QJnrnpll IGatu i'rl^aol Hibrarg Cornell University Library KF 1569.31877 Liability of estate owners and of super! 3 1924 025 004 213 Cornell University Library The original of tliis bool< 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/cu31924025004213 LIABILITY OP ESTATE OWNERS AND OF SUPERINTENDENTS : BEINO A COLLECTION OF IMPORTANT DECISIONS ON THE SUBJECT, BY THE SUPREME COURT AND THE DISTRICT COURT OF KANDY. WITH AN INTRODUCTION AND • APPENDIX. EDITED BY E. L. SIEBEL, FROarOE, DISTRICT OOTIBT, KANVY COLOMBO : A. M. & J- Fbboitson, MndtK, LIABILITY OF ESTATE^ OWNERS' AND SUPERIN- TENDENTS, Ac. Intuoduction I. , 1. — Where Owner supplies Superintendent with Funds, atter has no right to Pledge Owner's Credit. — Ambrose vs. Strackan 2. — Chief Superintendent, who on hia own Responsibility paid for Medical Assistance, held Liable for Medical Attendance on Assistant Superintendent.— rAtattito I's. DftZe... 3. — AVhere Owner keeps Superintendent supplied with Funds, and gives no Authority, Express or Implied,- to Superin- tendent to take Goods on Credit, Owner not Liable. —Sttjier- manian Chetti vs. BlacJcett 4. — Liability of Superintendent in respect of Claims against Estate during Superintendentship. — Sinnaya vs. Howie ..., 5. — Where Owner, 'does not keep Superintendent supplied with Funds, but is himself settling Accounts, Superintend- ent not Liable. — Sinnaya vs. Gibson G. — When a Contractor gives Credit to Superintendent alone, Superintendent Liable. — Serahami vs. Anderson ... 7. — Owner Liable for Medicines supplied for use of Coolies.^ d'Esterre vs. Sossitrr ... 8. — Superintendent not Liable for amount due on Weeding Contract. — Warusa vs. Gray ...^ 9. — Owner Liable for Money Borrowed to Pay Creditors of Estate and for Money Expended for Benefit of Estate. — Saman Chetti vs. Temple 10. — Government (like Estate Owner) Liable for Rice- sup- plied on orders of Provincial Assistants or Labourers employed on Roads. — 'Raman Chetti vs. Grown... 11. — Coolies' Wages. — Wouttrss vs. Ferdinands ... 12. — Purchase of Pulper. — Gordon, Massey <^ Co. vs. Capper ... 13. — Transactions with Chetti Firms. — Kana.ppa vs. Knight 14.^Where Coast Advances are made by Superintendent in Good Faith, though not Judiciously, Loss should Fall on Estate, not on Superintendent. — Blackeitva. Milne 15. — Estate Proprietor who Sets Fire to a. Clearing Responsi- ble for Consequences, whether he acts negligently or not. — George Steunrt Sf Co. vs. Pulley.. . , ' 16. — Party Setting Fire Responsible, Negligence Presumed. — Elpliinstone vs. Bovstead 17. — Party Setting Fire prima facie Liable for the Consequence of the Fire Spreading to Neighbouring Estate. — Kannappa vs. SlemQ, Lebbe ... - . o ... 18 — Head Kangani Receiving Advances only a Surety not a Principal Debtor. — Array uve vs.. Muttu Karuppen ... Appendix ...,- INTRODUCTION. «» O coo LIABILITY OF OWNERS AND SUPERINTENDENTS OF ESTATES. -The pages following qontain some of the most important judgments of the Supreme Court, and of the District Court of Kandy, on the subject of the liability of owners and superin- tendents of ' coffee estates. From these decisions it will be seen that the question of liability or non-liability of estate ■ owners for supplies issued upon the orders of superintendents has been frequently raised, but in no case has any general rule on the subject been laid down ; nor indeed can a rule of uni- versal applicability be well devised. Every case must be decided on its own varying circumstances ; and in most instances the usage of the estate as to purchase of supplies, and as to advances and payments, must be considered, before ^ny decision can be arrived at." When a tradesman furnishes an estate with supplies on the orders of a, superintendent, the former, having the means with ordinary diligence, of ascertaining who the proprietor is, will be presumed to have intended to give credit to the master on the substantial security afforded by his property ; but cases- have arisen in which superintendents have held them- selves out as, and have been regarded by traders and othe rs to be, the principal, or as the persons by whom payments are to be made. The questions which generally then arise in such cases are: To whom was credit given? Was the principal disclosed? and, Did the servant acf within the known scope of his em- ployment and of authority, expressly or impliedly delegated to him by his master, and was he, therefore, competent to bind the latter by the contract without pe rsonal liability to himself ? *In Kershaw vs. Kmneihi (20,635 0. U. Gampola) the Supreme Court held that if it was sought to fix the defendant under an assumed general liabUity as proprietor of an estate to pay for things ordered by the superintendent, the plaintiff ought to have given copious and clear evidence as to the general nature of superintendent'sappointment and duties, as to the general mode of-eeltlement betwem him and his principal, and especially as to ihe general custom, whether the principal supplies the superintendent in advance witli money to carry on the estate, or whether he leaves him to get supplies on credit. (26th July 1860.) Bevm and Mills, page 51. 11 INTRODUCTION. As a general rule of law, a proprietor , or principal is liable, civiliter, for the acta and contracts of his agent or servant acting within the scope of his employment ; but, in order to render the principal responsible, his assent must in all cases appear, either by express evidence thereof, or by proof of facts, from which the law will draw an inference that such assent was given. A principal will also be bound by such subordinate acts of the agent as are necessarily or usually connected with carry ing into efifect the object , of the principal power ; unless such presumptive power have been expressly negatived by the latter. The usage of the trade or the mode of transacting business will likewis e, in the absence of express directions, frequently determine the liability of the principal. But a person who enters into a contract which is expressed to be made by liim for and on- behalf of another may still contract thereby in such terms as to bind himself personally ; and accordingly' the question ,in such oases is whether, looking at the contract as a whole, it appears to have been intended that he should be personally liable thereon. An agent is personally liable to third parties, whenever,, in his dealing^ with them, he knowingly exceeds his authority ; or fraudulently misrepresents the extent of his authority; or does an act, which, although he believes it to be within the scope of his authority, yet in fact is not 'so ; and at the same time omits to give such inforniation to the other contracting party, as would" enable him, equally with himself, to judge of the authority under which he proposed to act. The rules affecting the rights of the seller of goods, where the purchase has been made by an agent for a, principal dis- closed or undisclosed, are briefly stated by Broom as follows ;— "Where an agent contracts for the purchase, of goods as prin- cipal, he, by so doing, incurs -i. personal liability ; and if the real principal be known to the vendor at the time of the con- tract for the sale of goods being entered into by the agent dealing in his own name,' and credit, be given to the agent, this latter party only can be sued on the contract. If, how- ever in this case the seller of the goods make his election to debit the principal, he cannot afterwards resort to the agent. The question whether credit was given to the agent or to the principal being for the jury, for whose guidance in resolving it, evidence of custom and usage will be admissible. Where the real principal in a contract for the purchase of goods is unknown at the time of contracting,' whether the agent represent him- INTRODUCTlOK. iii aelf as agent or not, the vendor may, on discovering the prin- cipal, debit either at his election, unless indeed something has been done to show an election on the part of the seller to take the agent as the actual buyer, and to exonerate the principal." These are then some of the principal general rules laid down in text-books as to the liability of principals and agents. The position of superintendents, however, is peculiar, and they are considered by some to differ essentially from that of most, if not all, of those classes of persons whose liabilities are defined in works on Contracts. Mk. Lawkib, in his judgment in Ali- son's case (see Appendix) says : "It seems to- me that, except in exceptional cases, a superintendent is not personally liable for rice or money, &c., supplied to the estate. It is univer- sally known to every one in the island who has anything to do with such matters, that superintendents are paid servants of the proprietors, that . as a rule they hold their situation at plea- sure, and are liable at any time to be . promoted to better berths, or to be told that theii- services , are dispensed with ; that the great majority of them have no pecuniary interest in the estate, and have very little control over the expenditure. Little light (Mr. Lawrie prbceeds) can be got by comparing the position of agents of various kinds in the mercantile world ; for, from the circumstances mentioned, the position of superin- tendents is peculiar, and differs from most, if not from all, those classes of persons whose liabilities are defined in works on Prin- cipals and Agents." In another judgment, Mr. Lawrie says:— "It seems to me that superintendents of coffee estates are not in the position of principals, or even of agents with unknown or' undisclosed principals. If they were, they would be liable for all contracts entered into by them for the estates they are on.. But so universally is it known that superintendents are seldom the owners of the estates they manage, that there is in my opinion no room for the plea that they are perspnally liable." The names of the owners may not be known ; in the case of partnerships; &c., the superintendent himself may not know. He knows he has to deal in most cases only with the agents in Colombo. He gets a berth and 'trusts to the agents and to the owners paying him his salary and keeping him * supplied with funds for the upkeep, but, with regard to the coolie_s on the estate, he is not personally liable for their pay,- he is known to be in one sense their master, but in another sense their fel- low workman, who trusts to get pay from the same source as they do.. With regard to the dealers in rice, &c., 'he is known iv INTKODUCTION. only as a paid servant of the owners, who has mandate, either expressed or implied, to order necessaries for the' estate, to engage coolies, to make coast adyanoes, &c. If the mandate be not express, it is implied from the nature of his position as superintendent. A superintendent may make himself personally liable for necessaries supplied ; but as a rule he is not person- ally liable for estate accounts; and that those primarily liable are the owners or their recognized agents and attorneys." It will be seen that the implied authority of the superinteiident to pledge the proprietor's credit, is founded on the failure of the proprietor to place his superintendent in funds. If the prob- able expenditure of each month be placed- to the credit of the superintendent at the beginning of that month, the liability of- the proprietor on an implied authority wiU cea=e, and, if tradesmen be publicly warned against allowing credit to the superintendent, actions of the description we have noticed need not ^ise. So long, however, as proprietors, by supplying funds for estate supplies, or otherwise, acquiesce in their credit being pledged; or so long as the superintendents feel that their re- tention in service depends on their willingness to mn the risk of ii heavy claim by affixing their names to orders without an express disclaimer of liability; and so long as competition in trade is so keen that tradesmen are wUling to issue supplies ou orders without inconvenient inquiries as to liability and authority— questions of principals and agents must arise and per- plex lawyers as to the "circumstances" which determine liability one way or the other. There are exceptional cases where a superintendent is per- sonally liable for estate expenditure. In D. C, Kandy, No. 66,204, where a contractor was known. to the superintendent, and by him selected to do the work, and it was understood that the superintendent would pay the contract price in sums to an account from time to time, and the contractor looked to him alone for payment,- the District Court held the superintendent liable in payment of the contract sum unless it was proved^ that he gave the defendant distinct intimation that he acted as agent only ; that he disclosed his principal's name ; and that he told the plaintiff he must look to that principal for payment.'^ In 49,378 D. C, Kandy. Mr. Bervidck held a, superintendent not personally liable for the amount due on a weeding contract, the cost of which had not * This case (66,204 D. C, K.) which was taken' in Appeal was sent back of liable to be sued for thesame. It would appear that the plaintiff's intestate died in the month bf October, lS67, that the plaintiff, a creditor, having on the 2nd of November, 18G9, applied for letters of administra- tion, the usual citation- to next of kin issued, and that on the 25th of that month Mr. Proctor Goonetilleke addressed a letter to defendant as follows : "I am instructed by the commissicnera appointed by the Court in the Testamentary Case of Ana Cutty Kangani to request of you to let them know, through me, the amount due to said deceased from you or from the estate of which you are the superintendent." The defendant in an- swer thus wrote on the 4th December, 1869 : — " In reply to your's of the 25th November, I beg to inform yoii that the amount owing by Rathoongoda to the late Ana Cutty is about £25, which sum I intend to'pay to the widow*" Mr. GoonetiUeke then wrote Utter dated 13th December, 1869, in which he states: — "Regard- ing your intimation that you intend to pay the money to the widow of the deceased, I may as well mention for your own sike that such a payment will be illegal; ' that you will have to pay the amount over again to the administrator." At this time no administrator had been appointed. The plaintiff was appointed administrator on the 16th of March, 1870. On the 1st of March, 1870, the defendant had ceased to be superintendent of the estate, and gave over to' the proprietor all books of accounts and all moneys in his hand, including the £25 in question, as he was no doubt bound to do, handing him at the same time Mr. Goonetil- leke's two letters to him, dated respectively 25th November and 13th December, 1869. Under these circumstances, it is quite clear that the party liable to be sued is Mr. Cameron, the proprietor of the Bahatungoda Estate. As stated already, the plaintiff was appointed administrator a fortnight after the defendant had ceased all connection with the estate. On the 17th of March, 1870, Mr. Goone- tiUeke again wrote to the defendant ; "I beg to inform 'you, on behalf of my client, H. E. L. Sinnaya Chetti of Kandy, that letters of administration of the estate of the late Ana Cutty Kan- gani have been granted to him by the, D. C. of Kandy in Case No. 888, and to request that you will be good enough to send me, per return post, a cheque for the sura of £25, which you wrote to me some time ago was in your hands belonging to the said estate. " On the following day the defendant repUed to the above letter stating ; "I beg to inform you that I have given over charge of Eahatungioda Estate to Mr. E. H. ' Cameron, with whom please correspond in future with regard to the late Ana Cutty's affairs. On the receipt of this letter Mr. Goonetilleke addressed Mr. Cameron;— "When Mr. Howie was superintendent of the Ea,hatujigoda estate he held a sum of £25 of money due to the estate of the late Ana Cutty Kangani. I wrote to him on the 17th instant for the amount, (11 ) on behalf of Sinnaya Chetti, the administrator of the estate of Ana Cutty Kangani, and I enclose his reply. Please let me know whether the money is with you, and, if so, kindly send me a cheque for the same." Mr. Cameron's reply is as follows : — " I have received your letter of the 3rd Octoberj 1870. It would have reached me before, had it been rightly initialled. As it was, it went to my brother, Mr. C. H. Cameron, in Pundalu-qya. The sum acknowledged by Mr, Hctwie aa due to Ana Cutty Kangani from the Rahatungoda estate was salary for two months and a-half, out of which he was bound to pay the uuder-kanganies. So long a time having elapsed, and neither myself nor the numerous creditors of Ana Cutty Kangani on the estate hearing anything of the administrator, we concluded it had fallen through, and I have accordingly paid the kan- ganis the moneys they would. have received through Any Cutty, and gave the balance of the £25 remaining due to his widow. I shall therefore take a legal opinion in the matter befor^ pay- ing the same twice over. " It has been contended in behalf of the plaintiff that the defendant was bound, after the receipt of the two letters dated 25th November and il3th December, T;869, not to have given the amount to Mr. Cameron, the proprie- tor of the estate. ' The Court holds that he was bound to ac- oount to Mr. Cameron, and he did so by placing the amount in his hands on the first of March previous to his leaving the estate, no administrator having been appointed at that date to whom he covild pay the amount and obtain a receipt so as to account to his employer for the same. The plaintiff's claim as against the defendant is therefore hereby dismissed with costs. From this judgment plaintiff appealed, but the judgment of the Court was affirmed. "There is no evidence in this case to prove that the defendant incurred any personal liability to the plaintiffs intestate. Where .owner does not keep Euperintendent supplied with funds, but is himself settling accounts, superintendent uof liable. DISTRICT COURT, KANDY. No. 65,704. SiNKATA Chetti vs. L Gibson. Plaintiff claimed R. 5, 101 odd for supplies and for ihoney lent. Defendant denied his liability to pay the amount, as plaintiff supplied the goods to the late Mr. W. C Proctor for , the upkeep, cultivation, and maintenance of BattagaUe estate, the property of the said Mr. Proctor, of which estate defendant was , superintendent for some time. The D. J. (A. 0. Lawkie) dismissed the plaintiff's action on the ground that the defendant Was not liable inasmuch as he (the plaintiff) was not personally acquainted with the defendant ; did not give credit to him ; and never got payment from him. Mb. Laweie said: "I am of opinion that the defendant is not liable. It is almost impossible to lay down a general rule as to the liabilities of superintendents for goods or cash supplied ior the use of the estate of which they are in charge ; every such case must depend on its own circumstances. In order to make themselves safe, siiperintendents should give clear intima- tion on the orders issued by them that the goods are ordered for their principal, and not for themselves. 