.• iif M\\\ Cornell University WB 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/cu31924025018379 Cornell University Library KF 1569.31882 3 1924 025 018 379 ".•«"• Cforn^U Slam ^rljool Slibratg EEPOETS OF CASES ARGUED AND DETERMINED IN THE SUPREME COUKT OE CEYLON SITTING IN APPEAL DTJEING THE TEARS 1882-8 3. BY H. L. WENDT, ADVOCATE. COLOMBO: THE " CETLON BXAMINEa" PRESS CO,, LIMITED, 1884. hi JUDGES OF THE SUPREME COUET DuMNG THE Period Compkised in this Yolume» The Hon. Eichard Oaylet, Chief Justice. The Hon. Lovell Buhchett Clarence. The Hon. Henry Bias. The Hob. Lovell Bubchett Clarence, (Acting) Chief Justice-. The Hon. Henry Dias. The Hon. Samuel Grbnier (Aoting)v The Hon. Jacob-tts Petrtjs De Wet, (Acting) Chief Jiustioe^ The Hon. Lovell Btjrchett Clarence. The Hon. Henry Dias. The Hon. Bruce Lockhart Btjrnsidb, Chief Justice. The Hon. Lovell Burchett Clarence. The Hon. Henry Dias. The Hon. Bruce Lockhart Bitrnside, Chief Justice.. The Hon. Henry Dias. The Hon. Archibald Campbell Lawrie (Acting). QUEEN'S ADVOCATE. The Hon. Bruce Lockhart Burnsidb. The Hon. Charles Lambert Ferdinands (Acting)i- The Hon. Francis Fleming. MEMORANDA. 7th February, 1882. Upon the Hon. E. Oatley, 0. J., leaving the Island owing to illness, the Hon. L. B. Claeence, Senior Puisne Justice, was sworn in as Acting Chief Justice, the Hon. H. Dias, Junior Puisne Justice, as Senior Puisne Justice, and S. Gbeniek,, Esquire, Advocate, as Junior Puisne Justice. 30th May, 1882. The Hon. J. P. db Wet was sworn in as Acting Chief Justice, upon which the appointment of the Hon. S. Geenieb, ceased. Slst May, 1883. The Hon. B. L. Bitbnsidb was sworn in as Chief Justice, upon which the appointment of the Hon. J. P. DE Wei ceased. 12th December, 188S. The Hon. L. B. Clarence, Senior Puisne Justice, going to England on leave, A. C. Lawrie, Esquire, District Judge of Kandy, was sworn in as a Puisne Justice. 19th April, 1880. The Hon. B. L. BuaKSiDE was sworn in as Queen's Advocate. 12th July, 1882. C. L. Ferdinands, Esquire, Deputy Queen's Advocate, was sworn in as Acting Queen's Advocate upon the Hoi;. B. L. Burnside proceeding to England on leave. 6th July, 1883. The Hon. F. Fleming was sworn in as Queen's Advocate. X.IST OF CASES REPOBTED IN THIS VOLUME. DISTRICT COURT (CIVIL) Chilaw 23,482 ... Colombo 30 (spl) 1,950 77,900 79,606 85,069 85,440 85,584 85,853 85,981 86,619 86,645 87,285 Galle 46,340 48,336 Kaluxaba 35,733 36,176 Kandx 81,309 86,520 87,172 Page ., 263 49 295 78 172 158 341 31. 241 324 329 249 74 209 315 21 7 81 217 213 Kandy — contd, 87,506 . 87,824 . 87,943 . 88,445 . 88,489 . 88,616 . 89,110 . 89,662 . 89,797 . 89,917 . 90,056 . 90,099 . 91,673 . Kbgalla 4,026 . Matara 30,171 . 31,034 . 32,285 . 32,371 . Negomeo 12,730 . Ratnaptjra 1,828 Pao;? . 123 . 227 . 232 . 106 . 244 . 226 . 331 . 285 . 253 . 188 . 268 . 25 . 278 . 16 . 211 . 122 224 . 83 . 383 . 6 Colombo 366 Galle 11,075 DISTRICT COURT (CRIMINAL). Page KuauNEGALA 67 2,036 Negombo 129 537 Page ... 103 ... 67 Colombo 1,216 DISTRICT COURT (INSOLVENCY). Page Kandy 205 886 Page ... 318 COURT OF REQUESTS. Balapitiya 29,712 ... Batticalo.v 16,209 ... Page .. 34 Colombo 260 30,492 Page .. 343 .. 41 .. 100 LIST OF CASES COURT OF REQUESTS— cojiid. Colombo— comid. Page 32,334 304 33,634 ,'..' 182 35,425 ... 307 Galle 60,977 ... 234 Kandy 19,410 ... 11 20,351 ... 260 21,032 ... 313 Matale Page 3,747 ... 293 NtrwAKA Bliya 8,387 ... 309 PUSSEMAWA Lr. A ... 144 Tmncomalie 35,985 ... 276 POLICE COURT. Battioaloa Page Gampola Page 19,718 ... 337 3,477 ... 95 Chavagaohchem HaLDUMMUTiTjA 6,889 ... 154 ... 339 Ohilaw Mannak 14,398 ... 237 5,785 ... 271 Colombo Negombo 6,310 ... 246 51,383 ... 281 7,874 ... 93 51,756 ... 283 DlMBULA Panaditka 6,550 ... 102 4,275 ... 62 JUSTICE OF THE PEACE. Colombo Page, 2,994 239 3,111 44 BENCH OF MAGISTRATES. Kandy Page 17,820 97 17,879 iia CROWN CASES RESERVED. The Queen v. Buye Appu (2nd Kaudy Sess., 47)... The Queen v. iferodricfc (2iid BaduUa Sess., 1) ... The Queen v. Peris Appu (4th Colombo Sess., 4) The Queen v. TIranelis {Ist Galle Sess.) ... Paga ,. 13S .. 143: . 155 .. I Re Creasy 126. ERRATUM. I'age 304, headnote, for Clabesce, J. read Buenside, C. J. REPORTS OF CASES AjiGHED ASD DeTEEMINED IN THE SUPREME COURT OF CEYLON. jth July, 1882. Present — De Wet, A- C. J., Clarence and Dias, JJ. Crown Case Reserved. The Queen v. Ubanelis and seven others. Assault on Policeman in the execution of his duty — Absence of count for Assault at Common Law — Conviction of Assault at Common Law. The defendants were indicted for cutting and wounding two policemen while in the executien of their duty. The jury, under the judge's direction, found that, (i) if the policemen were acting in the execution of their duty, the 1st defendant was guilty on the indictment, and the and, 3rd, {jth and 8th defendants were guilty of assault and battery on a police constable in the execution of his duty, and the 4th, 6th and 7th defendants were not guilty; but (2) if the policemen were not acting in the lawful execution of their duty, the ist defendant was guilty of cutting and wounding, and the rest were not guilty. Held, that, it being admitted at the bar that the policemen could not be regarded as having been in the lawful execution of their duty, the conviction of assault at Common Law could not be sustained. This was a case reserved, on a question of law, by Mr. Berwick, as Commissioner of Assize, from the First Crimi- nal Sessions of the Supreme Court at Galle for 1S82. The charge was that the prisoners, on the 28th November i88r, " in and upon one Mathes and upon one Omar AbduUa, then being police constables in the execution of their duty, did make an assault and them the said Mathes and Omar AbduUa did beat, stab, cut,, wound and ilUtreat and other wrongs to the said Mathes and the said Omar Abduila then did to the great damage of the said Mathes and Omar Abduila." The substance of the recitals in the account submitted by the Commissioner for the decision of the Full Court was as follows : At the trial on the 19th May, it appeared that Mathes and AbduUa were policemen, and were in fact maimed and wounded by certain of the prisoners, when attempting (while not in uniform) to arrest the 4 th and ^ih accused upon a warrant signed by Mr. Mason, a J. P. for Galle, which ran as follows : The Sueen, on the complaint of Ukwattege Tettu of Uda. welapitiya... ... ... ... ... ... ... Complainant. Vs. Obederis .„ c. Accused; To the Superintendent of Police, S. Province, Galle. Take into your custody the bodies of Gammadegodde Lianege Obederis and (2) Kalaganiakoralage Erolis boih of Udawelapiiiya charged with aggravated assault antl bring them before me or other competent J. P. forthwith. Given under my hand at Galle tfiis' 26lh day of October 1881. J. D. Mason, J. P. for Galle. This warrant bore the indorsement " to be executed by the police under my command," signed by Captain Graham,, Superintendent of Police, and dated 27th October 1881- The question reserved was, " whether at the time of execution or attempted execution of the above warrant they were in the lawful execution of their duty as Police Con- stables." It was admitted at the trial that no Police force had been established, under Ordinance 16 of 1865, at Udawelawitiya. The Judge told the Jury that, if the persons injured were not lawfully authorized to arrest the accused, the 4th and 7th accused (against whom the warrant was directed) were en>- titled to use as much force as was reasonably necessary to resist their own arrest, and that the other accused (being' the father, mother and brothers of the 4th and 7th accused) were entitled to use reasonable force in aiding their relatives ; but that, if one or more of the accused used deadly weapons or more violence, otherwise, than was necessary to avoid theii; arrest, they would be guilty of assault and battery or aggravated assault, according to the amount of violence 'used. On the other hand, if the persons injured had been in the lawful execution of their duty, then such of the accused as had cut them, and those who had abetted them, would be guilty on the indictment. The Jury after consideration returned the following spe* cial verdict : If the Court thought the constables had been in the execution of their duty, then the ist accused was guilty of cutting a constable while in the execution of his duty, the and, 3rd, 5th and 8th accused guilty of assault and battery on a police constable in thfe esecution of his duty, and 4th, 6th and 7th accused not guilty ; but if the Court thought the constables were not in the execution of their duty, then the ist accused was guilty of cutting and wounding, and the rest of the accused not guilty. Then, in order to have the question argued on a case reserved, the Commis^ sioner told the Jury to assume that the constables were in the execution of their duty, and return a definite verdict. On this the Jury returned the same verdict as they had done previously on this assumption. The Judge then remanded the prisoners till the ensuing sessions at Galle, the ist prisoner finding bail in Rs. 500 and the rest in Rs. 100 each : making this difference, because the Commissioner thought there " was not a high probability that the convic. tion of the latter would be sustained." As regards the ist accused the Jury thought he had used unnecessary and excessive violence in rescuing his brothers, and he therefore stood convicted of cutting and wounding in either view of the law, the decision of which would only affect the amount of punishment. Ferdinands (Acting Q. A.) appearing for the Crown, now admitted that the conviction for cutting constables while in the execution of their duty could not stand for two reasons : (i) Because the constables were acting outside their province and district, and (2) because the warrant was not directed by name or designation to the particular persons who sought to enforce it j but he contended that the first verdict of the jury should stand, which convicted the first accused of cutting and woundine, and acquitted the rest. Further, the and and 3rd verdicts were worthless and of no effect, inasmuch as a jury could give but one verdict under our Ordinance, guilty or not guilty , and, once their first verdict had been accepted and recorded, they were fundi' officio. He contended not so much for this particular case, as for the principle involved, and would, only pfess for the punish- ment of the first accused. Grenier, for the prisoners, contra -The Ordinance No. i r of 1868, section 44, directs the Supreme Court tp consider and dispose of any question of law reserved by one of the Judges for the consideration of the Collective Court. Here the only question reserved is. whether at the tin e they were assaulted the constables were acting in the execution of their duty. It having been admitted now at the bar that they ■were not so acting, the 'prisoners were entitled to be dis- charged. There is in the present indictment no second count (as there usually is) charging an assault at Common Law, and this Court cannot therefore convict the prisoners of that pffence. [Clarence, J — There is a case reported in 4 S. C. C. 117, in which Mr. Chief Justice Cayley held that,' though there was no such count for assault at Common Law, the Supreme Court could in appeal stt aside the con- viction under the Ordinance for resistance and convict of the Common Law offence] The Supreme Court did not in that case convict without the Common Law count, but they amended the plaint (it being a Police Court case) by insert- ing that count under the 'large powers of amendment' vested by Ordinance in the Supreme Court. But I have not known a case in which an indictment was amended as that plaint was. jR V. Oliver (i) there cited does not quite bear out the Chief Justice's position of conviction without count j for in that case the prisoner was charged (i) with assault with intent to do grievous bodily harm, and (2) with assault, and the jury having found a general verdict of guilty, the con- viction was affirmed as on the second count. [ The Chief Justice — Just as in an indictment for robbery tbere are two elements, the assault and the theft, and the jury may convict of both Or either. CiAUENCE, J. — I remember a case tried when I was D- Q. A. before Mr. Cayley as Puisne Justice, in which on an indictment for conspiracy there were overt acts charged which amounted to offences in themselves, and at my request the judge directed the jury, that if they thought the overt acts proved, but not the conspiracy, they should convict of the offences so disclosed. By your con- tention that direction would be wrong.] The overt acts there were o&e aces per se. [Clarence, J.— Hut the prin- ciple is the same as here. The acts of a simple assault are the same as of an assault on a constable in the (1) 30I- J-, M. C, 12. execution of his duty, and where the matter of aggra- vation is absent the assault still renains]. I contend there is but one verdict in the present case, viz the third ; for the first two were hypothetical and assumed a certain state of the law. The judge then decided the law definitely and the jury brought in their final verdict, which must fall with the validity of the warrant, which was assum- ed. The conviction should be quashed. Ferdinands, in rep^y — It was competent for the jury to convict of assault simply. [The Chief Justice — But, they have not done so]. I say they have, [reads first verdict [ [The Chief Jtjstjce — But the Commissioner apparently did not accept that as a final verdict]. He did, for it is endorsed on the indictment and -signed by Mr Black, the foreman. [DiAS, J. — There can be no doubt that the jury intended to convict the first accused of assault, whatever the legality of the warrant might be ; but there is the third verdict to the contrary]. I treat that as surplusage.' Their Lordships then delivered judgment as follows : The Chief Justice — lam of opinion that the conviction cannot stand ; but as I have not looked into the authorities I should like to do so, in view of the "importance of the case, before handing in a written judgment on the fallowing points : (i) Whether a jury can find two valid verdicts ; (2) Whether the jury havmg found a second verdict, the first is sustainable. My brother Clarence shares with me the opinion that the judge did not accept the first verdict. Clarence, J. — On the first point, I find two verdicts signed by the foreman. In my opinion the Judge declined to accept the first verdict, and the jury acquiesced in the refusal by retiring again. The Judge (in order to raise the question) gave the jury what was in effect a mis- direction, and they then returned the general verdict now under review. If it be conceded that the w-irrant is bad, that verdict cannot stand. On the second point, the ques- tion of the necessity for a second count, I .should like to have time to consider. Both points arise here, and the decision of either would be sufficient. [_Grenier — The second point will not arise if the first be held in my favor]. Yes. The Chief Justice— It is always advisable tp have two counts. There is only one point reserved, and it strikes me 6 the Judge had the last verdict in view when he reserved the qui^slioi ]. DiAS, J. — There is only otje verdict, that last taken, and the only question is on that verdict — was the warrant good or bad ? If it is conceded that it was bad, there is no course but to set aside the veidict. Verdict set aside- SUPREME COURT IN APPEAL, loth and 28tk February, 1882. Present— Clarence, A. C, J., Dias, J. D- C -t F.'Sumangala Unanse and another Eatnapura, } v. i8i8. J Induruwa PiADAsSA Unanse. District Court reserving judgment — Delivery hy Juige in open Court— Ordinance 11 of i86j,§ 75. The District Court, after the trial of this case on 25th January iS8r, reserved judgment. The judge, havinjj been removed to another station, sent his judgmtnt in the case to his successor, who caused it to he read in Court by an officer of the Court as the judgment in the case, on ^yth September 18S1. lltld, that this could not be reg^arded as the judgment of the District Court within the meaning of Ordinance No. li of 1868. The facts sufficiently appear from the judgment of the Supreme Court- Burnside, Q. A., {Ferdinands and Grenier with him) for defendant, appellant. Van Langenberg (Seneviratne with him) for plaintiff, appeL laht. (23th February) Clarence, J. — This is an action by two Buddhist priests, who claim by virtue of the will of a deceas" ed priest to be entitled to certain property, which is averred to be under the " management of defendant," who is also a priest ; and plaintiffs pray for an account of rents and profits. Defendant disputes the plaintiffs' right to the account prayed for ; but it is not necessary to enter upon the ground of bis defence- The case came to a trial or hearing on the 25th January 1881, when the then District Judge [y. E- Smart'] reserved his judgment. In the meanwhile it appears that that gentleman in or about the following April ceased to be District Judge of Ratnapura, being removed to another office atid station. No judgment was delivered in the prespnt case until September 1881, when the ex. District Judge appears to have forwarded to his succi-ssor a draft; opinion, which that gentleman caused to be read in Court by an officer of the Court, as the judgment of the Court in the case. The first plaintiff and the defendant each desires to appeal from that judtrment, and each takes the objection that the judgment delivered under the above circamstancek is not the judgment of the Ratnapura District Court within the meaning of the Ordinance 11 of 1868 [§ 75]- We think that that is so. DiAs, J., concurred. Set aside. Proceedings of^^th^^anua-^y 1881 quashed- No costs. Proctor for plaintiff appellant, D ^ayeliUeke- Proctor for defendant appellant, yurin de Zilva. 2,2nd May and 8th June, 1882. Present — Dias and Grenibr, JJ. D. C A Hendrick lalutara, > v. 361 1 76. J Fredekick. Cession oj Action — Surety paying off deht — Cession neces^ saryjor surety to reach immoveables mortgaged. Plaintiff (a surety), bringing the amount <>l the debt into Court' prayed in a previous suit that the defendant, the creditor, be decreed to accept the money and hand over to plaintiff the deeds hypothecated. Defendant dress the money out of Court. Plaintiff's Rvle Nisi, calling upon defendant to execute in bis favor a cession of action, having been discharged, on the ground that his lioel" was defective, plaintiff brought tile present action to compel defendant to cede to him his right of action against the piincipal debtor. Held, that plai tiff must be taken to have deposited the money con- ditionally on defendant's executing a cession of action. Held also, that though the plaintiff could recover the mere money debt from the defendant vpithout such cession, it was equitable that plaintiff should be given recourse to the mortgage security, whicfi he could not reach (being land) without such cession in Writing. Held also, that cession, [if not made the condition of the payment], must be claimed within a reasonable time after payment. Francisco Fernando was indebted to James VanRooyen in the sum of Rs- 100 and interest at 2 j per cent, per annum lUpon a mortgage bond dated a3rd May 1878, the plaintiff being surety for Fernando. On ist February 1881 Van Rooyen assigned his bond to the defendant. The plaintiff instituted D. C. Kalutara 35526 against the defendant '^alleging a previous tender of the sum due)i to compel him to receive the sum of Rs. 147 27 then due on the bond and deliver over lo plainiiff the deeds hypothecated with the defendant ; but the plaintifi" did not distinctly pray that the defendant be decreed to execute a cession ofaciion. The' answer there denied the ofier of payment by plaintiff. On the 1 8th February iSSi'the defendant drew the Rs. 147-27 deposited in Court. .Three months after, the plaintiff called upon defendant by Rule Nisi to execute a cession to plain- tiff of his right of aciion against the mortgagor. This rule was discharged by the District Judge, who pointed out the absence of the necessary prayer in the libel. "The plaintiff therefore ins' ituted the present action on the 7th October 1881, setting out the above facts, and the tender of a nota' rial cession of aciion for defendant's signature, and his refusal to sign it, and praying that defendant be decreed to deliver to plaintiff (concurrently with the hypothecated deeds) a sufficient cession of action to enable the plaintiff to recover the Rs. 147 27 from the principal debtor ; and in default to repay to plaintiff the said sum with interest. The answer denied that defendant had now any right of action to cede, and that such cession was necessary for the purpose set'out by plaintiff ; and denied also the tender of the deed for signal ure. After evidence heard for the plaintiff the Distiict Judge (Jf'orthington) gave the following judgment on 23rd Jauu- ary i88i : " On reading available authorilies 1 find plaintiff entitled to the assignment and cession of aciion which he seeks. Van Leeuwen (l) points out that the right of action or cessioa of action commences from the time of the obligee being satisljed, and the paragraph quoted from Pothier for defen- dant does not seem to be applicable, though the following one referred to by plaintiff s proctor is so s ill less. Apart from law, plaintiff should in equity have relief, and espeeiaU ly against the suspicious behaviour of defendant, whose opposition seems to be dictated by a desire to benefit his brother-in-law at plaintiff's expense. Let judgment be entered up for plaintiff as claimed." (1) Commentaries, Bk. 4, cap. 4, § 13 et scqq, Engl. Trails. (1820), pp 332, 333. Dornhorst, for the appellant, cited 3 Eurge, Col. and For. Laus, _545 ; Digest, xlvi. 3, 76, xvii. i. 285 Code, v. 58. i j Van der Linden, (Henry's Translation), p ai2 ; Voet, ad Fund., xlvi. I. 31 ; 3 Lorenz' Reports, pp 235, 319 ; Van- derstraaten's Reports, pp 91, 203. Van Langenberg, for the respondent, cited 3193 D. C* Jaffna, (2) ; Austin's Reports, pp 67, Jpo-; Ramanathan's Keports for 1860-62, p 148 ; D- C. Matara, 26949 (3) cited and approved in D. C. BaduUa, 20149, ('4). Cur. adv. vult- (8th June). 'Dias, J. — By a mortgage bond of 23rd May 1878 the plaintiff bound himself as surety for the diae pay- ment of the amount appearing in the bond. On the ist February i88[ this boud waa assigned by the obligee to the delendant. The plaintiff, as surety, having failed to induce the defendant to accept principal and interest aud assign the bond and the mortgage security to plaintiff, on the 9th February 1881 filed a libel Against the defendant in D. C. Kalutara 35526, brought the money (Rs. i47'27)into Court, and prayed that the defendant might be decreed to accept the same and restore to the plaintiff " the said documents," ■whatever that may mean, The object of the plaintiff in instituting the case No. 35526 was to compel the defendant to receive the debt due on the bond and grant to plaintiffs cession of action ; but through some negligence or ignorance on the part of plaintiff's proctor the libel was not properly framed for the pufpose far which it was intended. The cession of action which the plaintiff claimed from the defen- dant is embodied in a deed, which was tendered to the defendant for his signature, before the institution of the case No. 355*6 J and, though the libel "s not properly framed in that action, the plaintiff" must be taken to have paid the money conditionally on the defendant ceding to the plaintiff his right 'of action on the bond. The defendant filed his answer in 35^26 on 17th February 1881, in which he denied the plaintiff.'s offer to.pay the debt due on the bond ; (2) Moigan's Dig., p 107, para 417. (3) Civil Minutes ol S. C; 24th June 1875 (Per Morgan, A. 0. J. Stewart and Cayley, JJ. Sea Appendix A. (4) Civil Minutes of S. C, 17th November 1876. See Appendix ft. 10 but on 1 8th February the defendant drew the money which was deposited in Court j anJ it cannot in fairness 6e said that he received the money unqualifiedly. After the money was withdrawn, the plainti^'s proctor on the 27th May 1 88 1 made an irregular motion, by which he tried to compel defendant to cede to the plaintiff his (the defendani's) right of action. This motion was properly rejected by the Dis- trict Judge on 19th September i&8i. Having thus failed to obtain a cession of action in the case 3^526, the plaintiff instituted this case to compel the defendant to execute in favor of plaiatiS' a eession (^ action ; and the defence relied on is, that the debt having been already paid, the defendant has nothing to cede, as his right of action had ended by the payment. As a general rule of law, there can be no doubt that when a debt is paid unqualifiedly by a surety as co- obligor, he cannot compel the creditor to give him cession of action for the"«imple reason, that his right of action was put an end to by the payment ; but the writers on Dutch Law are not quite agreed as to the time when this cession may be claimed. Voet is of opinion, that a surety may claim cession at any time after payment (xlvi. i. 30), but this I take-to mean within a reasonable time. There is a case reported in Morgdn's Digest, p 107, in which the Supreme Court held that cession may be claimed after payment ; but all (he authorities are agreed that if payment is made sub. ject to the condition that the receiver should grant to tha payer a cession of action, such cession may be obtained after payment. The case now before us clearly falls under the ast mentioned class of cases. As the debt is secured by a mortgage, the plaintiff cannot" place himself in the position of the defendant, which he has a right to do, without a cession oj action, duly executed before a notary and witnesses, and though the plaintiff may recover the mere money debt from the obligor without a cession of action, he cannot reach the mortgage security without such cession, and it is in^iqui- table that the defendant should be allowed to deprive the plaintiff of this right- The object of the defendant in resisting the plaintiff's claim oi cession is obvious. The land mortgaged by'the bond appears to have been purchased by the defendant's brotherlin-law, and what the defendant wants to do now is, as the District Judge puts it, to benefi his brother in-law at the plaintiff's expense.' 11 The jadgraent appealed from is right, and must be affirmed. Grbnier, J., concurred. Affirmed. Proctor for the A ppellant, D. de Silva, Proctor for the Respondent, S. R. Fmseka, ioth yune and i^th jfuly, 1882. Present— De Wet, A. C. J., Clarence and Dias, JJ. C. R. -J Sangebavalo Kandy, > v. Gray. C. R. -J Kandy, > 19,4.10. J Cattle damage feasant— Custody of cattle seixed — PulMcum Stahulum — apportionment of damages. A herd of plaintiff's cattle had on several occasions trespassed on defendant's land and done damage, and one head of this herd was seized damage feasant and detained by defendant. Plaintiff, having tendered Rs. 2.50 (as the amoun^ of damage done on the day of seizure by the animal seized), vrhich was accepted as part payment and the cow not released, sued to recover his animal. Defendant claimed right to detain it till payment of the full amount of damages. Held, that there was no publicum stabulum, or public pound, in Ceylon, and that defendant was entitled to detain the trespassing cattle in his own custody. Held also, that it was for the plaintiff, as the wrong.doer, to appo» tioh the damages among the several bead of trespassing cattle; and that, proof on tnis point being wanting, everything would be presumed against him. The plaintiff sued the defendant to recover Rs. 30, the value of a cow belonging to plaintiff, which defendant un- lawfully detained. The defendant pleaded not guilty and averred the cow had been impounded while trespassing oa Dodangalla Estate, of which defendant was superintendent, and claimed the right to detain it till payment of Rs. 10, the amount of such damages.'which sum the defendant prayed plaintiff might be condemned' to pay. The Commissioner (Ashmore) gave judgment as follows : " In this case the judgment was postponed to enable Mr. Swan, who appears for the plaintiff, to quote to the Court authorities on the subject of distress damage feasant. " With regard to the facts of the case, there is some diS' pute as to the amount of damage, but I understand it is 12 Scarcely disputed that plaintiff's herd of cattle did trespass on the land of the defendant, and did do damage. There is some contradiction between defendant and his witness, Hami, on the subject, which I think arose from an intentioa on Kami's part to exaggerate as far as he could the laxity of the plaintiff in looking after his cattle. But it seems to be undoubtedly the case that all the damage was done within the time of Mr. Gray's two visits, that is within four days of the time when this cow was caught. The defendant's wit^ ness, Muniandy, a fairly intelligent Tamil, swore that he saw the dattle in the clearino; eveVy day for 3 or 4 days, the same herd presumably including the same cow. On the day when defendant visited the land he found the plaintiff's herd, the same herd, trespassing. One cow was seized then and there and the others got away. " Plaintiff made a tender of Rs. 2.i;o as the damage done, which defendant accepted, as he says, in part payment only. There can be no doubt as to the damage being considerable, for the defendant swears that he had to re.plant the clearing in great part, and there is no reason to disbelieve hira, and the sum of Rs. 2.50 is an absurd estimate of the damage. The assessment on which plaintiff lays stress seems to have been carried on in a ''hole and corner" kind of way without notice to defendant, and this Court can place no credit in itt the damage, absurdly enough, having been pointed out by the plaintiff. Plaintiff's claim is that the defendant must return the cow as he has no right to detain it, after his share of damage, covered by Ea. a. 50, is paid ; and he sues defendant for the cow or its value. The defendant answers that he has a right to detain the cow and did so detain it until all damages, Es. 10, done by plaintiff's herd be paid hira, and he claims danSages Rs. 10 in reconvention. Mr. Swan for plaintiff quotes Addison on Torts, cap. x, sec. 2, of distress damage feasant, to the effect that distress must be taken at the lime damage is donej and further, " if many cattle are doing damage, a man cannot take one of them as a distress for the whole damage, but he may distrain one for its own damage ;" and further^ quotes-C. R. Galle 25,177, CrowiAer, p. no, as to, the principle on which that cow's damage should be estimated. With all respect for the autho. rity of Addison I cannot think that if A's herd of 20 cattle trespass on B's land and B is able to seize only one head, he is unable to detain it until all damage done by A's cattle is repaid to him ; and can only suppose that Addison refers to cattle of different owner?, in which case no doubt the theory he puts forward is a sufficiently intelh'gible one. No cases are there quoted, and it is impossible without that assistance to ascertain what he means exactly. Some diffi- culty might -arise as to the day on which the full damage was done, but it is surely f-or the plaintiff, whose cattle are caught ac ually doing damage, to separate that damage into its specific parts, and not for the defendant who was injured by him, or for the court before whom no evidence on the point, whatever is led. Again, in this action plaintiff does not sue for damages for illegal detention, but for the value of his cow. Defendant's claim may be taken as a claim in reconvention for Rs. lO, which he is clearly entitled to get. But niy opinion is that plaintiff must fail and the defendant is entitled to keep the cow until he is paid. It is ordered and decreed that the plaintiff's suit be dismissed with costs. And it is further ordered and decreed that the plaintiff do pay the defendant the sum of Rs lo and costs of this suit.'' Dornhorsl for the plaintiff, appellant — (() A person cannot keep cattle, seized damage feasant , in his own custody, but must send them to the publicum slabulum. Vbet, ix. i. 3 ; Grotius, Introd., iii. 38. 1,1 j Groenewegen, De Leg. Ab,, ad Dig. ix. 2. 39 ; Van Leeuwen, Cens. For., Part i., v- 51. 4; Id., Comm. (English Trans ) p. 49). ; 3 S. C. C, ,51. IE there be no publicum stalulum in Ceylon, the only remedy is by ordinary action for damages. (2) Once the cattle have escaped, they cannot be seizjd on a subsequent occasion for the damage previously done. (3) Where a herd has done the damage, one cow cannot be detained till payment of the whole amount. Addison on Torts, chap. vii. sec. 2, jth Ed., pp. j66,-i6j. As to apportionment of damages among several cattle, C. R. Galle, 25,177. Growther, p no, Rama. • nathan, i863-i53, p. 6a. (4) Plaintiff's suit to recover his cow is dismissed, and though he is decreed to pay the defendant Es. 10, the defendant is not decreed to return the cow on receipt of that sum. Further, plaintiff does not get credit for the Es. 2 50 already paid. The damage was dune on 4 different days, and if points (2) and (3) be held in plaintiff's favor, the Rs. 2.50 tendered and accepted is a fair compensation, and plaintiff is entitled to judgment. 14 FanLangenherg for the defendant, res pondent - Ordinance 9 of 1876 provides procedure for summary recovery of damages caused by catlle, and repeals Ordinance 2 of 1835 ^^' lating to fhe same subject. The Supreme Court has held that the older Ordinance did not repeal the Common Law, which has been expressly reserved by the Ordinance of 1876. The present action is under tlie Common Law. I do not dispute the Goraan.Dutch Law, but there being no pulilic pound in Ceylon the only remeoy is by piivate detention. In the case quoted from the S.0.0,, the action (which was for the value of cattle that had been taken damage feasant and had died in the custody of the headman) was dismissed on the ground that the detention, whether by the proprietor or the headman, his agent, was lawful. D. C. Kandy, 18,947, Austin, loa, was an action (in 1846) for the recovery ot the value of 2 bullocks which the defendant detained ; and it was htrld that, there having been* no tender of compensatioai the detention was justified. C. R- Kandy, 30,619, Greasy, 117, citing Fan Leeuwen,- Comm , 494. [The Chief Justice — Can you detain one cow for the damage done by a whole herd ? Cla.rence, J — Everything may be pre- sumed against the owner of the cattle as a spoliator, and it will be for him to apportion and divide the damage.] Dornhorst, in reply— The decision in Austin was that of a single judge, and is open to review now. There is a case in Grenier (1873), I^C., p toa, in which the Full Court decided that the Common Law remedy remained. In the present case the judge has fnund that 20 head of cattle did Rs. 50 of damage, and this one cow's damage on 4 days amounted to Rs. to; so that the Rs. 2. jo tendered was fair compensation for the damai^e done on the day ot seizure^ and the detention after that tender was unlawful. (i3ih July). Clarence, J. — In this action plaintifiE seeks to recover from defendant the value of a cow said to be unlawfully detained by defendant. Defendant answers that the cow is detained as having been seized trespassing damage feasant, and claims in reconvention Es. 10 for the damage done. The Commissioner has dismissed plaintififs action and given defendant~judgment in reconventioa for Ks. 10. Plaintiff appeals- There is no doubt that the cow was seized while trespass- ing damage feasant, but it was argued by appellant's counsel 15 that defendant had no right to detain the cow in his own keeping, bnt that he might and should have handed it over to a headnnan. It seems thut according to the Roman Dutch Law the owner of the land trespassed u,pon had no right to detain the cattle in his own private keeping, but to send them to the pi^und, which Voet (ix. 1.3.) styles pai/j, cum stabulum. There are no pounds in CeyloUi so far as I am aware ; but headmen sometimes take over charge of dis,. trained cattle. Under the Cattle Trespass Ordinance of 1876. a police officer or local headman is rendered a proper person to take charge of distrained cattle, but the loth S'.ction of that Ordinance expressly reserves all Common Law righis to the person injured by the trespass. The defendant in the present instance did not choose to avail himself nf the procedure provided by the Ordinance ; neither did he hand over the cow to any headman. There is no doubt that the distrainor, by handing over the cattle to a headman, relieves himself of much responsibili'y, but in my opinion, if he is disposed to accept the responsibility of the charge of the animal, he may detain it himself. We are not now cm- earned with ihe Ordinance of i 76, out with thf Common Law, and I am not aware that the custody of a headman has ever come to occupy , the place o^ xhe publicum stabulurn to the Iene;th of being compulsory on the distrainor. 1 have always understood the law to be, that the distrainor relieves himself.of responsibility if he getsa headman to take charsjf ; but that if he chooses to detain the beast himself he may. Thisj it would seem, was also the opinion of Caylbt, C. J , and my brother Dias (v.de the concluding para, in the case reported, 3 S.C.C, 52). The case reported in AuUin. p ro2, seems also to proceed upon the «;anie principle, since the detention in that case appears to have been detention by the defendant personally. Having decided this point in defendant's favor, it seems to me unnecessary to enter upon the discussion of the vari- ous points which were urged with reference to the damage for which the cow was distrained. It appears that this cow, in company with several other head of plaintiff's cattle, had been for some days breaking into and daraa2;ing defendant's coffee ; and at fast the cow was seized. The evidence indi.. cates that the total amount of damage done was considers., bly more than the Rs. 10 demanded by defendant. Under such circumstances I am not disposed to make presumptions 16 in favour of plaintiff, and all that I tliink it necessary to say ip, ttiat if in addition to the above facts there aie any other facts which would limit the amount of defendant's lien on this cowfurtber than the moderate amount at which defendant; has placed it it is in my opinion lor plaintiii' to establish such facts, and he has not done so. I think the judgment appealed against should be affirmed, with the variation that, plaintiff having paid Rs. 2- o, the judgment must be only for lis. 7-^o. Plaintiff, having failed in the main matters argued, must pay defendant's costs in appeal. The judgment of DiAs, J., proceeded upon the same ground, and the Acting Chief Justice (De Wet) concurred in the above judgment. Affiim-'d. Proctor for Appellant, Ed. Swan. Proctor for Respondent, Jf. D. Jonklaas. '[See a Paper on the subject of » attle Trespass, in the Legal Miscellany for December J864, No. 5]. J^lh and iSth fuly, i88i. Present — De Wet, A. C. J., and Clarence, J. D. C. 1 Seka Lebbe Cassim Lebbe MAKiKARand others. V. Beatjchamp Downall and others. Kfgalla. /■ 4, '.25. J Eeginald Prani p — App'al lo tie Privj Council — Crd. 11 0/ 1868, s ct. 52, sulsec s. 3 and 11, The Supreme Court delivered a judgment in this case on 22nd Novem- ber )88i, wMcti did net 1 ass tlie teal of tlie Courttill 28th March 1882. Ai)pcUant (ihe plaintiff) filed his petition of appeal on 8th April, and tcndcied his bond for security in appeal (the acceptance of which was unopposed) on yth July, 1882 I Held, that the 14 days within which (under subsect. 3) the petition of appeal bad to be filed were 10 be reckoned from the date of the jud^m'^nt sought 10 be appealed against passing the seal of the Court, and net from the date of its delivery in Court ; and that therefore the petition was filed in time. Held al^o, that the bond for security in appeal had been tendered wiLhin the three months of filing the petition of appeal, and was there* fore in time. • The case came i^p on a question whether the security bond tendered by the Plaintiffs for tijeir appeal to Her Majesty in Council was in time. 1? Judgment upon the plaintiffs' appeal from the District Court of Kegalia was delivered in the Supreme Court on the 2 2nd Nov- 1881 by Catley, C. J. and Clarence, J. affirming the non.suit entered- Van Langenherg then point, ed out that the execution of the power of attorney, upon the non proof of which the Judges' decision proceeded, had been admitted in the Court below ; and it was ordered that the judgment should not pass the seal of the Supreme Court, pending the production of an affidavit by plaintiffs' Counsel. Catlei, C. J., then went on circuit, and short, ly after took ill, and the affidavit was presented before Clarence, J. who, after hearing Counsel, ordered on the 27th March that the judgment previously delivered should pass the seal of the Court, declaring that, even taking that power of attorney as admitted, the chain of evidence was incomplete. The judgment was accordingly sealed on the 28th March, and on the Sth April plaintiffs filed their petitiop for leave to appeal to the Privy Council. On the 7th July, having given notice to the defendants' Proctor of- their motion, JPendt moved that the security bond filed by the plaintiffs be accepted, for the convenience of the Judges it was ordered that the discussion of the motion should lie over for the Tuesday following, though it should be treated as having been made on the 7th. On Tuesday (the nth July) Grenier for the Respondents- wished the motion to be postponed to the 14th, and it now came up before the Judges sitting for Final appeals. Grenier for the defendants contended, first, that the peti.. tion for leave to appeal was out of time, the fortnight within which it was due having been calculated from the date the judgment passed the seal of the Court, and not from the day of its original delivery in open Court by Caylet, C. J. A judgment becomes the judgment of a Court, when it is delivered in open Court by the judges as their decision. Sub.section 3 of section 51, Ordinance 11 of 1868, pre- scribes that a petition for leaveto appeal shall be filed within 14 days of the judgment being pronounced, but it does not provide that such judgment shall bear date (and the 14 days be reckoned from) the day such judgment receives the seal of the Court. The words of the section are " given or pro. nounced," and the judgment in this case was '' given and pronounced" on the 22nd November. [ The Chief 18 Justice— Section 57 says the "decision" of two judges -shall be the judgment of the Court. Clarence, J. -But "judgment" in I his section app'Tently means ''decree."] The seal of the Court is meant merely to secure the authentica^ tion of the judgment, and its recognition by other Courts. [The Chiuf Justke — I he true test of the use of a seal is, could execution issue upon a 'judgment without it ? Again, in axfiminal case, the judge cannot pass sentence until the verdict of tlie^nry has been indorsed on the indictment and signed by the foreman. I know of a case at the Cape, in which a similar appeal was lodtfed, and the copying of the documents to send to the Privy Council took bix months,^ ai d in the meantime the recognizances had been per ected. Clarence, J. — The decree might be sealed the very day of delivery, and the copying of the grounds and reoions proceed afterwards], ,. Secondly, the security was not cotnpleted within 3 months of the petition for leave to appeal. That petition was filed on the 8th April, and the ? months would have expired at midnight on 7th July. On that day, near 5 p m , the appellants tender their security bond. How could the judges have decided on the sufficiency of the security, in that short while ? .[ The Chief Justick — Wonders can be done in 7 hours.^ But it suffices that nothing wets done- [[The Chief Justice — No one appeared to oppose the acceptance of the security, and to give the parties interested an opportunity of appearing we said "let the matter be mentioned on Tuesday, and we shall accept the motion as made tunc pro nunc""]. But the tender of the bond is not sufficient — the security must be " completed" withia the ■three months. £ The Chief Jn^sncs— Suppose the appel. lant and respondent could not; agree as to the amount ot the security, and this difference continued till the time was nearly out, the appellant might come into Court just a few hours within the. time, and say, "If the Court hoWs your 'Objection frivolous, then I am in time ; but if I wait till the time is out you may use the very argument you are now pressing.'' Clabenc, J.— The would-be appellant tender* ed a security. If we had accepted it he would have been in time. For our convenience we adjourned the hearing and now discuss it. If that security, tendered on last Friday, be now held insufficient, I do not say we would entertain a fresh proposal. On the other point, my present opinion is 19 a strong one, (subject to anything you may show me to the contrary from Mr, Macqueen"s book), that the judgment should date from the day it passes the seal; On the second point, I agree with the Chief Justice that Friday's motion was in lime, and" that if the security be held sufficient, it was certainly tenderedin time. The Chief Justice — Mr. Qrenier is satisfied with the amount of the security — ClargN'GE, J: — Then, of course, cadit quesstio.], I do nod question the value of the security, but only the fact of its, being in time. Fan L angenberg,. for the pla'mtilts, con/ra— (He was only^ called upon with reference to the ^st point.) The record; is the only evidence of the date of the judgment, and in it the decree is dated the 28th March. Immediately after- the judgment bad been deliveredj what I* thought an error was- pointed out, and the jndgment was ordered'not to pass the Seal. The true test is the C. Jfs, Could execution have issued ?~ [Mr.. Z.00*, the officiating Registrar, referred to byr the Court, said it could not- Grenier — The Registrar can only speak to the practice, not the law.J The decision pronounced in November was a mere expression of opi- nion, and it cannot be denied that the judges -have a right- to re-consider their opinions^.and that is what.the judges- here did. CuTi adv. vult.' (i8th July). Clabence, J. — This case now comes be- fore us upon the plaintiffs' tender of security in appeal to Her Majesty in Her Privy Council. The matter was moved by Mr. Ifiendt ior plaintiffs on Friday the 7th before the rising of the Court, but there not being then time to enter upon it we saved Mr. Wendt't motion until that day week, when Mr. Wendt- maAe his application and the bbjec. tion was taken on behalf of defendants that plaintiffs were out of time. It is admitted- on defendants' part that the security if tendered in time ia sufficient, and'the only. ques.. tion which we have to consider is — whether.' p^laintiffs'' security was in time when tendered on the 7th< That question turns upon this consideration : — are or are not the fourteen days mentioned' ia subsection 3 of section. 52 of Ordinance i !■ of 1868 to be reckoned from the day on which Chief Justice Catlev and myself pronounced out judgments or opinions in open Court? 20 Subsection 3 requires the intending appellant to petition for leave to appeal from the "judgment, decree, or sentence" by which' he may feel aggrieved " within fourteen days next after the same shall have been pronounced, made or given." That requirement complied with, the party has, by subsec- tion It, three months from the date of his petitioning for leave to appeal, within which three mbnths he must give his security. The judgments of Chief Justice Cayley and myself were pronounced in Court oh some day in November 1881. Afterwards, while I was engaged with the Colombo Criminal Session which lasted from November loth to December ptb, olaintiffs' counsel stated to the Chii!F Justice that he feared there had been some misapprehension on our part with regard to the extent of plaintiffs' admissions, where- upon the Chief Justice directed that the decree in appeal should not pass the seal until that suggestion had been considered and the case spoken to upon the point. I am not now aware, on what precise date the Chief Justice gave that direction, but I understand that it was within two or three days of the delivery of our opinions in Court. By the time I was released from the labour of the Colombo Criminal Session, Chief Justice Cayley had left Colombo on the Midland Circuit, and up to the time when he was overtaken by his lamented illness early in the pre- sent year, there had been no opportunity for our sitting to have this matter spoken to. After Mr. Cayley had left for England, the matter was placed in the paper and mentioned before myself alone ; when after hearing what counsel had to say I was of opinion that our judgments or opinions had been pronounced upon no misconception as to the admis' sions ; and on the 27th March I directed the Eegistrar that the decree in appeal should pass the seal. The decree was sealed next day, and on the 8th April plaintiffs presented/ their petition for leave to appeal. Consequently, if the fourteen days are to be reckoned either from the day on which the decree was sealed or from the preceding day on which I directed it to be sealed, the plaintiffs were in time. Defendants' Counsel contends that the fourteen days have to be reckoned from the day in November on which Chief Justice Cayley and I pro- nounced our opinions ; and if that contention holds good, ' plaintiffs of course are altogether out of time. 21 Without entering upon any general question whether in general the fourteen days should be reckoned from the oral delivery of iudgment or from the sealing of the decree in appeal, it is plain that under the circumstances of the present case the fourteen ' days ought not to be reckoned irom any date earlier at any rate than the 27th March, the day on which plaintiffs were definilively informed by me that the Supreme Court saw no reaaon to modify whac had already been pronounced. Up to that time the matter had been distinctly, by direction of the Chief Justice, held in abey- ance. The Chief Justice no doubt intended to consult me, and plaintiffs were given to Understand that the matter was in the interim held in abeyance- Plaintiffs are therefore in time in tendering their security. Upon the general question I have as at present advised an opinion, but I do not find it necessary to state it. De Wet, A. C. J.— Under the circumstances stated, and upon the principle actus curice nemin fadt njuriam, I am of opinion that the plaiatiffs are in time in tendering their security. Security accepted. I'jth and i 1st March, i88i. Present — Clarence, A. C, J., Dias, J. D. C. 1 T. A. Dona Ana 'Kalutara, > v, 35>'33- ■' T. Don Vissbntt Naidb and another. British Ship — Registration — ij and 18 Fict. c. 104,*, 107 — Fraudulent Registration. PlaintiS sued to have a ileclaration of title to one-half of a dhoney, of which defendants were in the unlawful possession, the first defendant heing entitled to the other half. The Court below found that the defen' dants bad repaired the dhoney and fraudulently had it registered as their exclusive property under a different name. Held, that plaintiff was not shut out by the registration from show, ing her title, notwithstanding that she had taken no steps to have her own title registered in accordance with the Merchant Shipping Act, 1854. This was an action by plaintiff to obtain a declaration of title to, and to recover possession of, a half.part of a dhoney, which the defendants unlawfully kept in their sole posses- 22 sion- Plaintiil claimed titte througb her deceased husband who had been sole owner, and admitted the right of first defendant and his ward Gabo to . the other half of the vessel. The defendants pleaded in effect r ist, that thejr were not guilty ; 2ndly, that defendants had jointly built a dhoneyr called Svnxfa Dewe U'ilhdmina, which was registered in Colombo as the defendants' [.iroperty f 3rJly, that the said< vessel nev-rir formed part of the estate of plaiatifl's-.deceased husband. At the trial on i^jth September i88ir the District Judge (y. H- de Saram) after evidence heard on both sides as to the identity of the vessel, which was then lying in the Kalutara river, gave judgment for the plaintiff. In appeal by the defendants, Burnside, Q. A., {Domkor&t with him). for the appeI1ant.v contended tbat plaintiff's action was misconceived'- The defendants were admittedly registered owiiers, and would therefore be presumed to be owners- Where the title to a ship comes strictly and properly in question, no claim can be received in opposition to the modes of conveyance re- quired by the Me chant Shipping Act, i954.. Abbott, Law of Merchant i hips and Seamen, izfthed., p 56- foUelt'v. JJelany (1) ; M'Calnont v. Rankin, (a) ;. Sla er v- Willis^ (3). Section 58 of the Act requires the registration of every alteration in the ownership, in order to make the register true evidence of the actual ownership. The ship in ques- tion was registered in March 1879 as ^ new ship under tl)e name of the Siriya Dewe Wilhelminay while the plaintiff claims it as an old ship under the name of FortitufLci'm distinct contradiction of the register, whicb is made prima- facie evidence by the Act (sect. 107). He also referred to Ex parte Yallop, (4.) j The Princess. Charlotte, (5). y. Grenier (Aluis with him) for the plaintiff respondent contra —The Court below finds as a fact that the ship in question is identical with the one that belonged to plaintiff's husband under the name of the Foritude ; and that first (1) 2 DeG« & Sm., 235, | (4) i j Ves. Jun., 60. (2) 31 L. T., I ; 8 Hart, i. | (5) B. & L. Adm. Cas., H- (3) I Beav., 354. 23 'defendanf^ having had half x)f the vessel left him by the will of plaintiff's husband, took a conveyance from the adminis- trator for a share in a ship which he now says never existed. Section 107 of thfi Merchant Shipping Act makes the regis^ tar on\y prima Jacie, and not conclusiife, proof of the matters stated in it. The Empress, (i). The ruling in the case of The Princess Charlotte, (2) is entirely in favor of this view. Section 57 provides for the registration of title by contract, and section 58 requires the making of a declaration by a party acquiring title by sucqession. Now plaintiff's hus- band, Daniel Naide, having purchased at a Fiscal's sale and Teceived no transfer, could not produce any document for registration and would only have had to make a declaration. The Act nowhere makes the absence of the declaration latal to the transmission of title. Burnside in reply — Plaintiff should have had herself regis- tered as part owner on her husband's death. Having failed to do so, she has no title as against the registered owners. Cur adv. vult. (31st March). Clare-jce, A. C. J. — The plaintiff, who is the widow of one Don Daniel Naide, prays a declaration that she is the owner of one half of a dhoney, late the pro- perty of Don Daniel Naide, She avers that defendants have taken possession of the whole dhoney and deny her tiile to a half share. Defendants deny that they are iti possession of any dhoney belonging to the late Don Daniel Naide. As to that issue of fact, the question was : whether a cer. tain dhoney, which, when this case was tried, was lying at Kalatnulla, and wfiich is now registered in the name of defendants as owners as the Siriya Dewe Wilhelmina, is , identical with a dhoney called the Fortitude, which formerly, belonged to Don Daniel Naide. The ist defendant is sole heir of Don Daniel Naide, and consequently entitled to half the property which belonged to Don Daniel Naide. The District Judge finds upon the evidence that the Siriya Dewe Wilhelmina is identical with the Fortitude, that the Fortitude was repaired, and that defendants registered her as above. it does not appear that the Fortitude was ever registered while in Don Daniel Naide's ownership, though she ought (i) Swab., 160. Decided in 1856. Rep. also 3 Jur., N. S., 119. (2) B. & L. Adm. Cas., 75, 24 to have been. We see no reason to disapprove of the District Judge's findiri!