will not jus- tify injury. Where the Proctor for PlaintifTa allows a case to be struck off the T. E. to allow inter- vention, he cannot move to reinstate the case. 867. — Sedembranader v. Sangerapulle. Judgmenf] Tbe Country law either followa or concurs with the Dutch law in bo far as, 1845 40S By the Dutch, and country Laws, the principle that interest is not to ex- ceed principal applies oiUy to interest in arrear. ■when interest is ia arrear, and such arrear ex- ceeds the principal, no more interest is allowed then the amount of the principal that is to say, the principal must be paid, and a sum equal thereto as interest, but no more. (It maybe difficult to say upon what grounds such a rule was established ; it is unknown to the English law.) But when interest is not in arrear^ no such principal as has been recognized by the Commissioner, obtains in the Dutch law, nor in the Country law; at least, the case has never been attempted to be argued. Neither is there any Equity, so-far as the Judge can perceive before whom this case comes, in the principle. Ou the contrary, it is equity that every man should receive back the whole amount of the money he has lent, and a reasonable compensation for its use. Upon the principle adopted by the Com- missioner, one who has lent say £100 at ten per cent for ten years, and who has regularly been paid £10 a year as interest, would not be enti- tled to demand his £100 at the and of the tenth jear, because he had been paid that sum in the shape of interest. He has, thus, lent £100 for ten years, and is paid back by instalment of £10 a year, getting no compensation whatever for the use of his money. Is this equity ? The same reasoning holds if interest should be paid for 30 years, in which time the lender would have received three times the amount of bis principal, as in the case in dispute- The lender is the party wronged if he does not get £10 every year, and his principal when he calls up the bond. The defendants being absolved from the instance on this point, it is ordered that the judgment of the Court of Bequests of Jaffna be set aside, and the case be decided on the general merits thereof, [No. 275, C E. Jaffna. Sept. 23, (0.) Zieme v. Lieme. Consider- Where the deed of sale expressed that the ation express^ consideration had been received, MU that such 407 1845 expression was clear and unambiguous. By the English Law of Evidence, made the law in this Colony, the plaintiff was estopped from shewing that no money was paid. Phillips On Ivid, ch. 7, sec : 4, edit. 1843, p. 351, vol. 2. [No. 164, C. E. Negomlo. ed in Deed is a bar to tha plea that no money waa paid. 869, — Ukkoe MeniJea v. Ibrahim Fulle The Libel complained that the defendant had. taken possession of the Eastern half of the chena A. H. and the Northern half of the Cbe- na C, that the said Chenas are appurtenances of the lower half of the field W, which is plain- tiff's, and that plaintiffs possessed the chena as ^ such appurtenances for twelve years. The An- swer stated that the defendant did not know what precise part of chena A plaintiffs claimed but admitted possession of 9 pelas thereof. Judgment. The Answer is defective. For the Libel distinctly claims the Eastern half of the chena A, and the Northern half of the che- na C, a description suflScient ts let the defend- ant know what is claimed. The defendant has explicitly stated that he possessed nine pelas of A, but he does not deny that he does not possess the remainder of A, neither does he admit or deny whether he possesses the chena C, nor whether the plaintiffs have been 12 years in possession of the Eastern half of A, and the lower half of C, all of which ought to have been V done. The plaintiffs should therefore have shewn as causes of demurrer that the defendamt neither admitted nor denied whether he bad taken possession of the whole of the Eastern half of the chena A, and the northern half of the chena C, and that he had neither admitted nor denied that the plaintiffs had been in poss- ession of the said portions of chena since the decree. Leave therefore is given to the defen- dant to amend his answer either as above or otherwise, as he may be advised. If he does not chose to alter his answer, leave is given to the Depiurrer— causes of, and manner o£ pleading. Costs. 1845 408 plaintiffs to amend their demurrer. IftLe defen- dant ameud his answer leave is given to the plaintiffs to withdraw theirdemurrer aodfile such other pleading aa they may deem necessary. Each party to pay bis own costs. [No. 16885, D. 0. Kandy. Eights in future. Oct. 14, (S.) 900. — Meera Lehbe v. Walliar. Where it appeared that by a judgment in a case rights in future would be barred, the Supreme Court ordered that the case should be tried not in the Court of Requests, but in District Court.* [No. 462, C. E. Saffna. Oct. 31. (C). 901. — Nona Maria v. LencJiy Hamy, Judgment Notice of motioo for judgment by default is by default., insufficient, from its not expressly specifying that the motion would be made for default of answer. [No. 10567, D. C. 2iegombo. Money paid as amends for redelivei-y of cattle no bar to action for 902. — Salyadoe v, Franciscoe. Where a party is desirous to have his cattle immediately re-delivered he may make amends, and then bring an action for trespass for taking his cattle, and particularly charge the money so paid by way of amends as an aggravation of the damage occasioned by the trespass. Linden vs. Eoopei, Cowp. 418. [No. 10711, D. C. JVegombo. 903. — Peris v. Fernando, The proceedings in this case were remanded back to the District Court to refer the petition to sue an appeal in Jbrma pauperis to the Proc- tor in rotation, as described by the 43i*d cl. of the 1st sect, of the General Bales and Orderi * SeeNell'aO. B.p. 91. 409 1845 of the Ist October 1833. " Such reference ought to be always made to some Proctor who has no interest in the event of the suit, and who can act independently between the parties. It is a public duty that he has to perform, and one which is. imposed on him under the liules of Court, to ensure the more effectual adminis- tration of Justice between the parties, as when- ever one party is improperly allowed to sue in forma pauperie, he gains an undue advantage over the opposite party, and the litigants are thereby placed upon unequal terms. The Proc- tor, therefore, who has been retained for the appellant throughout the case, ought never to be called ou to discbarge this duty, inasmuch as his services ate retained in favor of his owu client, and he may be compelled on such a re- ference to act against his own client, whilst be has also himself a personal interest in carrying on the appeal, because, if the decree of the District Court be thereupon reversed, he may recover his full costs from the opposite party, which he might despair of getting, otherwise, from his client being a pauper," [No. 10256, D. C. NBgombo. Kules as to guidance in reference to pauper peti- tions. 904. — LeVbe Marikar v. Fernando. A promise must, under the 2 Ist clause of the Ord. JCfo. 7 of 1840 be in writing, and signed by the party making the same, to charge him with the debt, default, or miscarriage of another Where the defendant had not availed himself of this objection under the Ordinance until the appeal, both parties were decreed to bear their own costs of the suit, and the defendants Proc- tor was disallowed his costs of the hearing in the District Court. [No, 10166, D. C. JSegom- bo. Undertak- ing under Ordinance 7 of 1840, In re Pauloe FenseJca. 905.— Fernanao v, Fonseka. According to the English Law there cannot e a joiat or mutual Will, an instrument of Joint "Wills not 1845 410 known to the Law of Eng- land. sucli a nature being unknown to the Testa* mentary Law of that country. 'Williams On Executors, p. 9. But by the Dutch-Roman Law married persons are accustomed to make a joint last Will, which is called "a mutual testament," and which, although contained in one paper, is held as two distinct Wills, where- in each disposes of his or her property. Vander Linden, p. 129. Van Leeuwen, p. 223. [No. 10866, D. C, Negombo. Judgment by default, notice. I}ov. 7, (C.) QOQ.—Don Bastian v. Lei/oe Tamby. A notice of motion for judgment by default is insufficient, when it does not specify the nature of the default. [No. 10932, D. C. Negombo. Joint action for slander against several per- sonsnot maintainable for same vords. J^ov. 14, (C.) 907. — J asunder e v. Mudelihamy. A joint action cannot be maintained against several persons for speaking the same words, because the words of one cannot be the words of the other. Arch. Civ. Plead, p. 68. On a motion for judgment by default in any action brought for excessive damages, the Court ought also to follow the 4th rule of the general Rules and Orders of the I7th June 1844. [No. 6137, D, 0. Batnapoora. Petition of appeal must be in English, 908 — Bajepakse v, BajepaTcse. In this case the appeal petition was rejected, it not appearing on the face of it to have been drawn ann signed by a Proctor for appellant pursuant to the Rule requiring the same. " The Supreme Court requires all pleadings before it to be in English, and as it is a mate- rial part of the Petition of Appeal that it should appear to have been drawn and signed by a Proctor, the Court will not resort to an interpretation of any Singhalese writing there- on, to know if its rule has been duly complied 411 1845 with in this respect. The presumption also ia if a Proctor cannot even sign bis name and. des- cription as Proctor for appellant, in English characters, he cannot have drawn the petition filed in English, but that it is a translated copy by another person, to the correctness of which the native Proctor cannot certify from his ap- parent ignorance of the English language. If the Proctor signs in English it implies that he can read it, and that he has read and adopted the petition, but. there are no grounds to infer bhe same from his signing in Singhalese cha- racters, any more than there would be from his signing only with a mark. CapjpeVs Case, 1 M. and E. 395. " In some of the I)istrict Courts native Proc- tors having been admitted under the old system, have been continued and allowed to file plead- ings attested by themselves in Singhalese or Malabar chai-acters, provided the same were signed by the parties themselves whose signa- tures are also sufficient, as such pleadings are not required to be drawn and signed by a Proctor, like Petitions of appeal ; but when- ever any native Proctor files any pleading, written motion, or other document on behalf of his client, which is signed only by himself as Proctor, in Singhalese orMalabar characters, the District Court ought always to reject the same, unless the Proctor can satisfy the Dis- trict Court that he can read, and knows the contents of, such papers. The District Court will allow the appellant to file a proper peti- tion (if he be desirous to do so) notwithstand- ing the lapse of time ; and the Proctor signing this Petition is disallowed his costs thereof." [No. 49, D. C; Ratnapoora. A Proctor signing iu English must be presumed able to read English. Nov. 18, (C.) 9Q9,—Falujpa v. Fernando. The Supreme . Court will not receive a Peti- tion of appeal as duly drawn and signed by a Proctor, in conformity with the rule requiring 1845 Tbe several Bales of Court form parts of a whole system and must be readtogether. Where con- tract of ten- ancy is prov- able evi- dence of title not Tec[uired. Petition of Appeal : ir- regularity. , 412 the same, unless the Proctor subscribe his name and description in Eaglish. If the Proctor is unable to do so, and sign in Singhalese or Ma- labar characters, it is prima facio evidence that he has not drawn the petition, and cannot cer- tify to the correctness of it as a translated copy, [No. 5157, D, C. Ratnajpoora. 910. — Zoyza v. Tabrew. The Supreme Court does not think that the latter part of the 38th clause of sect. 1 of the Rules and Orders cannot apply to any of the subsequent Rules of the 2nd July 1842. The subsequent Rules are engrafted upon the others and form part of a whole system, to beconstrued together ; just as several acts of Parliament upon the same subject are to be taken togthere as forming one system, and as interpreting and enforcing each other. 3, Harrison's Digest, tit. Statute 1—6.' [No, 33558, D. G.Colombo. 911. — IHeris V. Jlopman. Where an actual contract of tenancy can be proved, no proof of title is requisite, it being an established rule that a tenant cannot dispute his Landlord's Title. Cook v. Loxley, 5 /. R. 5. Hudson v. Sharpe, 10 East, 352. [No. 40286, D, C. Colombo. Decemher 5, (C.) 912. — Saihoe Marikar t. Mir a Lebhe. "Where a Petition of Appeal vpas not taken dovrn by the Secretary of the District Court " from the mouth of the party," in the manner prescribed by the 2nd clause of the general Rules of the I2th December 1843, the Supreme Court rejected the Appeal for irregularity. [No. 12411, D. C. Chilaw andPvMam. Bee. 16, (0. C. S.) 913. — Tambapulle v. Sanawiere. Opposition was made to Provisional Judg- ment being granted in this case, on the follow- ing grounds : — 418 1815 1. TLat tbe Libel and Summons were not so framed, as to entitle the plaintiff to Fro- visionnl Judgment. 2. Tiiat the account rendered and signed by the defendant was not a liquid instrument — figures were erased and others substituted : iu which case provision ought not to have been granted. Wassemar, Jud. Fract, p. 129, Sande, Book 1. tit. 8. defin 3. Mascardus, Concl. 1261 3. That the document was an obligation, and could not have been received in evidence, not being duly .stamped ; and that if no obliga- tion provision could not be granted on it. 4. That the large item in the account (as asserted in the affidavit of a third party) which made up the whole balance against the defendant, had been settled by another adjustment or agreement, and should not have figured in the account at all. Judgment. 1. The Libel states in substance that the action arises upon promises of the de- fendant unperformed, and narrates that the defendant on a certain day accounted with the plaintiff' for moneys then due by him to the plaintiff ; that a balance of £259. 12. was found due, which the defendant promised to pay on request ; that the defendant has not paid though requested ; and prays condemnation in the sum. The Libel than calls on the defen- dant to confess or deny his signature " to the account hereunto annexed, marked Lr. A, and to show cause why he should not be condemned -provisionally to pay to the plaintiff the said Bum of =8259. 12. with legal interest thereon from the institution of this suit until payment in full." The Summons requires the defendant to appear and answer to the claim of the plain- tiff for the sum of £259. 12. due upon an account dated 10th August 1842. The answer makes no objection to the Libel as being in- formal, or as not stating the cause of action with sufficient precision ; nor does it object that the Summons is at variance with the Libel as regards the cause of action ; but 1845 414 Conrts may reject sur- plusage in a •Libel. pleads that the first item in the account due by the defendant was included in another account, made by the plaintiff, defendant, and othei parties, their partners, and which he, the defen- dant, has settled, and that it was by mistake included in the account between the plaintiff and the defendant. The plaintiff in his Eepli- cntion denies the Auswer, The defendant admits his handwriting, and puts in an affidavit of a third party supporting his Answer. The Kule of Court which relates to the form of Libels, simply requires that the Libel shall state the cause of action or complaint, as shortly as the nature of the case will admit, and the relief or remedy which the plaintiff seeks. Certainly the plaintiff has not strictly complied with the rule. He has not contented himself with stat« ing that the defendant was indebted to him, accounted with him, and admitted a balance, and prayed that he, the defendant, might be condemned to pay the same j but has unneces- sarily stated that the defendant promised to pay the balance, and has staled such promise to be his cause of action. At the same time the de- fendant may have made such promise, and snob promise is, if proved, only additional evidence of the defendant's liability upon a prior obli- gation. The Court will not turn a plaintiff found because his pleader uses words in the commencement of his Libel which have a tech- nical meaning in English pleading, but which convey no precise meaning to any person un> acquainted with that mode of pleading. The Court will reject as surplusage all that is said in the Libel which has an aspect towards the English action of assumpsit, and let the Libel stand upon the liability of the defendant to pay that which was found and admitted to be due fjom him on an account taken. And iu this view of the case no objection can be made to the Summons which agrees with the essential part of the Libel. The Court comes to this conclusion more readily, as the Answer shows that the confusion in the Libel has wrought 415 1815 no injury to the defendant in any way. As to tbat part of the Libel which prays for, Provisional condemnatioD, the Court is of opinion tbat the " said sum of £259. 12s." must be taken to relate to that very sum Bljen- tioned in the former part of the Libel which upon taking the account was found to be due from the defendant to tlie plaintiff, and that the account Lr, A. is to be one and the same ac- counting, as the defendant does not deny in his Answer that it is so. The Court, therefore, holds that the first objection is not valid, 2. The Court on comparing all the autho- rities which treat of this point, comes to the conclusion that a vitium or defect, whether blot, tearing of the paper, erasure, interlinea- tion or the like, must be of considerable conse- quence, and impress the mind of the Judge with a suspicion with reference to the impor- tant parts of the document. In the account in question there are two erasures, neither of which occur in the debit side of the account embra- cing the items which express the causes of the debit; nor in the credit side of the account con- taining the items of discharge, but a palpable error calculi had been made in the summing up of the credit side, aud which necessarily occa- sioned a corresponding error in the balance. These two errors were corrected, the figures, which correct addition and subtraction re- quired, being written over the erroneous ones. Is this a defect of great consequence ? Does it impress5 t^» ™i°^ °^ ^^^ Judge that the De- fendant is called upon to pay anything more than he admitted to be due ? Does it lay the plaintiff under any imputation of fraud ? Will it subserve the ends of Equity (on which the whole system ot Provisional Judgment is based) to turn the plaintiff round lor miscomputatiou which can injure no one ? The Court thinks not, and that the error is notmaterial. The Court is further of opinion Ijhat the document contains the causk debiti, as expressed in every item of tbe debit side of the account. It may be Vitium or de- fect in a document must be great and induce suspicion. Whole sys- tem of Provi sional Judg- ments is based on Equity, 1845 416 Provision may be grant- ed on any instrument signed by the debtor. further said that the writing is not in the form and terms commonly employed in an oliliga- tory instrument, and may therefore have been made as a memorandum for private use only, but, as it is produced by the creditor therein, it must be presumed to have been intended to have been delivered ; and moreover, by the An- swer it is admitted to be an account stated be- tween the plaintiff and the defendant. 3. The Court is of opinion that the docu- ment in question cannot be called an obligation, it is an admission of what is due by the debtor at a certain date, upon a former obligation or obligations existing between himself and his creditor. The items in the accounts show a diversity of obligations : some miiy have been written contracts, others verbal agreements. But a mutual obligation lay on both parties to perform these obligations, totally independent of this documenf, which was not meant to ab- rogate them, and come in their place ; but is merely an admission by the defendant that, at the date, the parties - stood in such a position as to debit and credit upon their respective ob- ligations. There is no word in the Stamp Act requiring a stamp on an account stated, uor on any document similar to the present.* This ac- count therefore does not require a stamp, and so is admissible evidence. But it is said a pro- visional claim can only be founded on an obli- gation, or on a Merchant's accounts. The text books hold no such doctrine, unless where, some- times, the word 'obligation' is soFelyjused as being the class on which provisions are most usually granted ; but it is clear that any other instru- ment signed by the debtor is sufficient. The appendix to the Law Dictionary expressly uses the words — " an acknowledgment of the party." A receipt signed by the creditor is sufficient to prevent provision. A receipt is an admission of money paid. Surely an admission of money due should fall under the same rule. * Nor is there in the present Stamp Ordinance, (No. 11 of 1861.) Ed. 417 1845 4. The writers on the Roman Dutch-Law are much divided on the admissibility of such evidence, and amongst those against it is Voet. The weight of authorities seem nearly equally balanced. Perhaps the sounder principle is to permit no other species of evidence in opposi- tion to a Provisional Judgment, which is not allowed in support of it ; and, if we consider the facility with which afiSdavits can be procu- red in this Island, in support of any falsehood however gross, expediency demands the rejec- tion of parol testimony; and the Court, feeling itself at liberty under the authorities to reject a£B.davits altogether, will do so at least when not more conclusive, and supported by stronger concurrent circumstances which carry a con- victon of their truth to the mind, than occurs in the present instance. [No. 36701, D. C. Colombo, 184.5 418 Where a Bond was granted to A. who ad- mitted at the trial that the money was due to him and his part- ners, held that he alone could sue. 914— Dec. 18, (O. C, S.) Motosamy Chetty and anotliev, attorneys of Peria Carpen. V. Mohamedo Lebbe. The plaiutiffa ia this case brought their action as attorneys oi Peria, Carpen Chetty, to recover the balance unpaid ou a Bond granted by the defendant to Feria Carpen Chetty, The defendant pleaded the general issue. On the examinatiou oi Peria Carpen Chetty (allowed hy the rule of Court) he admitted that he was a partner with two others, and that the money due on the Bond belonged to him and his other pai;tners. The defendant's counsel moved that the plaintiff be nonsuited,^- JVr«<, because the plaintiff's had only a Power of Attorney faom Peria Carpen Chetty, and not also from the other partners. Secondly because the action should have been brought by Peria Carpen Oe% jointly with his two partners. The Dis- trict Court refused to nonsuit the plaintiff?, and after hearing the case on its merits gave judgment for plaintiff. The defendant appealed on the grounds abovementioued, aud the Su- preme Court affirmed the judgment, subject to the opinion of the Court sitting ia general Sessions, whether the action were rightly laid. Voet, lib. 17, tit. 2, sect. 16, and herewith agrees the Law of England. 4 B.and C. 664. 10 B. and C. 2o and 4 B. and A. 437, in which case the Court said, " the action may be maintained either in the name of ihe person with whom the , contract was actually made, or in the name of the parties really interested. Judgment Affirmed, [No. 12496, D. C. Chilaio. 915. — Meera Pulle v. Odomen Pulle, The question in this case was whether the old writing tendered in evidence must be stamped, as coming under description of instruments specified in the 2nd cl, of the 2nd section of the Ordinance No. 6, of 1836, or whether it sdoe 419 1845 net; require a stamp aa being included in the e-iemptions in table C. under the 5th cl. of the 2nd section. " The Ordinance is closely taken from the English Stamp Act. 55 Geo. iii. cb. 184, and the technical terms used in that act, and proper to the English Law, are used. The Court must, therefore, anderstand and construe these terms as they are understood and constru* edin England. And the Courtis of opinion tbat the deed would be held by the English Law, not as purporting to transfer or make over the property therein referred to, aa it wants the technical words of transfer, and would be deemed to be a contract or agreement ; and, as in this case, being for the sale of cattle, would by the same law fall under the first exemption in table G. It is therefore decreed tbat the Judgment of the Court below be set aside, and that the ola ba admitted in evidence." [No. 9855, C. E. Bat- ticaloa. Dee. 23, (C.) 916. — Abeyewardene v. Madoma. Where plaintiffs bond gives him a mortgage of a share of a field in lieu of interest, and the plaintiff has, accordingly, thereunder possessed sach share ever since, held, that the bond is not prescribed, and the plaintiff may, notwithstand- iog the lapse of time, recover thereon in a suit in the District Court, if he be advised to insti- tute the same. [No, 526, C B. Qalle. (See Morgan's Digest, p. 2, and Beling's Digest, p. 281, and Appendix C.) Bee. 24, (O. C. S.) 917 — Mwlkadoowawe v. Banff Ettena. In this case A. claimed a chena land situate within the Kandyau Provinces from B. The District Court non-suited the plaintiff who ad- mitted tbat he neither held Saunas, nor grant of any kind, and that no taxes or services had been paid or rendered for the same, conceiving that he was bound so to do under the 6th cl. of the Ord. No. 12 of 184iO. Where an Or- dinance is mo- delled after an English Act, the Court must construe the terms as they are con- trued in Eng- land. Contract of AnUchraejs. Mortgagee may recover notwith- standing plea of prascrip- ' tion. 1845 420 In Ord : 12 of 1840. the words " Pri. Tate party- claiming against the Crown" refer ?nly to suits in which the Crown is a party. C. J. The Court is of opinion that the words in that clause " All chenas &c. in the Kan- dyan Provinces shall be deemed to belong to the Crown, and not to be the property of any private person claiming the same against t%e Crowni" refer only to suits in which the Crown is a party j and such not being the case in the present action, the judgment must be set aside, and the case remanded to the District Court to be proceeded with. " The Chief Justice doubting however, because, although the above reading is the most plain and obvious meaning of the words in question, still they will bear another more in accordance with the other parts of the 6th clause, viz : that " claiming the same against the Crown" need not be confined to suits in which the Crown is a party, inasmuch as all lands in the Kandyan Provinces belonged to the King, unless a grant or services were pro- ved , and, therefore, in all cases there must be virtual claim against the Crown, the original proprietor of all lands. And because, if the words are not taken in this last acceptation, chena land in the Maritime Provinces are ge- nerally in all suits, at all times, in all places, to be presumed the property of the Crown, and, in the Kandyan Provinces, are to be deemed to belong to the Crown only in a suit between the Crown and a private party which it can hardly be supposed was intended by the Legislature ; and further in referenceto the 11th section, it might happen that, a chena land in the Kandyan Provinces, might,, in a suit between two private parties, be decided upon a ten years prescriptive title to belong" to one of them, "and a Headman present in Court, and who heard evidence of an encroachment, would be liable to a fine, if ho did not inform the Government Agent of such encroachment. In all probability the words " and not to be the property of any private per- son claiming the same against the Crown" have crept into the Oidiaauceper incuriam. If we 421 1845. reject tbem tie whole of the parts of the 6th etauss are brought into accordance with each other. .The judgment of the Court below was set aside, and the case remanded to the District Court to be duly proceeded with. [No, 10277, D. C. Kornegalle. February 4, 1846, (S,) Q\S—Wedda v. Balea, The local law applicable to this cgse is con- tained in the following words of Mr. Sawer in his Kanflyau Laws. p. 26. " A regular adoption must be publicly decla- red and acknowledged, and it must have been declared and generally understood that such child was to be an heir of the adopting parent's estate. " The adopted child must be of the same caste as the adopting parent, otherwise the adopted child carinot inherit the hereditary property of the parent. " A child being reared in a family, even if a near relative, is not, to be construed into a regular adoption, without its having been openly avowed and clearly understood that the child was adopted on purpose to inherit the property. [No. 3569, D. C. Hatnapoora. (See ante 14th January 1843.) 18 '6. Kandyan Law of Adoption. Adopting pa- rent and adopted child must be of the same caste. Adoption must be openly avow- ed. July 6, (0. S. T.) The Hon'ble Wiliiam Ogle Cabb wes sworn in as Acting Chief Justice. The Hon'ble James Stake was sworn in as Acting Senior Pmsne Justice. The Hon'ble Chbistophee Temple was sworn in as Acting Junior Puisne Justice. August, 14, (S.). 