'The name of the estate on the top of the order, or such a form as "For Batta- gaUe estate" is hot enough. The name of the principal should be stated, so that the chetti or other contractor cannot be igno- rant of the name of the person with whom he is really dealing, and into whose credit he has" to enquire an,d trust to. It is not necessary th»t a superintendent should put on each order ( 12 ) issued by him the name of his principal ; it is sufficient if hfi would begin with giving written intimation to each of the trades- men employed by him for .the estate that he deals with them merely as the agent of a proprietor, or of a finn named by him, and that he himself is not to be held as personally liable. In the case of written contracts for felling, the superintendent should always state for whom the contract is being made. • In addition to giving rtotioe in unmistakable . terms that he acts only as agent ot a disclosed principal, the superintendent of course must not exceed the authority given to him by his em- ployer. The clearest notice to a chetti.or contractor that he ia agent wiU not ' discharge him for liability, and throw that liabili- ty on the principal, if the agent has exceeded hia powers and has used his principal's name in private matters of his 'own. I had not long ago to decide an action against the owner of an estate for rice and cash supplied on the superintendent's order. I had no doubt that in the circumstances there disdosed the owner was liable for the rice and for such of the money orders as were made payable to credit of the estate, bat I thought that he was not liable for moneys advanced to the superinten- dent himself. In the peculiar circumstances of the case to which I refer, the owne* was willing to pay even such sums as the superintendent could swear had been devoted to estate purposes. But, as a general rule, a superintendent receiving money from chettis on orders payable to self, ex facie of the dooumen- enters into a personal contract . foi^ which he, and not his prmcit pal, is liable. , • ' In the present case, Gibson, the defendant, had authority to order rice and to draw money from the plaintiff. I assume it to be proved, and indeed I think it is proved, that the whole of the money he drew was for estate purposes, though many of the orders were payable "to self." The defendant would, as I have said, be liable for these were it not for the clear proof that he had no private account with the chetti, that the chetti had no personalaoquaintance with him, did not-give credit to him, and never got payment from him ; but, on the contrary, for several months got payment of such orders from Mr. Proctor. So that 1 think that in honouring these orders of the defendant the plaintiff contracted wtih him solely as agent of Mr. Proctor. This is the difficult point in the case, for I have little doubt as to the orders for rice and cash being payable to credit of the estate. The plainfaff had been used to furnish rice for this estate before the .defendaOt became superintendent, nor was he personally acquaiated with him ; he never jvent to his bungalow, and indeed he had never seen him until after the action hkd been instituted. It is clear then that the rice and cash were supplied, not on the defendant's own perso- nal credit, but to him as superintendent of the estate — ^in other words, as agent of a principal. If the chetti had not known the name or address of that prin- cipal, and if the defendant had not disclosed it, he himself wovxld be liable. But it is proved that the defendant not only was well aware of the name of the principal, Mr. Proctor, but recognized him as his debtor, for at the end of the month instead of getting payments in cash or cheques from Mr. Gibson, he got an order on Mr. Proctot payable In KanHjc It may be that when the first order on Proctor was tendered to him he might have said, " I will not talTe that ; " I cannot recognize Proctor as my debtor ; I look to you alone as responsible, and must receive payment from your hands." But instead of holding the defendant liable as (he true debtor, he lor several months took tlw ( 13 ) orders on Proctor ; afterwards, however, Mr.- Proctor fell into ba(i health, and his. aflfairs became involved, and the order for the sum now sued on was not paid him when the plaintiff presented it at the office in Kandy. Mr. Proctor has since died, leaving almost no effects. The debtor whom the plaintiff recognized and trusted has failed, but he cannot turn round on the defendant and demand payment, for he never treated him personally, nor had he been led to believe by any act of the defendant that he could or would pay him. Against this jtidgment plaintiff appealed : — (1) That the defendant having admitted the correctness of the account filed' by the plaintiffs, that the goods were sold upon the defendant's order, and issued to hini, and that the cash was ad- vanced upon orders, and received by him, the appellants were entitled to judgment. Aa the party who immediately contracted with the plaintiffs, the defendant is liable in the amount claimed unless he can shew that he was the agent of a disclosed principal, that credit was given to such principal, and that he had authority, express or implied to, bind the principal. (2) It was proved that Mr. Anderson, the former superintendent of the estate, dealt with the plaintiffs, and that upon his giving over charge of the estate he settled his account with the, plaintiff's by giving a pro : note, thus shewing that it was upon credit of the superintendent that the goods were sold to him, and after the defendant took charge the course of dealing seems to have been the same. (3) The defendant states in his evidence " that the plaintiffs rendered monthly ac- counts to him. * * I paid him. monthly after the account had been three months due by orders on Proctor. This went on until " Proctor dishonored an order, telling the chetti, that he was ill and could not pay." This is the only evidence adduced by the defen- dant to shew the course of dealing between the parties, and the appellant submitted that there is 'nothing in that evidence to absolve the defendant from liability. On the contrary, it was clear from that evidence that Mr. Proctor was not recognized, by the plaintiffs as their debtor. The mere fact of payment by an order on Proctor would not transfer the liability from defendant to Proctor, any more than a cheque drawn, by the defendant oh his banker would have rendered the latter liable for the debt of the defendant. (4) There is no evidence to shew that the defendant was act- ing for a disclosed principal, and that credit was by the plaintiffs given to such disclosed principal. The learned Judge in his judg- ment considered that " to make themselvs safe, superintendents should give clear intimation on the orders issued by them that the goods are ordered for their principal' and not for themselves. The name of the estate on the top of the ordOr, or a form as ' For Battal- galle estate' is not enough^ This was not done by the defendant. (5) That the larger portion of the claim is for money lent, and no superintendent, except by clear authority, can bind the proprietor of the estate aa to render him liable for such advances. As the learned Judge in his judgment states, " As a general rule, a superin- tendent receiving money from chettis on Orders payable to self esc fdcie of the document enters into a personal contract for which he and not his" principal is liable." Indeed in this part of the case, though the result is adverse to the appellants, the reasoning of the learned Judge seems to be in favor of the appellants. (6) That the defendant had charge of two estates, and the rice and money required for both places were drawn as the defendant says upon " same orders," and it was therefore impossible for the plaintiff to have distinguished the amount due in rfespect of one estate from that dtte in respect of the other. iii) The Supreme Court affirmed Mr. Lawrie's judgment in the following terms ! — , The question ia whether the defendant dealt on his own account or whether he Only acted as the agent of a disclosed principal in hia transactions with the plaintiff. It is admitted that the plaintiff and defendant never had any personal communication with each other prior to this suit. It is also clear that the defendant was merely the superintendent on the Battagalla estate, the owner of which, the late Mr. Proctor, re- sided in Kandy up to his death. Further, all the items in the account particulars were on account of expenditure incurred on the Battagalla estate in Mr. Proctor's lifetime, the present action being in fact for the recovery of the amount . last drawn on Mr. Proctor, the order for the payment of which, owing to his pecuniary em- barrassments, was (dishonoured shortly before hia death. The claim of the plaintiff comprises two kinds of written orders signed by the defendant, both dated Battagalla estate : one for suppUes, the other for money. As regards the former, the sample order produced distinctly states the supply to be " on account of the above estate. " The evidence estabfishes that the supplies for the estate as well as ijjie money orders were settled in the same man- ner monthly by orders drawn by the defendant on Mr. Proctor, the deceased proprietor, all whereof except the last were duly paid. It was argued on behalf of the appellant that "Mr. Proctor only cashed the orders as a banker ; at any rate, that the plaintiff may have so regarded him. In the first place, Mr. Proctor was not a banker ; a fact that the plaintiff, a chetty in business, could not but well know. Secondly, if the plaintiff had intended to deal with the defendant personally, and not as agent of the owner of the estate, it is but reasonable to expect that the parties would have had some negotiation jvith each other, instead of which the only personal communication, if any, would seem to have been entirdy between the plaintiff and Mr. Proctor the deceased proprietor. Thirdly, if the defeiddant acted on his own account the settlement would naturally have been either by cash payment or cheques on one of the banks. The plaintiff certainly says that he only came to know that the estate belonged to Mr. Proctor some seven or eight months before the tijial. But the statement was not on oath, and the circumstance appears to us to militate against such a conclusion. It is highly improbable that th« plaintiff should have as his debtor an unknown superintendent, and not the estate ex- pressly mentioned in the supply orders, ani • have made not a > single enquiiy as to the proprietor. The money orders having been treated in precisely the same way as the orders for supplies, we do not see that any distinction can be properly drawn between them. It will be observed that the present is a very different case to that of a superintendent of an estate adequately furnished with funds for up-keep by an absent proprietor away from Ceylon, having nothing whatever to -do with persons dealing with the superintendent. In the ease before us, the owner was not only resident in Kandy himself, settling payments on account of his estate,, but, as further shewn, the defendant was not supplied with funds. (17th November, 1876.) Where a contractor gives credit to superintendent alone, Buiierintendent liable. (15) BISTRICT COURT, KANDY. No. 66,204. Serahami vs. Jambs Andbesow. ' The facta of this case are as follows : — PlaintifT sought to recover a balance sum of B,.'695 odd for work done by him as a felling contractor on liattalgala estate at the request of the defendant. The latter, admitting that plaintiff was em- ployed as such contractor on the estate, the property of the late Mr. W. Gr. Proctor, whereof he was superintendent, denied his personal liability to pay the debt. The felling was said to have been completed in February, 1875. Proctor died in May? 1875, and the estate was sold in July, 1875. For the plaintiff, Mr. Advocate Beven contended : — (1) That defendant personally contracted and was therefore personally liable. {Smith on Contracts 329. Stoiy on Agency 312.) (2) That the work was completed in February, 1875, and the defendant was guilty of laches in not having seen to payment. (3) Carpen- ter contractors could hardly be expected to ascertain the names of proprietors, and they had a right to look for payment to the superintendent who engaged them. (4) Even if the defendant named his principal, he should have named him as responsible. (Story 309-310.) (5) ' If one of two innocent persona should bear a loss, it seemed reasonable that he who was the means of causing auch loss, by not using the precaution he should have done, should be held responsible. Mr. Advocate Van Lanqenberg, for defendant, urged :t— (1) That defendant was not liable, inasmuch as at the time plaintiff was engaged plaintiff was informed that defendant entered into contract as agent for the proprietor. (2) All that was necessary to be done by defendant to protect himself was to disclose his prin- cipal, and this the defendant had done. (3) That the defendant merely acted within the scope of his . authority in the discharge of an obvious duty on behalf of a disclosed principal. Before evidence was gone into defendant, being examined, stated : — Plaintiff is a felling contractor. I employed him to fell 123 acres of land on that contract. This is a balance due of K.659'88. The burn was on 9th February. It was qot cleared up then ; indeed it is scarcely finished yet. I told the plaintiff that the laud was Mr. Proctor's land. I told him that Mr. Proctor was responsible, not I. I spoke to him in Tamil, The last payment was on 25th March. I was authorized by Mr. Proc- tor to draw on chettis and.carry on operations. I wrote this letter, of ,10th February, 1875 :— , ■ " My dear Proctor, — Your clearing was burned off yesterday (a terrific bum) and very nearly the nursery too. One little comer of it did singe, but nothing to speak of. Lines will be commenced at once. If you can send me any coolies I'll take them at once, as I can get lines on the adjoining estate till the others are ready. Yours faithfully, ^ J. Anderson." I wrote ^Iso this other letter : — "My dear Proctor, — I gave thechetti an order on you to- day for E. 1,200 at three days' sight, which I hope is the way you wanted. I am going to bum off to-morrow, or at least have a good try- to. I hope it will be a, good bum ; all I have al- ready got have been splendid. I sent my -pcny over to Battal- galla to-day. for T. C. Anderson, and expected him hereto-night, but he hasn't tuTned up. I don't know what's loqrae of him. Nei- ther he nor the pony either have come. Hasve you ftny eoolies (18) yott can send me? ' I hope yotf have, as early planting is a great matter. Yours very truly, James Anderson," The burn referred to is in the plaintiff's contract. The plaintiff having been examined, stated as follows :— The sum sued for is due on the contract entered into with defendant* I completed the contract about the 10th February. There was nothing to clear. It was a good bum. I applied from time to- time for the money. The defendant put me off from time to time saying he had no money. He did not refer me to Mr. Proctor. I do not know that the estate was Mr. Proctor's. I spoke Tamil to def fendant. In cross-examination the plaintiff said : I had two more contracts from defendant, separate pass books for each. Three books in all : one book for two estates and another book for another estate. I think I had four contracts. There was a jungle, called the Colombo gentleman's jungle. Mr. Anderson lived some miles away, four or five miles. To . the Court : I did not understand what -was written in the book. This land was called Proctor's tottam. One of the four contracts I got from Mr. Anderson was on Sitalagaugawatta, which I understand is Mr. Anderson's own property. I took the felling of the land as Proctor's jungle. That name was given to it by Mr. Anderson. I thought it belonged to some other gentleman than Mr. Anderson. I never saw Mr. Proctor. I had been on Mr. Anderson's estates for four or five years. I new hp had charge of the estate of other gentlemen. I got £25 in April. Mr. Anderson said : " I have not got money." Ee-examined : I got 11.400, which Mr. Anderson gave me on account of Mr. Proctor, and subsequently he entered in anothing book — Mr. Anderson's own book. I was not told till September that Mr. Proctor was dead. Mr. Anderson recalled : This pass-book marked X'refers to Mr. Proctor's land ; the other book Z to my own estate. The books were not produced when the E,.400 was paid. The District Judge gave judgment as follows ; — Judgment. — In this case the plaintiff was a man known to the defendant and selected by him to do the work, and it was under- stood that the defendant would pay the plaintiff the contract price in sums to an account from time to time, and for that purpose he was provided with a pass-book now produced. In these circumstances, ' I think that the defendant is liable in payment of the contract sum, unless it were proved (1) that he gave the defendant distinct inti- mation that he acted as agent only'; (2) that he disclosed his princi- pal's name ; and (3) that he told the plaintiff he must look to that principal for payment. There is no doubt that the plaintiff knew that the estate did not belong to the defendant ; he also knew that it was called Proctor's tottam ; but I think he knew no more. The evidence led here'and the manner in which the defendant and plaintiff dealt with each other with regard to payments to account, satisfy me that the defen- dant held himself out as and was regarded by the defendant as the principal, certainly as the person by whom payment was to be made.- I am not satisfied that the defendant told the plaintiff that he was not to be considered as personally liable. I draw a distinction be- tween this case and the case 165,704 (Sinnmja Clietti vs. J. Gibson) decided by me to-day. In that there was no personal acquaintance or "contract between the plaintiff - and defendant, and the plaintiff had been in use to receive payment, not. from the defendant, but from the owner of the estate. Judgment for plaintiff with costs, (17) The defendant appealed : (1) That the said judgment is con- trary to law, aud opposed to evidence. (2).