^. The tst defendant thus appears to have cheated the ' widow by registering the dhoney in a new name as owned by himself and and defendant. The aad defendant based his defence on the same allegations as i-t defendant, contending that the Siriya Dewe Wllhelmina was built by himself and ist defendant, and tliis defence has failed. We do not think this registration prevents the Court from declaring plaintiff to be entitled to the half share of which defendants have defrauded her. If we were to .hold otherwise, it would be difficult to avoid holding that, if a ship were stolen, furbished up, navigated to some port, and chere registered in a new name as a new ship, the new registration would be conclusive. We are disposed to think that we should have cast the 2nd defendant also in costs, bur, as the District Judge in his discretion thought proper not to do so> we do not interfere- We dismiss the appeal with costs. It is open to the plaintiff, by way of giving effect to the decree in her favor, to apply to the District Judge for an order directing the d-fendants to convey to her a half-share in the said Siriya Dewe W'ilhelmina. DiAS, J., concurred. Appeal dismissed. Proctor for plaintiff. A. L d'-^ltins. Proctors for defendants, W. Vanderwall, £>, de Silva- 25 nisi July and lith August, 1882. Present— De W^t, A. C J., and Dias, J. D C- Y Parusselle Dhammajoti Unnansb U (J Y fARt Kandy, > ccogo J Tiki V. 5,0,099 J TiKiRi Banda Paranatal! and two others. Second Action Jbr same subject-matter —Staying proceed' ings m, till payment of costs of former action. Plaintiff brought an action to recover from the three present defendants possession of a vihaia and its endowments, and obtained judgment, which was reversed in Appeal by the Supreme Court, and his suit dismissed. Plaintiff then commenced the present action for the same subject-matter and declaring on the same cause of action, though tracing his title somewhat differently froip the previous suit. 'Held, following Thomas v. Braine (reported 3 S.C.C. 149), that the Pistrict Court has a discretionary power to stay proceedings in a second action till payment of the costs of tfe former action by the unsuccessful plaintiff. Held also, that that discretion had been rightly exercised in the present case in making the order staying further pioceedings. The libel of the plaintiff averred that by a sannas dated Saka i;o8 (A. D. 1785), Sri Eajadhi Rajasinha, the last King of Kandy, had granted the Degaldoruwe Vihwa and its endowments to Moratota Nayaka Unnanse and his pupils in generations for ever. The grantee possessed the Vihara until his death, when he was succeeded by his pupils Dunu. mala Silawansa Unnanse, Sonuttara Unnanse, and Mahalle Sobhita Unnanse. After the death of the two fonner, Mahalle Sobhita became the sole incumbent of the Vihara as the only surviving pupil of the original grantee, Moratota Nayaka Unnanse. In 1849 Mahalle Sobhita, then in pos' session as incumbent, disrobed himself and took service under the British Government as Eatemahatmeya of Upper Hewaheta, He had then three pupils, viz. Pavanatala Katnapala the elder, Dunumala Unnanse (wh6 died about 15 years ago) and Parusselle Dhammajoti (the plaintiff), who as such pupils entered into possession of the Vihara. At the time whep Mahalle Sobhita disrobed himself the plaintiff was a Samanera (a priest of the first order) and very young, and was therefore placed by the said Sobhita in charge of the senior pupil Paranatala Batnapala the elder, who was to educate him. Paranatala Ratnapala carried out this task (the plaintiff being in the joint possession of the Vih'ara with hira) and treated the plaintiff throughoijfc 26 as a pupil of his own. On the 7th May 1849, just before disrobing himself and taking office under the British Go« vernment, Mahalle Sobhita by deed confirmed the plaintiff in possession and conveyed the Vlhara and its endowments to plaintiff and three other pupils of his, viz. Sirimalwatte Sutnangala, Paranatala Ratnapala the younger, and Parana., tala Sumana. The plaintiff, fully believing that he was the pupil according to the Bnddhist religion of the said Paranatala Batnapala the elder, as well as of the said Mahalle Sobhita, and that the former had power to execute the said deed in his favor, continued in the joiat possession with his co- grantees under the deed of 1849, until they died or disrobed themselves, and thereafter in the sole possession of the Vihara, until he was dispossessed thereof by the defendants in 1877 ; when the plaintiff brought against them the suit D. C. Kandy, No. 811630, in which he claimed the incum. bency as pupil of Paranatala Ratnapala the elder, in virtue of the deed of May 1849, ^"'^ recovered judgment in the District Court. The Supreme Court, however, reversed that decree, and dismissed plaintiff's claim, on the ground that plaintiff was not, according to Buddhist ecclesiastic;al law, pupil of the said Paranatala Ratnapala, the elder ; and the plaintiff contends that his rights as the sole surviving pupil of Mahalle Sobhita remain intact, by which, according to the sannas, he is entitled to the incumbency. The libel went on to complain that the second defendant took wroug.> ful possession of the vihara in 1877, and is with the first defendant in the wrongful occupation thereof, alleging that he holds the same under the orders lof the first and for the benefit of the third defendant. The plaintiff prayed he might be , restored to, and quieted in, the possession of the said vihara and its appurtenances, of the value of Rs. 40,000, and that defendants might be decreed to pay the plaintiff mesne profits and damages at the rate of Rs. j,ooo per annum. This libel was filed by Mr. J. B. Siebel on the a7th January 1882, and on the i jth February Mr. C. Vander- wall, the proctor for the defendants, moved that proceedings in this action might be stayed until the plaintiff had paid the defendants the costs of the former action, amounting to Rs. 2,189. This motion was supported by an affidavit of the first defendant, deposing to the non-payment of the costs. The motion was discussed in the District Court, 2? and on the Z7th April the District Judge {Lctwrie) made the following order : — ' " This is an application by defendants for an order to stay proceedings until the costs decreed to the defendants in case No. 81,630 be paid by the plaintiff. At the discussion on this motion it was not denied that the plaintiff in March 1879 instituted the action 81,630 against the same defendants. In that libel plaintiff averred that as the sole surviving pupil of one Fara'natala Ratnapala Unnanse, and as one of the grantees under a deed of May 1849 h? was entitled to the possession of Degaldoruwe Yihara and to, the endowments thereof. His cause of action against the, defendants was, that the second defendant had taken possession of the vihara and refuses to give up possession to him, alleging that he holds it by order of the first defendant for and on behalf of the third defendant, and that the defendants had taken the produce and endowments to their own use- The prayer of the libel was that the defend'ants may be cited to shew cause why the plaintiff should not be declared entitled to, and put and placed in the possession of, the said temple and of its endowmentSr and the defendants ejected therefrom, and why they should not be decreed to pay damages and mesne profits from August 1877- The defendants denied the plaintiff's right to the vihara. The casfe was keenly contested; it was repeatedly before the Supreme Court on appeals from interlocutory orders, and after a long trial and a careful and prolonged considera- tion of the evidence and of the law, the acting District Judge, Mr. R. Morgan, gave judgment for the plaintiff. On appeal, the Supreme Court with equal care reviewed the evidence and the law, and reversed the decision of this Court, and dismissed the plaintiff's action with costs (i). The plaintiff gave notice of an appeal to the Privy Council, but that was disallowed (2). So keenly had the case been fought, and so thorough was the investigation, that the defendants' taxed costs amounted to the large sum of Rs. 2,189. I' 'S admitted that these costs have not been paid. Writ against property has been served, but the plaintiff has surrendered no property. The plaintiff is a Buddhist priest. It may be assumed he has none. (0 Beported 4 S.C. C, 121. | (z) Reputed 4 S. C.C., 155", ^8 'i'he defendants' costs Were taxed in December rS8(. Itl January i88i the same plaintiff raised this action No 90,099' against the same defendants. In hrs libel he set forth a title to the same vihara, and his cause of action against the defendants is expressed in the same words, and the prayet of the libel is i'n the same terras, as corresponding parts of his libel in No. 81,630. It is in these circumstances that the defendants pray that the Court do stay proceedings in this case until the costs in the former case be paid. ■' Such applications, though by no means frequent, were not unknown in our Courts, but recently the right of thd .District Courts to make such an order was impugned in the case No. 8^,407 (D. 0. Kandy). There after full discussion it was held that the District Courts had sach a jurisdic^ tion (i). It is clear from that judgment of the Supreme Court, as ■well as from other authorities, that a District Court would be justified in, exercising the power to stay proceedings when the new aciion is oppressive or vexatious, and in opposing the motion now before me the Counsel for tha plaintiff directed his arguments mainly to convince me that this was no vexatious suit. On that point I am with him. I have no reason to believe that it is vexalious. The high character of the Counsel and of the proctrr for the plaintiff makes it certain that they would not have advised a " vexa. tious" action. Besides, I think that I would not be justified in characterising an action as vexatious before the pleadings and proof are before me. It would be monstrous were I noW to prejudge the case and to decide that the plaintiff has no chance of succeeding. I go further than the plaintiff's counsel asked me to go. I shallnot only not hold that this case is vexatious^ but I shall assume that the claim now made is unanswerable^ and that the defendants here will offer no defence and will consent to judgment being entered for the plaintiff. But the question remainsj Are the defendants not entitled to demand that before pleading or before consenting td judgment in this case, the costs incurred by them in the former case shall be paid P The earliest reported case m our Courts in which the .question was raised is 8815 D. 0. Colombo, 20th October i8'4r (2). " The costs of a formet (i) 3 S. C. C, 149! .i (0 Morgan's Dig., p 330. 29 suit vtfhich has been withdrawn must "be paid, before a new suit for the same claim can be instituted." It is possible that in that case the condition of paying costs was attached to the permission to withdraw the action. If such a con- dition had been added, then until it was fulfilled and the costs paid the former action would be regarded as still pending; and if pending, no new action for the same claim could be entertained. That case does not assist me here. Thomson's Institutes, pp 481. 483J refer to a Galle' case in 1852, but the particulars are uot given. It may be gathered from I Lorenz, p 95 (hat the Supreme Court in D. C. Galle 131329 stayed proceedings until costs of a, former action were paid, but there the District Judge of Galle in the Jater case 16,937 refused to be guided by that judgment of the Supreme Court, and held that when a previous case had come to an end not on the merits, but on an issue utterly irrelevant thereto, the later 'action should not be stayed, and the Supreme Court affirmed that judgment. That is not a case like the present, and in ray opinion gives me no guidance' The next case reported is D. 0. Colombo, 19,144 (i). That was an action for the recovery of land. The same plaintiffs, as I read the report, had sued the same defendant.^Mi (in 23,675^ for injunction against a sale and for declaration of title, which action was settled by consent in a judgment which did not deal with the right to the lands; and second in an action for the landj, in which the plaintiffs were nonstlited, because they had not properly set out their title as heirs, i he same plaintiffs then raised a third action, and it was pleaded that their non-payment of the costs of No. I3j67 j was a bar to maintaining the suit. The decision turned on a construction of the judgment by con« sent, and the Supreme Court held the paymenc' was not a condition precedent to the right of the plaintiff again to sue, But at the same time, while the right of the plaintiff to sue. was sustained, the Supreme Court decided that they were hot entitled to obtain possession of the lands until they paid the costs in that former action. It is plain that this was a Special case, and can hardly be relied on as an authority on either side here. In Fanderstraaten'i Reports there are short notes of two cases on pages 150 and 233. These reports are' meagre, the facts are not given. So far as they go, however, they support the contention that the power of sta>ing pro- (i) 3 Loienz, 261. 30 Ceedings shou'd be exercised only when the second action (9 deemed vexatious. I am not aware of any subsequent reported case, exce,pt that of Thomas v- Braine, 85,407 of this Court, already referred to (l). I am inclined to hold the law to be that, when the merits of a case have nut been tried and adjudicated on> and where the decision has been on some side issue or on technical grounds, or is a mere nonsuit, the non-payment of costs is no reason why the second action should not be maint^ned j but that, where the merits of a cause have been tried and adjudicaced on and a decision adverse to the plaintiff given, with costs payable to thfe defendant, a plaintiff may not maintain a second suit to obtain a judgment identical with that he formerly asked for, until he pays the foraier costS) I take it that the power to stay proceedings should be eser. cised only when the prayers in the libels in both cases are the same ; and that it is just that it should always be eser> cised where the Court has,, after full investigation, refused to grant that prayer j and the plaintiff should not again be allowed to sue the same persons to attain the same object^ until he pays the costs he has been decreed to pay. The cases in which the power can be exercised aie but few j for in general the plea oi res judicata is available to a defendant who has successfully resisted the same demand. Here I can give no opinion as to whether the plea of res judicata is or is not available. That is a matter not before me. The plaintiff here, I understand, maintains that he has- right to this vihara by two different lines of ecclesiastical descent. The Supreme Court has decided against his right through one of these lines, and he now seeks to set forth' and to establish his right fay the other line. I take it that the prayer of the libel being the same, the object to be attained being identical, on discovering that the title as pre- sented by him in the former case was bad or doubtful, he might have moved for leave to amend his libel by averring his right by the other line of descent. If he had made such an application for leave to amend, it would have been grant.* ed only on payment of the costs which the defence to the first title had caused the defendants. The plaintiff did not take that course. He waited until the case was fully heard and until judgment was given, and now he proposes prac* tically to amend his former libel. He does so by filing a (1) 3 S, C. C, 149. 31 new one, but on the analogy of the condition on which alone lie could have amended — that of paying antecedent costs— I hold he can have his claim again investigated only on the same condition. There is another ground for staying proceedings, which however I refer to rather than rely on. In the case of Thomas V. Braine (i) Mr. Justice Clarence said, ' Taking it as established tliat the District Court has the power, we might resort to English authorities for assistance upon the question, Under what circumstances should the power be exercised?' IE it be permissible to resort to these authori' ties (which I venture to doubt) it will be found,. I think, that the right to stay proceedings until the costs of a pre- vious action be paid, is exercised by the English Common Law Courts only in actions in ejectment. That supports the motion of the defendants here, for thi^ is an action in ejectment, but the reason why the English Courts exercise the right is because judgment in ejectmipnt is not res judicata. I quote from Broorrfs Legal Maxims, p 333 '• 'Although a judgment in ejectment is admissible in evidence in another ejectment between the same parties, yet it is not conclusive evidence, because a party may have a title to possession at one time and not at another' j and hence, he continues, ' there is the remarkable difference between ejectment and other actions with regard to the maxim under consideration (Nemo debet bis vexari pro una et eadem causa)-' And he adds, ' the Courts of Common Law have, however, sometimes interfered to stop proceed., ings in ejectment, either in order to compel payment of the costs in a former action, or when such proceedings were manifestly vexatious and oppressive.' He refers to a con., siderable number of cases, to which, however, I pt present have no access. This rule of English Law favours the contention of the defendants, though 1 cannot lay much stress on a practice which seems founded on the rule that judgments in ejectment are not ret judicata. But this case at least,' according to the plaintiff, is a case of judgment in ejectment, which is not res judicata. On that footing only can he maintain the action. It is therefore (I assume) a case like those referred to by Broom, and the English prac. tice and authorities may apply. As I have not read the English decisions on the point, I do not venture to rely on (.) 3S. C.C, 149. 82 them. "But on general grounds I hold that, as the same demand here made by the plaintiff was investigated and was decided on the merits against hira with costs, he cannot, in justice repeat it on grounds which he might have stated in his former case, wiihout first paying costs. The analogy of the condiiion under which he could have obtained leave to amend seems to be forcible. I grant the motion of the i6th Febrpary i88i with costs." From this order the plaintiff appealed, on the following -grounds chiefly : i- Tbe second action was not vexatious, as found by the District Judge. Only vexatious second actions are liable to be stayed till payment of previous costs. Though the second action is very similar to the first, it is not altogether the same, for the plaintiff now claims by a different title, a. This is not an action in ejectment (D. C. Eandy 81630, 4 S C.C. 121) ; in such actions only do the English Courts, as found by the District Judge, exercise the power of staying the second action. Grenier for the plaintiff, appellant, cited Voet, ad Pand., II. 8. I., xi.li. '. ^6- Grenier's Reports (1874), D.C., pp 69,71. Deneys V.' Stqfherg, ( i), and fionian Dutch Law authorities there cired. As to English Practice : i Aichbold, Q. B Practice, 181 ; Danve^s v. Morgan (2), Pashley v. hoole (3), Edmunds v. Att. Gen. (4), Dawkins v. Rokeby (5). Van Langenhergi for the respondent (Dornhorst with him), cited Morgan's Digest, p- 320 ; i Lorenz p. 95 ; Tan der Liet V. Exors- of Karnspeck (6). Hoare v. Dickson (7). Prowse V. Loxdale (8). Cobhett v. Warner (9). Tichborne V. Moslyn (10). Grenier was heard in reply. Cur. adv. vult. (1)1 Menzie's Cape Reports. 301. ' (->) 2SL.J.,C. P., 144. ^ (.?) 3D. &R..S3. (4) 47 L. J., Eq., 34S. (0 L. R.j 7 H. L. Cas., 744, (6) 3 Meiizie, 395. (7) 7 C. B., 164 i 18 L. J., C. P., 158, S. C. (8) 3 B & S., 896 ; 32 L J., Q. B., 227 ; 8 L. T., N. S., 314, S. C. (9) L. R., 2 Q. B., 108. (10) L. R,, 8 C. P„ 29. 33 ( 1 8th August). DiAs, J. —The question in this case is, whether a plaintiff, who was defeated on the same cause of action in a previous case, can proceed against the same defendants on the identical cause of action without paying the costs of the former suit. The plaintiff in this case, who is a Buddhist priest, instituted a suit 81630 D. C. Eandy, agaiosc these three defendants in IVlarch 1879. That case was keenly contested by both parties, and, after several orders and inteilocutory appeals, was finally tried and decided in May 1800 in favor of the plaintiff. The defendants ap- pealed, aad in July 1881 the Supreme Court set aside the judgment of the District Court, and dismissed the plaintiff's action with costs. The cause of action in both cases is the same, but the plaintiff's title as set out in this case is different from the titles set up by him in the previous case. The taxed costs of the previous case amount to Rs. 2189, and the defendants very properly say that the plaintiff should pay this large sum of money before he can be allow- ed to put the defendants to any further expense in defend, ing the same suit. This appears to be a very reasonable request. According to Buddhist Law a priest is supposed to be a pauper, though in point of fact Buddhist priests are wealthier than the generality of laymen. Seeing that the plaintiff had means of carrying out the protracted litigation in the former suit. I fail to see why he should not pay the costs of that suit at once. It is probable that the defendants are unable to recover these costs by the usual process of execution, and it appears to me that it is neither just nor reasonable that they should be put to further expense, which they may. not eventually be able to recover from the plain- tiff. The right of the District Court to stay proceedings under the circumstances of this case was once questioned, but this Court, by a series of decisions, held that the District Court had such power ; and the last case on the matter is reported in 3 S. U- C, 149. There is no rule by which the District Judge is bound in the exercise of his discretion. Every case .must be governed by its own circumstances, and I am not prepared to say that the learned Judge in this case exercised an unsound discretioD. The order appealed from must therefore be a£Brmed with costs. De Wet, A. C, J. — I am of opinion that the plaintiff, having been defeated in his form er suit, cannot commence fresh proceedings without having 'first satisfied the costs ol the previous suit. The order appealed from must therefore be affirmed with costs. Order affirmed. Proctor for appellant, J*. 3. Sielel Proctor for respondents, G- 'Fander (Pall. 11th and 2^th August, i88z. 'Present — Clarence and Dias, JJ. C. E. \ S. Q. AsAfitTBu OBalapitiya, > v. 29,71a. J Jattetu GuRtr and two others. jurisdiction 'to give -costs where the Court has no jurisdic- ■tion to try the action — Plea to thejurisdiction. Plaintifl sued the defendants for damages for breacti of an agreement to marry. The Defendants pleaded to the merits, justifying the breach. At the trial the Cctnmissioner, "holding hehad no juiisdiction to try a matrimonial action, dismissed plaintiffs suit with costs. Held, (without txpressing any opinion as to the power of the Court in case the celendants had taken the plea to the jurisdiction) that, the pica not fiaiing been taljen by the defendants uut originated by the Court, costs were improperly decreed to tne defendants. Held also, that the proper order would have been that the suit do abate. The plaintiff in this suit claimed Rs. 96 50 as damages for a breach of promise -of marriage. The defendants (the first of whom was the father, and the and and 3rd the uncles, of the bride) answered, pleading " not guilty," denying " the wrongs and injuries complained of," justify- ing their refusal to carry out the promise, and disputing liability in damages. Onth« day of trial, the Commissioner (L. G. Tate) made the following order : *' This is in effect a matrimonial cause. The real complaint is one of breach of promise. It is hardly necessary to point out that this Court has no jurisdiction in such cases. Plaintiff's action dismisa.* ed with costs." The plaintiff appealed, chiefly on the ground that the Court had no jurisdiction to award costs, and the appeal first' as came on before Clarence, J., on ayth July, by whose order the case was put on for argument before two Judges, and it now came up accordingly. Grenier for the plaintiff appellant {Van Langenherg with, him). The Commissioner had no jtirisdiction to award' costs, and his only order should have been that the suit should abate. An action for breach of promise of marriage is ex- pressly ejicluded from the jurisdiction of the ' Court of Requests by § 3t of Ord. ii of 1868 — 16,129,0. R. Pana- dure, (r) j. 4,339, C, R. N'Eliya, (2) ; 33,130, 0. R. Kandy, , (3). fDiAS, J. — It is very hard on the defendant that he should not have his costs, because the plaintiff chose to sue him in a- court that had no jurisdiction]. The Court of Requests is the creature of a Statute and can have no power outside that Statute, The same question of jurisdiction has been, raised in England under the County Court Act, 9 & 10 Vict., cap. 9^5. The words of that Act are far |arger than those of our Ordinance, ^ but it was held in Lawford v- Pa/rtridge {^) that, when on the hearing it appeared, that the Court had no jurisdiction to try the case,. the Judge had no power to nonsuit the plaintiff or to award costs to the defendant. It was argued there that the Court had power to award such costs under §. 79, which enacted '' that if the plaintiff shall not make proof of his demand to the satis- faction of the Court, it shall be lawful for the Judge to nonsuit the plaintiff, or to give judgment for the defendant j, and in case where the defendant shall appear and shall not admit the demand, to- award to the defendant, by way of costs and satisfaction for his trouble and attendance, such sura as the Judge in his discretion shall think fit." The other section relied on was the 88th, whicli enacted '* that all the cost of atiy. action ot proceeding in the Court, not herein otherwise provided- for, shall be paid by or apportioned between the parties in su«h manner as the Judge shall think fit, and in default of any special direction shall abide the (1) Grenier (1874)1 20, (2) Grenier (1874), 31. (3) Civil Minutes of the Supreme Coait, 8th June l865> (4) 26 L. J,, Ex,, 147 r I H. & N,, 6ii, S. 0. 36 event of the action." It was held in the case cited that §§ 79 and 88 applied to cases over which the Court had jurisdiction. TheOrd. riof 1 8 68 has no provision similar to § 88. [Claeence, J.— Those are mere general clauses. and a Judge would be guided by the old rules as to award. ing costs.] Our C B. Rules are contained in Ord. 9 of 1859. [Clarence, J. — Those rules say nothing as to the incidence of costs, but only provide for their taxation. The incidence is left' to Equity ] Pollock, 0. B., held in the case cited that a Court had no such jurisdiction even under § 89, which enabled the Judge to make such order as to costs as he thought fit. [Clarence, J — The question here is as to the general €ommon Law right of Courts]. I submit we cannot travel outside the Statute, and the English deoi. sions never recognised such Common Law right in the County Courts outside the Statute. [Dias, J. — The case you cite is also an authority for the position that the power to award costs is not inherent in a Court, but the object of special power given it]. YeSi And the Queen's Bench, not being the creature of a Statute, is not tied down by any such restriction. In G- N. and L and N. W Joint Committee v. Inett, (j) though the Q B, held that they had no jurisdiction to consider an appeal upon a case stated by Justice^, because the case had not been transmitted within 3 days as required by Statute, yet they gave the Respondent his costs. Lawford v. Partridge was not there cited as it would have been inapplicable to the higher Court. [Clare N cb, J.— I see no difference in principle. I take it that if there be no provision to the contrary a small Court, however humble, must be governed by the same general principles as a higher tribunal. As the Q. B. said in InetCs Case, if the Respondent had not appeared to point out their want of jurisdiction they would have gone on to hear the appeal, and as he had appeared he was entitled to his costs]. I submit that the Court of Requests would not have the power to grant costs in any case, unless that power were given it by the Statute creating it. In the analogous case of appeals to the Supreme Court, where seciinty has not been tendered in time, that Court (being a Superior Court'independent of Statu e) has rejected such appeals with costs, [Clarence, J, — I have been myself careful (1) L. R., 2Q. B. D., 284. 27 tiever to mention costs in such cases, having doubts of my jtiriscliclion, and leaving it to the parties to raise the ques- tion. DiAS, J, — Could the defendant bring an action in another Court to recover from the plaintiff the costs incurred in the first ■suit ? If he could have got them at first he will pot have them in the second suit. He must recover them in one of those ways, for when he has the right he rau'tt be allowed a remedy. Ccarbnce.' J. — If he may recover by separate suit there will be a circuity of action.] I do not admit he can, and it does not afftct my argument. Coming to our own Ordinances. § zj of Ord. 9 of j8j9 directed the Commissioner to hear and determine the cause according to law, and directed costs to be taxed according 10 Schedule Q. to the Ordinance. [CLiREtJCE, J — All this seems to leave the question untouched. There is no special provision, and so the general r lies must govern.] The present action was dismissed. What costs are to be given? There was no hearing although the case was set down ioi it, for the -)udge himself objected to the jurisdiciion. Taking it as a "con., tested case" even, in which answer wis filed, Tabls Q relers to cas-s within the jurisdiction. [Clarence, J. — i'here are some cases in which the warn of jurisdiction is apparent on the plaint; others, like Inett's Case, in which the dc fendant mast appear to point it out. Take the case of territorial jurisdiction— a defendant outside of it need not attend on summnns, aswming that the Uourt will do its .duty. Not that it always does, for I have known a .ourt of Requests entertain a suit for £ 50, in which no objection was laken to the jurisdiction, possibly because the defendant was a Coffee Estate!] .The 8+fh section of Ord. 11 of. 1868 empowers the Commissioner, iii pronouncing his judg- ment or order in any case, to make such order respectmg the payment of costs and expenses as to hi.m shall appear just and reasonable. [Dias, J.- That clause pre.supposes juris, diction. Clarence. J. -There has been a very recent case in- which the English Court of Appeal held that a Judge's discretion must be exercised according to the ordinary, rulegj. ■At the close of the last, argument. Counsel for defendant cited a passage from l^oet (Ad Pand., xlii. i. 2,5)- I ^^^^ "= that that passage refers only to Judges in appeal, who form a Superior Court [Dias, J —I see no difference in princi- ple between an original Judge and an Appellate, but the •distinction between competency on the main question and 88 competency on the question of jurisdiction is reasonabtev Clarence, J. — At present my opinion is that the Court ot Kequests is decidedly governed by general rules,, and that those rules are in your favor.} Seneviratne for the defendant, contra — I cited two pas* sages of Foet at the last hearintj, the other being Book v. I. 65 :— " yudicem eerie ipsum, cujus jurisdictio declinator, de- eo cognoscere dulium non est ; adeo ut in expenses quoqwe actorem temere vocanterm eon-lemnare queat, si semet ipium pronunciet non competentem ; cum enim in ista cognitione, quae de fori competentia; eit, ipse competent judex fueriti sequitur, ipsum in txpensas quoque. istius quaesthnis intuitu' facias, posse damnare, etsi in prmci ia.li negofio' incompetens sit." It is admitted thaf. where th<5 Court of R-quests has jurisdiciion it may award costs, and ii may therefore do so on the question of competency. [ labencb, J'. — ^As I said before, there are certain cases in which the defendant has to appear and point out the want of jurisdiction-, while in others appearance is not necessary, the objection being patent J poet proceeds to deal with- that :—" 5'e(i an m,. qui vocatus est adjudicemnon competentem, venire teneatur, ut id doceat, an vera impune emanere possit et vocationetm contemnere, non aeque expeditumi" [Dias, J. — Accord- ing to that, in certain cases the defendant need not appear,, and ought' not then to have the costs of so appearing], Where the ordinance is silenf',. the Roman Dutch Law must guide us, as laid down- by Voet. Grenier, in reply— [ClA;RFncb, J. — The House of Lords- has given costs in such a case (Mackintosh v. Lord Advocate) (i)]. My remarks as to Superior Courts apply there. The Village Commatirties ©rdinanoe, No. a5 of 18-71, expressly provides that where a case cognizable by a Village Tribunal is brought before a Court of Requests the Commissioner shall stop the proceedings and refer the parties to the Village Tribunal, condemning the parties in costs in such manner as to such Court of Requests shall seem fit. This pro- (i) Weekly Notes, May 6, 187,6— L. R., 2 App. Ca., 41. 39 "Vision would ha»e been unnecessary had any such right existed as is now contended for [ Clarence, J. — It may fiavebeen enacted ex alundanti cautela. ] Cur. adv. vult- (a 5th August). Clarence, J. — The libel in this action, which is a very obscure document, framed apparently with- out any professional assistance, claims that plaiaiiff is- entitled to recover a certain sum of money in consequence of a certain marriage not having taken place. The defen- dants answered, pleading simply averments and denials of facts. When-the case came on ;or'trial, the Commissioner s,aid, " The real complaint is one of breach of promise"— meaning breach of. premise of marriage, aad thereupon made an order dismissing plaintiff's action with costs. Plaintiff appeals. The proper order, of cours", would have been to direct that the action should abate, instead of dismissing the action j but nothing now turns upon this mere matter of form. Upon the argument of the appeal, Appellant's Counsel admitted the action to be substaraially an action for breach of promise of marriage, which is an action which Courts of Requests have no jurisdiction to entertain ; but he pre.^sed the ai^peal against ihe order as to costs. It has been held on various occasions in this Court, following the rule la'd down al Common Law in Ensjland in Lawford v Partridge (t) and other cases, that where a Court lias no jurisdictioa, it cau merely declare its own incompetency^ and can make no order as to costs. It was so held by Sir E. Creasy in No. 33.130 Kandy, (2), and by Sir R. Uayley in two cases reported in Grenier (1874) p 20. Mr. Henevi. ralne, however, contended thai the doctrine on which those cases were decided has since been abandoned in Great Northern Committet v. Inett (3), and cases there referred to ; and further relied on / oel, v. i. 6_5, which does not seem to have been cited in the cases decided in this Court. The question thus raised is one deserving of consideration, and there being decisions of two Chief Justices of this Court on the same side, based on Lawford v. Partridge and the English Cases, I think it desirable that if these decisions are (1) 26 L J., Ex., 147 ; I H. & N., 621, S. C. (2) Civil Minutes of the Supreme Court, 8tti June 1865. (3) L, R., 2 a. B. D„ 284. to be reviewed it should be if possible by the full Coui;t. Unless, therefore, it be necessary to review those decision* on this appeal, I should prefer not to enter upon that quest tion. I do not think it is necessary, and for this reason — that, conceding, for ihe purposes of argument, that a Court of Requests may have power to give costs where a de en- dant has been summoned before it in a matter over which ii has no jurisdiction, I do not think that the Court of Requests ough' to give cos's in a case like the present, where no objection to the jurisdiction was taken by the defendiint party. I think, therefore, that the order appealed against should be set aside so far as it directs plaini iff to pay defendants' costs. As Ihe appeal only partly succeeds, the appeal peti^ tion embracing an appeal on the point of jurisdiction, whcb appeal has been abandoned, we should give no costs in appeal. DiAS, J., concurred, CiiABENCE, J., intimated, after the delivery of the above judgment, that both he and his brother Dias had formed an • opinion on the question of jurisdiction to grant costs, which they did not think it expedient to declare now, in view of the former decisions of the Supreme Court. Order as to costs set aside. Proctor for appellant, D- H. de Silva. Proctors for respondents, D. E. de S. Wickramasinghe ;' D. y. Oleyesekere. [See C. R. Colombo No. 20,813, 3 S. CO., 23, where Beewick, J. gave costs, while holding that the Court below had no jurisdiction over the action. See also Dias v. Perera, D. C. Colombo 83,181, in Appendix E.J 41 j^th and 2'th ^uly, 1882. Present — Claeence, J.' C. R. ■» PiTCHE Cannen Assart Colombo, > V- 30,493. J M. Arunasalem Assaey. Stamp — Cancella ion of, under seit 9 of Ord, 23 of 187 1 •^Adoption by maker of piomiswri, note of Stamp-vendor' s date on stamp — Completed note handed by maker to payee— ' Estoppel. Plaintiff as payee sued the maker of a promissory' note dated 2 ist, April 1879, which defendant impugned as a forgery. The stamp on the note was afSxed at the left-hand top corner of the paicr and had the maker's name written across it. It bore also some illegible Initials and under them the date 21-4-79 apparently put by the stamp'VendOr, The Court below, after evidence called for the plaintiff held the note not duly stamped and nonsuited the plaintiff. Held (following D. C. Colombo 63,498, Civ. Min. of S.C., 13th July 1875) '''^'> 'he stamp.vendor's date on the stamp being even with the date of execution of the instrument, the iriaket must be taken in canoelli ing the stamp with his signature to have a< that the note is not the note of defeat dant, but a forgery. At the trial the plaintiff called some witnesses to prove that defendant brought the note to plaintiff and handed it to plaintiff ready stamped and signed. iSe also called some more witnesses to prove some admis- sion as made by defendant. Defendant then, according to the Commissioner's note, took an objection that the note sued on was " imperfect by reason of the stamp not being duly cancelled^ as required by section 9 of Ordinance No. 23 of 187 1." Defendant, I suppose, drew attention to the note as unstamped. On the note being tendered in evidence it might, if unstamped, be objected to on that ground, and I assume that on plaintiff's tendering in evidence this note, (i) Civil Minutes ot S. C, 13th July 1875. See Appendix B. m ■ the making of which defendant denies, defendant objected that the note was unstamped. By section 8, if the stamp' on the note has not been cancelled as required by section 9, the note is in effect an unstamped note- Upon the quesi ion, whether or no the stamp has been duly cancelled, the materials are simply these. The note bears a stamp across which is written a signature purporting to be that of defendant, and underneath that signature are written some scarcely legible initials, and beneath those initials, close to the -lower edge of the stamp, is the date " 41/4/79^" which is the date of the note. The suggestion offered by defendant is, I suppose, that that date was written by the stamp-vendor who sold the stamp, and not by the maker of the note, and that under those circum- stances the stamp has not been cancelled, as required by section 9. Certainly thb appearance of the figures in ques- tfon favours the supposition of their having been written by. the stamp- vendor. Now to my mind it is not necessary that the person^ cancelling a stamp should with his own very fingers write on rt the date of cancellation. T he Legislature is not likely to have meant that no one should be able to cancel a stamp who could not write figures. Without entering into detailsi I can imagine ways in which the maker of an instrument niight utilise & date already written- by another hand. In the case cited by Mr. Grenier, D. C. Colombo 63,498 (i)»- this Court seems to have approved the opinion of the learned District Judge of Colombo, that the maker of a note- may adopt a date written by the stamp-vendor, by sub" scribing his name to it. But so far as this case has gone, there is no finding upon the evidence, as to the truth or untrnth of plaintiff's state- ment that defendant brought the note to him ready signed and with the stamp on it. Now if it be the fact that defendant came to plaintiff and tendered to plaintiff this note as a note duly stamped and signed by himself— the appearance of the note being consistent with its being such — then I should accept the note as duly stamped unless and until defendant shows the contrary, subject of course to any difBculty which might lie in his way in the nature of an estoppel. (i) Civil Minutes of S. C, J3th July iSfi. See Appendix ft. u Set aside, and the case sent back for further trial and adjudication, with liberty to both parties to adduce further evidence. All costs to be costs in the cause. * Set aside. Further trial. Proctor for plaintiff, 5'. C- Oheyesek'ere. Proctor for defendant, y. L. Perera. jst September, 18S2. Present — Clarence, !• J. P. ■) The QoEEN V. Aemitage. Colombo, > 3,111. J Ex parte AV.M.1T&GE. 'Jurisdiction of Supreme Court over case in which accused have been committei Jor trial before it— Case not yet on Calendar. The two parties committed for trial in this case before the Supreme Court at Colombo on charges of theft, stellionatus, Sua., moved the Court for a transfer of the prosecution to the current Session of the Court at Kandy, on the ground that the first defendant's medical advisers had directed hira to leave the Island aS soon as possible ; and that the Colombo Session would delay his departure over two months. Held, that, the Justice of the Peace being^anctes officio, the Supreme Court had jurisdiction to make the order asked for. Held also, that sufficient cause had not been shown for making such order. Grenier, for the accused, moved the Court for a transfer of this prosecution from the next Criminal Session of the Supreme Court at Colombo (to commence on loth Novemj ber) to the current Session at Kandy. He read an affidavit from the first accused, which set out that he, the accused^ together with Charles Cyrus Arrtiitage, the second accused, had been committed for trial at the November Session of the Supreme Court on the charges of (i) conspiracy to defraud, (a) theft and (3) false pretences ; that he, the first accused, had had an attack of acute dysentery and conges- * at the further trial before the same Commissioner, after further evidence called for the plaintiff, the Court was not satisfied that de- fendant had signed the note; and again nonsuited plaintiff. In appeal, btfore Clarence, J., on 22nd February 1883, the same Counsel ap- pearing as upon the first appeal, this judgment was affirmed. ' 45 ' tion of the lungs on the 3rd May last, and had continued , ill since then, his illness being aggravated by the anxiety and trouble attending the criminal proceedings against him. A medical certificate was annexed to the affidavit as part thereof, signed by Drs. Vanderstraaten and Tothill, who s atsd that they had been in attendance upon the deponent for the last four months, and were of .opinion that his health would suffer seriously if he were prevented from leaving the Island at once, and that a serious relapse might be apprehended from any delay. Nell, Acting Deputy Queen's Advocate,, opposed the motion on behalf of the Crown, upon the following grounds : I. The proposed transfer IS impraoticabie. The papers connected with the prosecution cannot be got ready in time. Though Mr. Grenier had stated the Kandy Session would continue till about the 15th inst., the Q. A had on reference leaint that the probable date of closing would be the pth iast. Further, the Criminal Session at Matale has been proclaimed to be held on the nth inst. The Justice of the Peace consumed 15 days in going through the documentary evidence in the case, there being quite a little library of Mercantile Books produced. 3. E. C. Britton, an accused in the case, is oat of the Island, and proceedings will have to be taken under the neiv Fugitive Criminals Act for his apprehension. The Crown proposes to try him on the same indictment with the first two accused, the first count being for conspiracy to defraud. [ Clarence, fj. — That would deprive the other accused of the benefit of his evidence. J That is for the accused's Counsel to consider- [ LlaeenCE, J. — When I was Queen's Advocate I always took tliat circumstance into consideration.] 3. The case involves the consideration of complicated commercial matters, and a jury composed of Mercantile men is a necessity, both in the interests of the piosecution and of the accused. Suck a jury, cannot well be secured in Kandy. 4. The Court has not jurisdiction to make the order. Section 45 of Ord. 11 of 1868 enacts that a prisoner shall be tried at the next ensuing session of the Supreme Court after .his committal, at which he may properly be tried. This section must be read in connection with §§ ^^ and 35, The names of these accused will appear in due course in 4,6 the f'alendar of the November Session at Colombo Bert there is no provision in this Ordinance' for the transfer of a case before it is put upon the Calendar at all. There is now no prosecution pending before the Supreme Court against these accused. Section 22 of the Ordinance provides for the transfer of cases on the Calendar only, [ Clarence, J. — The J. P. has parted with his jurisdiction — he could not now discharge the accused, for instance. The Supreme Court must therefore have jurisdiction ] Had the case been on the present Kandy Calendar, the motion to transfer the case to Colombo might have been allowed under f 22' Section 35 directs a mandate to issue to the Fiscal to make a return of the persons in his custody committed for trial. 'On his return to this mandate (which is the Calendar) the cases are to be considered as pending before the Supreme Court. Then under § 37, the Supreme Court can only inquire into such cases as the Queen's Advocate elects to prosecute before it. The committal of the accused is for trial at Colombo : if therefore a trarisfer be now made to Kandy, the prosecution there will not be at the election of the Queen's Advocate. If the commitment be bad on the face of it, a Judge of the Supreme Court may discharge accused ; but if the commitment be good, the Supreme Court can make no order till after the Fiscal's return. Then as to the affidavit. It is insufficient. The ilL health of an accused is not a sufficient ground for a transfer. The medical certificate merely states that the accused will suffer severely j but he may recover before November. The fair implication in the statements of the affidavit seems to be that by a transfer to Kandy the accused may have the chance of leaving the Island alter an acquittal. Further, this certificate may be modi6ed oa a cross-examination of the medical men, and it does not even state what the accused's ailment is, and is quite devoid of particulars. Even granting that the Court has the power contended for under § 22, the application can only be allowed " if the ends of justice will gain by the transfer." Where questions of such large mercantile matters arise, Colombo is the only suitable place for the trial. The application comes very late too, near the end of the Kandy sessions, and if the 47 transfer be made, the Crown will probably have to move for a postponement there. ■ The same application, on the same insufficient grounds, may be made in every .cas^. Grenier, in reply— I have no desire that this case should be treated differently from all others. I. The objection of impracticability conveys an impu'a- tion on the Queen's Advocate department which surprises me. The case was committed on the direction of the Queen's Advocate, and the evidence, documentary and other- wise, should have been fully prepared before such committal, f Clarence, J.— The J. P. generally commits only on a prima facie case, which has alterwards to be elaborated ] s. As to Britten's absence — [Clarence, J. — I am with you ill thinking that no cause has been shown on that ground.] 3. As to the necessity for a mercantile jury. The ob- jection is a reflection on the character of the Kandy Jury. £ Clarence, J. — I do not think Mr. Nell intended anv reflection at all. It is well known that juries in Kandy are composed chiefly of planters who naturally are not very conversant with mercantile matters.] A mercantile jury need not necessarily try this case. If this were a civil case, I could understand the application for a mercantile jury or assessors. But this is a- criminal matter, which any in- telligent jury is competent to determine. 4. As to the Ordinance, § 33 does not apply. The mandate provided for by § 33 is entirely a matter of con. venience for the Supreme Court. It does not follow that merely because a committed case is not inserted in the Calendar therefore it is not pending before the Court before which it is set down for trial. What if there be no return to the mandate, or if the Calendar be lost ? § 45 empowers the Supreme Court to admit to bail any person awaiting trial before it. If the case be not pending before the Supreme Court, how, can that Court make such order ? Mr. Nell thought an application for a postponement would have been more favourably viewed. I think other" wise : it would have been construed into a desire to evade our liability. Here we move for a more speedy trial. I guard myself carefully from making any reflection 48 on the impariiali'y of a meican ile jury, and also from ex- pressing the slightest reluctance to go befure such a jury, if one can be hajl to-mcrrow. At the request of the Court Greater then read over the passage in the affidavit having reference to the deponent's illness. Clarence, J. — This is a matter calling for prompt and speedy disposal. If 1 have not the jurisdiction to make the order asked for, cadit quaeslio. I am of opinion that the matter is now depending before this court. The Justice of the Peace isjunctus officio, and the matter must be p-nding before this court, and so I have jurisdiction. 1 am naturally delicate about adding to the labors of a brother judge sitii:ig. in Kaudy, and shall promptly inform him if I make the order asked for. 'I know probably much less of the case than any other member of the public, but I know enough to feel sure that difficult questions of mercantile usage will arise at the trial, and it is therefore prima facie more desirable that a mercaniile jury should try the case, than that it should go before an agriculiural juiy like that sitting in Kandy, though that is a very good jury for some purposes. There must be some inconvenience, no doutjt, in the takmg ol the documentary evidence and the witnesses (most of thein probably resident in Colombo) to Kandy. 1 have con- sidered the fiffidavi'J and, without intending to cast any reflection on the medical gentlemen, I must say thtir cerliti- cate does not appear to me sufficient. What 1 have heard also c evinces me that the interests of justice will not be served by transferring the case againstthe will of the Queen's Advocate. I can perfectly understand the position of the unfortunate gentleman who has to wait so long with a sword hanging over his head; but I do not feel that 1 shall be justified in making the order asked for. Order refused. 49 i'jth J^une and 8th Septemler, iSSa. Present— De "Wet, A. C J., and Claeence and Dias, JJ- D. C. Colombo 1 Harvey, Brand & Co. Special > v! No. 50. J Hedges and another. Equitable assignment of mortgage debt — Insolvency-^ ' Order and disposition^ of Insolvent — Trust. M., the owner of a coffee estate, mortgaged it to W. & Co. as secu- rity for funds supplied anrt to be supplied to him by W. & Co. for the working of the estate. W. & Go.' subsequently, with notice to M., en< tered into an agreement with K B. 8f Co. that the latter should advance to W. & Co. the monies necessary for them' to keep their" engagement with M., W. & Co. undertaking to hold the securities created by the mortgage bond as trustees for H. B. & C9. to the extent of their ad^ vances to W. & Co. W. & Co. having become insolvent, their assignees (the defendants) claimed the sum due upon the bond (which had been deposited in the hands of a stakeholder) for the benefit of the general creditors as against H. B. & Co. Held, that the agreement of W. & Co. with H. B. & Co. constituted an equitable assignment to the latter of the former's rights under the mortgage though the indicia of title had remained with W. & Co. Held, that therefore the right of action on the tnortgage (which had been a chose in action in the order and disposition of the insolvent) did not pass to the assignees for the benefit, of the general c-editors, and that H. B. & Co. were entitled to the sum deposited as due under the mortgage bond. This was a Special Case submitted to the District Court for decision, and set out the following facts : I. In July J871, Adolph Carl Theobald Meyer morti gaged his estate called " Tientsin" and its crops to Messrs. Wall & Co, to secure their past (^3,500} and future ad* vances to him for the cultivation of the estate. a. On and June 1873, Wall & Co. executed a deed, the material part of which was as follows : " And whereas Wall & Co. have requested Messrs, Harvey, Brand & Co. of London to lend and advance to them certain sums of money for the purpose of carrying out their said engagement with Meyer, which H. B. & Co. have agreed to do on the condition that for all sums to be advanc, ed to W. & Co. as aforesaid, W. & Co. should hold the securities created in their favor by the said hereinbefore recited bonds, deeds and agreements in trust for the said S. B. & Co. Therefore know ye that the said W. & Co., in consideration of the premises and in pursuance of the last-mentioned agreement and for the purpose of securing 50 to the said H. B. & Co. the repayment of ail moneys to be advanced as aforesaid, do for themselves, their heirs, executors, administrators and assign?, hereby declare and agree that W. & Co. shall stand and be possessed of the said mortgages and other securities created in their favor by the said several bonds, deeds, agreements, to wit, bond of Jth and 29th December 1868, deed of 12th January, 25th February, and jth March i88p, bond of loth August 1869 and said agreement of 19th July 187 r, as Trustees for H. B. & Co. and for their heirs and assigns to the extent of all sum or sums of money to be advanced by the said H. B. & Co. for the purposes of the said agreement and free from any prior claim or right to the same securities which W. & Co. ot their heirs, executors, administrators, or assigns have or may have by virtue ' of the said several bonds, &c., or otherwise." 3. Meyer, op 6th October 1873, wrote to H. B. & Co. as follows : " With reference to a deed executed by Messrs. George Wall and Co, of Colombo transferring ^5,500 of the debt ■ due by me on Tientsin estate to you, which they are entitled to do under and by virtue of my agreement with them dated 19th July 1871, I beg to state that lam quite agreea. ble to the transfer thereby made, and'confirm the same." 4. Meyer died on and May 1877 leaving a will, and Letters of Administration with will annexed were granted on 8th January 1S78 to Claus Budde by the D istrict Court of Kandy. j. Wall and Co. continued their advances under deed of 1871 until ajth June 1879. 6. Wall and Co. were declared insolv ent on 5th March 1880, and Messrs.Tj. Hedges and R. A. Bosanquet were appointed assignees of their insolvent estate. 7. On 30th June 1880 the amount due to George Wall and Co. under agreement of 19th July 1871, by Meyer or his administrator, was B2. 57,849.85. 