919. — Ccmdappa v. Vanderstraaten.. The Supreme Court was of opinion in this pj-octors must case that there wdS, on the part of the defend- bestow pro pei- 1846 care and deli- gence in their elients' busi- aees. Lotteries illegal if pro- nibited. Notice of en» try of a case in Trial Boll must be given to the oppo' site party. A Deed pro- perly stamp- 422 ant, a culpable want of care and diligence in hscertalQiug the real facts of the case, in which be was employed by the plaintiff, and in pre* paring the evidence, pleadings, and appeal, "It is of the greatest consequence to ths character of the profession, the safety of the parties, and the due administration of justice to require of and from all Proctors, proper care in the business entrusted to them by their clients, and more especially in cases where the clients are ignorant and illiterate ; and to afferd full redress to injured parties, where any Proc- tor is deficient in requisite care. In this res- pect, however, this is the first case of the kind here, and the damages are modified." [fTo. 34826, D. C. Colombo. Aug. 15, (S.) 920.— Dow Philip v. Silva. Where money was paid in a lottery transac- tion, held, that lotteries and gaming in gene- ral, not being against morals or the public peace, are not mala in se, but illegal only if prohibited ; and that, as no such prohibitions existed at the time,* the money is recoverable at Law. [No. 40609, D. C. Colombo. 921.— Don Jtian v. Fernando. Notice of the entry of a case in the trial-roll must be given to the opposite party, as re- quired by the General Bules and Orders of 8th July 1842. [No. 29419, D. C. Colombo. Aug. 19, (S.; Q22.'— Thompson v. Staples. If a deed or instrument subject to stamp duty bears the proper stamp, it is admissible * But see Ordinance No. 8 of 1844 {War the Swppres- of Lotteries) where lotteries are declared to be " com- mon nuisances and against law" " Cheetoo" playing, has been declared as coming under this Ordinance- See No. 18859 (C. R. Colombo Judgment per C H. de B»ia,m] Affirmed. (Sea Appendix) Bo, 1846 notwithatandiug its not having been stamped at the time of execution, nor Jodged within three days with the GoTernment Agent, in order to its being stamped ; there being, aa the Court thought, no prohibition, either direct or by con- struction, excluding deeds or iastruments on these grounds. [No. 41469, D. C. Colombo. Nov. 3, (S.) 923. — Mohanderameley Funehy v. Demiawa 'H.amy, The rule 'pendente lite nihil innovefur has not the effect of rendering deeds executed void, but only of retaining the rights of parties in the same situation as they previously were. [No. 4390, D. C. Batmpoora. ed admissible altho' it was not stamped at the time of the execu- tion. Interpreta- tion of Rule, pendente lite nihilinnovetur. March 20th (C.) 924. — Bama Ay a v. Rama Pulle. Affirmed :—" The Froctor signing the ap- peal is disallowed his costs thereof, as thi^ Court considers it vexatious, as it states no ground for appeal, excepting the illness of the Proctor, and the defendant's witnesses not having been heard; but the defendant's advocate was present, and ought to have examined the witnesses or shewn cause to the satisfaction of the District Court for a postmonement, and for which he was allowed two consecutive days." [No. 95, D. C. Colombo (see Murray, p. 77.) 925. — Canapady Ayer v. Seyedoo Oemma and others, , Action on a Bond dated 30th March 1846 granted to plaintifi by husband, (since deceased,) of the 1st defendani, payable on the 30th Sep" tember 1846, with interest. Obligor died on the 7th April ; averment that 1st defendant took possession of all his property, and thus rendered herself liable for bis debts. Action instituted 27th June 1846. Demurrer by third 1847 Vexations Appeal. Proctor dis- allowed his 1. Action not maintain- able against widow of de- ceased ob- ligor, until the period for payment, _ stipulated in 1847 42^ the Bond has expired. 2. A cauti- onary obliga- tion is not binding un- less it be in writing and signed by the obligor, or by a person au- thorized by him. {Ord. 7. of 1840 cl. 21.; ?uits by native Tra- ders : most clear and un- eSoeptionable evidence re- quisite, in proof of p&.rol admissibns and promises to pay. defendant, on the ground, (inter alia) that Bond was put in suit before it was due, D. J. held demurrer good, arid on the 11th Sept. 1846, nonsuited the plaintiff. March 20, 1847.— In appEAt, (per Carr A. C. J.) " affirmed with costs— the action hav- ing been Brought before the money was repay- able under the Bond ; the defendants could not under the Ordinance 7, of 1840, cl. 12. be charged for the debt default or miscarriage of another, except by some promise or agreement in writing signed by them, or by some person thereto lawfully authorized by them, which is not averred." [No. 2298 D- C. Colombo (See Murirai/s Beports p, 78.) 926.- Gar does v. Annccvy. " The Supreme Court has always held, in suits.by native traders, wbere they have omitted to take recefpts on delivery ofth'e godds, or to require their debtors to sign the balance of the accouat, but rest their demand solely on proof of the debtor's parol admission and promise to pay the balance stated to be due, that the most clear and unexceptionable evidence thereof must be adduced, or otherwise this Court will non- suit the plaintiff. [No. 10618, D. C. Colombo. (See Murray's Beports, p. 79.) Murcli 23, (0.) 927. — Eatnapalle V. Seneioaratne. A document tendered in evidence by the documents plaint'ff ough* "o* to be rejectod, 1st, because it tendered in was not referred to' in the pleadings, — the rule iBvidenoe. requiring all documents, referred to in the pleadings, or copies thereof, to be filed there- with, not extehdmg to or excluding it; 2ndly be- cause the document being deposited in a public registry, it might be safely received without any suspicion attaching to itfrcJiu improper custody or detention. [No. 189 1'8, D, C. Kmdy. •425 1847 928. — Collier v. Teagappa Chetty. [See appendix for full report— (No. 38134, D. C. Colombo.) 1 929. — Zivera (widow) v. Pieris. [See appendix for full report— (No. 11176 D* C. Negombo.) ] ■ March 25. (6.) 930. — Fernmfido. v. Fonseha. Where defendants, father and sod, entered into a joint contract, and the first defendant put in an answer in the name of both, though signed only by himself, and on this apparently joint, but defective, answer, issue was joined, and the case proceeded to trial, the Supreme Court re- manded the case back for the second defendant to enter appearance, and for an amended answer to be put in by the defendants, with their lisis of witnesses, and for the Court to decide the case de novo. " The Plaintiff is in error [in joining issue] but his mistake has been pcca- sioned by the wrong act, of the opposite party, and costs are therefore divided. [No. 38,170, D. C. Colombo, (See Murray's Rep. p. 81.) 931. — Fernando v, ^FaZ^er (Deputy Fisca ])and another. Action to recover from defendants the value of certain timber alleged to have been property of plaintiff, which was sold by defendants undep a writ of execution against a third party. The defendants were the Deputy Fiscal of the Dis- trict and a subordinate officer who conducted the sale. Averment, that plaintiff claimed timber, opposed the sale, and offered " sufficient securities," but defendants sold the timber notwithstanding Defendants, traversing aver- ments, pleaded that they seized the timber on its beinff pointed out as the property of the execution debtor. At the trial the plaintiff admitted that the seizure was made on the timber being poin- One party, a, defendant, cannot file pleadings signed only by himself, for his co-de- fendant, and himself. (1.) A. iy Fiscal, not being the im- mediate wrong-doer, is not respon- sible for the acts of his subordinate Fiscal OfScer. (2.)AFiscal's OfSoer seizing property in execution though point- ed out by the creditor. 1847. 426 may yet be liable in da- mages for malice, irre- gularity of proceeding, or abuse of authority. (Ord No. 1, of 1839, CI. 12.) ted out as tlie property of the exeeutioa debtor, la the Court below the actioa was dismis>. C. Kandif. (See S awer's Digest p. 38.) English Law of Cha/mperty . Where an action is founded on an instrument which is bad in law, the S. C will not interfere, if the deft, who loses on the instrument, does not raise any objection to it in the Court below, or in appeal. Ganglat pro- prietor. Mv. 24, (T.) &40. — Wattoohamy v. Dinqyhamy. In law the instrument upon wbich the plain, tiff founds bis action is illegal, and tbe consi- deration of it is what the EaglisU Law calls cliamperty, i, e. a bargain between the plaintiff and the defendant to divide the land sued for between them if they prevail at Law. Whereupon the Champertor (or the plaintiff in this case) is to supply funds to carry on the other party's suit. If t;he defendant had, in this case, raised an objection to the transaction, or liad appealed against the decision of the District Court, this Court would have declared the whole transaction illegal. But as it is, the plaintiff appeals against the judgment of the District Court as incorrect on account of its being con- ditional and not decisive, and the defendant has not appealed against the decision at all, nor has any question been raised against tbe validity of the transaction. Under these circumstances, and considering that from anything which ap- pears to the contrary the plaintiff bond fide lent the money, without having any improper or op- pressive object in view, the Supreme Court does not feel justified in setting; the whole transaction aside. The plaintiff, however, cannot be per- mitted to recover the land, but only the money which he lent to the defendant, with legal inter- est,— [Xo. 4939, D. C. Batnapoora. Nov. 30, (T.) 941 — Kiree Baba v. Meniha. A Ganglat proprietor * can change his te- nants, but he can only do so in case of disobe- * X am indebted to Mr. James Oorloff of Eatnapoora, Proctor of the Supreme Court, for the following Note : — " During the Kandyan Government the word " Ganglat (Gang, lands, and lat, acquii-ed) denoted a " proprietor of lands under a Grant from the Crown, 431 1847 dienee, i. e., non-performance of services. TNo 5244, D. C. Batnapoora. {Dec. 1, (C.) M2—CattamoUoe v. Wederamian . The following form was used by the Supreme Court in a case where, in its judgment, the date of the decree of the Court below was wrongly described : — "Whereas by the judgment given by this Court in the above case at Baiticaloa en the 10th day of August 1846, the decree of the District Court of Batticaloa of the 9th day of June 1845 was set aside, but the date of the decree of the Court below was, by a clerical error, described in the said judgment as being of d|ite the 9th day of June 1846; It is ordered that the said error be corrected, and that this order be transmitted to the said District Court, together with the said judgment so corrected." [No. 4994, D. C. JBatticaloa. Form of order correcting an error in Judg- ment of the Supreme Court. Dec. 8, (J.) 943 — Bilindi v, Arooma. This was an action brought to recover land, ^®™ertahi°° and also some personal property, and the de- grounds, over " but now, (i. e. since the British Grovernment) it " also includes holders of lands by right of inheritance " or purchase, or rather Estates such as Nindegammes " &c., to which are attached Pangoos, held by tenants, " under tenures of service to the lord of the soil. The " case No. 5244 Babnapoora, was for some lands form- " ing the ' TJleakareya Pangoo,' which the owner of " the ' Nindegamme' gave over to the Plaintiff in the " case, to be held by him under tenure of service. " A tenant, if jhe persists in his refusal to perform " service after a judgment has been obtained against " him for neglect of duty, can be ejected, but only " by due course of Law. There are several rulings of " the tupreme Court on this point. The case No. ,'■ 8207, O. C. Batnapoora, now in appeal, will help to ''give some idea of the right of a ' Nindegamme' " Proprietor." Ed, 1847 432 ruled by Court below, held good in ap- ^peal. Party must recover on. sfcrength of his own title, lu the ab- sence of any ambiguity in its terms, a deed found valid must speak for itself. By the Kamdyan Law, under which no community of goods exists, a'Judgment against the husband, in a suit where the wife's title was not ia issue, will not bar the wife's right fendaut demurred to the Libel on tbe follow- ing grounds : — 1. That tbe date of the defendant's entry was not stated. 2. That land and personal property cannot be recovered in the same action. 3. That the Libel should more distinctly set forth tbe iujury complained of. The District Court over-ruled the demurrer. The Supreme Court held tbe demurrer good, and tbe judgment of tbe D. C. was set aside, and plaintiff nonsuited with costs. [No. 11284, D. C. Kornegalle. 944 — .Lohoo Banda v. Mai Samy. Where in an action of ejectment the plaintiffs obtained judgment on the ground that they had in evidence made out a primd facie title ; Seld that tbis was not enough. A plaintiff must recover upon the strength of his own title. [No. 5388, D. C. Batnapoora. 945 — .Manikhamy v. Kirry Ettena. A deed, having been found valid, must speak for itself, and the Court cannot consider what it was the parties intended to be the probable effect of it, in the absence of any ambiguity in tbe terms of it. [No. 4779, D. C. Batnapoora. Dee. 14, (J.) 946. — Kirry Ettena v. Heteregedere Appoo, In a former case, No. 69, the defendant's father sued tbe husband of tbe present, plaintiff, during coverture, for the lands which are the subject of the present action. In that suit the plaintiff^s husband, {Selappoo') in his defence, set up a claim to tbe lands in bis own right, and independent of bis wife tbe present plaintiff. Selappoo failed in his defence, and the lands were decreed to the plaintiff in that case. In the present action tbe plaintiff rested her claim entirely in her own right, and independent of her husband. The defendant pleaded the former 433 1S47 judgment in case No. 69, witli other grounds of defence. After repeated judgments both in the Appellate Court, and in the Court below, the District Court found that the plaintiff had es- tablished a title by prescription ; but that the former judgment was binding against the pre- sent plaintiff on the ground that, as she might have been a party to that suit, the £ecord was consequently in evidence against her, and in support of this position quoted 1 SfarMe, 260. The Supreme Court thought thot this was true as regards the lessor of a plaintiff in an action of ejectment, in which the defendant obtained judgment. 2 Bac. Ah. 616. Such judgment may at any time be given in evidence against the lessor, for the possession of his lessee is his own possession, and his own title has been in issue. But not so in this case- By the Kandyan Law there is no permanent community of goods between husband and wife, and their respective estates remain dis- tinct from each other. The husband in the former suit claimed the land as his own, independent of his wife, and the title of the wife was in no way put in issue. The Su- preme Court, therefore, considered that plain- tiff was not bound by the judgment against her husband, and that she could maintain this action ; and the Court agreed with the Court below that plaintiff proved a prescriptive title. The Judgment of the District Court was set aside and the plaintiff was decreed entitled to the lands. [No. 2690 P. C. Kandi/. 19472 May 30, (C.) 94i1.—Paitooma NatcUa v. Menaehy. Where the plaintiff claims his own share only, and although he demands in hisllibel more than he appears to be entitled to, he must recover upon it " aeeordmg to his title-" His being, there- fore, entitled to less than claimed in the Li- bel does not render it necessary for him to to bring an action for the same laud, 1848. Where a party claims more than he is entitled to, he will get judgment only 'accord- 18-18 434 ing to his ti- atneud the latter, nor form any ground for non- tie.' suit, although it may subject him in gross in- stancea to pay costs. In Denn d. Surges \. Purvis, 1 Burr. 326, Loed Mansmeld said, — " This is an exceedingly plain case, The rule " is undoubtedly right that the plaintiff must " recover according to his title. Here, she has " demanded half, sad she appears entitled to a " third, and so much she ought to recover." And this is so whether the action be brought for an undivided, or a several and divided portion ; for the whole or a part. la Ahbett v. Skinner, 1 Siderf. 229, where the declaration was for one fourth part ot a fifth part, and the true title was only to one-third of one-fourth of a fifth- part, (which was only a third part of what was demanded), yet it was resolved that the verdict should he taken according to the title: and so if a plaintiff demands in his libel 40 acres, he may recover 20 if entitled to no more 36,718, D, C. Colomio. [No, Notary, or at- testing wit- ness, must be called toprove a Deed. Death of No- tary or ill- ness, of at- testing wit- ness. does not dispense with legal proof. The Plaintiff ought to be called upon to state that he has closed his case, and tho Judge 948. — Don David v. Ederemanesingem The illness of an attesiing witness, although he lies without hope of recovery, is not a suf- ficient ground for letting in evidence of his handwriting. Harrison v. Blades, 3 Camp. 457. Even if the Notary had been dead, it would not have been sufficient to prove his handwriting, but one of the two attesting wit- ness ought to have been called. Guntiffe v. Befton, 2 East 183. McGrew v. Gentry, 3 Camp. 232.— [No. 32,837 D. 0. Colombo. 949. — Silva and others v. Alwis and others. The decree of the District Court was revers- ed, and the case remauded'back for hearing, and Judgment de novo.. Per Caer C. J. The Court is ihe more in- clined to grant this indulgence, from its former order* having been partially misunderstood ; as * See Murray's Rc^orU p, 32, Ed. 435 1848 it certainly held therein that the Plaintiffs must be taken to have closed their ease from their con- duct, tliough the more usual and the preferable course is to call upou the Plaintiff to state that he has closed his case, and for the Judge to make a minute of tUe Plain dff having done so, in his notes of the trial, The Court also in the above order strictly confined its opinion to the points of practice, and v»as not called on, in any way, to express its view of the merits of the plaintiffs' case as it then stood, and certainly did not do so ; but being now called upon to state its opinion on the same, it must observe, that if the plaintiffs' case rested at present solely on their being admitted to be the heirs of the two daughters of Miguel Bias, the original proprietor, w'ho died some time ago and does not appear on the pleadings to be the last person seised, the Court would now re?- quire the plaintiffs to adduce further evidence of title before it ejected the defendants; but as the defendants admit that MiguelDias was entitled to one fourth of the garden in dispute, and they claim the whole of that as having been possessed and inherited from him by their father Dinea Bias, and add that his " sisters" (to whom the plaintiffs are the admitted heirs) " Tiad their ^rtionsfrom other lands, and so we have always possessed," the onus is clearly thrown on the defendants to commence with their evidence, and prove the division or adverse possession by which their father thus acquired a right to his sister's share in their paternal property. Nothing is more common in this country than for the eldest son of a Native family to continue in the posses- sion of the paternal estate, allowing his brothers and sisters their shares as required ; and if he or bis children set up an exclusive right against the brother's or sister's claim by inheritance to such estate, by virtue of an alleged division or partition between them or an adverse possession, giving a title by prescription, he or those claim- ing under him, ought clearly to be called upon to proTe the same in the first instance ; and any ought to make inliis notes o£ the Trial,a minute of the Plaintiff hav- ing done so. Claim under a common an- cestor . Division or adverse pos- session ; burthen of proof. 1848 438 Action to try disputed ten- nurte of lands held by Nille- ftorios. Eject- ment. Long posses- sion as mort- gagee is not adAierse pos- session. Other course would in tbe opinion of this Court be fraught with the most dangerous consequences to existing rights of the Natives in their family estates. [No. 2098, B. 0. Colombo* June 2adj (C.) 950. — Jasundere Korale v. Dominguwd and another. In this ease the decree of the Court below wjis affirmed as to the damages awarded and costs of suit, but modified by so much of it as ejects the defendant, being set aside, reserving to the plain- tiff his right to eject the defendant in anotlier action, Upon any ftesh default by defendant to perform the due servibes. Per Carr C. J. — Iii these stiits to try .the disputed tenure of lands held by Nillekarias, this Court has usually been very indulgent in not ejecting in the first instnnce. — [Ao. 5367, B. 0. Bafnapoora, A]so No. 5368 J). C. Batnapoora. * 951. — Baleiatiejodde v. Gamea. Where the plaiutiiF claimed under a Deed from the defendant's father, which the defendant denied, but admitted the plaintiff's long possession only as mortgagee j held that this can give him no claim to prescriptive titlei I'he plaintitf must prove his Deed, or long ad- verse possession against the defendant as heir.— [No. 5534, D. C Baina^oora. (See Appendix C.) Circumstan- ces under which a Proc- tor is not Ijound to draw and sign a Pe- tition of Ap- peal. 952. — Appoo Naiie AUdoo Lehbe "The proceedings are remanded back to require a fresh Petition of Appeal to be filed at th6 Proctor's cost. The Supreme Cou'.t cannot re- ceive any qualified signature of a l^roclor to the contents of a Petition of Appeal iu the form adopted in this instance, " Drawn by me on the * The facts of tliis case are stated at greater IftDgth in Mwnrw^'s JBejporis p. 48 . Ed. 437 1848 statement of the Appellant.'' If a ProCtof consi- dei's that he cannot conscientiously, or with d-ue regard to bis professional character and respect- ability, sign a Petition of Appeal in the usual form, he should inform bis client thereof, and that he was at liberty to get his grounds of Ap- peal taken down by the Secretary.— [iV^o. 5311, JD. C. Rainapoora. 953. — Don Andris v. Punchy Menika. Where a loan to a small Amount appears to have been made, under probable circamstauces, shortly before the death of the borrower, and is supported by clear parol evidence, it ought not to he viewed with the same hesitation and sus- picion as a stale demand, or a debt of a large amount might fairly be, if depending solely on parol testimony without any document in sup- port of it. ,[^0. 5424, B. C. Eatnapoora. June 15tb, (C.) 954 — X)e Wants v. Komaryhamy naA. others. Weg oddepalle Ratte Mahatmeya, Intervient. In this case the Supreme Court held that the iuterventiou after the Plaintiff liad obtained Judgment against the Defendants was strictly irregular, but " as the parties have raised no objection on the pleadings, the case between the iuterveuient and Plaintiff might proceed on as an incidental suit, although in that view the intervient ougbt to have been called on in the first instance to adduce his evidence." [A'o. 4250 I). C. Kandy. I9l65 Aloan shortly before the death of the borrower. Ta- rol evidence. An interven- tion after judgment is irregular. Incidental suit. August IGth, (S.) ^55— Sahanda and sxuotheT, \,Ellendawa afld others. The Plaintiffs having been present on the The Defend- 'day appointed for the hearing of this cause, ants cannot 1848. be absolved on the day of hearing, when the Plaintiffs are present. there is no authority under the Eu1es of Court in support of the judgment of absolvifer entered in this case. It is only where the Plaintifi and his witnesses are absent, that such judgmeni; can be given ; but in this case not only were the Plaintiffs present, but they had also duly eubpcBned their witnesses, who failed to attend, [No, 5540, D, C. Batnapoora. Septemier 25 th. [The Hon'ble James Sxaek Esquire was sworn in aa Acting Senior Puisne Justice.^ [The Hon'ble Cheistopheb Temple Ea- quire was swora in aa Acting Junior Puisne 439 1S49 18i9. —Felruari/ 2, (O.) 956,—Katide Unanse v. WaulpenHe Unanse. It is no objection to a Libel that all the docu- mentary evidence mentioned in it is not filed. The Libel Las nothing to do. with the evidence which is to support it- [No. 5316, D. C. Batnapoora. 957 — Aratohehj \. Baleappoo. " The deed being more than thirty years old does not require to be proved by the subscribing witnesses. The Couit and assessors must pro- nounce upon its authenticity in the best manner they can, but it must not be throwH aside because not proved by the witnesses to it." [No- 6709, D. C. Bafnapoora. May 26, (O.) 958. — Cimdoo SatcMa v. Sinnewen. Where through the misunderstanding of a Proctor, the defendant was not in a position to go to trial, the Supreme Court ordered the Proctor t« pay the costs of trial in the Court below, and in Appeal. [No. 67601, D? C. Colombo. September 11, (O.) 959. — Perera v. Don Philvpoo. " The plaintiff's notarial Deed, which as such is entitled to the greatest faith, is the prop of his case, bat there are circumstances connected with it, which, until explained, weaken the de- pendence to which otherwise it would be en- titled. The plaintiff's name is Perera the Notary's name is Perera, and so is that of both the witnesses. One witness appears to be dead ; but the living witness gives such an account of what took place when the deed was executed, as contrasted with what is said by the Notary, that it makes one doubt his having been there. It is desirable that these two witnesses should be examined by those well practised ia the art of eliciting the truth ; that the odd coinciden(;e Documentary evidence mentioned in Libel need not aU be filled, Deed thirty years old need not be proved. It must not be rejected be cause proof- was offered and failed. Payment of Costs by Proc- tor. Certain cir- cumstances in oonneotion with a Nota- rial Deed, which, in fhe opinion of the Supreme Court, requir- ed explana- tion. 1 849 440 of so many Pereras being in the transaction should be explained, and that the Notary's pro- tocal should be carefully examined (if it be admissible evidence,)" [No. 2849, D. C. Co- lomho. October 24, (S.) 960. — Perera v. Swaris. This was an action brought to set aside the defendant's opposition to a sale of certain pro- perty under a Writ of Execution. The defend- ant claimed the property in question by pur- chase from Andris Fernando, as administrator of David Fernando, to which latter the property was admitted by all parties to have be- longed. But the plaintiff denied Andris lernando to be such administrator, and alleged tbat the property passed on David Fernanda's death to his mother {Maria Peris, widow of Gabriel Fernando,) his sister {Isabella Fernando) and his brother {Andris Fernando^) It further appeared from the defendant's own admission, (I.), that the sale to him by Andxis Fernando was a private sale, not a sale by public auction : and (2.) that he never got possession of the premises. Judgment was given by the District Court, that the defendant be quieted in the possession of the premises, and that the plaintiff's claim be dismissed with costs. On the hearing of the Appeal for the plaintiff, the following questions arose : — 1st. Whether the plaintiff's admission in his examination, that Letters of Administratioa were taken out shortly after David Fernanda's death by his brother, {Andris Fernanda,) was sufficient legal proof of such administration . having been granted. The plaintiff contended not, relying on the cases in 4 East, 53 ; 1 Bingh. 73 ; Douffl, 216 ; but see. Eoscoe On Evid. p. p, 38 9nd 40. 2nd. Whether a private sale by an admim's- trator, as in the present case, is valid and effec- 441 1849 ual; The plaiatiff contended not, and ques- tioned the Collective decision in the case Chilaw and Putlam '^o, ^^\Q, which was fol- lowed in D. C. Colombo No. 986, July- S, 1847. 3rd. Whether any sale could be effected ia this case, without the consent of the heirs of the deceased. 4th. "Whether possession of the premises was acquired by the defendant, and if not, what ia the consequence of such want of possession ia reference to the deed of sale in his favor ; and 5th. Whether any consideration was given for the sale, and if not, what is the effect ol this in the tranaction. Cur. adv. vult. [No. 2496, D. C. Colombo. December 5, (0.) 9Q\,-—AwuJcer Lebhe v. Mamel Tamhy. If after judgment and before execution one of two or more plaintiffs dies, the survivors may take out execution in the names of all the plaintiffs ; or, if they please, may suggest the death of one of them on the record, and take out execution in the name of the survivors.. [No. 2054, D. C. Manaar. Procedure, where one of two or more Haintiffsdies after Judg- ment and before execution. Dee. 7, (0.) 962. — Mudelitamly v. Aratchille. " The grant of the land is a donatio intervivoi, to take effect de presenti, and the lauds are- thereby given for certniri purposes beneficial to the grantor, and the grantee who has entered into possession has a right of action against any person molesting him therein." — [No. 10741, D. C. Kornegalle. Grantee of Land donatio intervivos who has entered into sion may maintain an action against a ti-espftsser, February 2, 1850. CO.) 963, — Qillemalle v. Gittemulle. The witness who was rejected because he was 1850 Plaintiff in a » .,1 • i-ir • Lt c " ., • . M former suit a plaintm in the former suit is not necessarily notanincom- disqualified, and the District Court is referred petent wit- 1850 442 ness m a subsequent suit. A Counsel may state in ■ his speech matter which he may not be allowed to prove. Time to try the question, to Eoscoe On, Evid. edition 6, p. 636 ; and 6 and 7 Vict: ch. 5, a« to what interest sliall no longer disqualify. [No. 5905, D. C. Batna- poora. February 22, (O.) QGii.