— That at the time the plaintiff was engaged by the defendant the plaintiff was in- formed that the defendant entered into the contract as agent for Mr. Proctor, and that Mr. Proctor, and not the defendant, was responsible for the amount due upon the contract. The defendant was aware, that the land to be felled was called " Proctor's Tottam (Proctor's garden), and in an account opened by the parties in a pass book kept by the plaintiff the heading is " Felling on W. G-. Proctor's land" clearly shews that the plaintiff was made aware that the defendant had no personal interest in the contract. The plaintiff in his evidence states : "I took th'e felling of this land " on Proctor's jungle ; that name was givCn it by Mr. Anderson. " I thought it belonged to some other gentlemen than Mr. Ander- " son. Inever sawProctbr." This evidence establishes the fact of plaintiffs knowledge that the land belonged to Proctor, or at least that it did not belong to Mr. Anderson, the defendant. In the face of such admission the appellant urged that there was no ground for holding that the defendant " held himself out as, and was regarded by the defendant as, the principal, certainly as the person by whom payment was to be made." (3)— The fact of the defendant being known to the plaintiff would not create d liability. To protect himself, aU that was necessary to be done was to dis- close his principal, and this, it is abundantly clear, the appellant did. (4). — The appellant was quite prepared to prove facts to absolve him from any liability upon the contract, but that at the close of the plaintiffs case the appellant understood that the learned Judge considered it mmecessary for the defendant to adduce any evidence or even to hear his counsel. In appeal set aside, and by consent of both parties this case is sent back to afford defendant opportunity of calling evidence ; all cost to be costs in the case.— (22nd December, 1876.) [This ease has not been finally decided,] of coolies. DISTRICT COURT, KANDY. No. 47,780. b'Esteree & Co. vs. E. M. Rossiteb. Owner of estate This was a claim against a superintendent of a coffee estate liable foi for goods, chiefly medicines, supplied on his and his predecessor's medicines orders. Defendant denied his liability to pay, on the ground that supplied for use ^he medicines were supplied to the estate on account of the pro- prietor. . . .1 Defendant in his examination admitted that medicmes to the value of £2 odd were supplied to him for his personal use ; andas it was not shewn that the owner of an estate was bound by law or custom to pay for the superintendent's medicines, defendant was decreed to pay the amount. With this exception, the claim of plaintiff was dismissed (T. Berwick, D. J. ), and the defendant ab- solved from the instance with costs :— "The other items were m part ordered by the defendant's predecessor for the use of the coolies on the estate, and not either by or for the use of the de- fendant, on whom therefore plaintiff can have- no claim ; and the rest though ordered by defendant, were in fact ordered by him for the use of the estate, and of this the plaintiff had notice for they were issued on orders *hich, expressly directed the plaintiffs ■ to charge them to account of the estate ; and that the estate was de- bited with them by the plaintiffs appears from the very title of the account. When a tradesman furnishes estate supplies on the orders of superintendents, professing that they are for estate use, C (18? knowing, or having the means with ordinary diligence, of ascertain- ing who the proprietor is, he will he presumed to have intended to give credit to the master and to the substantial security afford- ed by his property, and not -to the fluctuating and unsubstantial paid servants or superintendents. So "much for one questioi— To whom was credit given ? The only other questions are, Did the servant act withm the" known scope of his employment and of authority expressly or impliedly dolegated to him by his master, and was he therefore competent to bind the latter by the contract without personal habUity to himself ? This depends on the nature T J7 P. ^'^^ ^^^ evidenSe of the authority expressly or im- pliedly delegated to the servant. In this case the goods are medi- cines tor the use of the estate coolies and applied to the benefit of the master. The law has declared by Ordinance 11 of 1865, more- over, that, a, master is hound to furnish medical treatment to his sick coolies, and the nature of the ease necessarily requu'es that this duty shall be performed on his account by theresid«nt manager or superintendent on the estate; and it is one of the seK-evident duties of the manager, which he would' be bound to discharge in- stantly as the occasion arose, and before he could possibly communi- cate with the owner. The very nature of the superihtendent's em- ployment therefore furnishes sufficient evidence of an implied dele- gated authority to discharge this duty and to furnish himseU with the means of doing so, irrespective of any proof of either usage or express directions, and, this case is decided oii the principle that, in_ this country, the superintendent of a coffee' estate has an im- plied authority to pledge his master (the owner's) credit for ipedi- cines for the use of the coolies oh the estate. "It may be well to notice particularly the letter which has been put in evidence from' the owner of the estate to the plaintiff, which proves that the plaintiff knew and credited the owner, as Avell as shews that the latter recognized his general liability,for charges of this nature. The owner says in it, in substance, that' before replying to the plaintiffs demand he wishes to ascertain whether the superintendent has not already charged him with the amount of the account, ' as in that case he (the superintendent) would have to pay it himself.' This is a mistake. If the trades- man has not been paid, he is entitled to demand payment from the master. If the servant has committed any error or fraud on his master and charged him for unsettled accounts, or has received money for the purpose of settling them, and has misapphed it, that must be a question of accounting ^nd settlement between the master and servant,' but cannot affect the right of the tradesman to payment of his account nor the liability of the master to pay it. The plaintiffs in this case have sued the wrong party for these medicines." (Not appealed from. ) Superintendent . not liable for amount due .on a weeding contract. DISTRICT COUKT, KANDY. No. 49,378. Wakusa Kangani vs. W. Gray. This was a claim for balance due on a weeding contract. De- fendant, late superintendent of Woodstock, denied his Hability to pay, inasmuch as the plaintiff was acquainted with the proprietor and always looked to the latter for payment. At the trial, it was admitted that, the debt was incurred' by the owner of Woodstock, and for work for which the plaintiff was engaged by defendant as superintendent ; and that the substantial question for decision was whether the superintendent who engaged ( 19 ) the defendant was liable for the claim. It was further agreed that the claim accrued previous to June, 1867, and that the plain- tiff knew at that time that defendant was only the superintendent of the estate, and knew the name of the owner. The D. J. (Berwick)) nonsuited plaintiff with costs : " I see no reason to depart from the principles laid do*n in (PEstcrre vs. Rossiter {4:'7,^8S). That case is not identical with the presfent, in as far as the present action is one for the balance due on a weeding contract, and there is no legitimate responsibility in this case like that thrown on persons to afiord medical treatment to their coolies ; but the principles on which the decision rest are identical. The very nature of a super^ntendent's employment affords sufficient evidence of his duty to tajce measures for weeding the -estate, and to incur obligations on behalf of his master for that purpose. If his master had limited his duties in this respect, or at once repu- diated the contract, or given him directions not to weed the estate, or restricted him in any way on the subject, there can be no doubt that the superintendent would become personally liable for his acts. But that is liot the case here, and there is no departure from duty which would throw any further personal reSponsibihty on the superintendent than lies on him in . the ordinary case of a known agent, in the -known exercise of the ordinary scope of his employ- ' ment, entering into a contract on behalf of a known principal. " (No appeal taken. ) DISTRICT COURT, KANDY. No. 62,438. . , Raman Chetti vs. Robekt Temple. Proprietor liable '^^^ plaintiff sued the defendant as the proprietor or agent for money of the proprietor, undisclosed to plaintiff, of DeyaniUekeUe ea- borrowed to pay tate," for moneys borrowed and goods purchased by E. Temple, creditors of superintendent of the estate, being thereto authorized by the estate and defendant. for money _ Defendant, in answer, admitted to be the attorney of the pro- expended for its prietor of Deyaoillekelle, and that he appointed E. Temple as benefit. superintendent, and that E. Temple, as such superintendent, was authorized to incur on behalf of the proprietor all reasonable and necessary expenses, in the purchase of rice, poonae, and other like necessaries for the upkeep, maintenance,' and- cultivation of the said estate ; but the' defendant specially denied that the said E. Temple was authorized to borrow or raise any sum or sums of money from plaintiff or elsewhere for any purpose what- ever. Defendant further denied that the sum representing cash alleged to have been advisnced by the plaintiff to E. Temple was advanced on or borrowed for the purposes of the estate or was expended on the estate, as alleged. Mr. Lawbie delivered judgment as follows : — In my opinion the defendant is liable to the plaintiff for the sums paid by him on the orders of the superintendent to creditors of the estate. It is not denied that these debts were due, and in equity the plaintiff has as good a claim for payment from the defendant aa the original creditors could Jiave had. I think it would not have been a relevant defence to an action by these creditors to say that the superintendent had been put, in funds to pay the, debts, but had misapplied the money; the loss should fall on the owner by whom the superintendent was se- lected and employed. In this case the accounts have not been produced ; there is no proof that the superintendent, by crediting himself with havinjg paid these accounts or debitina the eststj g(20) with them, got payment from the defendant. I have no hesi- tation in finding the defendant liable in the payment of so much of the account as was paid to creditors of the estate. I see a great distinction between payments to third parties, creditors of the estate, and payments to the superintendent himself or to persons holding orders from him payable to bearer. As a general rule, I think a chetti making such payments and honoring such orders must be held to trust to the personal credit of the superintendent. He does not know to what purpose: the money is to be ap- lied, and he must trust to the honesty and solvency of the superintendent for repayment. But this is a special case. It has been proved by evid^ce, which the defendant has not chosen to dispute or attempted to contradict, that a considerable number of the orders 'payable to bearer and cashed by the plj^iatiflF were drawn for and applied to estate purposes. I do not say that the defendant might not have relieved himself of liability by proving that, he had supplied funds to meet that expenditure. But I do not understand that he says more than that ; he was ignorant of the dealings with the chetti, and that he supplied whatever money ,the superintendent asked for. I do not doubt ±hat is so. But I understand that the defendant is not able to say that he was asked for money for the very advances and ex- penditure to which the superintendent says he devoted the sums got from the chetti. , Clear evidence that he had already paid would have been required to relieve the defendant from payment ^f sums which had been spent on his estate. I fear I may not do full justice to the defendant in finding him liable for all sums admitted by the superintendent to have been expended on the estate, but I am obliged to do so, as the estate books have not been produced. There has been abundance of time to get them from England. Without proof from them that the defendant has already "been charged f ot and paid these sums to the superin- tendent, I could not relieve him froni the liablity of paying to the chetti money admittedly advanced by him. " District Court, Kegalla,- 2, 632, recently decided by the. Supreme Court, turned, I understand, on the proof that the superintendent was kept in funds by the estate agents, and that in the previous course of dealing the chetti was paid monthly. Here these conditions are absent or not prQ,ved. There still remains the claim for repayment of orders payable to the superintendent or bearer, which the superin- tendent swears were drawn on for his own private use. For these I think the defendant is not liable. ' The Account will be scrutinised and judgment given for the sums whicli the superintendent states were paid to the creditore of the estate, or were expended by him for its benefit. (No -appeal taken.) - DISTRICT COURT, KAKDY. No. 49,453. RamaJt Chetti vs. Crown. f, , This was an action by a chetti against Government for U^M^^rico £449 odd for rice supplied for use of the Public Works Depart- Bupplied to "lent to Mr. Campbell, a Provmcial Assistant in that depart- I'ubUc Works ment. Government denied their responsibility for the contracts Department of that ofllcer in tliis matter, and further denied the accuracy for laboiwera of the plaintiff's account, and alleged that he had been paid in employed on full for all the rice alleged to have been delivered for the use, tha roads. of the department. The principal question for decision Was whether Mr. Camp- ( 21) bell personally, or the Government which was sued, was liable to the plaintiff for any just claim he might have. After evidence was fully gone into on both sides, the District Jiidge (T. Berwick) entered up judgment for the plaintiff for the full amoiijit of his claim in the following terms : — As the rice was unquestionably delivered on the orders of Mr. Campbell, with whom the plaintiff contracted, and was professed to con- tract on behalf of Government, this part of the case is reduced to the question — ^What was Mr. Campbell's authority to bind the Government ? and this must be determined ' on ' the very same principles as would determine the power of an estate liuperintendent or any other servant to bind his employer by his dealings within the ordinary scope of his duties and employ- mant. It appears from the evidence that the labourers employ- ed ~ on the public roads are often so employed at a distance from towns or other places, where they could not purchase the rice necessary for their subsistence, and that as they are' only paid at stated intervals, it has been the practice for their offi- cers to make advances to them / before their pay-day comes round in the shape of rice, the value of whibh is afterwards deducted from their pay. This practice appears to have been one of necessity, partly because the labourers must have food before they receive their pay for work already done ; partly to prevent them from going to a distant market to buy their rice, at the Iqss of so many days' labour, and partly beoaiise they are hired on the terms of the Government agreeing, that they shall be furnished with rice at a price which shalj not exceed a certain fixed rate, whatever the market price may be. It is clear from the evidence that the public works cannot be car- ried on without this system — that regular stores and storekeep- ers are kept up for the purpose" of storing and issuing the rice — that the practice is not only known to and recognized by the responsible chiefs of the department, but that the pay-lists and accounts furnished by the head office are framed with es- pecial reference to these advances — that the chiefs e?^pect, and at times have expressly directed^ their subordinate officers to make provision for a sufficiency of rice for the labourers in advance of their pay (the corollary from which is that if an , officer failed to make efficient provision, he would be considered himself inefficient, and his departmental prospects, if not his actual position, risked) and that within jjertain limits the Go- vernment are in the habit of bearing the loss occasioned by labourers deserting under rice advances. AVhile then, on the one hand, it is proved that the public service cannot be carried on without these rice advances to the labourers, and that the officers of the department are virtually held . responsible for seeing them duly provided for ; on the other hand, Government does not put its officers in funds for this purpose, the consequence of which is that they must either expend their private means, or purchase rice on credit, and recoup themselves by the sub- sequent deductions on pay-days from the men's pay. If Go- vernment be not responsible for the payment to the (tradesmen for the rice purchased on credit from them under these cir- cumstances and for these purposes by the officers ; if upon any question arising the officers are themselves personally liable; then, seeing' that without such purchases and advances the necessary labovir supply cannot be maintained, and that the officers would be held responsible for an insufficiency of labour^ supply; — it inevitably follows that these officers get their sala- ries not Merely for their professional skill and work, but also as contractors for labour, holding - their places under Govern- ( 22 ) ment on the terms that they are to provide but of their own private resources to keeip up the labour supply, or be liable to censure (and consequently to loss of their offices) if they cannot do this. There is no evidence that such are the terlhs of their engagement. I reject anch a theory; and what follows ? This— . that without the?:, advances and purchases the continuance of labour supply r/iild not be maintained, and the public service would be brought to a stop ; that Government are privy to, and recognize the system, expect and indeed (as has been proved) desire their officers to work on that system, but neither make it a condition of their tenure of their offices that they shall work it out of their private resources nor give them funds in and for the purpose. The inevitable inferences appear to the Court to be, first, that the purchase of rice for advances is ' a necessary and essential part of the officer's duties ; and, second, that he is entitled to pledge his employers' credit for purchases so clearly within the necessary and recognized scope of his duty and employment. This is equivalent to holding that Govern- ment is liable to the plaintiff for the deht in suit, if anything be due, and that the plaintiff would not have a good claim against Mr. Campbell, who dealt as an agent ' with a disclosed principal and within the necessary scope of his duty, and there- fore of his implied authority. This argument would of course fail, if Government supplied their officers with either rice or funds to buy it. But so long as the dffpartmeiit recognize thejieces- sity for the system, and does not itself put the officer in funds in ad- vance for the purpose — and doesnot charge the officer's salary with cost of rice, so long will it be impossible to argue that if the officer (for want of credit or otherwise) found it necessary to expend his pri- vate cash for the purpose, he would not be entitled to charge his em- ployers with it. And what a servant is entitled to purchase for his employer with his private cash and charge for in his account, it must ■ be presumed he can equally purchase for credit and pledge his em- ployer's credit for, unless there be some special instruction to theoon- traiy, there being generally no difference between cash and credit in this respect. In dealing with the evidence of the facts on which • the decision of the foregoing point turns, I have been mainly guided by the testimony of Mr. Hall; but it is observable, that while both Mr. Campbell and Capt. - Oldfield were obviously in the witness-box under the impression that the liability was a personal one to them- selves and not a HabUity by Government, the facts transpiring in their testimony lead up to a contrary conclusion, and confinn Mr. Hall. * * I have gone through the whole case. Plaintiff has proved the whole of his claim. He has proved that the rice was all supplied to the Public Works Department on orders by officers of that department, having aujauthoritj^ implied by the recognized practice and nature of .their duties to give the orders on be- half of Government, and the purposes for which it was wanted, and therefore authorized, to bind the Government and pledge its credit fot those purchases. Thereis no doubt that the whole of the rice was in fact delivered to the stores of the Public Works Bepartment, and accepted there for its use by the officers of that department, and that, so f^ at all events the department has received it and thereby made it itself answerable to the plaintiff for its value ; and this being a de- partment of the Government, this action is rightly brought against it. The Crown appealed, amongst other grounds, on the ground that the Government never contracted with-plaintiff, and never authorized Mr. Campbell to contract for and on its behalf, and that the written contract filed with the libel was entered into by Mr. Campbell with plaintiff subsequently to the alleged transactions. Jn appeal— affii-med, (7th Junej 1870.