8. H. B. & Co. duly made advances to Wall and Co. for the purposes of the deeds of 19th July 187 i and and June 1873, and there is now due to H. B. & Co. from Wall and Co. a sum of ;^ 4,636 is. 3d. for such advances up to 30th June 1880. The question submitted to the Court is, whet her the said amount of Es. 57,849-85 passes by the insolvency of Wall SI and Co. to the assignees, Messrs. Hedges and Bosanquet, for the benefit of the general creditors j or whether H" B. & Co. are entitled ' to recover the said amount of £4,6^6 IS- 3d, under and by virtue and in terms of the said deed of J une 1873, with interest at 8 per cent from 30th June 1880 (or its equivalent in rupees) j .and who should pay the costs of this special case. This special case was argued in the District Court before Mr. O. W. C- Morgan^ the Acting Judge, who held as follows : 1. That the deed of and June 1873 created a valid trust in favor of Harvey Brand and Co.. and was not what th© Assignees contended, " an equitable assignment," 2. That Wall and Co, were not " reputed owners" or holders of the mortgages, within the meaning of the 49tb clause of the Insolvents Ordinance. 3- That though there was no statement on this point,, it was probable that the title deeds of Tientsin estate were in the possession of H. B. & Co., and not of W. & Co., as otherwise the assignees would have produced them. 4. That it was admitted that the correct form of pro., ceeding would have been under the jjrd clause of the Ordi.* nance. 5. That, upon these findings, the sum of Es. jj.849"8_5 did not pass to the assignees for the benefit of the general creditors, but that H. B. & Co. were entitled to recover ;^ 4,636. I. 3. under the deed of June 1873 with the in., terest claimed, or its equivalent in rupees at current rate of exchange > and that the costs of the special case should be paid by the assignees. On appeal by the Assignees, the Supreme Court (consist' ing of Clarence, A. C. J., and Dias, J.) on 21st March 1882 reversed the decree of the District Court, holding that H. B. & Co. were not entitled to draw the sum of £ 4,636. I. 3. The following are the material points in the Supreme Court judgment, delivered by Clarence, A. C. J. I. The instrument of and June 1873 does not transfer to H. B. & Co. any mortgage, nor does it purport to. The arrangement seems to have been that W. & Co., as between themselves and the debtor, should continue to be the mort'' gagees. It does Dot appear that the mortgages or any title S2 deeds which accompanied them in the hands of Wi & Ca. were handed over to H. B, & Co. We presume that if the deeds had been so handed over, the Case would have said so. The natural inference from the expression " stand possessed of the said mortgage^ &c., on trust" is, that the deeds remained with Wall & Co.. W. & Go's debt to H. B. & Co. is less than Meyer's' to W. & Co, a. If this be all, it seems clear that H. B. & C. could not have sued Meyer either for the whole debt or for the amount of their own advances to W. & Co. The letter to H. B. & Co. does not carry the matter any further. What was the notice which U. B. & Co. actually gave to Meyer, the Case does not say j but if the letter be correct, it was a notice that W. & Co. bad assigned to H. B. & Co. £ 5,500 of the debt then owing by Meyer to W. & Co, If this was the notice, it was not correct in stating the purport of the deed of and June 1873, the essence of which seems to have been that W, & Co. should remain the creditors of Meyer. H. B. & Cq. can be no better off than if their notice to Meyer stated the facts accurately. 3- Consequently, this sum of Es. 57,849-85 represents a debt due from Meyer's representatives to the estate of W. & Co. The present case is quite different from the English cases cited, which were cases of equitable assign- ments, where the equitable assignee had a right to suej whereas here the arraogement seems to have been that thci original creditor should continue to have the power of claiming the debt. The registration of the deed of June 1873 does not alter .the matter. 4. Trust property, ex naturd, does not pass to an as. signee in Insolvency. Section ^^ of the Ordinance merely provides procedure for getting the nominal ownership of trust property out of insolvent Trustees. If H. B, & Co, are held entitled to this £\636. i. 3. as cestuis que trustent, their obtaining an order under section ^3 would be mere matter of procedure to obtain payment. This £\6i6. i. 3. cannot be deemed " trust property" exempt from the claims of creditors. The facts amount to no more than this : Meyer owes money to W. & Co., and it is in contempla- tion that a running account shall be kept up between them. W. & Co. contemplate incurring a debt to H. B. & Co., and say to them " To the extent of our debt to you we will hold Meyer's debt to us ia trust for you,'" If tfe existence of 53 , such A trust as this is to avail against the trustee's creditor?, then, upon the same principle, if a man buys' goods of a tradesman and says to the tradesman, '' I will not pay you now, but I will consider myself trustee of the money for you,'' that would be a trust availitig against the purchaser's creditors in the event of his becoming insolvent. If this ;f 4.636. I. 3- really belongs to H.B. & Co. as cestuis que trustent, then it is in the reputed ownership of W. & (Jo. with their consent, in which case W. & Go's, assignee will, be entitled on application to an order under section 49. The case now came again before the Supreme Cour^, on the 27tb'of June, on the petition of Messrs. Harvey, Brand & Co. that the case might be heard in review preparalOry to an appeal to Uer Majesty in Privy Council. Grenier (FiznLangenierg and La^arti with him) for Messrs- Harvey, Brand & t-o , the appellants, opened the abuve facts to the Court. [ De Wet, A. O.J — Why was there no cession of the mortgage bond to H, B. &Co. ?] We cannot tell. Tbat would have been the safer course. But here there is no attempt to enforce the mortgage bond ; the ■ land is not sought to be touched. Meyer the debtor says (by his administrator Claus Budde) " Here is the money. You settle between you, which of you is entitled to it." [DiAS, J. — How are we to know how much of that money was Wall's, and how much H, B. & Go's ?]' Tbat ques- tion does not a'rise (though answered in the special case), for if there be a confusion of funds, and there be enough to satisfy the cestui que trust, his cUiai must first be dis. charged. The cestui que trust could have followed goods if they had been bought with his money or money intended for him. Meyer's letter of 6th October 1873 confirms the trust in favor of H. B. & Co. ; and if that money can be ascertained, the cestui que trust is entitled to get it. A trust need not be created by deed; it may be verbally. The authorities go the length of saying that, where money is given to an agent for a specific purpose which he fails to carry out (if, for instance, he buys on credit having appro, priated the funds) even though he be recognised as " re- puted owner," yet every coin of that money is impressed with the trust 5 and if the agent become insolvent, his principal can claim the goods, which .he may be^ taken to have bought with the jnoney, though it is not so in fact. 54 There can be no stronger case on this point than Harris v. 'Jruman (i) decided In the Queen's Bench by Justices Field, Manistt and Bowen in October 1881 ; in which it was held that tTie mere course of dealing between a principal and his agent, apart from any ex- press agreement, was sufficient to establish a trust, and impress with it goods which the agent had purchased on credit though supplied wiih funds which he had speiit otherwise.' See ako judgment of Jessel, M. R's, Inre Sallett's Estate, (2) [Reads judgments ol the District and Supreme Courts in the present case]. The queslion of " reputed ownership" was not submitted to the Court for adjudication ; had it, been, the District Judge should have called for evidence on the point, which was not touched by the Special Case. It cannot be said that here W. & Co, were reputed owners with consent of the true owners. Trust property, held by an iiisolvent, does not vest in his assignee for the benefit of general creditors. Rabson's Practice in Bktcy., p. 398, and authorities there cited* [Clarence, J. — No authority is needed for that proposi- tion J. If H. B. & Co, advanced this money to be given to Meyer (which purpose W. & Co. faithfully carried out) there was a trust established ; and why should we presume it was advanced for any other purpose ? To sum up : — The question of mortgage and security is beside the present case. There is no prayer for preference as mortgagees. H. B. Co advanced money to W. & Co. for a specific pur- pose, known to the debtor Meyer, and that purpose was carried out by W. & Co. There is here no question even of fraud by an agent. The debtor says, " Here is the money which t by my letter to H B. & Co, authorised W. & Co. to pay — the money of which I had notice that it belonged to H. B. & Co. — the money that came through Wall & Co. merely as the agents of H. B. & Co. for its transmission.'' That money being ascertained — never having formed part of W. & Go's insolvent estate — is still impressed with the trust, and must go to Messrs. Harvey, Brand and Co. If'ithers for the assignees, eonVra— H. B. & Co. apparently have two grounds of claim, (i) as equitable assignees, (2) as cestuis que trustent. But as to ([), the Supreme Court (1) 45 L, T., N. S., 255. Affirmed in appeal, L. R„ 9 Q. B. D , 264. (2) L. R., 13 Ch, D., 690, 707, / has held there was no such equitable rio;ht, as the indidft of title had not been handed over to H. B & Co. As to (2).' this case is distinguishable from Harris v- Truman : there there was a fraudulent failure to perform a trust, but here the trust has been discharged by fulfilment of the specific purpose. Thrtee things were necessary for a good trust, (i) sufficient words to create i^, (2) a definite subject, and (3) a certain or ascertained objact. Now, here there are no sufficient words. The deed of June 1873 does not say that W.& Co. will hold the sums of money, as received, in trust for H. B. <& Co , but the moitgages and securities. This is no nice distinction, as appears from the judgment of Lord Abinger, C. B., in Gibson v. Overbury (3), which was an action in trover to recover certain indicia of title, where the deposit was intended merely to bind the papers and riot to transfer the security, and it was held there was no trust of the debt secured by them. But assutning that this is trust property and that the sum in court represents the advances by U. B. & Co , the property will still fall under the " order and disposition" clause, and be for the benefit of the general creditors. That clause affects cestuis que trustent as much as true owners. " By true owner is meant he who has the right to determine the appearance of owner., ship in the bankrupt, whether legal or equitable." Could H. B. & Co. have taken these papers out of W. & Go's, hands ? Wall & Co might have assigned the debt over to a third party and handed the deeds to hira. [De Wet, A- C. J — Would that not be fraudulent in W. & Co ?J Fraudulent certaiuly ; but yet it was a possible contingency. "I he deed of and June 1873 is called an '■ agreement,'' but it is only a deed poll, and its execution is not even endorsed on the mortgage bond of 187 1. A third party might have acquired a better title than H. B. & Co. if he had taken an assignment tor valuable consideration, I challenge ray learned friend to show a single case- in which an insolvent has been permitted at his own choice to give preference to one crediior, as cestui que trust , over another. I kaow a case (which I cannot now lay my hands on) in which an agent had misapplied part of the funds given him for a specific investment,' and wishing to make amends had effect. ed an insurance on his own life and had with the other securities left the policy with an indorsement on it reciting (3) 7 M. & W., SSS. 66 these facts ; and it was held ihat the trust affected the amount of ihe insurance- But there is no one case in which an insolvent was allowed to draw up a deed poll declaring his property in trust tor any one of his creditors. To allow this Would be to make room for any number of fraudulent preferences. W. & Go's trust extends only to the securities, and not to the amount secured ; which should therelore go to the assignees. T"here is one ditHcuky, however ; what were these securities for f For moneys advanced to Meyer. If at hfs death there had been a certain sura due, the bond might have been put in suit against his representative for such sum. But here advances had been continued to fiudde for two years after Meyer's death. Those were new debts contracted by Budde, and he would certainly by English Law be held personally responsible. These were debts outside the mortgage bond, which could not be enforced against Bodde for debts contracted atier the mortgagor Meyer's, death. Wall & Co. would have no preferential claim for those advances. Grenier, in reply— Taking the last argument for Respon. dent first, it is disposed of by the provision in the iiiortgaga bond that it should bind the heirs, executors and adminis- trators of the parties to it ; and, further, the Special Case makes no difference between advances to Meyer himself and to his administrator. As to the duration of advaUoes, it is only necessary to say that the advances to Budde were not after the expiration of that period. As to the distinction drawn in Gibson v. Overlury (3), chat case was decided ex- pressly on the " reputed ownership" clause, and therefore has no bearing on the present case. [Reads section 49 of Insolvents Ordinance] This money m deposit never got into W. h Go's hand-. How then can it be said to have been in their " order and disposition with the consent of the true owners" ? It is quite plain from the words creating the trust, that whatever money was repaid was intended to go to H. B & Co. The true purport of the enactment in ihe "reputed ownership" clause is well explained by the Master of the Rolls in Ex parte Ifingfield, Re Florence (4). to be that, where an insolvent is seen in the possession of another s goods, so as to get false credit on the appearance of ownership m himse lf, the true owner should forfeit his {3) 7 M. & W., 555. I "TfTLTRT^Ch. a, 59+. 5? property, which shculd 'go to the insolvent's general credi- tors. In the present case, would any one have given W. & Co. credit on account of the first bond, which had been superseded by another that had been duly registered ? Any creditor of W. & Co. would have searched the Registers and found the deed of trust registered, and would at once have seen that it would have priority under our Registration Ordinance. Further, as the learned Chibp Justice has remarked, had there been a subsequent assignment by W. & Co., such assignment would have been at once set aside at the instance of H. B. & Co. on the ground of fraud. fpithers added to the authorities he had cited, Lewia on Trusts, nth Ed., p. 123, to shaw that a cestui que trust absolutely entitled would be a " true owner,'' as in this case he could have determined W. & Go's control over the deeds- Car, adv. vult. (8th September). De Wet, A. C. J. — The question for decision under the circumstances in the case stated, is, whether the amount of Rs. 57,849-85 due under the agree- ment of the 19th July 1871 passes by the insolvency of Messrs. George Wall and Co. to Messrs. Hedges and Bosanquet, the assignees of the insolvent estate, for the benefit of the general creditors of the estate, or whether Messrs. Harvey, Brand and Co. are entitled to recover the amount of £ 4636. 1. 3. under and by virtue and in terms of the deed of 2ad June 1873 with interest thereon at the rate of 8 per cent, per annum from the 15th day of June J 880. , ' In July 187 1, the estate called Tientsin situated in Dick* oya was vested in one Adolph Carl Theobald Meyer, and at that date the said Meyer acknowledged himself to be in- dbbted to iVlessrs. George Wall and Co. in the sum of. £ 3,500, and to secure that sum and Jurtker advances to he made he entered into an agreement with Messrs. George Wall-and Co. dited the 19th July 1871, and thereby mort- gaged, as security for the said sum of £ 3,500 and farther advances to be va\de in terras of the said agreement, the said Tientsin estate and crops thereof. Under and by virtue of this agreement the relationship existing between the parties to the agreement was simply one of debtor and creditor »— both as regards past advances as well as future advances 58 —the debtor mortgaging as security for the said advances the Tientsin estate and crops. Upon receipt of advances to Meyer he became the absolute owner of the moneys so advanced, leaving to Messrs. George Wall and Co. whatever right they possessed under the mortgage bonds for repay, ment of such moneys. On the and day of June 1873 Messrs. Wall and Co, executed a deed poll virhich inter alia has the following provision : " And whereas Messrs. George Wall & Co. have requested Messrs. Harvey, Brand & Co. of London to lend and advance lo iliem certain sums of money for the purpose of carrying out their said agreement wilh. the said AduLph Carl Theobald Meyer, which the said Harvey, Brand \ Co. have agreed to do on the condition that for all sums to be advanced to the said George Wall & Co. as aforesaid, they the said George Wall & Co. should hold the securities created in their Javour by the said hereinbefore in part recited bonds, de'ds and agreements in trust for the said Harvey, Brand and Co., therefore know ye that the said George Wall, William Rose and John Smith Findlay, trading as aforesaid, in consideration of the premises and in pursuance of the last mentioned agreement and for the purpose of securing lo ihe said Harvey, Brand & Co. the repayment of all monies to be advanced as afore' aid, do and eacn of them doth for themselves and himself, their and his heirs, executnrs, administrators and assigns hereby declare and agree that they the said George Wall, William Rose and John Smith Findlay, trading as aforei said, shall stand and be possessed of the said mortgages anH other securities created in their fa\our by the said several bonds, deeds and agreements ***** to the extent of all sum or sums of money to he advanced by the saii Harvey, Brand & Co. for the purpose of the £aid agreement and free from any prior cl,aim or right to the tame secuiities, which the said George Wall, William Rose, and John Smith Findlay trading as aforesaid, their heirs, executors, administrators and assigns have or may have by virtue of the several bonds, deeds and agreements or otherwise," The provisions of the deed clearly established the position pf Messrs. Harvey, Brand & Co. with reference to the ad- vances to be made by them and also to the securities then held by Messrs. Wall and Co. The moneys to be lent and advanced were to be lent and advanced, for a specific purpose, and were to be applied in a specific way. This was mutually agreed upon and understood ,by both the con- tracting partie^. The moneys were to be advanced, not for the purpose of enabling Messrs. George Wall & Co. to deal with it as their own, for their own purposes, or in any way ■ they pleased, but solely for the purposes for which the advances were to be made ; but it was also mutually agreed upon that Messrs. Wall &. Co. should stand possessed of the moneys and the securities as Trustees for the firm of HarVey, Brand & Co. to the extent of all sums ol money to be advanced by Harvey, Brand & Go. for the purposes of Ihe agreement. 59 This deed of ind June 1873 was duly regfstered in the Registrar of Lands OflSce, Ratnapura, on 4th June 1873 and signed by the Registrar of Lands. The effect of this Begistration is obvious— after registration no subsequent alienee could acquire a preference over the heads of Harvey, Brand & Co, The original bond debtor apparently ac^ quiesced in this new arrangement, for on the 6th October 1873 Adolph Meyer writes to Messrs. Harvey, Brand & Co. as follows : " With reference to a deed executed by Messrs. George Wall & Co. of Colombo transferring £ 5,500 of the debt due by me on Tientsin estate to you, which they are entitled to do under and by virtue of the agreement dated 19th July 1871, 1 beg to state that I am quite agreeable to the transfer thereby made, and confirm the same.'' Sub- sequent to the date of the agreement of the' 2nd June 1873, certain advances were made by Harvey, Brand & Co., and it is admitted " that there is now due to the said Harvey, Brand i^ Co- Jrom the said George Wall isf Co. a sum of £^6^6, 1. 3. in respect of such advances" (i. e. advances made for the said purposes of the agreement) . George Wall & Co. were declared insolvent on 5th March 1880, and George Hedges and R. A. Bosanquet were ap^ pointed assignees of the insolvent estate. I am of opinion that* the assignees of the estate are not entitled to the amount last named for the benefit of George Wall & Go's, creditors. Harvey, Brand & Ccf. having advanced thai; amount, they and they alone are now entitled to claim repayment of the same by reason ot the trust created in tbeir favour. My Judgment therefore is, that the judgment of the Court below be afHrmed with costs in both courts. Claeence, J.— After hearing this matter re-argued in review, I have come to the conclusion that the order origi.> n ally appealed against was right, and should be restored. The facts are these: — In July 1871 Mfeyer mortgaged Tientsin estate to George Wall & Co. to secure a present debt and future advances. Afterwards, in June 1873, George Wall & Co. entered into a notarial agreement With Harvey, Brand & Co. that in consideration of Harvey, Brand & Co. lending them moneys to enable them to make ad- vances to Meyer, they would hold Meyer's mortgage in trust for Harvey, Brand & Co. to the extent of the moneys so advanced by Harvey, Brand & Co. to thenj. Meyer died 60 in May 1877. George Wall & Co. are indebted to HarVey, Brand & Co. for advances made under their agreement . Meyer's legal representative is indebted in a larger amount to George Wall & Co. for advances made under Meyer's agreement with them, and has paid the amount so due into the hands of a stakeholder. The sum thus in question is £ 4636. I. 3. 1 think that under these circumstances there is an eqau table assignment of that amount of the whole debt, by George Wall & Co. to Harvey, Brand & Co. Now I take a debt such as this to be clearly within the " order and dis- ppsition" section of the Insolvency Ordinance : and if there has not been notice to the debtor of the assignment, the debt is in my opinion a chose in action in the reputed owner., ship of the insolvents, within the meaning of that section. Curiously {he case does not set; out what was the communis cation which Harvey, Brand & Co. made to Meyer about this matter. We only know that in reply to Harvey Brand & Go's. communicatioQ, whatever it may have been, Meyer on the 6th October 1873 wrote to H. B. & Co. the letter of that date, which admits notice of transfer to H. B. & Co. of £ 5.500 of the "debt due by me on Tientsin estate." The letter further refers in connection with that debt to an agreement, dated iflth July iSjt, between Meyer and G. W. & Co. The 19th July 1871 is ,the date of the agreement between . Meyer and G. W, & Co. already referred to. I take it that we are at liberty to draw legitimate inferences of fact from this part of . the case, and although the proper way of proving the notice given would have been to show the terms of the notice itself, still the inference which ' I draw from the letter is that Meyer received notice from H. B. & Co. of an assignment to them of his debt to G. W. & Co-, 10 the extent of £ 5.501. I think that takes the deed out of the reputed ownership of G. W. & Co. to the extent of the balance now due from G* W. & Go, to H. B. & Co. i think therefore that the order of the District Judge should be affirmed, and that all costs should follow the event. DiAS, J — [After setting out the facts]. The question which we have to decide is, whether by the insolvency of Wall & Co. this sum of money had passed to the assignees of Wall & Co., for the the benefit of the general creditorsy 61 or whether Harvey, Brand & Co. are entitled to receive thereout a sum of ^ 4636 {S 3d, or its equivalent in rupees. The decision of this question turns upon the application of the "order aiid disposition" clause of the Ord. No. 7 of . 18 j 3 to the facts stated in the Special Case submitted to the District Court. The deed of and June 1873 appears to me to be some., thing more than a mere mortgage of a debt. It is an assignment by Wall & Co. of so much of the debt due from Meyer to them on the mortgage bond of ipth July 187I1 as would suffice to pay whatever monies mi^hi be found due to Harvey, Brand & Co. under the deed of '873. ' Meyer having had notice of this deed cannot successfully plead, as against Harvey, Brand & Co., a payment to Wall & Co. Supposing that the deed of 2nd June 1873 only amounted to a mere mortgage of a debt, and not to an abso.< lute assignment, notice to Meyer the debtor would be as effectual to secure Harvey, Brand & Co., with regard to their claim on the debt from Meyer to Wall & Co. Braid V. Mangles (1). Though the debt was in form of a debt due to Wall & Co., it was in substance a debt due to Harvey, Brand & Co., to the extent of their claim against Wall & Co. on the deed of the »nd fune 1873. By the arrangeiiient of the and of June 1873 the beneficial interest in the debt between Meyer and Wall & Co. passed to Harvey, Brand & Co.j to the extent of their advances to Wall & Co. under the deed of and June 1873. Winch v Keeley (a). If the deed relied on as creating the trust is simply a mortgage of a debt and nothing more, Harvey, Brand & Co. should not have left the indicia of ownership in the hands of the mortgagors Wall & Co. Whether they were so left or not the Special C ase does not disiinctly say, but assuming that all the bonds and deeds were left in the possession of Walj & Co., I do not think it makes any difference. Wall & Co. are the mortgagees under the bond of 19th July 187 i. The object of the deed of and June 1873 confessedly was to keep the bond of 19th July 187 1 alive. Wall & Co. made advances to Meyer under that bond, and by the deed of and June 1873 they assii>ned to Harvey, Brand & Co. not the whole, but only so much of the debt of Meyer as would be sufficient to meet the advances to be made by Harvey, Brand & Co. (i) 3 Ex. Rep., 394. I (2) I T. R., 623. 62 Under these circumstances it appears to me that the pos;. session by Wall & Co. of the indicia of ownership is consis:. tent with the trust. On the whole, I agree with thereat of the Court that our judgment of the 21st March 1881 should -be set aside, and the judgment of the District Court of 14th October iS&i should be affirmed. judgment of the Supreme Court in Appeal dated 21st March 1882 set aside, judgment of the District Court appealed against affirmed. Proctor for the appellants, F. C- Loos. Proctor for the respondents, F- ^. de Saram- lUh August and ^th Septemler, i88a. Present— Clarence and Dias, JJ. p. C. ■) FONSEKA Panadura, ^ v. 4,27^., J Perbba. Arrack Ordinance, 18++ — Breach of section 26 — Proof ef possession of licence — Ordinance 5 of 1881, section 3. Upon a construction of section 3 of Ordinance No. 5 of 1881, Held, that the word " condition" in this section might be construed to include the possession of the licence contemplated by section a& of the Atrack Ordinance, 1844. ; and accordingly Held, that the section under construction cast the burden of proving the possession of such licence on the defendant. The defendant was ^barged with a breach of § 26 of Ordi' nance No. to of 1844. Evidence was led for the prose- cution, and the defendant was convicted and sentenced to two months' imprisonment at hard labor. There was no evidence on the part of the complainant of the absence of a licence, as required by recent decisions of the Supreme Court in appeal. The Magistrate {Drieherg) held that the burden of such proof was now thrown upon the defendant by Ordinance No. 5 of 1881. The defendant appealed. Dornhorst, for the appellant— Notwithstanding the Ordi- nance 5 of 1881 the complainant must lead evidence to show prima Jade that the defendant had no licence, that being an 63 essential part of the offedce. The amending Ordinance of 1881 (§ 3), enacted as follows : In any prosecution lor any effence under the said Ordinance [No. 10 of 1844], if the inforoiation or plaint in any such case shall negative any exemption, proviso, or copdition in the said Ordinance, it shall not be necessary for the prosecution or complainant in that behalf to give evidence of such negative, but the defendant or accused may prove ihe affirmative thereof in his defence, if he would have advantage of tlie same. My argument is that this section is merely a re-enact' ment of §'65 of Ordinance 10 of 1844, which provided that "wherever in any clause of this Ordinance any person or thing is declared liable to any puuishment, penalty, or forfeiture, but certain exceptions are therein expressed, ex.. cepting such persons or things under certain circumstances from such liabiliiies, iC shall not be necessary to aver or show in any information or other proceeding for the prose- cution of sueh offence, or for the recovery of such penalty or forfeiture, that the defendant or the subject of any such proceeding does not come within any such exception, but the proof thereof shall be upon the defendant." This clause has been held to contemplate such exceptions as the 32iid clause contains. [Clarknce, J.— There is no doubt that, as a general principle, when an enactment says you shall not do a thing,, and also that you m The Queen 537. v; D. C. Cr. \ Colombo, > Ekanayekege Herat Sinno. 356. i Transfer of Prosecution ly Supreme Court — Ord. No. 11 of 1868, sects. a» and 119 — Ord. No. 7 of 1874, sect, i— " Try." Upon a transfer of a prosecutioa by the Supreme Court from the District Court of Negombo to that of Colombo alter information fired in the former court by its Secretary, the District Judge of Colombo quashed another indictment for the same offence tendered by the Deputy Queen's Advocate, holding that the accused should be tried, if at all, on the information originally filed in the Negombo Court, and holding also that under sect, i of Ord. No. 7 of 1874 he had power only to try, and not to hear and determine, any prosecution before bim by virtue of that section. Held, that the order quashing the indictment was wrong; and that the Queen's Advocate could prosecute either on the original information or on any other he chose to tender. Held also, that the word " try" in sect, i of the Ord. of 1874 must be construed as giving the District Court power also to bear and determine the matter of any prosecution before it by the Queen's Advocate. This was a prosecution for a breach of sect. 11 of the Malicious Injuries Ordinance, 1846, and it was transferred by tjie Supreme Court from the District Court of Negombo 68 to that of Colombo, on the ground that the commuting Justice was also the District Judge of Negombo. The following are the material parts of the order of transfer : The Queen, on the complaint of H, W. Green, .: Complainant, vs. Ekanayekege Herat Sinno ... ... Accused. Case No. 1338s, (^^^^^^^ Malicious Injury to a Bridge. Upon the motion of Mr. Ondaatjie, Deputy Oueeii's Advocate, submitted in Court this day, (due natice whereof having been given to the accused) and upon leading the record of the said Justice of the Peace Case, It is ordered that the above case be and the same is hereby transferred from the District (Jourt of Negombo to the District Court of Colombo, for trial. "When the case came on for trial in the District Court of Colombo, Layard, for the adcused, took the objection that that Court had no jurisdiction to entertain the charge. It had no jurisdiction of its own, inasmuch as the act coin, plained of was committed outside its territorial limits ; and it had no delegated jurisdiction by virtue of the Order of the Supreme Court, inasmuch as that order did not profess to transfer for trial before the Distiict Court of Colombo any matter then pending before the District Court of Negombo, but a certain " Justice of the Peace Case No. 13385. " It was further objected that, if the Colombo Court could tiiy the matter at all, it should be upon the information filed in the District Court of Negombo, and not upon the fresh in., dictment tendered by the Deputy Queen's Advocate in the Colombo Court. The District Judge of Colombo (T. Berwick) quashed the information presented in Colombo,, upholding the objection to the territorial jurisdiction, and being of opinioQ that the accused should be tried in Colombo (if triable at all) upon the information filed in the District Court of Negombq, just as, in a civil suit so transferred, the trial would proceed upon the pleadings filed ip the original Court. Against this order the Queen's Advocate appealed. The remaining facts of the case appear in the judgments of the Appellate Court. [ Note, By order of the District Judge of Colombo, the proceedings taken in his Court upon the record trans- ferred from the District Court of Negombo were kept separate (under No. _;3 7) from the proceedings consequent upon the information filed in the Colombo Court by the 69 Deputy Oueen's Advocate, the record of which latter pro- ceedings was numbered ^^6. The Appellate Court has accordingly treated these two records as two distinct cases, and has given judgment jn ^ach separately.] Ferdinands, Acting Q. A„ for the appellant^ . The Court below has held that a District Court has power to try this case only by virtue of the Ordinance No. 7 of 1874, sect. I, malicious injury to a bridge not being a charge otherwise cognizable by the District Court. It was held that that Ordinance only empowered the Court to " try," and not to " hear and determine" such matter. The word " tiy" must be taken to confer the power also of hearing, arriving at a conclusion, and punishing — See Bacon's Alt-, vol. 6, p i6g, "Statute^ ; Dwarris on Statutes, p 703. Fur- ther, this having been a prosecution transferred under sect. 8 2 of the Administration of Justice Ordinance, 1868, the Court to which it had been transferred had the power of hearing, trying and deciding the same as fillly and effectually to all intents and purposes as if such Court had originally power and jurisdiction. The judge was therefore clearly bound to try and dispose of the matter. Again, as con- tended in the Court below by the Deputy Queen's Advocate (Ondaatje), the Queen's Advocate has the power to prose- cute before any court of criminal jurisdiction any offence for which any punishment is prescribed by Ordinance, even though such punishment be beyond the power of such Court to award. (Ord. 11 of 1868, sect. up). In reply it has been asked, Could the Police Court try a charge of murder, if the Queen's Advocate chose to prosecute it there ? The answer to this objection is, that for murder no punishment has been prescribed by Ordinance. The present charge is not one of those scheduled ia the Ordinance of 1874 as not triable by District Courts. The appearance of the Queen's Advocate or his Deputy to pros'-cu'e in his official capacity, ii, under section 3. sufficient; proof of the case having been brought before it by the Queen's Advocate or his Deputy. But in the present instance there was also an indictment tendered, signed by the Deputy Queen's Advocate. The District Court was therefore bound to try and decide the matter, under sect, i of the Ordinance of 1874. [ He then proceeded to comment on the unjustifiable language of the District Judge of Colombo in speaking of 70 the legislation of the epoch during which the Admiuistrav tion oi Justice Ordinance had been passed. ] No Counsel appeared for the respondent. Cur. adv. vult. (i4bh September). No. _537. Dias, J. — The accused in this case, Ekanayekege Herat Sinho, was conamitted hy the Justice of the Peace for the District of Negombo on the 19th Atigust 1881, to be tried before the District Court of Negombo on a charge under the Ordin«ice No. 6 of 1846. On the 5th of October 1881, the Secretary of the District Court of Negombo presented an infornnation against the accused, and the case came on before the District Judge on the 17th. On that day, the learned judge expressed his unwillingness to try the case, as he was the Justice of the Peace who committed the accused. Accordingly Mr, Ondaatje, Deputy Queen's Advocate, moved the Supreme Court to transfer the case from the District Court of Ne* gombo to the District Court of Colombo. The motion was allowed, and, on the 26th o^ October 188 1, the Supreme , Court made an order accordingly. On the ist of November notice was issued to the parties, and on the 1 2th the learned District Judge of Negombo informed the accused that the case would' be heard in the District Court of Colombo on the 8th of December following. What took place in the District Courts of Negombo and Colombo, after the last order of the District Judge of Negombo, does not appear on record. But on the 22nd of June 1882 the following entry is recorded : — " Mr. D. Q. A. Ondaalje for the Crown ; Mr. Advocate Layard for the accused. The order of the Supreme Court dated 26th October 188 1 is produced and read. The information filed in the Negombo Court iS read to the accused." Before the accused was called upon to plead, Mr. Layard objected to the jurisdiction of the Court- He urged, first, that the Colombo Court had no territorial jurisdiction, and, secondly, that it had no delegated territorial jurisdiction by virtue of the order of the Supreme Court, inasmuch as the Suprem^Court order purported to transfer for trial a cer- tain Justice of the Peace case, No. 13,385, J. P. Negombo,. and entitled "The Queen, on the complaint of H. W. Green, vs. Ekanayekege Herat Sinho," and did not purport to transfer to the District Court of Oolombo any cause, guit 71 OT action then pending in the District Court of Negombo. This last contention is founded upon an entire misappre^ faension of the effect of the Supreme Court order of the aStli October 1881. which is as follows : — Victoria by the Grace of God, &c. The Queen, ou the complaint of H. W. Green, complainant, vs.' Ekanayekege Herat Sinho, accused. Charge, malicious injury to a bridge... It is ordered that the above case be and the same is hereby transferred from the District Court of Negombo to the District, Court of Colombo, for trial." In the margin of the order is the following entry ; — " Case No. 13,381; J. P. Negombo." This marginal entry is do part of the order, and the case that was transferred was the case of The Queen vs. Ekaoa. yekege Herat Sinho, then pending before the District Court of Negombo under No. 537. In that case an information had already been presented in the District Court of Ne- gombo by the Secretary of that Court under No. 537, D. Xj. Negombo, and that case came on before! the District Judge of Negombo more than once, and it appears to me astonishing how, in the face of all thi^, it can be seriously contended that this was not a prosecution pending before the District Court of Negombo, when it was transferred by the Supreme Court ; but remarkably enough this objection was upheld by the learned Judge and the information was quashed. The learned Judge remarks that the order oi the Supreme Court was wrongly framed by the Registrar of the Supreme Court, as he thinks, by mistake; and I further thinK that the remarks of .the learned Judge on the Supreme Court order are owing to . an entire misapprehension of the effect of that order. The order appealed from must there- fore be set aside, and the case sent back for trial in due cburse on the information already filed or any other infor- mation which the Queen's Advocate may substitute for if. I may remark that it is much to be regretted that this case, which was transferred to the District Court of Colombo so far back as October i88j, nearly ten months ago, should not have been di^posed of yet. Of all cases, criminal cases are those which should be promptly decided, but in this case a criminal charge has been allowed to be pending against the accused for nearly ten months, and is not yet disposed of. The order appealed from is set aside, and the case remitted to the District Court for trial as above directed. 72 No. 3 5<5- DiAs, J- — In this case, the accused, Ekana- yekege Herat Sinho, wds committed by the Juslice of the Peace for the district of Negombo on the 19th of August 1 88 1 to be tried before the District Court of Negombo, on a charge under the Ordinance No. 6 of 18+6. On the afith of October 168', the Supreme Court made an order trans, ferring the case from the District Court of Negombo to the District Court of Colombo. On the 15th of December 1881, an information was presented by the Queen's Advocatei signed by his Deputy, Mr. Morgan ; but beJore the ibfor. mation was presented, namely on the 8th day of December, the case was called and (postponed till the 26th January 1882- On that day it was again postponed till the oth February. There were several further pOs'ponements after that till the 22nd June, when the learned Judge, after hear, ing counsel on both sides, quashed the information present- ed by the Deputy Queen's Advocate. Against this order the Queen's Advocate appeals- On the 15th of December 1881, when the information by the Deputy Queen's Advocate was first presented, 'cerlaia procet dings seem to have taken place, on certain objections to the jurisdiction of the Court taken by the learned counsel for the accused, and one of those objections was that the Ordinance No. 7 of 18/4 unly authorized the District Court to try the offence, but did not authorize it to determine it. The Ordinance did not eqactany such absurdity, and, in construing an Ordinance, Courts are bound by the rules of construction which are recognized by law. A power to try a case necessarily involves a power to determine it, else the trial would be an unprofitable waste of time. The jurist diction ol the District Court to try this case was not any jurisdiction conferred by the Ordinance of 1874, but it was a jurisdiction conferred by the order of the Supreme Court, which was an order made under the 22nd clause of the Ordinance No. 11 of i863 j and by that clause the court to which a 'cause is transferred, the District Court of Colombo in this case, is empowered to hear, try and decide the causa so transferred. The objection under the Ordinance of 1874 is therefore quite irrelevant and inapplicable. This objec- tion was favourably received by the learned Judge, who, however, took lime for further consideration. The Deputy Queen's Advocate, Mr. Ondaatje, then urged that, under the 119th section of the Ordinance No. 11 of 186 3, the proses cution would lie. Ou this point the learned Judge has n written a long judgment, in which he makes some remarks on the Ordinance No. u of 1868 and the legislation of that J eriod. On this part of the judgment, the learned Queen's Advocate, who appeared in support of this appeal, animad. verted in strong terms on the language used by the learned Judge, as rtflecling on the memory of two eminent men who at one time occupied the chief seat on this bench. The learned District Judge did not in terras refer to any persons, but criticized the legislation of 1868- if, however, his remarks were meant to apply to the two eminent persons* referred toby the learned Queen's Advocate, all that I can say is that the remarks are as undeserved as they are un- called for. With regard to Mr. Ondaatje's argument, founded on the iigth section of the Ordinance No. 11 of 18681 I cannot agree with him. The clause applicau ble to the case is the 2ind clause of the Ordinance of 1868, which empowers the Supreme Court. to transfer any cause, &c., pending in any original court. When a cause is so transferred, the court to which it is transferred has power and jurisdiction to hear and decide the same as fully and effectually to all intents and purposes as if sucU court (that is, the court to which the cause is transferred) had originally power and jurisdiction. The Supreme Court by its order of the 26th of October transferred the cause to the District Court of Colombo under the 22nd clause, and the objection to the jurisdiction is one in defiance of that order, and should not have been listened to by the District Judge ; but on this very poor objection the learned District Judge proceeded to quash the information, thereby ignoring the order of the Supreme Court, whibh gave the District Court jurisdiction. The learned counsel for the accused seems to have urged a further objection, and that is an •objection to the information itself as presented by the Queen's Advocate, apparently on the ground that, if the accused is to be tried at all, he should be tried on the infor- mation already presented to the District Court of Negombo. The learned Judge seems to have upheld this objection, though he has not very clearly stated so in his judgment. With respect to this objection, 1 may remark that, under the large powers conferred on the Queen's Advocate by the Ordinances No. 11 of 1868 aod No. 7 of 1874., the District Court is bound to try all criminal charges which it has * Sit Richard Morgan and Sit Eiwatd Creasy, 74 jurisdiction to try, and which the Queen's Advocate shall bring or prosecute before such court. In this case the Supreme Court's order gave the District Court of Colombo jurisdiction to hear, try and decide this case, and the District Judge was bound to do so on the information presented by the Queen's Advocate. The remarks in the case No. 537 on the delay which has taken place in the trial of that case are equally applicable to this case. The order appealed from is set aside, and the case remitted to the District Court to be proceeded with in due course. Order quashing indictment set aside, [The case coming on for trial on the 12th October i88j, before LiESCHiNG, ActingDistrict Judge, Oadaatje, D.Q.A., for the prosecution, Layard foe the accused, the defendant was acquitted on the ground that the injury proved — taking some bricks out of the side wall of a bridge — had nf t been shown to have rendered the bridge dangerous or irtapassa* ble, as required by sect. 11, Ord. No. 6 of 1846.] Sth and 22nd September, 1882. Present — Clarence and Dias, JJ. D. C. •» S. L. ASKRAPPA Colombo, > V. 87,185. J H. J. DE ZoYSA. Admission — Mortgage— Interim judgment for amount ad- mitted — Sale of mortgaged property to satisfy part of mart- gage debt. Plaintiff sued to recover Rs. 118 1'25 as principal and interest due upon a tnortgage bond. Defendant admitting the bond impugned it as invalid for stipulating for usurious interest, and set out several different transactions, out of which in connection with the bond he admitted Rs. 283"52 to be due to the plaintiff. Plaintiff applied by Rule Nisi to have judgment entered up in his favor for the sum admitted, which rule was discharged. Beld, that the answer did not contain such an absoliite admission 0' part of plaintiff's claim as entitled him to judgment therefor. Held also, that plaintiff could not have a mortgagee's decree declar- ing the mortgaged land specially executable, enforceable piecemeal i but, if anything, only a judgment lor a mere sum of money. 75 This was an action for the recovery of Rs. 675 as principal and Rs. 5o6'a5 as interest at the rate of thirty per cent, per annuni due upon a mortgage bond. The libel contained a prayer that the property mortgaged might be declared specially bound and executable for the satisfaction of the debt. The defendant filed a •' demurrer and answer," im- pugning the bond as entirely invalid as stipulating for an usurious rate of interest ; admitting the execution of the bond and his indebtedness thereon in the sum of Rs. 283*52. The answer further set out that the bond sued on was given in redemption of a promissory note for Rs. 580, upon which Ss. 58 had been paid, and which had been given by defen. dant to plaintiff when pressed for payment of a debt of £s. 4jo, which sum of Rs. 450 defendant averred was the only consideration received by him. Payments amounting to Rs. 320*55 in reduction of the amount due upon the mortgage were also alleged, and defendant pleaded that 12 per cent, was a reasonable remuneration for plaintiff. Plain- tiff filed replication joining issue pn the averments in the answer, and a joinder in demurrer on the legality of the bond. Plaintiff before replication filed obtained a Rule Nisi against the defendant, calling upon him to show cause why " judgment should not be entered against him for the amount admitted in his answer, pending decision on the balance of plaintiff's claim." The District Judge {Berwick) . having discharged the rule on the ground that it was wrongly framed, with liberty to, plaintifiE to apply for a fresh rule, plaintiff appealed. Grenier, for the appellant— ^he case clearly falls under the 4th Rule of Section i of the R. & 0- of ist October 1833. The Supreme Court has held in a similar case, that judgment may be entered for any admitted portion of the claim, and the disputed portion reserved for trial. Esdaile T. Albrecht (i). That was an action against a Commission Agent to recover the value of produce sold by him for plaintiff, and defendant having admitted part of the claim^ judgment was entered for the part admitted and the case set down for trial as to the balance. Layard, for the defendant, respondent — Plaintiff cannot seek to have judgment entered up for the admitted amount, (i) D. C. Colombo 68,218. Civil Minutes of S. C, I7tti December 1875. Per Stswart, A. C. J., Gayliv and DiAs, JJ. 76 without admitting the truth of the transactions out of which defendant says the debt admitted ariaes. These transactions are widely different from those alleged in the libel. In Esdaile t. Albrecht (i) there was no dispute as to the trans, actions between the parties, the only question being with respect to the sum due thereon. There is therefore here no admission on which judgment can be signed. Further, the present debt is secured by a mortgage, and the libel prays for a decree declaring the property mortgaged specially bound and executable to satisfy the judgment. Such property cannot be put up for sale to satisfy fractions of the debt, but can only be sold once for all. Palmer v. Carlisle (2). In Esdaile v. Albrecht there was no question of mortgage. Cur. adv. vuU. (12nd September). Clarence, J.— Plaintiff sues on a mortgage, purporting to secure a principal sum of Rs. 675, with interest at 30 per cent, per annum. Defendant filed an answer, which he styled an " answer and demurrer," in ■ which he admitied the mortgage to be his deed, and charged that the bond was void ab initio " by reason of its stipu- lating for usurious interest." The answer further went on to aver certain payme'nts, and concluded by admitting that if interest were reckoned at 11 per cent, defendant would, on the footing of the bond, be indebted to plaintiff for principal and interest in the sum of Rs. 283'j2. Plaintiff thereupon applied by Rule to have judgment entered up in his favor for the Rs. 283" j2, " pending decision on the balance of plaintiff's claim," and now appeals against a refusal of the learned District Judge to make that rule absolute. The meaning of plaintifi's application is sufficiently ob- vious. Plaintiff asks for a judgment for the Rs. 283-52 at once, leaving the plaintiff's claim to the balance still open, and leaving it open to the respective parties to take such steps as they may respectively be advised for the prosecuf ing or the repelling of the claim to the balance. The learn- ed District Judge without assigning any reason refused to make plaintiff's rule absolute and discharged it without costs, but with liberty to plaintiff to apply for a fresh rule- (i) D. C. Colombo 68,218. Civil Minutes of S. C, 17th December 1875. Per Stewart, A. C. J., Caylby and DiAs, JJ. (2) I Sim, & St., 423. 77 Upon the argument of this aopeal I entertained doobt whether a District Court is at liberty to enter up iudgment piecemeal in the way thus asked. A decision, however, of this court was cited by Mr. Grenier, which certainly declared that the District Court had power to make such an order ; but it seems to me unnecessary to enter at all upon that general question, because, assuming for the purposes of argument that the Coui't had power to ^nter up such par- tial judgment, the circumstances are plainly such as would not warrant any such judgment. The judgment is asked for as on the footing of an ad.