—Morogaser Pulle v. Collanda . The Supreme Court will not eater into the point irregularly taken by the District Cburt. A counsel may state that he will prove a mat- ter which he may ilot be allowed to prove as objectionable by being irrelevant, or incompe- tent evidence ; but the time to to try the ques- tion, is when a witness is in the box, and an irrelevant or incompetent question is put to hira.— No. 1262, D.'C. Colombo, Eights and liabilities of Vendee and Vendor. Novemher 30. (T.) 965. — -Fernando v. Silva. The issue between the parties is whether the defendants put plaintiff in possession of the lands in dispute. If a free and exclusive pos- session has not been given, the vendee lias a right to demand it, or the return of the pur- chase-money. " Tbe purchaser by force of " the contract acquires the right to demand and " receive, and the vendor incurs the obligation " of making to him the tradition or actual de- " livery of the property if it be corporeal. ' 2 Burge, 537- [No. 10823, D. C. Colombo. 966. — Balehatgodde v. Gamea. Course to be The order of the District Court was tet aside adopted if a and the case was remanded to be proceeded ^ultfdies^ with. " The District Court appears (by the pending order made on the 22nd November 1849) to action. bave recognized the heirs of the deceased plain- tiff as partits to the suit. The correct course 443 1850 •would have been foi- the District Court upon their application to have revived the suit in th eir name, and roade them parties-plaintiffs on the record. [No. 5534, D, C. Batnapoora. December 7, (T.) 9Q1.—Supermanien Chetti/, Agenb oi Satappa Chetty V. Goonamotto Sopia. The Supreme Court considers that the plains tiff in this case does sue oa his own behalf, and that the calling himself "Agent" in the head- ing of the libel is but description and surplusage ; and the Supreme Court further considers that though he has partners he may sue in his own name, 2 Williams On Hxecutors, 1470 and cases there cited ; Lloyd v. Archhowle, 2 Tauntnn, 324 ; Skinner v. Stocks, 4 B, and A. 437 ; Kell V. Namly, 10 B. and C. 21 ; Garrell v. Hundley, 4 B. and C. 666 ; CoUyer On Tart- nBrship,p. 464. [No> 9145. 1), C. Colombo. December 9, (T.) 968.— Jb^M BlacJc v- Trivett. This case was called on for trial, when the plamtifi moved for a postponement on two grounds, — 1st the absence of his Advocate; 2Mdly the absense of a material witness. This application was overruled by the District Court, The plaintiff thereupon declined going on with his case, or to permit the defendant to call his evidence, upon which the District Court non- suited the plaintiff. Judgment-I The Supreme Court declines, in this case, to interfere with the ruling of the District Court as regards the postponement, such beiog a matter in which the District Court should be left to its own discretion. The Plaintiff had no right to oppose the defence being gone irjto, if, under the circumstances, and S. C. will not interfere with the ruling of D.C.on a ques- tion of post- ponement. 1850 444 1851 Service of notice of judgment. Case remand- ed to prove damages. Aclcnowledg- ment of a loan may be read in evi- dence per se, and surplus- age in the instrument rejected. the issues taken, the onus of the proof rested with the defendant. [No. 6868, D. C. Colombo. 1851.— February 3, (O.) 969.— Wille v. Vellanm Chetty. Service of Notice to shew cause why judgment should not be entered is not proved, which ought to have been done before judgment could have been given. [No. 5895, D. C. Batnapoora. February 5, (0.) 970. — Fgoddewatte v. Kaliatawatte. The District Court has giyen damages without any proof of the amount having been given. The case is therefose remanded to give the plaintiffs an opportunity of proving their damage. [No. 6120, D, C. Matnapoora. 971. — Mahamadoe v. Nonis. The Supreme Court is of opioion that the in- strument not admitted in evidence is an acknow- ledgment of a loan, with an agreement added as to how repayment is to be made. That the ac- knowledgment of tlie loan requires no receipt or other stamp, and may be read in evidence |3er se irrespective of the remainder of the document, and whether such remainder requites a stamper not. [No. 3367, D. C. Colombo. 972 — KaloTiamy v. Kirrehamy The decree in this case was set aside as there was no proof recorded that Notice of Trial was given to plaintiff. [No. 5987, D, C. Batnapoora. August 16, (C.) 973. — Ketarihamy v. Gamea. This case vaa ajirmed aa a non-suit, '"The witnesses are very unsatisfactory to prove the plaintiffs possession under the alleged old deed of pui'chase which is filed, or any possession ad- U5 1851 verse to tbe defendant's claim as moitgagor. The facts alleged in the defence by the answer, as to the tenure of tbe lands under tbe Saffragam Dewale, and that defendants bad continued to perform the services due thereto as tom-tom- beaters, to which caste plaintiffs do not belong, and also that the land appears as the defendant's in the Commutation and Temple register, are not particularly denied in the Eeplication, but alleged to be irrelevant points, whereas they are most material and important in considering whether tbe plaintiffs have held only as mort- gagees. See Mal-sbaU's Jwf^sr^s 361,382. [No. 5534 0. C. Ratnapoora. August 19, (C.) 974. — Combe Hamy v Lekam. Gerra Ettena intervenient. Tenure of Temple Lauds. Performance of Services. The widow of a husband A^mg cliildless \\o.s the same life interest, and that only in her hus- band's landed property, whether hereditary or acquired, as the widow of a husband who bns died leaving issue. See Sawer's Digest, p. 63. Where a deceased had left near relatives, as nephews, bis childless widow has only been held entitled to such life interest, bee Armour's Digest p. 19, 21, An intervenient having joined a suit after tbe plaintiff's Eeplication to defendant's Answer bad been filed, was bound to take up the suit in the stage in -which he found it, aud no further pleadings therefore ought to have been allpwed. [No. 5951, D. C. Ratnapoora. Kandyan Law. Widow en- titled to same life interest in husband's landed pro- perty, whe- ther he left issue or not. Intervenient bound to take up a suit in the stage in which he' finds it. 975. 'Wijeyekoon v. Dalpedado. mid, that documents filed by the plaintiff, referred to in bis Eeplication, and made part of his case on tbe pleadings, could not be disproved by himself by calling evidence. [No. 6136, D. C. Ratnapoora. Documents filed by Plain- tff cannot be disproved by liimself call- ing evi ence. 1852 446 Judgment o f dbsolmter is not a final judgment. 1852.— October 20, (0.) 976.— Zo^oo Hamy vs. Baba Appoo In this esse the District Judge lield that the action as regards the intervenient and defend- and was estopped by a former judgment ; but the Supreme Court sei aside the finding, inasmuch as, in the former case, there was no final judgment, but the defendant was merely absolved from the instance. [No. 15019, D, C. Caltura. Court will not grant administra- tion whese delay is un- reasonable and unex- plained. November 18, (0.) In re Cooray Lekani, 9Tl. — Devoodito Appoo vs. Juan Goorey. The Prerogative Court of Canterbury does not grant Probate or letters of administration after five years, unless satisfactory reason be shewn for the delay, and this Court will not grant administration after a delay of 55 years. "Williama, On Executors, p. 292 and 393 [No. 484, D. G. Caltura. November 20, (C.) 978, — Glarke Bomer & Co. vs. Vanderstraaten . In this case the decree of the District Court was corrected as to the costs, and the plain- tiffs were decreed to recover their full costs in tje Court below, and in appeal. Judgment.'] The Supreme Court cannot see the slightest ground for making the plaintiffs pay their own costs. Tbe defendant allowed her account with the plaintiffs (her chemists) to run over a period of about two years unpaid, and then disputed the items, admitting less than one half only to be due, viz .- £2, 9. 3, out of £5. 15. 10. A full account or bill of particulars is then called for and submitted to proof on both sides, and only fO, 13. 6 is disallowed thereon, and that alsu for articles furnished to the members 447 of tlie family, who usually procured medicines, &c, supplied to the defendant. [No. 13699, D. C. Colombo. 1852 979.— Say Hamine r. Don David. "Plaintiff's claim to tbe moiety, which is proved to have belonged to her late husband, is also supported by the Deed of Gift from him, which was voidable in his life ; but as he has died without any revocation of it, the gift can be sustained. See Burge, 275. Grotius Int. 1. c. 2, s. 6, p. 284. V. D. Linden, 214. "Ihe objection to the want of stamp is waived ; and the 9 th clause of the Ord. No. 21 of 1844 cannot apply to the plaintiff's claim .under the Deed of Gift, because, upon it, her right has not accrued as devisee, heir-at-law, or as executrix or administratrix." [No. 10164. D. C, Colombo. A Deed of Gift by a husband to his wife though void- able in his lifetime, may be sustained if he dies without re- voking it. November 17, (C.) 980. — Falleneappa Chetty v. Tellewenem Where parties have neglected to take any acknowledgment in writing to prove, the debt claimed, and rely wholly on parol evidence of it, tlie Supreme Court has frequently declared that the witnesses must be most unexception- able to establish the demand. [No. 12930, D, C. Colombo. December 4, (C.) 98 J . — Henea v. Kirif B.any. The decree of the Court below was amended by the parties being decreed to bear their own costs in the suit, as the demand might have been recovered in the Court of Requests, (the whole of the land not being disputed,) and the plaintiff therefore was not entitled to costs under clause 5 of Ordinance No. 12 of 1843. [No. 6304, D. C. Satnapoora. ' Parol evi- dence to prove unac- knowledged debts must be most un- exception- aible. 1852 448 Prescinptiou can be inter- rupted only by an act done, but not by an omis- sion or fail- ure to do an act. 982.- JDecember 21, (C.) - Sitigo Appoo V. Juanis Appoo. The mere silence of the defendant and bis omission to urge his claim or to raise any objection when he was present, on the field being given to the plaintiff's wife (as he took no part therein) will not defeat his prescriptive title. The Ordinance speaks oaly of any " Aef, not of the ongission or failure to do an act, although from such conduct an atquies- ence by silent implication may sometimes be in- ferred. It could tend therefore in this case only to strengthen any other evidence which may be adduced, of the defendant having done some act recognizing the plaintiff's title. [No. 153;: 9, D. C. Colombo. Interest will cease run- ning if len- der is follow- ed by pay- ment of raoney into Court, Dec. 29, (C.) QS3 .— Alende Hamy v. Katadea.. To exonerate the defendant, and stop tlia running of interest, the tender should have been followed by payment of the money into Court. See 3, Burge C. P. 839 ; Negombo case 4101, 87th November 1830. [No. 6290, D. C. Bafnapoora, In le T. A. Neuwenhoven. T. H. Ver Hoeven, Applicant. /. H. Eaton, Opponent. There are two appeals in this Testamentary case. The District Court having dismissed with cofts the applications for administration of both the applicant and opponent, they have separately appealed from that judgment. The intestate went by the name of Thomas Andreas Neuwenhoven, wrote it freely, and ac- knowledged no other name. He died possessed ofabout £1000 sterling, but is stated to have been extremely close and reserved in his habits, 449 1852 and to have communicated little about his rela- tions. Mr. Piachaud who was examined in this Court as having been his Agent, and who must be considered to give disinterested testimony on both sides, says, " I have tried to make out his " relatives, but I never could make them out. " He told me that he was born at Galle, and "left it when he was 18. He was more than " 50 years. He was very mysterious about his " relatives. He called himself, and signed hie "name Thomas Andreas JS/euwenJioven. He "wrote it as if used to the signature"; and he adds afterwards, " I had no reason to believe " that lie went by an assumed name." The applicant Thomas Henricus Ver Hoeven alleges that the intestate was his younger brother, and that his real name was Johannes Stephanus Ver Hoeven; that their parents names were William Frederick Ver Hoeven, and Johanna de Haan, and two extracts from the baptismal register of the Wolvendahl Chnrch at Colombo are adduced, proving that they had a son, Thomas Henricus, baptized on the 13th February 1791, and another son Johannes Ste- phanus, baptized on the 22nd September 1793. The applicant called also six witnesses, \vho depose to his parents having only had these two sons who were the applicant and intestate, and no daughters ; that the intestate went early to sea, and on his return to Ceylon about 30 years sfter, they recognized him as the appli- caat's brother. The District Court has con- sidered the relationship not established upon Buch evidence, doubting, with much reason, the ability of the witnesses to recognise the intestate after such a lapse of years, when he left so young, that age must have greatly changed him, and when the in- testate positively denied the relationship or identity, and did not recognize any of the wit- nesses as former friends or early acquaintance?. Upon closely sifting, moreover, their evidence, it wholly breaks down, as the witnesses are in- coDBisteut in several very important points : 1852 430 The 1st witness avers that the intestate went to sea in 1812, when be was about IS years old; but 2nd witness says that lie knows the intes- tate left beylon -when about 12 or 13 years old. The 1st witness knew the applicant and intes- tate when they were 12 years old, and were at school together, (about 1803.) The 4th witness was also their school- fellow, and says they were at school for about 2 years, and that intestate was about 14 or 15 years old, wheu the witness left a year before them, and therefore it would Lave been about 1806, The 5th witness de- poses, that he was also at school with the ap- plicant and intestate, and that they were brothers. The witness went to the school in 1792, and applicant and intestate came there in 1798. Now, in that year, intestate must have been about 3 years old. Tet the witness cor. roborates his testimony, by adding that he left the school, in 1799. The 3rd witness proves nothing on the point, and the 6th witness speaks to his having known the applicant and intestate as brothers, when he was ^e»ycor« old, and as the witness is ^/:«y /»e years, that must have been about 1807 ; they came from their grand- luother's to his father's ; intestate went to sea, and witness bad seen him once or twice on his return, but had not seen the intestate for forti[ years, yet he recognized him when he first savr Lim as the brother of applicant. On such dis- crepant evidence the Supreme Court of course concurs with the District Court decision in dis- missing the applicant's claim. , In regard to the opponent's claim the District Court declares, only, that he had not satisfacto- rily proved his, relationship, but the further evi- dence produced in this Court seems to satisfac- torily supply the deficiency in the proof. The 1st witness for the opponent says that she did not know the intestate's name was Neuwenhoven till one day, as he was standing at her door, he pointed to the widow ofMendriek, who was pass- ing, and said that she was his brother's widow. Witness asked if Hendriok was his brother, he 451 1852 replied that they bad the same mother. He told witness that his name was J^euwenlwven. The 2nd witness deposes that intestate was living with last witness, and told him that "he had B sister, Mrs. Lagarde, but that she was dead." The 3rd and 4th witnesses depose to the intes- tate denying that his name was Ver Hoven, and saying that it was Neuwenhoven, that be had lost his wife and child in America and had relations at Galle. but none in Colombo. The documentary proof adduced by the opponent with the furtiier evidence heard in the Supreme Court, confirms these statements of the de- ceased, as to his name being Heuwenhovm, and his haying relations at Galle. Tbe casual re- cognition of his brother's widow while passing, and the admission of his having had a sister, Mrs. Lagarde, who was dead, appear truthful and natural ; they were also not inconsistent with the habitual reserve that the intestate showed about his relatives, if it arose (as it very probably did) from the fear of being annoyed by their wanting money from him, as he never sought to disclose himself to the widow, and the sister and -her only child were dead. Besides there are unguarded moments with the most reserved men, and the expressions led to noxhiug at the time, and have derived importance only from the documentary and other proof, previ- ously unknown, confirming them. Moreover if these witnesses were untrue, they might have stated so much mofe, and not confined them- selves to such indirect evidence. The extracts adduced from the baptismal and marriage regis- ters shew that Enno Beimers Neuwenhoven, and Florentina Brouswyk Van Dam had a son Hen- drich Gerhard, baptised 17th December 1775, and another son Thomas Andreas baptised 6th March 1785, and a daughter Anna Francina baptised 27tli March 1769, who became in 1798 Mrs Lagarde, and left no children surviving. The opponent is proved to have married the daughter and only child of Sendriclc Gerhard, whcTdied having three children, minors, one of 18S2 452 Illness of a Proctor is a good ground for postpone- ment of a 'I'rial. whom died subaequenb to the intestate. Hendrick Gerhard's widow is an old woman past 80. The opponent, moreover, succeeded to the property of Mrs Zagarde nud seems justly entitled to administration of the estate of the intestate. It ia therefore decreed that Letters of Ad- minfstration of the Estate of the intestate be granted to the opponent, and that under all the circumstances of the case, the costs on both sides be paid out of the Estate. [No. 795, D. 0. Colombo. 98i.—Appoo Samy v. Mudelehamy. At the trial an application was made to post- pone the case on account of the first defendant's Proctor being unable to attend through illness (which is always considered a sufficient cause for postponement in the District Court of Colom- bo) ; but the motion was disallowed on the ground that, " there were Proctors present on both sides." The defendants, however, had se- vered in their Answers, and appeared by difier- ent Proctors. The affidavit also of the second defendant's Proctor shews that he was quite un- prepared to' conduct the case of the first defend- ant, which was the most material in the cause. Under these circumstances the appellants coun- sel has strongly urged the justice of granting a new trial, and the Supreme Court has been the more inclined to allow it, from its considering that the witnesses of the plaintifi^ have not been fully examined, aud that the proof of the plain- tiffs)Deed is open to'great suspicion, as it is not in accordance with the Kandyan habits, that an old infirjn^lady of good family, and possessing property, would undertake a journey of some distance for such a purpose, without female at- tendance. [No. 6241, D, C. Batnapoora. 985. — Naidehamy, v. KaluJiamy. Judgment.'] The Supreme Court cannot view this case in the same light that the District 453 1852 Court lias done. It is clear that the parties have all been employed in searching for gems on the premises, and if the action were merely to reco- ver damages for the waste done thereby to the field, in rendering it less fit for future cultivation, the Supreme Court would not interfere with the present judgment, looking to the evidence, that all the parties had been concerned in the dig- ging of the pita. But this suit obviously, has wholly originated fiom a different cause, viz. that a large sapphire of very unusual size has been found on the premises, which has been secreted and withheld from the other parties, and evidence as to its value even has been sup- pressed. I f this gem be a large sapphire of good colour, and without blemish, it must from its f»reat size, be of very considerable, nay of im- mense value. The plaintifif's 8th witness depos- es to its being as large as a pomegranate, or mandarin orange ; and the 9th witness says it is larger at one end than another, — larger than a fowl'ss egg. It is therefore not surpris- ing that this suit should have originated, ii the parties consider that they are joint proprietors of the land, where this unusual gem has been discovered, and are equally entitled to share lu its value ; but at present the Court cannot decide on the respective rights of the parties. The spot where the gem was found is not clear- ly pointed out, nor are the rights of the parties . to such portion of the field, well ascertained. Tor instance, it seems the Mellaka and Game- gey families hold in tatto-maroo, but the plain- tiff and first defendant are of the Mallaka family, and the 2nd and 3rd defendants are of the Gamegey family. Again, the old suits are between two of the Mallaka family- Ihe tenure in tatto-maroo, moreever, gives only the right to cultivate the soil, and where separate portions are held in turn by parties in tatto- maroo, it is usually owing to one portion being of larger extent, or more productive than the other. Presuming, however, that the parties are joint proprietors of the land, and hold in latto- 1852 454 -maroo, there is no proof of their right to gems found in the soil, having been transferred to each other by any Notarial writing, or agreement between them. Moreover, it is stated at the bar, that it can be shewn into whose hands this large Gem passed ; if so, such persons (in what- ever statidn they may be) can be examined as witnesses. And the rule of evidence also is that " omnia presumuntur in odium spoUatoris," and where a person of humble life found a large gem, and gave it to a jeweller, who refused to deliver it back, or to produce it, the jury were told to presume, and give the value of a gem of the highest value of that size. Armory. ». Belamirie, 1 Str. 505. As to the Royalty, it will be time enough to decide that right when Government comes for- ward to assert such a claim. [No. 6294 D. C. Ratnapoora. 455 184S GMective Court . Taxation of Bills o£ Costs. An Advocate entitled to his fees for servi- ces rendered previously as a Proctor. January 6, (O. C. S.) 987, — Taxation of Costs, Oa reading tbe Petition of Geoege William Edema and the indorsement of the District Judge of Kandy upon the Bill of Costs in the Kandy cases Nos. 2156 , 1373 and 16,880 the 17,896 I7,6a0 Judjies are unanimously of opinion that 31r. Epema is entitled to charge as Proctor for ser- vices rendered by hira in that capacity, and as Advocate for services rendered by him as Advo- cate, since his admission as such. The Judges are also of opinion that in each of the cases 2 1 56 aud 16,880 Mr. Edema should as 17,986 Advocate be allowed only £2 2 for brief fee, and that in the case 1373 the Advocate's retaining 17,530 fee should be disallowed, as he had been retain- ed in it befoi>e he became an Advocate, and the Registrar is directed to tax the said Bills accor- diugly. (Coll.; September 26, (C. S. T.) 988. — Buller, Q. A v. BretopuUe and others. The Judges are of opinion that without en- tering into the question as to whether the Su- preme Court can give specific directions to the District Court to give judgment in any manner therein pointed out, it is better to amend the order in its present form, and it is therefore decreed that the piaintiff is entitled to recover from the Defendants the sum of <£229 and costs, as prayed for in the libel, and costs of Appeal. [No. 12,730 D. C. Colombo. (Coll.) 11,128 Aovember 25, (C- S. T.) 089. — Nagate, (uow wife of anotherjv- Wiuani/, (her husband.) The Judgment of the Court below in this case pioduction of was set aside on both the points reserved, the judgment in Question as to power of Su- preme Court to give direc- tions to a Dis- trict Court to ' give judg- ment' in any particular manner. 1846 456 CoUecUve Court. a criminal case is not evidence in a civil case for a plaintiff who was a witness in such criminal Judgment of Police Court set aside for gross irregu- larity. District Courts are vested with a discretionary power in ordering the attendance of parties to a suit, to be examined, Lorenz's Re- ports (1857) pp. 126-127.] Collective Court being of opinion, Ist. that the judgment in the Criminal ease, by the Police Court — in which the plaintiff gave evidence as a witness for the prosecution — cannot be evi- dence for her in this Civil action. (l.Soseoeon Evidence 102 — Areh. Civil Pleading 394 — i Gamp. 9 and 151—4 East 572—1. Tatmt. 520.) 2ndly. that the Court of Eequests has not jurisdiction in anything " whereby rigJitiinfu- ture mayhehound." And in this case the plain- tiff seeks to establish her marriage with the de- fendant, and the right of herself and child to maintenance thereunder. [iVo, 1302, G. B. Jaffna. (Coll.)* 990, — JSiewelegette v. Dingerehamy and others. Where the complaint or charge was not en- tered on the Kecord Book, nor the defendant called on to plead to the same, as required by the General llules and Orders for regulating the form and manner of proceedings tp be observed in the Police Court, the Collective Court set aside the judgment of the Court below, for gross irregularity. [^No. 211, P. C. Eatnapoora, (Coll.) Nov. 28, (C. S: T.) 99). — Don Bastion v. Gr'ipps. The District Oourt is vested with a discre- tionary power of ordering the attendance of a garty to be examined or not, as it may consider the examination to be necessary, and looking to the reasons given by the plaintiff for requir- ing the defendant's examination in this case on the renewed motion, and before this Court, there appears no sufficient ground for the same- The Court is moreover of opinion that the appeal from that Interlocutory order did not preclude the District Court from proceeding on to trial as fixed for the next day, although the General * But the 5th clause of Ordinance 10 of 1843 was expressly repealed by theeubsequent C.E Ordinances. 457 1846 bules and Orders require the transmiasion of Becords with as little delay as possible. Voet says (Lib : 49 Fit : 1. c : 8.) * Nbn enim aliud nos per appellationem ab interlocutoria Impeditur, ulterior cognito judicis injerioris, virca eausam principalem, pendente super inter- tocuforUs appellatione' ; and in Courts of Equity in England the general rule is, that an appeal does not stay proceedings without a specialgroundjand order. (^Crwynnev. Lethhridge 15 Ves. 585 — Suguenin v, Bas^ 15 Ves. 180 and Sect. 16 Ves. 213 and 216— Wood v. Milner 1. Jac. and W. 636, and King of Spain v. Maehado 4. Euas. 560.) But, with a view to maintain a uniformity in the practice of the Courts on this matter, the Supreme Court is of opinion that the principle which appears to be laid down in Sir Charles Marshall's Notes p. 13, should be adhered to, namely, that where the Justice of the case requires the immediate settlement of the point or points raised in any Interlocutory Order, the proceedings should be ■stayed to allow a Judgment on the sppeal therefrom. The present decree, however, cciniQot be sup- ported, as it is not only founded un anerroceous view of the Law of Bvideuee, (See Fhil. Ev. 2ndVol. p, 299) ; but because the District Court ought to have allowed the plaintiff's motion for a postponementofthe hearing upon his affir- mation that three of his material witnesses to prove malice were absent, inasmuch as without eipreas evidence of this nature, the plaintiff could not 'safely proceed to trial^ although he should succeed in giving sufficient secondary evidence of the letter in question, which he was entitled to do. Both appeals having been brought on at the same time, and the questions raised in tbem being in some measure of unusual occurrence in the District Courts, the costs of the appeal are ordered to be costs in the cause. [No. 10,965 i>. C. Galle (Coll.) Collective Court. An Appeal from an In- terlocutory order need not preclude the Court from proceed- inff to trial and final judgment, except where the justice of the case re- qmres a stay of proceed- ings. Plaintiff enti- tled to a post- ponement on his afSdavit that certain of his mate- rial witnesses are absent. Certain rea- sons for or- dering costs of appeal to be costs in the cause. 1846 458 Non joindei- of parties to a, suit — Costs on amend- ment of I'leadings in consequence thereof. Dec. 2, (C. S. T.) 992, — Andona, widow, and others v. Bon Pauloe. Tlie decree of the District Court was amend- ed by the cause being ordered to stand over, with leave to tlie plaintiffs to amend their libel, by making the two daughters of the Istplaintiif by her second marriage, parties to the suit. Per Curiam. — On objections, for want of necessary parties, being taken at the bearing, the District Court should generally allow the cause to stand over, with leave to amend the pleadings ; and in respect to costs, they should be made to depend upon whether the objection could have been taken on the pleadings,, and was likely to have been known to the opposite party previous to the trial, in which case tho costs of tlie day should be divided. • [No. 36,917—33,216. D. C, Colombo. (Coll. A prisoner not having availed him- self of his right to challenge a juror under age, cannot, after con- viction, move in arrest of judgment, on that ground. Under tlie Roman Dutch Law, it is neces- sary before a December 5, (C.S. T.) 993. — The Queen v. Gammegey Aberan, convicted of Murder at Matura. The Court does not consider that the objec- tion is a ground for a motion in Arrest of judgment within the llth Eule of the General Rules of Praciice, for proceedings before this Court in its Criminal jurisdiction, (\. Chit- Or. Lata G61) ; and the Court also considers that the juror being under the age of 21 years was ground for challenge, and that the Prisoner not having availed himself of that right at the trial, the objection comes too late.after con- viction. Aing, V. Sutton. 