} (23^ DISTRICT .COURT, KANDY. • -No. 51,974. Coolies' wages, . Wouteksz m. Peedinands. This was an action by a superintendent of a coffee estate to recover from tlie proprietor, his employer, arrears of salary, value of manure supplied, and also pay of certain coolies which he (plaintiff) alleged he supplied defendant at , his (plaintiffs) risk and responsibility. The salary and price of mamire were deposited in Court, but defendant denied that, plaintiff agreed to supply him with coolies on his (plaintiff's) responsibility ; on the contrary, that he (defendant) agreed to pay plaintiff for super- intendence only, the coolies employed being paid by the defend- ant himself according to' the Check Roll. That plainti^ had refused to come with the coolies into Kandy to receive their wages, which he (defendant) was always ready and willing to pay. Me. C. H. de Saeam, -D. J., gave judgment for plaintiff: ' ' As the coolies have no objectiim to the sums appearing against their names being paid to -(^^ plaintiff, let those sums be- in- cluded in the judgment in ^tei- that the coolies anfl plaintiff be enabled to settle the question oi advance as between plain- tiff and themselves." ■ Defendant appealed: (1) The plaintiff having failed to prove his special contract, he was not entitled to judgment for the wages alleged to be due to the coolies. (2) That, defendant having deposited in Court the amovmt admitted to be due by him to tjie plaintiff, defendant was entitled to costs. In appeal modified as follows: — That the defendant do pay to some person to be named in that .behall by the D. J. the amount found to be' due to the coolies on his estate, and that such person do proceed to the estate where the coolies are em- ployed, and pay to them the sums due to each according to the finding of the D. J.; and that parties respefctively do pay their own costs. (6th September, 1870.) DISTRICT COURT, KANDY. No. 50,377. , GoEDON, Massey & Co. vs. F. B. Oahpee. Purchase of a Plaintiffs claimed value of a pulper. Defendant denied the pulper. debt. At the trial, the question in the case was whether the _ defendant or Mr. L. Henry was liable to the plaintiffs for the value of the pulper sold by plaintiffs on the immediate order of Henryi Defendant had been superintendent of Angamona, one of Dickson Tatham's estates, 'and was succeeded by Henry.' To understand the whole" transaction in respect of the pur- chase, it is necessary tc have all the evidence in the case, which is as follows : — Louts • Heney stated : I purchsised a pulper from the plain- tiff at their ^hop in Kandy. I gave the order to one of the clerks iii that shop, and desired him to send it along with an iron bridge I had piirchased — to send both in one cart — both to be delivered at the Giligateftna Pass to the store kept there by Poster. I told the clerk that the pulper was for the de- fendant, and .that he would pay a share of the cart hire. My authority was from Mr. Capper. Mr. Capper was ma- . nager of one of Dickson, Tatham & Co.'s estates at the time. - He sold off the things on the estate, including a pulper. He told me he had sold it to a man whose name I forget. He subsequently remained on the property for several , months till I succeeded him as manager of the estate in "September, 1867t (24) On my going then there was no pnlper, and it was then he told me he had sold it. I told him that I had infonnation that the pulper was on his own estate, and said: "If you dent' return the, pnlper before my next visit, I -will be compelled to take out legal proceedings." He answered, it he should return the pnlper : what would he do himself for one on his place. I replied : J' There are plenty to be got in Kandy cheap enough." He then sajd it was' not convenient for him to go to Kaudy then, but he would be very much obliged* to me if I would buy one for him in Kandy, and pay it out of the money that Tatham owed , "him. He proposed that I should pay for it out ■of the money of Tatham s, which Jie expected to pass through my hands. I said : "No, Mr. Capper, I can't interfere with that money at all," because I was not at all certain that there was any due to him, but notwithstanduig,jif he wished, I woidd buy the pulper for him. He said "Buy one for me." He led me to believe that whether he recovered money from Tatham ornot he was anxious to have the pumper under any circumstances, as his crop was oon^g on. I then went and ordered the pulper for Mr. Capper, telling the clerk that it was for Mr. Capper. I never saw the pulper which was sent. I described the Kind that was wanted. To CoTjRT : I did not tell Mr. Capper that I had ordered it. I neither wrote to him nor told him of it, not to this day so far as I remember. Cross-examined : I have reason to believe that Mr. Capper was properly mstructed 40 sell off the moveable property of the estate on Tatham's account. Mr. Massey sent me a bill for the new pulper. I told him >I had nothing to do with it. Defendant stated : When employed as superintendent of one of Tatham's estate, I received an or(der to sell off all the move- able property, and did so, buying the pulper for myself to use on an 'estate of my own. At the time Tatham and I had crop account, and he owed me money, ajid in my account I credited Tatham with £12 for the pulper. Some time after,wards I re- moved that pulper to my own estate. When Mr. Henry came to take charge of the estate after me, he questioned me ahont the things. I told hun all the moveables were sold on the in- structions of Mr. MacDonald. He then told me he thought Mr. Tatham would take back the things at the same price for which I had sold them. I then told him I had purchased the pulper, which I was willing to Tetum, and I would try and get back the other things from the other parties. I told him I had the pulper on my own property. He told me he had ordered a pulper for the estate at Massey's, which he would give me if I wanted it, I told him I would take it and re- turn Tatham's. I did not authorize Mr. Henry to purchase the pulper for me. •To COTIRT : Mr. Henry wanted me to get all the sales of the . moveable property cancelled, and get the things back from the purchasers, and he would pay them the amount. I agreed to that., I agreed to cancel my own purchase of the pulper. My purchase was cancelled. Question: " Having credited Tatliam on your account with the value of the pulper, I presume you meant to make a cross entry debiting him with the same amoimt ?" Answer : " No ; Mr. Henry as Tatham's representative told me he would pay me for it." Mr. Berwick, D. J., gave judgment for plaintiff: — " There are different accounts given of the transaction by Mr. Henry and Mr. Capper, and in deciding between these, the Court has to be very much guided by what it -congiders (25) most probable in counexion with the undisputed facts, which are mix- ed up -with another, an old pulper returned to Tatham's estate, from which it had been purchased and removed by defendant, the 'then superintendent. It is clear that in returning ,the old estate piUper, defendant did so at the request of Tatham's new representative, Henry, and in the way of cancelling his previous purchase of it. As respects Tatham aind the estate pulper, it is as if there had never been a sale of it at all, and it was simply returned from defendant's estate to its ori- ginal place as part of Tatham's estate moveables. This makes it most probable that the new pulper was wanted by defend- ant for his own place, and that he authorized Henry to order it for him. Defendant himself goes as far as to admit that after agreeing to cancel his purchase of the old pulper, he told Henry he would take the new one which Henry had ordered. This admission is » considerable march on to the .view taken by the Court of the conflicting testimony. Defendant's counsel contend- ed and put as defendant's story, that he agreed to exchange the old one for a new one. But such a story is not consis- tent with the certain fact, that in cancelling previous purchase there is no place left for the idea of the exchange of , one thing for another, and such an idea is quite opposed to the undisputed fact, that Henry's object was simply to get back all the things which had been sold from the estate to various pur- chasers, cancelling all the sales by consent of various purchas- ers. But Counsel's theory of an exchange is opposed to de- fendant's own evidence, which ii that Henry agreed to pay him for the old one ; and the resulting effect of such- an agree- ment in connexion with the disputed liability for the present claim would be that Henry would be left with two pulpera for Tatham's estate, and defendant with not one for his own place, a very unlikely arrangement. It has not been denied that the new pulper is now with the defendant, while Henry has the old one. Judgment entered for the plaintiff as prayed. Defendant appealed on the ground that no evidence was adduced to shew the liability of the defendant to the plaintiff ; that by the evidence of Mr. Henry it was already shewn to the Court that the plaintiff debited him with the. value of the pulper, and not the defendant ; and that the plaintiff looked to Mr. Henry alone for- payment. In appeal affirmed. (30th November, 1869.) DISTRICT COURT, KANDY. No. 53.426. KAfTNAPPA ChETTI v8. J. M. KnIGHT. Transactions This was an action to recover from defendant value of goods with agent of sold and delivered. Defendant admitted having had transactions ohetti ferns, with one Pana Karuppeu Chetti of the same nature for which the action had been brought, and that long before this action the defendant had satisfied and discharged the said Eana Karuppen's claim in full by payment. Plaintiff in yreply stated that Pana Karuppeu was the duly appointed agent of the' plaintiff, and that the transactions referred to and the contract in respect of which the claim was made, were entered into by the said Pana Karuppen as such agent of the plaintiff ; but denied it to be true that the said claim was satisfied by payment. Both parties led evidence. The D. J. (C. H, de Saram) abi ■ D ( 26 ) solved the defenda nt from the instance with costSj in the follow- ing terms : "It is admitted that the defendant paid Pana Karappen Phetti the sum' of £274 Os. 6d. at various times commencing from the 4th March, 1869, down to 7th June, 1869. It thus apr pears that the party with whom the defendant personally dealt was Pana Karuppen Ohetti, to whom he made large payments. The defendant's contention is that he paid and settled with Pana Karuppen Chetti for all that was due to him, the last payment being made on the 17th of August, 1869, and that thfe account particulars filed with the libel is a concocted one in order to make out that a balance of £160 9s. 5d. is still due in respect of defendant's transaction with Pana Karuppen Chetti. Pana Kanippen Chetti is said to have gone to the Coast, so that we have hot his evidence before us. I have no reason to doubt the defendant's evidence. It is in no way contradicted. There is no satisfactory evidence to show that such a balance as claimed is still due. I shall however, as I did in another case between the plaintiff and another Dikoya planter, with reference to a similar transaction, absolve the defendant from the instance, in order to give plaintiff Agent should be an opportunity -of instituting a fresh actionj if so advised, and pro- produced as ducing Pana Karuppen Chetti as a witness." 'f't^ss^- In appeal, affirmed.— (June 23, 1871. ) DISTKICT COURT, KANDY. No. 64,556. Jambs Blackbtt vs. Ai,EXANDEfe Milne. Where Coast The facts of the case are as follows : the plaintiff sued the Advances have defendant for a sum of E,.449 odd, which he (defendant) as been made by superintendent of plaintifTs estate (Meddegodde) alleged he had Superintendents advanced to kangauis for the purpose of, procuring coolies from" +h ^°>f ^^^! India' and elsewhere for service on the said estate ; and plain- thongn not ^.^ complained that defendant, contrary to the usual and custom- jutnqio^ y ^^^ mode of proceeding when such advances are made, and in SioUld fall on hreach of his duty neglected to take receipts, acknowledg- Bstate not on ment, or- security for such advances^, and that defendant failed Superintendents, to account to plaintiff, as proprietor, for such advances alleged to have been made by him. The defendant, by his answer, pleaded inter alia that advances were made in the usual and customary wajr, and that he should not be held responsible for any loss sustained by, the plaintiff. The defendant pleaded also prescription. The District Judge (A. C. -Lawkib) pronounced judgment in the following terms : — When the defendant in the end of May, 1874, ceased to be the superintendent , on the plaintiff's estate of Meddegodde, he claimed a balance as due to him, which included E.917 for coast advances. These advances had been regularly entered from month to month : the following are the entries f8r the last six months prior to the defendant leaving : — Coast Advances Account. Dr. to amount outstanding 1873, September, R. C. as per last account August, 1873 ... ...1,831 87 Advanced this month, 1873, August, Sep- tember, October, November and December ; 1874, January ... ... ... ... 30 00 R. 1,861 87 (27) Or. by recovered this month, August and R. 0. September ... ... ... 00 October ... ... ... 605 00 November ... ... ... 38 35 December ... ... ... 234 37 January ... ... ... 66 50 944 67 By lost advances transferred to permanent expenditure ... ... ... ... 00 Balance outstanding.., 917 20 R. 1,861 87 The defendant gave over his papers to his successor, who on comparing the list of the advances with the receipts, found that in the case of four there were no vouchers. The plaintiflf proposed to deduct these unvouched payments from the sum due to the defendant, but about 22nd February he paid the full Kum, under protest, and in March, 1875, he raised the action for repetition of E..449 "alleged" to have been paid to kanganis and not accounted for. The defendant pleaded prescription, but that plea I hold to be inapplicable, and I repel it. At the trial the question for decision. was presented rather as one of law than of fact. The plaintiff urged that it was simply whether a superintendent can be allowed to credit himself for payment of advances for which he can produce no receipts. I felt that this depended entirely on circumstances, and desired more proof on several points than the parti es could then give me. Since then the plaintiflf has given the account made up by the defendant on leaving, and several of the monthly reports : and I under- stand that I have now before me all the materials which exist, which can affect the question. I do not doubt that a super- intendent is in the ordinary course of his duty entitled (in- deed almost bound) to exercise his discretion by making allow- ances to kanganis to secure a supply of coolies ; and if the superintendent does so to the best of his ability^ I think the loss which afterwards accrues from the death,, disappearance, or dishonesty of the kanganis should fall on -the estate and not on the superintendent personally. It is impossible/ to prevent a certain percentage of loss. In the printed forms for this very estate Meddegodd« there is a heading, "By lost advances trans- ferred to permanent expenditure," and on every estate it is reasonable' to make allowances for some loss, though the super- intendent takes the greatest care. But the burden of the proof lies on the defendant, who claims credit for the advances which have not been repaid. I do not understand that the plaintiflf does more than lay that burden on the defendant. The libel speaks of the "alleged" advances, but I read these words not as asserting that the defendant has made a false claim, but only that -the plaintiflf knows nothing personally of this and demands proof. The proof which he is entitled to demand is proof that the advances were reaUy made,^th'at they were made in good faith and for the sole object of benefiting the estate and its owner, and that at the time it was reasonable to trust the persons to, whom the advances were maide with the sums given. Hasthen the defendaint proved these ? I no have doubt from evidence that the advances were made., I beKeve the defendant; when in the witne§s-box his evidence is not contradicted ; the names he gives are the names of' men formerly employed^ and the amount was entered ( 28 ) in tKe monthly accounts long before the dispute arose. I do not see any reason ±0 doubt the honesty and good faith of the defendant, and if I say this, is there much more to decide here ? It ia true there are no receipts for these sums, but receipts would have been useful (in a question between the plaintiff and defen- dant) only to pyove that the advances were made. If without receipts I come to the conclusion that the payments were really made, their absence in this case is of little consequence. The defendant says he is sure that he always took receipts, and he thinks he must have left them with Scott when he went home in January, 1873 ; but I need not discuss that part of the proof, because my verdict is that it is proved that the pay- meuts were really made. I am further satisfied that they were made in good faith and with the sole object of benefiting the estate. The result shews that they were not judiciously made, but men in the position and with the pay of superintendents cannot be expected to make no mistake. I have assumed that the defendant him- self made these advances, and I think it is fair so to treat him because he claims credit for them ; but it is doubtful whether one of these was not made before he became superintendent, and whether the others were not made when he was only the assis- tant superintendent under Mr. Scott. I have not enough evidence to shew what control Scott had over the defendant, and whe- ther Scott, and not te, would have been liable had a false entry been made in the reports of an advance which had never been paid. I hold that it has been proved that these payments were made, and I think in the circumstances that the loss should fall on the estate and not on the superintendent who made them. Judgment dismissing the plaintiff's action with costs. An appeal was taken from the above judgment, the main grounds being : — 1. That the evidence adduced by the appellant esta- blished the fact that whenever advances are made" by a superin- tendent for the purpose of obtaining coolies for service on estates, he (the superintendent) should in accordance with the usual cus- tom, obtain security for such advances. 