« mission that Rs. 285-52 is due. There is no such admission, for defendant has demurred. The demurrer may contain no element whatever of possible success. We have nothing whatever now to do with that question ; but there being this demurrer thpre is no admission for the purpose of plain.. tiff's application- Further than this, the action is an action on a mortgage, and plaintiff asks for the usual mortgagee's decree- He plainly cannot have a mortgagee's decree declaring the mortgaged land specially executable, enforceable piecemeal. If he is to have anything now it must be a mere judgment for a sum of money. I understood from Appellant's Counsel that plaintiff would be content on his present appli> cation with a judgment for Rs- 283-52, for which the land would not be specially executable, and that plaintiff would propose to enforce such judgment by levying on the land subject to the mortgage. In my opinion inconvenience and confusion would probably ensue if any such course were taken. I think that the plaintiff's appeal fails and should be dis^ missed with costs. Plaintiff would have been better advised to press on his suit to a bearing instead of presenting this interlocutory appeal. DfAS, J. — I agree with my brother Clarence that the plaintiff's appeal should be dismissed on the ground that the answer does not contain an admission such as would entitle the plaintiff to have a judgment entered up in his favour for the amount admitted. I also think that, this being a claim founded on a mortgage bond, a partial judg.. ment such as the plaintiff claims is ca!cula1;ed to lead to> much confusion and inconvenience. Appeal dismissed. Proctor for plaintiff, P Coomara Sviamy- Proctor for defendant, D. A. Dissanayeka. nth August and ^rd October, 1882. Present — Clabencb and Dias, JJ. PiIreba V. D. C. Colombo, > TV ' J lU 'I JJiAS and others. ' /'9°°- ) £j; parte J. and C. Jate8EK.eee. Purchase in execution of land subject to mortgage Sub^ sequent purchase under the mortgagee's writ — Right of first purchaser to refund of purchase money. Plaintiff on money judgment obtained issued writ and caused the Fiscal to sell (subject to a mortgage in favor of C.) an undivided intciest in land belonging to the defendants, which was purchased by the respondentSt This sale was never confirmed by the Court. Subsequently C, having obtained a mere money judgment on his mortgage bond, caused the same property to be sold in execution and purchased it himself. Held, that under the 53rd clause of the Fiscals Ordinance, 1867, con. firmation by the Court was necessary only for those sales which had been impeached, and that if no objection to the sale were lodged within 30 days it was confirmed ipso facto. Held accordingly, that respondents were not under sectibn SS entitled to a refund of their purchase money. On the 24.th June 1879 the plaintiff obtained judgraent in this case by default, against the first two defendants per^ sonally, and against the other three defendants as represenU ing the estate of a third obligor deceased, for the sum of Rs. J 80 and further interest, due on a debt bond dated 14th October 1873. Upon writ of eX2Cution issued by plaintiff the Fiscal sold on 26th January 1880, an undivided share of land belonging to the defendants, subject to a mortgage in favor of Andris Coorey by bond dated 30th Marca 1878. The purchasers were Julius and Charles Jayesekere, for the sum of Ks. 241, which was deposited in Court on 5th February 1880. Andris Coorey brought suit No. 81,081 on 17th March i88o, and obtained a simple money judg- ment for Rs. 214.60 on his mortgage bond by dsfault, oa 79 1st June 1880. On his writ the land was re. sold and purchased by the mortgagee plaintiff. The purchasers, on 3rd August 188 r, obtained a Eule on the Fiscal to sliew cause why the purchase money should not be refunded to them. On 17th August they obiained a similar Rule on the defendants. On October 1 ith the purchasers, having given the Fiscal notice, moved that, the sale to them not having been confirmed, they should be allowed an order of payment for the fis. 241. This motion was allowed j buc on the plaintiff's appeal it was set aside and the motion was ordered to be discussed in the presence of all parties in. terested. The District Judge (O. If. C- Morgan) then made the following order, alter discussion :^ "The Fiscal and defendants do not oppose this motion. The firsS sale, when the claimants became the purchasers, has not been confirmed. I do not see how the plaintiff v. 81,309. J D. M. Ranhamy and 4 others. U^oint and several Uahility on judgment. Where a judgment decreed ihat plaintiff should recover a sum speci. fied from the defendants and out of the estate of an intestate person in their hands. Held, that under this judgment the plaintiff might recover the whole amount from either defendant. This was an action on two bonds, and judgment was duly entered against defendants by default, without a declaration 82 that the property mortgaged was specially executable for the judgment. One bond was granted by the first and second defenciants, and the other by the first defendant and the father of both defendants. The father had died intestate, and the plaintiff sued the defendants personally, and also as representatives of the deceased man's estate. By both bonds property was mortgaged. Writ issued for Rs. 1,103 and costs. The first defendant having paid bis share (Rs. 646'5o) moved the Court to have writ recalled, the sale of his share of the property seized stayed, and the judgment as against him declared satisfied. The District Judge {Lawrie) disallowed the motion in the following terms : — " I understand from the first defendant that the property now under seizure and advertized for sale on the 14th is one of the lands mortgaged in the deed to plaintiff. The judgment in this case is one to enforce that mortgage. It has not been fully satisfic v. 52,371. J N. K- A, S. DE SiLVA. Administration, necessity Jbr — Action by surviving spouse to recover moveables belonging to the community:— Minor child,, rights of. In an action by a husband to recover certain moveables that belonged' to tile community between himself and his deceased wi(e, whicil pro- perty the defendant detained, the defendant pleaded non detinet and that the plaintiS could not recorer withsut obtaining adminstration to his wife's estate ; there being also issue of the marriage. Held, reversing the decioion of the Court belovr, that plaintifC could recover the half to which he was himselt entitled, and should be allowed time to ofHain administration or to have himself appointed^ guardian ad Utem of his minor chKd, This 'was an action to recover possession of certaii^ moveable property which it was alleged the defendant unv ^ lawfully detained, and whicb the plaintiff prayed might be restored to him or broQ-gJit into court to be daly adfininis* tered and divided between himself and his infant daughter who had succeeded to her deceased mother's half of the common estate* The plafntiff arverred in his Libel that the- property in question had been removed tO' the house of the defendant (his father^in.law) on the ocfiaSloa of his (the plaintiff's) wife being taken there on account of her illness,, and that after his wffe's death, which took place shortly after, the defendant refused to give up the property. The defendant answered pleading non detinet, and raising the objection that the plaintiff could not maintain the suit without ohtainitfg letters of administration to bis wife's estate. The District Judge {Byrde) having upheld the ob- jection and entered up a judgment of non.suit, the plaintiS appealed. Grenier for the appellant. Dornhorst for the respondient. Cur. adv, vult- Clarence, J — Plaintiff's wife died in the house of defendant, who is her father. Plaintiff avers that when he brought his wife there they brought with them a quantity o£ moveable property which he avers that defendant detaiasr 84 Plaintiff claims his own half and also the half which has devolved on the minor child of the marriage. He has not obtained letters of administration nor has he been appointed guardian ad litem of the minor. The District Judge con« sidered that he ought to have obtained administration to his wife's estate before he could recover her share on the minor's account, and I am not prepared to interfere on that point; but no administration is necessary to enable plaintiff to fecover his own half. Plaintiff appeals against a nonsuit without costs. I think that plaintiff should be allowed to proceed with his claim as to his own half, and try the issue of fact disclosed by defendant's denial that the property was brought, and that he should be allowed time to procure himself constituted the representative of his wife or guar. dian ad litem of the minor. I think the judgment appealed against should be set aside, and the case sent back for further proceedings. Defendant to pay appeal costs. All other costs to be costs in the cause. DiAS, J., concurred. Set aside^ Proctor for the plaintiff, C H. B. Altendorf. Proctor for the defendant, Jmathan Silva. 3rd and i^th October, 1882. Present— Cl ARE NCE and Dias, J J. ■Q Q ^ C. E. GUZDAE & Co. 8^ <8 19; bags out of the first consignment, 6c^g out of the and, and 760 out of the 3rd. The plaintiffs claimed Rs. 5,ooo as damages for the short delivery. The answer, admitting great part of the libel, denied that none of the exceptions contained in the Bills of Lading had occurred ; that plaintiffs had fulfilled all conditions to en- title them to full delivery ; that the short delivered rice was wholly lost to plaintiffs; and that plaintiffs had sustained any damage. The defendants relied on the fact that the Bills of Lading contained, among the usual conditions, one to the following effect : " The Company to have the option oj delivering these Goods into receiving ship or landing them at Consignees' risk and expense, as per scale of charges to he seen at the Agents Offices, the Company having a lien on all, or any part of Ike 86 Goods, Against expenses incurred on the wliole shipment Jj stored in receiving ship, godown, or upon any wharf, all risks ojfire, dacoity, vermin,, or otherwise, shall be with ther merckanl ; and the usual charge shall be paid before deliveryi of the Goods." The defendants alleged that they had landed the rice on arrival into the boats of the Wharf and Warehouse Co., as they thus had a right to do j the said company having autho- rity under Ordinance No. lo of 1S76 to act as carrier's^ wharfingers and warehousemen) and to charge such reasona' ble rales for their services — not exceeding the maximam given in the said ordinance— as the directors might appoint- That the said W. and W. Company landed and warehoused the ric ■, which was ready for delivery to the plaintiffs upon their paying the Warehouse Company the said reasonable charges due under §| 8 and 15 of the said Ordinance for such landiug and storing, — tlie plaintiffs having under the Bills of Lading undertaken to pay the said charges. That the Warehouse Company, exercising their lien for charges given by § [ j, delivered to plaintiffs the proportion specified, in the libel of each consignment, and offered to make up the deliveries to 95 per cent, only detaining 5 per cent till payment bf charges, which however plaintiffs did not pay. The answer concluded by denying liability to pay any damages and praying for a dismissal of the plaintiffs' actioDi.^ The plaintiffs in reply admitted the defendants' option as to landing, but denied that it extended to the storing of the rice, and that plaintiffs had agreed to pay any charges for landing and storing, before demanding delivery; They alleged further that they had agreed to pay only reasonable landing charges, according to a scale in the defendants' Agents' office, but the Agents had no such scale; and the plaintiffs tendered the usual rates and demanded delivery immediately on landing. The replication demurred to the plea of justification in the answer, inasmuch as the ground relied upon was an underpayment, not to defendant, but to a third party, who was no party to the contract on the Bills of Lading. The rejoinder put in issue the existence or not of the scale of charges in the office, and the tender by plaintiffs of the reasonable landing charges ; and there was a joinder in demurrer. 87 The case came to trial before Mr. Berwick, District yudge, on 27ih March 1882, when Withers, instruc'ed hy Mr. A. Alvis, appeared for the plaimitfs, and Browne, in- structed by Mr. F. J. de Saram, for the defendant. Counsel agreed that the goods short delivered, to the «xtent of j per cent of the consignments, were detained by the persons employed by defendants to land them, and that such detention was justifiable until the landing charges stipulated for in the Bill of Lading should be paid, such charges being specified as bhose in a " Scale of charges to be seen at Agents' office.'' After some discussion the Court ruled that the plea (on the point of landing charges,) that there was no Scale of charges in the Agents' office, was bad, as vague and indefinite in not specifying the day and hour at which the Scale was wanting. " But assume that the date and time were given," the Court w^nt on to say— " the plea would still be bad. It might be that the plain- tififs called at the defendants' Agents' office at ^ past a p. m. on Wednesday the 5ih June, 1881, (or whatever the date and hour may be supposed) and asked to be shewn their scale of landing charges, and that he was told he could not see it just immediately because it had been sent to the next door office for a moment, but if he would be good enough to sit down and take a chair for five minutes, the scale would be sent for and shewn to him immediately : and if the defendant Company's Agents thus offered to the Plaintiffs at the said Agents' office within such a reasonable lime as that of a few minutes, and were able as well as willing so to show it to them, it would be in my opinion absurd to say that the scale of charges was ' not to be seen at the Agents' office,' and these last words indicate the only reasonable construction that can be put upon the actual words of the plaintiffs' plea (in connection with the Bill of Lading) : * Defendant Company had no scale of landing charges in their office.' In order to make tb« plea good it must negative the words in the Bill of Lading, and say that no scale of charges was to be seen at the Agents' office, and the plaintiffs should further have alleged as part of their plea that they had asked at the office to to be shewn the scale and its exhibition had either been refused or unreason. ably delayed. Then only could it be said (negativing the condition in the Bill of Lading) that no scale of charges was to be seen at the Agents' office. Although I think the plea 88 is defective 1 will, to save risk of costs in appeal, hear what evidence the plaintiffs may have to support it. The storage charges, and the alleged non-delivery of the rest of the goods besides 5 per cent on the consignments, involve different considerations." Plaintiffs' Counsel then put in certain correspondence be- tween the parties and closed his case, except on the point of damages. Defendants' Counsel called George Alston, who had held a power of Attorney from the defendants' Agents at the time the consignments arrived, and who proved that at that time there was a scale of landing charges • in the Agents' offic», copy of which scale he produced, another having been sent to plain liffs in reply to a letter of theirs. The item of 9 cents per bag the witness pointed out as the landing charges to be piid by consignees. The District Judge gave judgment on the 5th April. The questions in dispute were (i) whether the consignees are bound to pay landing charges at the rates authorised by the Wharf and Warehouse Company's Ordinances ; and (2) whether they are liable at all for storing or warehouse charges. The Warehouse Company were simply defen- dants' Agents, and plainiiffs had no contract with them, and the landing must be taken to have been by defendants- similarly, demand of charges and detention for non-payment by the Warehouse Company'must be considered demand and detention by defendants. Plaintiffs should have ascertain- ed, before refusing to pay, whether the charges demanded by the defendants' Agents, the Warehouse Company, were excessive, by demanding sight of the scale of charges and giving reasonable lime for its production. 1 he charges have not been proved to be excessive, and this failure is fatal. The Warehouse Company's charges cannot be very unreasonable, since they are sanctioned by the Legislature, but the defendant was at liberty to adopt any scale, apart from reasonableness, provided it could be ascertained at the Agents' offices. The charge, and the detention for non- payment of them, were therefore justifiable, (a) As to wharehousing charges, defendant was bound to take reason- able care of goods during detention, and is entitled to charge reasonable rates for such care. Moreover, the Bills of Lading expressly provide for such storing, and stipulate 89 for the payment of storage charges before delivery. The charges made have not been shown to be unusual. Upon these findings the plaintiffs were nonsuited with costs, and they appealed. Grenier {IPithers with hira) for the plaintiffs, appellants. Browne (VanLangenberg with him) for defendants, respondents. Our. adv. vult. 'DiA.s, J., delivered the following judgments on iptb October : DiAS) J.— [ After setting out the facts ]• The attention of both parties seems to have been confined to the construe-* tion of the clause in the Bill of Lading, on which the defence is founded. The determination of this question materially depends on a piece of evidence which is not to be found in the case. In the early part of the correspond dence between the parties on the subject, the plaintiffs de^ sired the defendants to allow them (the plaintiffs) to land the rice themselves. This they were clearly not entitled to do, as the defendants had the option of landing the rice themselves at the expense of the plaintiffs. The Bills of Lading provide that the charges of landing are to be paid according to a scale of charges to be seen at the defendants' Agents' office. Alston, who was the defendants' agent at Colombo, says that when the three ships arrived he had a scale of charges in his office, and a copy of it was sent to the plaintiffs on the 19th October i83i. The plaintiffs received this copy, and, according to their letter of the ioth October, they returned it to the defendants' Agents. This scale of charges was before Mr. Alston when he was examined as a witness. It is not among ths proceedings, and the ofiScialing District Judge, who was written to on the matter, says, " that the document was only produced, but not put in evidence, and that the witness who produced it is now out of the Island." In the absence of this piece of evidence, we must look to the plaintiffs' letter of the aoth October, in which they say that what they received was the Rules and Begulations, and Tariff of charges, of the Wharf and Warehouse Company, Limited. This evi. dently means , the Schedule Ato Ordinance No. 10 of 1876, so modified as to cover only landing charges- In this Schedule A, rice per bag is put down at. 10 cents, and where the 90 poo'ds are removed from the Wharf a reduction of lo per •cent is allowed, and the 9 cents per bag referred' to by Mr. A4ston is evidently a reduction on the Schedule of 10 per cent, so as to meet the case of simple landing. AsFuming that the defendants insisted on their right to charge under the Schedule to the Ordinance, with a reduction of 10 per cent.-I am of opinion th=it t e defendants have acted withtn their contract. The Schedule to the Ordinance is a scale of charges,-not otily for landing, but also for warehousing, goods; and where goods are not warehoused, the 10 cents per bag is reduced to 9 cents, which is all that the defon. dants claimed. They had a perfect right to do so, and aKo to retain the rice, or' as much of it las was sutBcient to cover their claims, till the whole amount was satisfied. Under these circumstances "it appears to me that the judgment of the "District Judge is righ', and that it must be -affirmed. Clarence, J-— '[ After setting out the facts.] When the rice arrived plaintiffs aSked defendants to allow them to land it in their own boats- This defendants refused, and they were entitled to refuse. 'Defendants then landed the rice in the boats of the Wharf and Warehouse Co., and rdfused to procure to plaintiffs the rice out of the^ustody df the Wharf Co., except on the payment of that Company's statutory charges- The Wharf Company delivered most of the rice, and offered to deliver-all but j par-cent, -of thetotal, but they asserted their intention to detain the 5 per cent, until the charges were paid. The sura which the Wharf Company thus claimed was 9 cents per bag, amounting 011 the whole consignment to Rs. ^j6-yQ,, Plaintiffs tendered to defendants Rs. a6j, which defendants decHned to accept- Without going through the pleadings in detail, it is soffi' cientto say that the question 'between the parties is— ■whether defendants were warranted by the Bills of Lading in refusing to deliver the whole of the rice until the Wharf Company's-charge of 9 cents per bag had been paid It is admitted that defendants have refused delivery of 5 percent of the whole consignment. By the Bills of Lading defendants were entitled to de. mand landing charges " as per scale of charges to be seen at the Agents' offices." It has been assumed that this means the Agents' offices in Colombo, the port of delivery. Plaintiffs in their replication assert that defendants " had no 91 scaleof landing. charges in .their office," and defendants in. rejoinder traverse that averment. Both. parties na dou'bt meaat to contest the question— whether there was a scale of charges to-be- seen at the ofSee of defendants' A.genCs, who are Messrs. Alstons, Scott and-Co. It appears trom the evidence of' Mr. Alston, who was callfed by defendant?, that there was a scale of charges in, Alstons.^Scott and Go's office, who produced it at the trial. The document, how. ever, seems, nut to have been (formally, put in e.vidence, and was taken away by the witness after having been inspected by the learned District Judge who tried the case. If there were any question as to the identity of this scale of charges, , we might have allowed the document, which no doubt still exists in. Messrs. Alstons, Scott and Go's office, to be now put in. There is, Jiowever, no question but that the scale so identified by Alston was a copy otthe scale contained in Schedule A- of the W-harf Company's Ordinance No. lo of 1876, and.the substantial question argued before us was— whether- this was a scale of landing charges within the meaning 'of. the Bills of Lading. Plaintiffs' counsel argued.' that the charge of 9 cents per bag on imported rice was not charged .as a " landing charge," but as " consolidated land,* iog and shipping charge" ; ,that consequently there was no scale of landing charges to- be seen at the Agents' office, within the meaning of, the Bill of Lading, and consequently that there was no obligation on plaintiffs' part to pay any specific. charges, but merely such amount as may be found reasonable, , which it is contended their tender of Rs. z6^ , was. No evidence appears to have been adduced bearing directly on the question— whether- the Rs. 265 was or was not a reasonable remuneration for landing 61408 bags of rice. The question is not — whether the 9 cents is a ch'arge which the Wharf Company are entitled to charge their own oastomers under their Ordinance, but whether it is a charge which the- present defendants are entitled to make as against the present! plaintiffs. There is no question concerning the Wharf Company's right Id detain the rice, but the plaintiffs' contention' is in substance this. They say to the defen- dants :, "You -had no scale of landing charges- at your Agents' office, and consequently we have tendered you a reasonable amount. It is nothing to- us that you have chosen, to incur a charge of 9./ cents per. bag oa the rice.. 92 That concerns you and the Wharf Company. You were bound at whatever cost to yourself to free this rice for us as soon as we tendered our Rs 265." The Schedule in which the 9 cents per bag appears puts 10 cents per bag as a charge for " receiving into boats, loading! conveying to the Company's Warehouses at the Wharf, warehousing, examining and weighing as required for Customs purposes, loading into carts> conveyiny to and warehousing in the Company's Warehouses and after deli, very from the Company's Warehouses." There then fol. lows the stipulation that " when goods are removed from the Company's premises at the Wharf by owners or con- signees, and not placed in the Company's Warehouse, a reduction of 10 per cent, will be made in the undermentioned charges." It thus appears that the 9 cents are charged for everything short of storage in the Company's Warehouse!!, or in other words for everything which may be necessary to be done in order to place the goods on the Wharf, free to be taken away by the owner. The Bills of Lading seem to contemplate the whole contingent expenditure in these transactions as divisible into landing charges and storage charges. We have no evidence before us as to what the term " landing charges" is usually understood to cover. It certainly does not seem to me unreasonable to understand it as covering all that had to be done in this- case, in order to place the goods free on the Wharf ; and in the absence of evidence to the contrary I am not prepared to rule the contrary. I observe also that there is no evidence to show that Ks. 265 was a reasonable amount. For these reasons I agree with my brother DiAS that this appeal fails, and I am of opinion that the appeal should be dismissed with costs. Appeal dismissed. Proctor for plaintiffs, A. 0- Joseph. Proctor for defendants, F. J. de Saram. 93 jfft and igth October, 1882. Present — Dias> J. P. C. ■» Mallegallege Batchy Hamy Colombo, > V. 7,874. i Tantrige Habmanis Pibbis. Non-maintenance of illegitimate child — Plea of autrefois acquit. Defendant on a charge of not maintaining his illegitimate child (in breach of subsect. 2 ot sect. 3 of the Fagrants Ordinance, 1841) pleaded autrefois acquit, showing that he had in a previous case been acquitted on a charge tendered by complainant of not maintaining the same child. Held, that though there was no special verdict on the ooint the pre- vious case must be taken to have disposed of the question ol paternity, which was of the essence of the charge. Held also, that, the non.maintenance of illegitimate children bei< g a criminal offence, the previous verdict remiered' the matter now in issue res a v. 3,477 -' Slem& Lebbb. Local Board Bye-law — Ordinance No- y oj 1876 — Power to create criminal offences by passing bye-laws for purposes not specified in the Ordinance — Ultra vires. A Local Board established under Ordinance No. 7 of 1876 had passed a Bye.la«f making it an offence for any person after the 30th June of each year to keep a doff, for which the tax levied by the Board had not been paid, within'the limits af the Board and without notice thereof to the Board. The Bye^law professed to have been made under section 35 6i the Ordinance, and was published in the Gazette as having been approved by the Governor in Executive Council. iHeld, that the byejiaw in question did not fall under any of the eighteen purposes specified in section 35; and accordingly, Beld, that the bj e.law was ultra vires of the Local Board. Plaint— That the defendant did on the lath day of August 1^82 at Gampola, within the limits of the Local Board of Health, keep a dog for which no tax had been paid, and without, notice thereof to the said Board, in breach of the jand clause of the bye-law of 22nd March 1881 made under the provisions of the Ordinance No. 7 of 1S76. The bye-law referred to was published in the Government , notwithstanding its approval by the Gover- nor. Secondly. The dog is not proved to belong to the defendant. The old enactment relied upon by the Magis' trate only renders presumptive owners of dogs liable for da mages done by them, and is altogether inapplicable to the facts of the present case. I'he respondent did not appear on the appeal- Car, adv, vult. (19th October). DiAs, J — This is a charge under a bye^law of the Local Board of Health at G^rapola, of the a2nd March 1881, for keepiug a dog for which no tax had been paid, and without notice to the said Local Board. The bye law referred to is to be found in the Government Gazette ot ajth March 188 1, and bears date the 2and of that month. It purports to be a bye-law made under the 35th sec,tion of the Ordinance No. 7 of 1875. On referring to that section I find no authority in it to the Local Board to make a bye- law such as the one in question. That section authorises the Local Board to make bye-laws for eighteen specified (i) 2 S. C. C, 163. 97 purposes, one of which is for the desi ruction of dogs. Tlie bye. law iti <}uestion makes it a criminal offence to ktep a dog witt.in the town under certain circumstances. The Ordinance gives no power to the Local Board to create offences. It only empowers them to make bye-laws iu certain specified cast>s, and the breach of any such bye-law is made an offence by the 79th clause of the Ordinance. In making the bye-law in question the Local Board has acted ultra vires, and the confirmation of it by the Governor does not make it any more legal. The verdict, and sentence are set aside and the defendant is acquitted.* Set aside. Defendant acquitted- ^tli and igth October, 1882. Present — DiASi J. L'h of Mags. \ Kandy, [ 17,820. J . Bench of Mags. ^ J. T. Francke v. Meya Lebbe and another. Bye-law, Municipal, dea ling with s ime subject matter as earlier Ordinance — Ordinan e No. i^ of 1862 — Bye law under Ordinance A'o. 17 of 1865. Where an Ordinance of 1862 made it an offence punishable willi a fine of Rs. 50 10 obstruct certain officers in the execution of their duty in connection with the abatement of nuisances, and a bye-law made by a Municipal Council under an Ordinaiice of 1865 entitled its officers to the protection accorded by the Ordinance of i86j to the frist-mentioned officers, and made resistance to them in the exercise of their duty punishable with a fine of Rs. 10; Held, that a charge of resisting an inspector appointed by the Munici. 4>al Council, while in the exercise of his duty, was rightly laid under the Ordinance of 1862. The defendants were charged with resisting the com- plainant, a Municipal Inspector, while in the execution of his duty as such, in breach of section 16 of Ordinance * The same judgment was passed in the following cases of the same Court, m which the charges were identically the same though aijainst other pailies; viz. Nos. 3478, 3479, 3485, 3486, 1489. In Nos. 3479 and 3489 the defendants had pleaded guilty, but as it ap, eared probable that this plea had been pleaded in consequence of the convictions obtained in the other cases, the Appellate Court con- sidered It just to entertain the appeals in these two cases on the same fooling as the others. 98 No. J j of 1862. The facts sufficiently appear from the following judgment of the Court below {J. B. Siehel and F. FanLangenberg, Magistrates) delivered on 31st August 1882. " In this case complainant called his witnesses on the agth July and closed his case, and the defendants were not ready with their evidence. A postponement was allowed, on their special application, to enable them to call their wit' nesses on another day. " Oq the loth August instant, however, although witnesses were present, the defendants declined to call any evidence, their counsel contenting himself by raising certain objections to the plaint, which he contended was bad. These objec« tions we have noted, and the points raised were discussed with much skill and ability by learned counsel on both sides. It was contended for the defendants that the charge should have been laid under the municipal bye-law, sections 18 and 2 2, chapter 20, of 9th September 1875, ""^ "<>' under the i6th clause of the Nuisances Ordinance, No. r jof 1862, because the subsequent bye-law overruled the provi^ sions of the Ordinance 1 j of. iBi'a, and also bpcause they were inconsistent with each other, the bye law fixing Rs. 10 and the i6ih clause of the Nuisances Ordinance, fixing Rs. 50 as penalty for the breach thereof. " There seems apparently, at first sight, much force in the argument ; but on careful consideration of the provisions of the bye-law referred to and of the i6th clause of the Nuisances Ordinance, we find that the supposed inconsis* tency does not really exist. The Nuisances Ordinance, No. ij of 1 852, was enacted. by the Legislative Council of this island, was assented to by the Governor, and received the sanction of Her Majesty, and it is reasonable to suppose that the said Ordinance is still in force and must be regard* ed as law until specially repealed by the legislature. " The Municipal Councils Ordinance 1865 empowers IMunicipal Councils to make bye.laws as they may deem expedient for any of the purposes of the Ordinance, and when such bye-laws are inaae and approved of by the Governor and the Executive Council they undoubtedly be« • come law, and every one is required, by proclamation in the Gazelle, to take notice thereof accordingly j but the mere fact of the approval of such bye-laws being proclaimed ia the Gazette, though at a date subsequent to the enactment of any Ordinance bearing on the same subjecti has not, we 99 think, the effecc ui revoking such ordinance or statute. Indeed it is extremely doubtful whether a bye.Iaw, which is only a subsidiary or municipality.made law, can in any way supersede an ordinance which has not been specially repealed by a legislative enactment. The clause under which the present charge is laid being in our opinion still in force, we think that the complainant, who is a Municipal Inspector, is legally entitled to claim protection under it against a party who has molested him in the discharge oE his duties, for bye-law chapter lo, section i, specially pro« vides " that the several ciHcers appointed to be Municipal Inspectors shall have all the powers and protection in the discharge of their duties which are by the Nuisances Ordi' nance, 1862, accorded to Officers of the Board of Health." So it is clear that the complainant, who was on duty at the public market on the day in question, having been molested in the performance of his duties, was right in prosecuting his charge against the defendants under the Ordinance of 186a, and in claiming protection under the 16th clause thereof. In fact, we think that the complainant could elect to proceed either under the bye-law or under the Odinance. " We notice also that, although the wording of the i6th clause of the said ordinance and of the bye-law referred to is substantially the same, the penalty in the one case is a sum not exceeding Rs. 50, and in the other a sum not exceeding Rs. 10. No inconsistency, however, results from this circumstance alone, inasmuch as the measure of punish, ment is a matter for the Court's discretion, and should be considered by us only after determining the question of fact as to whether the defendants are guilty of the charge pre- ferred against them or not. " "We have been also referred by the learned Counsel for the defendants to a passage in Baron Puffendorf's work on the " Law of Nature and Nations," and to other authorities : but we think it unnecessary to refer to them at any length, because, for the reasons already given, we hold that tha plaint is good, and we shall now proceed to consider the question of fact. " The evidence adduced by the complainant in support of bis charge appears to us to be not only satisfactory but trustworthy, and we hold it proved that the complainant was. in the execution of his duty, that is to say, whilst proceed- ing to examine fish in the defendants' stall, obstructed and 100 molested by the defendants, and we must find them there- fore severally guilty of the charge. "It would appear that the 2nd defendant (who is a partner of the first) prevented the complainant from making the necessary examination of the fish, and that the noise and uproar caused by him at the time brought the ist defen- dant to the scene, and that the latter then piaed the 2nd defendant in preventing the complainant from seizing and removing the fish and otherwise obstructed him in the discharge of his duties. " The cross-examination of the complaiciant's witnesses by the defendants' counsel suggested the idea that the com- plainant made the seizure because tbe defendants had refused to let him purchase some fish on credit. The evidence before us, however, clearly establishes that such was not the case. " The accused are severally found guilty and are adjudged to pay a fine of ten rupees each." Defendants appealed. No Counsel appeared for the appellants. VanLangenlerg, for the complainant rcspo ndent, was not called upon. Cur. adv, vud. (19th October). Dias, J. — Affirmed. 26th October and 1st November, 1882. Present — Dias, J. p J, A Bastian Peris on°Too°' \ "^^^ Colombo Club by its Secretary F. Hors- Club — Right of Secretary to represent in Court- PlaintiS sued tor wages for work and laboar done for the defendant, a Club, and served summons upon the Club's Secretary. Held, that the Colombo Club was not authorised to sue or be sued by any corporate name, and that plaintiS's right of action, if any, was against the individual persons who had contracted the debt. 101 The plaintiff sued the defendant for Rs. pS.fs, for work and labour done, and materials provided for the defendant by the plaintiff as a carperner, as per account particulars liled. Horsford filed answer, admitting receipt of sum- mons, and denying that he had authority to represent the defendant in the case. On the day of trial the plaintiff swore he had done the work for Horsford, and that his account was correct. The Commissioner (j?. E. SmarCi held, " that service of the summons on the Secretary of a Club is good service, inasmuch as the Secretary is the reco-g- nised agent of the committee," and gave judgment for plaintiff. In appeal by the defendant,. Layard for the appellant. Brito for the respondent. Cur. adv: vult. (ist November). Dias, J. — This action is altogether misconceived. The defendant is described as " The (Jolom,- bo Club by its Secretary F. Horsford." A summons was served on Mr Horsford. and, though not bound to take any notice of it, he appeared and pleaded that he did not repre- sent the Colombo Club. The Commissioner gave judg- ment for the plaintiff, but against whom, the record does show. The so-called Colombo Club is not a person known to the law. If a body of gentlemen chose to represent themselves as the Colombo Club and contracted a debt to plaintiff, he was bound to sue them as defendants in the case, i am not aware of any law which authorises the Colombo Club to sue or be sued by any corporate name. Set aside and plaintiff non-suited with costs. Set aside. Proctor for the plaintiff, H J. C. Pereira.^ Proctor for the defendant, F. L- Daniel. 102 iSth Ocloler and isi November, s8Si. Present — Dias, J. p. C. 1 0. G. Beii. imbula, > V. 6,530. J DiLLO. Ordinance No. ti of i86j, sect. 1 1 — " Quitting service." Oh a charge under § 1 1 of the Labour Ordinance of quitting serviee- without notice or reasonable cause, the evidence shoned that defendant was complainant's cook, having also to work in the bungalow, and that one ivening, after prepariaif the inner, he went av»ay without leave (leaving his bixes behind) and returned the next morning. Held, that these facts did not amount to a quitting of complainant's service within the meaning of the Ordinance. The plaint charged the defendant with quitting the cora^ plaiiiant's service before expiry of his term of service, without reasonable cause, and without £;iving due notice,, he, the defendant, biding a monthly paid servant of the com' plainant. The evidence showed that defendant was a cook (having also to work in the bungalow) and one eveniag, after pre- paring the dinner, he went away from complainant's house (leaving his boxes behind) and returned the next morning, when he was informed his services were not further requir. ed. The Magistrate (y. A Bell} convicted the defendant and sentenced hmi to imprisonmcsnt for one nxoiith at hard labor. Defendant appealed. VanLangenberg, for the appellant— Before a servant caa be convicted ot desertion ihere must be proof of an inten. tion to desert. A mere temporary absence will not amount in law to desertion. The intention in this case to return was evidenced by the servant having left his personal goods behind. Gur. adv. vult. (ist November). Dias, J. — This is a charge under the Servants Ordinance of desertion. The defendant, it appears, is a cook of the complainant, and there is no evidence that as such it was his duty to stay at the bungalow at night. He left at 9 p.m. of the 20th September, and returned tbe following morning. Besides> the evidence does not show 103 any iatetition on the part oP the deftndant to quit the complainant's service. Set aside and the defendant ac- qaitted. Set aside. 26th October and 1st November, 1882. Present — Dias. J. D. C. Cr. \ Kadirawail lurunegala, S v. 2,036. J Kader Meedin. Theft — Animus furandi — Debt due to dejendant. Defendant was charged with the theft of certain jewels and a sum of Rs. 17. The evidence showed that the property had been taken (roin the "lead body of a woman who at the time of her death wiS defeii. dam's deutor on a promissory note. Defendant had also taken the jewels in the presence of neighbours, to whom he had declared that he took them as security till his deLt should be paid. Held, that this evidence disclosed an absence of the animus fur andi, a.nd that defendant was entitled to be acquiued on the cuatge of theft. The defendant was indicted lor stealing certain articles of jewelry and a sum of Rs, 17 in cash. I'he property was laid in the son of a woman named Eliemail, from whose body, almost immediately after her death, the articles and money were removed by the defendant. The District Judge {Sharpe) who tried the case convicted the defendant in the tulluwing judgment. " The mother of the compIaiQant in this case died rather unexpectedly, although she had been ill for some time, betore daybreak on ihe morning of the 3rd April last, at Balalle, in the house wiiich ihey two occupied ; and the accused hearing the cries of the complainant, an intelligent, boy of thirteen, went up to the house, and hearing of the woman's death entered the room where the body lay and proceeded at once to rifle the corpse of all the ornaments which the poor woman had on her person, and of the sum of rupees seventeen which had been tied up in a handkerchief wrapped round her. The complainant and neighbours (who, had also come up) seeing this remonstrated with accused ; who de- clared that he took the property in order to secure a debt which he asserted was due him by the deceased Eliemail. The fay-standera discussed the question whether accused was 104 justified in doing so, but seem to have felt precluded from interfering to prevent accused walking off to his house wth the property, which he proceeded to do. It has been in- geniously contended for the accused that this outrage, how- ever revolting and unwarrantable, did not amount to theft, inasmuch as it was perpetrated under a supposed sense of right on accused's part, and of the necessity to secure him' self in a rcnote locality : and evidence of a debt due by the deceased on a Promissory Note was put in at tHe trial. But the facts proved would in my judgment amount to robbery even under English Law, for by the doctrine of relatioQi the false statement made by the accused before the Justice of the Peace when he resolved to hark back and deny the entry of 5fee house and removal of the property, and trust to shaking or impugning at the trial the evidence which might be adduced, amounted to conversion. Fortunately, owing to the fact of Mr- Flinch, the Provincial Assistant of tbe P. W. D., happening next day to be at Balalle, and taking trouble to hold an informal enquiry, and to the evidence of the Rest House Keeper at the trial being very satisfactory, this design was Iru^trated. Under the more scientific and similar definiiion of " furtum" in the Civil Law which is stated as " the taking of moveable property without the knowledge and against the will of the owner with the view to benefit ourselves or other?," the accused is, I think, plainly guiliy. I brush away the technical cobwebs regard- ing ownership, and hold the property in the house to have at once vested in complainant on the death of the mother; tor Omma prcesumuniur contra spoliatonm. The accused is theretore convicted, but I shall take into account ia sentencing him the fact that he behaved subsequently with kindness in helping the boy to have the body of his mother decently interred. The accused is sentenced to tie impri. soned at hard labor for four months." 1 he defendant appealed. Grenier, for the appellant— The fact that a debt was due to the defendant by the woman has been abundantly prov- ed, and the evidence on this point has very properly not been discredited. The witnesses for the prosecution have established that the taking of the articles was done openly and in their presence, and the defendant's intention was disclosd by his statement, made at the time, that hs took 105 \he articles as security for his deb^. The learned Judge has altogether misapplied both the legal maxim and the legal fiction cited ty him. The question of ownership is not touched by the presumption which he refers to, and which cannot in any sense support the title of the complainant. That title must be proved independently of mere presump- tions. As to the defend^mt's subsequent denial before the Jufitrce of the Peace, if such denial had stood altine, and it was shewn to be false, the defendant's theftuous intention might possibly have been presumed, but here any such pre- sumption would be completely rebutted by the positive proof as to the animus oi the defendant. His conduct no doubt was most indecent and improper, judged by our standard of propriety, but he cannot be convicted of theft. Besides, a great deal of hearsay evidence was improperly admitted at the trial, notably that of Mr. Ffinch, to whom allusion is made in the judgment. Dumbleton, Acting D. Q- A-, for the respondent — The Judge no doubt has not expressly discredited the evidence as to the debt, but that evidence is most unsatisfactory. In the absence of any proof that there were other heirs of the woman, ihe property was rightly laid in her son. No claim to It has been made by third parties. It is more than probable that the defendant's oiginal statement, on which Counsel for appellant relied, was made when or after he was detected in the act of spoliation. His after-denial to the Justice of the Peace negatives the alleged innocence of his act and supports an animus furandi. Cur. adv. vult, DiAS, J. — There can be no doubt that the accused took the gold ornaments from the person of the woman, after her death— but all the evidence goes to prove that he took them under a mis'aken belief that he had a right to take Ihera till the debt due to him from the deceased was paid and satisfied. All that can be said is that the defendant committed a very heartless act of iraproprie'y, but that is not sufficient to convict him on this information. The evidence seems to me to negative any presumption that the defendant look the articles animo furandi. This being soj the defendant is eutitled to be acquitted. Set aside. Defendant acquitted. 106 26th October and "jth November, t882. Present— Clarence and Dias, JJ. D. C. ") Emily Barrie Kandy, > v. 88,44j. J Allah Pitche. Mortgage, hypothecation and part assignment of to mort- gagee's creditor— Suit to enforce such mortgage againit third party in possession <^ property mortgaged — Proof of debt dm by party assigning. S., the owner of Grotto Estate, morteaged it in 187S to W. to secure a debt and future advances. In 1876 W. by deed acknowledged a debt due to plaintiff, and as security hypothecated to plaintiS W.'s mortgage on Grotto, giving plaintiff a Power of Attorney to sue on W.'s moit- page to recover such part of S 's debt to W. as would cover W.'s debtto plaintiff. In 1878 S. sold Grotto to A. who re-sold to defendant Plain- tiff having in 1880 obtained judgment against W. and S. on the bond of 1876 declaring S.'s debt to W. executable ^0 lanto in satisfaction of that judgment, and declaring also the property mortgaged by S. to W. so executable, sought to sell Grotto in execution, and brought the present suit to set aside defendant's objection to such sale. Htld, that plaintiff's judgment against W. and S. did not bind the defendant, and that before she could seek to enforce S.'s mortgage to W., she was bound to establish as against the defendant-that a debt was owing to her from W. ; and this she bad neither averrel nor proved ; and that plaintiff was therefore not entitled to the relief prayed against defendant. The following judgment by Lazi'n'e, D.J. . explains the facts of the case : " Mr. Shipton was owner of Grotto Estate. It is said that he mortgaged it to Mr. MacLagan for Rs. 8,000, but as that deed has not been produced I do not know whether the debt was secured over Grotto only or over other Estates also. Afterwards, when Mr. Shipton had contracted a large debt to Messrs. Wall, he granted to them a mortgage No. 1776, dated jth and 17th November i8;_5, over several Estates including Grotto. The amount of the mortgage debt is said to have been Bs. 107,500. The Estates which Mr. Shipton mortgaged were probably not worth that large sum, but they were I presume worth at least Rs- 20,ooO) for in January 1876 Messrs. Wall, in consideration of a payment of Bs- 20,000, assigned to Mrs. Barrie their ia- terest to that extent in the mortgage bond by Mr. Shiptoo to them. That deed was registered as an incumbrance over Grotto, The evidence before me is meagre, but 1 think I 107 understood that Messrs. Wall had possession of Grotto and the other estates mortgaged to them by Mr. Shipton, and that ia 1878 they were anxious to be relieved of the trouble and expense of managing and cultivating these, and resolved to sell them for what they would fetch. Mr. Shipton had practically no interest in these ; they were burdened above their value. After some negotiations^ Abdulla was found to be willing to pay Rs. 3>ooo for Grotto. That sum is said by Mr. Wall to have been the full value of the Estate, and in consideration of payment of that Mr. Shipton signed a traasfer to Abdulla, in which he declared that the land was free from any incumbrance. How he could say that I cannot imagine, for at that time the Estate was burdened with the mortgage of Rs. 107,003, which has not yet been paid. The debt of Mr. MacLagan is said to have been paid o£f about that time. I do not know whether the discharge is registered. The register, however, still records that Mr. Shipton had mortgaged Grotto for Rs. 107,000 to Messrs. George Wall & Co., and that Messrs. George Wall & Co. had assigned or mortgaged their interest in that mortgage for Rs. 20,000 to Mrs. Barrie. If Abdulla trusted to the statement in the transfer to him, and thought that in consideration of payment of the full value he was buying an unburdened Estate, what he did buy — at least all that Mr. Shipton cou'd transfer to him, was the proprietary rights in an Estate already burdened above its value to Messrs. George Wall & Co. Mr. Wall seemed to think that the secondary mortgage to his firm and the assignment of that to Mrs. Barrie became null and void ipso Jacto by the sale to Abdalla for Rs. 3>030. If, he urges, the full price was much less than the amount of the primary mortgage to Mr. MacLagan, what was there left for the second mortgagee ? It is, however, forgotten that the second mortgage was not discharged, that it remained in the register, and that the secondary mortgagees, though they negotiated the sale to Abdulla, did not bind themselves in any way and did not waive any of their rights. So far aa appears from the proof, nothing was said by Messrs. Wall and Co. to the purchaser Abdulla, which would bar the firm realizing their mortgage over Grotto. Mr. Shipton express^ ]y guaranteed that there was no burden on it,, but he had no power to affect the rights of Messrs. Wall. But what> ever part Messrs. Wall took in this, and however they may in equity be barred from insisting on the mortgage over the 108 land sold to Abdulla, it does not appear that that &rni had any power to diminish Mrs. Barrie's rights; the firm had got Rs. 