8. B. and C, 427. Hill, V. Tales. 12 East 229, and l.Chit.C. L 654 and 541, (Coll.) 994. — PayTcir Lebbe v. Assa Oemma wife another. In this case thePlaintiff was allowed to proceed with the suiton obtaining from the District Cuurt an appointment as legal guardian. Tlie costs of the Appeal to be costs in the cause. And Per Cu- 459 1846 , BiAM. ■' The practice at JaflPoa appears to be liitlierto unsettled outlie point, whether a person could sue as uext friend or proohein amy for an infant, as in the Courts of Equity in England^ witliout being appointed by the Court the legal guardian, or curator ad litem at least, which this Court considers to be necessary under the Dutch Law." [No 4134, D. C. Jafna. (Coll.) 995. — Sitnan Appoo and others v. Bon Louis and another. Judgment. That the Interlocutory decree of tlie JJistrict Court of Hamhantotte of the 21st day of October 1842, be amended by altering the date of the decree-of the Districi Court set aside thereby, from ' 1st March 1842' to tlie '7th September 1842', and that the said Interlocutory decree, when so amended, be entered ' 7iunc pro tunc' as of the date when the same was pro- nounced viz ; the 21st October 1842. There has been a clear mistake in the Interlocutory decree aforesaid in inserting the date of the first decree of the District Court, whicii had been previously set aside by the Supreme Court, in lieu of the second decree ; and the Court ought therefore now to correct tliis error in such manner as is likely to incur the least inconvenience and expense to the parties- {No. 1230. D. C. Hamhantotte (Coll.) 996. — Bon Juanis and others v, Siman de Silva and another. The Supreme Court is of opinion that the gift made to Andeya and Baleya was an abso- lute gift, and that the 'Injunction^ contained .igaiiist the sale of the land — except in case of very urgent necessity, when it should be sold to iLe original proprietor — must be considered to be only directory of the wishes of the grantor on that subject, but not as a condition in Law annexed to the gift, upon the breach of whicli, the estate of the donee would (letprtnine or lie forfVitod, and the donor or his lu irs have a right therein to re-enter and chiini the laud, no Collective Court. person could sue on be- half of an infant that he should he appointed iMrator ad litem,, (See Lorenz's Notes on Civil Practice ) Correction of an error and entry of a de- cree ' nunc pro tunc' ►1846 460 Collective Cowrt. reversion Laving been reserved by the deed to the latter for that purpose. — [No. 12,424!, n. C, Matura CCollJ The Queen T. BoMioo Mo- Tummdo. Judgment of D. C. dismiss- ing an Infor- mation by the Q. A. for breach of Ord. No. 12 of 1840 set aside, and the case remanded back to the D. C. for fur- ther investi- gation. Certain evi- dence for the Crown led before the D. C. held suffi- cient primA facie proof of the Crown's title to land, so as to call on the Deft, to rebut such proof The words of the Ordinance " probable December 16th' (C. S. T.) 997. — Malhamt/ and others v • PuUttgooralte. The defendant could not adduce in evidence against the plaintiffs in the present suit the judgment in the former case 6327, as the plaintiff's were not parties to that former case, nor do they claim under their mother, who was the plaintiff therein, and suing in her own right and behalf- [iVo. 16,884, D. C Kmdy (Coll.; Bec&mher l^rd, (C, S. T.) 998.— TAe Qiteen v, Hahihoo Mohamadoo. [From ' Murray's Eeports,' pp. 51 to 62.] This was an lat'ormation preferred by the Queen's Advocate under and for breach of the Ordinance No. 12 of 1840, inasmuch as the defendant did 'knowingly and unlawfully, and ' without probable claim, or pretence of title, ' encroach upon and take, possession of the piece ' of Crown- land called Assedinnay Watte- of the ' extent of half an acre, and of iho value of £10, ' situate at Gampola.' The Information was laid on the 1st clause of the Ordinance which enacts ' That it shall and ' may be lawful for the District Court, upon ' Information supported by affidavit^ charging ' any person or persons with having, without ' probable olaim, or pretence of title, entered ' upon or taken possession of any land which ' belongs to Her Majesty, her heirs or 'successors, to issue its summons for tbe ' appt arance before it of the party or par- ' ties alleged to have so illegally entered ' upon or taken possession of such laud, ' and of any other person or persons whom ' it may be necessary or proper to examine 'asawiiness or witnesses, on tiie hearing of ' such Information ; and the said District Court ' shall proceed in a summai'y way iu the 461 1846.' ' pi'fsence of the parties, or in case of wilful ' absence of any person against whom any ' such iDformatioQ shall have been laid, then in ' his absence, to hear and determine such Infor- ' Diatiou ; and, in case on the bearing thereof, ' it shall be made to appear by the examination ' of the said party or parties, or other sufficient 'evidence, to the satisfaction of such District ' Court, that the said party or parties, against 'whom such Information shall have been laid, ' hath or have entered upon or taken possession ' of the land mentioned or referred to in such ' Information, vitiiout any probable claim or ' pretence of title, and that such party or ' parties hath or have not cultivated, planted, ' or otherwise i^iprovcd and held uninterrupted ' possession jI sueb land for the period of • thirty years or upwards,' [limited to five instead of thirty years by Order of the Privy Council of Wth August 1841.] ' then, and ' not otherwise such District Court is hereby ' authorised and required to make an order, ' directing such party or parties to deliver up ' to Her Majesty, her Heirs, or successors, 'peaceable possession of such laud, together ' with all crops growing thereon, and all build- • ings and other immoveable property upon ' and affixed to the said land, and to pay the ' costs of such Information." The Defendant pleaded not guilty. The 1st witness called for the Crown was the Cutcherry Modliar, who stated that the Defendant presented a Petition to the Government Agent accompanied with the translation of a Notarial Deed, on which he relied, as proof of his title to the land in question, — that Gampola was generally reported a Eoyal Village, and that the land in question was within its limits. The second wit- ness stated: "I know the piece of land on ' which the Defendant built a house six or seven •months ago. The land had been in the occu- 'pation of Ahamado Fulle, and whenever ' kmakkan was sown he took the owner's share. Collective Court. The Queen, V. HaMbo Moha- mado. claim or pre- tence of title," opnstruedas requiring proof of a " probable claim" or of a pretence of title." 1846. 462 Collective Court. The Queen V. Habibo Moha- mado. ' He perlbrmed rajakaria for it. On seeing ' Defendant building a house, I told him it was 'Crown land; he said. he purchased the land. ' It is not within the limits of the Royal Vil- 'liage, but there are Crown lands not withiu ' those limits. The people of the Eoyal village ' always possessed this piece of land — no dis- ' tinct seivice for it. It was waste when the ' Defendant was building the said house. Recol- ' lect a man, I'Uchie, built a house on it, but it ' fell down — (it was) only a hut, and built three 'years before Defendant built his house. Pitchie ' never lived in the hut — it stood only a year. ' I live withiu a mile of the land, there are cofTcie ' bushes on the land — where does not coffde ' grow ? It was quite waste three years ago. I ' know T>on Carolis Appoo who occupies the ad- ' joining land — who got a grant from Govern- 'mentforiton payment.' Third witness I kuow the piece of land. I 'did not cultivate it, but allowed others to ' do so and took the owner's share, conceiving ' I had a right to it. 1 performed service for ' the land to the Ciowu. I possess a paddy ' field belonging to the Crown, of which this is ' an appurtenance. I did not give the land to ' Piteliie or to Defendant. I have not taken ' any produce for the last 20 years, nor has the ' land been cultivated during that period. De- ' fendant did not cultivate the land, but built a 'hut upon it. I considered the land to be my ' parveny property. My ancestors possessed it, « and it descended to me, and I am not aware « that the Crown has any right to it." The evidence of the Government Surveyor shewed that the land was ' claimed by the vil- ' lagers generally ;'— ' there was no hut ou ' the land when I surveyed it in 1843 ; but ' hut upon it now. It was Hot then cultivated.' The Notarial Deed ' B.' filed by the defen- dant is dated I4th June, 1844 and purports to lie granted liy Pitche Mohamado son of Pitche Tamby : — ' I have this day bargained, and sold 4-63 1846. ' to Mohamado Lehhe {alias) Hahiboo Mohamado ' a garden one pela in extent, with all the plan- < talion thereon as included in the Tamil Title • Deed No. 575 attested by Lebhe Saihoo, Nota- ' ry Public, in my favor, on the 21st September ' 1840.' The District Judge (7th August 1846) pro- nounced the following judgment : * The Court ' does not consider it necessary to call on de- ' fendant for arty defence — being of opinion that ' it has not been proved that the land alleged to ' have been encroached upon is the property of ' the Crown. The defendant had also a pretence ' of title under Deed ' B.' filed. The evidence ' also as to whether the land be uncultivated, or ■ unoccupied, so as to bring the case within the ' 6th clause of the Ordinance, is contradictory ' and unsatisfactory. , The Assessors concur, ' and the Information against the defendant is '^dismissed.' This Judgment was appealed from on behalf of the Crown, and the case was reserved for Collective decision. The Deputy Queen's Advocate (Mr. H. 0. SeWy) in support of the appeal : The object of the Ordinance was to prevent encroachment on Crown lands generally —not Crown waste lands only ; and the first section of the Ordinance, on which this Information was founded, contained no special reference to waste land, whereas it distinctly contemplated and made provision for the case of a trespasser having 'cultivated planted or otherwise improved ' the land ■ he had taken possession of. The Crown had a right whenever a trespass was committed on land it claimed, to put the trespasser to proof of his title, unless he had 'cultivated, plant- edor otherwise improved, and lield uninterrupted possession' for five years. The proceeding con- templated by the Ordinance was in some respects analagous to the Information of Intrusion in England, where until the Statute of 21, Jac. h c. 14., the defendant was bound to shew his Collective Court. The Qiteen V. Sabiho Moha- maAo. 1846. 464 Collective Court, The Queen V, ■ Sabibo Moha- mad/}. title specially, nnd could not in auy case rely merely on his possession, however long ; and unless he set up and proved a title in himself, the mere fact of the intrusion vfould only be en- quired of ; ' for a title for the King appears upon the Information, if no title appear upon record for the defendant.' fChitty's Prerogatives of the Crown, f, 333)i Since that Statute how- ever, 20 years' possession by the defendant might be-given in evidence under the general issue, and the defendant need not plead his title specially ; in which case if such possessioa was proved, he was entitled to retain it, until the title had been tried and found for the Crown. Our Ordinance had shortened the period from 20 years' possession to 6 years' cul- tivation and possession ; but had not departed from the principle which, still obtained in England, of requiring the defendant who had been less than twenty years, (or with us less than 5 years) in possession, to plead specially his title, by assuming the title in the Crown as averred in the Information, 'if no title appear on record for the defendants.' This applied with greater force to lands in the Kandyan coun- try where, as was well known, all lands were held either directly or indirectly from the sovereign, on tenure of service called Eajaharia, With respect to waste lands, the 6th clause of the Ordinance specially provided that irres- pective of possession, they should be presumed the property of the Crown until the contrary was proved. la the present case the Crown had given evidence that the land encroached upon was waste and uncultivated ; and moreover, that „ whenever at long intervals it had been cultivat- ed, the cultivator performed Bajakaria for it, thus admitting the right of the Crown. Such land the 6ta section of the Ordinance expressly declared should be presumed to be Crown pro- perty. 465 1846. Tlie defendant had therefore to shew, either *& probable claim or pretence of title' ; or five years' cultivation diid uninterrupted poasession. Of the latter there was no evidence whatever ; and with respect to the former, the defendant had rested satisfied -with filing a document, which purported to be a Deed conveying this piece of land to him liy a third party. But that Deed shewed no sort of title in the alleged ven- dor, and was a modern instrument ; so that there was no room for the presumption that there had existed sometimes a grant of the land to such vendor, which had been lost. In fact on the face of this Deed there was reason to conclude that the pretended vendor never had any title at all. The defendant must be armed not merely with a pretence, but with that which amounted to a probable pretence, of title. The grammatical construction of the sentence shewed thut probable applied both to claim &nd pretence. The adjective probable referred to both the fol- lowing substantives, and if a claim (which is perhaps something more than a pretence^ must be a probable one, which was undeniable, surely a pretence must be a probable one also. The words claim or pretence in the Ordinance were used to express the same thing. Indeed the word pretence meant claim. Thus Loche used it,—' Primogeniture cannot have any pre* tence to a right of solely inheriting property or power.* If then a claim must be a probable one, it seemed unreasonable, as well as ungram- matical, to hold that a mere naked, improbable pretence, would be sufficient. '^0'^ probable meant 'likely — having more evi- dence than the contrary' — so that the defend- ant ought to shew a. prima facie case of title as against the Crown. He must have an apparent title — that which afforded more evidence to the mind that he had a title, than the contrary. In followed that he must give some evidence of title. But the deed produced (supposing it proved) furnished no evidence per te as against Collective Court. The Queen, V. Sahiho Moha- , mado. 1846. 46G Collective Court, The Queen V, Habiho MoJux- the Crown, of any title in tbe defendant's ven- dor, and being of quite recent date, raised no presumption of title in either of them, buk rather the reverse, foriooking at the date and wording of the Deed, and the facts disclosed in evidence, it seemed not improbable that the Deed had been got up expressly for the purposes of this case. E. MoEGAN (Advocate) contra : — It is unne- cessary to enter into the consideration of the question whether the prerogative of the Crown insisted upon, extended to the Kandyan Dis- tricts ; for even if it did, the provisions of the Ordinance ander which the present proceedings were had, excluded the exercise of it. The Royal Prerogative might be abridged by grants, &c. made to the inhabitants of a conquered country. (Chittt's Prerogative p. 33.) Al- though in an action brought under the common law, irrespective of the Ordinance, prerogative rights might prevail, yet where the Crown in- stituted proceedings under the Ordinance and sought the benefit of it, its provisions must be strictly conformed to, and the peculiar form of proceeding it prescribed, adopted. In order to entitle the Crown to judgment under this Ordinance, the first clause requires that it should be shewn (1) That the defendant entered upon and took possession of Crown land ; (2) that the defendant had no probable claim or pretence of title to the land ; and (3) that the defend- ant had not cultivated, planted, or otherwise improved and possessed the land for five years and upwards. The evidence shewed that these requisites had not been complied with. Instead of shewing that the land belonged to the Crown, it was shewn by the third witness called by the Prosecutor that the land was formerly his pro- perty, he having inherited it from his ancestors. The defendant claimed under this very witness — this shewed a probable claim, and the Deed in defendant's fayor produced by the D. Q. A. shew- ed, in addition, a pretence of title. The ' pro- 467 1846. bable claim' stood contradistinguished from 'pretence of title.' The former seeming to con- fer claim founded on possession or otherwise, irrespective of any title arising from sale, gift, bargain, &c. evidenced by a vpriting, which falls under the second head of a ' pretence of title.' Hence, where there is no writing to substantiate the right, it is necessary to shew not a naked claim only, but a probable one ; whereas, where there is a writing, which is a higher species of evidence than oral testimony, the adjective pro- hahle was dropped, and a naked pretence was deemed sufficient. The Title Deed in favor of thfe defendant more than answers this require- ment. With regard to the third requisitei it clearly appears that the defendant did cultivate and possess the land for more than five years. The term is general and not restricted to any particular period of time. The 2nd clause of Ordinance No. 8 of 1834 requires that the 10 years necessary to constitute prescriptive title, should be 'Hen years preceding the commencement of the suit" — there is no such provision here. Tlie Crown having failed to prove these requirements (and the necessity to prove them is undoubted when it is considered that such proof must be adduced even in case of the ' wilful absence' of the de- fendant) the defendant is entitled to judgment. The objections urged related to matters of fact, and the Supreme Court was always loath to in- terfere with the finding of a District Court as to facts. It should be more scrupulous to do so in the present instance, because by the Or- dinance the Crown is entitled to judgment on proving the different matters before mentioned to the ' satisfaction of the District Court,' and ' not otherwise.' Moreover the remedy being a summary one, it caused considerable hardship to the defendant, whereas no kind of injury could accrue to the Crown, because the 2nd cl. reserves to it. the right, in case of the dismissal of an Information, to bring another action to try Collective Court. The Queen V. Sabiba Moha- mado. 1846, 4G8 Collective Court, The Queen V. Babibo Moha- mado. the riglit of property in the ordinary course of law. The Supreme Court (23rd December 1846,) pronounced the following judgment (which was unanimous except on one point, viz. the con- struction of the words of the Ordinance, • pro- bable claim or pretence of title', — SlarJeJ. hold- ing that the Ordinance required a 'pretence of title' merely, and not a 'probable pretence oi title.') :— ' The Court is of opinion that this case ' should go back for further investigation, the ' Crown having suffioiemtly proved its right to ' the land to require the defendant to rebut it ' by some evidence, either (1) of his having a ' probable claim or pretence of title to the land, ' or (2) of his having cultivated} planted, or ' otherwise improved or held possession thereof ' for the period of five years. ' In the argument of this case, the D. Q- A. • relied much upon ' the Prerogative right on an ' Information of Intrusion, of putting the de- ' fendant on shewing his title specially' ; (Chit- ' ty's Prerog. p 333.) but it appears to be unne- ' cessary for the Court to decide that important ' question, of how far this pi'erogative right ex- ' tends to, and can be enforced in, the old Kandy-i ' an Districts, because it is clear that this Or- ' dinance has prescribed a diflferent mode of ' proceeding in summary proceedings under it, ' for obtaining the possession of Crown land en- ' croached on. ' Looking to the provisions of the Ordinance ' respecting the Information, and the affidavit ' in support thereof, it would seem that both ' need only charge a person or persons, with ' having without probable claim or pretence of ' title entered upon or taken possession of any ' land belonging to Her Majesty, Her Heirs and ' Successors, and that therefore the Crown need ' adduce evidence only to that effect ; as accord- ' ing to the general rule, the complainant is ' required to prove only material and necessary 469 ' averments in Ibe Libel or luformalion, and ' any matter of justiflcdtion should come from ' the defendant ; but the Legislature in this ' Ordinaace, has thought proper to specially ' declare respecting these Informations for pet- ' ty encroachments, that, in case on the hearing ' thereof it shall be made to appear, by the ' examination of the party or parties, or other ' sufficient evidence to the satisfaction of the ' District Court — (1) that the party had entered ' or taken possession without any probable ' claim or pretence of title (2) that such party ' had not cultivatad, planted, or cthorwise im- ' proved and held uninterrupted possession of ' such land for the period ot five years or up- ' wards, ' then and not otherwise,' the Distrit* ' Court may order the defendant to deliver up ' possession ; Now as tlie D. C, is authorised ' to proceed in the absence of the defendan t ' ami, iu such event, it is not declared that less ' evidence would suffice, the Court is of opinion ' that as the D. C. can give no judgment iu ' favor of the Crown without sufficieut evidence ' before it upon the above two points, it follows ' necessarily tbat the onus proiandi in these ' summary proceedings lies on the Crown to ' adduce prima facie evidence on both those ' points. ' In the present case the Court is of opinion ' that the Crown has adduced such evidence, • aud that although not free from discrepancy ' and objection, and liable also to be wholly ' rebutted by proof on the defendant's part, ' the evidence as it stands, sufficiently proves ' the land to belong to Her Majesty, and to ' have not been cultivated or possessed for five ' years, so as to call on the defendant to rebut ' such proof, and on his failure to do so, to ad- ' judge the defendant to deliver up to her ' Majesty the peaceable possession of the said ' laud. ' The evidence of the LeJcame, that he poss- ' esses a Government paddy field to which this 184.C. Tka Queen V. Ha6i6o Moha. mado. 184.6. 470 Collective Court. The Queen V. Sdbibo Moha- mado. ' land is an appurtenance, might 1)6 egpecially ' noticed on this point, and his not Laving taken '■ the produce of this land for twenty years • (though claimed by him), and its not having ' been cultivated for that period, tend to shew ' that it must be considered as chena or waste ' land, which, under the 6th el., belongs to the ' Crown until the contrary be proved. ' Then, as to the possessionlfor five years and ' upwards. It is in evidence that the Lehame ' never gave the land to Pitche (the alleged ' Vendor to defendant) or to the defendant ; ' that Pitche built a hut thereon about three •years before the defendant ; that he never ' lived in it ; and it stood only for a year ; that ' the defendant built his house 6 or 7 months ' ago, and that, at the time the defendant was ' building the house, it was waste land, — and ' the Koralle then told him it was Crown land ; — ' as to the coffee bushes growing on the land ' here and there, they may have been sown by ' the birds, or put in when the but was built by ' Pitche and abandoned therewith ; and without ' any proof of their being planted, their age, ' culture, or exclusive possession of the pro- ' duce thereof, the Court cannot consider them ' as sufficient evidence of the garden having been ' planted, improved- or cultivated for the period ' of five years within the Ordinance. ' The only remaining point is the defendant ' having a ^pretence of title,' under the deed ' B' ' filed, as held by the District Judge ; but ' whether he (defendant) has or not still remains ' to be proved in the opinion of this Court. ' No evidence has yet been taken in support ' of the Deed itself, and although the D, Q. A. ' has for the sake of argument (to get the ' opinion of the Court as to the effect of such ' deed being produced and proved in evidence,) ' admitted if, the Court considers such a deed ' being proved, (when viewed as it ought to be ' with all other facts and circumstances in ' evidence before the Court), ought not to be in 471 iS'Je ' itself held a probable claim or pretence of title ' within the true meaning and intention of the 'Ordinance, without some further proof of title 'by the defendant. ' JProbable' is that which has more of evidence ' for than against it ; — which is more likely to ' be true and substantial, than false and unfound- ' ed ; and a majority of the Judges think that ' 'probable' appears in this sentence to ba ' equally applicable to ' pretence of title' as to ' 'claim,' because the former cannot be construed ■ in its bad sense. It is a general rule that ' where the title to property comes in question, ' the exercise of a summary jurisdiction by a Jus- ' tice of the Peace is ousted. (Burns' Justice. Vol. ' \,p. 333 ; title, Conviction) ; but it is also held ' that this rule ought not to be so extended as ' to enable an offender to arrest the summary 'jurisdiction by a mere fictitious pretence of ' title, or an assertion of right, where the party's ' own shewing, or other manifest circumstances, ' proves the claim to be groundless. The ' whole sentence ought moreover to be taken to- 'getherand judged by its context, and then ' the words, ' probable claim or pretence of title' ' will amount closely to ' colourable title.* 'In Hunt \s. Andrews, (3, B. & C. 846.) which 'was au action for a penalty, Chief Justice ' Ahhot said, ' It has been held however, that in 'an action brought to recover a penalty, it is ' BufBcient for the defendant to shew that ha ' was acting under the appointment of a ' person who has a reasonable ground of title ' to the manor, for that is what 1 understand by ' the words colourable title'' ; so, in a similar ' case, Bushworth vs. Craven (MeClell- E. 422.) ' Graham, £, said ' But the Court requires the ' party to shew some colourable title, that is, ' as I understand it, some prima facie evidence, ' affording a Jair presumption of title, in tlie ' person claiming it' ; — and in the first mentioned 'case, the Court held that proof of a deed of ' purchase, reciting prior deeds of conveyance, Collective Court. The Queen, V. Sabilo Moha- mado. 18-46 472 CoUectire Court, The Queen T. Babibo Moha- mado. ' (which were not produced with it), did not •shew a colourable title, when viewed with ■ evidence of title from the opposite party ' repudiating such colourable title, and having ' a tendency also to prove, that the party claim- ' ing a right ought to have known that he had ^ no title whatever. ' In the present stage of this case, the Court ' can, in justice to the defendant, express no ' final opinion whether he has or has not bond '■fide a colourable title. It considers the case ' to have been wrongly stopped, and that the ' District Court should have called on the defen- ' dant for his defence : the Judgment is accard- 'ingly.sei asides and the case remanded back * for further investigation'. [TSTo. 6108. D. C. ' Xandi/.'] Godinho V. Be Koning. A Grant of land to 'the Chuioh. of ' Saint de Croos,' with- out naming a Trustee, is valid. The Incum- bent who is appointed Manager ' of the Church and property thereof can maintain an action under such ' 1 'eed. The English Statutes of December 2Srd, (C. S. T.) 999'— Godinho, vs- DeKoning. [From ' Murray 'sEepoi'ts' — pp. 52- -65,] In this case certain land was seized under a Writ of Sequestratioa, as the' property of the defendant ; but the plaintiff opposed the sale thereof on the following grounds : — (1), That the plaintiff was 'the presiding ' Koman Catholic Missionary at Batticoloa, ' and Manager of the Church and property ' thereof.' (2). That the Paddy-field in question ' was 'lawful purchased property belonging to the ' Church of Saint de Oroos oi' JBatficaloa,' a.a ' appears by the Title Deed dated the 3rd No- ' vember 1807, marked 'A.' " (3), That the said Church " had possession ' of the land, as per Title Deed thereof, ever ' since the purchase.' The Title Deed produced, which was execut- ed by a private party, " sold, assigned, and transferred unto the Church of Saint de CrooS)' the land in question, ' for and in con- ' sideration of the sum of Bdh, 50, which 473 1846 amount of Sds. 50 baa been fully received by me." The defendant excepted to the Title of the plaintiff ' inasmuch as the supposed olah Deed 'filed does not exhibit in itself the essential * requisites, expressing sufficiently the proper ' name or names of any person or persons, the ' Grantee of the plaintiff's ancestors or prede- ' eessors, to make a good Title.' The District Court (2ith August 1844) dis- missed the plaintiff's application to have the laud released from seizure — being of opinion that the olah Deed produced was not a legal Deed, inasmuch as (1), The Church alone, and no Trustees were named in it, consequently there was no person able to be contracted with ; and (2). There was no one to deliver to, and no delivery could therefore have taken place under the Deed. The plaintiff appealed, and the case came on at Jaffna on the \Sth July 1846, and was then, by the Judge on Circuit, reserved for Collisction decision. The Queen's Advocate (Mr, Buller) in sup- port of the appeal : The appellant, as Incum- bent and manager of the Church and property thereof had a title to sue; — if he had not, the Grant to the Church was void, and no religi- ous body in this Island could maintain its rights. This is the first time the doctrine of the District Court Judge was mooted in Ceylon. Here, from time immemorial, the terms of Grants to Temples Have been " to the Temple," not " to the Priest and his successors" ; and the Supreme and District Courts have fre- quently recognised such Grants as valid. The English Law on this point was not in force in Ceylon ; but even in English law, with aU its technicalities, by that branch of it which regu- lated the operation of Deeds for charitable pur- poses, this Grant would be held good, (Koberts, On WilJs) Collective Court. Z)e Koning. Mortmain do not extend to the Colonies. Dutch Law restricting donations of this descrip- tion, not acted on by English Go- vernment, in Ceylon. The Butch Civil Law does not re- cognise the technical dis- tinction of the English Law in con- struing Deeds andConti-acts differently from Wills. 