2. That the defendant having charged these advances in account, was bound to make such advances good, personally, unless he had proved that ha had taken the usual and necessary precautions, which he had failed to do. — The Supreme Court, however, affirmed the judg- ment of the District Court, seeing no reason to the contrary. (12th November, 1875.) Estate proprietor who sets fire to a clearing responsible for consequences, whether he acts negligently or not. DISTRICT COUKT, KANDY. • No, 68,847. GrEOEOE Steuart & Co. vs. Frederick Pdlley. Plaintiff*, as Agents of Felix Broun, proprietor of Aber- cairney Estate in Dikoya, sought to recover -from the defendant, 6wner of the adjoining estate, oaUed Hornsey, the sum of R1,000, being damages sustained by them by reason of defendant negh-' gently, without due precaution, and unskilfuUy, burning a clear- ing on Hornsey, whereby a large number of coffee trees on Abercairney were burnt and destroyed, and the said estate was greatly disfigured. Defendant denied want of precaution,- negligence, or unskilfuluess, in managing the burn ; and further stated that he left the usual belt of one chain between the boun- dary of the two estates, and gave due and timely notice to the superintendent of Abercairney, but the said superintendent failed to place a sufficient number of labourers with the requisite tools (29) to protect the coffee and prevent the spreading of the fire, where- by, and also by reason of grass, weeds, and dry timber /having been left on the Abercaimey side of the belt, the fire spread and burnt and damaged some coffee of the Abercaimey Estate. Defendant, being examined by plaintiff's counsel, stated : I am proprietor of Hornsey. It adjoins Abercaimey. I burned oflf a dealing on 27th January, last year. The fire was put in on the boundary, not close to Abercaimey. I went to Mr. "Lee Viner's 'bungalow that forenoon to see the burn. By the time I got there the wind was high. We saw a dry stump on fire near Abercaimey bungalow about 300 yards from the boundary. We went down to endeavour to put the fire out. At that time the fire had not come down to the boundary of Abercairhfey. . The fire at one ^lace crossed through the jungle and into Abercair- ney. Some rows of coffee trees were cut down to check the pro- gress of the fire. There was difficulty in stopping the fire until the coffee was cut down. 1 had been about eleven months on the estate before the bum. The following witnesses were called in behalf of plaintiffs : — T. Lee Vinik was superintendent of Abercaimey in January, 1876. Had notice that there would be a burn on the 26thi Sent coolies to the boundary. Saw the fire on Hornsey. Saw sparks falling and setting fire to a stump near the bungalow. Called men to have it put 'out. Before he could get to the boundary found a patch of Abercaimey burning. Does not think the fire had then come up to the belt of the jungle. Sent ' for every one on the estate, and coolies also from the adjoining estate. There were about 300 or 400 men. Could not get near the boundary from the fire and smoke. It passed through the jungle and into Aber- caimey ; tried all ways to put it out, throwing earth and water, and cutting down lines of coffee trees. About 10 lines of coffee trees were cut down. There was a high wind blowing at the time. Between 1,500 or 1,600 trees were injured. A little over an acre was burned. It was four year old coffee. Very good coffee, about the best on the estate. Cross-exajmined : Had between 60 or 70 coolies on the es- tate at the time. Had put twenty on the boundary. Had ' not taken the precaution to^ remove dry wood or weeds. The other coolies were brought up after the fire had spread. Did not leave the bungalow until he had seen the fire on Abercaimey. Mr. Forsyth was at breakfast. It was blowing from the direc- tion of Hornsey to Abercaimey. Observed that, where the sparks came, some of the trees were merely singed, others which' were sawn over gi-ew up again. Could not say how many trees were totally destroyed. Believed that Abercaimey was planted to its Hmit. The clearing was bounded on one side py Mr. Pulley's land, and oh another by Ireby estate. He did not think that any coffee was burned at that time on Ireby. T. W. N. Beckett, examined,- stated : I am a planter of 17 years' standing. I saw the bum from a distance. It was blow- ing fresh up the valley. It seemed a hot burn. I estimated the damage. There were nearly 1,700 trees which were entirely burned. The damage lay partly on the land near the boundary, and partly near the bungalow. Nine isolated points on the es- tate were set fire to by sparks which had -fallen on rotten wood. I saw some coffee trees which had been cut down particularly, oh a rising hiU. I thought K1,000 to be reasonable damages. The average price 'per acre of coffee of four years old there is £85. In the - matter of land, I think that quite two aeres were burned, but that includes swamp and ravine ; but of planted ppffee an acre and a thirds that taken for ffcapied there were ( 30) no vacancies. I would have first set fire in' the mormng to the clearing next the boundary and burned a little, and then set it on fire further down later in the day. There are two valleys which rather converge on Abercaimey. Abercaimey is iiat at first and then rises. The wind was blowiBg as usual up the valley. I should invariably fire baok from the prevailing wind. Defendant left the usual chain belt. The report was made three weeks after the bum. My report includes the trees cut down ; 1,200 or 1,300 trees to an acre. John Pole, next, called, said that he counted more damaged trees than Mr. Beckett : he counted l.^Sl trees. Defendant, sworn;' I took every reasonable precaution before this bum. I thought the spot where I put in the fire was per- fectly safe for my neighbours. The' wind was blowing from the north-east. Abercaimey is to the north, and east. I inet about a dozen or fourteen coolies on Abercaimey when I was on my way to the bungalow. They were not on the boundary at the hour I said the fire would be put in. I do not think that any Ireby coflfee was burnt. I gave the superintendent of Ireby notice of bum. About twenty or thirty of my trees were burned. AH my coolies were posted along the cofiee to ward off damage. I sent as many as I could' spare afterw^ds to Abercaimey. I think Abercaimey coffee is worth about £70 in acre. Cboss-examined : I had been at Abercaimey some little time before I saw the fire on it. - Re-examined : I am sure that the wind must have changed to blow sparks to Abercaimey. Alexander Foksyth : I am a coffee planter. I was on Abercaimey estate on the day of the fire. I had gone to see the lire. The wind was blowing almost due north-east. The wind changed when the fire was pxit in. There were very few coolies on Abercaimey : from 10 to 20. I would have put on all the coolies I could have got. I don't know if the .few ooohes, who were on the boundary, had mamoties or not, but I remember saying to Mr. 'Viner, ' For God's sake, send for mamoties. ' I should have valued the coffee at certainly not more than £65 an acre. GiOKOB WiaHTON : 14 years a planter. Had seen the place where the fire was put in. "Would have put it in there. The wind was then against the fire. The wind must have changed. Would have had on the coolies at the boundary. Took that pre- caution when there was a bum near him lately. Cleared off all di'y wood. The coolies had mamoties. Had several fires in his es- tate, but they were put out at once. £60 to £70 an acre is the value of Abercaimey estate. Per curiam : The principal part burned was along the bounda,ry, abouts alf an acre. 'I'he rest in patches here and there. After hearing counsel and the above evidence, Mr. Lawme pronounced judgment for plautiff, following the judgment of the S. C, in the case, D. 0., Kandy, 54,643; JElpMnstone vs. Bowstead. Mr. Lawme's deliverance is as follows : — The case Elphinstone vs. Boustead is now the leading authority in Ceylon on this Subject, and by it the Supreme Court decided that a coffee pro- prietor who sets fire to a clearing is responsible for the conse- quences of that act, whether he acted negligently or not. Be- fore pronouncing the judgment in that case, I had considerable doubts, whether the dicta to be found in European law-books were appMoable to the circumstances of coffee proprietors and estates in Ceylon. With us ' a burn ' is a necessary part of the preparation for cultivation. It is a stage, through which every coffee estate must pass, and I doubted whether owners whose estates were bordered by jungle were not bound to protect themselves from fires by leaving (31 J sufficient strips of jungle uncleared along their boundaries. It seemed hard that the first comer should with impunity burn up to the extreme verge of his land, and thus make it almost impossible for the next comer to do the same without running the great risk of do- ing substantial injury, and my first inclination was to dismiss Mr. Elphinatone's claim on the ground that he had not left a sufficient belt, and so taken the proper precautions against a danger , which he could not but have foreseen, for he could not have thought, that the adjoining forest would not be cleared hnd burned some time or other. But on fuUer consideration I came to the conclusion that the maxim sic utere tuo ut alienum non laedas ap- plied, and accordingly in that, and in the subsequent case, 62,656, - I gave damages for injury donp for a fire spreading. The Supreme Court, in affirming Elphinstone vs. Boustead, founded on the English case of Fletcher vs. 'Eylamds, a case which I venture to think has but little application to the case of fire spreading from a clearing to an adjoining land, except that it contains some dicta by emment judges on the maxim sic utere kc, already quoted. Following then the authority of Elphinstone us., Boiistead, it is clear that the defendants here are liable unless they have 'proved that the plaintiffs materially contributed to the injury by their own acts. That, in my opinion, has not been proved. The immediate and principal cause of this injury was the fire lighted on the defendant's land. It is probably true that had the superin- tendent of Abercairney taken greater preoautioii, the injury done wovild have been less, but it was the duty of the defendant ra- ther than of the plantiffs to- take these precautions, and the conten- tion that the &e might have done little or no danger, had there been a sufficient staft of coolies on Abercairney and on the bound- ary, tells, I think, more against the defendant than against the plaint- iffs. The assessment of the amount of damage made by Mr. Beckett seems as moderate and reasonable as might be expected from a man of his position and reputation. Judgment is entered for plaintiffs with costs. [Not appealed from.] DISTRICT COURT, KANDY. No. 64,643. Elphinstone vs. Boustead and Davidson. PiAiNTirr sued for the recovery of R. 9, 652 '50, ' being amount of damages sustained by him by reason of the agents and serv- ants of defendants negligently and carelessly setting fire to the jungle on an estate belonging to the defendants, which fire spread to"and over a portion of the adjoining coffee estate belonging to the plaintiff, causing damage thereto to the said amount. Defend- ants, admitting they were owners, denied there was negligence or carelesness on the part of their- servants and agents, or that dam- age was suffered by the_ plaintiffs to the extent claimed. , It was contended for' the plaintiffs, on the authority of the case 47, 169 Kandy, that negligence was to be presumed in - the case of a iire. Addison on Torts, 209. • For the defendants it was urged that it was necessary to prove negligence, because it was specially decl£(red, and the aver- ment could not be treated as mere surplusage [Brown's Legal Mamims, p. .268) ; that thfere were two questions for decision : (1) Were the defendants guilty of negligence, and. (2) if so what was the sum in which they were liable ? and that plaintiff had failed to prove negligence : thatj on the contrary it ivas shewn that de- ■fejidantshad taken every precaution possible, eJntirely in the in- terests of plaintiff, and that they were therefore entitled to judgment. (S2t The evidence led by plaintiff established that about eight or nine acres of young coffee between two and three years oH had been burnt. Judgment was given by the District Judge for the plaintiff for B.4,000, being damages at the rate of K.500 per acre for eight acres. Defendants appealed on following grounds : (1) the fact of an accident or a mishap occurring raises no' presumption of negligence, and the burden is on the plaintiff of affirmatively proving negligence on the part of the defendants. (OoUonvs. Wood 28 L. J. C. P. 333, and Hammach vs. White, 31 L. J. C. P. 129.) This the plaintiffs have faUed to do, and, the court not finding negligence, the appellants were entitled to judgment. (2) Farther it was necessary to prove negligence because it was specially declared. In the case No. 47,169, negligence was, not alleged, and the Supreme Court ia afiirmiug the judgment of the court below as to damages, had not under consideration aU the prin- ciples as to liability and non-liability discussed by the learned Dia-' trict Judge, for the appeal was by the plaintiff for costs and further damages. The English decisions as to proof of neghgenoe are based on the custom of England {Filliter vs. Shepherd, 17 L. J. Q. B. 89), and these can have no application m Ceylon, the more so, as the Koman Dutch Law is not silent on the point, The passage in Voet, IX. ii. 19, so far from giving countenance to the theory set np in the judgment in case No., 47,169, de- clares that the liability of the man who bums stubble on his land, for damage caused by the lire spreading to a neighbour's property arises only on its being clear (obviously by proof) that there was negligence sin applying the fire. This contention is further favoured by the concluding words of the 19th section, which speak of proof of negligence in the first instance, and by the reasoning in the following section (No. 20) which states the grounds why negligence should not be presumed. (3) Apart from the question as to burden of proof, all that even by the English authorities a defendant is required to prove in> order to avoid liability is that he used reasonable care (see words of C. J.' TiNDAL in Plgott vs. Eastern Counties Railwa/y, 15 L. J. C. P. 235) ; and here the appellants proved that they burned at the usual hour, that they left a belt of jungle entirely and specially for the protection of the plaintiff's coffee, that they burned from the portion nearest St. Andrew's, according to plaintiffis own directions, and that they brought all their available labour to the spot to guard against any accident, but that a sudden gust of wind arose, and tlie fire acquired unexpected and irresistible force from the breeze which itself created, and ran into the plaintiffs coffee. As against the precautions taiken by the appellant entirely in the interests of the plainltiff, it is in evidence (1) that the plaintiff planted up to the very edge of their Jiand, leaving no jungle foi- the protection of their coffee against, fire, which they could not but know would sooner or later be applied to the adjoining jun- gle, and (2) that the plaintiffs did not remove any of the dry timber from their own land, some of which indeed they had al- lowed to roll over into the belt of jungle left by the appellants. In addition to the contributary negligence here disclosed, the plaintiffs have placed themselves out of court by consenting to, and indeed directing, the burn. Letter C. anticipates mischief, unless the burn was effected in a particular manner. Tlie evidence proves that the suggestion was adopted and the maxim solen^' non Jit injuria applies, as in the case of Gould vj. Oliver, 2 Scott N. R 257, 264, referred to in Broom's Legal Maxims p. 269. (4) The damages 'as claimed, and even as awarded, are excess- ive, as E,.500 per acre, for coffee two and three years old, In case of a ' bum,' party Betting fire responsible for ooneequeuces. Negligence presumed. (33) exclusive of the land, can only be obtained on the assumption that the yield per acre is far iij excess of that which Dimbnla properties afford, and in computing damages in a case of this description, the fancy prices which estates realize on account of considerations of climate should not enter into the calculation. The Supreme Court affirmed Me. Lawme's judgment in the following terms : — The defendants have appealed on three grounds set out in their petition of appeal. 