'zorooo from that lady and had given her an assign- inent of a mortgage over certain lands. She was entitled to trust that they, at least, would do nothing which could lessen her rights, and I am of opinion that Messrs. Wall had no power to affect Mrs. Barrie's interestp, and that in fact they did not affect them. Mrs. Barrie's rights as mort. gagee over Grotto I hold remained and still remain iatacf, and no sale by Mr. Shipton, even though consented to by Messrs. Wall^ could affect Mrs. Barrie's rights as appearing on the face of the record. The counsel for the defendant urged that Mrs. Barrie has no title to sue } he maintained that she should first have constituted her debt against Messrs. George Wall, or rather against the assignee in Messrs. Wall's insolvency, that she sbodd then have seized and sold and purchased Messrs. Wall's interest in the bond to them by Mr. Shipton ; that having purchased it,, sha should have sued Mr. Shipton and sold his rights . in Grotto Estate and have called the present owner to shew cause ■why the land, should not be sold under the mortgage. I do not know that I q,uite apprehend the objections to the course which Mrs. Barrie did take. She sued Messrs. George Wall and Mr. Shipton in one action in Colombo.and obtained judgment against them, and- now she seeks to realize the mortgage against the present owner. I think she has a title to sue, that it would be waste of time to insist on her doing more than she has d«ne. The present owner, the defendant, is to be pitied, for I think he has been deceived, and that he will lose the money be paid trusting to Messrs. George Wall and Co., bat I cannot regret the judgment I now give, for it seems to me to be of the highest importance that the rule should be rigidly enforced, that a registered mortgage is a good and subsist* ing burden on land until it be discharged or until the land be sold in an action to which the parties interested in that mortgage were made parties. I am for giving judgment for the plaintiff with costs. No damages." Defendant appealed. Grenier for the appellant. Browne for the plaintiff, respondent. Cur, adv. vulU ' 109 (yth November). Clarence, J. —The substantial facts in this case are these : — In 1875 Dr. Shipton mortgaged {inter alia) " Grotto" Estate to George Wall & Co. to secure a debt and future advances. In January 18^6, by » deed of that date > George Wail & Co. acknowledged a debt of Rs. 20,coo as due by them to preset. t plaintiff, and as security therefor hypothecated to her their own mortgage on "Grotto." This deed of January 1S7.6 contained a Power of Attorney which purported to empower plaintiff to sue on George Wall & Co.'s mortgage ; not however for the whole mortgage debt due to them but for Rs. 20,000 only. In 1B78 Dr. Shipton sold ' Grotto"* to one AbduUa who afterwards resoM to present defendant. It appears by a Dote of the learned District Judge to have been admitted at the trial that a primary mortgage on " Grotto" prior to George Wall & Co.'s mortgage was paid out of Abdulla's purchase money, but on this appeal nothing tarns on that. In January 1880 present plaintiff brought ac'ion on her hypothecatory deed, that of January 1876, against the part' ners in the firm of George Wall & Co., the assignees under their insolveacy,, and Dr. Shipton. In. that action she obtained a decree which included a judgment against Georgs- Wall & Co. for Rs. ao.ooa, interest and costs, a declaration that Dr. Shipton's debt to them was pro tanto execuiaole in satisfaction of that judgment, and a direction to the Fiscat' to levy on {inter alia) '' Grotto." There was atso a decla- ration that " Grotto" and other estates were specially execu^ table for the mortgage debt due on Shipton's mortgage to George Wall & Co., but that debt was not ascertained in the decree. Plaintiff under that decree seized " Grotto." Defendant opposed the sale,, and plaintiff now prays for a decree that "Grotto" is liable to be sold under the decree in the former action. Defendant appeals against a decree in terms oLthat prayer.. Plaintiff's decree in her suit against George Wall & Co- and their assignees in Insolvency and Dr. Shipton is not binding on present defendant, bhe has the ri-ght by virtue of her hypothecatory deed and the judgment on it to attach the mortgage de.bt due by Dr. Shipton to George Wall & Co , whatever may be iis amount. But as far as she may seek by virttie of her power of attaching or otherwise to enforce George Wall & Co.'s mortgage against defendant, she has to establish against defendant that a debt is owing to her by 11© George Wall & Co, and that she nekher averred nor proved. And in fact her suit against present defendant is framed simply on the footing of a prayer to enforce as against the land in his possession a decree to which he is neither party nor privy. Under these circumstances it seems to me that plaintiff has not entitled herself to the relief prayed for by her and decreed to her by the District Oourt^ and in my opinion defendant should be absolved from the instance with costs in both courtSi DiAS, J , concurred. Set aside: Defendant alsohed from the instance. Proctnr for the plaintiff, F. FanLangenierg. Proctor for the defendant, M. C- bidde Lebbe. S^st October and "jth November, 1882- Present — Clarencb and Dias, JJ. Bench of Mags, -j A. Bawa Kandy, > v. 1 7,87 j). J A. M. AsHMORE and G. H. VanHotttsn. yttdge —Power to order removal of proctor appearing in cause— Bond -Jide beEeJ that Court's business- was iiwig obstructei.. A Commissioner oE Requests has clearly power to turn out of Court any one who obstructs or disturbs the business of the Court, eien though such person be an Advocate or Proctor act'ially engaged in the pending case. It is also within the jurisdiction of the Commissioner, as a matter of course, to determine whether or not any person to whom his attention may be directed is so obstructing or disturbing the business as to render it expedient that such person be removed from the Court. And if the Commissioner have decided that point in the affirmative and acted accordingly, he is protected against action, civil or criminal, [ unless he have acted with malice ], and the correctness of his opinion on the facts cannot be reviewed by another tribunal in any separate action founded on such act. The facts of this case fufBciently appeair from the judg' ment of the Bench of Magistrates (consisting of Messrs. J. B. SiEBEL and F. VanLangenberg) delivered on ifith Ill September 1882, and that of the Appellate Court. The judgment of the Court below was as follows : This case was tried by us on the 3 ist August last, but we were obliged to defer judgment as the first defendant wish- ed us to refer to the Court of Requests case No. 19,8a,,* which was at the time before the Appellate Court. The Record was forwai'ded to us by the Commissioner only on the 8th instant, on its receipt by him from the Supreme Court. The circumstances under which this Court enlertained the plaiQt and ordered summons to issue against the defen. dants will appear on reference to the statement made by complainant on the ijthjuly last, and which was duly recorded by us in the minutes of the proceedings. The two defendants (the first of whom is the Police Magistrate and Commissioner of the Court of Requests of Kandy, and the second an Inspector of Police) are charged in this action by the complainant, who is a Proctor of the Supreme Court, with assault and false imprisonment : and we shall here briefly state a few of the facts and circum- stances connected with this charge as deposed to by the complainant's witnesses. It would appear that complainant, who is practising in the Courts here, was retained by the defendaat in case No. 19,820 of the Court of Requests. The case was fixed for hearing on the 12th of July, and when parties' names were called in due course, Mr. Bawa, the complainant, ap- peared and applied to the Commissioner (the ist defendant) to be allowed to amend the answer in the case, which had been unskilfully drawn by a petition-drawer and filed by the defendant in person, and which answer the complainant thought should be amended by the defendant claiming title to the premises, which formed the subject of dispute. The complainant's application to amend was ultimately refused by the 1st defendant, but, before any order was definitively made, it appears that a discussion took place between the complainant and the ist defendant which led to the com. plainant's removal from Court. It would further appear that while the complainant was addressing the Court in support of his motion for the amend- ment the ist defendant motioned to the complainant twice, * For a note of ttiis case, see Appendix D. 112 by waving his hand, to sit dow.n, of which the complainant took no heed. The ist defendant then directed the cora. iplainant to sit down. He replied that he would do so, if the defendant thought he had urged everything that could have been urged by him in support of his application. After making this remark the complainant continued addressing the Court, when the ist defendant ordered the and defen- dant to torn the complainant out of Court, wbicn order was at once carried into execution by the and defendant. The facts above detailed are proved, and, we believe, un- 4Jisputed in the ist defendant's statement of defence; and we are now called upon to determine how far the defendants are criminally responsible-, it they are responsible at all, for t'heir acts. The question raised, we are happy to think for the first time in the annals of our Court?, is one of great importance, involving, as it does, the mutual rights and privileges o^ Judges of Inferior Courts and members of the bar, and ia whichever way we may decide this question, we hope that the ums-'uccessful party would, by an appeal to the Supreme Court, obtain an aulhoritative decision on the point. If a Proctor, upon instructions from his client and in the exercise of his d.scretion, thinks it necessary to amend a pleading, whether filed by him or his client in person, has that proctor a right afterwards to appear before the judge and make an application for the amendment of such plead- ing ? We think that his right to do so is undoubted, and that the judge is bound to hear and determine the application when so made. We hold therefore that the complainant's application, made in the case above referred to, on the- lath July last, was a proper and a legitimate one, calculated to make the true issue clearer than it was, althou,'h the ist defendant has characterized it as " extraordinary." Not only was the application disallowed, without, so far as can be gathered from the cross-examination of the witnesses and the state- ments in defence, the complainant being fully heard in support of his motion, but the complainant's efforts to be heard in support of the amendment resulted, as we said before, iti his forcible removal from Court. The com- plainant, it must be borne in mind, was then in his profes- sional capacity retained to defend the cause of his client, and, under these circumstances, was the ist defendant justi- 113 fied in ordering the 2nd defendant to turn the complainant out of Court, and was the 2nd defendant justified in carry- ing this order into effect, and in so doing was he justified in resorting to force ? We have no hesitation whatever in saying that the ist defendant acted in a most arbitrary manner in giving the order, especially in view of the fact, supported by the defence, that there was nothing disrespectful to complainant's tone or manner. He clearly exceeded his powers and functions as a judge, and his conduct seems to us to have been altogether unwarranted and unjustifiable, and the case against bim is rendered more serious by the aggravating circumstance that he persisted in his illegal order even after the complainant offered to sit down. It is in evidence that, when the complainant was in the act of taking his seat, the and defendant laid hold of him by his arm aaAJordbly removed him out of Court, and there detained him, and he was not allowed to return to the Court except to take his hat and papers, which were then lying on the table. By the removal of the complainant from Court, and his detention outside, he was not only subjected to very great humiliation, but his client was deprived of his assistance and the benefit of his professional services, for we find that the case was proceeded with later, in the absence of the complainant. It is very much to be regretted that the ist defendant, one of the principal magistrates in this important province, should have so far forgotten his position and the considera^ tion due to a Proctor holding the license of the Supreme Court to practise his profession in any Court in the Island> as to have treated the complainant in the manner in which the ist defendant did. Such high.handed and arbitrary proceedings are much to be deprecated, for they are calcu- lated not only to disturb the cordial relations between the Bench aod the Bar, but also to affect the calm and impartial consideration of cases brought before the Court for adjudi- cation, and, thereby, the administration of justice in this colony. Judges have unquestionably certain powers conferred on them, and, amongst others, powers for preserving order and decorum in their Courts, but such powers must be exercised with calmness and moderation, and then only will the law protect thera, when acting in their judicial capacity. In 11^ 'Ifke manner, practitioners aa well as suitors "have certain rights and privileges which cannot be set at nought by judges or magistrates. Certainly, no judge would be justL 'fied in resorting to unnecessary force or violence even in the assertion of well-founded rights, and in this case, we consider that unnecessary force was used by the second xlefendant, for we have it in evideiJCe, first that the coqu plainant's conduct and manner did not 'justiiy his removal, Sbcond that he offered to sit down before he was touched, and third that he was forcibly removed. If such acts as the ■first defendant has been proved to be guilty of are allowed to pass unnoticed and unpunished) no member of the pro- »fession will feel that he can with any sense of safety do hia duty fearlessly and honestly, and suitors will thus bave their interests sacrificed to a dread on the part of those who coD'- duct their cases of their being publicly degraded. While saying this much we do not forget that practitioners and suitors are also undoubtedly liable to be proceeded against criminally and punished as for contempt, in the event of their abusing the rights and privileges allowed to them by law. As remarked -by our late Chief Justice, Sir John ■Phear, in a case reported in the Supreme Court Circular, '" Contempt is a criminal offence," and the definition of it ■is as follows : — " It is committed when any one does, says or exhibits any acts, words, or behaviour in disrespect of the authority of the court, buch as have the effect or are calculated to have the eSect,Jksi, of preventing or distarb. ine; the orderly course and seemly conduct of the public business of the Court, or, secondly, of obstructing, hindering or preventing the impartial aciioa of the Ctxurt in the ad- ministration of Justice." (i) But we find none of these elements present in this case to constitute or warrant a charge of contempt, and, besides, it is not pretended that the complainant had acted in an improper manner, or that his conduct was in any degree contemptuous of the Court or in any way in disrespect of the Court's authority. We find also that the County Courts Act, g and lo Vic toria, c 95, s. 113, gives the judge power to commit persons for any insults wilfully offered to him or his o£Scers^ or for any wilful interruption of the proceedings of the Court or any other mis-behaviour in Court : but in the present case the witnesses all speak to the correct and respectful beha< ([) Sera Mudaly v, Ismail, i S. C. C, 6z. us Tioar of the eomplainant towards the ist defendant. Ih. deedi it the complainant had behaved improperly, the first defendant had the power to deal with him as for a contempt of Courtror to report him lo the Supreme Court ; but, in- the absence of any charge of the kindv we consider that the order of the ist defendant to the and defendant to remove the eomplainant out of Court was ultra vires, and the forcible removal of the complainant by and defendant from Court and his subsequent detention outside was illegal,, and that these acts of the defendants go to const ilute the assault aod false imprisonment chacged against them ia the plaint. We were- referred by the ist defendant to District Court Kalutara case,,No. 34,6ii,.(i) as an authority in favor of, his contention that he was justified in the steps taken by, him against the complaiuant. We do not think that this ease helps the contention of the ist defendant at all, for the defence therein urged by the defendant (the folice Magis" trate of Faoadure) was that the plaintiff in that case miscon' ducted himself, disturbed the defendant in the discharge of his duties and was guilty t>i a contempt of Court. In this . case,.howe^ter> the evidence is all the other way, and) to use the words of the witness Mr. Jonklaas, "the complainant was in no^ way disrespectfuli either in language, lonei.or. manner." We therefore hold that the charge against the defendants - has been satisfactorily established, aad, although the ist defendant^ in his defence, . took upon himself the whole responsibility of the acts complained of, this does not, jn our opinioa, absolve the anddefendant from his criminal liabi.^ lity,,for no person, far less a police officer, is bound to carry out an illegali order. We therefore find the defendants severally guilty, of the charges preferred against them, and we think that the justice of the case will be met by adjudg- ing the first defendant to pay a fine of- Rs. ao, and and defendant te pay a fine of/Rs. j. At the ctoseef the case for the prosecution, the defendants - had made the following statements-: The first defendant stated that he wished to take upon himself the entire responsibility of the acts complained of. That th& and defendant (the Couft Inspector) simply obe>ed (i) For a report of this case see Appendix C. 116 the ist defendant's orders and was in no way to blame. That he (ist defendant) rested his defence on the evidence of Mr. Jonklaas, whose statements were correct as to what had transpired in Court on the occasion in question, and that he also conceded that the complainant was in no way disres. pectful towards him. That as the complainant did not take his seat after he had been asked to do so a third time, he (ist defendant) was justified in having him removed out of Court. He also referred the Court to D. C. Kalutara No. 34,611 as supporting his contention that he was not liable criminally, and pointed out that no malice was proved against him. The first defendant also wished the Court to refer to C. R- Kandy No. 19,820, which had given rise to these proceedings. The second defendant said that he was justified in carryu out the orders of ist defendant, who was his superior and also a Justice of the Peace. Defendants appealed. Withers, for the defendants — I contend that, First, the Bench of Magistrates had no jurisdiction to entertain the present charge 5 secondly, that even if it had that jurisdic- tion, the plaint is defective, and discloses no offence in the sense to be mentioned hereafter, when read with the evi- dence. I do not controvert the facts, and so will not read the whole evidence. [Clarence, J — It is unfortunate that the question has taken a criminal form, as the defendants might otherwise have given evidence on oath]. The jadg. ment finds (i) that the act complained of was done in the exercise of judicial functions, sedente curia, and (z) that the act was arbitrary and ultra vires. [Reads evidence of witness jonklaas ] The argument I found on this evi" dence is that the act, whether indiscreet or not, was done ia the execution of judicial duty, and therefore the Bench of Alagistrates was incompetent to try the case. [Clarence, J.— Why incompetent ? Any person may charge a judge ^ith assault. Maclachlan's Case (i) is an authority. He was better advised and brought a civil action-] I say they may have tried, but should have acquitted- [ Clabence, J. — That is a question on the merits— justification, not want of jurisdiction-] A Court cannot review the act of another (i) L. R., I Ex. D„ 376. 117 ■Court -of the same degree of jurisdiction. YoeU- ad Pand,., iii. I. 5a. The Court here called upon the respondent, on the merits- Grenisr, for the complainant — The plea of not guilty shews the defendants did not rely on any want of jurisdiction. -{Clabenob, J. — We think that the -question is whether the ist defendant thoQght he was acting within his power when he committed the assault charged. Whether he had reason, able grounds for believing it, we think it unnecessary to ■consider] On the contrary, if the defendant acted beyond his jurisdiction upon a mistake of law, he is clearly liable, 'Upon the authorities — it may be otherwise on a mistake of iact. The power of exclusion is no doubt necessary, and if londjide esercised will not render the judge liable. Here there was no reason for thinking public business was being obstructed. If one of your Lordships should shy an ink- stand at an Advocate here, it would clearly be ultra vires. £Ci.&.B£iiCG, J. — Bes ipsa loquitur^ So here, too, Ordinance No. II of 1868, § 85, gives every proctor a right to appear and be heard in Court, and § ao of Ordinance No. 9 of 1859 permits any party in the Court of Requests to move to amend at any stage. The complainant was therefore acting entirely within the scope of his privilege. A proctor doing the work of Counsel is allowed the same privileges. Mackay v. Ford (1). See remarks of Pollock, C. B. If therefore the Com- missioner made an error in law and so gave the illegal order, he is liable. The one question is, Had defendant reasonable ground for thinking the complainant was disturbing the work 0/ the Court ? tiow ^onklaas swears that he did not understand the motion of complainant to amend the answer to have been disallowed, and complainant therefore had a right to go on speaking. Remarks of Tentebdbn, C J., in Garnelt v. ferrand (a). " Even inferior justices, and those not of record, cannot be called in question for an «rror in judgment, so long as they act within the bounds of their jurisdiction Corruption is quite another matter j so also are neglect of duty and misconduct in it. For them, I trust, there is, and always will be, some due course of punishment by public prosecution.'' Can it be said here the defendant acted within his jurisdiction ? The com.- plainant also offered to sit down, when the defendant first (i) 29 L. J. Ex. 404. I (2) 6 B. & C, 611. 118 gave the order to turn him out. If there had been a row in Court, and the wrong person turned out, there would be reasonable ground fop mistake. [Clarence, J. — I thought myself, when the appeal in the civil case came before me, that the motion to amend was unnecessary.] To resume : Where a County Court Judge issued a- process which he had no light to issue, under a mistake of law, he was held^ liable Houlden- v. Smith (i). Here the defendant was fully aware of the facts, and mistake could oijly have been of law. (See also Calder v. Balket, 3 Moore P.C., a8). If this law be aceepted^I see no way of applying it to the facts- that will excuse the defendants. It would be dangerous to give to petty Magistrates the power arbitrarily to eject from their courts duly qualifiedpractitioners acting in the e:iercise of their lawful powers. Ifithers, asked by the Court to furnish iany authorities he had on the question of iurisdiction, mentioned R. v,. Borron, (2) and Thomas- v. Chirton, (3) citing Rex v. Skint ner, (4) where a coroner was not held liable on indictment who told a Jury, " you have not done your duty ; you have disobeyed my commands : you are a seditious, scandalousi. corrupt and perjured jury." Lord Mansfield there said,. "Neither party,, witness, counsel, jury, or judge^ can be put to answer, civilly or criminally, for words spoken in office." Kemp V- Neville; (5> was- the leading case oa^ the civil side of the question. Cur. adv. vulti (7th November}v Cbarbncb,. J.— This is a criminal prosecution for assault. 'I'he defendants are— first defen^ dant, a gentleman filling the judicial oiSce of Coitimissioaer of Requests, and second defendant,, an officer of Police who acted under his- instructions. Complainant is a Proctor practising in the Court of which first defendant is judge, and the act with which the complainant charges the defendants and seeks to have them criminally punished^ is the removill of the complainant from the Court by the second defendant,, at the bidding of the first defendant, at a time when com- plainant was actually engaged before first defendant in conducting a client's defence. (1) 14 a. B., 841- I (2) 3 B. & aid., 432. I (3) 2 B. & S., 475- (4) Lofft SS- 56. I (5) ioC.B„N. S., S23J 3rL.J.C,P. 158, 119 This being a criminal prosecuticm, the only plea npon to "the defendants is the general plea of " not guilty," and they are debarred from appearing as witnesses in their own behalf. It is unlortunats that this ^hould be so, the princi' pal defendant being a judge whose defence may be that he directed the act complained of pursuant to some judicial ruling of his own on matters within his jurisdiciion. A complainant, however, has the right to prosecute for assault either civilly or criminally. But if doubts arise from the evidence that the judicial officer thus made defendant to a criminal charge is thereby hampered in his defence, the defendant should have the benefit. It seems that on the lath July complainant appeared in 'the Court of Requests of which first defendant was jud..'e, as Proctor for the defence, it) an action which then came on for trial. Complaiaant, as Proctor for the defence, applied to be allowed to amend in a particular manner the answer which some petition-drawer had drawn for his client. The Commissioner-, however, appears to have considered the application, which was opposed by the other side, as one which ought certainly not to be allowed : he seems to have thought that the new matter which complainant wished to introduce by the aid of hi^ amendment was matter in. consistent with the answer as it stood : and on complainant's pressing the application, the Commissioner refused to hear him further on the poin', and at length ordered his remova' from the Court, which is the act complained of. The civil case in question afterwards came before me upon an appeal by the defendant in the case against a judgment ia favour of the plainiiff ; and in appeal I s^et aside that judgment, and sent the case back for further evidence, it appearing to me that the pomt upon which the defendant by his Proctor had desired to adduce evidence, and to which the proposed amendment was directed, was already open upon the defendant's plea of the general issue. So far, therefore, from complainant's application to amend being improper on the score of inconsistency, it was in fact un> necessary, the defence aimed at being already open- To remove a Proctor from the Court while actually en. gaged in conducing his client's cause was a measure of extreme harshness, just ifiable only on the supposition that the Proctor was misconducting himself to the extent of obstructing or disturbing the business. It appears to be conceded that complainant did not behave disrespectfully. 120' otherwise than by not sitting d'own when desired to do soi- Upon perusing thd materials recorded in the present case, including the statement made by the first defendant before the M,agistrates, I am by no means prepared to say that the circumstances warranted the first defendant in taking the extremely harsh measure of turning out of Court a Proctor actually engaged in conducting a client's defence. The complainant seems, under a mistaken view of the effect of his client's plea, to have applied to amend. The Commis. sioner, under an equally mistaken view, seems to have con- s dered the ap[!ilication improper,, and to have acted hotly and hastily in taking the step now complained of. But these considerations do not dispose of the matter. The defence appears to be, that the Commissioner had the' complainant turned out of Court because he considered him' to be obstructing or disturbing the business of the Court, That is how I understand the statement which the first defendant is recorded as having Oiade to the Magistrates ;: and if this matter is obscured by reason of the Commis. ' sioner being criminally instead of civilly prosecuted,. he is' entitled to the benefit of the doubt so arising. I think that a Commissioner ot Requests has clearly power to turn out of Court any one who obstructs or disturbs the business of the Court, even though such person be an Advocate or Proctor actually engaged in the pending case, it is also within the jurisdiction of the Commissioner, as a matter of course, to determine whether or not any person to whoIU' his attention may be directed is so obstructing or disiarb- ing the business as to render it expedient that such person' be removed from the Court. And if the Commissioner shall have decided that point in the affirmative and acted accordingly, he is protected against action, civil or criminal, and the correctness of his opinion on the facts cannot be- reviewed by ano'her tribunal in any separate action founded on such act. Now, in the present case, it appears that the Commissioner, the first defendant, considered that the beha- viour of the complainant in not at once sitting down was such an obstruction or disturbance of the Court business as rendered it expedient that complainant be removed from the Court. So far as I understand what took place, I am far from being prepared to say that I can take the same view, but the Commissioner having (no doubt honafde, though perhaps hastily) taken that view and acted upon it, it is not, as I conceive, competent for another tribunal investigating 121 the present charge to go behind that determination of his. I think, therefore, that the first defendant, and the second defendant who acted under his orders, are entitled to be acquitted on this charge of assault. DiAS, J. — I am of the same opinion, and I concur with my brother Clakence as to ihe rule applicable to the case before us. That rule appears to me to be that a judicial officer, aciing within his jurisdiction and exercisiag his dis' cretion, is not liable to be sued either civilly or criminally for any injury inflicted upon another, whatever mistake he may have committed. This rule is recognised in all the cases which were ciied at the Bar. The facts of this case are these. The first defendant was sitting as the Com- missioner of the Court of Requests. A case was called on, and the complainant, who was a Proctor entitled to appear and practise beiore the Court, appeared before the first de- fendant, the Commissioner, and moved to amend his client's answer. The Co-nmis=ioner thought that the proposed ameaduient was inconsistent with the answer already filed. In this opinion he might have been wrong, but what is material for the present inquiry is, that the Commissioner, though he did not make an express order to that efifect, gave the complainant to understand that his motion would be disallowed. After this intimation the complainant persist, ed in urging his motion for an amendment, and the Com^ missioaer thought, rightly or wrongly, that the complainant was disturbing the proceedings of the Court. The Com- missioner then waved his hand, which the complainant says he thought was an intimation to hira to sit down. Then followed the order by the first to the second defendant to remove the complainant out of Court. I agree with my learned brother that the first defendant's conduct in the matter was hasty and, I may add, very undignified j but I am of opinion that he acted within his jurisdiction as a judicial officer sitting in his Court as a judge, and that it is not competent to any other tribunal to review his acts and determiae whether or not he exercised a sound discre* tiun. The verdict and sentence must, therefore, be set aside and the defendants acquitted. Set aside. Defendants acquitted. D. C. -J V. Don Mathbs Matarai > v. 31,034. J K. Punchy Hamy 122 i.oth June and' nth July, 1882. Present — Clarence and Dias, JJ. D. C. ■» V. Don Mathbs and 3 others. Title to land — Donm- conveying without title, but subse- quently acquiring title— I oluntary convCfance. S., being owner of one half ^(us one-fifth of a certain land, conveyed the whole land by way of gift to plaintiff, his son-in.law, on z5th January 1872. S. acquired title to the remainder soon afterwards/ Plaintiff now alleged an ouster from possession by defendants, the widow and certain children of S. Held, that plaintiii was entitled to judgment for whatever S. owned at the date of his conveyance to plaintiff, but that, that conveyance being a merely voluntary one, the title subsequently acquired by S. did not pass to plaintiff thereunder. It appearing that S. was by arrangement allowed to possess the sub- ject matter of the gift until his death. Held, that fourth defendant, who was a lessee for an unexpired terra under S., was entitled to be absolved from the instance, plaintiff having left it in the power of S. to deal with the property. The facts sufficiently appear from the judgment of the Court. VanLangenlerg, for the plaintiff appellant, referred to Voet, ad Pand., 39. 5. 10. Seneviratne for the defendants, respondents. Cur, adv- vult- (nth July). The Judgment of the Court was now delivered by Clarence, J — Plaintiff, a son-in.law of one Siman deceased, claims certain land by virtue of a deed of gift dated January ajth, 1872, and sues ihe Vfidow and certain children of Siman, averring that they have ousted him. The defendants deny the conveyance by Siman. It appears that at the date of the conveyance Siman had title only to a certain fractional share, but he appears to have acquired the remainder very soon afterwards. The Notary having been called to prove Siman's execution of the deed, the deed seems to have been admitted in evidence without objection. The fact appears to be, that Siman did execute the conveyance, but that he was permitted to remain in possession as long as he lived. It is admitted by defendants 123 that before his death he and his wife executed a deed of gift in favor of their children, not includins; the land now in question, by which plaintiff got no benefit. The whole evidence is not very clear, but the inference which I draw from it is, that Siman executed the deed by way of gift to plaintiff, and by arrangement was allowed to remain in possession till his death. There has been no time for plain^ tiff's title under his conveyance to be defeated by prescrip' tion, in any view of the nature of the occupancy of Siman and defendants. Under these circumstances we think that plaintiff is at any rate entitled to judgment for his half plus one-fifth, which Siman possessed at the date of his convey- ance to plaintiff. But the conveyance being merely a voluntary one, we are disposed to think that Siraan's sub^ sequently acquired title cannot be availed of by plaintiff, and that plaintiff must take the subject matter of the gift as it stood at the date of his conveyance. The 4th defendant is a lessee, who took a lease for 10 months from Siman, shortly before Siman's death. We think that he is entitled to be absolved with costs, plaintiff having so far as appears allowed Siman to deal with the property. Set aside. Proctor for the plaintiff, C. H B- Altendorf. Proctors for the defendants, Jonathan Silva ; J. B. D. Keuneman. D- C. \ Yegappa Che: Kandy, > v- 87, ;o6.J C. LiESCHiNG. i^th September and i^th November, i88a. Present — Clarence and Dias, JJ. D- C. 1 Yegappa Chetty Kandy, 87,506. Fiscal— Ord- No. 4 of 1867, sect- ^i — Parate execution— " Fortfumth" — Applicability where the property sold is not the execution debtor's, but is surrendered by a friend of his. Plaintiff, as execution creditor in a previous suit, issued his writ, but his debtor having no property, S., a friend of the debtor's, surrendered his own property in execution of the judgment. The defendant, as Fiscal, sold, the right, title and interest of the execution debtor in that property. The purchaser having failed to pay part of the purchase amount, the defendant, 9 months afterwards, resold the property, and 124 ,j months attec the resale applied for and obtained parate execution aLinst the first purchaser and his surety to recover the difference bftween the amounts realised at the two sales, upon which levy a very small sum only was recovered. Plaintiff now brought action to recover the difference between the amount of his writ and the amount recovered, which difference he had lost by the negligence of the defendant in not reselling and not issuing patate execution, promptly. Held that parate execution was a proceeding instituted for the benefit of the execution creditor, and that, the application for parate exeoution having certainly not been made - forthwith," a required by sect. 51 of theliseaU 0»-diffla«ce, 1867, plaintiff would have been eivtitled to a verJict ; but Held, that the procedure provided by the Ordinance applied only to sales of the execution debtoi's interest in property, which was a'mitted ly njJin this case ; and that on this ground the decree of the court below dismissing plaintiff's action and ordering defendant to pay the costs ought to be affirmed. The facts of this case sufficiently appear from the judg. inent of the Court. Grenier for plaintiff, appellant. Layard for defendant, appellant. Car. adv. vult. (November 14th). Ci,*RBvcErJ. — This is an action against a Fiscal. The facts are these : — Plaintiff on the 5th June 1875^ obtained a judgment (No. §0,393 District Coort Kandy) against one Velle Palle and one Vytilingam PuUe, for Rs. 701. 25, and certain interest and costs. Plaintiff sued out writ of execution, which was placed in the haiids of defendant's Deputy for execution. The execution debtors did not pay or surrender any prnperty, but one Supremanien, who seems to have been a friend of theirs, came forward and offered to surrender some property of his. Supremanien, on the a5ih June 187 9, addressed 3 letter to the Deputy Fiscal in these terms : — '' 1 hereby surrender and authorise you to sequester and advertise for sale in satisfaction of the writ No. 80,393 District Coarl;. Eandy, the following property belonging tO' me as per title deeds herewith forwarded, namely," — and then followed a description of a piece of land at Pannola, within the juris* diction of the Deputy to whom the letter was addressed. Vytilingam PuUe handed this letter to the Deputy Fiscal with a letter addressed by himself to the Deputy Fiscal, in which he said : — "In satisfaction of the writ in No. 8o,39>3 D. C. Kandy, I beg to surrender the property appearing in the annexed letter, which I shall thank you to sequester 125 and advertise for sale " Thereupon the Fiscal on the -sStb Ociober 1879 purponed to put, up for sale " the right and' title of the deed of conveyance dated I'Skh April i -iyp, in favour of Supremanien Chetty of an allotment of laud No. 4, ■233 of five acres and twenty^fiive perches in extent, '•ituate at Pannola in Oyapalata." The Gondii ions of Sale were in the usual form, and contained this paragraph: — "Purcha- sers must distinctly understand that only the right., title and' interest are sold of the person or persons agninst whom the •writ of execation is issued, to wit Muna Palani Welle Pulle and Muna Wytilingam PbIIp." One Kandasamy was de- clared the purchaser at the price of Rs. 750, and Kanda* eamy, and one Raraen Chetty as his security, signed the memoranda printed at the foot of the Conditions of Sale. Kandasamy made a part payraent of one.fourth of the Rs. 750, but failed to pay the balance, which under the Conditions of Sale was due in two months. On the 26th July J 880 the Deputy Fiscal purported to reusell under the same description and similar Conditions of Sale, when Supremanien himself was declared the purchaser at the price of Rs. 31. In August 1.81 Parate Execution was issued against the original purchaser and his surely, when ic appears ihat neither the purchaser nor any property of his ■were found, and the only levy made realised but Ks. [4. Plaintiff now complains that the Fiscal was guiliy of negligence in not re-selliiig before July 1880, and again iti not issuing Parate Execution before August 1881 j and plaintiff claims as damages the difference between the amount for which bis writ issued and the amount realised. Defendant in answer to plaintiff's libel demurs,, charging that the foregoing facts disclose no cau'se of action. The learned District Judge seems to have- thought that the Ff'cat having twice purported to sell, ha) where the offence was comiiiilled in January 1844, the defendant was committed for trial in December 184.4, and *^he indictment was not preferred until more than twelve months from the date of the offencp, but less than twelve months from the date of the committal, Pollock, C B., ts reported to have held the committal as fiirnishing a date for the commencement of the prosecution, and so the prosecution was held to have been commenced in time. If we are to consider the prose' cution as havin? commenced with the committal in the present case, it was not commenced in time, for the defen- dant was not committed for trial until September last, over three years after the comraisson of the offence. The Ensflish cases are collected fn Russ'lt on Crimes and in Archbold. After examinina; those cases I do not regard them as laying down any rule that the committal furnishes the earliest date. I rather regard the Judges as having decided that at any rate when the committal took place within the prescribed period the prosecution was then on foot. We must bear in mind that, according to the English procedure, the writ* ten warrant of commitment for trial might be the first docu* roent in which the accusation was embodied, and conse- quently the earliest available documentary evidence. 16 might for instance be that the offender was arrested in. flagrante delicto, and carried before Justices who proceeded to receive the testimony of the captors, and thereupon committed the prisoner for trial. R- v. Hull, (a) is perhaps an authority to the effect that the mere issuing of process against the defendant is not to be regarded as commencing the prosecution. It is not, however, necessary on this appeal to consider how that may be, because in the present case the defendant appeared and evidence was taken, long before the expiry of the two years. And in my opinion, where under our procedure an information is sworn, the person charged appears to the information, and an investi- gation is made by the Justice of the Peace, culminating in a committal on some charge identical with, or fairly com- prised in the original charge, it is at any rate reasonable to consider the prosecution as on foo', as having commenced, from the time when the aeciased person appeared before the Justice of the Peace to answer the original charge. If the (1) I C. & K,6ji. I (2) 2 F. &F., 16. 135 technical charge on which the defendant is committed for trial is one which cannot be said to be included in the original information, then it may very well be that the prosecution on the charge set out in the committal cannot be dated earlier than the committal. In the case before me I find that the original information charged the appellant with unlawfully and without license felling trees growing in the crown forest land in (juestioH. It is true that the information did not specify the kinds of trees felled, so as to afford any means of knowledge whether the trees felled were of the kinds scheduled in the Ordinance. Moreover, the information did not specify the date of the felling. £ut no objection whatever was made on defendant's part upon either of those grounds- The evidence adduced supplied those particulars, anj after that defendant, claiming that the land was his own land, obtained the adjournment of the proceedings against him until the question of title should have been decided in the civil suit. Under these circumstance!', as the charge on which the defendant was committed, and the charge on which the defendant has been indicted are not dehors the accusation embodied in the original information, I hold that lihe prose" cution in which defendant has been convicted was com- menced when he appeared to the Summons, and conse- quently that the prosecution is one commenced in time. The ground on which the conviction has been impeached thus, in my opinion, fails. The other pomt urged concerns the sentence only. There is reason to believe that when the defendant cleared this land he believed it to be his own. He purchased in 1878 from one Lewis, and the District Court in the civil suit upheld Lewis' claim of title. Afterwards the Supreme Court in appeal adjudged that the land was Crown land; Moreover, it appears that in the civil action the Crown recovered damages from the defendant. TJnder these cir. curastances I think that the fine imposed on defendant ought not to be more than, a nominal one. I reduce the fine to Bs. lo. Affirmed- 136 2lth and 3.8th November, 1882 and 261/1 jfamary, 1883. Present— De Wbt, A. C J., Clabence and Dias,JJ. Crown Case Reserved. and Session, ■» The Queen Kandy, | v. No. 47. J BUYB Appu. Evidence — Oath or offirmalion — Child of tender years, admissibility of the evidence of, after simple warning to speak the truth — Evidence improperly admitted. Upon a charge of rape, the prosecutrix M., a M\a of between g and 10 years of age, gave her evidence wiiliuut being sworn or afFirmed, but after having been simply warned to speals the truth, and having promised so to do. The prisoner having been convicted. Held, upon a case reserved, that a child, like every other witness, must be sworn or affirmed before its evidence can be received, and that therefore M.'s evidence had been improperly received. Hdd also (per (. labence and Dias, JJ ,\di'senlienle De Wit, A.C.J.) that, this evidence having gone to the jurj, the conviction could not be sustained, although there might be other evidence in the case sufficient to support a verdict. This was a case reserved by De Wet, A.. C J., from the August Criminal Session of the Supreme Court at Kandy for 1882. The prisoner was tried on a charge of Rape comroiited upon a girl named Malluthami. Malluthami, a girl of about ten yea s of age, was called as a witness, and not appearing to the presiding judge to understand the obligaiion of an oath, was allowed to give her evidence after being warned to speak the tru h. The prisoner having been convicted, on Eaton who appeared for the prisoner moving in arrest of judgmentj the following Case was reserved : Malluthami, first witness. It appearing to the Court that this witi ness did not understand the nature of an oath, she was duly cautioned to speak the truth, and also was told the consequences of not doing so, and, promising to speak the truth, deposed as follows :— . The question to determine is whether her evidence is admissible; and even supposing that the Court would rule that I was wron;; in admitting the evidence, whether there was ijot sufficient evidence aliunde to justify the jury in bringing in a verdict of guilty. The effect of the evidence called at the trial was as fol- lows : There were no eyewitnesses of the crime. Malluthami 137 iierself deposed that she had been called into his house by the defendant and then ravished. The other evidence call- ed proved that Malluthami had blood on her clothes and that blood had been found in defendant's house at a spot pointed out by Malluthami. The medical evidence was to the effect that the girl had been recently violated, but that no corresponding indications were found on the prisoner's person ; and that a severe fall might have caused the injuries to Malluthami. Seneviratne (assigned by the Court to represent the pri* soner) — The Affirmations Ordinance, No. 3 of 1842, makes no provision for the reception of the unsworn testimony of children. The Ordinance No. 3 of 1846 introduces the English Law of evidence for the time being into this Island. The English rule is, In jfudicio non creditur nisi juratis- Best, Evidence, § 154, 5th Ed. p 220. Even an infant is not admitted to give evidence except upon oath. R. v. Powell (i). So all the Judges held in Brasier's Case (2) that the evidence of a girl even under 7 years of age was admissible, but only on oath, if she was found on strict examination to comprehend the dane;er and impiety of false- hood. [The Chief Justice — I think the affirmation in the Ordinance is in lieu of an oath, and can only be ad- ministered where an oath would be admissible if the wit' iie<:s had no conscientious objection to take one. I thought it not right to prostitute an oath, as understood by the Ordinance, by administering it to a girl who understood nothing of its obligation, and therefore warned her to tell exactly what had happened. She gave her evidence, and the Jury convicted the prisoner, upon which Eaton, who appeared for the defence, moved in arrest of Judgment. ] The English Act, 3a and 33 Vict, c. 68, s. 4, provides that if a witness " shall be objected to as incompetent to take an oath, such person shall, if the presiding judge is satisfied that the taking of an oath would have no binding effect on his conscience, make the following promise and declaration : I solemnly promise and declare that the evUence given by me to the Court shall be the truth, the whole truth, and nothing but the truth." Taylor, Evidence, § 1382. [The Chief (1)1 Leach, Cr. Ca., 110. — (2) 1 Leach, Cr. Ca., 199, 138 JtrsTiCB — The leading case on the point is 22. v. fio/wes Brazier's-- Case (2), it has been settled law that a child, like every other witness, must testify on oath ; and as the Legislature- now permits affirmation to be substituted' in certain cases for the oath, I am of opinion that the testimony of a child- is admissible only if the child has been sworn or affirmed. Consequently^the child in the present case not having been either sworn or affirmed, I think that her testimony was inadmissible. Without the testimony of the child I do not think that the conviction ought tabe sustained. But apart from that, no sentence, in my opinion, ought to pass upon the con- viction. In thipr as in other matters not ac utUy detailed in our Administration of justice Ordinance, concerning Trial by Jury, we ough',. in my opinion, to administer Trial by Jury upon the principles by which Trial by Jury is governed in England, the country whence we dbrive it. And whatever uncertainty there may have been in past times, when procedure with regard to matters of evidence was (i) Reported in- a note to R. v. Ball, R. % R., I3'2» (2) I Leach, Cr. Ca., 199. U2 less settled than now, as to the course to be pursued when rna erial haa been improperly admitted as evidence,. I un- derstand the rule now acted upon to-be that stated by Mr. Jus ice Stephen in the passage cited by Mr. Seneviafatne, viz : — " If in a criminal case evidence is improperly rejected c- admitted^ there is no remedy, unless the prisoner is con. victed, and unless the judge in his discretion states a case for the Court for Crown Cases- Reserved : but if that Court is of opinion that any evidence was improperly aidmitted or rejected, it must set aside the conviction." I think, therefore, that the conviction in this case ought to be set aside, and the prisoner disehargedi DiAS) ]. — On the first point, whether the girl' could have been examined without oath or affirmation, I agree with the rest of the Court, but on the second point, I take the same view as ray brother Clarengb. and for the following reasons. Trial of Crrminal cases by a judge and- jury was imported into this country from £ngland, and since its introduction we have always followed the course pursued in English Criminal Courts in such cases ; and one of the fundaiDental rules of the system is, that the jurors are the sole judges of the facts, from whose judgment there is no appeal. On the oiher hand, all questions of law and prac. tice which may arise in the course of the trial are to be decided by the presiding Judge, whose decision thereon is conclusively binding on the jury. But in certain cases power is given to the presiding Judge to reserve for the consideration of the Collective Court any matter of law or practice about which he may entertain doubts. In this- case the jury found the prisoner guilty, and I do not think we are in a position to know what their verdict would hav« been if the girl's evidence was withdrawn from considera^ tion, and if we exclude the girl's evidence and lake upoi* ourselves to decide the question of fact upon the remaining evidence, we shall, I think, be taking upon ourselves the function of the jury. For these reasons I agree with my brother Clarence that the conviction should be quashed and the accused dis- charged. Conviction set aside. 143 i']t'h Nmember, 1S82. 5'resent— De Wet, A. C. J., Clarence and Dias, JJ. Crown Case Reserved, and Session ■» The Queen BaduUa, y v. No. I. J Kathiriachchige Hbndrick and another. Coin Ordinance, No. j 0/1857, sects. la and 15—Con- ■viction under both sections— Sentence. The first count of an indictment charged the prisoner, in the words o{ section 12 of the Coin Ordinance, 1857, with uttering 6 counterfeit •coins. The second count charged him, also in the words of that section, with uttering 6 counterfeit coins while having 28 other such •coins in his possession. The third count, in the words of section r.^, charged a possession of 28 such counterfeit coins with intent to utier. The jury having convicted the prisoner on all three counts, and the Court having sentenced him to imprisonment at hard labor for two years as for the conviction -under the second couqt : Held, upon a case reserved, that the offences charged by the first and third counts were included in that charged by the second count, and that no further sentence should pass as for the conviction upon the first and third counts. This was a Case Reserved by De Wet, A, C. ]., presid- ing at the second Criminal Session of the Supreme Court at Badnlla for 1882. The prisoners weie tried on the 6th October on charges under the Ooire Ordinance, 1857. The first Count of the indictment charged both prisoners with uttering 6 counterfeit rupee coins, " against the form of the Ordinance" &c., in terms of the first part of section 12. The second count charged the first prisoner with uttering 6 counterfeit rupee coins while having 28 other such coins in his possession, " against the form" &c. The third count charged the first prisoner with having in his possession, with intent to utter, a8 such counterfeit coins, " against the form" &c., in terms of section 13. The maximum punish- ment prescribed for the offence charged in the first count is imprisonmeat at hard labor for one year, and for each of the other offences charged imprisonment for two years at hard labor. The jury found the first prisoner Hendrick guilty on all three counts, and the second prisoner guilty on the first count. The Acting Chief Justice then sentenced the prisoner Hendrick to two years' imprisonment at hard labor as upon the second count, and the second prisoner to imprisonmeat for one year at hard labor, reserving the Ui v. Lr. A. J The Queen's Advocate. Croun, liability 0/ under rating enactment — Police Ordi' nance, 1865, sect. ^^— Objections to assessment — Ordinance j of 1867, sect. I — Roman Dutch Law — Vectigalia. Section i of Ordinance 5 nf 1867 covers exactly the same subject, matter as sect. 49 of the Police Ordinance, 1865, and a little more, inasmuch as it provides for an appeal. The provisions of section i of the Ordinance of 1867 must be regarded as substituted for the provi- sions of the Ordinance of 1865, and as impliedly repealing them. By Proclamation of the Governor in Kxecutive Council, dated 4th December 1869, under section 34 of the Police Ordinance, the percentage on the assessed annual value, leviable on the buildings in the town of Pussellawa, as tax for the maintenance of Police, was fixed at j per cent. From 187 1 to i88i certain Government buildings in that town, occupied by the Public Works Department, were assessed for, and paid, the tax like private buildings. In the assessment of annual values of the buiidmgs for the year 1881, under section 37, the Government buildings were rot assessed ; and the Governor by Proclamation of 10th June 1881 fixed the percentage lexiableat 7J per cent. H , whose estate of Rothschild had been assessed for tbe tax, and on whom a. notice had been served under section 40 computing the tax at 75 per cent, on the assessed annual value, objected before the Court of (1) 1 M. C. C, 413. I (2) 2M. & Rob.,,219. 145 licquests to paying the }^ per cent., and contended that the increase iriiva 5 per cent, was owing to the omission from the assessment oE tlie above P. W. D. buildings, which were liable to be so assessed under the Police Ordinance. The Court below having ordered a new assess- ment to be made including the Government buildings, Held, Ihat H. had in effect required the Court below to alter the percentage Rxed by the Governoi'^i Proclamation, which it clearly had no power to do, no appeal being given from the determination em- b)died in the Proclamation. Upon the questi >n whether the Crown was bound by section 34 of the Police Ordina'tce, 1865 : Held, that if the Crown's prerogative had not been divested by statute, the mere fact of the Crown having waived it for 10 years did not stand in the way of its now being asserted. Held also (following Ex parte the Postmaster General, re Bonham, L. R., 10 Ch. D., 595) that the fact that section 33 expressly bound the Crown did not necessarily render the Crown liable under section 34. Held, thaLt there was not in the Oidinance 'expression of a clear in- tention that the Crown was to be bound, and that the law must there, fore be considered not to have been changed by the Ordinance. This was an inquiry under § 49 of Ord. No. 16 of 1865, into the. nonjassessinent of certain Governmenl, buildings in the town of Pussellawa for Police purposes under this Ordinance, whereby the tax payable by other and private buildings in the town had been increased from 5 to 7I per cent, on the assessed annual value. The Governor in CoQncil, by Procla nation of 4th December 1869, defined the limits of the town of Pussellawa and fixed the lax leviable at 5 per cent, on the annual value. By subsequent Proclamation dated 2nd February 1871 the limits of the town were extended so as to include the Government build, ings now in question- By another Proclamation, of loth June J88r, the percentage was raised from 5 to 7| per cent. This increase was owing in part to the exemption of certain Government buildings occupied by the Public Works Department. The present objections were raised by Mr. C- ff. Horsjall, in respect of Eothschild Estate, the properfy of the Ceylon Company, Limited, the buildings on this estate having been assessed. At the hearing below, the Crown was represented by J'anderwall, proctor, and the Objector appeared in person and gave evidence on oath. The Commissioner {J. If', Gibson) ruled as follows : — first, with regard to the Crown's argument, that under § i of Ordinance 5 of i857 the objection could only be to the assessment and not to the percentage fixed' under § 34 of Ordinance 16 of i85j j the Court held that the present ob.. 146 jcction was to the assessment for omitting to tax certain buildings. The 34'h section rendered liable " all houses and buildings of every description to an amount equal to such percentage of the bona Jide annual value" as the Qo\^ ernor should appoint ; excepting only "buildings appropri- ated to religious worship, and such as are placed in charge of military sentries " It was only fair that Government too should pay for a benefit enjoyed equally with private persons, viz. that of Police protection. This was apparent, ly the opinion of the Government at the date of the Procla- mation of 187 1, which first included these Government buildings within the town limits. And the proclamation of 30th June 1881, which fixed the rate at 7^ per cent., made no mention of any new exemption. Secondly^ on the argument that the Crown bad the prero. gative right to exempt any buildings it chose, and that the procedure prescribed for recovering the tax could not be enforced, nor costs recovered, against the Crown. Oa this point, the Ordinance makes the buildings not expressly exempted liable, and can only be repealed by another Ordi.. nance. The Court below therefore ruled the assessment bad, and ordered a new one to be made including the buildings ia question— the Government to pay all costs. The Queen's Advocate appealed, and the appeal was argued by DumUeton, Acting D. Q. A., for the appellant, and Layard for the respondent, on 8th November 1882, before Cla.ebnce, J., and on 17th November before Db Wet, a. C. J., and Clarence, J., and finally, on 29th November i88i, before the Full Court (De Wjst, A. C. J., Clabence and Dias, JJ.) Nell, D. Q. A., for the Crown {Bumbleton with him.)— The Crown is not bound unless mentioned in the Ordinance expressly or by implication. The fact that certain Govern, ment buildings are expressly exempted does not render other Government buildmgs liable. Ex parte the Fostmaster General in re Bonham (i) where the decision turned upon §§ ii and 49 of the Bankruptcy Act of 1869, by which the Crown was held not bound, though by another section ^'^°'^" ^^^^^ were made first charges. The fact that for 10 (i) L. R., 10 Ch. D., 59S, 147 years the Crowa has consented to pay the tax does not debar it frona raising the question now. Layard, for the Objector— From 1871 to 1881 the Crown has paid assessment on these buildings, and the objection is now taken. [The Chief Justice— That does not pre., elude the objection. There was a case in which the Crown owned certain Railways in a colony, and was sued for damage caused by the sparks of locomotives. The Colonial Government had been in the pracKice of not objecting to being so sued, but on the arrival of a new Attorney-General, he thought the Grown was not so liable and raised the question ; and the Privy Council held he was right. Dias, J. — I do not suppose you argue the Crown is bound by its acquiescence hitherto ? ] No. The case of Ex parte the Postmaster General merely re-affirmed the well-known prin- ciple, that the Crown is not bound unless expressly men- tioned in a statute, or unless such liability is deducible by necessary imphcation therein, bee the Eeport in 48 L. J. Bank., 84. [The Chief Jitstice — The Crown here seems to say to people in villages and rural districts, We will help you by contributing j bat to large towns it says. We stand upon our prerogative : you alone must pay.] Not so : \ i5 specifies certain purposes for which the people pay, and others for which the Crown pays. The Crown pro- vides the salaries of Police Superintendent and Inspectors, all other costs being borne by the people, except where (as in the present instance) a force has been created under § 8- Where such a force is established, its expenses are levied under § 34 by the assessment of houses. The implication of the Crown's liability is perfectly clear. Had it been the intention of the Legislature to exempt all Government buildings, they would not have specified only a few. [Clarence, j; — The remarks of Jessel, M. R., in the case cited apply here : it does not follow that because the Crown gave up its right as to certain buildings that exemp- tion should be extended bo others. ] The argument there was that there was no necessary implication, which I con- tend exists here. Besides, the P. W. D. buildings, not having the protection of military sentries, require that of the Police, and should pay for such protection as private buildings do. [Clarence, J. — There is a difficulty in the way of our interfering, The Governor is empowered to fix the percentage recoverable, and no appeal to us is given 148 from his determination.