1845 474 CoUeotive Court. 0odinho V. De Kojiing. Acting Chief Justice, (Mr. Carr) — There is no doubt as to Wills. The Q, .4.— Then all Deeds for charitable- purposes stand on the same footing as Wills. A. C- J. — There is no delivery in Wills. The Q. A, — There was delivery in this case to the Incumbent ; though in gifts ad, pias causasi the presence of the donee to accept is not necessary to complete the transfer. The English Courts are very liberal in construing Charitable Trust's. {Bacon's Alridgement, i. p. 584). Misnoniars will not prevent the operation of a Deed, provided it contains, other- wise, enough to shew who is meanti Sta~]c J: — referred to the Ordinance No 2 of 1840 as evidence of the customary law of this Colony to grant lands to ' Temples.'* The Q. A. — In a recent prosecution for theft of property belonging to a Temple, OliphantC. J. directed that the stolen goods should be laid as the property of ' the Temple,' The Supreme Court ' on the 23rd December 1846', set aside the Judgment of theD. C. in the following terms : — ' The Plea is over-ruled ' with Costs, and the defendant is ordered to ' answer, within such time after this order shall ' have been notified to her, as the D. C. may « appoint. ' The Supreme Court is of opinion that ' according to the prevailing law and usage in ' this Colony, Deeds in this form, adpiosusus, • are valid, and that the plaintiif as the ' Itoman ' Catholic Missionary at Batticaloa, and the ' Manager of the Church and property thereof,' can mainiain this action on such Deed, if duly proved. ' The Statutes of Mortmain do not extend to ' the Colonies of Great Britain. (^.BurgejG.L.AU. ' Genl. vs. Stewart, 2. Mes, 143.); and the Dutch * The Ordinance No. 2 of 1840 was disallowed by the Queen. See however Proclamations of 21st Novemhey 1818, and 18th Se;ptember 1819.— ■£,' this goes to ' the parson and his successors, and this con- ' struction now prevails in Wills, where the ia- ' tention only of the Devisor is regarded ; and it ' will therefore suffice in Wills, if by the des- • cription the meaning and intention of the De- ' visor is apparent ; thus a devise ' Ecclesioe ' sancti Andrea de S,' would be a good dona- 'tiou by "Will to the Corporation or the 'Parson of the said Church, and his suo- 'cessors, 'for such description was suffici- *ent in a Will to express the Parson of ' the Church and his successors, because though ' not named in the devise, he was comprehended ' in it,' (Powel On Devises, Vol. 1, p, 338. ; 10 ' Co. K R. 57-60). In the Dutch Civil Law the ' technical distinction of the English Law, in * See also BegulaUm, v. of 1829 and 10 Geo. iv .e 7, ■; For the relief of His Majesty's Roman Catholic sub- jects."— JJcJ, Collective Court. 1846 476 Collective Court. Godinho De Koning. Unnanse V. Maha Naike Unnanse- Deceased party to a suit has no right to pro- ceed tharein, until he is made a party defendant by an Order of Court. Superan- nuated Judg- ments must be revived. ' conatiuing Deeds aad Contracts differently ' from Wills, is not recognised, but the iuten- ' tion is prefeired. (Yandef linden, p. 192). A ' Deed therefore is not avoided by any misnomer ' of the Donee, provided the intention appear ' sufficiently clear and Certain." — [No 9,523. D. C. BatticaiochJ lOOO. — Unnanse, \ Maha Naihe Unnanse, [Prom ' Murray's Eeports' — pp. 65—67.] This was a long pending case, the original action having been instituted in 1S33, and delayed in consequence of the loss of the Hecord and other causes. It was a suit for the recovery of certain land of considerable value claimed as belonging to the Temple 'MarasanaWihare.' On the 5th of August 1834, the plaintiff obtained Judgment in the D. C. vfhich was affirmed in appeal on the 12th Aiogust 1835. The defendant then intimated his intention to appeal to the King in Council, but whilst inquiries were in progress to ascertain the value of the property in dispute, in reference to the Appeal to tlie King, the Eecord was lost. In this state of matters the plaintiff applied for and obtained aWrit of Sequestration by virtue of which he, on 1st Aipril I84i0. sequestered the crop of the said land, which sequestration was still in force when the case came on in Appeal, The original defendant having died, his re- • presentative Induvellegodde Unnanse, on the 23rd April 1846, moved the D. C to dissolve the Sequestration, as the plaintiff had taken no steps in the case since April 1840. With this motion the present defendant filed his affida- vit, that he ' is the lawfully constituted exe- ' cutor of the estate of the deceased defendant, '.and that this affirmant on the death of the said ' deceased, became the defendant in the said ' suit, as the Executor as aforesaid, and had the ' conduct and management of the same in that ' Capacity ; and further that he is the present ' Incumbent of the Temple Marasana Wihare.' 47'/ TUe D. C. on the 2ith April 1846, rejected the motion with Costs, being of opinion that the plaintiff ought not to suffer from the loss of the Record, but that he was entitled to reap the fruits of the judgment in his favor. Against this Order the defendant appealed. iJ. Morgan (Advocate) was heard in support of the appeal, J, Stewart (D. Q. A.) appeared for the Kes- pondent. On the 23rd December 1846, the Supreme Court aifirmed (though on different grounds) the decision of the District Court rejecting the motion : — 'It is considered and adjudged that the Inter- ' loeutoryOrder of the 24th April 1846 be affirm' ' ed as to the motion being rejected with (Jests. ' The Supreme Court is of opinion that Indu- ' velleqodde Uhnanse cannot, until he is sub- ' stituted in the place of the late defendant, by 'an Order of the District Court, maintain any 'motion to set aside the present sequestration as ' irregularly issued or enforced, because he has ^ no persona standi in the cause to do so. ' tTpon inquiry the Supreme Court fiads that 'it has been wrongly stated at the Bar, that it • is the prevailing practice in the D. C. of 'Colombo not to revive a judgment unless ex- 'ecution has been taken out under it for a year. ' Any such practice would be irregular. Van- ' derlinden (p. 423) in speaking of Citations to ' hear such execution decreed, says, this takes ' place, Jirst, when the Decree or Sentence of ' which execution is sought has become super- ' annuated, &c. ; and, secondly, when the party ' condemned is dead, or, by being placed under ' cnratorship, has lost the legifimam personam ' standi in judicio. In this case the Decree ' before it can be put in execution, must be « declared executable against the Heir or Curator. « (See Vanderlinden, p. 28. ; Grant, C. P. Vol. «1. pl6l.;and White v Rayward, 2. feset/ ' 462 ; 1. Mer. 154,) The Supreme Court there- 1846 1846 478 Collective Court. 1847 Queen's Advo- cate V. _ Mendis and others. Proof of long cultivation and payment of tax,coupled with produc- tion of two old Deeds in favor of de- fendants, constitutes such a prima, facie title, aa amounts to a ' probable claim or pre- tence of title' under Ordi- nance 12 of 1840. In. i-ummary p roceedings under this Ordinance, the D C. has ■ no power to decide on validity or otherwise of an old Deed, appa- rently genu- ine, which had been accompanied bypossossion. ' fore sees no ground to dissent from its former ' Order requiring this case to be revived — [No '17,313, D. G. Randy. 2 6lK January. (C, S. T.) 1001 — The Queen's Advocate, js- Sadris Mendis aud others, [Irom « Murray's Eeports' — pp. 67— 70. J This vsras an Information by the Q. A. under the Ordinance No. 12 of 1840) claiming for tho Crown certain land alleged to be the property of Her Majesty, which the plaintiff alleged that the defendant had, in February 1844, un- 'lawfuliy,andwithoufc probable claim or pretence of title, entered upon and taken possession of.' [See No, 6108, D, 0. Kandy, ante, p. 460.] The defendants pleaded Not guilty. Evidence was adduced in proof of possession and cultivation of the land by defendants for upwards of 20 years, and of payment by them to Grovernment of tho usual rate of tax exigi- ble for private lands. The defendants also relied on two very old Deeds or Grants of the land in question, in favor of their predecessors. The following is the judgment of the Dis- trict Court •.—{Septemher 25th, 1845], ' The ' 6th cl. of the Ordinance No. 12 ot 1840 is ' explained to the Assessors, and they are ' called on to state if the defendants have prov- ' ed to their satisfaction, that they (the defend- ' ants) have within the last 20 years paid ' such customary taxes, &c., on the land in ' dispute, aa are paid on similar lands, the prc- ' perty of private individuals, within the same ' District. 'The Singhalese document filled by the de- ' fendants dated 28Lh March 1793, is also put * into their hands, and they are asked if that Deed can be construed into an absolute Grant ' of the Villages or lands mentioned therein. 'The Assessors not understanding either 'Dutch or Ejigliah, cannot be expected lo give 479 1847. •any opinion of the Dutch Deed, or its En g- ' Jish translation, also filed by defendants. ' The Assessors state that the Singhalese ' document placed in their hands appears to be ' a Sannas in favor of the Chaliahs of Katupiti ' Madampe, and that allusion is made therein * to another Sannas of the 20th January 1767. ' They say that with regard to payment of < taxes, it has been proved that defendants have * paid but one-tenth on the land in question, ' and that such appears to have been the rate ' of tax paid by private parties in the same ' District, and that their opinion is altogether ' in favour of the defendants' claim. ' Tbe District Judge, as far as he can form ' any opinion from so imperfect a translation ' as that produced, does not regard the Dutch 'Deed as an absolute Grant of lands. It is . ' beaded ' Extract from the Resolutions of ' Council held on the 20th September 1766' ; and ' at the foot it is set forth as a mere copy from * the Dutch Eecords, and signed as such by the * person who kept such Eecords. That is the ' only signature it bears. The Resolution come ' to appears to have been to reserve certain lands ' in the Chilaw District for such Chaliahs 'as might return to that part of the country ' from the Kandyan territories, to which it ' would appear that many Chaliahs had fled. ' The carrying of thatEesolution into efFect, was ' contingent on the return of such ChaUaks, 'and could only be adopted with regard to ' those Chaliahs as actually did return, ' The Singhalese document alludes to ano- •ther Sannas of the 20th January 1767, (which ' is not before the Court, the IJutch Deed be- ' ing dated 20th September 1766) but does not * appear to the District Judge to convey an 'absolute title to lands. ' With regard to the taxes paid, it appears to 'the District Judge, from the evidence, that ' all Chenas, whether cleared with or without Collective <.lourt. Queen's Advo- cate V. Mendis and oihera. 1847. dSO Collective Court. Queen's Advo- cate V. MendiU and others. ' permisBion of Government, pay tbe same rate 'of duty, namely, one-tenlh to Government, • in the Chilaw District. ' Such being the opinion of the District 'Judge, it is ordered that the defendants give • up peaceable possession of the land called • Galelieteyawe to the Crown, together with all • crops and iramoveable property standing there- 'on, and that they pay the costs of the Informa- ' tion." The defendants appealed on several grounds, and the case was reserved for collective decision. R. Morgan, (Advocate), appeared for the ap- pellants, but the Court thought it unnecessary to hear hiin, and the D. Q. A. (SeUy) left the case in their lordship's hands. Pee Cueiam : — Bet aside with costs. ' The ' Supreme Court is clearly of opinion that this ' is not a case for the summary proceedings under • the Ordinance No, 12 of 1840, and that theD. 'C. ought not to have made any order therein t against the defendants to deliver up possession ( of the lauds mentioned in the luformation, « because the proof of the long cultivation thereof ( by the defendants, and the payment of the tax « of one-tenth for the same, Recording to the rate I payable on private lands, and also the old I Deeds adduced in their favor, sufficiently shew ' such a prima, facia title in the defendants, as •amounts to a ' probable claim or pretence of • title,' under the Ordinance. The District ' Judge, moreover, ought not thereon to have f proceeded to decide under these summary prc- « ceediugs, whether upon the true construction t of an old deed, apparently genuine, and where I possession has accompanied it, the original • Grant was absolute or conditional only, and « whether any condition contained therein had < been since duly fulfilled or not by the f grantees,'— [No. 1,879. D. C. Neffomio.] 11,388. 481 1847. 6th January, 1847. (C. S. T.) 1002 — M. L. Odooma Leble Markair v. B,Simon [From ' Murray's Reports,' pp. 75— 76.] Tliis was au action for goods sold and deliver- ed. On the day of trial, it transpired that the plaintifE was only nineteen years of age and un- married ; and that he lived with his parents, though he carried on trade in separate premises on bis own account. The defendant urged that plaintiff, being a minor, could not maintain the suit without the consent and assistance of his guardians.- The District Judge was of opinion that accor- ding to the Dutch Civil Law, minors (that is those under 25 years of agej, could not appear without the consent and assistance of their guardians, and (the Assessors concurring) the plaintiff was nonsuited. The plaintiff appealed on several grounds.: (I). That the objection came too late. (2). That the objection, if valid, did not warrant a nonsuit ; but that the guardians should have been allowed to appear. (3). That though a minor could not be sued but through his guardians ; yet a minor could maintain a suit on n contract ad- vantageous to his own interests. . (4.) That plaintiff was a trader, and transacted business on his own account. The Circuit Judge affirmed the Decree, sub- ject lo the opinion of the Collective Court whether the age of majority should be reckoned according to the Dutch or Mohamedan Law. The Collective Court sei asid^ the Decree, and remanded the case for beajing and evidence de novo. Per Curiam: — ' According to the Moorish ' Law the age of majority is after the expiration ' of, or at the completion of the sixteenth year. ' (Hedaiy a. Vol. iii. p. 482 ; MacNwugUen't ' Moh. Law, eh. 8., p. 62.) , and by the Dutch ' Law the parental power ceases by tacit or in- ' direct emancipation, when the children vrith Collective Court, The son of Moorish par- ents entitled to sue, on his attaining his aixteenthyeac where he trades on his account, se- parately, with the know- ledge of bis parents ; though he continues to reside with them. The Moha- medan and not iheDutoh Law should govern such a case. 1847 482 Collecti-re Court, Case lying dormant in Appeal, or- dered to be struck off the List. Surplusage in an Indict- ment may be rejected. Technical ob- ' the previous knowledge of the parents, take • up a residence elsewhere, and exercise openly • any trade or calling.' (Vanderiindm. p. 96, and Voet, lib. 1, tit. 7—12). ' As the plaintiff appears to be 19 years of ' age, and is openly carrying on trac(e in a • separata house of his brother's on his own ' account, with the knowledge of his parents, • the Supreme Court thinks he must be deem- « ed to be no longer under the parental ppwer, ' and that although he has continued to reside ' with his parents, that circumstance alone • affords in this Island, no reasonable presump- ' tion to the contrary, in the case of a young « Moorman who has already attained his full • age of majority according to his own laws, and ' is trading se^aratim on his own account ; ' because the custom of the Moors and l^ativea ' in this Colony, is for the whole family to con- ' tinue thus to reside together in the same ' house until the marriage of the children, and ' even after wards.'— [No. 18,238. J>. C. Galle.] 1003. — Sekady Marcar v. Tamona Lebhe and another. This case having lain dormant since the year 1841, and uo party appearing in support of the Appeal, and the 1st defendant being reported by the Registrar to be dead, it was ordered that the case be struck off the List of Appeals, and be returned to the Court below. [A'b, 21,876, D. C. Colombo.} December 4ith. (C. S. T.) 1004. — The Queen v. Sarmanis, convicted of Forgery at Caltura. It is adjudged that the motion in arrest of Judgment be pver-ruledj and that the Indictment is Sufficiently supported by the evidence adduc- ed. It appe^irs th^t the " words " Notarial Xnsiryment" occur before th^ purport of the iustrament ia ^et out, ^ud being n^^tter of ia- 483 1847 duceraent, the record would have, in England, been ordered to have boen amended by striking out the word " Notarial", f 2. Russell on Grimes p 798-9, and note 9 ;) and whcuever such amendment is allowed, the Supreme Court would reject the words as surplusage ; as although the Court hab by its rule of the 6tb December 1845 ordered that no objection shall lie to the form of any Information in any casp where such objection would not be allowed by the Law of England upon any Indictment, it has never gone on to further declare that all objections ■which are valid by the Law or prac- tice of England, shall be equally allowed here. On the contrary the Supreme Court has always maiuly looked on such technical objections, to see whether the Information stated the oftence -with sufficient clearness and certainty, for the Prisoner to know the crime with which he was charged, and to be able to make his defence to it ; and in this case the Information can leave no doubt as to the nature of the instrument, viz, that it purported to be a Deed of Sale of the garden mentioned therein, but was incomplete for want of the due attestation of a Notary, the gist of the offence laid therein being that the Prisoner, in his office of Notary, had fradulently omitted to seal and sign such Deed of Sale. {No, 6, Grown Case Reserved.'^ December llth, (0, S. T.) 1005. — Jfeygale, widow, v. GMnnetamby. In this case the Decree of the Court below was set aside, and the case remanded for further enquiry and Judgment de novo. Per CuEiAM. — It is very probable, for the rea- sons ably stated by the District Judge, that the parties in framing the instrument did not intend to restrict the first and second defendants from disposing of the garden by mortgage or sale only ; but if the Court were bound to look to the deed alone, it could not possibly hold that tho Collective Couit. jeotions valid in England are ■not equ- al ly allowable here. 184.7. Collectiv e Court. Ohmnetamby, 484 legal effect of the express prohibition therein asainst mortgaging or selling, extended also to debar the donees from making any gift, excbange, or other alienation of the said garden. On the contrary the Supreme Court would incline to consider that in aa ordinary Grant, the condition would be wholly void as annexed to an absolute gift; but as the document on the face of it is a gift or dowry, another in- dependent question must necessarily arise thereon, which may affect the transfer of this garden between the defendants, viz ; whether by the general customary Law of dowry, pre- yaMi^g at BaUicaha, the husband cannot even with the consent of his wife give away the w/joZe of her dowry property to the sister of the husband ? And also if a married couple die childless, the dowry property does not by such Law devolve on the donors or their heirs ? This Court has on a previous occasion, in reference to the wife's properly, had to notice the analogy between the Theseioaleme or cus- tomary laws of the Malabars at Jaffna, and the customs prevailing at Batticaloa, and has referred the case back accordingly for enquiry as to the latter. (&.ppeal No. 2912 D. Q. Batticaloa, 11th November 1835,* and Marshall's Digest, pp. 224 ; 94, and 222) ; and believing, as the Supreme Court does, that the decision of the District Court has met the real Justice of the case, it is only desirous to have such decree established on its proper legal grounds. [iVo. 10,443, B. C. Batticaloa.'] December 29th. (C. 8. T.) 1006 — Don Abraham v. Totie Unnanse. The Judgment of the Police Court is set aside. The 2nd clause of the Ordinance in question provides that, whenever the Governor * Vide Morgan's Dige$t, p. 62, par. -Z 67 485 1847- sliall declare by Proclamation that a Police Force shall be established within any town and limits specified in such Proclamation, the Ordinance shall come into operation therein ; the Supreme Court is therefore of opinion that as Galkisse is not within such specified limits, the 36th clause of the Ordinance, on which the prosecution is founded, cannot be held to have come into operation therein. The Acting Senior Puisne Justice (Mr. StarJc) dissents, being of opinion from the 56th clause of the Ordinance No. 13 of 1843, and the Ist clause of the present Ordinance, that these Ordinances respectively were intended to have operation immediately and universally, except as respects the Police Force of the towns and limits mentioned therein, and the clause under consideration has no reference to such Police Force, f No. 9153, P. C. Colomho.'] Collective Court. Ahrdhmn V. TJnnanss. 1007. — Perera v. Dias and another : The Petition of the second defendant, pray- ing for leave to appaal from the Judgment of Court below in this case, is rejected. The Judgment of the District Court sought to be appealed from in this case was pronounced on the 30th April 1841, and an appeal was lodged against it by tbe defendants ; but that appeal was withdrawn by the defendant's Proctor on the Slat December in that year, and the pre- sent application was not made until after the lapse of more than six years and a half, after the withdrawal of the first appeal. The only ground on which this application is founded is a mistake in Law in the Judgment, and it is not alleged that there has been any fraud in'this case, or that any evidence has been discovered since it was decided, and the Plaintiff, who was a pur- chaseri completed the transfer of the property in question after the action was brought. It may also be urged that although the general Law is, as stated in the opinion of the Perera V. Dias. 1847 486 CoUeotiTe Court. Advocate for the Petitioner, yet there are eases shewing that agreements restricting redemption to time certain, are good if ;between members of the same famih/, as the mortgagor migiit thus intend to benefit the morfgagee. (JBenham v. Newcomh 2 Vent, 364 ; 1 Powell, Mortg : 128.) 1008. — King v. Hamilton. Judgment, The proceedings in this ease hav- ing been read : — It is ordered) with the consent of the Counsel on both sides, that this case be remanded to be heard at the ensuing sessions for the Midland Circuit. It appears from Armour's Digest, tit ; Lat Hind, that the Kandyan Law is not silent on the point stated to be material in this case, and it may possible be requisite to take further evidence as to the custom thereonj under these circumstances the general question on whieh the case has been reserved for Col- lective decision, viz -, "As to what Law ought to prevail in the absence of any Kandyan Law upon the subject," does not at present arise in the case. [iVo. 20, 194. B. C. Kandy.'] APPENDIX IN APPEAR FROM THU C. R. QF COLOMBO. No. 18859. B. E. Adoiphus Plaintiff and Appellant. Versus. SanGekelisgam Kannen and an- other Defendants and Respondents. The defendants were Managers of a Oheetoo Club, and as such managers were alleged to hold in tbeir hands the sum of £7 being the stakes of a lottery, which had fallen to one P. Canden. These stakes were seized under the writ No. 9388 issued against the "Houses, Lands, Goods, Debts, and Credits," of the said P. Canden at the instance of one John Henri/ Perera, aiid sold by the Fiscal ; they were pur- chased by plaintiff who brought his action on the Fiscal's assignment. lat defendant examined, states, — "I am a member of a certain Cheetoo Club. There'were 158 GJteetoos (or Tickets) at 5s each. After tlie number of subscribers is complete, and the sum for each Ticket paid, the drawing com- mences ; it takes place twice a mouth. At each drawing some one of the subscribers gains the pri?e, which entitles him to tie whole amount subscribed. The subscribers again (including the one who won the prizej pay down 5s each for a Ticket, and another draw- ing takes place. In this way the subscription continues, and prizes are drawn, until each cheetoo-holder bns gained a prize. If, for in- stance, there be 20 members paying £1 each, some person at each drawing gains a prize of £20. No prize in favor of Pamben Canden turned up, the club having ceased to exist before bis turn came round." Appendli A. AdoVphus. jam and another. 1862. Appendix A. , A . V. Scmgerelingam,. 1862. Appendix B. < • N Collier. V, 1847. Judgment (per C. S. de Saram Commis- sioner) : " It would appear that one Pamhen Canden was a subscriber to what is called by the natives a Cheetoo Club. It is clear from the statements of the defendants to the Piscal's Officer (plaintiff's 1st witness) that Pamhen Ganden had paid £7 into their hands being his subscriptions to their club- We all kDow what a Gheetoo Club is, and that it is just what the lirst defendant has described it tu be. It has therefore clearly for its object an undertaking in the nature of a lottery, and, as such, prohi- bited under a penalty by Ord. 4 of 1844. The contract between all the parties connected with such a club, is consequently void by statute, and the plaintiff, being in the shoes of Pamben Ganden one of the members, is in no better position, and is precluded from obtaining relief. The claim is dismissed ; each party to bear his own costs. In appjeai. {per Guriam) affirmed. This is clearly a case of an illegal lottery. IN APPEAL FEOM D. C. OF COLOMBO. No. 38134. Edmund Collier Jr. Agent and At- torney of H. J. Albrecht, trading in Ceylon as C. D. Paklett and Co. Plaintiff' and Appellant. Vs. Tkagappa Chettt, Defendant and Respondent, Golliev, as above described, sought to recoTer from defendant £286. 19. 