1st. That it was incumbent on the plaintiffs to prove negli- - geuce in the defendants ; 2ud. That whether in the abstract such proof was or was not necessary in the case, inasmuch as negligence was specially declared in the libel ; and, 3rd. That the damages were excessive. The only point that was pressed on our attentiDn in the argument before us .was the third, the learned counsel who ap- peared for the appellants conceding, on the authority of the recent cases of Flctclfr vs. Rijlands, 3 Law Eep. H. L. 330, and Madras RqMway Omnpany vs. Zemindar of Garventinepram, Judgment of Privy Council, July 3rd, 1875, quoted by Sir E. Creasy in his notes, title Action, Creasy's Eeports p. 14, that he was unable to maintain the first ground. As respects the second ground, it appears to us that it would have been superfluous for the plaintiffs to prove negligence in the defendants, as legal liablility attached to them for the act com- plained of independently of any negligence on their part. The first point not having been discussed, it is scarcely necessary to enter upon it. But suffice it to say, that it is unC^uestionable that the defendants bji their agents deliberately set fire to an ex- tensive clearing previously prepared by them to be burnt off, caus- ing thereby a great, uncontrollable and spreading iire, which in- dubitably occasioned, be the amount small or great, damage to .their neighbour. In the case ot Fletcher vs. Ey lands, it was held by the Exchequer Chamber (the judgment was subsequently affirmed by the House of Lords) : — "If a man bring upon his land anything which would not naturally come upon it, and which is in itself dan- gerous, and may become mischievous if not kept under proper con- trol, though in so doing he may act without personal wilful- ness or negligence, he will be liable in damages ,for any mischief thereby occasioned. " Lord Cranworth is reportfed as stating in the appeal befor^the House of Lords, the principle of the decision as foUowS: — -"If a person brings and accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage; he is responsible, however careful he may have been, and whatever precaution he may have taken to prevent the damage, * * and the doctrine is founded in good sense. For when one person, in managing his own affairs, causes, however innocently, damage to another, it is obviously only just that he should be the pa,rty to suffer. He is bound sic uti ut non loiedat aUenum." Adopting the law as above laid down by such high authority, it becomes needless to determine whether the evidence adduced does or does^ot establish negligence on the part of the defendants; it appears to us that they must be held responsible for the con- sequences of their act, whether they in fact acted negligently or otherwise. The learned District Judge in assessing the amount of damage, evidently had in view the evidence given by the witnesses on both side^. Mr. Shand, a witness for the plaintiffs, estimated the loss, giving details for his conclusion, at £70 per acre : and on the other M (34) hand, Mr, Martin, a -witness for the defenctants, valued the adjoin- ing coffee from £60 to £65 an acre — and coffee on the ground at £30 per acre. The expense of renewing the latter was not stated, nor how much of it consisted of singed and sawn down trees. Looking to the proof, we are of opinion that the learned Dis- trict Judge in decreeing damages at the rate of £50 per acre for 8 acres did not siUow to the plaintiffs a larger sum than they were entitled to. — Judgment affinned with costs, (22nd June, 1876.) DISTRICT COURT, KANDY. No. 47,169. Kannappa vs. Slema Lebbb, I^art^ setting In this case, the libel did not charge negligence. The ques- fire to a clearing tion involved (the D. J. Berwick was of opmion) was of great primA facie practical importance in the Kandyan province, where forest was liable tor the constantly purchased for the express purpose of huming it in ^^3"®°"® *^® ordinary and necessary course of husbandry, in order to oon- Bpreadlne to ^^^ ** ^°*° * coffee plantation. In doing this, great risk was in- nmKhboOTine omrad by earlier formed adjoining plantations, and it was very estate. necessary in the opinion of the Court to detemune authorita- tively the extent of liability incurred by the last planter for fire spreading from his land and damaging the plantation of his neighbour. Though the point arose in this, a case of no import- ance, the principle^ on which it had to be decided was identical with that which would govern graver causes, and the circmn- ' stance that no negligence was alleged by the plaintiff against the defendant made (Mr. Berwick thought) the case a peculiarly fit one for the establishment of the principle of liability. Mr. Berwick's judgment proceeded on the following grounds :— "I am satisfied that in such cases, the defendant is p^ima facie liable for the consequence of the fire spreading to the neighbour- ing estate, that the maxim sic ntere tuo ut alimwm non laedas must override any other maxim ; and that the only defence open to him is that the accident was wholly unavoidable, and the burden of proving that it was unavoidable rests on the defend- ant. In other words, that it is not necessary for the 'plaintiff to show negligence on the part of the defendant or his servants. Negligence will be presumed, if necessary. The case, I -think is exactly within the principle of the old one of ThurlerviUe vs. Stamp, Wdlh. 13, where it was decided that if a man weeds so near the boundary of his own land, that damage ensues to the property of his neighbour, he is liable for the injury done, unless the accident were occasioned by a sudden storm of wind which he covdd neither stop nor foresee, which would be matter of evidence for him to shew. This case is quoted and acted on by the Judges in Vaughan v. Ma'one, 3 Bing, N. C. 476, and in the more recent case of Filliter v. Sheppard, 17 L. J. Q. B. 89, the Chief Justice stated "the Common Law, or rather the custom of England, appears to have been that a person in whose house a fire originated, which afterwards spread to his neigibour's pro- perty and destroyed it, must make good the loss," and he pro- ceeds to state that before the Statute of Anne there was no dif- ference in the law whether the fire originated in a neighbour's house or his close, as to the master's liability for the negligenc of his servant." IxuPyott v. The Bastern Counties Railway, 15 L. J. C. P. 235, TiNDAL 0. J. used language very appropriate to the present case : — "The Company in this case (he said) are entrusted with a power of a very unruly and dangerous nature, namely fire ; and the law compels them to take care tiiat it shall not be injuiipju to the public. Defendant should shew that reasonable care was used, (35). It is like the old OEise of a man riding an unruly lioree in tiincoln ^lun Fields and injuring the plaintiff', {NutshiU v. Aleston, 1 Vent. 251); ^or peimitting a^mad bull to go at large (Lutw : 90 Sainton vs. Sharp) ; or keeping a dog unmuzzled which is accustomed to bite ; or occasioning loss by badly keeping a fire, whioh is as old as 2 Henry IV. See also the judgment in the case oi Lord Canterbury vs. 'The Queen, 12 L. J. Chan 281. I gather from Voet ad Pnnd. IX. 11, 19, that this is also the Civil Law, and that where one set fire to his stubble heisboimdto take every precaution against the fire spread- ing to his neighbour's land, and that he is hable for any damage from such spreading unless he can shew that he had used every precaution, and that it was due by some .sudden gust of wind, or other cause whioh he could not control. Though it is not clear that the Civil and English Common Law equally agree in re- spect to fires originating in houses. Compare on the last Vander- kesael No. 809 and Voet IX. 11, 20, and Censura Forensis IV., 31, 7, applying the case of J^urbirvUle vs. Stamp ; and the defendant not having shewn that the accident was wholly unavoidable and beyond his own control, judgment will pass for plaintiff" The damages were assessed as follows : — In respect to the 50 trees proved to have been wholly de- stroyed, an acre of 5 year old coffee being worth at a medium rate about £30, and about 1,600 trees gomg to the acre, gives 4Jd. as the value of every coffee tree plus the land — 50 trees @ 4J=:18/9, but deducting for the value of the land say 50 trees ® 3d — 12/6. And for the 30 trees of whioh on^ crop was lost, taking six cwt. an acre as a fair yield at 70/ ^ cwt, 1,600 trees, 7/lOi. Total, £1 OS ild. Judgment was accordingly entered for £1 0^ 4^d, but plaintiff was decreed to pay the defendant's costs as well as his own, as so small a damage should have been sued for in the minor court, and the defendant in his answer tendered nearly the whole amount recovered. The court considered the claim foF £25' as absurd. IVom this judgment plaintiff appealed : (I), fie was entitled to much higher damages than those awarded, as the measure of damages should not simply .be the value of the coffee trees de- stroyed, but the Court should have taken into consideration the loss to him on the score of .tune and the impoverishment of the soil which the burning necessarily caused. {2). That appellant was entitled to his costs, which the court below did not give him. (3). That appellant having obtained judgment he ought not under any circumstances have oeen decreed to pay defendant's costs. In appeal affirmed, with the modification that the parties should bear -their own costs in District Court and Appeal. Having regard to the nature of the claim, and also to the fact that the plaintiff obtained judgment for more than the amount tendered, it appears to the Supreme Court that the plaintiff should not have been -cast in costs. (7th January, 1868.) DISTRICT COURT, KANDY. No. 48,976. Anselmo be Aeeotave vs: MuTTtr Kaeuppen Kanoani. Coast Adiranoes. fyg jg ^ ^jjgg p£ g^j^g importance and of peculiar interest to the planting community. The system of "Coast Advances" is fully gone , , , . mto in a very elaborate judgment by theDistrict Judge, which is sub- lea^me^^""^ joined ; and the responsibilities of the contracting parties are very advances is a clearfy defined. In fact, from the circumstances of this particular .case, surety for ^^^ inference is drawn that the defendant, a head kangahi, who repayment of received the advances from the plaintiff's superintendent, was nothing same : not a more than a shroff or medium for disbursement of the proprietors principal debtor, advances, or, at most, but a surety'; and the plaintiff is aoBsuited on ( 36 ) two grounds : first, that the d'efendant's contract of guarantee ia invalid, not being in writing and signed by him in terms of the "Ordinance of Erauda and Perjuries" 7 of 1840; and secwidJy, that, if he was even liable as a principal debtor on the contract he is absolved from such liability by the fact of the plaintiff having, by his own act in selHng the estate without stipulating with the purchajser for the continuance of the coolies on the estate put it out of the defendant's power to fulfil the contract. The plaintiff by his libel claimed a sum of £92 odd, as balance of certain " Coast Advances " made by plaintiff as proprietor of Bambrel- la estate to his head kangani, the defendant, and not repaid by him. The answer was a general denial, and a. joinder of- issue having been entered, the case came on for hearing on the 31st August last. The DEFENDANT was examined by plaintiff's counsel : I was employed as a kangani on the Bambrella estate under Mr. Geo. Byrde during 186B ajid tiU May, 1867, .about the 10th of the month, when I was dismissed. At the time I left the estate, 1 was indebted- to "the estate" in £23, and odd, which had been advanced to me by Mr. George Byrde to get coolies for the estate from India ; but I had a counter claim against the estate for wages due to myself and my coolies. I don't know how much was due to me : it will appear in the check-roll, nor do I know how much was due to the coolies. I don't know whether Mr. George Byrde was owner, or only superintendent of the estate. Mr. George Byrde , left the estate about two months before I was dismissed, and he was succeeded by Mr. Hollo, who it was that dismissed me. I worked under Mr. RoUo for two months. [To tfie Court/] I did not go "to the coast of India myself for the coolies. I remained on the estate and sent some of the money — all of it in different sums — by dififerent kanganis to bring over men. Jhe men never came to the estate — they came about 30 of them to the island, but before they could come to the estate I was dismissed, and the estate" never got the benefit of them. I had under me on the estate, before I got 8ie money, 130 men — who were dismissed with me and went with me to another estate, and then 'soon after ran away. The agi'eement was that for £123 15s 7d I was to furnish 160 men, whereof Ihad , 130 already. Question: Then you did not require to send all the £123 to India for men ? Answer : I gave all to the kanganis whom I sent to TCndia, and they paid some of their own debts witl it and paid their own men. Question : How much money were the kanganis to get for each man they brought over ? ' Answer : There was no particular agreement ; they were to bring over as many men as they could recruit for the money. I did not get all the £123 at one time. I got it in various times, on two or three occasions between January and May, 1867. I kept no account my- self of what 1 received, but, as soon as I got it, I paid it over to the kanganis on "stamped writings." I have five of these stainped -Hrritings for £100 at my lines. By Plaintiff's Counsel : I agreed to repay the whole to the , estate whether the men should come or not. But I was -to get from the estate, in lieu of wages, 5 per cent, on the monthly wages of aU the coolies and kanganis that were procured by me. I was to get no other reward or gain for the trouble of procuring the coolies. The 5 per cent, was not to be deducted out of the cooUes' pay. The gentleman was to give it to me. The kanganis who receiv- ed the money from me were to deduct the advances (j£l23) from the coolies' pay, and hand the same over to me, and I was therewith to repay the amount I received from Mr. Byrde. I never got any of it from the kanganis; because, before I could get , it, I was dismissed. The following witnesses were called for the plaintiff: — William G. Koho ; ' Mr. George Byrde was manager of the ( 37 )■ Bambrella estate, and I succeeded him as manager on 1st ^ay,lS67. Defendant was then on the estate, a head kangani. His pay was £5 per month, not a fluctuating salary. That was the way and rate lie was paid while he remained under me, and that was the way and rate he has been previously paid. So I learnt from the books' of the estate and from Mr. Byrd'e. Mr. Byrde is dead. I myself paid him £5 as his salary for April, being for the month before my management commenced. On the 6th of May, I examined the estate accounts, and found that at that date, according to them, there was due by defendant £123 15s 7d, being at 31st March £114 15s 7d, and a subsequent advance of £9, the date of which does not appear in the book. The £114 was the balance after charging him with advances made and crediting him with recoveries to account of these advances. I cannot say how the recoveries were received, whether paid by. defendant personally or deductions made from kanganis and coolies. On the 6th of May, in Mr. Byrde's presence, I called the defendant and told him that he then owed the estate £123 15s 7d, and asked him whether it was correct. He replied " Ama" (yes). That was all that passed. On 11th May, 1867, I, called for him and told him the balance was reduced by pay due to him and his coolies to the extent of £9 lis 6d, leaving his debt £114 4s Id. When I told him this, he made no particular remark, simply said "Ama" (yes). I told him the £19 lis 6d wouldbe placed against the previous balance. He left the estate on 1st of May. I dismissed him and gave him notice, because I did not require his services any longer. On 12th November, 1867, I gave him further credit for £17 7a 5d. This was wages due to himself and coolies for April and part of May. His coolies left at the same time. I sent for him and told him of this. He said "Ama." That deduction reduced his debt to £ 96 16s 8d. On the 18th May, when I discontinued him, I told him I had too many coolies on the, estate, and he must go. He said there was a large sum due to the estate for advances, and asked' me how he was to work it off. I told him -that he must go and find other work on some other estate. The estate had changed hands on the 1st of April, 1867. The property had then passed to Mr. Tottenham. Plaintiff does not own it now. When I told defendant on 1st , of May that he must find work elsewhere, I intended that he should repay What he owed the estate, by working off the debt on whatever estate he might find work upon, and hoped that I might be able to arrange 'with the managers of that other estate (if he -found work) to take over defendant's coolies and credit me with the labour. I was aware that, in dis- missing the defendant in this way, I was running the risk of los- ing the money to the plaintiff, who, at that time, though no longer the owner of the estate, was the credi'tor for the money. I am personally aware that, when Mr. Tottenham took, over the estate, the arrangement between the plaintiff and him was that we (that is 1 as Mr. Tottenham's manager) were to endeavour to re- cover this debt from the defendant if we could, and, if not, that would be lost or risked. It was no part of the arrangement at the trans- fer of the estate, that Tottenham should take over the current or previous working expenses ; nor that we should take over the present claim. In May, 1867, Mr. Kerr was in charge of the adjoining estate, BattagaJla. The defendant went and found work on that estate about the 21st or 24th May. I told Mr. Kerr that defendant owed the present debt. I told him this after de- fendant went there. Mr. Kerr knew of it before defendant went there, because I had told him. Cboss-BXAMINED ; Coast advances aife usually repaid by deduc- (f8 ) tions out of the pay of the kaiBganis and coolies. The deductioM are made by the superintendent when they are paid. The defend- ant's men were sent away with him — ^between 110 and 120. There were on the estate two head kanganis besides the defendant.. The head kanganis are the mere mediums of handing over the ad- vance to the kanganis. The kanganis are practically the men who find the coolies. (Witness added :) But the head kanganis are responsible. The Court : How does this responsibility arise and what is the nature of the responsibility ? A. The head kan- gani is a gurantee for the money paid as advances to the other kanganis. It is *the nature of his office to be responsible for the advances. Each kangani is informed of the state of his account when the deductions are made. Each kangani's account includes the advances received by him from the head kangani ; and each kan- gani's account is charged with the advances he received from the head kangani. Q. Do you consider both the kangani and head kan- gani responsible