} We couIJ only object on recet|)t of notice under § 40, which is issued after such percentage has been fixed. But the Supreme Court has the power of amending ihe assessment by suppl)ing any omission, under § I of Ordinance 5 of 1857. Nell, in reply— The Proclatnalion of 3vd June, published in the Gazette of loth June, 1881 declares the force in Pussellawa to have been established under § 7. [Cla- EBNCE, J. — But § 8 con;;emplates others than large towns, and Pussellawa is not a large town.] Rural police is described in § 33, and seems to be the punitory measure of quartering a torce upon a disorderly district. Car. adv. vult. The following judgments were read in Court on i8ih January 1883, by Clarence, J.: — Claebncb, J. — This matter comes before us on the Queen's Advocate's appeal against an order made by the Commissioner on an obji ction taken before him to the assessment of Rothschild Estate under the Police Ordinance, i86j The respondent in appeal, the objector, represents the owners of Rothschild Estate; and it appears that that Estate, a part of it, is wi bin the limits of the town of Pussellawa as defined by Proclamation for the purposes of the Ordinance. When Mr. Dumbleton opened the Q. A.'s appeal before me, Mr. Lay ard raised the question, whether any appeal lies. I am of opinion that the appeal does lie, and for these reasons : — I regard this as a proceeding under sect, i of Ordinance 5 of 1867, which expressly gives the apped. Mr. Horsfall's objection seems to have been laid before the Commissioner orally, and not embodied in any written statement presented to the Commissioner, and it seems to have been regarded by the Commissioner as an objection preferred under sect. 49 of the Ordinance of i86j. But i think that these objections are now governed by sect, i of the Ordinance of 1867. Sect. 49 of the Ordinance of 1865 provided that any person served with the assessment notice under sect. 40 might object before the Court of Re- quests. The Ordinance of 1867, sect, i, covers exactly the same subject-matter and a little more. It provides that any person aggrieved either by assessment or aon-assessment 149 of any tenement may object before the Court of R.quesis, if the amount of ihe rate does i.ot exceed ;^io, and before the District Court if the raie exceeds ^lo : and then an appeal is expressly given to the Supreme Court. This^ covers the suQJect.iratter of section 49 of the Ordinance of 1865 and goes a little farther, inasmuch as there is provi- sion for an appeal against non-assessment. It appears to me, therefore, that the provisions of section r of the Ordi- nance of 1867 must be regarded as substituied for the provisions of section 49 of the Ordinance of 1865, and as impliedly repealing them, I think it only just to the res- pondent, there having been no specific written objection presented to the Court of Requests, to regard his Objection as made under the enactment which applies, and not under one which I regard as repealed j but the only enactment; under which in my opinion it is now competent for him to proceed is one which expressly gives an appeal to this Court. Respondent's obj,ection is an objection to the assessment of certain property of his principals, the Ctylon Company, Limited. The property in question, bearing assessment Nos- 115, 116, and 117, has been assessed at an aggregate value of Rs. 4,060. A Proclamation dated the 3rd June 1881 fixed the percentage at 75 per cent., and the Assess- ment Notice on which Respondent's objection is based is filled in with amounts computed on that footing. Res- pondent does not object to the settlement of the rateable vtlue at Rs. 4,060, but he objects to being required to pay 7^ per cent, on that value. The grounds of the object ioa are, that certain Government buildings belonging to the P- W. D., but not otherwise ascertained in the materials before us, have not been rated> whereas, as he contends, thejr should have been. Under the Ordinance .5 of iS'iy parsons interested may object to the assessment or non-assessment of any property. If any one finds that some one else has not been rate', whose property he considfrs liable to contribute, he may undfr this section object to the non-assessmeiit. Thus Mr. Borsfall mny have formally objected to the non-assessn ent of these P. W. D. buildings. His ob- jectinn, however, was not so framed. His letter of notice to the Government Agent, sent in compliance with the requirements of the Ordinance, shews an objection to the assessment of his own property, Nos. 115, 116,117. If 150 the objection had been formally made to the non-assess- nient of the P. W. D. buildings, the Commissioner might, if satisfied that those buildings were liable to be rated, " sup- ply the omission.'' Those are the words of the Ordinance. The only question open upon the objection taken was whether I he Commissioner had power to amend the ass. es«ment ol Nos. 115, 116, 117 in the manner which Mr. Uorsfall desired. THe fact of the non asses- ment of the P. W. D buildings is put forward as material in support of the objection to the assessment of Nos. 1 15, n6, 117. Putting formalities aside, Mr. HorifaU's contentioa arises thus : — Up to last year the Government buildings in ques- tion were assessed for the tax, and the percentage |9ayahle all round was settled at j per cent. The advisers of the Government now consider that the Government ought not to contribute any longer, and is not bound to contribute! The Committee of Assessors appointed under Ordinance 7 of I 8f 6 have not assessed the Government buildings, and H. E. the Governor, by Proclamation dated the 3rd of June J 88 1, fixed the percentage at 7| per cent. Of course the Committee of Assessors are not under the orders of the Governor in the matter of assessing any property. Their duty is simply to assess at. such values as seem just in their own eyes all property which in their judgment is liable to be rated. As a fact, these P. W. D. buildings do not appear in the Assessment List. Whether they were in the first instance omitted by the Assessors, or whether the Government Agent has assumed to strike them out, con^ sidering himself entitled to do so under sect. 37, we do not know. The learned Deputy Queen's Advocate admitted on the part of the Crown, that the Government are advised that they are not bound to contribute in respect of Govern- ment buildings, ahd that the Government do not intend to contribute ; and Mr. Horsfall urges that the reason why the percentage was last year raised from 5 to 7^ per cent, is because 'he Government resolved not to pay for Govern, menl buildings, and in furtherance of that intention deter- mined to raise the 1 ecessary amount; of money by an increased percentage to be levi^^d from the rest of the pro- perty in the town. Mr Horsfall contends that under the Ordinance of 18^5 the G ivernment build ngs are liable to contribute, and consequently tliat the percentage ought not to have been raised. Now, it is to ray mind as clear as anything can be, that even assuming these Government 151 buildings to be rateable, the Court of Requests had no power on that ground to touch this assessment. The Court of Requests of course had power to alter ihe rateable value, but that is not what Mr. Horsfall complains of. He com- plains of the percentage. The percentage is fixed by H. E. the Governor in Execuiive Council, under section 34 of the Or 39. 4, a8, it is clearly laid down that the Fiscus, which repre- sents the Crown to all intents and purposes, is not liable to pay vectigalia. The vectigalia was not only considered in the nature of a State tax, but also applied to Municipalities. / jrfe Voet, 394.91 where the word used to denote rates is vectigalia. Set aside. Ohjections overruled. 1st February, 1883- Present— Clarence, J. P. C. > Kathiramer Kanther Chavagachcheri, S v. 6,889- Ampalavanar Kovinlab. jurisdiction of Police Court — Paddy Ordinance, No. H of 1840, sects. 6 and 14 — Penalty oj double value oj Government share of crop— Queens Advocate's certificate under Ordi. nance 11 of 1868, sect. 99. Section 14 of the Paddy Ordinance, 1840 enacts inter alia that any ptoprietor, who shall thresh the crop of his field liable to tax, without giving due notice to the headman, shall on conviction be fined to the amount of double the value of the share due to Government as tax. The defendant, having been charged with a breach of section 14, was convicted and sentenced by the Police Court to pay a fine of Rs. 69, being double the value of the Government share. Held, that in the absence of the Queen's Advocate's certificate con- 155 ternplated by section 99 of the Adminislralion of Justice Ordinance, 1868, the Police Court had not the jurisdiction to entertain the charge. The defendant in this case was charged with a breach of sections 6 and 14 of Ordinance No. 14 of 184.0, in that the defendant did on the 2nd September 1&S2 thresh the crop of his field, which was liable to tax, without giving notice to the complainant, who was the renter, of his intention to thresh the same. The Police Magistrate (Haines) after hearing evidence on both sides convicted the defendant and fined him Rs. 6g, half to be paid to complainant. The defendant appealed, y. Grenier, for the appellant, cited F. C. Galle 84167 (i), F. C. Matale 2183s (»)• S- Greaier for the complainant, respondeat. C1.&RBNVE, J.— 'Set aside and information and proceed- ings quashed. In the absence of the certificate contemplat- ed by sect. 99 of Ordinance 1 1 of :868, the Police Court had 00 jurisdiction to entertain this charge, for the section of the Ordinance under which the charge is laid requires the Court to fine the defendant double the value of the share, which in this case gives an amount of more than Rs, 63. Proceedings, quashed. 2yth and 28th November, 1882 and 1st February, 188^. Present— De Wet, A. C J-, Clabence and Dias, J J. Crotim Case Reserved. 4th Session-] The Queen Colombo, > V. No. 4. ' Kathiriatchige Pebis Affu. Witness who does not understand the obligation of an oath —Oath or affirmation. Upon a charge of Rape, the prosecutrix D. was called as a witness. She was about 10 years of age, understood the difference between truth and falsehood, and that it was not right to tell what was not true ; was possessed of great natural intelligence, but was wholly uninstructed, (0 Grenier (1873), 39. (2) Civil Minutes, Sup. Ct., 8th March 1882. 156 and satisfied the Court that she did not understand the obligation of an oath. She was affirmed and examined, and the jury convicted the prisoner mainly on her evidence. Held, upon a case reserved, (Per Clasence and Dias, JJ., dis. seniienfe DE Wet, A. C. J.) that to render D.'s testimony admissible it ■was not necessary that she should comprehend the nature of an oath ; and that she was a proper person to be affirmed ; and that the con- viction should therefore be confirmed. Per DB Wet, A. C. J. — In all cases, no witness can give evidence except upon oath or solemn affirmation ; and the presiding judge having been satisfied that D. did not understand the obligation of an oath, or its equivalent a solemn affirmation, she should not have been called upon to make an affirmation. D.'s evidence having been illegally admitted, and the jury havin? convicted on that evidence solely, the conviction should be set aside. This was a Case Reserved from the November Session of the Supreme Court at Colombo for 1882. At the trial before Dias, J. and a Sinhalese Jury on aoth November i88a, Dumhleton, Acting D. Q. A., conducted the prosecu- tion, and the prisoner was undefended. The prisoner having been convicted, Dias, J., stated the following Case ior the opinion of the Collective Court : " The prisoner was indicted for Rape upon a girl called Durihamy of about 10 years of age. When this Durihatny was called as a witness, the interpreter asked her what her religion was. She answered that she had no religion. Upon this I put her a few questions for the purpose of ascertain- ing whether she understood the obligation of an oath. She gave very intelligent answers, but on the whole I was satis, fled that she did not understand the obligation of an oath, bhe, however, understood the difference between truth and falsehood, and that it was not right to speak what was not true ; but she did not seem to understand the consequences of speaking what is not true. The girl appeared to be betweea 10 and 12 years of age and possessed a great deal of natural intelligence^ but she was wholly uninstructed, and seemed to have grown up without any training at ail. She gave a very intelligent account of what happened to her, and in all respects I was satisfied that she was a witness on whose evidence I might act. Accordingly I had her affirm- ed and examined, and on her evidence mainly the Jury found the prisoner guilty. Having some doubts as to the correctness of the course I pursued in afBrming a mitne-ss who, in my opinion, did not understand the obligation of an oath, I reserved the point for the consideration of the Collective Court, and remanded the prisoner. 157 '' 1 he question which I submit for the consideration of tFie Collective Court is, whether a witness of lo years of age, who is naturally intelligent and able to give an intelligent account of what she knew,, could be examined as a witness on her oath or affirma'ion though she does not understand the obligation of an oath." The case was argued in connection with The Queen v. Buye Appu, ante, p 156. Nelt, D. Q. A-, lor the Crown. The prisoner was un- represented. Cur. adv. vult- (ist February, 1883). De Wet, A. C. J.— In all cases, whether criminal or civil, no witness can give evidence except upon oath, or solemn affirmation, as provided by law. This rule applies equally to infants as well as to adults. The legal consequences which flow fro.m giving false testi- mony, after oath taken, or affirmation made, are in both cases identical. If, in the case put, the presiding Judge ■was, as he says, satisfied that the child did not understand the solemn obligation of an oath, or its equivalent the solemn affirmation, I am of opinion that she should not have been called upon to make an affirmation. As, upon her sole testimony, (to my mind illegal under the cifcum- stances) the prisoner was convicted, I am of opinion that the conviction was bad and should be set aside. Clarenck, J. — I do not think rt was necessary in order to render this child's testimony admissible, that she should comprehend the nature of an oath. It appears to me that she was a proper person to be affirmed, and having been affirmed in the statutory manner, her evidence was in my opinion properly left to the Jury. This conviction, in my opinion, should be confirmed. DiAS, J., concurred in the judgment of Clarence, J. Conviction sustained- [2nd February 1883. The prisoner was brought up before Dias, J., sitting in Criminal Session, and sentenced to three years' imprisonment at hard labour J. 1&8 1st and &lh February, i88j. Present — Clarence, J. D. C. "\ W. S. Bennett and another Colombo, C Nierbow. 8_5,o69. ) Exparte J. A. Robertson. Contempt of Court— Breach of Injunction — Power- of Dis- trict Court to issue injunction affecting properly outside its territorial limits but the subject of suit before it — Agent of party enjoined— Notice — Committal for defined period. In an action in the District Court oE Colombo to eniorce a mortgage of a coffee estate situated within the jurisdiction of the District Court of Kandy, the District Court of Colombo issued an injunction against the defendant and his agents to restrain them from coppicing the cinchona trees growing on the mortgaged property. R., the defen. dam's manager of the estate,, after the issue of the injunstion, directed his subordinate the supeiintendent of the estate to uproot all the cinchona trees growing on the estate. Upon motion to commit R. as for a contempt of Court : Held, that the District Court of Colombo, having otherwise jurisdicv. tion to entertain the mortgage suit, had power by injunction to restrain the defendant (and any agent of his, though not a party to the action, and resident outside the court's territorial jurisdiction) from acts upon the land concerned in the action. QuaerCy whether,, the defendant having submitted to the jurisdiction of the court, it was open to bis agent R. to raise the question of juris< diction. Held also, that the fact of R. being the manager and agent of de> fendant (on whom the injunction had been served) was not sufficient proof, upon the present motion,. of nstice to R. of the injunction ; and thai it was for the plaintifis to show, beyond reasonable doubt,, that at the time of the alleged breach R, knew of the existence of the in' junction. It wa.s proved that at the time of uprooting fche cinchonas R. lived 20 miles from the estate, and directed the uprooting by letter to the superintendent, who inquired whether R. had authority to do so,, and stated that his reason tor hesitating to uproot was the fact that there had been a legal dispute about cmchona cutting. Upon this R. fori warded a letter from defendant informing the superintendent that he had the right to uproot, having consulted his legal advisers. R. had no direct notice of the injunction. Held, that though these facts did not justify the committal of R., it was a case in which E. should pay all the costs in the court below. On 17th August iBSr the plaintiffs commenced this action to recover the sum of Bs. 8g^6^2.^'j due on a bond dated 8th October 1877, ^"^ to have Mthsdah Estate, Dimbula, specially mortgaged by the said bond, declared bound and executable to satisfy the said debt. There was. also a prayer for proyibiuual judgment. IS 9 Answer was filed on 17th November 1S81, denying breach of conditions, on non'f ulfilment of which the action was founded, and setting up various defences on the merits. After further pleading, joinder of issue was entered of record on a7th March 188a. On 4th May 1882, Mr. /^. O.Joseph, Proctor for the plaintiffs, moved on affidavits that an injuuction do issue restraining the defendant and his agents from coppicing the Cinchona trees on Nithsdale Estate until the determination of this action. The affidavit oi Mr. H. H. Corfe, tendered in support of the motion, set out that he was Visiting Agent of Messrs. Sabonadiere & Co., and had been engaged in the business of reporting on corps, &c, for 4 years ; that he knew Nitlisclale Estate, which consisted of 242 acres of land, planted with Cinchona, Succirubra and Officinalis ; that he had just visited Nithsdale Estate and found that out of the Succirubra trees over three years old thereon, com- puted at 26,000 in number, some S.ooohad been coppiced, and he had been informed by Mr. Kerr (who was afterwards shown to be defendant's Superintendent of Nithsdale) that it was the intention of the defendant to have all the Succi- rubra so coppiced, with the exception of some that had been shaved; that the denonent considered that the coppicing that had been done and that was to be done was calculated seriously to depreciate the value of the Estate as mortgage security, because, under any circumstances, the stools or stumps of the trees so coppiced would not give any return for 2 or 3 years after operation, and a certain percentage of them would die ; and that those that lived would be of little or no improved value, while, under ordinary circumstances, they would go on improving in value for several years. The plaintiffs also put in an affidavit by Mr. A O. Joseph, their Proctor, to prove that Nithsdale was the only security the plaintiffs had for their debt, and that the rest of the defendant's property in the Island was heavily encumbered, even Nithsdale havmg mortgages on it subsequent to plain.* tiffs'. At the hearing of tjiis application on 13th May 1882, the defendant tendered his own affidavit to prove that coppicing would not depreciate the value of the Estate, and that, even if the Cmchonas were all put out of the question, the plains tiffs had sufficient security, and that the rooting up had been only of plants that had struck slab-rock and were dying off, and that Mr. Corfe had not visited the Estate as 160 Visiting Agent as alleged. In a later affidavit, in answer to Mr. Joseph's, the defendant further justified the removal of the Cinchonas as rendered necessary by good husbandry^ he plaintiffs' motion was allowed, and on 17th May the Injunction issued, which was as follows : '" To Niel Gow of Forest Creek Estate, Dimbula, his contractors, servants, workmen and agents, and every of them, Greeting. Whereas by a certain order of Owen Williani Cecil Mor. gan. Acting Judge of the District Court of Colombo, bearing date the 17th day of May i8J2 and made in a certain action wherein the abovenamed William Stephenson Rennett and Eliza Frances Bennett are plaintiffs and you the said Niel Gow are defendant, it was ordered that a writ of Injunction should isjue to enjoin and restrain you the said Niel Gow, your contiactors, servants, workmen and agents, from coppicing the Cinchona trees growing on Nithsdale Estate in the district of Agra Ouvah, DimbuUa, in the Central Pro- vince, until after trial of this action or till further order, We therefore do hereby strictly enjoin and command you the said Niel Gow and your contractors, servants, work- men and agents, and every one of you, from coppicing the Cinchona trees growing on the said Nithsdale Es- tate in the aforesaid district until after the trial of this action, or until our said Court shall make order to the con- trary, and We further command you the said Niel Gow to pay to the said plaintiffs the costs of preparing, issuing and serving this writ." .The Supreme Court, on i8th August 1882, dismissed the appeal which defendant had lodged against the order grant, ing the Injunction. (Per Clakbnce and Di4S, JJ. Eei ported 5 S. C. C, 79). The Fiscal returned that this writ had been served on the defendant at Forest Creek Estate Bungalow on 7th June 1882. On 21st September 188a, plaintiffs moved for an Order Nisi on the defendant, and yohn Affleck Robertson as his aidir and assistant, to show cause why they should not be committed 'o prison for a contempt of Court in disobey- ing the Injunction of 17th May 18S2. This motion was supported by the affidavit of John Northmore, one of the Attornies of the plaintiffs in the Island, who deposed to having visited Nithsdale Estate on 1 3th September . 8S2, and having found nearly all t' e Cinchonas over a year old 161 mprooted ; Ihat deponent had been informed by C. Minto GwatkiD) lately a superintendent of Nitksdale, that in his presence the defendant, assisted by yohn -Affleck Rolertson of Wotton Estate, Dimbula, had caused thei Cinchonas to be uprooted about 2oth July 1882, and subsequent days ; that Gwaikin had shown deponent a letter addressed by Kobertson to Gwatkin, from which deponent inferred that Robertson then acted as defendant's agent. The Acting District Judge (Liesching} oA 22nd Septem- ber examined Mr> C. M. Gwatkin on oath. He deposed to having been Manager of Nitksdale from June ist to August I jth 1S82, and to have received his orders as such from Sobertson, to uproot the Cinchonas, in writing, which instructions witness had destroyed on leaving the estate. Witness produced copies of letters written by him to Robert- son on 13th, 14th, 19th and 20th July (C, Ci, C2, O3,) and proved the signatures of defendant and of Robertson to letters A and B, (both of 20th July). Witness wrote £ in reply to A. Witness proceeded on 21st July to uproot the growing Officinalis trees, and the krge Succirubra trees of 4 and 5 year& old, and the stools of trees already- coppiced. Robertson was not present. Two hundred coolies a day were at work, some borrowed from other estates. Robertson was kept informed of all work going on. Some seven or eight hundred thousand trees, some only a year old, were uprooted, and the bark removed to Waverley Store. Defendant bad told witness verbally to remove the bark there before any seizure was made under writ of Court. Bark had not previously been stored on Waverley, which was another estate. Witness had never konwn any one to uproot trees of one year old for his own profiti but considered it was devastation. It was not good husbandry to uproot the stools of Cinchonas after coppicing. Upon these materials the District Judge issued the Order Nisi, calling upon defendant and Robertson to show cause on 39th September 1882 against committal fur contempt of Court. On 29th September Layard, plaintiff's Counsel, stated that defendant had left the Island under an assumed name before the application for the Order had been made- The discussion on the Order was adjourned for 5 th October, on which day Broume appeared for Robertson and crossle Island) under sect. 24 of Ordinance 11 of x868. Bird's Case {2). The tact of the existence ol' such another remedy is an argument against the allowanc* of the one asked for. The mere relation of principal and agent does not confer on a court having jurisdiction over one party jurisdiction over the other who is ou'side its turntorial limits. The Carron Iron Go v. Maclaren (3)- Second'if, even if the Injunction had been rightly issued, there is no proof that t oberlson deliberately disobeyed it. There is proof of service of the Injunction on the defendant, but not on Robertson. [Clarrncb, J. — I shall assume that defetrdant's " Manager" had noiiceof it, unless he shows the contrary by affidavit or otherwise.] (a) In Northmore's affidavit Rob rlson is said to have assisted the (1) R. & 0., r, «3, p. 66. | (2) Mocg. Dig., p. 203. (3) s H. L.Oas., 416. 166 defendant in uprooting the Cinchonas, Now, Rohertam, \% is proved, lived 30 nniles off, and was not once on the estate while the uprooting was going on. (JJ). Further, the Injunction was against coppicing, and uprooting is not a breach of it. [ Clarence, J.— It is much worse. You may as well contend that cutting off a man's arm is not worse than cutting off his hand only.] It is a debateable point as to whether coppicing or uprooting is better hus.. bandry, and many planters hold opposite views. For re- planting is going on at the saiue time with the uprooting, and in the rotation of crops there is a constant return, which is not the case with coppicing. [ Clabbnoe, J.— I do not think it is at all debateable. ] Thirdly, if Robertson be held guilty of a contempt, the punishment is excessive. Robertson appeared immediately on notice to answer for his contempt, and after protesting he had meant no contempt of the Court o£fered through his Counsel to apologise. He is a European proprietor of estaies himself, resident i8 or 19 years in the country, and it is an excessive sentence to commit him to jail without the option of a fine. [Gla.rh.nc8, J. — Subject to what I may hear from the other side, I think the proper order would have been to commit him to custody till he should purge his contempt. Grenier — That was the order we' asked of the District Court. Clarence;, J. (to appellant's Counsel)— Do you object to the general power of the District Court to punish a contempt not in facie curioe?' There is the case of the Observer newspaper. Oaly that here the Court had made an order which was disobeyed, while none had been made on the newspaper writer, who was no party to any action.] There is also the case of the Times newspaper, the editor (Allardyce). and publisher (Widlake) of which were charged with a contempt of this Court. I'here, on the editor's taking upon himself the whole blame of the matter, the publisher was absolved and an apology was accepted, to which as full publication was given as to the objectionable matter. [ Clarbncb, J. — I should like to see the reasoning of the Judges in the 04- server case. ] Grenier (^Layard and Withers with him), for the plaintiffs, respondents. Neither of the newspaper cases has any application here. In the Observer case the editor was charged with having 1«7 published contemptuous matter of the District Judge in his judicial capacity, and it was held that a District Court, like an English County Court, could not punish for a contempt not committed in I he face of the Court. While here is an Injunction issued by a competent Court ; and where a Court has power to issue a process, is it impotent to punish for a disobedience thereof ? The power is absolute y neces- sary for the due working of the Court, and it has bfen so held in the case of English ( ounty v ourts. Ex parte Martin (i). So in Ceylon, in Odayappa Chatty « Case* a party was fined ;^too as for a contempt in prostitu. ting the process of the Court, because he procured service thereof on a person other than it was issued for, and obtained a false return by the server. [ Clakencb, J.— Could a Court of Requests enforce its orders by attache ment ?] Certainly. Sir Edward Creasy held in a case in which the seizure of a public servant's salary was for the first time discussed, that the Court of Kequests of Colombo could punish the Deputy Fiscal of Bnticaloa for a con- tempt committed at Batticaloa. C- R- Balticaloa, 1055 (2). Under sect. 25, Ordinance 4 of 1867, sucli Fiscal is amena- ble to the Court issuing the process, but punishable by the Court within whose territorial jurisdiction he acts. That sectioa of the liscals Ordinance expressly provides for ser- vice of all processes, other than writs of sequestration and execution, in any part of the Island without judicial in* dorsement. As to the objectioa to the regularity of the course adopt- ed. Lord Lyndhurst says, in Durant v- Moore (s): " Upoa principle I ihiok that the order to shew cause dues not ia any way prejudice a defendant; for as he must be personally served, if he has merits, he may on shewing cause be dis> missed. Such an order is not more hard than an order for immediate committal. On the contrary, it is less so ; for It gives the defendant longer time to consider and answer the affidavits made against him by the plaintiff. Upon principle, I think that an order to shew cause why a party should not be committed for breach of an Injunction may be served personally ; and for this I consider the case of Mudge V Hughes to be a conclusive authority. These proceedings, therefore, have been quite regular." [ Clab- (r) L. R.. 4 a. B. D., 214. I (3) 2 R. & M., 34. (z) RamaNattian (iSdj), 164. | ^ See Appendix G. encE, J,— The point you refer to was mooted by me. I was not aware that the order was ex parte. ] It is clear from the correspondence that Robertson knew of the Injunc- tion, and yet continued his instructions to Gwatkin to uproot. Gwatkin demurred to carrying them out, and Robertson then wrote the conclusive letter B. of aoth July, in *hich he speaks of " my orders," and signs himself ^' manager for Mr. Gow." Gwatkin clearly proves that such uprooting of young plants is devastation and is never done for profit. The Tiijunction is against the defendant, and his con- tractors, servants and agents, and Robertson as his manager is an agent. But even if he were not, h- is liable as know, ingly assisting the defendant. Jf'ellesUy {Lord) v. lord Momington (i). [ Clarence, J. — Any stranger who did so with notice would be equally liable.] Had Robertson sworn that he did not know of the Injunction, it would have been differeatt but such evidence is absolutely want- ing. As to jurisdiction, the jurisdiction of a District Court is not stricily territorial under section 65 of Ordinance 11 of 1868 ; for it could entertain a 1 action in which the cause of action arose in part only within its territorial limits. If the District Court had power by a mortgage decree in this action to bind the defendant and his property situate in another part of the Island, it is idle to argue that defendant's manager might disregard an Injunction in regard to that very property, which admi tedly bound the defendant him.* self. Had it been shown that the Injunction was totally void for lack ol jurisdiction to issue ii| then indeed might the whole world have meddled with the estate with im- punity. Shaw's Case (2) decided that the District Court had a territorial jurisdiction, which does not preclude the existence of other jurisdiction also. As to the sentence, what we asked for was committal till Robertson should purge his contempt. When he had done this (perhaps by depositing the value of the rinchonas up- rooted), the Court might accept his apology. An apology alone was accepted in the Times case, because the Supreme Court could not be said to have sustained any damages, but it would have been different had the offender smashed some of the Court furniture, sedente curid The full value (■) n Beav., 180. | (j) RamaNathan (1861), 18. 169 «f such furniture would then have had to be deposited before acceptance of any apology. [ Clarence, J. — Have the English cases gone the length of requiring such a party to deposit the full value when he has not himself received the benefit of it ?] Perhaps not ; but if Boiertson had the money realised, he should have tendered it to the Court : if he had not, that should have been shown by affidavit. Browne, in reply — It has not been shown that an injunc- tion has binding force outside territorial jurisdiction and oil a person who is no party to the action. A Court may punish breach 6f its process, but only when cotnmitted within its territorial limits. The fiscals Ordinance only provides for service of ^a«(j^aZ orders of the Court outside its limits. A warrant of e&ecution against this very estate would be of no avail unless indorsed by the Judge of the' ]£andy Court, in whose territorial jurisdiction it iS. Had Mobetlson refused to appear on the notice to Show cause, he could not have been arreted without similar indorsement on the back of the warrant. As to the benefit of the Cin- chonas uprooted, it must be presumed Gow, the defeodant, got it, whose manager Robertson was. The bark was put in Waverley Store, which it is proved does nfot belong to Biolertson- Cur- adv. vult- (8th February). Clarence, J.' — The Injunction in this case was issued by the District Judge on the i7th May last, and it was served on the defendant, at Forest Creek Estate in Dimbula, on the 1 7th June. The defendant appealed ; this Court adjourned the appeal for further affidavit evidence, and eventually, on the 1 8th August, dismissed the appeal. In the meantime, on the 26th July and during the next few days, the Cinchona on Nithsdale Estate was entirely up- rooted by Mr. Gwatkin, the Superintendent on the estate, who acted upon instructions which he had received from the defendant and the defendant's manager, the present appellant. The object of this proceeding undoubtedly was to enable the defendant to realise for himself the proceeds of the bark, in order that it might not be available for seizure by the plaintiffs, and to this end, the bark, as soon as harvested, was placed in a neighbouring store, belonging,, not to JVJ/Ai. date, but to another estate. It seems, therefore, that this 1?0 was done before the appeal came on for hearing in this Court. It was, I confess to my surprise, suggested in afgument in support of the appeal, that there had been no breach of the Injunction, inasmuch as the Injunction forbade coppicing, and what was done was uprooting. This is an argument which may be simply passed over as not requiring any further notice. So far as the nature of the act is concerned, a more flagrant violation of the Injunction can hardly be imagined. The injunction forbade cutting down to the root, and root and all were torn away. The defendant, it appears, has left the Island. The plaintiffs, as soon as they learned what had happened, moved to commit both defen> dant and appellant, Mr. Boliertson, and the defendant having left the Island, the application was pressed against appeL lant. It has been contended by appellant that he ought not to be committed for breach of this Injunction, for that the In* junction is in itself a mere nullity 5 that the District Court of Colombo had no jurisdiction to grant the Injunction in the matter of land lying outside the district of Colombo. The action is brought on a mortgage bond executed in Colombo. Consequently, in my opinion, the District Court of Colombo had jurisdiction to entertain the action, by virtue of section 65 of Ordinance 11 of i863, and incidentally to the action had also jurisdiction to issue the Injunction. The defen- dant himself appears never to have contested the right of the Court in point of jurisdiction, to entertain the action or to grant the Injunction. The defendant appealed against the Injunction on the contention that the circumstances did not warrant it. I may say also that it seems to me questiona. ble whether, the defendant having submitted to the jurisdic- tion, this appellant can raise the question of jurisdiction. I need not, however, discuss this, because, in my opinion, the Court had jurisdiction to issue the Injunction. The jurisdiction of the Court to entertain the action seems to carry with it ex necessitate this further power to protect the plaintiS's interest, if necessary, by an Injunction to restrain the defendant and his agents from acts on the land. The only remaining question is the question of fact, whether this appellant, knowing of the Injunction, has vio. lated it. Appellant lives some ao miles from Nithsdak Estate, and was not himself present when the Cinchona was uprooted ; but if, knowing of the Injunction, he in- in structed Mr. Gwatkin to uproot the Cinchona, that was disobedience of the Injunction. And if it appear that the appellant has knowingly disobeyed the Injunction, he cer- tainly ought to stand committed to gaol. I could not up. hold the order as it now stands, sentencing him to six months' simple imprisonment, but I should simply order him to be committed, which is the proper order in such a case, leaving it to him to purge his contempt and move to ba discharged. But before appellant can be committed, we must be satis- fied, beyond reasonable doubt, that he knew of the Injunction. See Ex parte Langley., re Bishop (i). What is proved amounts to this : Mr. Gow, the defendant, was living on Forest Creek Estate, some 20 miles away from Nithsdale, and Mr. Robertson, the appellant, was living on an estate of his owB, Wotton, about a miles from Forest Creek. Appellant managed Nithsdale for the defendant, the resident superin^ tendent being Mr. Gwatkin, who has given evidence. Ap" pellant, shortly before the 13th July, directed Mr. Gwatkin to uproot the Cinchona on Nithsdale. Thereupon Mr. Gwatkin wrote him several letters, asking whether he was •' legally justified in instructing him to cut the Cinchona," and whether Mr. Gwatkin would be in any way compro- mising himself by carrying out those instructions. Then, oa the aoth July, Moiertson wrote to Gwatkin the letter of that date, in which he says : " I enclose aa official letter from Mr. Gow re the harvesting of the Cinchona, as previously ordered by me. Tou will please lose no time (words doubly underlined) in carrying out my instructions." And enclosed was a letter from Mr. Gow, the defendant, to Gwat. kin, in which defendant peremptorily ordered Gwatkin to carry out the instructions which he had received, adding a paragraph evidently intended to convey (what one can hardly imagine to have been the case) that his legal advisers had advised him that he was justified in what he was doing. After that Mr. Gow came to Nithsdale and stayed there about a week, apparently superintending what was being done to the Cinchona. Appellant's action in the matter, so far as has been made to appear, was confined to giving the first order to Gwatkin about the 13th July, and subse- quently writing the letter of July 20. If I were satisfied that appellant when he did that much knew of the existence (i) L, R., 13 Ch. D., no ; 49 L.J. Bank., i ; jS W. R., 174. 172 of the lujunctroB, I should commit him ; bat I cannot commit him on the above materials. He has made no affidavit denying knowledge of the Injunction, but I do not consider that plainti£fs have made out a case calling for an afSdavil on his part. I was at first impressed with the suspicion, arising from his employment under the defendant, that he knew of the Injunction ;. but £ must have more than this before I can commit him to prison. He might have been examined in Court,, for he attended the District Court in obedience to the summons issued to him, and was present at the discussion of this applicdtton on the jth October, but plaintifis did not think it proper to take that step, and so put him to state on oath whether he had any and what information about the Injunction. I cannot commk appellant to prison, but I think it a case in which he ought to pay the costs of the applicatioa to commit, seeing that his act, done on behalf of the defen. dant, began the mischief. (Compare Bantzen v. BothKkild (z))- Appellant must pay the costs of the application in the District Court, but as he has to a considerable extent sue. ceeded in appeal, I cannot make him pay any appeal costs. There will be no costs in appeal. I may point out that the plaintiffs seem to have omitted the precaution of giving notice of the Injunction on the land itself. Committal set aside. Proctor for appellant, F. A. Julius. Proctor for respondents, A. 0. Jaseph. 30th Jime, 1882 and i^th February, 1883. Present— Db Wet, A. C J., Claeengb and Dias, J J. D. C. ^ lantrige Johanna and six others yolombo, \ V. 79,606. J Tantrige Harmanis. Inheritance ab intestato — Collation — Donatio simplex, liability of to collation. S., the owner of three lands, conveyed by deed to the defendant, hi» only son (the youngest of seven cbildueo) undivided half.shares of the (2) 14 W. R., 96. 173 tends^ reserving to himseU the rightof possession so long as he shoul* live. S. having died intestate^ the plaintiffs (,nis wife and children)] raised the present action to eject the defendant from certain encroach- ments made by him on the remaining lialves of the lands,, which the- plaintiffs claimed to inherit exclusively, the defendant being unwilling to collate the subject matter of bis gift. Defendant claimed, in addi. tion to the halves gifted to him, an undivided one-fourteentu of the estate of S.. as one of seven children of S. Heldfthait the gift, not having been made in consideration' of marriage or for other special purpose,, was a donatio simplex, and as such not liable to collation except in two cases, viz. Jirst, if it was expressly, made liable to collation ; and second, if some of the donoi's childrea have received dowries, and the dauaUo simplex be given in lieu of a dowry. Held accordingly, that the gift to the defendant was not liable to. collation. Siman Perera deceased and his wife Anna,, the seventh, plaintiff, were married in conxmunicy of goods aad had six. daughters (represented by the first six plaintiffs) and one son (the youngest child) the defendant. On i8th June 1874, Siman Perera, by deed of gift conditioned to takes effect in possession after the donor's death,, conveyed to the defendant half shares in the three lands which constituted the immoveable property of Siman Pereraand his wife Annai. Siman died intestate about February 1 879,. and in October of that year the present action was begun. The plaintiffs alleged that defendant was in possessioa of more than his deed of gift gave him, having encroached on the other halves of the lands^ and was also in the forcible possessioa of certain moveables that belonged to the common estate. The plaintiffs excluded defendant from the inheritance of his father^ on the ground that, defendant having received by gift more than his legitimate share of the inheritance,, he could not claim to inherit any portion al intestalo. without bringing the subject of the gift into collation. The defen- dant claimed, in addition to the halves conveyed by the deed, one-fourteenth undivided share of Siman's- estate, as one of his seven children. As regarded the moveables,, defendant set up a family arrangement by which they were given to him. The District Coart (O. l^. C. Morgan,, Judse). upheld plaintiffs' contention as to the lands, and gave defendant Judgment only for the shares conveyed by his deed, dismiss* ing his claim to inherit ah tnlestaio because he was un - 174 ■willing to bring the subject-matter of the gift into coUatibB> riaiatiffs got judgmeat iot Rs. 75 as the value of tha tnoveables. The defendant appealed. The case was first argued on a4th March i88a before Clabenci', a. C. J., and Dias, J.,, by Browne for the appel- lant and Jf'endt for the respondents- The case was put on for re.argument before Bs Wbt» A. C J., when he should arrive in the Island, and it now came up accordingly. Browne, for the defendant, appellant. First, On the question, of Collation. The law that should govern this case is the Placaat of I599i (i). % a Resolu. tion of the Governor of Ceylon in Council, dated' 20th December 1758, the Letters Patent of the Dutch East India Company (dated loth January i.65i). together with the documents thereto attached, were forwarded to the Courts of the Island " for their guidance and due observation." This Placaat was one of the five annexures to those Letters Patent, the Po/iiicffii Ordinance oi 1580 and the Inlerftreta,- tion thereof dated 13th May i_594 being two others. It was held by the Supreme Court {Sit Hardinge Giffurd being Chief Justice) in 1822 {1) that the Placaat of 1599 was the System of Law in force in the Island, by virtue of the afore" said Resolution of the Governor of Ceylon. That Placaat repealed the Political Ordinance so far as it concerned a part of Holland, and enacted a different system of Succession, [DiAS, J. — That decision was overruled by a subsequent case (3) in which it was held that the Political Ordinanfn ought to govern in Ceylon. J Even if the Ordinance should govern, its 29th section enacts tbat> " if children shall have received from their parents any estate or effects in dowry or donation on account of marriage, or for the purpose of aiding them in trade or merchandise^ or otherwise, and shall on the death of their parents be desirous of sharing in the estate equally with the other childern, such children must first bring into the common estate all what they had pre-" viously received, or the real value thereof. " Keading this section without punctuation, I submit it contemplates only gifts on account of marriage, or for the purpose of special (i) VanderStraaten's Reports, Appendix, p xvii. ^^) VanderStraaten's Reports, A.(>pendix, p xxii» (3) VauderStiaaten, ij2. 176 assistance-^in tradci in merchandise, or iar any othef special purpose ; and that the words " or otherwise" should not be construed as meaning "any gift whatsoever." All gifts of love or affection such as this> made (after all the daughters had been married and dowried) to the only son, with whom the donor was living, would not be such special gifts nor liable to collation, but would fall under the general rule as laid down byBurge sect. $g, renders liable to collation what children have received over and above their brothers and sisters either on occasion of marriage or to advance or establish them in life j but that Ordinance cannot govern this case. ] The passage from Van der Keessel relied on by the plaintiffs in the Court below (Thesis 349) contains a very great advance on his text of Grotius {Introduction, Lib. II. chap. XXVIII §14). Gro^zu; only makes donations, which children or grandchildren have received for the purposes of their marriage, or to start them in trade or business, liable to collation, while J'an der Keessel includes even simple donations among those to be collated. [ He proceeded to read, as part of his argument on this point, the judgment of Mr- Berwick, District Judge, in D, 0. Colombo Testamentary No. 3,567 (2). ] Secondly, On the merits, as regards the lands, the defen' dant is entitled to all within the boundaries which he his proved to have existed at the date of the gift to him. [Clabence, j. — You cannot contradict your deed, which gives you a half irrespective of any boundaries ]. Then, the plaintiffs have alleged a specific ouster which they should prove. The evidence shows that the defendant only con> tinued to possess what he had cultivated during the father's life time. In respect of the moveailes, the District Judge has found they were of the value of Rs. 75, and not Rs. 394 as plaintiffs alleged, and he has adopted the defendant's list, except as to one item of Rs. 15. When the plaintiffs succeeded as to so small a fraction of their claim, they should uot have had costs. (i) Colonial and Foreign Law, vol. 4, p 680. (3) See Appendix F. 176 Wendt {Bnlo with him) for the plamliffs, respondents, 'Contra. first. As to Collation. It is ■clear from the 29th section of the Political Ordinance that, as a rule, even simple dona- tions are liable to collation when children divide an inherits ance with a surviving parent. If the words of the Ordi. nance itself admit of any doubt, there is the authoritative iuterpretation put upon thein by ran der Keessel (Thesis 349) which) he say?, is rendered necessary by the whole analogy of the Roman.Dntch Law. It was to be expected thatVan der Keessel' s Commentary (which was published in the year 1800) should contain an advance on his text of Grotius, who wrote in 1620, for to bring the Introduction up to the present state of the law was the object of the Select Theses of Van der Keessei. As to Surge, he professes to give the doctrine of the pure Civil Law. By that law there was no collation whaftever with a surviving parent, and such collation was a provision of Statute Law, viz. of the Political Ordinance (i). Again, even assuming that as a general rule donationes simptices are not liable to collation, yet there are two cases in which they are, viz- (a) when this condition has been expressly attached to the gift by the donor ,- and {b) when some of the donor's children have received dowries or donations in contemplation of marriage, and others simple donations — the gift in the latter case partaking of the nature of one oh causam accepta and so liable to be collated (i). The defendant bashimselt proved that his six sisters had been married out previously to this gift and bad received dowries, the shares of land given to the defendant being an analogous gift and so bound to be collated) as ia / oet's second exception to the rule. Con» sidering the very purpose of collation, viz., the prevention of inequality among the shares of the children, it is clear the present donations should be collated, as the property donated amounts to an entire half of all the father's estate- [ Db Wet, a. C. J. — That argument would apply in the state of the law in the time of Vbet, when the principle of " lesjiti- mate portion" was in force ; but my brother Dias points out that by Ordinance 21 of 1844 that principle was abolished in Ceylon, as it has been lately at the Cape. ] That Ordi. nance contemplates only testamentary dispositions. Besides, even in the time of Voet, a father could work a great ia» (i) Van Leeuwen, Cens. Far., pt. 1, lib. 3, cap. 13, § 21. (2) Voct, ad Pand., xxivii. 6. 13. 177 ■equality nmong his chndren, by saving to each his " legili- niaie portion'' (which was but a fraction of his estate) and giving ihe bulk of his property to one child, which that child might have refused to collate. Further, collation has never been compulsory in all cases, but only where the donee wishes to take a share by inheritance in addition to the gift. The defendant here may keep his simple donations, provided he does not claim the additional one-fourteenth by inheri- tance. The very magnitude of the gift would raise a pre* sumption that the father intended to exclude inheritance by defendant. The judgment of Mr. Berwick cited lays down that collation of all considerable gifts, except where specially provided otherwise, is the rule of the Roman. Dutch, as of the Scotch, Law. Secondly, On the Merits— As regards the lands, sufficient cause of action has been shown by the proof that the defendant is in possession of more than his deed gave him and refuses to give up the excess to the plaintiffs. This excess is more even than the one-fourteenth share which the defendant claims. Though the Judge has partly adopt- ed defendant's list of the moveables he has not accepted ib altogether 5 and further the main cause of dispute was the land, and the plaintiffs having succeeded on that issue are entitled to their costs. Cur. adv. vult. (15th February, 1883). Present — Clarence, J. The following judgments were read :— Db Wet, A. C. J. — From the pleadings and evidence in this case it appears that the father of the defendant, prior to his death which happened in the early part of the year J875, donated to the defendant, by deed of gift dated ist June 1874, certain properties described and set forth in that deed. The questions to be decided are, i. Is the gift of the ist June liable to be brought into collation ? 2. Has the defendant encroached upon any portion of ground not included in that gift ? 3. Has the defendant taken forci» ble possession of the articles enumerated in List W. annexed to the libel, forming part of his deceased father's estate. With reference to the first question, Voet {ad Pand., 37- 6. 13) lays down the law as follows : " But as the condi- tions upon which all things given by a deceased person during his life-time to his descendant? are not the same, it 178 seems advisable to discuss the chief points with reference to the same. That collation ought to take place of dowry given by parents, and of donatio ante nuptias, is manifest from the following title, De Dotis Collatione, and there the question will be found fully treated of. But with reference to the question whether a simple donatio made by parents to children ought to be brought into collation, we must separate donatio remuneratoria from donatio simplex. A donatio remuneratoria is one which the father confers upon his own son, not as his son, nor from common affection, but as being the author of some benefit conferred upon him (the father) — that is, a donation which a father would have made even to a stranger, if that stranger had conferred upon him the same benefit which the son had conferred upon him. For, as the son holds such a donation not as a dona- tion bat upon a different right, and as it cannot be regarded as ^rofectitia, but must be regarded rather as adventitia,— that is, property obtained by design and remarkable service —it seems that collation of such a donation ought in no case to be made, as Pinnius following many other authori. ties lays down (de Collatione, cap. 13, num. 12). But con^ cerning simple donation itself, it seems necessary to say that it is not liable to collation except in two cases, one of which is, if the parent who gives attaches to his gift this condition, &c. ****** * Vinnius lays down that, among Zeelanders, Burgundians and the French, collation ought to be made of a simple donation : but since this does not appear to be received by a constant practice by our customs, it is best that we should adhere to the principles of the Civil Law, to which view the opiriion of Pan Leeuwen is more inclined. Fide Fan Leeuwen, Boman-Dutch Law, lib. iii, cap 16, English Trans- lation (1830) p. 309, in which passage for "single" read " simple" gifts, the Dutch words being enkele gijten- Again in Lybreghts, Redenerend Vertoog over't Notaris Ampt (vol. I, cap. 14, num. 8) we find the following laid down by that authority. " Simplex donatio, or simple gilt, is not collated, cum lileri non teneantur conferre ea quae furt atque simpliciter iii a parentibus donatafuerint, nisi parentes id expresse jusserint." Huber, {Heedendaegse Rechtsgeleertheyt, lib. 3, cap. 32, sect. 14) lays down the law as follows : " If parents have donated anything to their children from motives of genero- sity, the same need not be collated, and this has refereuce 179 to cblldran who are still in patris potestate as well as to those who have been emancipated {extra patris polestaiem) ; tor although gifts to children in patris potestate are invalid ai initio, still the gifts not having been revoked are confirm, ed by deatb^ so that they ennre to the benefit of the chiU dren, as if by virtue of a testamentary disposition, and consequently are not liable to he collated.