7 as balance remain- ing due to G. -D. Parlett and Co., for the price and value of two Bengal Government Bills of Exchange sold and delivered by that firm to defendant, on the a2nd March 1841. The de- fendant pleaded in abatement another action (No. 33125) pending against liim for the same claim, at the instance of i^. Lamhe, as the then !Fact< r of C. D. Parlett and Co. At the trial Collier V. Teagwppa 1847. plaintiff admitted that the cause of action in Appendix B. both cases was the same. It appeared that Lambe was for some time manager for G, £>, Farhti and Co. The partners then were Alhreeht in England, and Parlett in Ceylon. When Parlett was tempo- rarily absent from the Island, Lambe did the business by procuration. After Parlett's death in March 1840, Jlbreckt, then in England sent a Power to Lambe authorizing him to wind up the affairs of the firm, and giving him the general superintendence and managemeut of the new business to be carried in Cey- lon by Alhreeht on his own account, as C. D. Parlett and Co. The Power authorized Lambs (inter alia) "to commence, prosecute, defend, discontinue, compromise and settle any actions suits or other legal proceedings", relating to the now firm, and to " use the name of the said Henry James Albreeht for these purposes." Under this Power Lambe acted, and in negoti- atinir BilJs and managing other transactions, Lambe signed " C. D. Parlett and Go." Albreeht who came to Ceylon in January 1841 was pre- sent on 22nd March 184 1 along with Lambe at the sale of the Bills of Exchange in question, which was for the behoof solely of 0. D. P. and Co, and was so entered in tneir books. The Bills bore the endorsation " CD. Parlett & Co." On the 14th April thereafter, Lambe institu- ted, in his own individual name, the suit. No. 83125 against the present deft ; no mention was made by Lambe in the Libel of his constituents, C. B. P. and Co, although the Proctor's origin- al authority to institute that suit was a letter signed " C. D. Parlett and Co." in the hand- writing of ZoMie. On tiie 11th May 1841, Lambe ceased to conduct, and Albreeht took the sole management of, the business. A letter was put in evidence dated 24th Feb. 1842 sign- ed " 0- D. Parlett and Co." addressed to the Proctor who instituted the suit No. 33125 ; it was in ihe handwriting of Thompson the then Agent of the firm, a»d after relerring to this 1847. IV. Appendix B. and other cases, proceeded : " For these suits ^— ~\ we request to receive from you a written ac- OoUier knowledgement that you consider yourself as proceeding solely on our account, and that you undertake to pay over to us such sums as you may recover in respect of them." It did not appear what reply, if any, was made to this letter. A iiother letter was offered in evidence by Plaintiff from Lambe to Albrecht, relating to the capacity in which Lambe acted for the firm ; but the D. J. rejected the evidence, on the ground that it was a private letter, and that Lambe andAlbrecht might be colluding against the Defendant. JoDGMENF of the D. C. (29th J% 1845.) " The defendant has pleaded in abatement tiiat another suit was pending for the same cause when this actioa was commenced, wherein, Frederick Lambe the then factor of G. D. P. and Co. was Plaintiff. Upon this plea issue is taken. It is admitted by Plaintiff, (Collier,) that the cause' of action is the same ; but It is contended, that although Lambe, the Plaintiff iu the formtr suit, was in the employ of the firm, it was not in such situation as to entitle him to maintain an action iu his own name, as he h^a done ; and that, consequently the firm is not to be debarred from maintaining this action. This must be held a good plea if Lambe did, when he commenced the action, stand iu such a relation to the firm as to entitle him to maintain actions, in which the firm was con- cerned, in his own name. The point, therefore, for consideration is, whether Lambe di3 stand in such relation , and in order to ascertain this, let us see first, whether he.stood in such a relative position, as to be personally liable upon con- tracts entered into with him for the benefit of the firm. " It is quite clear that a party is personally responsible, if he does not Hisciose the fact of his Agency. {Story's Agency p. 228 ) But here it may be said that an Agency was disclosed as the Bills were endorsed 'C. D. Parlett and Co.' It is true that this does disclose the fact of Lamhe beiug an agent, but is it disclosed to whom he was such agent ? — it beiug a well knowD fact that C. D. Parlett had been dead some years. But if a contract is entered into by an Agent who is known to be such, and acting in that character, but the name of the principal is not disclosed, the same principle applies, and the Agent is held responsible ; and until such disclosure, it cannot be supposed that the contracting party would have entered into a contract, exouerating the Agent, and trusting to an unknown principal, who might be insolvent or incapable of binding himself XStory's Agency, p 229.) " 1 think therefore iawJe did stand in such a position as to make him personally liaiile upon contracts entered into by him on behalf of the said firm. " The next point then comes, whether he could sue in his own name. Now, Indepeudeut- ly of the principle that he who can be sued can also sue, on the same subject matter ; consider- ing that the contract in this case, if such it may be called, was made with Lamhe for 0. D. P. & Co, and that the name of Parlett is fictitious ; that the name of the real party concerned, namely Alhrecht does not appear throughout the transaction ; and moreover that he was not generally known to be the principal of the firm, and did not usually reside in the Island, I think that Lambe could well institute the acti9a No 33125, and that the plea pleaded in this suit must be held good. It is accordingly decreed that the Defendant be absolved from the ins- tance with Costs. Assessors concur." From this decision the Plaintiff appealed on two grounds : (1) that the Court below rejected evidence whereby the true position of Lambe with 0. D. Parlett and Co would have appeared ; and (2) that a Broker was not by Law permit- ted to sue in his own name, and without refer- ence to the name of his principal. Appendix B. , • ^ Collier V. 1847. VI. Appendix B" ColUer V. Teagroppa. 1847. Selhy D. Q. A., for appellant, was stopped by tlie Court — the Acting Chief Justice fMr. Carr) observing " I am with you Mr. Selhy." Stewart D. to Q. A. waa about to address the Court for Respoudent, when SeJby objected on the ground that defendant had left tie Island and was not represented in Court by a Proctor, though the case had stood over for 6 months for filing proxy. The C. J. decided to hear the Respondent's Counsel. Stewart. The defendant ought not to be harassed with two actions. Lambe had a special property in the Bills and could therefore sue in his own name. {Story's Agency, p. 29.) The film of Parlett and Co was not a known priucipa', and Lambe was also a foreign Agj'nt, and there fore on both grounds Lambe might sue in his own name. Plaintiff {AlbreeJit) might have have intervened in such a suit, but could not maintain a separate action for the same debt, as the factor and principal were the same party, in- asmuch as the defendant could have set off against the factor's claim a debt due to the de- fendant by the principal. Chief Justice. Plaintiff ought to have inter- vened in the former suit, and he not having done so, the two suits should be consolidated, and the plaintiff pay the additional costs. Selby. His view of the case was difierent from that expressed by the Court. Admitting Lambe to have been a factor and entitled to sue in his own name, it did not follow that he and his principal were, therefore, the same party. Though for some purposes they might be so considered, they were not for all purposes iden- tical. No judgment against Lambe could have been executed against the property of the firm. The admission that Albrecht coa\i and ought to have intervened, established tlie fact that lie was not identical with Lambe, for he {dlbrecht) was already a paity to the suit, and every interven- tion must be by a third party. That Albrecht could have intervened in that suit was true, for he could have said to deteudant, this motey vu. though sued for by, is not due to, Lambe (the plaiutiff) but to J'arlett and Co. ; whilst Lambe on the other baud might have denied such alle- gation, or set up a lien in his own favor on the bills. As Lambe and the firm might thus have adverse interesta, they could not be considered , identical ; and if not, the defendant could not maintain bis plea otlis pendens, which must be where the parties on the Record to both suits are the same persons : nor could ihe Court consoli- date two suits between difierent parties. ( Voet. 44. 2. 7. ; Gens. For. part. 2. lib. 1. titxuvi, and 6. Kersteman, 93.) Had Lambe sued as the Agent of C. D, P. and Co., tbe firm could not have brought a separate action until the former ■T-\x\t had been discontinued ; but he does not sue as an &.gent, but in his own right and in his own uume, and the proxy is signed by him in his own name, and not as an Attorney. (Paley, Princi- pal and Agent p. 180. Story's Agency, p. 118. 2 East 142.) Per Caee C. J. (25th March 1847.; " It is considered and adjudged that the Decree of the J). C. of Colombo of the 29th July 1848, be amended by the plea being over-ruled with costs, and by its being ordered that the pre&ent suit, and the suit No. 33125, be consolidated, when the Court can, at the trial thereof, decide on the respective liabilities of the parties to pay the costs in such suit. " The S. C. thinks tnat the plaintiff ought to have intervened in the former suit, and that the relative rights of the parties could hav^ been luUy and well settled by the Court upon the plaintiff's intervention therein, in lieu of his harassing the defendant with this separate suit ; 80 far, therefore, as the suit may appear to have wrongly occasioned further litigation and ex- pense, the plaintiff should be made, on the final decree, to bear the costs thereof. The S. C, does not consider, on the facts disclosed, that Lambe can be considered as a Factor, or as having any right in himself to institute the first action in his own Jiame, nor can the S. C. say [Appendix B. , ^ , Collier V. Teagappa. 1847. vm. Appendix , --^-^ Collier 1847. Appendix C . Idvera V. Pieris 1847. V See Morgan's Digest, p 2, and Beling's ,p. 281. hovT fjir the same was ratified bj the letter from the plaiutiff'a Attorney to Mr. Beling, (the Prootor) without knowino; vyhat answer was sent to it. * The whole case must be viewed in the nature of a Bill of Interpleader ("Drm^joafc*" v. Goodwin Cowp, B. 251, 255.), which is stated to be si- milar in some measure to the tertius interpeniens of the Civil Law. {Mad. 239.J and wherein the separate claimants can be compelled by the Court to interplead, so that the Court may ad- judge to whom the debt is due, and the third persons applying for relief h,G ipderanified and protected against their separate actions, if they have commenced the same," ^Murrm^'s Re- ports, (Sessions, 1847.) pp. 92— 98.] IN APPEAL FROM D. C. OF COLOMBO. No. U,176. LivERA (widow) Plaintiff and Appellant. DoMTMGO V-^if 13... JDefend/fP't and liespondanl. The suit was instituted against defendant as executor of Bastion FernanJo Lekame deceased, to recover the sum of £5. 12. 6 alleged to have been borrowed and received by the said B. F, Lekame, from the Plaintiff's late husband, on a Bond dated the 5th May 1832. Land mort- gaged by the Bond was to be possessed by mort- gagee in lieu of interest ; and the Bond contain- ed a mutual stipulation, not to foreclose, or redeem, the mortgage till after the lapse of 5 years. It was alleged that the mortgagee entered into possession of the land on the execution of the Bond, and tliat after his death, which happened about two years subsequently, his willow, the Plaintiff, continued and was at the institution of the suit, iu possession under the mortgage. IX. The Defendant denied the execution of the Bond, and pleaded the 3rd cZ. of tlie Prescrijj- tion Ordinance, No. 8 ISSi. It appeared at the Trial, from the examination of the Plaintiff, that her husband's brother, who was living, was administrator of the deceased's Estate, that the Estate had been long wound up, and the accounts of the administrator closed. On this admission Defendant moved that Plain- tiff be nonsuited, as the administrator was the proper party to bring the action ; but the D. J. over ruled this objection, and refused the motion. It also appeared, from the Inventory of the Estate lodged in Court by the admi- nistrator, that the sum sued for in this action was not included therein, nor was there any r-eference whatever made to it. The Plaintiff proved the Bond and adduced evidence of possession of land as alleged, The D. J. pronounced the following judg- ment {\mh October 1846) : " The Inventory filed in the Testamentary case No. 405, makes no allusion whatever to the mortgage in question. which the Court presumes it wrould have done, had the amount been still really due at the time. The Estate of plaintiff's late husband was closed in April 1848 in the late D. G. of Negombo, and she commenced this action in 1845. The evidence adduced being unsatis- factory, and the testimony of the witnesses as to the plaintiff's possession not altogether to be depended on, it is decreed, the assessors con- curring, that this case be dismissed. Defendant is absolved from the instance with Costs." The plaintiff appealed on various grounds. Advocate B. Morgan, (for Appellant.) The mortgage Bond was satisfactorily proved — and this was the only matter put in issue, by defen- dant. The Judgment of the D. C. proceeded on the assumption that the debt was not due at the time the Inventory was filed, that is to Say, that ithad had discharged before that time —au assumption which the Court was not jus- Appeadix C. ( Livera, T. Pieris 1847. > -J 1847- Appendix C. tiiied in ucting upon, as the defendant bad nob J, --f ^ pleaded payment, but non est factum ; and Livira, because, in point of fgct, no reasonable grpund- ^■. existed to justify such assumption. Nothing tSI*" was more common than such omissions m inventories, which were attributable to igno- rance or ipadvertence on the part of admi-t- nistrators. Had the proper issue l^een taken, and the plaintiff allowed an opportunity of doing so, she would have been able to explain, satisfactorily, the reason of such omission. No such opportunity was afiorded her in the D. C. The only issue was the execution of the Bond, and that was satisfactorily established. As to the di£Beu)ty suggested by the Court whether owing to the condition of the Bond the action was maintainable — that condition did not prevent this action, because (1) the correct meaning of the Bond wag that the restriction was not perpetual, but only to last for five years; (2) Even if a perpetual restriction existed it would be bad in law. An agreement taking away the right of the credi- tor to enforce payment, and leaving it to the debtor to pay when he pleased, was illegal, a>nd would not be upheld. ( Story's Equity Jitrisp : § 1009, and I Domat, Ch, iii, tit 1. sec % art, 9,10.) (3) Allowing the agreement to be goed and valid, yet, where in the case of an antichre- sis, a debtor unlawfully usurped possession of the land, instead of allowing the creditor to enjoy it lieu of interest,it would be competent to the creditor to bring either a hypothecary ac- tion for the recovery of the money, or an action to be quieted in possession of the land. The Rule is laid down in Voet. ( De pign. et Jiyr pot^ee tit l,«ce 23.) Per Carr A. C. J. (25th Mm-ch 1847) : " B is considered and adjudged that the decree ot D. C. of Colombo be set aside and the, case re- manded for re-hearfng pn further evidence, with liberty to the parties to am«nd their present lists of witnesses, and for the D, C. to give judg- lutrit eh novo. Costs to abide result. XI. " It has been urged by appellant's connsel that omissions in the Inventories of Adminis- trators, are not unfrequent, and do not, accord- ingly, deserve the weight attached by the D. C. to their omission ; but in the present instance, the accounts of the administrator at least ought to have mentioned somevrhere in them the mortgage, as the administrator has closed his accounts, and the plaintiff who is the widow of the Intestate, alleged that the administrator delivered it (the land or mortgage) over to her at the closing of the Estate. The administra- tor ought therefore to be made a witness, and examined to explain this omission. The plain- tiff appears moreover to have made out aprmci facie case to call for the defence, and the evi- dence in reply". — [Murray's Reports, pp, 84 —87.] INDEX. Page. Par, Absknce of a party to a suit ... ... 24, 1J3. on Trial day. ... ... ... 36. 162. of Proctor. ... ... ... ... 38. l69. of Proctor no ground for postponement unless un- avoidably absent. ... ... ... S4. 227 of inaterial witnesses. Postponements on account of the, ... ... . ... 69. 291, of Defendant. Necessary postponement. Exparte hearing on, ... ... ... 100. 403. of Counsel or Agent may be a ground for a post- ponement. . . ... ... 186., 529. of a party ie not in all cases a good ground for postponement. The, ... ... 192. 531. , the S. C. directed the Proctor to pay the batta of the witnesses. On a postponement in consequ- ■ence ofa Proctor's, ... ... ... 295. 644. Practice in cases where plaintiff in unavoidably absent on the day of Trial. I... Action to recover money due and unpaid. .. Cause of,. Disputing Plaintiffs title. by E.xecutor for money belonging to third parties. againt Executor of an Administrator. against married woman. Double, for land and for mesne profits. OB a deed which had been proved to be a forgery and cancelled . on an agreement respecting Pearl Fishery. for the cancellation of the Banns of Marriage. An- swer to the action. lor breach of covenant. The proxy of one of several partners is sufficient to authorize an, ... .. -• -.• 240. 579 340. 727 43. 190. ib. ' 192. 69. 288. 88. 363. 102. 412. 107. 426. 133. 454. 137. 463. 206. 549. 227. 563. [n.J Faff. Pa,T, Action. Where a debtor of a firm granted a bond to one of the partners and the other partner, after a subse- quent dissolution of the partnership sued the debtor, fleWthat the Plaintiff had, no right of, ... 241. 581. No, lies against a Surgeon for having ordered out the plaintiif from a room in which the former was performing his duties as Vaccinator, ... for the restitution of money actually paid. Evidence. No, is maintainable on a Lottery ticket. An, does not lie for including property in an In- ventory. is commenced. Costs of a previous action must be paid before a new. Where Sureties have been illegally proceeded against their remedy is by, against Auctioneer. .. Account will be opened upon proof of error or oppression. A settled. Accord and Satisfaction how pleaded and proved. ACKNOWLEDGHBNT of trUSt. of a balance is collateral evidence ' of what the balance is. Written, ... 70. 293 of title. Possession. Presumption in favor of heir. Administration to widow. Want of, Preferent right to, ... Failing to tender security. Prescription against Letters of, A party when precluded from questioning necessity for, Agreement of widow previous to, of deceased wife's estate. Second marriage. 52. pending the suit. Right to, refused to a Buddhist Priest . . . of a widow. to a widow. Proof of marriage. 24 1. 585. i63. 612. 271. 616. 317. 680. 320. 687. 328. 709. 331. 717. '11. 315. 677. 280. 624. 4. 16. 87. 360. 15. 74. ». 76. 35. 157. 37. 163- 47. 206. tS. t*. 48. 210. 52. 223. 53. 225. 65. 279. 66. 2B3. 90. 368. 94. 385 Page. Far, 94. 386. . 96. 397. .. 114. 439. .. 181. 520. Administration. Parties dying abroad, refiised to the widow, to deceased wife's estate, to creditor with consent of Executor, cannot be refused at any period after the death of an intestate. Quf How far it may affect a division already made among the heirs. .. ... ... 23S. S69. was unable to furnish security, but was the sole next to the deceased, the Court directed a limited grant. Where it appeared that the applicant for, ... 266. 614. rejected, where it appeared that the deceased had died about 50 years ago, and the property been divided amongst the heirs. Application for, ... 285. 633. It is only in extreme cases, the Court would prefer the Secretary to the next of kin. A partition decreed in the course of, ... Administbatoh, Defence as, Costs against, for a false plea. Adopted children joined as, ... Action against the Executor of an. Neglect of, how far excused. An, is at liberty to alienate or encumber the whole estate entrusted to him. The exbtence of other debts is no an- swer to a creditors suit against an, , except on a regular application. The Court will not interfere with the proceed- ings of an, ... ... 326. 703. for his share. One of several co-heirs may sue the, ... ... ... 343. 734. ADMiNiSTEATEix when sued for funeral expences after ac- count is filed. ... ... 39. 176. Adopted children joined as Administrators... ... 73. e04. Advocat*. a judge previously engaged ii3, in the cause ... 95. 388. 307. 665. 319. 684. 44. 192. 71. 29S. 73. 304. 88. 363. 161. 503. 252. 594, 314. 67«, Page. Par. 3. 15 .. 37. 166. .. 73. 105, .. 79. 330. .. 92. 373. .. 96. 394. . 143 473. .. 161. S02. 168, 509. ADiMis.sioN. Reiraction of, of debt, by Defendant, of part payment, without tender. Costs, made as a witness in a former action. of the debt. Prescription not pleadable after, of a party should be taken entire, of a party how far binding. A parol, is sufficient under the proviso in the 7th Clause of the Prescription Ordinance. ... 253. 597. of one co-defendant does not bind another if they put in separate answers. The ... ... 256, 601. in an Answer do not operate as an estoppel, except in certain cases, and may be explained by evidence. ... ... ... 260. 607. Adverse title. Meaning of term. Prescription... ... 20. 103. PosBeseion. ... ... ... 71, 298- A party claiming title by prescription, if proved to have been originally a mere cultivator is bound to shew when his title became, ... 187. 529. totheother. The possession of a joint heir is not,. 271. 618. after the lapse of the peiiod fixed for redemption. Ten years possession will give, him a title by prescription. Possessionof mortgagee becomes,... 281. 62S. Possession. Compensation for building and planting. AoENT payment to, Proctor's, Breach of contract. Principal and when not personally liable, . , . standing security for his Principal . . for share in the profits. Stipulation by, Where a party appears by Attorney, the D. 0. may requiie the presence of the party. . An Attorney cannot sue, unless expressly authorized. 345. Agreemekt misnamed. .. 312. 673. 13. 65. 79. 329. 148. 483. 149. ib. 152. ih. 156. 494. 324. 696. 345. 738. 9. 134. Page. Par. . 48. 210. . 80. 332. . 137. 463. . 139. ib.. . 143. 475. 240, 57.9. 111. 428. 115, 443. 12. 59. 5-2. 222. AoREEMKNt of Widow previous to administration. . Non-acceptance no, respecting Pearl Fiahery. Action on an, . may be presumed though the defendant has not signed it. Mutuality on an, for transfer of land. Waiver of, and that one of the conditions theieof had been broken by the Plaintiff, but refused to produce the agreement, the Court entered up judgment for the Plaintiff. In an action for work and labour, where the Defendant plea- ded a Written, . . . , Alteration of a decree .. .^, of a clerical error in a decree.. ., Alienation. Service Parveny of Service Parveny lands. Effect of Reg : No. 8 of 1809. .. .. 247. 587. of Service Parveny lands. Effect of Reg: No. 8 of ISTO. Amendment of Libel ... .. of Libel a fresh summons ought to issue. On, 334, Motion to amend must be on cause shewn . . Answbb. General Denial. Statements in the separate answers of Defend- -i ants do not prejudice each other. .. ..93. 381. but stated no special circumstances in support of his prayer, the Court refused leave. When after a general denial the Defendant prayed for leave to, Appropriation of payments. Appraisbment of a Temple. The Appraiser's fee is a charge on the KstatcT. . , . t . ApI'EAl. Revision. .. Security in. Objections during Trial, received by D, C. after lapse of time. Security in, 255. 600. 72. 303. 334, 721. 341. • 729. 62. 269. 231. 565. 83. 347. 95, 389. 307. 6(14] 8. 41. 31. 14-2. 44. 196. 45. 198. Page. Pa/r. , 45. 199. . 46. 203, . ih. 200. . 47. 207. . 49. 212. . 50. 214. . 57. 240. , 66. 282. 9. 74. 309. e. 97. 319. . 85. 352. ... ib. 355. .. 96. 396. 103. 415. .. 141. 468. .. 186. S27. [vi.] Appeai Judgment of S. C. binding on eecurity in, under Kule 6. Sect. 8. Merits. . . after lapse of time. . • • to Privy Council .. to Privy Council ... •• to Piivy Council. Fresh evidence in Review before Supreme Court to Privy Council. Value of the property in forma pauperis in forma pauperis. Provision as to future Costs, to Privy Council may lie against a suit for a divorce. False evidence no ground of, . . Against Interlocutory Order. Trial pending Interlocutory, Against a decree founded on evidence. Res Judicata in the absence of, A woman under coverture cannot, . Grounds for a postponement. Discretion of the Court below open to revision in, -.. 186. 528. cannot be accepted after the appointed time, unless by consent Security in, ... ... 194. 535. The S. C. vfiU decide on all Interlocutory Orders, with the assent of parties, and also in Criminal, . . 200. S39. The S.C. will not alter a judgment where the party aggrieved thereby has not appealed. ... 202. 543. . The appeal being frivolous the appellant was cast in double costs. Where a Judgment has been en- tered against a Defendant without notice, his reme- dy is not by, .. .. 243. 683. to the S. C, and not by a fresh action. The reme- dy against any omission or defect in the Judgment ofaD. C. is, ... .. 248. 589, on the ground that the Appellant's witnesses were tampered with, ... ... 283. 629. Tvas owing to the adjournment of the D. C. The course adopted where an Appellant's failure to. .. 285. 635. The S. C, will under certain circumstanceB stay ex- 309. 670. 318. 682. 320. 688. 323. 690. . 323 691. 325. 697. 325. 699. 326. 702. [vii.] Page. Par. ecution pending, .. .. 2a7. 640. Appeal through ignorance, the S. C. allowed him to do so after the limited time. Where a party failed to give security in, . . . . 298. 649. dispensed with where the property sequestered is cufficient to cover the judgment and costs. Secu- rity in, .. .. ,. ... 307. 666, Costs disallowed for improper language in the Pe- tition of, ... ., .. to Privy Council. Procedure on abandonment , to Privy Council. Procedure on abandonment . to Privy Council. Security in Appeal, to Privy Council. Security in Appeal. ... to Privy Council. Procedure. The S. C. refused to en'ertain an objection which was not made a ground of. Joinder of parties ordered on, to Privy Council. A surety dying the S. C. will accept another in his stead. ... .. 330. 713, Appkllant no ground for a new triaL Non-production of evidence by, ... .. .. 135. 456. Arbitration. ... .. ... .. 3. 10. Reference to, ... ... ... 18. 95. Keference to, ., ... ... 31. 141. Suitoia cannot be forced to, ... ... 48. 209. . Their signatures to such consent should appear on the proceedings. Reference by parties to a suit to, ... ... SO. 217, Forms of reference to, ... ... 67. 286. . Want of assent of the parties. ... 80. 335, is void by death of one of the Arbitrators. A submission to, ... ... ... 154. 487. Ambiguity on reference to, ... .. 158. 499. cannot afterwards dissent from the decision, merely because it is against him. A parry who has consented to a reference to, ... 252. 595. Arbitkator. Report of the, ... ... 80. 335, [viii.] fage. Paf ^KBirnAToS. A submission to arbitration is void by the death of one of the, .. .. 154. 487. It is irregulai for a D. J. to sit as an, . , 252. 595. or Umpire. The D. J. cannot, without the eon- sent of the parties, appoint ail, ... 296. 645. Articles of War allow of an, action but do not permit execution. ... ... 238. 573. Arrest. Qu ? Whether an, before the expiration of the period allowed for appeal would be a false arrest. ... ... 239. 57S. A.S6ESSOH8. •■- ••• ... 17. 86. Omission in the proceedings of the names of, ... 96. 395. AsRBNT to a sale of land . . ...« 54. 229, Assignment of a debt... ... ... 70. 294, AswBDDUMizEn the land of another, ^u .' Aa to the rights of a party who has, .. .185. 525. another's land with hir assent. Right of a party who, - . ... 199. 538 Attempt. Intention ... ... 14. 71. Attachment against a Court Officer. ... 140. 464. Attesting witnesses. Pioof of a Bond. Comparison of Handwriting ... !77. SIS. does not dispense with legal proof. The death of all the, ... ... 306. 663. Attendance of parties and witnesses, the Court will in view of the customs of the country respect their feelings. In directing the, ... 238, 575. Authority of a party to sue in behalf of another. ... 135. 455 to Act 3.B Curator ad litem. ... 164. 507. to act a.a Curatoi ad litem. ... 183. 523- AuTHENTioiiv of documents presumed. .. .. 178. 516. AucTiONEBR is entitled to detain the purchase money till the transfer is completed. Payment of purchase money. An, .. ... 52. 221. Liability of, ... .. 63. 272. Action against, ... ... 331. 717 Award after their voluntary submission to Arbitration. Suitors cannot object to an, ... ... 48. 209. Pa^e. Par. Award not signed by a?nhe Arbitrators is void. An, ... 154. 487- BiTTicALOA. Liability of a wi^e at, .. 62. 267, property acquired during coverture comes info community, and is under the sole con- trol of the husband. In, 261. 610. Banns of Marbiage. Proceedings upon opposition to, ... 85. 354. . Estate of a predeceased parents left, unsettled. ... ... 182. 521. . Answer to the action. Action for the cancellation of the, ...206. .549. dBAliEE who IS not to receive any renumeration for the custody of the property, is not bound to take that scrupulous care of it, which wovild otherwise be required of him. A, . ... 241. 580. "Batikruptcy. Who air entitled to the custody of Letter Books of a bankrupt ... .. 249. 592. The D- C. cannot take the initiative in any act connected with tile, ... ih ib Batta of the witnessep. On a postponement in consequ- ence of a Proctor's absence, the S. C. directed the Proctor to pay the, Witnesses living 4 miles of the Court not entitled to, 328. Bequest. Verbal, .. Verbal, Oral, of real and personal property. Bill of Exchange Bond. Prescription. by one Partner. ., Consideration and Variance of, jMisnamed. Prescription against, ., Proof of payment. from creditor. Action to recover a paid, Proof of payment. 295. 644. S28. 703. 82. .344 101. 407. 175. 514. 12. 61. 4. 18. 7. 34. 12, 61. 25, 62. 2.<). 134. ih ih 7,1. 164, ih ih 79. 330. Page. Par. 103. 417. .. 129. 446. JoND. not passed before a Notary, Personal, . PieBcription. . Attesting witnesses. Comparison of Handwriting. Proofof a, ... ... 177. SIS. . Minor discrepancies in evidence. Authenticity of documents presumed. Comparision of Handwriting. Proof of a, .. ... 178. 616. theCourt may decree interest, though not claimed in the Libel. Where the plaintiff proceeds on a Penal, 238, 574. to one of the ;i:r ,- js, and theother partner after subsequent li.tL n of partnership sued the debtor for the amount, Meld that the plaintiff had no light of action. Where a debtor granted, .. 241, S81. is not necessary, where a constructive delivery has been proved. Proof of actual delivery of the, ,. 287. 640. BcDDaisT Priest's property ... ... 13. 62, . Administration refused to a, ... 66. 283, . Appeal in formS. pauperishy a, ... ib. 282. Case. j.'ransfer of cases. ... ... 36. 160. should be specified. Grounds for striking off a, ,o l53. 483. Application for a postponement. Striking off -d, 86. 356. Transfer of cases on establishment of new Courts. 92. 374 instituted in a wrong Court, Transfer of a, ... i4 375. by a mere endorsement on the Libel, although such Libel discloses no sufficient cause of action. A. D. J. cannot dismiss a, CiRToiHs. Registry of, inadmissible in evidence. Copies of, Stamp. 'Cattle trespass. for several generations. It is a known practice for 3 family to hold a drove of, ... ... 226. 562, 1..ABT-R0AD on indemnifying the owners whose lands are taken for that purpose. Every village is en- titled to have a, ... .. 194. 534 :43. 591. 40. 178. ib 179. 56. 237, 54. 228. Cxi.] Page. Far. Carrier. Obligation of, ... .. 78. 323. Cession of Action from creditor to surety. ... 99. 402. when necessary. ... 108, 427. . Evidence of payment as against third parties. Case referred back foi' Fit. to obtain, .. 110. 