for the advances ? A. I look first to the head kangani, -because I consider him responsible for the kanganis. Q. If the head kangani happened to be insolvent, would you sue the kangani for the advance ? A. I would. Rb-bxaminbd : The deduction from the pay of the kanganis and their coolies are made with their own assent. Henet Kerr : The defendant worked under me at Bat- tagalla from May, 1867, tiU June of the same year, when I left it, leaving the defendant still 09 it. Until he came to Battagalla, he had been working on the adjoining estate Bambrella. . Colonel Byrde asked me to employ him. When I first employed defend- ant, I asked him whether he owed £122 to the Bambrella estate, and he said he did. He told me it was his intention to pay it off by working on the Battagalla estate (under me) : he brought me about 130 men. Mr. Cooper succeeded me in June on Battagalla. Defendant said to me he would come up to the estate and work on the estate, and work off the advances he had received on the Bambrella estate. By PLAmriFF's CotrasEL : Q. Was it on that condition you took the defendant ! A. I would have taken him whether he owed the Bambrella estate money or not, , beoasuse the estate wanted labour, and the owner. Colonel Byrde, requested me to 'take him. I had previously had correspondence on the subject with the plaintiff's agents, Messrs. Darley, Butler & Co., and was acting for them in my conversation with defendant. By the Co.ubt : Q. What was the motive that induced yoii to engage the services of the defendant ? Was it because you were acting on behalf of Messrs. Darley, Butler & Co., or be- cause the estate required labour and the owner wished you to employ him? A. Both combined, partly both. I think Iwonld probably have engaged him on account of the want of labour and the estate necessities, even if I had had no communication with Messrs. Darley, Butler & Co. j defendant brought me a letter from Colonel Byrde about the 23rd May. I had been in communi- cation with Messrs Darley, Butler & Co., early in May. Fbedbic£ Coofeb : I succeeded last witness as superintendent of Battagalla in July, 1867. Defendant and his men were then on the estate, and remained tiU 20th October. He ceased to work then because he wanted advances to bring men, which I refused, because I did not want men. By Court ; Q. Why did you refuse ? Did you not want the men ? A. I would not trust him, and I did not want the men. Q. Was your not wanting the men the leading motive for not giving him advances. A. Yes, both combined. I knew nothing detrimental to his character. Defendant then gave me notice, and left tiie (39) estate with all his men. His men then divided, and pari went to one estate and part to another. I remitted to Messrs. Darley, Butler & Co. a sum of £4 Is 7d to account of defendant's debt to Bambrejla. This was a sum which would have been due to coolies who had run away. By Court : Q. Did you remit it to Messrs. Darley, Butler & Co. at defendant's request? A. I told him I would remit it to them on his account. Q. What did he say when you told him this ? He did not object. Q. Did he say anything ? A. I don't remember that he did. When I went he had about 130 men, and when! he left he had only between 50 and 60. The others had run away. To Court : — I had no disagreement with defendant about any thing. Q. Didhegiveany reason for wishing to leave? A. No, he only said he was going. It was only what I supposed myself that his not getting advances was the reason .of his leaving. He did not say so. CROSS-EXAMiifED : When defendant gave me notice, five months' wages were due to him. There was general dissatisfaction among him and the coolies on the estate for not getting their pay re- gularly. The only payment I paid him and his men was when I paid them off after he had given me notice, and after they had served five months. Be-examined : During these five months they got their rice and petty expenses. William Mitchell : I am a member of the firm of Messrs. Darley, Butler & Co. Plaintiff was owner of the BambreUa estate till 1867i when I, as his attorney, sold it to Mr. Tottenham. Mr. Tottenham declined to take over the coast advances. He simply undertook to pay the price agreed on ; but at the same time promised to me, on behalf of the plaintiff, to do the best in his power to recover the money that had been made on coast advanc- es. These had all been made a long time previously. Mr. Tot- tenham told me shortly after he became owner, that he wished to reduce the amount o| labour on the estate, and asked me if I could find employment for the men tha;t owed advances. I pro- mised to do so as fjir as I could, and for this purpose put my- self in communication with Mr. Bdllo and Mr. Eerr. I did this as plaintiff's attorney, with a view to recover the advance. 1 had no direct communication with the defendant on the subject. Mr. Kerr was then in my employ, and, with my consent super- vising Colonel Byrde's estate. I communicated with Mr. IloUo . during May, 1867, with reference to the defendant. I produce my power of attorney. Mb. BBiRWiCK delivered the following Judgment : — The plead- ings in this case jdo not disclose the precise nature of the dis- pute between the parties, and I shall deal with the substantial merits -as they appear in the evidence. The plaintiff was a for- mer owner of the Bambrella estate, and claims £92 15s Id, in repayment of advances made to th4 defendant when he was head kangani on that estate, through the plaintiff's then manager, the late Mr. Bjrrde, for the purpose of procuring coolies. I dis- pose of a preliminary objection taken by defendant's counsel of want of any privity between plaintiff and defendant, by finding as a fact, - of which there caii bs no reasonable question, that the arrangement, whatever it was between Mr. Byrde and the defendant, was made by the former in his capacity of manager of the estate for the plaintiff, and as representing him, and that the funds advanced were the plaintiff's funds, and that the agree- ment so made between Mr. Byrde in his qs^aeiiy as manager and the defendant is equally binding as between the plaintiff and the defendant; and that therefore the plaintiff has a good title to seize if there be on the substantial merit's' a delit actually due ty the defendant to what is imp^sonaUy called by- the parties" (in accordance with habit) "the estate. .There is no distinct evidence of the terius of the arrangement between the deceased Mr. Byrde and the defendant, and, apart from the defendant's examination, which will be separately considered, the only proof adduced by the plaintiff that any advances at all were made for coolies to or through (the distinction between the propositions is not to be" overlooked) the defendant, or that any money is due by the latter, consists of evidence of certain acknowledgments made by him at various times, which, however, must in fairness be taken with the defendant's own explanations. These acknow- ledgments seem however very distinct and conclusive of the, fact especially at first sight. Mr. Eollo, who succeeded Mr. Byrde' told defendant that according to the book he owed the estate £123 153 7d, and asked him whether it was correct, and he assent- ed with the word " ama" (yes). This was oh 6th May, 1867 and after the plaintiff had sold the estate to Mr. Tottenham', whose manager Mr. ilollo then was. On 11th May, Eollo told him the debt was reduced by pay, &c., to £114 4s Id; to which de- fendant made no particular remark, merely saying "ama" (yes). On 18th May, Eollo discharged defendant and his coolie^ (for no fault), as it was considered there were too many coolies on the estate, and defendant then said ""he had a large sum due to the -" estatfe for advances, and asked me [the witness EoUo] how he " was to work it off." Witness told him he must find work for himself and his coolies on another estate, intending, as is clear. enough, that the debt should be repaid by deductions from the defendant's coolies' wages fii the other employment, and thus de- monstrating his own understanding that, by the arrangement be- tween Mr. Byrde and. the defendant, "the advances were intended to have been repaid by deductions from the wages of defendant's coolies while working on Bambrella." It is evident from the evidence that the defendant himself was honestly willing enough that the estate should be so reimbursed, though his own dis; charge was peremptory and entirely Mr. EoUo's act [or that of the persons Mr. Eollo represented] ; but it appears that the coo- lies were not consentient parties to this handing-over process, and bolted from the estate to which they had been transferred, being dissatisfied in the irregular way in which they were paid. This circumstance of course prevented defendant from repaying the advances which, it may be without doubt inferred, were advances made to these same coolies, and intended to be deducted from their wages. On l-2th November, Eollo sent for defendant, and, giving him credit for further arrears of pay to himself and coohes, told him the debt was reduced to £96 16s 8d, to which he agam assented with the expression "amia." A similar implied assent is proved to have been made to the successive managers of the estate to which he went to work off the alleged debt, which was ultimately so worked down by arrangement between the manager of the two estates to the amount now claimed by the plaintiff previous to the coolies bolting. All this, while it is the only evi- dence of a debt being due by the defendant at all, shews that there was the most absolute good faith kept by him towards the owners of the estate for which Byrde engaged him,, and that he was only prevented from reimbursing that estate in full by his coolies jbolting — a circumstance over which he had no oonirol. He has apparently kept his part of the arrangement with Byrde as far as circumstances, and the acts of the successive owners of the estate (plaintiff and Tottenham) and their managers, permitted him ; and it is now the question whether plaintiff has kept his part of the arrangement (made on his behalf by Byrde), or has not, by ( 41 ) ' his o-vra act in selling the estate withowt making any aw*an|«meni with the new owner upon this subject, and so exposing the defend- ant aud his coolies to the contiugeuoy which actually occurred, namely dismissal before the oooHes had worked out the advances, put it out of the defendant's power to complete his part; aud if so the defendant must clearly be absolved. Another question which has been fairly raised is whether, notwithstanding the apparent aoknowledgmente of a debt by the defendant, he ever was really and- legaUy per-' sonaUy responsible for the advances. Both of these questions, before they can be satisfactorily , answered, require us to know the precise nature of the original agreement or understanding be- tween Mr. Byrde and the defendant ; aud, direct knowledge of this being wanting, we must ascertain it as fairly and as well as we can by inferences from the testimony in the case. Now, to take the second point first, it would seem, so far at least as appears in this case, that the understanding with head kanganis is. very iudefluite aud informal, and the nature of their responsibility very vague. They would seem to be people receiving high wages (whether' by a percentage on coolies emproyed under them, or by fixed salary, does not affect the point) in return for their local class influence in procuring and retaining coolies. So far their position is.clear enough. But it is complicated by this. The coolies are only ob- tainable by means of advances made to them, which advances are to be recouped by deductions from their wages. The advances to the coolies are made through kanganis, and to the kanganis through a head kangani. Mr. Rollo says in this case: "Coast ad- ' ' vanoes are usually repaid by deductions out of the pay of the " kangauies and coolies. The deductions are made by the super- " intendent* when they are paid. " [That is an important fact in the relations between the kanganis through whom the advances are made, and the managers by whom they, are made.] " The " defendant's men were sent away with him— between 110 aud 120 "men. There were on the estate two head kanganis besides ' ' the defendant. The head kanganis are the mere mediunjs of " handing over the advances to the kanganis. The kanganis ' ' are practically the men who find the coolies : (Witness adds) ' ' but the head kanganis are responsible. By the Court : How " does this responsibility arise, and what is the nature of the re- " sponsibility ? A.— The head kangani is a guarantee for the " money paid as advances to the other kanganis. It is the nature "of his office to be responsible for the advances. Each kangaur ■ " is informed of the state of his account when the deduo'tions " are made. Each kangani's account includes the advances receiv- , " ed by him from the head kangani; and each kangani's > ac- " count is charged with the advances he received from the head " kangani. By the Court j Do you consider both the kangani "and head kangani responsible for the advances? A. — I look- "first to the head kangani because „ I consider him responsible " for the kangani." In perfect consistence with this testimony to usages, is the defendant's own statement that he gave all the money to other kanganis whom he sent to the,coast for men, taking their bonds ("stamped writings") for the sums; and his further' statement — ""The kanganis who received the money from me were " to deduct the advances (£ 123) from the coolies' pay, and hand " the same over to me, and I was therewith to repay the amount " I received from Mr. Byrde. I never got any of it from the " kanganis, because, before I coidd get it, I was dissmissed." — Consistent enough too with Mr. EoUo'a testimoiqr as a general (but as I think somewhat vague) understanding as to the respon- siblity and guarantee of the head kangani, is the defendant's ad- (42) mission on examination, that, siibjeet to cross claims for wages <}ue himself and coolies — "when I was dismissed, at the time I left " the estate, I was indebted to the estate £123 which had been '• advanced to me b^ Mr. George Byrde to get coolies for the " estate. " But, on the other hand, there is an obvious incompati- bility of the idea of a debt by the defendant with Mr. EoUo's tes- timony that head kanganis are merely the mediums of handing over the advances to the kanganis, and his further statement as to the kanganis' accounts, and scarcely more compatible with the idea of a debt is the defendant's statement that he gave the monies to the kanganis who were to deduct the advances from the coolies' pay, and hand the same over to l^im, and he was therewith to repay Mr. Byrde. All this would seem to me to make a head kangani more a shroff than a borrower and debtor, and seems to me suggestive of ■ some great confusion of ideas, or else indefiniteness of agreement or understanding between the parties, and vagueness of responsibility. ' Take it however as Mr. RoUo puts it; — "The head kangani is a guarantee for the money paid " as advances to the other kanganis I consider him " responsible for the other kanganis ; " take this with the evidence on both sides that he was only a medium of payment , and repay- ment of monies on account of his employer, — whether in direct communication with the persons to whom the advances are really ultimately made, namely the coolies, or oiily in communi- cation with and thrburfi the secondary medium of subordinate kanganis, and it is difficult to see how at the most he can be considered more than a mere guarantee, a surety, if so much, and not a principal' debtor ; and if he be that, and it be for that guarantee tbat he is paid, it is a re- sponsibility that should not be fixed on any man without very clear proof of his undertaking, and much less vague aijd indefinite than what is furnished by the evidence in this case. It is a re- sponsibility that should' be left to rest on much more express ground than a mere usage or understanding, and it is a respon- sibility that the Ordinance 7 of 1846, sec. 21, requires to be in writing and signed by the party undertaking it. For these reasons, I think — -but the point is one perhaps of difficulty and open to doubt — that the defendant not having given a written guarantee niver was reaUy legally responsible for the debt, and that if he thought and acted on a contrary supposition he was mistaken. 