**' Lybreghts also lays down the same proposition, but adds,. " Still the difficulty remains how a child will be able to. prove that this or that has been donated to him or her. The safest plan is to be furnished with written proof." In other words,, to avoid the qaestion whether or not donations, are to be brought into collation, the donees should be furnished with evidence of the donor's intention. In this case there is the deed itself, which clearly sets forth the names of the donor and donee, the sub}.ect. Z put in at the trial ; and no order will be made as to costs in this Court or in the Court below-^ 180 Clarencit, J. — In 1.874 Siman Perera, the father of defendant, gifted by deed to defendant portions^ described in the deed, of three lands named Delgahawatte, Delgaha- owitte, and Potuwile Cumbure. He died in i875i intestate, leaving him surviving children and grandchildren and a widow, the mother of his children. The present action is brought; against defendant by the widow and the representatives of deftadant's brothers and sisters, who complain in substance that defendant has pos. sessed himseM of more of his late father's estate than he is entitled to. They contend that defendant has encroached beyond the boundaries of the gift upon adjoining lands of his father 'Sr that he has forcibly taken possession of certain moveable property,, and lastly that he is not entitled to participate in the inheritance ah intestatO' except on the terms of bringing into collation that which was coeferred upon him by the gift. I see no reason to disapprove of the District Judge's £nding with regard to the moveable property, or with regard to the questions of encroachment. The d^fendant^ who declines to bring into collation anything taken by him under the gift, is entitled so far as the gift is concerned to neither more nor less than what is described in the gift-deed. I think that with regard to Delgahawatte the deed conferred on defendant plots A and C as shewn on plan X; with regard to Delgaha-owitte, plot C on plan Y ; and with re- gard to Potuwile Cumbure, plot C on plan Z. : and for the reasons assigned by the District Judge- There then remains the question of collation i — whether defendant is entitled to participate in the inheritance oJr intestato without bringing his gift into collation. It was not disputed on the argument of the appeal, that the gift to defendant must be regarded as a donatio simplex. For what particular purpose (if any) the gilt was made, or what in particular moved the defendant's father to make the gift, we do not know. We only know that the gift was made, with the intention, apparently^ that the doaoc should continue to enjoy the land as long as he should live. Whether or not donationes simplices are subject to coUa- tion, is a question which appears to have been very much debated amongst Roman-Dutch Jurists. In the present case the acting District Judge, following a dictum of Van der Keessel (Thesis 349), has held that the gift should be collated. In a previous case decided by the present Judge of the same CoutI in 1876, Mr Berwick hild, a to Burge (vol. 4,. p. 680). Mr. Wendt, on the other hand,, relied on Van Leeuwen {Cens. lor., 3. 13. a et seq/f;.) and the passage above cited from Van der Keessel. M.ic\iQ\d^voiSr Systema yuris Romani hodie Usitati, art, 69,6^ states the rale much as Voet states it. The Acting Chief Justice, whose opinion I have had the advantage of perusing,, cites further Dutch authorities in favor of the non.coUation. The disttnetion between a donatio simplex and a gift made- on marriage or for advancement in business is, I suppose, that the latter is assumed to be merely an anticipation, prompted by the exigence of circumstances^ of the child's presumptive share, and the former, for lack of any such consideration, is assumed to be a pure and simple bonus la the recipient. I admit that the point is one of considerable difficulty, but upon the best consideration which I am able to give it , the position taken by Voet — that a donatio simplex need not be collated — commends itself to me as the true one. On this point, therefore, I agree with the Acting Chief Justice that the judgnaent of the District Court must be set aside. 182 On the questions of fact, as I have already sakl', I do not see- my way to interferiog with the decision of the District Court. The decree in appeaU according to my viewi should- there-^ fore be : — Set aside the judgment appealed against. Decree that plaintiffs a^e entitled to plot B in Survey X. plots A, B „ Y plots A, B „ Z and that defendant is entitled to. plots A, C in Survey X plot G „ ,, Y plot C „ ,, Z Parties to hear their, own costs in each Court. DiAS, J. — I had the advantage of reading the opinions of the Acting Chief Justice and of my brother Clarence;, and as I take the same view as they do on the q^aestion of collation, it is unnecessary that I should say anything more on that part of the case. la all other respects the judgment of the District Court appears to me to be right, and I have no objection to the decree focmulated by my brother Cla? EENCE. Parties will pay their own costs in both Courts. Set aside. Decree in appeal as formulated by, Clarence, J. Proctor for appellant, tF. P. Ranesinghe. Proctor for respondents, James de Livera. 22nd Felruary and 1st March, 1883, Present — Clabenoe, J. C. R. ^ W. G. Hah Colombo, > V. 33>('3^- -' Bastian Appoohamy. Fiscals Ordinan-e, No. 4 q/" iSS;, sect- ^S—Sale of move* able property over £■] c^o in value— Fiscal' s commission. Held, that the words " when the proceeds do not exceed the sum of seven hundred and fifty pounds sterling" in sect. 48 of the Fixats 183 'OrdiiiaJice, 1867, applied only to the proceeds of the sale of inimnvea. ■ble property, and did not aSect the rate chargeable by the Fiscal on the proceeds of the sale oE moveables. The following Special Case was submitted to the Court of Bequests^ Colombo, for decision. I. The present defendant, being the executioti.creditor and holder of writ in the sait No. 81,780 of the District Court of Colombo, caused the plaintiff as Fiscal to sell on 3rd October, 1882, by public auction under the said writ certain moveable property, to wit, an incomplete ship in the Colombo Roadstead, belonging to the execution-debtor. a. At the said sale the defendant became the purchaser of the said moveable property for Es. 8,100. 3. The plaintiff as Fiscal is entitled to recover from the defendant a certain fee, in terms of the 48th section of Ordinance No. 4 of 1867, on the proceeds. That part of the said section which governs the present case runs thus : The Fiscal or Deputy Fiscal shall charge a fee of three per cent, on the proceeds actually recovered and return thereof made to the Court in respect of every sale and resale of moveable property, and two per cent, on the proceeds of sale of immoveable properly belonging to the debtor V(hen the proceeds do not exoeed the sum of seven hundred and fifty pounds sterling. Whqn the proceeds exceed that sum, the Fiscal or Deputy Fiscal shall charge a fee of fifteen pounds sterling, and of ten shilling's for every hundre.l pounds of the proceeds over and above the said sum of seven hundred and fifty pounds. 4. The plaintiff claimed as his fee under the above section Rs- 243, being at the rate of 3 per cent, on the said sum of Rs. 8,100. j. The defendant disputed the said claim and contended that by the afore»recited section, in cases when the proceeds of sale whether of moveable or immoveable property exceed j^7_50, the Fiscal could charge only £1^, aad 10 shillings for every £^°^ > ^'^'^ calculating at this rate the fee would amount to only Rs. 153, and the defendant paid to plaintiff the said sum and refused to pay the balance Rs. 90 claimed by plaintiff. 6. The plaintiff on the contrary, urging that the defen^ dant's contention would apply only in cases of the sale of immoveable property and not to the present case where moveable property has been sold, persists iu claiming the balance Rs. ^o from defendant. The question, to be decided by the Court is whether, in cases of the sale of moveable property, where the proceeds exceed the sum of £750, the Fiscal can charge his fee at the 184 ra^eof 3 per cent., or whether he is not bound to charge ■onIy;^i5 for 5^750, and ten shillings for every hundred pounds of the proceeds over and above the sum of £'!£(>. in the event of the Court deciding that the Fiscal can charge at the rate of 3 per cent., then judgment must be entered in favor of the plaintiff for Es. 90 and costs of suit. If the Court faolds otherwise, the plaintiff must pay defendant's costs. The Commissioner (Smart) decided as follows : Clause 48 runs thus : ^' The Fiscal shall charge a fee of 3 per cent, on the proceeds of the sale of moveable, and 2 per cent, on proceeds ot sale of immoveable property when the pioceeds do not exceed ^^750 sterling." Then comes a full-stop, which terminates the sentence. I read this to roeao that where property is sold of less value than £^^0 a fee of 3 per cent, may be charged on the proceeds if the property is moveable, and 2 per cent, if it is immoveable. Then follows this sentence : ' when the proceeds exceed that sum' — that is to say, if property whether moveable or immoveable is sold and its proceeds exceed ,f 750 — then a fee of j^ 1 5 shall be charged, with jo shillings for every additional ;^ioo. If the Ordinance dneant to exclude moveable property from this rule, then there would have been special mention of it as in the previous sentence. The clause relates to the sale of property, moveable and immoveable indiscriminately." The plaintiff appealed. Neil, D. Q. A-, for the plaintiff, appellant — The limiting words " when the proceeds do not exceed the sum of ^^750 sterling " attach only to the words imme. diately preceding, providing for the sale of immoveable property, leaving 3 per cent, to be charged on every sale of moveables. The absence of a comma or other stop after the words " belonging to the debtor" clearly shows this. This is the punctuation in the volume declared by the Ordinance No. 7 of 1872 to contain the true version of the Ordinances up to 1870. When the language of a siatute is ambiguous, the punctuation is a valuable guide to the meaning of the legislature. See remarks of Lord tomiUy, M. R., in Barrow v. IVadkin (i). Though there the Roll of Parlia- (1) 24 Bcav., 330. 165 inent was taken to be the best evidence, it was found uriipunctuated, and the case was decided on the general scope of the Act in question, 13 Geo. 3, c 21, s 3. If we take the comma after the word " property" as dividing the clause into two parts, we have the fomer part of it providing for all sales of moveables, and the latter part for all sales of immoveables. Again, there is no provision for the resale of immoveables. Further, considering the reason for the remuneration, there is more trouble required on the Fiscal's part in the sale of moveables (involving custody, catalogu- ing, sale in lots, &c.) than of immoveables. The dislinctioa I contend for seems carried out in sect. 49 too. Grenier, for the defendant, contra— The words " when the proceeds" after the full-stop evi^ dently cover the proceeds both of moveable and immoveable property. The difference in the present case between the two rates is only Rs. 90 ; but what if the Fiscal had to sell 3 steamer worth over ;f jo,ooo ? Is the Fiscal then to charge 3 per cent, on that sum for what costs so little troiiible, and to have only a per cent, on the proceeds of a coffee estate, where there are the formalities of notices, &c • Further, half.fees are chargeable on stay of sale of all property without distinction of rate. The words of the statute are clear, and no ingenuity need be resorted to for ascertaining the intended meaning. [During the argument, the copy of the Ordinance in question, signed by the Governor and filed in the Supreme Court, was brought into Court, and the learned judge remarked that though it agreed with the authorised volume in having no stop after the word " debtor," yet the punctu- ation on the whole in that copy was grossly incorrect, there being no fulUstop after the word " sterling'' though the following word began with a capital letter.] Cur. adv. vult- The substance of the following Judgment was delivered in Court by Clabencg, J. on ist March 1SS3, the written Judgment being subsequently handed in. Clasbngb, J. — Respondent, being execution creditor in a District Court action, issued his writ, under which the Fiscal) who is appellanr, seized certain moveable property; 186 to wit a ship, and sold it under the writ. The property ■was bought by respondent at the price of Rs- 8,ioo. The question which I have now to decide is, whether upon the true construction of the 48th section of the Fiscals Ordinance, 1867, the Fiscal is entitled to charge three per cent, on Es. 8,100 ; or whether he is only enti- tled to charge at the rate of ;f 15 for the ^Jya plus 10 shillings per cent, on the surplus over and above that sum, That is to say, the question is, whether the words commen. cing with line 9, " when the proceeds exceed that sum the Fiscal * * * shall charge a fee of ^ijetc," apply to sales of moveable as well as of ina moveable property, or whether they apply only to sales of immoveable property when the proceeds are over ^f 750. I confess that when the question was first presented to me I felt considerable doubt upon the construction of the enactment, so much so that I suggested to Counsel whether the point should not be argued before the Full Court- Upon consideration of the matter those doubts have been removed, and as Counsel prefer to have my decision rather than delay the matter by a re-argument before the Full Court, I will state the conclusion at which I have arrived. I have compared the section as printed in the 1874 Edition of Ceylon Legislative Enactments with the copy furnished by H. E. the Governor to be filed of record in this Court- And 1 find that these two prints of the section tally in all respects except on two points of punctuation. In the 1874 edition there is no comma before " when" io line 7. In oui copy there is a comma there. In the 1874 edition there is a full-stop at the end of line 8. In our copy there is no full-stop, but the next line begins with a capital letter. This merely shews that the punctuation of the enactment as printed in our, which is the original, copy has been careless- I find that the enactment is taken from the loth section of the Rules and Orders of nth July 1840, which were repealed by the Ordinance of 1867. Substantively the only difference between the enactment, as printed in the Rules and Orders (page 124) and as now printed in our copy of the Ordinance of 1867, is that in the Eules and Orders, after the words " seven hundred and fifty pounds sterling," there is a semicolon and the word " but." I do not think that this comparison of the original Rules and Orders and the two prints of the present enactment throws much light 187 on the question ; but I think it favours the construction at which I have arrived rather than the contrary one. In all three prints the enactment begins by declaring that the fiscal is to charge three per cent, on " every sale" of moveable property, and that he is to charge two per cent, on the sale of immoveable property when the proceeds do not exceed ^^750. Now I cannot satisfactorily account for the use of the word " every" unless it was intended to in- clude all sales of moveable prepertyy to whatever amount. Read the enactment up to that point, and it implies that all sales of moveables} to whatever amount, are to pay three per cent. ; and that sales of immoveables up to £'j^o are to pay two per cent. There then is something still to be provided fon viz. sales of immoveables over ^750; and those are provided for in the next few lines. I believe this to be the meaning of this enactment, and that there has merely been a little awkwardness in the punctuation and the frame of the last part of the clause. The words " every Bale • * * of moveable property'' are to my mind quite inconsistent with the other construction ; and, moreover, had it been the intention of the Legislature to give 3 per cent, on moveables only up to ;^75o it would have been so easy to place that meaning beyond doubt by omitting the "every"' and beginning the clause after this fashion— " When the proceeds, &c., do not exceed £TS° *'l*e Fiscal shall be entitled to charge 3 per cent, on the proceeds of moveable property and two per cent, on the proceeds of immoveable property, but," &c. There is another consideration which was adverted to in argument and which seems to favour the construction which I am now putting on the Enactment. It was urged that moveable property being in general sold in a number of small lots, the sale is more troublesome than a sale of im^ moveable property, which would be sold in one lot or at most comparatively few lots, and that on that ground the Legislature probably intended that all sales of moveables should pay a higher rate than sales of immoveables. I think that that is so. Doubtless if sales of immoveable property were conducted on Conditions of Sale having due reference to the execution debtor's title, the task of mana- ging such sales would be one requiring far more trouble and responsibility than sales of moveables ; but we must consider the practice as it exists and has existed, and so far as my impression goes, Fiscars sales of tramoveable property are 188 not conducted in this country on conditions of sale as to title. As the parties to this Special Case, viz. the Fiscal and tha execution creditor who is the purchaser, desired ray opinion on the point, I have now stated it. I may, however, observe that there is a party interested in the qaestion, vi2. the execution debtor, who is no party to this case, and who is therefore not ax necessilate bound by the result of the case ; and I may further observe that the point would have been more appropriately raised, to say the teast, in the District Court ease. Since, however, the two parties to ^thts appeal have been to the trouble and expense of contesting this Special Case, I have thought it right to give my decision- The result is, that according to the terms of the arrange^ ment between appellant and respondent, I find, as between appellant and respondent, that appellant is entitled to the E.S. 90 mentioned in the case, and to his costs of the case in both Courts. Set aHd». Proctor for If'. Hall, ^. B- Bodrigue. ProctOF for Bastian, B. CoomaraSwamy- 26th Septemler and t^th November^ 1882 and 13th March, 1883. Present — Db Wet, A- C. J., Clarence and Dias, JJ. D. C. 1 F. W. Neatb Kandy, > v. 89,9 J 7. J Maria de Abrbw Haminey. Servitude ne luminibus ofBciatur — Acquisilixm by prescrifh- tive poMwwon— Juris quasi possessio — Ten years' uninter. rupted enjoyment— Ordinance 8 of 1S34, sect. * — Ordinance i2 of 1^)1, sect. 3 — Kandy an Provinces, lawinjbrce in — Regulation 13 of 1822 — Ordinance j 0/18^2, sect- 5. Plaintiff and defendant owned adjoining lands. Plaintiffs house stood close to the boundary, and his sitting-room and bedroom had -windows looking out on defendant's land, through which plaintiff had for over ten years uninterruptedly enjoyed light and air. Defendant began to build on her own land so as to shut oat such light and air from plaintifi's windows, and plaintiff sought an injunction to restrain her from so doing. 189 Meld, that the servitude claimed by the plaintiff (ne litmiaibui officio,^ tur), being a negative servitu'le, could not, under the Roman Dutch Law, be acquired by prescription in virtue of bare enjoyment for the necessary period, such enjoyment involving no invasion of the neighs bout's domiidum. The Regulation 130! 1822 repealed "all laws heretofore enacted or Customs existing" in the maritime districts of the Island " with respect to the acquiring of rights or the barring of civil actions by preset iption";: and this repeal was kept alive by the subsequent Ordinances, 8 of 183^^ and 22 of 187 1. Ordinance 5 of 1852, sect. 5, provided that, on a casus omissus arising in the Kandyan Provinces, resort should be had to the law on the subject in force in the maritime provinces. Held, that consequently the Roman Dutch Law on the subject of prescription was in effect repealed for the Kandyan Couintry also. There being no local Kandyan law on the subject of prescription,, and the case therefore falling under Ordinance 8 of 1834. or Ordinance 22 of 1871, Held, (following C. R. Point Pidro 41 (i), that ten years'" enjoyment of the use, convenience Or advantage, whicn would be enjoyed by the owner of the dominant tenement if there were a servitude in existence,. brings the corresponding servitude into existence, by virtue of sect. 2 of OrdinanceSsf 1834 (corresponding to sect. 3 of Ordinance 22 of 1871)^ and that the plaintifi, havii'g had the uninterrupted enjoyment (without express permission Or licence) of these window- lights^ deriving light from defendant's land, was entitled to have the defendant restrained by perpetual injunction fiom building so as to obscure them. C. R. Point Pedro 41 (i) dissented from by Cl&rence, J. The libel, which was filed in January 1882, alleged thab the plainti£E, as partner of J. N. D'Esterre, the owner of a land called Dewategahamulahena, had been in the possession of, and bad resided in the building on, the said land,, since October 187a. That the said building contained a drawing* room and a bed.room, each of which obtained air and light through a window from the open and vacant ground on the S.W, side, which open ground formed part of a land belongs ing to and in the possession of D. H. Fonseka, the defen. dant's late husband. That plaintiff became sole owner on 7th June, 1877, and had enjoyed for a period of lo years all the light and air that came into his drawiag.room. That the defendant who had succeeded her husband in possession, wrongfully intending to injure the plaiiuiff and to deprive him of the use of the said window, had laid the foundation of a wall to be erected at a distance of 3^ feet from the S. W. wall of plaintiff's dwelling house, and had continued to build the said wall, which had attained the height of 4 feet, to the plaintiff's damage of Ks. 4,80a. The libel concluded wi"-h a prayer for a declaration of title (i) RamaNathan, 1860-62, 75. 190 to the free and unrestricted enjoyment of light and air, and for damages, and for an ad interim injanctioa. The answer denied the prescriptive enjoyment of lo years, and denied that Such enjoyment conferred any right on plaintiff, and put the alleged trespass in issue, justifying the building as on the defendant's own land. The defen. dant prayed for a dismissal of plaintiff's suit and for a decree for Bs. joo damages caused to the defendant's wall by plaintiff pulling down a part thereof,, and for a dissola" tion of the ad interim injunction granted by the Court. At the hearing in the Court below FanLangeTiLerg and Eaton appeared for the plaintiff, and Beven for the defend" ant. After evidence heard on both sides the District Judge {Lawrie) gave the following judgment : It forms no part of the defendant's case to deny that the building which she intends to erect will interrapt the en- trance of light and air into two of the plaintiff's rooms. She may admit to the fullest extent every word which the plains tiff and his witness have said. But " it often happens in the ordinary proceedings of life that a man may lawfully use his own property so as to cause damage to his neigh- bour which is not injuriosum,, or he may, while pursuing the reasonable exercise of an estabMshed right, casually cause an injury, which the law will regard as -.a misfortune merely,, and for which the party from whose act it proceeds will be liable neither at law nor in the forum of conscience.'' (Broom's Legal Maxims, 197). One of the illustrations which broom gives ot this is, " So a man may lawfully build a wall on his own ground in such a manner as to obstruct the lights of his neighbour, who may not have acquired a right to them by grant or adverse possession. He may obstruct the prospect from his neighbour's bouse." The question for decision here is. Has the plaintiff acquired a right to prevent the defendant from building up to the boundary of her own land ^ It is not said that the plainiiShas asserled such a right except by having windows in his own house, nor is it said that the defendant has done anything which infers her acquiescence in the acquisition by the plaintiff of such a right, except that she has not until now built on her own ground- I am of opinion that the mere circumstance of having made no objection to his having opened these windows does not infer acquiescence by the defendant, nor confer on the 191 plalntifif a right to prevent her onaking full use of her own property. I have not been referred to any passages in writers on Roman.Dtitch Law which support the plaintiff's contention. The defendant's Counsel referred me to Grotius, II. 34, 22, 23 (Herbert's Translation, p- 209). " Window right, that is a right to have a window looking over another's ground, and confers a right of free light or jus luminibus non qfficiendi But the sufferance of a window which overlooks the laad does not of itself and without other aid afford proof of servitude." I have looked at Voet's Commentary, VIII. 3. 10, II. I find nothing there which shows that the servi.. tude ne luminibus officiatur can be acquired by the mere existence of windows overlooking another's ground. For- merly by the law of England the acquisition of this servi- tude after immemorial enjoyment rested on a presumption of a lost grant. There is no such ground here, but on such a question as this the old Common Law of England is not of authority in this Colony. Even that Common Law —in the words of Colbbisge, J., in TruscoU v Merchant Tailors' Company (i) — has been siaiplitied and almost " new-found"' by the Act a and 3 Will. 4 c. 7 r. Lord Westbtjet in Tapling v. jfones (a) says, " The right to what is called ' an ancient light' now depends upon positive enactment. It is matter jum posilivi, and does not require, and therefore ought not to be rested - on, any presumption of grant or fiction of a licence having been obtained from the adjoining proprietor." That Act of Parliament, a and 3 Will. 4 c- 71, is of course not law here. By it nothing but ao years' enjoyment of light gives prescriptive right to it. Of the English cases there are, certainly, some which sup.* port the plaintiff's contention, while others favour the defendant's, and of the latter I refer to the reasoning in fPebb V. Bird (3) and Ghasemore v. Eichards (4). But at the same time I hold that the law of England' has nothing to do with this class of cases in Ceylon. By the law of Scotland, founded on Roman Law — therefore here of more weight than English Law — the acquisition of this servitude depend- ed on a presumed grant, and by that Law (see Stair 2. 7. 9 ; JLrsk'iDe's Institutes 1. 9- loj Bell's Principles, §§ 994-Jooj), (1) I J Ex., 863525 L. J. Ex., 173. (2) 34 L. J. C, P., 344. (3) 13 C. B., N. S., 841 ; 31 L. J. C. P., 335- (4) 7 H. L. Caf., 349. (4) 7 H. L. Caf., 349. 192 the tr-ere eircurastance of having made no objection to a neighbouring proprietor opening a window will not infer a grant of servitude of light or prospect. I have not found any case in our Incal Reports in which the question as to faow the servitude ne luminibus officiatur can be acquired is discussed, I am of opinion that by our Prescription Ordi^ nance, either 8 of 1834 or 22 of 1871, no one can acquire a right in or over his neighbour's land merely by exercising ordinaiy acts of ownership over his own land. To confer a right by prescription, there must be possession by the person asserting the right. I have read carefully the judgment of Sir Edward Creasy in G. B. Point Pedro 41, (6), where he discusses the possessio ot juris quasi possessio of servitudes. It is, I think, a fair inference from that judgment to hold that there must be the exercise of a jus in re, something done on or to the subject over which the servitude is claimed. There must be actual enjoyment, not a mere claim of title, an abstract right. There Sir Edward Greasy defined " possession" when applied in legal language to a servitude, such as the jus itineris, to be " the exercise of a ;»s in re with the animus of using it as your own, as of right, not by mere force or by stealth, and not as a matter of favor, nee vi, nee clam, nee precario." I am of opinion that the plaintiff has no right to prevent flefendant from building on her land, that the injunction Bhould be repealled, and that the action should be dismissed with costs. The plaintiff appealed, and the appeal was argued on a6th September 1882, before Clarence and Dias, J J. Van Langenberg, for the plaintiff — 1. There is such a servitude as that contended for, though this appears to have been doubted in the court below. Henry's Van BerLinden, p. 169. IGrenier—l admit that such a servitude is known to our law, but I deny its acquisition in the present instance.] 2. As to acquisition by prescriptive possession. Ordi. nance No. 8 of j 8 54 must govern this case. Do servitudes come under the " immoveable property.' for the prescrip- tive acquisition of which in 10 years sect. 2 provides? The interpretation clause of the later Ordinance '2a of 1871) includes servitudes and easements in " immoveable (6) RamaNathan, 1860-62, 75- W3 property," the term of prescription being lo years. It has been held that right of way is " immoveable property," under the old Ordinance. C. R. Point Pedre 41 (r). "By parity of reasoning, all easements and servitudes that issue out of lands are immoveable property under the Ordinance." (2). So a person may, through enjoying the right unin< terruptedly for 10 years, acquire the servitude of having his tree overhang his neighbour's ground. C. B. Colombo 39,971 (3). As to English Law, Staight v. Burn (4), though that Law is entirely different from the Roman Dutch on this point. It is proved that the lights in quesr tion existed uninterruptedly for over u years ; so that the title by prescription is made out. Grenier, for the defendant, contra — There is a difference between the possession of corpo- real and of incorporeal property, and the term juris quasi possessio was invented to cover the latter case. Further, as there must be the traditio of immoveable property before a vendee can sue a third party in ejecttpent, so there must also be the quasi tradilio of a servitude before it can be acquired by possession, which differs in its character in the case of a positive as distinguished from a neg,aiive servi. tude, " Modern writers on Roman Law are much divided in opinion whether servitudes were really constituted pactio^ nihus et stipulationibust by agreements and stipulations alone, or whether we are always to understand that, to perfect the title, what is termed quasi traditio was necessary. That is, whether, as traditio was necessary to transfer the property in a corporeal thing, so it was necessary, in order to transfer the property in an incorporeal thing, that the person to whom it was transferred should be placed in tha legal quasi-possession of his right. If the servitude was a pobitive one, it is very easy to see how this quasi-possession could be established ; for directly the right was exercised with the animus possidendi, and permitted to be so exer* cised by the owner of the res serviens, the person in favour of whom the servitude was constituted would have the q uasLpossession. But when the servitude was a negative one, when the owner'of the res serviens was merely bound not to do something, the only evident mode by which poss^ ession could be said to he gained was, when the owner of (i) RamaNatban, 1860-62, 75. J (3) RaroaNathan, 1863-68, 234, (2) 2 Thomson, Instil,, 182, ] (4) L, R., 5 Cb, App., 163. 194 the r-es dominans successfully resisted an attempt of the owner of the res serviens to do the thing which he was bound by the servitude not to do... On the whole, it seems the better opinion that quasi-tradition was a necessary part of the constitution of a servitude" (i). " The possession of negative easements may be acquired in two ways— by adverse user, and by legal title ; i. e., ist, by resistance to the attempt to obstruct the user ; and, by any juridical pro- ceeding, which in its form is capable of transferring the right ot easement." (2) [Clarence, J. — Under the English Law mere enjoyment uninterruptedly for so years confers title. You contend that by our Law here there must in addition be something active done by the owner of the dominant tenement.] Yes. If, for instance, the defendant put up a screen, which plaintiff removed, and defendant desisted from further interru[!ition, there would be the necessary action on the part of the claimant of the servi- tude. [Claeencb, J. — That may be the Civil Law, but it seems inequitable that a man who has enjoyed a light for an indefinite length of time should be deprived of it for want of the quasi iraditio. ] In England, Act 2 and 3 Will. 4 c. 7 1 expressly says that 20 years' continuous enjoyment is sufficient to vest title. Section 3 of that Act enacts " that when the access and use of light to and from any dwelling house, workshop or other building shall have been actually enjoyed therewith for the full period of 20 years without interruption, the right thereto shall be deemed absolute and indefeasible." Our Ordinance speaks of " adverse possession" and not mere enjoyment, and we must resort to our Common Law and not the English Law to find what the possession applicable to servitudes is. [ Clarence, J. — The Judge in the Point Pedro case holds apparently that simple enjoyment would be enough.J Yes, but that enjoyment, to afford prescriptive title, must have a juridical beginning. In England the practice is to put up a screen opposite your neighbour's window, to prevent the Statute running. Here we have to interpret " adverse possession." How can a man who builds on his own land be said to act adversely to his neighbour ? [ Clarence, J. ■ — Your argument seems to amount to this, that a servitude can be acquired by opposition only and not by acquiescence.] Not so : rather by acquiescence on the part of the owner of (i) Szndats' Jiistinian, 6th Ed., 123. (2) Savigny On Possession (Perry's Trans.) 386, 195 the res serviens after a successful resistance by the owner of the res dominans to the obstruction of light. If, as in this case, the plaintiff pulled down the defendant's walli and the defendant acquiesced for lo years, the plaintiff would undoubtedly acquire a servitude by prescription. My position is supported by Voet (i). Interim praeter^ miitendum haud videtur, non eo solo induci servitutis prce- scriptionem, quod forte vicinoirum unus jure sua in re sua longo. tempore usus non est, ac inde commodum alter vicinui percepit. Quid enim, si arhores in suo non plantaverit, viridaria non Jecerit, altius in suo non cedificaverit, atque ita tontigerit, ut vidua lumina diutissime remanserint non ohscurata, liberiorve prospectus haud impeditus ? Perperam sane vicinus inde sidi altius non tollendi, prospeclui luminibusve non offidendi, servi- tutem asseruerit; cum altius exstruere in suo, et similia facer e,. res merce facultatis sint,. quarvna intuitu prcescriptio probata non est; sed omni tempore libertas salva. Voet cites Neostadius, who says, Oum enim naturalis fuse aeris in tulinam perceptio sit facultatis tantum, nulla unquam tempore prcescriptionem parere potuit .- hoc amplius, quod negativa heec servitus non nisi hominis prescedente facto acquiri potuit. Factum enim prohibitionis intercessisse oportuit et preeterea huic prohibitioni obtemferatum : quorum neutrum hactenus intercessisse vel Jaiente adore verum est (a). The light to which a man is naturally entitled is the perpendicular light of the sun, not the lateral light over another's land, which can only be acquired by servitude. [Clarence, J. — The use to which the rooms are put is also an element for con- sideration. So a diamond merchant needs more light than ordinary for his trade. Then there are cases which deal with the right to 45 degrees of light. ] But that is under the Metropolitan Buildings Act, and does not apply here. VdnLangenberg, in reply — The defendant admits 10 years' possession, but says prescriptive possession should originate with some adverse assertive act on the part of the plaintiff, such as the bringing of an action to remove an obstruction to the light. If this argument p^revail a servi- tude will never be acquired by prescription, for plaintiff could not have brought such an action successfully if he had not already acquired the right to the light. Had the con. templated obstruction been put up within the 10 years, the (i) Ad Ptmd., viii. 4. 5. (Hoskyns' Trans.) 41. (2) Supr, Cur, decis,, decis, 98. 196 plaintiff would have had no remedy, but our uninterrupted enjoyment for that period confers on us, a right which cannot now be resisted. The case wa(s subs^queiitly (oo apth November) put on. for reargum^nt before the full Court (De Wet. A. C. J., Clarewge and Dia's|. J J.) when Counsel agreed to leave the case without further arguineilit, furnishing their lordships with c6pies of the above report of the argument. Cur. adv. vult. (13th Marchr 1883). Db Wbt, A. C J— The libel in. this case alleges that the plaintiff was the owner of a land; called Dewetagahamule hena, and while in possession of the same had resided in a building in the said land since October 1870 ; that the building contained a drawing-room and a bed^room, each of which obtained air and light through a window from the^ open and vacant ground on the S. W. side,, which open ground formed part of the land' belonging to and in the possession of D. H . Fonseka, the defen^Iant's late husband ;. that plaintiff had enjoyed for a period of 10 years atl the light and air that came to his drawing.>room J that the defendant wrongfully intending t» injure the plaintifE and to deprive bim of the use of the said window, had laid the foundation of a wall to be erected at a distance of three and a half feet from the S. W.^ wall of plaintiff's dwelling-house, and had continued to build the said wall, which had attained the height of four feet,^ to the plaintiff's damage of Rs. 4,800. The libel prayed for a declaration of title to the free and unrestricted enjoyment of light and air^ and for damages, and for an ad interim, injunction. The answsr denied the prescriptive enjoyment of tea yearSf and denied that such enjoyment conferred any rigjht on splaint'tff, and put the alleged trespass in issuf , justifying the building as on the defendant's own land. The defend*- ant pr^ed ior a dismissal of plaintiff's suit, and for a decree for Rs. 500 damages caused to the defendant's wall by plaintiff pulling down a part thereof, and for a dissolution of the injunction granted by the Court. From the evidence in this case it is quite clear to my mind that the obstruction complained of will, if proceeded with, interrupt ^ihe entrance «f light ^nd air hrto the roams of the plaintiff's house as alleged in his libel. That every 197 man is of right entitled to the enjoyme»t of light and air is clear law, and it is equally dear that the defendant in this case has no legal right to continue the obstruction com- plained of. To support these propositions I need only quote some few passages from Fan> Leeuwen^ That author^ in his work on Roman-Dutch Law, in treating of the right of pro-^ perty and of urban servitudes, lays down the following (Ed» i8ao, p. 1 06 et seg^ : " All rights to any goods- consist either in any property,, or in the right of possession. Property is that right which appertains to every thing, whether it be in possession or not ; because it may eonsist of property without possession or possession without property 1 in consequence of which, property is distinguished into full and defective property- Full property is that which any person has, besides the right of possession, and also the complete use thereof. Defective property is when a thing belongs to one person, the benefit of which is enjoyed by another (usufruct) ; or ia which there h some defect, so that the proprietor cannot fully dispose of it agreeably to his desire- (servitude)i." In page 1S9 of the same edition he lays down the foUoW'^ ing:— " The benefit inferior to usufruct is service, that is, the- right of prohibiting something beyond or without the com- mon right, or of doing to or in another's house or upon- another's ground something for his own benefit :. for other- wise, according to common right, another is at liberty to do in or opon his own property whatever he pleases, without molestation by another. Services, therefore, are understood to be two.fold : commanding, in what belongs- to another ;. amd sufferings from -another in so far as respects one's own property." Again ita page igt : " Services are usually divided inta house services and rural services, which dififer from each other in the following respects, viz. all rural services consist in doing or suffering, while iKvuse services consist not only in doing or suffering, but alsa in an obligation of not doing something upon one's own property, which otherwise is- permitted to be done, such as not to build higher, not to- surround or prevent the light, or to do similar acts. More- over, rural services may from their own nature be done by turns and intervals, whereas house services are lasting and continual." In page 197 the following is laid down : " A service, on account of which a person may not do whatever 1&8 . he pleases out of regard for another, consists of impediment of building higher, of free light, free prospect y right of opening windows, prohibition of sight, and the like.. Im- pediment of building higher is that right, by which one neighbour may prohibit another from raising his building in height,' as otherwise according to common right he would be at liberty to raise the same as hi gh as he pleases even to the hindrance of another, which in some respect agrees with the right of having a free light and includes the ser- viee that the light may not be impeded by any higher building, by virtue of which it ought to remain so far from such lights that the same cannot be shaded by any building or trees." Ruber (i) lays down the folbwing : " The right that my neighbour shall not build so as to obstruct my light. I do not lose it,, even though he should not so build for jo years, but only if he has built anj obstructed my light, and I have acquiesced in the same for lo years." This, amongst many other authorities,, being the lav, and as I am clear upon the facts as elicited in evidence that the building which the defendant intends to erect will in. terrupt the entrance of light and air into two of the rooms of the plaintiff, I am of opinion that the judgment of the District Court should be set aside, and that judgment be- given in favour of platntifE restricting the defendant from interfering with the plaintiff in his right to the enjoyment of light and air as set forth in his libel. The appellant to- have his costs in this Court as well as ia the Court below. Clarence, J. — In this case the pl»ntifF, the owner of a- house ia Nawalapitiya, seeks a perpetual injunction res> training defendant, the owner of the adjoining plot of land, from building so as to obscure certain windows in plaintiff's house. At the conclusion of the trial the learned District Judge dismissed plaintiff's action with costs, and dissolved an interim injunction which had been granted. Plaintiff appeals. The facts are clear. The windows in question have existed since 1870- They lookout upon defendant's land* Up to December 1881 or Januaiy 1882, there was no wall' on defendant's land within 40 feet of the windows, so that (1) Heedendaegse Rtchtsgelee^-theyt, Bk. 2, cap, 45, sed S, DatcU Eaiu'on 1768, p. 294. 199 the windows, which are those of sltting.room and bed^room, enjoyed a free access of light. In December i88 1 o'- January i88a, defendant began building a wall in front of the win- dows, at a distance of about three and a half feet. The evi- dence satisfies me that the building of this wall, which at the date of the trial had been built to a height of 8 feet, must very materially darken the looms in question j and the si>le point for dedsion upon this appeal is, whether or not, plaintiff had, at the time when defendant began the building, ac- quired a right as against defendant to the window lights which he now claims. It is not disputed that for a period of more than ten years previous to the commencement of the obstruction, plaintiff and his predecessors in title had enjoyed free access of light and air to the windows in ques. tion from the defendant's ground. Plaintiff contends that he had thus acquired by prescription a right to these lights as against the owner of the adjoining land. What plaintiff thus claims is the servitude ne luminibus offidatur of the Roman Dutch Law, corresponding to the easement of window-light of the English Law. There can be no question but that, under the Roman Dutch Law a negative servitude such as this is could not be acquired by prescription in virtue of bare enjoyment such as plaintiff has had in this case. The essential difference between the user in the two kinds of servitude, negative and positive, is obvious. In the positive kind, such as way or path, the user is attended by an actual invasion of the neighbour's dominium. Every time I cross my neighbour's land to get to the high-road I commit a trespass against his right, and a certain number of years' undisturbed practice of so doing conferred under the Soman Dutch Law the prescriptive right to do so in perpetuity, creating in fact the servitude of right of way. But in the negative right, such as window light, the enjoyment is not attended necessarily by any invasion of the neighbour's dominium. Voet (ad Pand., viii. 4. 5) is as distinct as possibly can be in laying it down that bare enjoyment will not create the negative servitude by prescription j and he cites from Neostadt (Deds. 98) a decided case which is precisely on all fours with the present, in which the owner of the windows failed to establish his right, although until the neighbour began to obstruct them they had remained unobstructed from beyond the memory of man. This undoubtedly was the Roman Dutch Common Law 200 ■with regard to the -chaTacter of the enjoyment necessary in order that this servitude might be created by prescription. The length of the necessary term might of course be a matter of local legislation. It is, however, ■equally clear that the Roman Dutch Com- mon Law on the matter has been swept away by repeal; There is no local Kandyan Law on the matter. The Regu. lation No, 13 of 1822 repealed " all laws heretofore enacted, or customs existing with respect to the acquiring of rights or the barring of civil actions by prescription."' 1 hat re- peal, however, was expressly limited to laws and customs enacted or existing '"within and for the maritime districts of this Island." The repeal was kept alive by the subsequent Ordinances of 1834 and 187 1. The 5th section of the Ordinance No. 5 of 185a enacts that " where there is no Kandyan Law or custom having the force of law applicable to the decision of any matter or question arising for adjadi.; cation within the Kandyan Provinces, * * * the Court shall in such case have recourse to the law as to the like matter or question in force within the maritime provinces, which is hereby declared to be the law for the determi. nation of such matter or question." Consequently the Roman Dutch Law on the subject oi- prescription is in effect repealed for the Kandyan Country also. The only questions then remaining are, whether the Ordinance No. 2 2 of J871 applies to the creation of the servitude ne luminibus officiatur ; and, if so, with what effect? If the Ordinance does not apply, then there is no law in Ceylon under which this servitude can be acquired by prescription. In iSjS it was held by this Court (2) that the 2nd section of the Ordinance No. 8 of 1834 does not apply to servitudes. That was a claim of right of way, and the Court, while holding that the Ordinance did not apply to servitudes, presumed a grant, on account of the immemo- rial time throughout which the way seemed to have been enjoyed In i860, however, that decision was reviewed by Sir Edward Creasy (0. R. Pi^int Pedro 41 (3)), who held ex- pressly, overruling the older decision, that the Ordinance did apply to the creation ol the servitude of right of way. The tbird section of the Ordinance No. 22 ot 187 1 re-enacts tolidem verbis the second section of the Ordinance of 18J4. (2) D. C. Colombo 22909, 3 Lorenz, 119. (3) RamaNaUian, i860, 75. 201 Sir E, Creasy was of opinion that the juris quasi possessio spoken of by jurists when dealing with servitudes fell with- in the scope of the phrase " possession of immoveable pro^ party" as employed in the Ordinance, and the conclusion of the Court was summed up as follows; — " Altogether, the Supreme Court has no doubt that the words ' possession of immoveable property' in the Ordinance may app^y to enjoyment of a right of way. There must be actual en* Joyment, not mere claim of title or abstract right ; and the Supreme Court may define ' possession,' when applied in legal language to a servitude, suph as the^'z^; itineris, to be the exercise of a jus in re with the animus of using it as your own as of right, not by Wf re force, not by stealth, and not as a matter of favour, — nee vi, nee clam, nee precdrio." With unfeigned respect for the eminent jadge who proi,. noijnced this decision, I am wholly unable to suhscr.ib^ to the reasoning by which the conclnsion is arrived at- I state my own opinion, pf course, wjtb diffidence, when I find myself obliged to differ from the considered opinion q£ a former Chief Justice of this Court. That a servitude is immoveable property is indisputable, but the terms of the Enactment appear to me incapable of bejng by any logical process construed so as to effect the creation of property of that kind. They appear to me to deal only with pro* perty already in existence at the beginning of the ten years. Until the servitude has somehow been brought into being, there is no property in it in any sense whatever : it has no existence. And I think that the fallacy in the judgment reported in RamaNachan is apparent in the extract whic}! I have quoted from that judgm^ti in the empla3'ment of the phrase " the words ' possession of immoveable property' may apply to enjoyment of a right of way." I think the words " possession of immoveable property" do apply to the -enjoyment of a fight of way. But the words of the Ordinance are " ten.years' possession." Now in the case decided by Sir E. Creasy no. right of \raj existed during the I o years, and therefore none w(%i4ld be enjoyed. The fallacy lies in confusing the act of losing the wayi with the servi" tude or right to do so. The servitude onqe in existence, it would no doubt .become> as property, capable of 'being a subject-matter for the Ordinance ; but in my judgment the words of the Ordinance cannot reasonably be interpreted as applying to the creation of the servitude. It is within my 202 recollection that Chief Justice Sir John Phear felt himself unable to construe the Enactment as applying to the crea- tion of servitudes- The decision reported in RamaNathan has, however, been steadily acted upon ever since, so far as concerns rights of ■way J and that being so, I feel mvself bound by it, however much I may disapprove of the ratio decidendi. Being then so bound, can I for the purposes of the present case distin. guish from the case of positive servitudes, like right of way, negative servitudes such as that now in question i I am of opinion that I cannot. For I take the decision of Sir £, Creasy to be, that the ten years' enjoyment of the use, con- venience or advantage which would be enjoyed by the owner of the dominant tenement if there were a servitude in existence, brings the corresponding servitude into exis- tence. I think the decision wrong, but I consider myself bonnd by it, and being so binding on me, it seems to me to apply equally to negative and positive servitudes. The result, then, is that the mere uninterrupted enjoy, ment for ten years (not, of course, by express permission or licence) of window-lights, deriving light from a neighbour's land, entitles the owner of the windows to have the ad- joining landowner restrained from building so as to obscure them. This in effect places the matter on the same foot- ing (with a shorter prescriptive term) as that of the English Act 2 & 3 Will, iv c. 71 sect, 4, prior to which juries in England used to be allowed to presume a lost grant in the existence of which nobody believed. Although the result is not one at which I could by my own judgment have arrived had the matter been res integra, I think it equitable as between man and man, and am therefore scarcely disposed to regret the conclusion forced upon me. For the foregoing reasons I am of opinion that the deci- sion appealed against should be set aside and judgment entered for plaintiff, and a perpetual injunction decreed as prayed for. I am further of opinion that leave should be given to plaintiff to apply to the Court hereafter to assess damages, if so advised. Defendant must pay plaintiff's costs in both Courts. I have had the opportunity of perusing the judgment of the Acting Chief Justice, and while I arrive at the same conclusion as the Acting Chief Justice, viz., that the plain- tiff in this action is entitled to the perpetual injunction 203 which he claims, I do soon very different grounds, and I cannot part with the case without recording my res pectf ul, but emphatic, dissent from the view I understand the Acting Chief J ustice as enunciatiag. The question for decision in this case is, whether or not the plaintiff has, by his ten years' enjoyment of bis win- dowst acquired by prescription as a servitude the right to prevent the defendantr an adjoining owner, from building on defendant's land so as to obstruct plaintiff's windows. The question is — not whether the plaintiff has or has not lost through the operation of prescription a servitude pre- viously acquired, but whether he has acquired a servitude by prescription. With great respect for the present head of this Court, I must point out that the mere opening of win- dows which derive their light from an adjoining land owned by another person does not entitle the owner of the win- dows to restrain the adjoining owner from building so as to darken them. He may acquire that right ia two ways : either by express contract, or by prescriptiout DiAS, J. — Q After setting out the facts.