427. from the creditor, held entitled to the rights of the creditor on proving the due payment of the debt. A co-obligor having p,ending his action for contribu'^ tion obtained a, .. 223, 557. need not be made at the time of pay- ment. The, .. 265. 599-; A party paying a prior- mortgagee is en- titled to stand in his place without, .. 300. 652. Childbbn's share ,, .. 8, 43. Rights of. .. ... 69. 290. joined as AdministratotB. Adopted^ .. 73, 304. of a predeceased spouse on the property of th» survivor amounts merely to a mortgage, giving them priority in respectof'theirshareover'subse- quent creditors or purchasers. The claim of the, 188. Character. Injury to. Civil action after Criminal prosecution. and Criminal suit for same act. Cinnamon grounds. Diielietion of, grounds. Prescription. Possession of. Circular', Letter not binding as a Rule unless &«. A, Claim not tendered. Costs. of Specific performance. . , under Edictile Citation. . . founded on sale and possession for increased damages. Subsequent, Several claims in the same suit. Prayer for general relief. Costs. .. .. 102. 411. for a specific sum. Subsequent arrears. Prayer for general relief ... .. H3. 433. for damages for breach of coYeuant ., 218, 556. 188. 530. 58. 243. 42. 186. %h 188 7S. 314. 76. 317. 323. 692. 37. 166. 145. 475. 64. 273. 73. 305. 91. 371. ClAiMANTS to property seized in execution. Eights of. Confiscation. Crown. ige. rar. 260, 608 1. 3. 8. 42. 14. 72. 16. 82. 69. 290. 74. 312. 2. 7. 12. 59. 17. 85. 2 2. 109f 32. 146. 115. 441. 14. 70, 154. 489, 162. 505. 171. 513, 175. J4. . Fictitous transfer, . . of Tenrple. Gifts by Priests. . Delay on tlie part of Govt. Officers, . . CoNDiTloM executory • Third parties * Over-plus upon resale. Implied. not binding on third parties. Con TEMiT OP Court. Second Claim - A paity suppressing his own claim to assist another. ■ Indecorous observations on a D. C. • Remonstrance against an order of the S. C, A party who under proceedings of Court, but without notice to a clai- mant, sells an estate, after having op- posed a previous sale by the claimant under proceadings of another Court, is guilty of contempt cf the latter Court, 204. 547.- Where the real party entitled to the properly in dispute, puts forward other claimants, in order to get him- self called as a witness, he may be punished^summarily as for, CcNSIDEBATION of a Bcod .. ,, Want of, .. ,, Slutual consenl a sufficient, , , in a Deed of Gift, Compensation of profits and expences, Failure of, Burthen of Proof, Want of, Concealment of property 215. 555. 25. 117. 85, 353. 140, 4o3, 141, 466. 317. 681. 23. 112. Costs. Double, Several Defendai.ts Several Plaintiifa Recommendation to recover, for filing two answers. Proctor's, One of several Defendants condemned in, in sequestration. Double., as a punishment for false statements A D. C. cannot impose it for an unfounded action. in an action for Libel where damages were notawarded. 55 where plciintiff had established the greater part of his claim. . . Breach of Promise of Marriage. Interlocutory Appeal. when Pit. succeeds in the main object of his suit .. . Appeal 171 forma pauperis. Provision as to future. Page. Par. . 25. 117. . 26, 122. . 62. 268. . 33. 150. . 42. 189. . 46, 200. .. ib 202. 1. . SS. 224. ed.55. 232. is ,. ib 233. .. 57. 239. .. 58. 243. .. 00. 256. , . 74, 309. ... 78. 324. ,. 81. 339. ... 91. 372. ... ib 373. ... 93. 378. ... ib 383. .. 94. 384. .. 107. 425. .. 155. 490. .. 158. 428. Postponement on payment of, Higher class Admission without tender. Nominal damages Division of, Division of, . . , . Dishonest concealment. Increased, Modification of a decree. against a party who had been dropped in the course of the proceedings. .. ib 500. of a party who has been dropped in the course of the proceedings. ... 171. 515 Contradictory statement of plaintiff. .. 176. 514. decreed against several Defts. are a joint and several debt. ., 203. 545. A party who has been admitted to sue in forma pauperis cannot be called upon to give security for costs. But if cast in costs execution may be issued against his person. ,. .,231. 564. [xiv.] fage Par, CoiTi. Double, for MvoIoub appeal ... ... 343. 583 ; yet the Court will look to the whole merits of the case and the conduct of the parties in determining whether the'costs should be in the original class, or in that of the amount of the judgment. Though the amount of damages ultimately decreed is an important criterion in awarding, ... 25 1. 593. The poverty of the plaintiff fiirnishes no ground to compel^him to find security for,. ... 286. 637 disallowed for improper language in the Petition of Appeal ... ... 309. 670. of a previous action must be paid before a new ac- tion is commenced. .. ... 320, 687. Triple, Qa? Whether the D. C. can award, ... 324. 694. of Defts. who have been vexatiously made parties. Pit. condemned in the, ... 328. 707. Claiming more than is due is no ground for distais- sal, but may affect the. Conviction. Clause of the Regulation Contract.^ Implied, with Servant, with Medical Practitioner. .Marriage;. Stamp. Frauds and Perjuries Breach of,. Principal and Agent. CoLLECTivB Decision. Review... CoNBPiBACY. A party suppressing his own claim to assist another's Collation. Dowry.] Commission on deposit ..^ Communication. Privileged, Co-OBLiGOB paying on behalf of his co-obligors, payii^ in his own name taking cession succeeds to the creditors rights. A, .having pending his action for contribution, obtained a cession of action from the creditor, "held entitled to the rights of the creditor, on proving the due dayment of the debt. .. 233. 557. Co-HiiRS {Viic Heirs.) 843. 734. 34. 151. 39. 174. 41. 180. 68. 287, 97. 398. 148. 483. 50. 215. 154. 489. 57. 241. 65. 277. 79. 329. 109. 427. •& ih. «. .a. [XT.] Page. Par CoNviTANCB by the Fiscal. Injunction issued by the S. C. to prevent the delivery of a, ... ... 201. S4I. Covenant . A claim of damages for breach of, .. 218. SS6. An action for breach of, .. ...227. 563. Crbditobs. Priority of ... ... 17. 87. Priority of, ... ... 77. 322. Preference among,. Judgment. Execution ... 105. 422. with consent of Executor. Administration to a, 181. 520. or purchasers. ' le claim of the childrsn of a predeceased spouse on the property of the sur- vivor amounts mersly to a r?oitgage giving them priority in re»pect of il' \r share over subsequent, ... ... 188. 530. by discharging the principal from gaol, without the consent of the surety, thereby discharge! the surety . A, ... ... 193. S3S. Criminal Appeals. The S.C.will decide on all Interlocu- tory Orders, without the assent of parties, and also in, CCSTOM. of Merchants Kight of incoming tenant of Eatnapoora in respect oi Nille tenure of the Country respect their feelings. In direct- ing the attendance of parties and witnesses the Court will in view of the, .. ... ' CtTBATOR ad litem. Authority to act as, . Authority to act as, . . D AM AGBS. Action for,. Honorable amends. Costs. by breach of Marriage Contract. Failing to shew, ... • » during voyage. Proof, Costs.. Subsequent claim for incieased, Costs. Nominal, than is claimed, in the absence of a prayer for general relief. A Court cannot award, more,... Interest on intended shipment 200. 539. 2. 6. 150. 483. 101. 406. 147. 477. 936. 575. 164. 507. 183. 523. 53. 226. 58. 245. 78. 323. ib 324, 91. 371. 93. 378. 140. 463. 152. 483 [xvl.] D.iMjiBBS for breach of covenant. Claim of, is peculiar to the Law of England. The differ- ence between Penalty and Liquidated, Where the Court refused to give, . Costs. Decree. Force of. Third parties Third party, . . Third parties. Eecommendation to recover costs, when binding on third parties. Third parties. ., on contradictory evidence and on possession prov- ed though not pleaded. Reversal of a, Third parties. not binding on the third parties (not being Inter- venientsj . . , . not binding on a third party, • Power of District Courts Alteration of a, . . . . ' Alteration of a clerical error in a,... Former,. Authority of a party to sue on behalf •of another, ... .. Costs on modfication of a, A. D. C. may alter its Inteilocutory Orders, but not its Final, Final, in Parlett u, Petachy Chetty. after a lap«e of two months, disallowed. Appli- cation to amend a written, Marginal observations by D. .7. on the S. C. already pronounced. The S. C. will correct a ma- nifest erroT in a, Deeus. Writer of a deed. Proof of a deed. Material evidence. Priority of, , , Possession of deed. Construction of deed. Possession of Title-deed A deed 30 years old need not be proved. Page. Pc». .. 218. 556. r- . 219. ib. .. 228, 563 . 251. 593. .. 4. 20. . 9. 47 . 19. 98. . 31. 140, . 33. ISO. . 41, 182. .. 62. 265. . 80. 333. .. ib, 334, 81. 33€. . 86. 357. . loo. 405, , 111, 428. . 115. 443, I 135. 455. 158. 498. . 193. 532. . 225. 559. I- , 258. 604. . 283. 629. . 298. 648. . 5. 26. . 6. 28. , 26. 124. . 32. 144. ib 146, , 34. 154. . 88. 362. [ivii.] Ptge. Ptir. »Beeds Proof of deed . . ^. 93. 382. Date of deed. Delivery. .. ... 94. 387. A deed is void foi want of proper stamp ... 95. 391. Keluctance to produce a deed, erasures and alte- -rations thereon are euspicions against Pit's title and genuiness of the deed .. ... 96. 392. Action on a deed which had been proved to be be a a forgery and been cancelled. ... Ii3. 454. 'Cancellation of a Deed of Gift signed under a ■wrong impression. Failure of consideration. Com- pensation of profits and expences ... ... 141. 496. of 30 years standing. do not require proof, yet the rule is open to exception whenever the deed is of a suspicious nature. Though as a general rule, ... 246. 586. Execution of a deed on a Sunday, and the failure to number and file the duplicate copy of a Bond do not render the instrument invalid. Dkmurreb ©ESERTION of wife Delivery of Deeds Demand. Previous, ■©EFEND-tNTs. Several,. Costs. Keside in several Districts. .Tuiisdiction where, Trespass. Joint and several liability of, does not prejudice each other. Statements in separate answers of, right to insist upon legdl proof "Debt. Admission of a, by debtor. Assignment of a. Notes of Hand' how far conclusive as proof of the, Costs decreed against several Defts. is a joint and seveial, ■Defamation .. Action for,. Variance in respect of the ex- pressions used, Action for,. Defence 4e. Action for,. Where two or more persons con- spire unlawfully to injure another, all the acts of one in furtherance of the common 260. 609. 19. 99. 22. 108. 26. '124. 30. 139. 26. 122. in. 197. 92. 377. 93. 381. 113. 434. 37. 166. 70. 294. 156. 4S5. 203 345. 3B. 172. 93. 379. 117. 444- [[xviii.] Page. Par. design, may be given in evidence against the other. Form of libel in such a case DSFENCE aB Admr. • General denial to an action brought by Executor ... Evidence of a good prima facAe, DBFAUtT Deft, in. Deft. in,. la not entitled to go into evidence ex- cept to disprove the evidence addnced by the Pit. of Defts. after issue joined. Deniai. General, Deposit. Commission on a, Depository FOR LOSS. Liability of, Pbposihons. Mode of recording, ,. Debtor Where a., of a firm granted a Bond to one of the partners and the other partner, after a subsequent dissolution of the Partnerahip sued the debtor for the amount. Held that the Pit. had no right of action. ., ... 241. 581. Dbbtoe and Suretv. a surety paying the debt is entited to stand in the place of the creditor Dismissal. • Non-suit • Non-suit Grounds for, A D. C. cannot set aside its own, after evidence heard. Res Judicata. 259. 606. 44. 192- 47. 204 69. 288. 136. 460. 44. 193. 52. 220, 66. 280. 62. 269. 65, 277. ib. ib. US. 442. but may affect the costs. Claiming more than is due is no ground for, District Courts cannot rescind their own orders. Jurisdiction of. Matrimonial Jurisdiction of. Powers of, .Kightsof,. Increased costs. The,, have discretion to allow the examina- tion of a party or his Proctor at *ny stage of the case, provided the questions are relevant ... ... 195. 536. 255. 599, 21. 104. 29. 133. 42. 184, 59. 252. 90. 367. 104. 420. 343 734. 60. 257. 71. 296. 76. 318. J 00. 4U5. 155. 490, n. 296. 93. 383- H. 384. 235. 569. 77. 319. 79. 327. 81. 337. [xix.] Pagf. j-ar. OisTaicr Courts A D.C.cxntiotgive Juigmexit ultra petifa 284, 630. The D. C. cannot stop a case on an excep- tion not taken by the parties ... 317. 678. A D. C. cannot grant Pafate Execution, or appoint a Commission unless authorized by law. ... ... 324. 695. Qn ? Whether the D. C. can award tri- ple costs.' .. ... ib. 694. Division of the Island of costs of COStf already made among the heirs. Administration cannot be refused at any period after the death of an intestate, Qu ? How far It may affect a, ~, ' Divorce. Suit for a,. Appeal to Privy Council .„. District Judge cannot alter his own decree. A, „_ over Proctors. Power of, „„ is bound to record reasons for rejection of evidence. A, ^„ „_ 143. 472. cannot prosecute a suit in the former ca- pacity before himself in the latter. A person who is both CustomMaster, and,_» 203, 546, cannot dismiss a case by a moTe endeirse- ment on the Libel, although such Libel dis- closes no sufficient cause of action. A, 2^8. 591 cannot without the consent of the parties appoint an Arbitrator or Umpire. The, 296. 645. signature is necessary to every Order. The 339. 725. Dishonest concealment — 107. 425. Ditch on his own land so as to injure his neighbour's fenc. A party cannot cut a, — — 336. 722. Donation — 8,. „„ 32. 146. Dowry. Collation — .„ 57. 241, Double Action for land and for mesne profits — 107. 426. PuTrn Law. Non-exercise of rights under the Eoman- -.. 61. 261, Rule of Community. The wife's half share devolves on her children though illigifimate 239, 650, Paye. Par, ,, 49. 211.- 1- 2+9._ .„ (J4. ■273.- .. ib. 2-74. Edjetilk Citation. Amendment of application PosseBsion how established and citati- on how published claim under, Force of certificate of quiet possession^ A certificate of quiet possession, though not concluBive against a, subsequent claimant who can satisfactorily account for his silence, is conclusive against one whose claim has been set aside. „_ 236. 570. Ejectment. Title. — — — I. -t. . Landlord and Tenant _„ — 100. 406. Forcible,. Proclamition of 5th Angust 1819 against forcible entry, considered. — 263. 6)3. ErtoPPEL. A party to a fraudulent deed estopped from disputing the rights accruing under it. 134. 454. except in certain cases ; and may be explained by evidence. Admissions in an answer do not operate as an. — _„ 260. 607. EsTATB of predeceased parent left unsettled 182. 521. EVIBBNCB, False., New Trial 4. 17. Bight to adduce. . — , S. 24. Fresh., New Trial ^-.- 9. 45. Notes of, -,- -,« 10. 50. in a former suit ,.,. IS. 75. Conflicting, «„ ^.. 18. 92. of Insanity «« 22. 110. Dispensing with. .-.- 25. 118. Documentary, 2b. 121. of Marriage ,.^. «^ 27. 125. of Ownership «« 29. 133. Copies of Cartams inadmissible in, 40. 179. ■ Proof of seizure in execution ..M 44. 195. Unnecessary, when the existence of the docu- meiit is denied. Notice to produce Docu- mentary. ^.^ 50. 216. of Breach of Promise of Marriage ^« S2. 213, Deft, in default if not entitled tii go inl :n, -.« ib 220, [xxl.] faye I'^ar. Hudknle -,„ ,.„ ™ _ „„ „ 63. 269. of payment. Older on a Shroff no, 64. 2Jfi. A written acknowledgment of a balance due and letters are collateral, 70. 294. and Opinion of Interpreter of the Court 72. 300- til discredit a witness ji. 301. , and on possession proved though not pleaded, Keversal of a decree on contradictory, 80 333. Pniceedings in a case referred back for further, 83. 346. False, . no ground of Appeal, 85. 3S2. sfSecietary, — 88. 364. . Admissions made as a witness in a former action. 96. 394. • .\ppeal against a deeree founded on, 103. 415. of payment. Note on a Shroff not conclusive, ih 416. upheld by S. C. Judgment upon, ib. 418- Mode of reading depositions „., 115. 442. in disproof of a prima facie right 129. 446. by Appellant no ground for a new trial. Non- production of, 13.). 456. of a good primS facie defence J 36. 460. A D.J. is bound to record reasons for rejection of, 143. 472. Further., under Rule 24 Sect. I. ~~ ib 474. Parole., of Partnership 155. 494. necessary to support an action for goods sold and money lent 156. 496, Hearsay., Ancient occupation. Descent or An- cestry. __ — 182. 522. A sale in execution how established in, 226. 56.. Parole., is admissible to prove 3alistia.ction of a specialty — — 235. 567- of a witness to contradict the statement of a party. The D. C. if it proceeds under Bule M.of Sect. 1 cannot admit the, — — ib 568. The Record of a conviction in a Criminal prose- cution for Assault is not admissible in a Civil ac- tion for the same Assault. The Surgeon's receipt is not by itself evidence of his attendance. 267. 603. Secondary,, of a Deed when atlmissible«« 258. 605 [xxii.j Page. Far Evidence agaiast the other. Where two or more pereons conspire unlawfully to injure another, all the acts of one in furtherance of the common design may be given in, — ~~ - - 259. 606, Admissions in an answer do not operate as an es- toppel except in certain cases ; and may be ex- plained by, ,„ ~~ — 260. 607. - Action for the restitution of money actually paid 263. 612. The privileges of the Kandyans do not extend to the Law of, __ — ...279. 621. Intervertient's right to call, -~ — 280. 624- Best, „ „. _ 295. 624. An oifer of compromise unless accompanied with a caution that it is confidential, is admissible iu, _ 30 1 . 656. Procedure on a lemand for further, — 305. 660. Rules as to production of Deeds before and at the Trial — -~ 308. 668. of Right of Way, ~~ ™ 310, 671, . Want of consideration. Burthen of Proof. 317. 681. Execution. Sale in, — ,~, 12. 60. agaiflat person. — 25. 120. how established in evidence. A sale in, 226. 561. may be issued against his person. A party who has been admitted to sue in farmS, pauperis cannot be called upon to give secuiity for costs; but if cast in costs. „_ „_ 231. 564. The Articles of War allow of an action, but do not permit, 238. 573, Eights of claimants to property seized in; 260. 608. after taking the Deft's bond for a part of the judgment in satisfaction of the whole. A Plaintiff cannot sue out, 287. 640. pending Appeal. The S. C. will under certain circumstances stay, „„ ib ib Parate., or appoint a Commission unless autho- rized by Law. A D.C. cannot grant, ExEOUTOB for money belonging to third parties. Action by, for a false plea, Costs against an, 324. 633 69. 288- 71. 295 fxxlii.'J Patje. Pat. Executor of an Administrator. Costs against the, .. 88. 363. Administration to creditor with consent of, ... 181. 620. by a Legatee. Action against an, .. 195. 537. ExpARTE hearing on absence of Deft. Necessary post- poaement ... .. ... 100. 403. Trial. Proceedings on,. Qu ? If the Pit. be « married women ? ... ... 324. 695. ExAMiN.iTiov of parties ... ... 129. 445. of a party or his Proctor at any stage of the case provided the questions are relevanf. The D. C. has discretion to allow the, .. 195. .536. of parties. Course to be adopted in deci- ding cases upon the pleadings and, .. 247, 587. of parties, Effect of, ... ..279. 622, of witnesses not on the List. ... 342. 732 Failure of consideration ., ... 141. 466. False Arrest Qu ? Whether an arrest before the ex- piration of the period allowed for Appeal would be a, ... ... ... 239. 576. Fictitious, transfer ... .. .14. 72, Fine, A party to a suit may be fined . S7. 163. for vexatious appeal 132. 449. for vexatious appeal 136. 459. Fiscal's Sale. Non-payment of purchase money . 59. 248. Sale. Opposition by the creditor 72. 302. Sale. Title imder, 78. 325. Sale and Certificate form no bar to other claims 103. 413. Eetum 112. 430. Sale. Claim and opposition, Concellation of Fiscal's Certificate. Order for consolidation of two suits .. 129. 447. Injunction issued by the S. C. to prevent the de- livery of a conveyance by the Fiscal. Forma Pauperis. Suit in, Application to defend in, • Former decree. Application to sue in, Opposition to application in, Appeal in, , . 201. 541. 23. I; 2, 39. 175. 42. 185, 47. 205. 66. 282, [xxh'.J Fage. Par. Forma Pauperis. Provisions as to future costs. Appeal in, 74. 309. Fresh reference. Petition in, ... 92. 7,1^. Petition to defend in, ... ... 136. 460. allowed in spite of a Proctor's certifi- cate. Defence in, ... .. 147. 479. . Mode of Procedure. Application tn sue in, .. .. 170. 512. cannot be called upon to give security for costs. But if east in costs execution may be issued against his person. A party who has been admitted to sue in, 231. .i64. should be made on the first appearance. Any objection to sue in, ,, Foreign Will FoHKiuNBE. Security for Costs Form of reterence to Arbitration ». of suing on behalf of a wife .. Forged deed. Action on a. Former decree, FoRFaaTURE of Nindegame decreed on default of paying Ottoo Fradds and Perjuries. Contract in writing Beg. of Frauds Ueg. of Frauds not retrospective ... Eeg. of, Land, Reg. of,. Recovery of money paid. Reg. of,. Sale of immoveable property. Contract in writing. Stamp. ... ... 88. 366. Statute of Frauds. Objection not taken in Court below. ... ... ... 95. 390. Stamp. Marriage Contract ... ..97. 398. Reg. No, 1. of 1806 does not act retrospectively. 300. 653. Statute of Frauds. A contract for the sale of jjrowing timber must be in writing . 304. 65fli, Fraudulent Deed ... ... .. 134. 454. aFaEiGHT. Booking for,. Liability of Master thereon... 160, 483, 253. 596. .?5. 156. 49. 213. 67. 286, 382. 7T8. 133, 454. 135. 455. 327. 706. 3. l:. 6. 31. 14. 69. 20. lei. 25 119. 36, 161. 54. 229. 55. 231. 82. 342. Page. Par. . 174. an. . 39. 176. 79. 331- . 91. 373. . 143. 47*. 6. 29. . 10. S2. . 29. 135. 62. 269. 144. 437. [xxv.] ■Frivolous litigation. Punishment for, '1"PNKRAL EXPENCES incurred for illegitimate husband ■Further relief. Prayer for, ... evidence under Bute 21. Sect. I. Gansabe. Award of, Award of. Jurisdiction of, ■General Denial. Answer. Burthen of proof. Possession. Title. Value. Damages. .- ■■■ ib. 438. the Deft, prayed for leave to answer, but stated no special circumstances in sup- port of his prayer, the Court refused .leave. When after a, iGiFT and possession. Proof of, .. .. by a priest. signed under a wrong impression. Failure of consi- deration. Compensation of profits and expenses. Cancellation of a Deed of, .. of more then donor was entitled to... .. Verbal,, of lands. Heirs when estopped from disputing a, ib ■Government grant, Prejudice to, . General hypothecation of, Objection by a third party. Kight of the. Proclamation. land. Application for and possession of, ... Renter. Where a,, deprived himself of a right to remission of rent, ... ... 205. 648. Goods sold and money lent. What evidence necessary to support an action for, ... Guarantee, Guardian. Guardianship of children on the decease of a wife. over Pits non compos mentis ,. . . 231. 565. S. 25. 16. 82. 141. 466. 153. 485. a, ib 486. 12. 59. 16. 83. 56. 234. 74. 310. 76. 316. 155. 492. 156. 496. 14. 69. 66. 281. 114. 439. 232 5S6, fage. Par Handwriting, Comparison of,. Proof of a Bond. Attesting witnesses. .. .. .. 177. 515. Comparison of,. Authenticity of documents presumed. .. .. ... 178. 516. HaiRS, Disinherison by deed of heir-at-law ... ,5. 23. Judgment binding on, ., .. 65. 278. Presumption in favor of heir. Possession. Ac- knoivledgment of title. .. ,, 87. 360. Kight of heir pending administration. .. 104 419. when estopped from disputing a verbal bequest oflands. ., ... 153 486. of wife how far responsible to creditors of husband, 159, 501 . Male. Service Parveny, No prescription against, 169. 509, Administration cannot be refused at any period after the death of an intestate. Q«.' How far it may aflect a division already made among the, ... 235. 669, An heir who takes possession of the property ren- ders himself liable for the debts of the intestate. ..267. 615, The posaesstion of one joint heir is not adverse to the other, ,, ,, ,, 271. 618. One of several co-heirs may sue the Administrator for his share... ,, Allegation of intestacy where the Pit. sues as heir, 341. One of seveial co-heirs may sue the Administia- tor for his share. HxAitsi^^ Evidence Ancient occupation &c. Husband AND WiFB. Separation. Wife's debts. Desertion of wife Liability of a wife at Batticaloa , . the wife's person cannot be taken up. On a Judgment against, Form of suing on behalf of a wife, , ( FM?e"KANDYANLAW.''"MAHOMEDAN LAW." "iHESEWALLBME.") Hypothecation of Govt. General, ,.. ... 56. 234. Illegitimacy, Marriage ... .. ..76. 315, Inheritance. Joint,. Q«? Whether Ord. No. 8 of 1834 applies to a, ... ., 226. 560. Injury to character - .. ..SB. 244. 338. 724. 341. 730. 343 734. 183. 522. 10. 54. 22. 108. 62. 267. 271. 617. 332 718. Page Par. Injunction against a sale granted by the Supreme Court.. 142. 471. issued by S. C. to prevent waste. . . 200 S40. issued by S. C. to prevent the delivery of a con- veyance by the Fiscal. . .. 201. S41. issued by S. C. to restrain the removal of crops, 203, 544" granted on a mere Petition where there was no time to obtain the necessary affidavit. ... 236. 571. A Court may issue injunctions to public func- tionaries, but cannot give them instructions to do any act. refused for want of proof of title, to restrain sale of goods, . . to restrain waste. . . INS.4NITY. Evidence of, . Liability of father, Insolvent may sue. When, Instrumests. XJnnegotiable, .. Proof of n instrument. .. Proof of lost instrument. . . Intbrebt not stipulited for" ., Payment of produce where produced is to be re- tained in lieu of, not claimed in the pleadings. . . on intended shipment. Damages. though not claimed in the Libel. Where the Pit. proceeds on a penal Bond the Court may decree, 238. Interest inland, Proof of an. Interlocutory Appeal. Costs. Order. Appeal against, .. Order may be rescinded by D. J. Appeal. Trial pending, Orders, but not its final decrees. A D.C. may alter its, ... •■• 193. 532^ Orders without the assent of parties and also in Criminal Appeals. The S. C. will decide on all, ... •• 200. 539. 249, 592. 286. 636, 325. 700. 330, 711. 22. 110. 48, 208. 33. 148. 41. 183. 73. 306. 84. 349, 55 230. 87. 361.' 147. 478. 152. 483. 238. 574, 179. 517. 58. 243. 85. 355. ib xh ^^. 396. Page. Par. .. S9. 263. .. 90. 369. QxxTiii.J Intirvintion. Object in allowing, There is no limit as to the possible num- ber of Intervenients. ... •■• 173. 613.^ An Intervenient having filed his Petition of Intervention pleading to the merits, can- not afterwards plead to the jurisdiction . . 224. 65R. InterT»nients right to call evidence. ... 280. 624. A party cannol be compelled to intervene ; but where a vendor refuses to intervene the Pit. may amend his tibel by making him a party Deft. ... -■• 299; 651, The " Government of Cet/lon" is not a sufficient discription of an Intervenient. 304, 658. The Conrt will not delay proceedings on an irregular Intervention; but theii claims will be reserved. .. ... 308. 667. At what stage a party may intervene. ... 331. 714, l!«TBRPiiET«li OF THE Court. Evidence and Opinion of, . . 72. 300. Intestacy where the Pit. sues as heir. Allegation of, ... 341- 730. J/kT^A. By the Law of,, a son is not liable for his father's debts, unless the latter has left property, and the son has taken possession thereof. 264. 614. Customs. ... .. 301. 655 Joint. Owners. ... ... 23. 112. ... 60. 255. of land. Mode of ascertaining shares. ... 165, 508. Joint and Several Debt. Co?ts decreed against several Defts are a, . . 203. 545. Joint-heir is not adverse to the other. The possession of a, 271. 618. Joinder of parties ordered on Appeal. . . 326. 703. Judgment. .. .. .. 7. 38' Prescription of judgments. ... ..42. 187. binding on heirs. ... ... 65, 278. for less then the amount of damages claimed. Costs, 91. 372. Priority of Mortgage over, .. ..103. 414. formed upon inciedibility of evidence. .. id. 418. as between a Pit, and Deft, cannot prejudice a third party. ... .. 141. 467. Paye. Far. Judgment in appeal on an imperfect record held not final. A, „. ... U3. 472. not to exceed the amount claimed in the Libel... 166. SOS- may be revived on a Rule Nisi. A superannuated, 193. 531. where the party aggrieved thereby has not ap- pealed. The S. C, will not alter a, .. 202. S43. of Rough C. J. in No. 84 D. C. Manaar. .. 211. 550, has been entered against a Deft without notice his remedy is not by appeal. Where a, 243. 583. of a 'X>. C. is appeal to the S. C. and not by a fresh action. The remedy against any omission or defect in the,. . ultra petita. A D. C. cannot give, The course adopted where the D. C. omitted to record the reasons of its,,, in appeal. Force of a, Prescription of, . . . JuRrsDicTioN, Cause of action. Residence of Deft. .. where Defts reside in several Districts. of District Courts. . . of District Courts. Matrimonial,.. Waiver of a plea to the, if founded on the residence of the Deft, or the place of the cause of action, must be pleaded before discussing the merits. A plea to the, 223 558 An IntMvenient having filed his petition of intervention pleading to the merits, cannot afterwards plead to the, .. 224 ib Where a Deft, has appeared and answered he cannot afterwards object to the, .. 248. 590. JUD6E previously engaged as Advocate in the cause. A, 95. 388. who ia also the Government Agent. A suit by the Government of Ceylon cannot be entertained by a, 136 461 248. 589. 284. 630, 2S5. 634. 304. 660. 319. 685. 13. 67- 29. 136. 45. 197. 7J. 296. 76. 318. 112. 432. 1. 1. 1. 2. 2. 8. 2. 9, 3, 13. i. 21. 6. S3. 7-. 37- 13. 63. IS. 73. 16. 79. 96. 393- 101. 400. 106. 418. 153. 484V [xxx.] Page. Par S.ANDYAN Law. Transfer. Consent of son. Transfer to procure support. Succession. Rights of a Widow. Marriage in Deega. Inheritance. Gift to widow. . . . . Disinherison. ... ... — Donation. ~„ — — Marriage in Deega. Marriage in Deega, Marriage in Beena. ... . . Eight of a divorced wife or destitute widow for support from her parents. Succession of Nephews &c. Majority. Adoption. Heirs when estopped from disputing a ver- bal bequest of lands , . ... ib 486. A grandmother's interest in the estate of the grandson. ... .. 