1 think too, that the circumstances of this case make it morally very reasonable and fair that the objection to the want of a written guarantee for the advances to the coolies or kanganis should be taken. The other question which has been made is, supposing the debt to be his own, whether the plaintiff has by his own acts put it out of the defendant's power to fulfil his part of fbe agree- ment with Byrde (on behalf of plaintiff) may be inferred from the evidence- to have been on this wise; "If you (defendant); "will give me the benefit of your influence and facilities among " the cooly class to get me coolies for this estate, I wiU give you "a certain Salary (or a certain percentage) ; and, as the cooUes " require advances, I will find the money which you will dia- " burse, and I will deduct it from ^he coolies' wages till it is "repaid." He probably added, " and, in consideration-of your high " salary, you bind yourself to get me a man for every pound " (or so much) I advance, and that you willlceep that man or s " substitute, on the estate in my service tiU his pound ia repaid "from his wages." It is clearly implied in such an agreement, ,that "Byrde will take the men into his service and keep them em- ployed till the advances are paid ; arid if, after the men were brought, Byrde refused to give them employment, or prematurely; (43) discharged them, he yas breaking his own part of the (Soniraot and putting it out of his own and the defendant's power to re- cover the advances from the men in the only^ way contemplated between the parties, and indeed in the only way practicable. Now Byrde did not exactly do this, but his prinoipaf for whom he 4!ontracted did what was precisely- equivalent to it. He sold the estate to Mr. Tottenham (who has his own view as to the coolies he will employ) and sells it without any stipulation for retaining' these coolies on the estate, or taking over this agree- ment. And Mr. Tottenham not being personally boupd by that agreement and declining to take it up further than by a vague promise" to do what else he could. to recover the nioney, the plain- tiff by the sale parts with the stipulated and only practicable means for either himself or the defendant recovering it. He mus't have calculated on the chance of 'losing the money wheu' he sold the property. Mr. Totteiiham's superintendents dismiss the defendant and his coolies, and -do not find other em- ployment for them. They indeed transfer them to a neighbouring estate, but it is as good as not finding employment for then^, because they do not get wages for their work, Mr. Cooper's cross-examination make it clear that they were kept on this other estate for five months without wages, and that there was general dissatisfaction among them on this account, and it is therefore no wonderthey left the estate and ceased their connection with the defend- ant before sufficient deduction's could be made from their wages to repay the plaintiff's advances to them. As before said, the defendant appears to have been as willing and earnest as a man could be, to re- cover the money for the plaintiff ; but, as now shewn, the plaintiff, by his own act in selling the estate without adequate stipulations with the ' purchaser hiiflself, put it equally out of his own and the de- fendant's power to fulfil their respective parts of the agreement — the plaintiff's part being to emnloy and pay the men to whom the de- fendant should disburse the plaintiffs advances. I ' again note in this connexion the importance of Mr. Hollo's testimony of the usage, on which the defendant must be presumed to have de- pended that " the ' deductions are made by the superintendent (.himself) when they (the coolies) are paid." To epitomize this judg- ment, I consider first, that, if the defendant was anything more than a shroff or medium for disbursement of the proprietor's ad- vances, he was at most but a surety, and that his contract of faarantee is invalid, not having been in writing and signed by im as required by the 22nd clause of the Ordinance Mo. 7 of 1840. Second, assuming him to have been more than a guarantee, and that he was a principal debtor on contract with the manager, that he is absolved from his liability on that contract by the fact of the pro- prietor whom the " manager represented ill makipg it having by his own act put it out both of his own and the defendant's power to fulfil the contract between them, by the sale of the estate with- out provisions for the continued employment of "the coolies, which formed' the basis and necessary condition of the agreement. For these reasons I think that the defendant should be absolved from the present claim ; but to provide for the exceedingly remote contingency of the plaintiff hereafter disco ve;-ing that the defendant haa recovered any portion of the advances from the subordinate kan- ganis which the defendant ought not in conscience to keep, be- ing the plaintiffs money, the judgment will be one of nonsuit. Probably the kanganis might be entitled to plead to any action by the defendant or their "stamped writing," a defence analogous to that of which he has himself received the benefit. — It will be decreed that plaintiff be nonsuited arid pay this defendant's costs ef suit. It it decreed thp,t plaintiff be nonsuited wjtli cpgts. %^^ z nirb". DISTKIOT COURT, KANDY. No. 68,033. SiNNAYA OhETTI VS. G. L. Alison. Plaintiff sought to recover B 341 odd for money lent and goods supplied. Defendant denied his liability to pay; As superintendent of Homsey, and for and on behalf of the proprietor and for the use of the estate, defendant admitted he purchased goods and bor. rowed money from the' plaintiff ; but for such purchase and loans he contended he was not personally liable. • Mr. Lawbie gave judgment as follows : — In the case 65,704 I stated fuUy my opinion on the liability of superintendents to pay for rice, &o., supplied to the estates of which they were in charge. That judgment of mine is now in appeal,* but until it is set aside I feel no inclination to change my opinion. It seems to me that, except in exceptional ca^es, a superintend- ent is > not personally liable for rice or money, &c., supplied to the , estate. It is universally known to every one in the island who has anything to do with such matters, and to none better known than the chetties dealing with coffee estates, that superin- tendents are paid servants of the ■ proprietors, that as a rule they . hold their situations at pleasure, and are liable at any time to be promoted to better berths or to be told that their services are dis- pensed with ; that the great majority of them have no pecuniary . interest in the estate, and have very little control over the ex- penditure. Little light can be got by comparing the position of agents "of various kinds in the mercantile world ;. for, from the cir- cumstances mentiOned,"the position of superintendents is peculiar;, and differs from most, if not from all, those classes of persons whose liabilities are (Jefined in works on Principals and Agents. Of this, I think, there can be no doubt, that this chetti did not trust or rely on the credit of Mr. Gibson, or of Mr. Alison, when he supphed rice to Hojhsey. He knew well that the price ~ ■was not to come from their pockets ; he looked to Mr. Proctor as ' representing the proprietor, Mr. Pulley. I think' he has-vindoubt- edly a good action against the' proprietor; but I am as decidedly of opinion that he has no action against tjie defendant. - The chetti may affect to regard this- as a hard case. To my mind, he and his brother traders would have reason to think it a much harder case, if they had to look for payment fi cm superintendents, and not from : the owners and agents. There are exceptional cases : No. 66,204, District Court, Kandy, was in my opinion one of- them, where a superintendent is personally liable for estate expenditure ; but this is not one of them. In answer to questions from me, Mr; Alison explained that the reaso n why this^mopey. had not been paid was that there is '»' • Affirijied in appeal,— Sle Sinwata vs. Gibson, page 11^ debt due by a neighbouring . estate to Hornaey for labour supplied, and that the owner of Hornsey has refused to pay the balaaice until that is paid. As that debt is due by Mr. Proctor's estate, it probably never will be paid. I do not understand how that can relieve the owner of Hornsey of liability to pay for rice supplied,; nor how it can throw the debt on the superintendent of Hornsey. This action is dismissed, and judgment for thedefendant with costs. DISTRICT COURT, KANDY. No. 70,489. SiNNAYA Chetti VS. D. J. HendeesoN and another. The question for adjudication in this . case was whether the first defendant (proprietor of two coffee estates) who, during his absence from the island kept bis superintendent (the second defendant) supplied with funds for the management and upkeep of , the estates, was personally liable to the plaintiff, a chetti, who sup- plied goods, rice, money, paddy, gram, &c., to the second defendaiit. Tha learned District Judge (A. C. Lawbie) held both tbe pro- prietor and superintendent liable for the price of rice supplied ; , and the superintendent for the price of paddy and gram. Mr. Lawrie's deliverance is as follows: — The question for determination is whether tbe proprietor is liable. He pleads that he was absent from the island from 1873 to 1876, and that during his absence the second defendant, as the superintendent of the estate, was duly provided with funds sufficient for its upkeep and cultivation, I -do fipt ' know whether it is admitted that if the* j)rOprietor had been in the island and had not , provided the superintendent with funds he would be liable in p^ment of rice, &e« That is a point on which 1 was anxious to get a distinct admission from tbe defendants' counsel at the trial, but it was not given. The answer^ (if I recollect right) was that it would depend upon whether the chetti had, given credit to the superintendent or to the proprietor. Though the line of defence is not stated on recox-d, it may be worthwhile to say ^ few words about it. It seems to me that that superin- tendents of coffee estates are riot in the position of principals or even of agents with unknown or undisclosed principals, if they were, they would be liable for all contracts entered into by them for the estates they are on. But so universally is it - known that superintendents are seldom tbe owners of the estates, they manage, that there Is in my opinion no room for the plea that they are personally liable. The names of tbe owners may not be known ; in tbe case of partnerships &c. the superintendent himself may not know. He knows he has to deal in most-eases only with the agents in Colombo. He gets a berth and trusts to the agents and to the owners paying him his salary, and keeping him supplied with funds for the upkeep, but with regard to the coolies on the estate, he is not personally liable for their pay ; he is known to be in one sense their master, but in another sense their fellow workman, who trusts to get pay for the same source as they do. With regjard to the dealers in rice &o. he is known only as a paid servant of the owners who has man- date, either expressed or implied to order necessaries for the estate, to engage coolies, to make coast advances, &c. If the mandate be not express, it is implied from the nature of his position as superintendent. Superintendent may make himself personally liable for necessaries supplied ; but as a rule 1 am of opinion (and I have given effect, to that opinion in several judgments) that he is not personally liable for estate accounts, that those primarily liable are the pwnere pr their recognized agents and attorneyg. ( 46 ) Taking that view of the legal position of the owneri. afid superintendentfl of estates, it does not seem to me important what view a stray chetti here or there may have taken. One chetti may advance money to a superintendent in. the full belief that the owner is Jiable for its repayment, but that belief will not alter the liabilities of the owner, for I should say a superin- tendent is not invested with the power of borrowing money for his employers without a distinct and express mandate to that effect ; and so anothor chetti may supply rice or other neces- saries in the belief that the superintendent is personally liable, but that will not make him so. Indeed, in most cases, the belief or understanding of the creditor as to the person liable to paj is of little moment j the test of liability is not what the creditor believed, the, question to be asked is, who is legally liable ? Of course, persons not legally liable may render them- selves so by their own -acts, by holding themselves out as principals when they are only agents, by concealing their prin- cipal's name and a thousand acts which have repeatedlyTjeen found to ci'eate a liability which the law did not impose. I should hold that the superintendent in this cstse was liable, not as superintendent, but because he held himself out as part- owner, and because he made promises to pay and granted promissory notes for which his personal: liability was created and acknowledged. But even though he held himself out to be the debtor and though the creditor accepted him as such and trusted him, I do think the creditor is not barred from raising his claim against another who is also at law 'his debtor, when he found that the superintendent's protoises were worthless, and that his talk about owning a quarter of the estate mere swagger. On these grounds, I think that if the defendant be otherwise liable, he cannot evade liability by urging that this was a con- tract between the plaintiff and the second defendant in Fhich neither his name nor credit were mentioned or thought of. 1 am of opinion further that from the mere relationship existing be- tween an owner and a superintendent, the former is liable on payment of necessary supplies 'ordered by the latter. But this, it is urged, is a special case, and tlie specialities are that the owner was absent from the island and that the superintendent ,was kept in funds. The first plea, ' that of absence, is urged as bringing this under a saving clause in the judgment of the Supreme Court m the recent case of Gibson, but I venture to thiik that clause has no application here. That referred to a case where the superintendent was the only agent or representative of the owner of the island. But here, though the defendant certainly was in England during these three years, his representative was not the superintendent, for he left a power of attorney in favour of one of our leading firms. Though corporaally absent, ho was legally present in the island; be could- «ue or be sued, and he was represented in all mattei- connected with these estates as fully and completely as if he had himself been living in Colombo. The plea of absence from the .island is, in the circumstancej, of no avail. Then as to the plea that he supplied the superin- tendent with money— that, is a matter beyond the knowledge of the chetti. It lay between the owner, his agents and the superintendent. They selected the superintendent, they had full powers to check all his acts, to insist on vouchers being fur- nished to ensure that the money sent to him was properly applied, and to get rid of him when they pleased. In short, the choice of the superintendent, the choice of the checks on hw conduct lay with them, and if they unfortunately selected » man who was not honest and who t'etajned money for bis own (47) UBe, which he pretended to have spent for th« estate, and if equally unfortunately they, in exuberant confidence in him, did not check his aoiountB, the loss, rightly and justly, falls on them, and not on a trader who supplied rice in the belief that the owner and agents had selected in this case, as they do in the nine hundred and ninety-nine other cases, an honest and honouraible man. But to examine, in another light, this plea of non- liability in respect of having supplied the superintendent with funds. Suppose the ' owner had not supplied the funds, would that make 'him liable, and why ? I think he would be liable, and for this reason: that the rice, &e., was supplied for the benefit, nay, the necessities of his estate. If an action were raised against a proprietor in the island for payment of rice supplied, would it be any answer to say (1) you trusted the superintendent, ask him to pay? (2) I was out of the island, I don't know anything about it. Neither of these pleas would be listened to for a moment, unless they were followed by the third plea : I have already paid.' If the owner admitted that h« had never paid, judgment would surely go against him, and 'if, as here; he cannot say the ohetti was paid, he can say that he had paid to a dishonest man of his own choosing, and admit that that money never reached the creditor's hands. I think judgment must as surely, and as justly, go against him. On these grounds I give judgment- against the first and second for the price of rice supplied, and against the second only for the price of paddy and gram supplied. That I think can- not be charged against the estate or its owner. The defendants to pay costs. From this judgment the first defendant appealed on the following grounds : — (I). The principle contended for by the first defendant, ^ viz. , his non-liability under the circumstances has been recognized by the Supreme Court in some well-consi- dered judgments. In case No. 40,446, District Court, Kandy, known as "Ambrose's Case," the principle upheld by the Supreme Court was that where sole credit was given to the su- perintendent, who was provided with funds for the purchase of estate supplies, the superintendent had no right to pledge the owner's credit, and that the owner was not liable, particularly as all previous payments had been made by the Superintendent, whose promissory notes were moreover, accepted by plain tiffs in part payment of his claim. In case No. 2,632, Bistrict Court, Kegalla, the Supreme Court decided after careful consideration that, where a superintendent was kept in funds by estate agents on behalf of the proprietors absent from the island, and the usual course of dealing was to settle from mouth to month, he (the superintendent), not the proprietor, was liable for supplies especially after continued and lengthened credit to the Superinr tendent. In the Bistrict Couit Kandy, Case No. 65,704 (Gibson's case), the Supreme Court expressly confirms the prins ciple upheld in Blaokett's case in the concluding paragraph of it judgment in these terms : — "It vriH be observed that the present is' a very different case to that of a superintendent of an estate ■adequately furnished with funds for up-keep.by an absent pro- prietor away from Geylon having' nothing whatever to do with persons dealing with the superintendent. In the case before us the owner vras not only resident in Kandy, himself settling pay- ments on account of the estate, but it is further shewn that the defendant was not supplied with funds." The appellant humbly submits that upon the authority of these decisions the first defeu- " dant was entitled to judgment. II. The principle maintained above if in pwfeot keeping (48J with law as laia down by Baley I in nomon v3. DavrnpOffi (2 Smith's Leading Oasea, p. 317, 5th edition) where a purchaser is made aa Agent. The^gent does not of necessity so contract as 40 make himself personally liable, but he may do so. It he does make himself persona,lly liable it does not follow "that the; prinoipal may not be liable, also, subject to this qualification,^ that the principal shall not be prejudiced by being personally' liable. If the principal has paid the agent or if the state of accounts between the agent here and the prinoipal would make it unjust that the seller should call on the principal the fact of payment or such a state of accounts would be an answer to the action brought by the seller where he had looked to the respon- sibility of t&e agent." III. The District Judge remarks that a proprietor, in put- ting in charge of his estate a superintendent, who turns out dis- honest, ought to bear the loss and not the poor chetti. This reasonin'^ can scarcely apply to this present case. The chetti here was no poor deluded victim. He had for three years pre- viously allowed the superintendent to get gradually heavily into debt with him for money and other supplies, and at the very time credit was given for this rice he had the superintendent in his books to _t.he amount of six thousand "rupees and had already commenced taking his- promissory note. The chetti therefore, was fully aware of the superintendent's position and was belter able to judge of his debtor's character than the agents of the estate who were quite ignorant of these questionable transactions. It seems unfair therefore that the proprietor should be the loser through the loos« way in which the chetti affordetf^ the superintendent means of living extravagantly and by advancing him funds which led hiin still further in the path of ruin. Many young men have wrecked their prospects in Ceylon owing to the culpable way in which chettis have given them credit. The present decision would tend to aggravate the evil and encourage chettis to abandon all proper caution in giving lengthened credit to superintendents as they could always force the unfortunate owner to pay the claim. These cases (Nos. , 68,033 and 70,489) are now in Appeal. (.' )','.'''/'fi3aB