201. S42, Qu ? As to the custom of Saffragam res- pecting a Beena husband's right to succeed to wife's property, ... ... .. 258. 605, The father is not of kin to his Beena chil- dren. Q«.« ... ... 29S. 643, An only daughter by a previous marriage is entitled to half the father's lands, . . 328. 710. Prescription does not run against the heir pending the widow's life-interest. ... 329. ib An only daughter does not forfeit her rights by a Z)ee<7a marriage. .,„ ...329. 710. An heir cannot be disinherited with- out cause of disinherison stated in the ^eed ... ... 345. 737. Widow's Life-interest ., ... ib ib 279. 621. 9. 46. 100. 406. 101. ib. 131. 448. [_xxxi.3 Page. Par. KaNdyanTebkitcrim Priority of general mortgage in, ., 105. 422. as elsewhere a married woman cannot sue or be sued alone ; and a Judgment against her is void. In the, .. .. 272. 619. Administration in the Kandyan District to the guardian of a minor child. .. ... 105. 423. ' Kanbvaks do not extend to the Law of Evidence. The privileges of the, Landlord .^ND TeKant. Ejectment. ... .. Right of incoming Tenant. Custom. Rights and duties of Landlords. . . A receipt not under seal is not con- clusive against the party giving it, but only a prima Jacie evidence, ■which may be contradicted by parol. ... .. 254. 598, If a Landlord give a receipt for the rent last due, it is to be presumed that the former rent has been paid, ib, ib. OneTenant in common cannot pres- cribe against this Co-Tenant under thirty years. Land. Registry of, . Frauds and Perjuries. Waiverof agreement for transfer of, Verbal Bequest. . . Government. Application for of, •• Pioof of an interest in, is entitled to compensation. A yide builds on another's, Mallepalle defined. Law. District order no,. Cattle trespass. Letters are collateral evidence &c. Legal Proof. Deft's right to insist^upon, .. 272. 62a. ,<). 48. ... ... 55. 231. ■of, ... 143. 475. ... 153. 486. and possession .. 155. 492. .. 179. 517. party who bona ... 282. 62ff. ... 283. 629. ... 54. 228. ... 70. 293. > .. 113. 434. Page. P(»- .. 162- 504, .. 19S. 537. [xxxii.] Legitim.4 TioN by subsequent marriage, IiEGAcv. Action by a Legatee against an Exeiifltor. A father is not entitled to receive a Legacy left to his minor child without the authority of the S. C. which has in this respect succeeded to the poVers of the Wehhdmer. ... .. 279. 623. was intended as a satisfaction for an inheritance, held' that the legatee Canncit claim both. Where a, ... .. .. Libel, Action for,. Costs. Action for,. Defamatory words. .. Lkhjidated DAM.4GE8, is peculiar to the Law of England. The distinction between Penalty and, 219. Loan converted into purchase. . . ; . Loss. Liability of Depository for, Loss Instrument. Proofof, .. Lottery Ticket. No action is maintainable on a, Marriage not set siside in the lifetime of the parties. Agreement to marry. Evidence of. Evidence of Breach of Promise of, Second,, Administration of first wife's pro- perty. ... ... ., Breach of Promise of. Costs, Contract. Breach of,. Failure to shew dam- ages by such breach. ... ... SS. 245. Contract. Claim for penalty and expences im- posed and incurred for and by Breach of, Illegitimacy. Amicable Settlement. Damages. Breach of Promise of, Proceedings upon opposition to Banns of, ... Contract. Stamp, Frauds and Perjuries. Legitimation by subsequent marriage. Proof of, ... ... 162. 504. . Answer to the action. Action for the cancella- tion of Banns of, ,, ...206. 549, Registration. Regulation. ... 209. ib 325. 698. 55. 232. 132. 452. 219. 556. 47, 204. 65. 277 84. 349. 271. 616. IS. 80. 20. 102. 27. 125. 52. 219. ib 223. 57. 239. ib 246. 76. 315. 84. 351. 85. 354. 97. 398. [xxxiii.] Page. Pat, JlAjmiAGE, Consent of parties to be recorded in registration, ih ib Contract. Eemedy of Husband in case of Seduc- tion. Parent becoming a party to the child's, 210. ib cannot be given by Proxy. Consent to, ... 317. 679. Mahombdan Law. Sale by husband of Dowry property. ... 34. 1S3. Dowry property. Separation. ... 43. 191. Magger, Kaycooly &c. when recoverable. 56. 236. Marriage contract. Damages not accru- ing in consequence of the breach, ... 58. 245. Claim for penalty and expences. ... ib 246, Assent to marriage contract. Implied. ... ib 247, Right of wife to sue alone. ... 90. 370. Oral Bequest of real and personal pro- perty, ... ... 175. 614. Eule of Division among collaterals. 176. ib Heirs of a deceased daughter. ... ib ib A Mahomedan having once made a pro- mise of marriage i.«: bound to fulfil it be- fore he contracts another. ... 281, 626. A Husband and Wife may sue each other, ... ... 300. 654. A Wife deserting may be sued for any property taken away by her; and forfeits -^ her dowry, or, if already paid, double ; and the Husband may sue without first applying to the Priest or Arbitrators ... ih j6 Divorce among Mahomedans. Ali- mony. ... ... 322. 689. Mahomedans. Registry of Car. 39. 174l Kemuneration for Medical ser- ■cices ... ,. Contract with, Mbrcu.imts. Merchant's Day-BboK. Provisional' jndgment. Merchant's Account containing " mention of the time of payment." .„„ Custom of,.». MIssNB Frofi'i's when decreed. Double action^for Land and forj MiKORiTv. Necessaries .„ _„ A Father is not entitled to receive a legacy left to his minor child without the authority of the S. C. which has in this respect succeeded to the powers of the WeesKamer ,«, 279. 623. HmisTEssM^BzLiGioN, Calumnious chaiges by, ». 142. 469. MonTQAGfc over subsequent sale. Priority of, ^„ 21. 107. oi'O'overiiment. Geuuw!; .^ ,..<. 56. 334 68: 287. » Vb. 60. 259. 61. 280. 150. 483. 107. ^6. m 86 33. 145. 72. 302 103 414. 132, 451 Page. Pnr JioBTBAGK Right of Mortgagee when mortgaged property is sold. , -o»erjnagn)ent. Priority of, Proof to establish, . giving them priority in respect of their share over subsequent creditors or pnrehasers. The claim of the children of a predeceased spouse on the property of the surviver amounts merely to a, ™ „„ „„ „„ 188 530 is not thereby dischaiged. A Surety who, after notice, does not object to the sale of the, ,„ 193. 5,S3 granted in 1S23 before a School-Master and ■witnesses is valid., A, 204. 54? accompanied with possession of the title deeds, is entitled to preference over a subsequent mort- gage by mere contract. A, ih ib Possession of mortgagee becomes adverse after the lapse of the period fixed for redemption. Ten years possession will give him a, title hy prescription. Money paid _„ ,„ paid without receipts due but unpaid. Action to recover, actually paid. Evidence, Action for the restitu- tion bf, ... .. ... 2S3. 612. MuTtTALiTT in an agreement may be presumed though the Deft, has not signed it. .. Mutual Consent a sufficient consideration. Namptissement ... may be demanded on a Merchant Day Book 281, 625 19. 97. 41. 181. 43. 190 139. 463. 140. ib. 60. 258. ib 259. 77, 321. J32. 720" 334. 721. 9. 45. considered. The Law of. Practice of. New Tmal Non-production of evidence by Appellant no ground for a, ... ... 135. 456. allowed in order to aUow a party to produce evidence against prescription. A, „. 157. 462, [xxxvi.] Page Par New Triai Wheie the Pit. has manifestly proceeded in ignorance, the S. C, will allow a, — 256. 602^ Necbssabies. Minority — — — — 32. 145. JJiNDBGAMME decreed on default of paying Ottoo. Forfei- ture of, ..~ — ~~ 327. 706. Novation — — 12. 61. Non-Suit „ ~. „- ~~ —19, 36. . Dismissal ~~ ~~ 42. 184. a Pit., merely because he had not summoned cer- tain witnesses. The Court cannot, ~~ 287. 639. NoN- Joinder of Plts„., _~ ~~ 44. 193. NoK-P-\TMENT of price. Right of Be-sumption on, ~_ 66, 281. N oN-AccEPTANCE of ofFors no agreement . — ~~ 80, 332. NoN Compos Mentis, Guardians over Pits. — 232. 566, NoTBs of Hand how far conclusive as proof of the debt_~, 156. 495, NoMiNAi Damages. Costs — 93. 378, Notice to produce documentary evidence unnecessary when the existence of such document is denied. ~~ 50. 216'. , his remedy is not by appeal. Where a judgment has been entered against a Deft without, 243. 583 in English on a Cingalese party is n ot ''due notice" Service of a, .. ... 341. 731. Objectio.v during Trial. Appeal. 44. 196. not taken in Court below. Statute of Frauds, 95. 390. to witness. ,-~ 100. 404. that the Pit. was not at the time the owner of the article contracted to be delivered. 140. 463. Pit. not entitled to object to a parti cular con- struction of the Answer. — 14R. 481, which was not made a ground of appeal. The S. C refused to entertain an, Gfpice of Caporale. Qualification for. Officer of the Court. Attachment against an. Onus Probandi. General denial. Opinion and Evidence of Interpreter of the Court. Order. A Court may rescind a preparatory, OoTTo. Forfeiture of Nindegamme decreed on failure to pay, — „„ 327, 706. 325. 699. 32. 147. 140. 464. H4. 438. 72. 300. 14B. 480. [[xxxvii.] Page. Far. Ownership. Evidence of, 29. 133. Prim/l/ocie proof of, ISS. 491. PARTiirKR6H[j'. Evidence of, 6. 33 .Payment to one of the partners. Dissolu- tion of, „„ „_ 154. 488. Parole evidence of, 155. 494. The Proxy of one of several partners is suffi- cient to authorize an action. 240. 578. Where a debtor of a firm granted a Bond to one of the partners and the other part- ner after the dissolution of the partner- ship sued the debtor for the amount, held that the Pit had no right of action. Parties. Pining a party to a suit. to Arbitration. Assent of. Absence of a party to a suit through illness. . . . to Arbitration. Consent of, A party to a Suit may be fined. A party subsequently joined as Deft. A party misled by Clerk of Court. Kevivor of a suit abated by the death of a party. Examination of, ~~ Costs against a party who has been dropped in the course of the proceedings. The absence of a party is not in all cases a good ground for postponement. The D. C. hss discretion to allow the exam- ination of a party or his proctor at any stage of the case provided the questions are relevant. ... 195. 536. Where the real party entitled to the property in dispute puts forward other claimants in or- der to get himself called as a witness, he may be punished summarily as for contempt of Court. ... •• 215, 553. The D. C. if it proceeds under Rule \\ of Sect. 1 cannot admit the evidence of a witness to contradict the statement of the party. .. 235. 568. 241. 581. 7. 35, 19. 95, 24. 113. 31, 141. 37. 163. ib 165. 79, 528. 113. 435. 129. 445. 158. 500. 192. 531. [sxwiii.] Page. Par, pAjtTiKs. Iji iliieitios (ho attendance of parties and wit- rc,-i'«, tilt; Court will, in view of the customs of the Country, respect theii feelings. .. 238. 675. Effert of examinations of, .. 279. 622 In trespass where a Deft sets up the title of a third party the Court is not bound to make him a party unless he chooses to intervene ... 281. 632 Where a party appears by Attorney, the D. C. may require the presence of the party. . Joinder of parties ordered on appeal, . J* AWN. Forfeiture of, Creditor when bound to return a, Action to recover, — Paddy. Calculation of compensation-- PavmbNt by delivery of Promissory Note*.™ Voluntary, of Bond. Proof of, pleaded but not proved. Prescription... from lapse of time. Presumption o^ Order on a Shroff no evidence of, Partj. Admission of, •Bond. Proof of, Appropriation of, of produce in lieu of interest— Pleading. Proof of, Note on a Shroff not concluNve proof oi^ ast against third parties. Evidence of, to one partner^-. pAVFER. Certificate of Proctor.. . PA)ctor'9- Certificate^i- Proof within a reasonable time. . . Objection to Proctor's report... Vexatious action by, PetitioriCrirfe" Proctoe.."^ (Vide " Forma Pauperis.'') Parole engagement of Seamen— .. 30, I37. Evidence of partnership. . , 155, 494. Evidence is admissable to prove satisfaction of a specialty. ... ... 236. 667. 324. 696. 326. 702. 16. 81. 28. 132. 101. 410. 17. 85. 21. 106. 28. 130. 37. 164. 63. 270. a. 271. 64. 276. 79. 330. ib ib 83. 348. 87. 361. 101. 409. 103. 416. 111. 427. 154. 488. 28. 129. S9. 250. 64. 275. 98. 400. 106. 424. [s:xxix.j Pagp. Par. Parvkny. Sbhvice,. Alienation S2, 222. Forfeiture of., by Alienation™ ... 82. 34 1* Alienation of, 247. 587, Alienation of, 2SS. 600. P.tRBNT. Rights of cliildren. Destitution of, ... 70. 292. beciuninga party to the child's marriage contmet 210, .549. P^iBTiTioti. Every holder of property in common is entitled to call for a partition. Form of order for, ... 2.'i7. 572. Formand mode of effecting, ... 302. 657. decreed in the course of administration, ...^319. 684. Parate Kxecution or appoint a Commission unless au- thorized by Law. A D. C. cannot grant, .. 324. 693.. Penal Law. Confiscation... .. 8. 42. Bond, the Court may decree interest, though not claimed in the Libel. Where the Pit proceeds on a, 238. 674. Pbnaltt. Proof... .. H. S7. ^d Liquidated damages is pecidiar to the Law of England. The distinction between, .. 219. 556. All stipulated penalties are reducible ; especi- ally where there ie no reciprocity in the penal- ties ... 228. 563. Peabl FrsHERT. Agreement.. >_ 24. 114. PsRJCRT. Admission of a witness that he has been convict- ed of, _» 88. 365. Performance [Vide " Specific Perpormancb"^ Plbadino. Replication when necessary.™ Libel. Claim of Pi: Libel. Yaiiance.. Injury done by each Deft need not be stated in the Libel. •■ Amendment of Libel_ .... Several counts. Prescription how pleaded .. Proof of pay ment. , Interest not claimed in the, ...» Where the Pit proceeds on a penal bond the Court may decree interest, though not claimed in the Libel...., .. 2.38. 374 IS. 78. 18. 93. 38. 171. 60. 254. 72. 303. 99. 401. 101. 409. 147. 478. Page. Far, be .. 247. £87. __ 279. 622. __ 284. 631. .. 318. 683. FlEADiNe and examination of parties. Coiuse to adopted in deciding cases upon the, Effect of examinations of parties The Court will reject an ill-writtien Libel Procedure in case of imperfect, should be signed either by the party himself era Proctor holding a proxy.. .. 327. 704. Where a Deft is sued as heir or representative, the Libel most shew that he is sole heir, or how he is a representative... ... 331. 715. Where the Libel was unintelligible, the S. C. absolved the Deft. Planting share. Joint-Ownership — share. Compromise — Plaintiffs several.. Costs. interest in the suit. non compos mentit. Guardian over, Pie A of not indebted. to the jurisdiction if founded on the residence of the Deft or the place of the cause ef action, must be pleaded before discussing the merits. A, „. Possession under mortgage. ..„ Primd facie case. by permission. _ What amounts to Adverse, acknowledgment of title. proved, though not pleaded. Reversal of a de- cree on contradictory evidence and on, Actual occupation. Construction of the word. Acknowledgment of title . Burthen of proof Presumption in favor of possessor of the property agreed to be transferred™ .„ primii facie proof of ownership .. . . Prescriptive., of Service Parveny lands. . . presumed to be adverse until the contrary be shewn prescription-™ ... ... 170. Sll ib 716. . 60. 256. 180. 518.- 62. 268- 181, 519. . 232, 566. 83. 347- 223. 558. 2. 5. 10. 49. 85. 158. 71. 298. 179. 326. 80. 333. 87. 359. ib 360. 114. 438. 132. 450, 145. 475. 155. 491. 166. 509. Page. Par. .. 170, 517. -. '.UT. .5!17. . .381. 025. 69. 291. 81. 3.39. 86. 355. 84. 524. 86. 528. ib ib .92. 531. [xli.] Pn.ssBssiox. Presumption ari.'iing froai, Presciiptive,. of Service Parveny lands. of mortgagee becomes adverse. When the, , Postponement, unless unavoidaJily abfefent. Absence proctsr no ground for, ... ... 54. 227. How often a case may bo postponed ow- ing to absence of material witnesses on payment of costs. . Stiiking Off a case. Application for, . . Pit being unprepared for trial in conse- quence of Doft's misreptesentation. . . '. Discretion of the Court below open to revi- sion in Appeal. Grounds for a, . . . ' Absence of Counsel or Agent may be a ground for, ... .. The absence of a party is not in all cases a good ground for, .. --. '. in consequence of a Proctor's absence, the S, C directed the Proctor to pay the batta of the witnesses. On a, ... Pa.vcTicE. Rules of, and pleadings in Colonial Courts, Rules of, . . in Rules of,, necessity. in cases where a Pit i.s unavoidably absent on Trial ilay.. Prayer for further relief. Claim of a specific sum. Subsequent arrears. Privileged Communication... Prescription, Possession under mortgage... Crown. .- Bond... should be specially pleaded... Possession under mortgage... .. Interruption of, no bar to a claim unless specially pleaded. "Governnnent and Temple duty. ... 295. 644, .. 74. 308, ts, ... 132, 458. __ 155. 593. isent „_ 340. ?27. ... 91. 373. ... 113. 433 .. 79. 329. ... 2, 5. ... 3. 14. ... 4. 18. ... ib 19. ... 5. 22. 6. 30. I., 7. 39. 9. 46, Page. Par 10. SI. . 13. 66, IS. 77, 20. 103. [xlii.] Prescription. Possession under mortgage.. Presumption of payment how rebutted. Evidence to rebut, . . Meaning of " adverse fit/e^'^ not effected by irregularity in the instru- ment &c. Title by, ... .. 28. 131. Agreement misnamed. ,, ,. Performance of service... ,. by a previous action. Interruption of, ... Previous title... ,. ... of Judgments. . against Letters of Administration. not pleaded. Payment pleaded but not proved. What amounts to " adverse title." Possession by Crown of Cinnamon grounds 76. Servant wages. of Pit's claim as Executor. ought to be pleaded. , , llight of a grandson during father's life time to a prescriptive title acquired bv grandfather. ... 82. 343. how pleaded. Pleading several counts. ... 99. 401. .Bond. Offer of a compromise. ... 129. 446, how pleadable after an admission of the debt. ... ... ... 143. 473, A new trial granted in order to allow a par- ty to produce evidence against, .. 137. 462. Claim of specific performance when pres- cribed. ... .. .. 145. 47.5. .Prescriptive possession of Service Parveny lands. ... ... ... J66. 509. against male heirs. Service Parveny ... 169. ib Two special points regarding, ... ... 170. 611. 2.4. 134, 30. 138. 34. 152. 38. 170. 42. 187, 47. 206. 63. 270, 71. 298. 76. 317. 77. 320. 81. 338. ib 340. [llill ] Page. Par Pbesckiption if jn'oved to have been originally a mere cultivator is bound to shew when his title became adverse. A party claiming title by, 187 529. -Prescriptive possession of Service Parveny lands. ... ... ... 247. S87. A parol admission is snfficient under the proviso in the 7th Clause of the Prescripti- on Ordiuancc. ... .. 253 597. Prescriptive possession of Service Parveny lands. ... ... ... 255. 600. One tenant in common cannot prescribe against his co-lenant under thirty years 272, 620. Possession of mortgagee becomes adverse after the lapse of the period fixed for re- demption. Ten years possession will give him a title by, of Judgments. does not run against the heir pending the widow's life interest. if not pleaded will not held as a bar. Pke-emption. Kight of, Right of. Presumption of payment how rebutted. -„ of payment from lapse of time. -..^ in favor of heir in favor of possessor. arising from possession-. Preference, Priority of creditors. . Piiority of mortgage over subsequent sale. 21, Priority of deeds. Delivery^ Priority of creditors... Priority of mortgage over judgment... among creditors, Judgment. Execution. Priority of creditors. ... 281. 625. ... 319. 685. :he .. 329. 710- ... 344. 736. ... 27. 126. ... 60. 255. ... 13. 66- . . 63. 271 .. 87. 360 ... 132. 450. ,-- 179. Sir. .. 17. 87. le. 21, 107. .. 26, 124. ... 78. 322. ... 103. 414. ... 105. 422. .. 107. 427. •2(14. rxiiv.] Prefekence 'I'he daim oftlie children of a [ire-deceased spouse on the property of the survivor, a- mounts merely to a mortgage giving them priority in respect of their share ovei subse- quent creditors ox }mrchasers-.. ... 18 over a subsequent mortgage by mere con- tract. A mortgage accomiiauied with posses- sion of title deeds is entitled to, over a prior cieditor though holding a Nu tarial Bond. A special mortgagee is enti- tled to, J'rixcipal and Agent. Payment to Agent. Proctor's Agent.. Breach of Contract... Agent not personally liable.-^ Agent standing security for his Principal. ., ... \'y2. Stipulation by Agent for share in the profits. . ., ... 156. Special power to recover 159. Where a party appears b)' Attor- ne}', the 1). C may i-equire the presence of the party.. ... 324. PriNcipai and Sikkiv, A creditor by discharging the principal from gaol without the consent of the surety, thereby discharges the surety ... Privv Council (Vide " Appfal."^ Proctor acting as Deputy Fiscal. . Absence of, ., neglecting his duty... ,, Costs for filing two ans\ve^^ Absence of,, Postp^nienient vi-hen competent as a witness Power of .D. J. over, Neglect of, liable for neglect. reporting on a pauper pt'tition, Explanation from, 193. far. 530. 547. ■299. 652 13. 65, 79, 329 148. 483. 149. ii 494. 501.. 696. 533. 17. 87. 38. Ib9. 39. 17.1. 4-2. lH9, 54. -T-'l" 71. ■29,9. al. 337. xb 338. 93 380. Oli. 424. Lxlv.] Page. I'm- Proctor Defence in forwa pauperis allowed in spite c,fa Proctor's Certificate... .. ..147. 479. A,, not bound to uphold a case which he concei- ves to be groundless. . ... ... 185. 526. at any stage of the case provided the questions are relevant. The D, C. has discretion to allow the examination of a party or his, 195. .536 In a petition of appeal in which the appellant complained of the conduct of hia Proctor, held that he had his remedy against his, .. ... 215. 65> A,, when called upon to report upon a Pauper Petition is bound only to inquire into the case of the petitioner, and not to go into the possible de- fence of the opponent upon information obtained from him. .. ... ... ' ... 242. 582. A,, when-called upon to report on a Pauper pe- tition is not bound to investigate both sides of ihe case. ... .. ... , 243. 584. to pay the batta of the witnesses. On a post- ponement in consequence of a Proctor's absence, the S. C. directed the, ... ... 295. 644. Process. Service of, ... ... ... 22. HI, Service of,. Insufficient time .. ..35. 155, PRocLAMiTioN of 5th August 1819 against /omAfe entry, considered... .. ... ■■ 263. 613. Promissory Note. Payment by delivery of, ... 21. 106. Proof. Deft's right to insist upon legal ... 113. 434. Burthen of.. General Denial. ■■ U4 438. to establish mortgage. .. 132. 451. of marriage. -■ 162. 504. of a Bond. Attesting witnesses. Comparison of handwriting. ■■• 1^7. 515. of a Bond. Minor discrepancies &c. •• '78. 516, of an interest in land. •■■ ^^^i ^^'^■ ; yet the rule is open to exception whenever the deed is of a suspicious nature. [Though as a gene- ral rule deeds of thirty years standing do not re- quire, ... .. 246. 586 [.hi.] Page, Far. Property, Concealment of,. Bwii in forma pauperis .. 23. 112. in suit, now ascertained. Value of the, ... 74. 308. A sudden change in the course of a river where land is ti'ansferred from one bank to the opposite does noL alter the, .. 184. 525. ProvisioN-Al Judgment. (Vide" N.impti8Sement."J pROxv. The., of one of several partners is sufficient to authorize an action. ... 240. .578, Punishment for frivolous litigation. ... 174. 513. PtiiiciiASE (Vide "Veindor and PtrHCHASE.') K.*JEKARI-V. •• ... 7. 40. Ratnapoora. Custom of,, in respect of 2ViKe tenure ... 147. 477. E.ECONVENTION. Cross-action. .. 11. 56. .. 106. 425. Receipt without stamp. ... 27. 127. Money paid without, .. 41. 181. The., for the deliveries not being negotiable, the Deft was held boijnd not to produce them on de- manding payment. ... 228. 563. Recovery ofmoney paid. ... 82. 342. Re-Entry how enforced. Right of, ... 75. 313. Registrar's fee for reporting on a Bill of Costs. ... 148. 482. Rejection of Evidence. A D. J. is bound to record rea- sons for, ... 143. 472. Relief. Judicial and Sovereign. .. 18. 91. Further., Prayer for, .. 9]. 373. Further., Prayer for,. Several claims in the saniesuit. Costs. ... 102. 411. Appeal after lapse of time. .. 46. (ft-note) Further,. Prayer for,. Claim of a specific sum. Subsequent arrears. ,, 113. 433. General,. A Court cannot award more damages than is claimed in the absence of a prayer for, .. 140. 463. Remission of rent. Where a Govt, renter deprived him- self of a tight of, ,. 205. 548. Replication {Vide "'Pleadingj,") [xlvii.] RbS- JuDICiTA, 'age. Par. ". 36. 10. S3. 25, 119. 26. 123. 46. 201. 82. 345. 81 350. 98. 399. 104. 420. 134. 454. 141. 468. 183. 523. 313. 674. 314. 675. 344. 736. Dismissal after evidence heard. EiFect of an oi der for rehearing. in the absence of appeal. Prescriptive possession of Service Parveny land?. ... ..166. 509. Collusion between parties. Identity of Parties and Eights. Parties and Privies. ,, • Resumption Right of,. (Vide " Vendor and Purchaser''^ Ee-Sale (Vide " Vendor and Purchaser,"^ Eestitutio in integrum , , Revenue Paddv. Remuneration. ,, Law. Infraction of, Reversal of a decree on contradictory evidence and possession proved, though not pleaded... ... 80. 333. Revivor of a suit abated by death of a party. Fresh ac- tion svithout revii or. Costs... ., 113 435. of a judgment by aii«fe JVm... ,. 193. 53 j Right of a grandson during father's life-time to a prescrip- t've title acquired by his grandfather... ... 82. 343. of a party who asweddumizes another's lands with his assent... 199. 538. ofabating obstructions.. .. 305. 661. to cut down over-hanging branches is a Common Law right., .. 326. 701, 82. 345, 8. 44. 69. 289. [xlvili,] Page. Par. kuLES AND Orders. . ••. 77. 321. Further evidence under Rule 24 Sect. 1. l43. 474. The D. C. if it proceeds under i?«/e II. of Sect 1. cannot admit the evidence oTa witness to contradict the statement of a party .. .. 235. 568. Kdlb Nisi (Vide " Revivor") fi.ULB (Vide " Circular Letter,'V Sale, Conditions of, -.. 16. 84. Priority of mortgage over subsequent, .. 21. 107. Non-Opposition .. 43. 475. cm.] Tbespass. Title of Pit. 56. Joint and several liability of Defts. ... 92. In,, -where a Deft sets up the title of a third party, the Court is not bound to make him a party, unless he chooses to intervene. .. 284. In,, to goods, direct proof of the taking is not essential. Justification. Costs in the original 238, 377. 632. class. .. : 310. 672. Trial. Objections during,. Appeal. 44. 196 . pending interlocutory Appeal. S6, 39 S Roll. Power In advance cases on the. 342. 733 Triple Costs. (Vide "Cosrs."; TRUSTEE, A,, for the recovery of debts is liable for negli- gence. ■ 3:5. 677- Variance of Bond. .w- 25. 116. Libel. 38. 171. claim founded . on a sale and possesiion. 73. 305. in respect of the expressions used in an action of defamation. ■ • ^™- 93. 379. • • 339. 726. Vendor AND Porch A8EB. Remedy of Purchaser in the purchase of mortgaged pro- perty. .„ 21. 107. Overplus upon re-sale. 22. io;>. Pit's Vendor. 28. 128, Ccmpletion of transfer. Pay- ment of money. -.^ 52. 221. Duty of Purchaser. 62. 266. AVaiverofthe Right of Ee- snmption on non-payment of purchase money. 66. 281 Eight of re-sale on default of pnrchaser. 74. 311. Purchase in ignorance of se. questration. 94. 384. Sale of more than vendor is entitled to,. __ . 104. 419 Page. Par. Vendor and Purchaser. An action does not lie for the whole of the p'lrchase money, where th« Vendor has exercised his light ofreselling... ...305. 662. Vkrb.al Bequest. (Vide "Bequbst." and " Heirs") Vexatious Appeal. Costs. ... ... 3. 11. action by pauper. 106, 42i. .Appeal. Fine for, „_ 132. 449. Appeal. Fine for, __ __ 136. 459. Vow of poverty does not excuse the performance of duties undeitaten. — .. ib 458. Voyage. Proof of damage during, .. ... 78. 323. Waiver of sequestration ... -— — ~ 3S. 177. of the right of resumption. (Vide Vendor and PuRCH.isER.) of one of the grounds of action — ... ... 111. 429, of a plea to the jurisdiction. — -■■ 11"2. 432. of agreement &c. {Vide "Agreement.") of the contract. Alleged, ~ — 151- ■IBS. Widow. (Vide "Administration.") Wife. {Vide " Husband and Wife) Will. Foreign, .. .. •• 3i. 156. where the parties have for several years put their own construction on it, the Court will not disinrb it. On a doubtful clause of a. Witnesses. Witness to a deed. ■•• — Acquittal from perjury. Credit due to. Absence of. Plea of ignorance for not having summoned. Expences of, — -•■ — necessary. Personal delivery of List of, ... When Court bound to hear. Postponement on account of the absence of material. 217. 554. 5. 26, 6. 27. 12. 58, ib. 104. 33. 149. 37. 167. 44. 194, 56, 235. 69. 291, Page. Par Witnesses. Proctor when competent as a witness, — 71. 299. Interpreter of a Couit as a witness- .- 72. 300. Evidence to discredit a witness™ ... ... ib 301. Absence of, — ..• — 84. 352. Witress convicted of Perjury. Proof_ — 88. 365. Admissions made as a witness in a former case_ 96. 394. Objection to a witness. — -~ 100. 404. Witness convicted of Perjury. Proof™ — 105. 421. Attesting,. Proof of a Bond. Handwriting.. 177. 515. before the S. C. Form of an order for the ex- amination of, ... ... 214. 551. The D. C. if it proceeds under iJu/e 11 ofSeclJ. connot admit the evidence of a witness to con- tradict the statement of a party. .. ... 235. 568- the Court will in \ievr of the customs of the Country respect their feelings. In directing the attendance of Parties and, ... ~_ 238. 575. were tampered with. Appeal on the ground that the Appellant's, 283, 629. The Court cannot non-suit a Pit merely because be has not summoned certain, _» 287. 639. A witness may be called and examined though not summnned. — . __ „ »5 ib On a postponement in consequence of a Proc- tor's absence, the S. C. directed the Proctor to pay the batta of the, 295. 644. though not on the List ; and may call witnesses at its own instance. The D. C. may hear, .. 305. 662, does not dispense with legal proof. The death of all the attesting, — 306. 663. living 4 miles of the Court not entitled to Batta. 328. 708. not on the List. Examination of, ... 342, 732. fir.] Par Work and Labour. In an action for work and labour where the Deft pleaded a written agreement, and that one of the con- ditions thereof had been broken by the Pit, but refused to prodhed up Agreement, the Court entered up judgment for Pit. 240. S79. Written Aokeement. {Fide " Agreement" J ■Writs. Stale,, Presumption of payment. — $40. 72* .'UU