} The Kandyan Provinces^ or so much of the Island as was not subject to the Dutch, were subject to Kandyan Law^ except so far as that Law was repealed or modified by Legislative enactment. The first written law on the subject in the Kandyan Pro. vinces, so far as I can ascertain, is the Proclamation of the 1 8th September i8ig, which only dealt with a certain class of actions. This was followed by the Regulation 13 of 1822, which was not confined to any particular province or provinces, but was applicable to the whole Island. That Regulation was a comprehensive measure. It was not confined to actions merely, but it dealt with the acquisition of property by prescription. It repealed all written and unwritten laws on the subject in the Maritime Provinces, and laid down certain rules applicable to the whole Island. The Proclamation of 1819 seems to have escaped the notice of those who framed the Regulation, and that Proclamation* so far as I can ascertain, was ihe only law in force in the Kandyan Provinces in 1822. The manifest object of the Begulation was to repeal all existing laws and consolidate ia one enactment all the law written or unwritten on the subject of prescription. For some unaccountable reason the repealing clause of the Regulation of 1822 is confined to the Maritime Provinces. Probably there was not at the 204 date of the Eegulaiion, or the framers of it thought there was not, any law or custom in the Kandyan Provinces on the subject of prescription, and they Seem to have lost sight of the Proclamation of the iSth September 1819, which, however, was expressly repealed by the Ordinance 8 of i&^i^. So far as I am aware, the Roman Dutch Law or, more correctly speaking, so much of that law as is in force in the Maritime Provinces, was, for the first time, introduced into the Kandyan Provinces by the Ordinance 5 of 185a. Up to that time the Common Law of those provinces was the Eandyaa Law. 1 am not aware of any decision of this Court or any other Court in which it was held that the Dutch Common Law was in force in the Kandyan Provia^ ces, and I may refer to the 5tb clause of the Ordinance 5 of 1852 in support of the opinion that the Dutch Common Law was not in force in the Kandyaa Provinces. If that law was in operation in those provinces in 1852, there was no necessity to introduce it as the 5th clause did. I am therefore of opinion that the Dutch Common Law on the subject of prescription, or on any other subject, did not find its way into the Kandyan Provinces till 1852, and then only so much of it as was law in the Maritime Provinces ^ and in those Provinces, as I have already pointed out, the Roman Dutch Law on the subject of prescription was abrogated so far back as 1822. In deciding the question before us, I do not think we can go out of the Ordinance 8 of 1834 j and if the servitude in question cannot be brought within the operation of that Ordinance, no possession, however long, will give plaintiff the light which he claims. It was conceded at the argi> ment that the servitude in question falls within the 2nd clause of the Ordinance 8 of 1834. Mr. Grenier's argument was based on the Soman Dutch Law applicable to the acquisition of negative servitudes. If the Roman Dutch Law is to govern the case, I have no hesitation in saying that the plaintiff has failed to make out his case ; but as I have already pointed out the Roman Dutch Law on the subject is not in force in this Colony. I had the advantage of reading the opinions of my lord and of my brother Clabencb, and I am not prepared to hold, in the face of a series of decisions to the contrary, that servitudes such as this are out of the Ordinance} and I think we must take the Ordinance of 1834. as containing all the law on the subject of prescription. 205 By the ind clause of that Ordinance proof of undisturbed and uninterrupted possession of immoveable property by an adverse title for ten years gives the possessor a right to such immoveable property, which, as has already been pointed out. inclades real rights or servitudes. Admittedly the Plaintiff possessed the light which he claims for more than ten years before the interruption complained of, and his possession was not disturbed or interrupted by any one. Adverse title is defined in the Ordinance as a possession unaccompanied by payment of rent or produce or perfor- mance of service or duty, or by any other act by the possess- or, from which an acknowledgment of a right existing in another person may be fairly and naturally inferred. The first part of this definition is inapplicable to this case; and it is not suggested that the plaintiff has done any acb from which an acknowledgment of a right in the defendant or any other person may be fairly and naturally inferred. I therefore think that the plaiutiff has established his right by prescription, and is entitled to a decree in his favour with> costs in both Courts. Set aside, yudgmentfar plaintiff'' Proctors for the plaintiff. Barber Js* Eastlake. Proctor for the defendant, E. Beven. iSth Feirtiary and i^th March, 1883. Present— Db Wbt, A. C J. D. C Ins. 1 In re Brahmenege Martinus Ferbra. Colombo, ). C. Ins. 1 /olombo, ? i,ai6. J Ex parte H. T. Perera. Insolvent— Ordinance 7 o/'i8j3, sect. 152 — Certificate in the form R. P., an insolvent, had passed his examination and had his protec- tion extended for one month from 23rd November 1880. He applied on 30th May l88z for a certificate of conformity, but on the day fixed for considering it withdrew his application. No further order as to pro- tection was made. Held, that under these circumstances a certificate in the Form R, in 206 the Schedule to Ordinance J of 1853 was wrongly issued to a provedi creditor. Re T. A. Pierii (1) followed. Brahnienege Martinus Perera was adjudicated insolvent on 24th September 1880, on the petition of 5f. M. Perera^ The second sitting was closed on 23rd November 1880, when the insotvent tendered his balance sheet, and' his protection was extended for one month. On 28th March J 882, on the ra.otion of the petitioning creditor's proctor,. C- H. Gomes was appointed Assignee, and he made his report on 27ih May 1882 } and on 30th May, on the motion of the Insolvent's proctor, the nth July was fixed for the determination of the grant or refusal of certi6cate.^ This meeting was adjourned to 2.jth July, whea the appli- cation for certificate was withdrawn. On 6th' September 1882 the Insolvent, by another proctor, renewed his applica. tion for a certificate, and a meeting of creditors for the purpose took place on 1 7th October,, when a creditor oppos* ed the granting of a certificate. The grounds of oppositioti lodged not beine; explicit enough, the meeting was ad' journed, the application of Insolvent's Counsel for a grant of certificate forthwith being refused. After another adjourn^ oient^ the certificate meeting was fixed for 31st October* when there was no appearance for the Insolvent. On 14th November iS^a, Counsel for H. T. Pereroi a proved credi.. tor to the extent of Rs. 742, moved that a certificate in the Form E. might be granted to him. The insolvent's proctor, without contestiog the facts on which the motion was based, opposed it on the sole ground that the Insdvencgi Ordinance did not give the Court authority to grant it. The Court (T. Berwick, Judge) thereupon made the following order : "The Form R. annexed to the Ordinance is not in harmony with section 152 to which it refers. The Form as given in the Schedule is a bare declaration that the Insolvent has not at the time a pratet:tion ocder, a state of circumstances which might arise from a thousand causes, independently of any express refusal of protection. But section 15s avowedly only deals with the case in which protection has been actually refused. In the present case there has been no such refusal, and therefore the Court cannot act under section 152 : in other words, cannot andet- tAe authority of the Oxdinance give tiie certificate asked for. So far Mr. Pireira's [the Insolvent's proctor] argument is right, and in what the Court is now about to do it will not act under the Ordinance, but will exercise its own discretionary power in. making a simple declaration of the truth when the ends of justice or the reasona- (1) S. C. Civ. Mill,, 4th November, 1873V 207 able interests of a party require this to be done. Now it is the truth that the Insolvent has no protection order. This circumstance arises from his own act in abstaining trom taking out a certificate of con^ formity. Meanwhile the creditor is remediless. Hiving proved in the case, he has by legislative provision the status of a judgment credi- tor of the Insolvent, bat in the present condition of matters he can neither (in the words of the Dutch proverb) make his debtor pay in his purse nor in his skin ; and if his debtor be not legitimately protected, the creditor should have at least the latter remedy so long as the law tolerates imprisonment for ordinary debt. " I do not know or at present say that he will be anything bettered by what I am going to do, but at all events he is entitled to the aid of the Court in any reasonable effort for that end. \A/ithoat, therefore, committing myself to any opinion as to what may be the lawful efiect of the present order, I think it reasonable and just at his request to certify to a fact, viz. that the Insolvent has at present no protection orcer. The Secretary will frame the certificate in the precise words of the Schedule R,, because these words will deClaie the truth in this case ; but as already said the declaration will not piofess to be made under the Ordinance." The Insolvent appealed. Browne, for the Insolvent, appellant — The Ordinance Kg. 7 of 1 8 j3 provides a complete system of Insolvency Proceedings, and the Oourt has no power to deal with such matters outside the provisions of the Ordinance 1_De Wet, A. C. J- — But Boni judicis est ampllare jurisdictionem suam ; and in construing a statute the Court may place on it such a reasonable construction as will give the Court the most extensive power. ] The present application was made under the Ordinance, and asked for a certificate in the form prescribed by the Ordinance. That form of certificate can only be issued in the cases defined by section Tj2, viz. when the Court has refused the Insolvent protection, or has refused or suspended his certificate. Neither of these conditions precedent exists here. The Supreme Court has held that under these circumstances the certificate cannot be granted. D. C. Colomlo, Ins., 817 (i). Layard, for- the applicant creditor, contra— It was the interest of the Insolvent himself to obtain an extension of protection, and his failure to do so ought not to be allow., ed to benefit himself. So, in England, it has been held that an adjournment of the Insolvent's examination sine die, with protection for two months, and no further order made, is a refusal of further protection under the Act of 1849, (1) Per Creasy, C. J., Stewart and Cavley, J J. CivU Min, 0/ S. C, 4th November, 1873. 208 on which our Ordinance of 1853 is founded. Ex parte Scarth (l). Browne, in reply — The creditor's application here is not founded on any allegation of misconduct on the part of the Insolvent, while m Ex parte Scarth the examination was adjourned sine die, presumably because such miscouduct was shown. In the present case the Insolvent has passed his examinatioD. Cur. adv. vulU (14th March). De Wet, A.. C J. — In this matter it is clear from the learned Judge's finding that the Insolvency Ordinance did not empower him to grant the certificate applied for by the applicant, one of the proved creditors of the insolvent estate of appellant. As it appears from the proceedings that the certificate of conformity of the Insolvent has neither been suspeoded nor refused, nor his protection refused, I hold that in terms of the judgment of the Collective Court in case No. 817, D. C. Colombo (2) the appeal must be allowed with costs to appellant in this Court and in the Court below. Appeal allowed. Proctors for the Insolvent, J. G- Toussaint ; H- J. C Pereira, Proctor for petitioning creditor, fF- E. Mack. Proctor for opposing creditor, f. G. Ohlmus. (1) 30 L. T., 12. (2) Civ. Min. of Sup. Gt., 4th November 1873, per Creasy, C. J., Stewart and Cayley, JJ. 203 I i\ih Fehruary and ^rd March, 1 88 a. Present — Clarence, A. C. J., and Dias, J- D. C. -J C. L. BOGAARS Galle. I V. 46,340 } C. L. VanBuures. Condictio indebiti — Money paid under mistake vf law— Costs — " JPutting cases in evidence." S., the owner of a house which he had mortgaged to A., died, having by his will (of which defendant was executor) bequeathed a life-interest in the house to H. Plaintiff entered into occupation of the bouse as lessee of H A, obtained judgment on his mortgage against defendant as executor, and on 8th March 1879 sold the house in exe- cution. It was bought by J.., who shortly afterwards died. In June 1879 (plaintifi's lease expiring on 31st July) defendant, as executor, demanded of plaintiff Rs. 5^ as rent for April and May, threatening legal proceedings. Plaintiff paid. Plaintiff was afterwards sued for the same amount, in respect of the same occupation, by J.'s represen. tatives, and pleaded his payment to the executor, but was condemned to pay the amount and costs. Plaintiff now sought to recover from defendant the Rs. 55 pljis the costs incurred in the action by J.'s repre- sentatives. Held, reversing the decision of the Court below, that plaintiff (having paid with full knowledge of the facts, and if anything upon a mistaken view of the law) could not recover either the Ks. 55 or the costs of the former action. Observations on the practice of " putting cases in evidence.'' The defendant in this case appealed against a decree of the District Court of Galle {A- H. Roosmalecocq, Judge) giving judgment for the plaintiff in terms of his libel. The facts are sufficiently disclosed in the judgment of the Supreme Court. Dornhorst for the defendant, appellant, Layard for the plaintiff, respondent. Cur. adv. vult. (3rd March). The judgment of the Court was this day delivered by Clarence, J. — This is an action to recover back money as paid under a mistake. The action is in fact that known to the Eoman Dutch Law as condictio indebiti. The plead, ings on both sides, the plaintiff's especially, are obscured by much irrelevant statement and pleading of evidence. The 210 'facts, however, as admitted or otherwise established, appear to be as follows : 'One Stephens owned a house, which he mortgaged to Dr. Anthonisz, and died, having by his will (of which defendant is executor) bequeathed a life interest in the house to Mrs. Hilfield. Plaintiff entered on occupation of the house CD a lease from Mrs. Hilfield Meanwhile the mort. gagee put his mortgage in suit, making the executor of the mortgagor defendant, obtained judgment and on the 8th March 1879 sold the house by Fiscal's sale in execution of his writ. Plaintiff's tenancy under Mrs, Hilfield would not expire until the ist August. The house was purchased at the Fiscal's sale by one jfansz, who shortly afterwards died. In June 1879 defendant in his capacity as executor demanded of plaitltiff Rs. _55 for use and occupation of the hoiise for the months of April and May, threatening legal proceedings. Plaintiff paid. Plaintiff was afterwards sued by yansz's representatives for the same amount in respect of the same months' occupation. Plaintiff then pleaded his payment to the executor, but it being proved that he had previously received notice of the sale in executioti, judgmeiit went against him for the amount claimed, with costs. Plaintiff now seeks to recover from the executor the Rs. 55 which he had paid to the executor, plus the costs incurred by the unsuccessful defence of the action by fanst's represefttatiVes. Defendant, the executor, ap- peals agaitjst a judgment of the District Court decreeing him to pay the plaintiff both the Rs. 55 and the costs, in all Rs. 97.87. It was admitted that the decree Could not be supported as to the costs, but respondent's Counsel con. tended that the decree was right as to the Rs. k<- The case is wholly silent as to what passed between the executor and Mrs. Hilfield before her dealing with the house by way of lease. Apparently the executor assented to her dealifag with tlie iiouse. At any rate, the whole of his testator's interest in the house having, as he admitted in his Answer, been sold on the 8th March, it does not appear that the executor had any right to the Rs. 55 for use and occupation in April and May. The question then remains, whether plaintiff, having in fact paid the executor, can now recover the money back from him as indeUtum solutum- It is nowhere averred by plaintiff that his payment to defend, ant was induced by any misrepresentation as to facts, or that plamtiff was im fact ignorant of any of the facts j and 211 if plaiotifE's paynent to defendant was due merely to plain- tiff's ignorance of law, plaintiff cannot recover. In fact, so far as appears, plaintiff and defendant may have both been under the erroneous impression that defendant had a right to the moneyi although it would seem that subseq,uently de- fendant handed the money over to Mrs. Hilfield. Nor doejs it appear that there are any circumstances taking the case out of the ordinary rule that money paid with knowledge of the facts and under a mistaken view of the law cannot be recovered. For all that is shpwn to have happened js,, that defendant caused to be sent to plaintiff a "^ lawyer's letter," in which defendant's proctor made a demand on plaintiff for the two months' rent on behalf of the defendant,, who is described as "executor of the estate of the late J. P. Stephens," and threatened to Plaintiff thereupon chose to pay, and we fail to see any ground upon which his actioa to recover back the money can be supported. The Supreme Cotirt regrets to find from the District Judge's letter of the 26th February that the Galle District Court still allows "cases" to be put in evidence, although the impropriety of the practice has been repeatedly pointed out by this Court. Set aside. Action dismissed. Costs divided. Proctor for the plaintiff, W. D. de Vos. Proctor for the defendant, 5'. W~ L. KeegeL gth May and %th June-, iSSa. Present— Clarence, A. C J., Dias and Grbnier, Jj. D. C ■) M. G. LOKUHAMY Matara, > v. 30,171. J S. Abethamy. Practice— Busland and wife— Power of wife, who- has been deserted by her husband, to sue for property constituting the joint estate— Decree. As a genfral rule, a married, woman whose husband is alive cannot inaintain an action, but where the husband is absent and has deserted 212 his wife, she may commence an action in respect of property formfnf part of the joint estate ; but the wife, before she can proceed with the suit, is bound to summon the husband and give him an' opportunity oj talning up the suit if so disposed. The defendant appealed agakist a judgment in favour of the plaintiff entered up itf the Court belowr. The facts material to the issue decided su.fficiently appear in the xudg.- ment of the Appellate Court- y. Grenier for the defendant, appellant. Drieberg for the plaintiff, respondent. Cur. adv. vuU. (8th June). The judgment of the Court was now de- livered by DiAS, J. — This is an action by a married woman, whose husband is away somewhere in the Kandyan Provinces, to recover damages for an unlawful seizure of the property of herself and her husband. The defendant denies the plain- tiffs right to the property, and' the plaintiff's right to main- tarn the action. The case was tried on 12th January itSii and after hearing the plaintiff's evidence,, the defendant having called none, the learned judge gave plaintiff judg- ment^ and we see no reason to think that he was wrong. The principal point made by the appellant's Counsel at the hearing was that the plaintiff being a married woman could not maintain this action. No doubt, as a general rule a married woman, whose husband is alive, cannot sue third parties, birt there are exceptions to the rule, and this case is one of the excepted cases. It appears that the plaintiff's husband had abandoned her and her children' some time ago, and that being so,, she has a right to defend the coramoa estate of herself and her husband, in which she has a large interest ; but before she can maintain an action she is bound to summon the husband, giving him an opportunity either to take up the suit himself or allow her to go on with the case without hiia. The libel in this case is framed with a view to meet the requiremeats of the law applicable to a case like this- The notice was issued to the husband througli the Court and served on him on the 1 2th May 1880. When this case was argued, the notice itself was not with the papers, but it has been since sent up and is to be found at the end of the record. The rsturn to the notice is not 213 legible, but the learned judge says it was sprved, and this is boine oat by the journal entry of the lilhMay, ibSo (p 3). The course adopted in this- case by the plaintiff is not an unusual one, and has the sanction of Chief Justice Sir Charles Marshall (i). The judgment of the District. Court omhe nnerits is right, but it will have to be amended by the decrea being passed in favor of the plaintiff iti trust for the common estate oi herself and her husband Balabettige Don Jayan- Affirmed. Proctor for the plaintiff, C. H B. Allendorff\ Proctor for the defendant, G. E. Keuneman. i^tk and 2'jth June, 1883. Present — Claebnce and DiAS, JJ. D, C ■) A. R. L. SiNNAiTA Chetty and another Kandy, \ v. 87.172. ■» Babanis Appu and another. Mortgage— Mortgagee's remedy against third parties:, transferees of mortgagor, in possession — Pleading — Conti. iiuance of mortgage debt —Merger of mortgage in judgment — Registration — Priority. C. and P., on 6th January 1876, mortgaged three pieces of land to plaintiHs to secure a debt of Rs. 7,500. Plaintiff?, on 30th October 1S79, obtained judgment on their mortgage and a mortgagee's decree. Plaintiffs sued out execution against the mortgaged pioperty but found the defendants " in possession." The defendants had purchased the inieiest of C. in the mortgaged pro, erty at a sale in execution of a money decree obtained by plaintiff?, in another suit, after the date of the mortgage. Plaintiffs now, setting out the above facts, and averring that defendants " continued in possession objecting to the plaintiff'! selling the said lands to satisfy the amount of the mortgage decref," prayed that the lands might be declared executable and liable to be sold under plaintifis' writ in the mortgage suit. Held, following D. C. Malara 29.149 (^) "'*' "'•^ disclosed a mis- conception of plaintiffs' remedy, which should have been to aver and establish, as against the mortgagors' transferees, the mortgage and the coiitiBuance of the debt, and to pray (not that the lands be declared saleable under a previous writ issued against the mortgagors, out) that the lands be declared simply executable and saleable as against the transferees. (1) Judgments, f 218. | (2) 1 S. Ij. C, 80. 214 As to eonlinuance of the debt, the plaintiffs merely averred that they had obtained a judgment against the mortgagors. Defendants did not demur, but denied the naortgage. The mortgage was prima Jwe estabUshed by the admission in evidence^ by consent, of plaintiffs' mort- gage deed, Held, that there waj no sufficient averment of the continuance of the debt ; and defendants were absolved from the instance, but without costs. The facts material to the deeision of this case appear in the judgmeat of the Supreme Court. Canekeratne, for the defendants, appellants^ cited B. 0> Matava 29,149 (i),and Pkkavd v. Sears (2). Dofnhorst lor the plaintiffs, respondents. Cur. adv. vult- (27th June). The judgment of the Court was now delivered by Clarence, J. — This is an action by mortgagees against certain parties, not being the mortgagor, who are in poss- ession of the mortgaged lands or some of them. The frame of plaintiffs' actioa is this: — Plaintiffs aver that by deed dated, 6th January i&;6 certain Carupe- Naden and Palaye- Naden mortgaged to plaintiffs three several pieces of land, to secure a debt of Ks. 7,500 and interest. Plaintiffs then aver that on ajth October 1879 they instituted an actioa. No. 83,836, on this mortgage against the mortgagors, and on 30th October 1879 obtained a iudgment for Rs. 7>P°> interest, and costs, and a decree declaring the mortgaged lands specially bound and executable for the debt. Plaia* tiffs then go on to aver that they sued out execution, but found present defendants "- in possession" — the libel doe?- not in terms say of what, but by inference froqi the con* text we may gather the meaning to bci that plaintiffs attempted to seize the mortgaged lands, but fuund them in the possession of defendants. 1 he libel further accounts for defendants' possession by averring that defendants had purchased, under another writ, isi-ued in a case No. 79,23* of the same Court, the interest of the said Garupe Naden. The libel then, after averring that defendants "continue in possession objecting to the plaintiffs selling the said lands to satisfy the amount of the said writ," concludes by asking that the lands in question may be declared executa- (1) 1 S. C. C„8o. 1 (2) 6 A. & E ,474. 215 'ble and liable to be sold under plaintiffs' writ in the case No. 8^,836. This libel in its face discloses a misconception of the plaintiffs' remedy. The mortgagor's interest in the land ■having passed to defendants, plaintiffs' mortgage right still, -ol course, remains^ but to enforce this as against defendants plainliffs, as pointed out by the judgment of this Court in '£>. C. Matara 29,i4g (4), have to establish de novo their mortgage right as against the transferee of the mortgagors' interest, quite independently of anything that occurred in any suit against the mortgagors. And after averring their mortgage, and the continuance of the debt, their prayer should be, not to have the land declared saleable under a previous writ issued against the mortgagors, but simply to have the land declared executable and saleable as against the transferees. The writ issued in plaintiffs' previous action against the mortgagors would naiurnlly include the costs of that action, which, as it appears to us, plainiiffs have no right to recover from the transferees. Defendants in their answer do not notice this defect in the prayer of the libel The matters set up in the answer are these : — Firstly, defendants aver that they are each separately, and not jointly, entitled to one of the lands in question by purchase under the writ already men.. tioned, issued against Carupe Naden, whom they aver to have been the owner; and they aver that the re., maining land out of the three specified in the libel was purchased, not by either of them, but by one Salo- hamy. But defendants do not in their answer base any plea, either of misjoinder of themselves or of non-joinder of Salohamy, on these avermenfs. It would seem, however, from the Petition of Appeal, signed by the proctor who also signed the answer, that he intended the answer to be construed as setting up a plea of misjoinder. No SQch plea, however, is maintainable, since the two lands severally purchased by the respective defendants having been includ.< ed by the oi-iginal owner in the same mortgage, no reason appears why the transferees should not be made parties to the same suit. The defendants' answer next denies the fact of the mortgage to plaintiffs. This, however, we may here remark, has been prima facie established by the ad- mission in evidence, by consent of parties (as we are inform* ed by the learned District Judge) of plaintiffs' mortgage W) I S. C, C, 80. 216 deed- The answer further pleads a conclusion of law, that defendants did no' take subject to plaintiffs' mortgage j but no facts are pleaded as the grounds of that conclusion of law. Defendants appeal against a decree declaring the two lands severally held by the defendants executable for the judgment obtained by plaintiffs against the mortgagors, and directing that the interest, of the mortgagors as at the date of the mortgage be sold in satisfaction of the judgment. It was argued amongst other matters, by the appellants' Counsel, that plaintiffs connot assert their mortgage as again-Bt ihese defendants by reason that the writ, in ezecu. tion of which the sale took place at which defendants pur. chased, was a writ issued by plaintiffs themselves in the action No, 79,431 against Garupe Naieti and Palaye Naden, No formal proof of that fact has been noted, but we may assume that fact in defendants' favour. The paper-book of No. 79,131, which appears to have been before the learned District J udge, seems to indicace such to have been the case. Appellants' Counsel then quoted to us the well known case of Pickard v- Sears (i). To dispose of this contention it is sufficient to observe, that nowhere in this case have defendants established or even suggested any representation or conduct on the part of plaintiffs, which could be held to estop them from setting up their mortgage. All we know is, that plaintiffs first, under a writ not issued in execution of their mortgage, seized and sold the mort. gagors' remaining interest in the land, which was purchased by these defeiidants. We do not know at what price defend- ants purchased ; and they do not inform us whether or not they were aware of the existence of the mortgage. In fact, for anything that appears, defendants may have paid for what they bought no more than its fair value, having regard to the existing encumbrance. It was next contended in appeal that defendants are entitled to succeed because their Fiscal's conveyances are registered ; and although plaintiffs' mortgage was registered before either, appellants' Counsel contended that since the date of their judgment against their mortgagors, plaintiffs have lost the benefit of their registration, by reason of their mortgage being merged in their judgment. This contention, (1) 6 A. & E., 474. 217 iiowever, is quite nptenable. Plahjti'ffjs' mortgE^ge, if unpaid, is still on foot for the purposes of this suit. It was further contended that plaintiffs have not es- lablished the e^iisteijce of their mffitg^ge del?t, and ,this contention m-ust be sustained. Plaintiffs in their libel do not make any sufficient averment of the existence ,of the mortgage debt, inasmuch as they merely aver that they have had a iiidgm,ent against tljie mortgagors. Defendants did not demur to the libel, but merely denied jtKattbe iand? ever were mortgaged to plaintiffs. The frame of the decree, as ,it stand^ ,is open to objection, but if plaintiffs had dis- tinctly established the existence ,of the,ir n:igr,tgage debt a,t date of institution of this suit, we might perhaps have been disposed to give them, under their prayer for further relief, a decree declaring the lands liable to be sold in satisfaction of plaintiffs' debt and interest, not including any costs of plaintiffs' action against their mortgagors. As the case stands, however, we think that ithe 'best course is to absolve defendants from the instance without costs. in either iCourt- Set afi^e. Proctor for the plaintiffs, M. C, Sidde Lehbe- Proctor for the defendants, Edivin MfVen' aSiA and ^^st March, i88a. Present — Clarence, A. C. J., and DiAS, J. D. C. ^ p. L E. M. Ram EN Chetty ^^"''y' ( J. D HarpL. 86,520. ) Ex parte Whittall & Co. Mortgg.ge — Coffee estate— Mortgage of coff-ee crop with covenant to consign crop tp mprtgageefpr curing, shipment and sale — Right of unsecured creditor to sei^e and sell such crop in execution — Preference and concurrence— Moveafjles, right of mortgagee to follow.— Maxim Mobilia non habent sequelara. •On ist October i88oplaintifi obtained judgmentiOn a cheque against the defendant, tbe qwn^r of a coffee estate. Qn ziid October defendant, by a deed which was registered within one week of its epcecution, •' specially hypothecated, assigned and set over to the appellants, as a first charge free from all encumbrance?," the crop of the estate for the 218 season i88o-8f, to secure certain advances to be made by appellants to defendant, undertaking to consign such crop to appellants for curing, shipment and sale, defendant to be credited with the net proceeds. Appellants made certain advances in pursuance of this arrangement. Plaintiff thereafter issued his vjrit, seized and sold part of the hypothe- cated crop. Held, that appellants, having a preferent right of hypothec over the coffee, had a right to prevent the plaintiff, vf ho had no such hypothec, from selling such coffee in execution of his judgment. The coffee having been sold under plaintiff's writ, and the proceeds deposited in Court : Held, that, as long as the money remained in Court, the appellants as hypothecary creditors had a eight to be paid thereout the amount of their advances in preference to the execution creditor or any others claiming concurrence with them. In this case Messrs. Whittall i^ Co. appealed against aa order of the District Court of Eandy (4, 6'. Lawrie, Judge) discharging a Rule Ifisi which they had obtained agaiost the plaintiff and the purchaser of certain coffee sold ia execution under plaintiff's judgment, calling upon them to show cause why the proceeds of such sale should not be paid over to appellants. The facts appear at length in the judgment of the Supreme Court. Layard ior Whittall is" Co., the appellants. VanLangenlerg {Dornhorst with him) for the plaintiff, respondent. Cur. adv. vult. (31st March). The judgment of the Court was now delivered by Clarence, A. C. J. — In this case a sum of money is standing in Court to the credit of the cause, being the pro- ceeds sale of certain coffee sold by the Fiscal under writ issued in execution of the plaintiff's judgment. The ap^ pellants, Messrs. IfhiHall fs" Go-, claim a right to the whole of this fund, upon the strength of an instrument by which, as they contend, the coffee had been hypothecated to them. Appellants applied to the District Court to have the fund paid out to them. This application, which is stated by the learned District Judge to have been made with the consent of the execution debtor, the defendant to the action, was opposed by the plaintiff. The learned District Judge after hearing both the plaintiff and Messrs. WMttall is" Co. dis. missed the application with costs, and it is against that order that Mebsrs. ffhittall isf Co- now appeal. 219 The facts appear to be these. The defendant, Mr. y. D. Hardie, was in i88o the owner of Bambagastalawa coffee estate, subject to certain mortgages in favour of two mortgagees named Sikes. It would further appear that the Oriental Bank Corporation claim to be mortgag;ees of the estate to the extent of nearly Rs. 12,000 by virtue of a mortgage bearing date the 12th October 1880, and at one time claimed a mortgagee's right over this coflfee. No further notice, however, need be taken of the Oriental Bank, since the application of appellaats is made with their con- sent- On the 9th August 1880, the plaintiff instituted this action against the defendant, suing on a cheque. Provisional judgment was entered up on the aoth August,, and final judgment on the 1st October.^ The judgment is for Ks. 5,075 with interest and costs. On the and October defendant executed the instrument under which appellants claim. It recites an agreement that appellants should on the execution of the instrament pay defendant a sum of Ks. iv5oo " to meet the expenditure already incurred in connection with the working of the said estate" (that is, Damhagastalama estate) "from the ist day of July i88o to the 31st day of August 1880," and that appellants should from time to time make further advances to defendant for the purposes of the estate, the whole of the advances not to exeeed Rs. 7^5oi>,. and appellants not to be under any obligation to make any advances after the crops and produce of the estate for "^ the season 1880^81" should have been picked and gathered r and for the purpose of securing such advances defendant by this instrument purported to hypothecate to appellants " all the coffee crop growing and to be grown on or gathered from the said estate for and during the season 1880-81." The operativa words of the instrament are, " specially hypothecate, assign and set over unto the said Whittall & Go. as a first charge free from encumbrances-'^ The defendant further covenant- ed with appellants that he would not without their consent harvest any cinchona bark, and further covenanted that as soon as the coffee crops should have been gathered, he would convey and deliver the same to appellants in Colombo. The instrument further provided that appellants were to cure the coffee so to be consigned to them, and at their option either sell it in Ceylon or ship it away for sale, defendant to be credited with the net proceeds. The 220 mortgagte^r the Messrs. i"ito, ai'e parties to the iastramen'!;^ and asSent to the hypnithecation. We supjjose that by (he " cb-Efee crop- of the seasort 1 880-81" was meant the crop of coffee which would be the result of the blossoms of the early pirtof the yeart88o^ and which would be ripening on the trees about Christmas 1800, and wouM in ordinary course be gathered, piilpedt arid sent down to Colombo early^ in iSSi- This, as it will be seen, is the construction which appellants plaise upon the record, arid it seems to us the only construction pos, sible* Plaintiff issued writ in execution of his jadgment, and seized the coffee, the proceeds ot which are now in ques- tion. It is admitted' that the cofiee' was seized as it lay ia the estate store, after being gathered'. We do not find in the paper book anything shewing precisely when the seizure was made, and the Counsel who appeared on the appeat were not able to inform us on that point. It appears from tlie note rriade by the learned District Judge that the pro. ceedfe of the coffee was Rs. ^,580-50. The sale was made on three successive day's, the 13th, 14th, arid 15th January. These latter dates are aseertaiiied by the Joint agreement of ihe Counsel who ap[>eared on the appeal. We now come to the action which has been taken by the appellants with regard to the seizure of the coffee. The Fiscal reports the receipt of a letter dated the r3th January from appellants' Proctor, notifying that a'ppellant and on the 14th January refused the applicatioa for an injunction. An appeal was taken against that refusal, which was argued before me on the i 7th February, and on the I 8th February I reversed the order of the District Court and directed the issue of an injunction to restrain the Fiscal from selling after that date any of the coffee in question. As we have already geen, all the coffee had in faet been 221 already sold. We regard this inj inetion merely a-s an in- junction ad interim. It appearii by the Fiseal's return that the Damiagaslalawa estate itself was also seiz'id under the plaintiff's writ and sold oQ the r^th January to a Mr. Joseph for Ks. 600. The low pritJe was no douht due to the circumstance of the estate beitig encumbered by mortgages. On the 13th April appellants applied for and obtained a feul6 NM calling on the plaintiff and Jfoseph " to shew cause why the sUm of Rs. 5,47o8i levied by virtue of the writ from taking and selling the coffee in execution of his writ. Therefore, we think that the injunction to restrain the Fibcal from selling was rightly issued. But the coffee having in fact been sold before the injunc- tion issued, and the proceeds being now in Court to the credit of this action, have appellants the right by virtue of their hypothec over the coffee to claim the money ? Upon this point we desired further argument, and the matter was agaiii argued on this point. The coffee was sold by the Fiscal in execution of a judg* meat obtained by a creditor against the defendant. Now it seems to have been a principle of the Roman Dutch Law, that a sale once made sub hasta, in execution at the hands of the Fiscal, conferred on the purchaser a complete title, good as against all encumbrances, and, according to Vander- Linden and others, especial care was taken by means of sdvertisements to give all persons concerned an opportunity of opposing the sale j and as we understand the general prin_ ciple (see Voet, xx. i. 13) the purchase money succeeded in place of the thing sold, and the hypothecary creditor had a right of preference to be paid out of the money. We have now for many years allowed mortgagees of laad to follow the land in the hands of the purchasers to whom, under our Fiscals Ordinance, the debtor's interest has been sold in execution of some simple money judgment. As to movea- 224 t)Iee, whrch cannot be followed, we think that the hypother ■cary creditor, as long as the money regains in custody of the Court, has a right to be paid thereout tjie amount o{ his debt in preference to the execution creditor or any ■other creditors claiming in concurrence with him. We think, therefore, that appellan's have a prpferen^ right over this fund, but to what extent we are not in ^ position to say, because w€ do not know, and Counsel were not able to inform us. on what dates appellants made their several advances. 5«/ aside. Proctor for the plaintiff, F. VanLangenJierg, Proctor for ff'hiltall isf Go-^ Thomas & Julius- 2jsl and 3lrf March, 1882, Present — Clarence, A. C- J , and Dias, J. D. C. I S. L. M. loRoos Lebbb Markar and another Matara, > v- 32,285. J The Deputy Fiscal of Matara and two others. Hscal's Snle - Ordinance 4 of 1867, sect. ^%-^Irreguhui- ties^Action to set aside sale on grounds Jailing under sect. 53. Section 53 of the Fiscals Ordinance, 1867, prescribes the sole procedure open to a party considering himself aggiieved by irregularities in the publishing or conducting of a Fiscal's sale, and such sale cannot he set aside in a separate action on grounds falling within thepuiyiew of section 53. Plaintiffs appealed against an order of the District J«dge (A. H. Roosmalecocq) dismissing their action with costs. The facts sufficiently appear from the judgment of the Supreme Court. • Vornhorsl for the plaintiffs, appellants. Roosmalecocq for the defendants, respondents. Cur. adv. vult- (31st March). The judgment of the Court was deliver- ed by Clarence, A. C. J — Plaintiffs are the exeontion debtors in an action D. G. Galle No- 44,6715, in which judgment went 225 arjainst them, and under writ is?aed in execution of the ■judgment certain immoveable property of plaintiffs' was seized and sold, the present third defendant becoming the purctiaser. PlaintifEs now bring this action against the De- puty Fiscal and a subordinate Fiscal's officer (who are the first two defendants) and the third defendant, praying that the sale may be cancelled, or in the alternative that defendants may be decreed to pay plaintiffs the difference between the auction prige, which was Rs. io6, and Rs. 420, which plaintiffs aver to be the real value of the property. The reasons alleged in the libel for avoiding the sale are all matters falling within the purview of the j^rd section of the Fiscals Ordinance. The defendants answer that the sale took place on the 28th August 1880, and plead the j 3rd section of the Fiscals Ordinance- Plaintiffs do not dispute that the sale took I'llace on 28th August tSSo. The present action was instil tuted on the 29th January 188 1. The District Judge dismissed the plaintiffs' action with costs, holding that the 53rd section of the Fiscals Ordinance prevented plaintiffs maintaining this action. Plaintiffs appeal. We think the decision of the District Judge was righti and that this appeal should be dismissed with costs. In our opinion the intention of section 53 was to pre- scribe the sole procedure which should be open to a party <;onsidering himself aggrieved by irregularity or informality in the conduct of a sale. ■Appeal dismissed. Proctor for the plaint iffs, C. H. B- AUendorff: Proctors for the defendants, G. E. Keuneman, Jonathan Silva- » 226 26th May and 8th June, 1882. Present — Dias and Grenier. JJ. D. C \ S. R- M. Ibrahim Saibu Kandy, > v. 88,616. J WiRAPPEN and two others. Fiscal— Ordinance 4 oj 1867, sects. 5,83 — Bond to Fiscal of Province — Assignment thereof hy Deputy Fiscal of Dis. trict. Upon a seizure of certain property in execution, two persons claimed it as their own, and were allowed to retain possession on giving a bond to the Fiscal of the Central Province, undertaking to deliver the pro- perty to the Fiscal when called upon. The Deputy Fiscal of Matale professed to assign this bond to the plaintiS by indorsement as direct- ed by section 83 of the Fiscats Ordinance. Held, that the assignment was bad, having been made by a party having no interest in the bond. This was an action by plaintiff, as the assignee of a security bond for Rs. joo given in favour of the Fiscal of the Central Province, to recover that sum from the obligor and his sureties, as upon a breach of the conditions in the bond. Plaintiff appealed against an order of the District Court (A. C. Lawrie, Judge) dismissing his action with costs. The facts sufficiently appear from the judgments ia appeal. There was no appearance of Counsel. Cur. adv. vult. (8th June). Dias, J. — This is an action on a security bond granted to the Fiscal of the Central Province. The plaintiff issued execution in D. G. Kandy 69,296 agaiost one Fhoosa and seizej a growing coffee crop, when the first defendant and one Kammachchi, a minor, claimed it. The Fiscal for the Central Province allowed them to retain pos. session of the crop on their giving security to take care of the crop and deliver it to the Fiscal when called apon. The bond is in the form of a penal bond for Rs. joo, and it is in favor of the Fiscal for the Central Province. The 2nd and 3rd defendants are sureties under the bond. On the 7th June 188 1, the Deputy Fiscal of Matale assigned this bond to the plaintiff. The and and 3rd defendants answered, and in the 6th paragraph of their Answer they 227 deny the validity of the assignment. On the face of the bond, the assignment is bad, as it is an assignment by a party who had no interest in the bond. The Fitcals Ordinance, No. 4 of 1867, section 83, refers to assignments of security bonds, and it clearly contemplates assignments by Fiscals as well as by Deputy Fiscals ; and though the 5th section of the Ordinance empowers Deputy Fiscals to exercise the powers and perform the duties of the Fiscal for the Province within the district of such Deputy Fiscal, I do not think that under this 5th section the Deputy Fiscal of a district can assign a bond made in favor of the Fiscal of the Province. This section doubtless authorises a Deputy Fiscal to take a bond like this in his own favor, but I do not think it delegates to the Deputy Fiscal the right and authority of the Fiscal as in this case. The learned District Judge has entered upon the considera. tion of several matters of law and fact, but we need not enter on these topics, as we think the assignment of the bond by the Deputy Fiscal of Matale did not convey any right to the plaintiff, and on this ground we affirm the dis- missal. Gebniee, J. — I am of the same opinion. Not only is the assignment to the plaintiff essentially defective, but, even assuming it to be a valid assignment, the breach of the conditions of the bond has neither been properly pleaded nor properly proved. Affirmed, Proctor for the plaintiff, M- P. Sameresinghe. Proctor for the defendants, F. A. Prim. iilh and igth September, 188a. Present — Clabence and DiAS, JJ. D. C. -J V. P- DE Mell Eandy, > v- 87,824- •' M. P. Peeeba and another; Mortgage —Mortgage effected after accrual of Crown debt —Right of Crown to " preference of payment"— Ordinance 14 of 1845, sect. ^—Sale of execution debtor s " interest" — Seizure, continuance of. 22S- In 1873 the first defendant was the owner of certain land.. In Novem- ber 1873, S. obtained judgment for a large sum of money against th Meli, that the seizure of the land effected by S. in 1876 must be taken to have been abandoned by i87^iwhen the mortgage was creat- ed ; and that the mortgage was therefore not aflected by such seizure.. The Fiscal having, at the sale at which second defendant purchased, sold the execution debtor's interest in the land :- Held, that this sale passed only the debtor's interest as at the date of- seizure, when plaintiff's mortgage was in existence. Held therefore, (afHrming the decision of the Court below) that plain* tiff was entitled to judgment. Per Clarence, J. — The Ordinance 14, of 1S43, by giving the- Crown a '* preference of payment" over other creditors, did not give it power to sell the property, of its debtor free from all encumbrances, created after the accrual of the Crown debt ; and it is questionable whether the privilege of the Crown amounts to more than a right to. preference fuoa(2 any assets which may from time to time have been realized and brought into Court, including perhaps a levy by a, mort- gagee under a mortgagee's decree. The second defendant in this case appealed^ against a de> cree of the District Court of K-aady in favour of the plaia. tiff, declaring the mortgaged land specially exectu'able for the mortgage debt. The land had since the mortgage beea sold under a Crown writ against the mortgagor and pur- chased by second defendant. The remaining facts of the case appear in the judgments in appeal. Perdinands, A. Q A,, for the second defendant, appellant. Grenier (Bornhorst and Senemratne with him) for the plaintiff, respondeat. Cur. adv. vult: (19th September). CtARENCE, J.— I take the facts fol. lowing as stated in the judgment of the learned. District Judge. It was not suggested upon the argument of the appeal but that the learned District Judge's, stateraeat of facts is correct. 22» In 1873 Pedro Psrera owned certain land, and fn Norero- ber 1873, Harmanis Smjza obtained a judgment against Perera for a hrge sum of money (case D. C. Kandy 59,848). In 1878 Perera purchased from Government an " Arrack rent." In May, 1879, he made default in the payments due by him to the Government under that purchase, and in July, 1879, the Queen's Advoca a obtained judgment against him for a sum of money. (Case D. G. Kandy^ 8l,i+j). In December,, r 879,. Perera mortgaged the land to present plaintiff, de MM, whu at once registered his mortgage. Meanwhile Harmanis Soyxa had issued writ in J 876 in execution of his judgment, and under that writ the land now in q;Uestion was seized, but the seizure was not followed up by any sale ; and it is admitted by the learned Acting Qaeen'is Advocate, wha appears for the appellanr, that there is no proof of anything further as done under than seizure. In January, 18S1, Harmanis iSoym* judgment, and the Crown judgment against Perera were both unsatis fied. 1 he land in question appears to have been seized about the end' of 1880 in execution of both these judgments; and the land was by some joint arrangement sold on the footing of a levy onder bo'h judgments, and bought by Migel Soyza^ present appellant. It appears that all the Fiscal then purported to sell was the debtor Perera's interest in the land, which without more Would mean his interest as it stood at the date of the seizure. A contest then toolc place between the Crown and Harmanis Soyzw for the proceeds of the levy, and it was held by this Court, affirm,, ing a decision of the District Court,, that the Crown claim fell under section 5, and not section 4, of Ordinance 14 of 1S43, that HarmanM SoyzaJs claim must be dated back to 1866, when Perera's debt to him was held to kave been contracted, and that, consequently, the Crown claim had no right to preference over Harmanis Soyza's, and both must be paid in concurrence. In the present action, de 'Well, the mortgagee, sues Perera; the mortgagor, and Migel Soytsa, appellant, on the mortgage contract. The moitgage debt is still owing, and the relief which plaintiff prayed against appellant is a decla,ration tbat the land is specially executable under the mortgage, that is, liable to be sold as it stood at the date of the mortgage, or in other words, plaintiff seeks to sell the land over the head' oi appellant, who purchased subsequently to the mortgae;e. Two points were a-gued in appeal, b-y the lea'-ned Acting 230 Queen's Advocate, as the grounds on which we were asked to reverse the decision of the District Court. The first point was that when plaintiff's mortgage was made in December, r879, '''^ \at\d was still under seizure under Harmanis Soyza s writ issued in 1876. We know nothing more of that seizure than that the land was seized in June, 1876, and that no sale ever took place under that seizure. It woald in my opinion be absurd to accept this as establishing that the laud was still under seizure ia December, 18; 9. The second point, which was the point pressed, was that, having regard to section 5, of Ordinance 14 of 1843, the sale to appellant overrides plaintiff's mortgage. It was not contended io appeal on respondent's part, that anything turns on the registration of plaintiflf's mortgage. Plaintiff's mortgage was made subsequently ta the accru. ing of the Crown debt. Whatever difficulty there may be in construing the English Law term " specialty"^ as employed in this Ceylon Ordinance, it is suflScient for the present purpose to say that it evidently was intended to include mortgages, and consea quently, applying the enactment (sect. 5) to this mortgage and this Crown debt, the enactment amounts to a deelara.. tion that the Crown debt is entitled " to a preference of payment" over the mortgage debt. The question then is, What does that amount to ? The learned Acting Queen's Advocate contended that >t gave the Crown the power to sell the land free of the mortgage and of every encumbrance created subse- quently to the Crown debt. For my own part, as at present advised^ I think it questionable whether the enactment does more than confer on the Crown a right to preference quoad any assets which may from time to time haue been realized and brought into Court, e.g. money in Court as the proceeds of a levy (including probably a levy by the mortgagee under a mortgagee's decree) or assets under an insolvency. But it seems to me unnecessary Io discuss this question, because it does not appear that, at the joint levy made under the two writs, the Crown writ and Harmanis Soyza's, the Fiscal sold or professed to sell the debtor's interest in the land as it stood at the date when the Crown debt accrued, but merely the debtor's interest in ths land, without more, and tha"- would be his interest as it 231 stood at. the time of the seizure. Now at. the time of that seizure plaintifE's mortgage was in existence. DiAS, J. — This is an appeal by the second defendant against the judgment of the District Court of the 6th March 18S2. The plaintiff sues on a rtiortgage bond of nth December 1879, against the first defendant as mortgagor, and against the second defendant as a party in possession of the mortgaged property. The plaintiff prays for a mort^ gage decree against both defenclants. Interlocutory judg- ment was entered against the first defendant, who does not defend the action, but second defendant justifies his posses> sion. He bought the mortgaged property at a Fiscal's sale in execution of two writs, Nos. 83, 145 and 59,84.8. The first writ is a writ \a favor of the Crown, but the Fiscal sold and the second defendant bought on 6th January i88i. The decrees in both cases are mere money decrees. It was contended for the second defendant that, as he bought under a Crown writ, he bought tha estate free from all encum- brances created by the first defendant af 1 er the Crown debt had accrued. .Under the 5th clause of the Ordinance 14 of 1S43 the Crown has a tacit hypothec over all the property of its debtors from the date of the accruing of the debt. The Crown debt in question seems to have accrued before the date of plaintiff's mortgage, and if the decree in favour of the Crown is founded on that hypothec no doubt pur. chasers at a Fiscal's sale in execution of such decree will take the property so purchased free from all encumbrances subsequently created by the Crown debtor ; but in this case the judgment in favor of the Crown is a mere money judgment agamst the first defendant, and all the Fiscal sold, and the second defendant bought, was the interest of the first defendant at the date of the sale, viz. 6th January i88r. At that date first defendant's right and title were subject to the plaintiff's mortgage of 1879. It was further contended for the second defendant that at the date of the plaintiff's mortgage the estate was in custodid legis under, the writ No. 59,848. All that need be said on this point is that the seizure, which was made on the 50th June 18761 must be taken to have been abandoned. Besides, the decree in 232 ^S+8 was a money decree on a simple mon*y claim. For the above reasons the judgment appealed from must be affirmed. Affirmed. Proctor for the plaintiff, Edwin Seven. Proctor for the second defendant, W- Goonetilleke. iSth August and agth September, i88a. Present — Clarence and DiiS, JJ. D. C. •> K. Kandjr, > 87,943. J P- R. A. MuTAPPA Chettt Kandjr, J v. 87,943, J P. W. CONOLLY. Fiscal, action against Jor neglect of duty — Prescription- Ordinance 4 q/" 1867, sect. 21 — Accrual of cause of action. Plaintiff, the holder of a wi it against two persons, placed it in the hands of defendant, a Fiscal, for execution. Defendant purported to seize certain land of the execution debtors, but the seizure nas bad for tne omissirn of certain formalities. Between the seizure and the day fixed for sale, viz. on 20th January 1879, the execution debtors con. veyed the property seized to A,, who claimed the land and stayed the sale. Plaintiff brought an action to set aside A.'s claim as made pending seizure, which action was finally decided against plaintiff in appeal on 7th September, 1880, on the ground that there had been no valid seizure prior to the conveyance to A. Plaintiff brought the present action, for damages, against the defendant in February 1881. Held (affirming the decision of the District Court) that plaintiff's cause ot action accrued on defendant's failure to make a valid seizarr, and that plaintiff's action, not having been brought within nine months of such accrual, was barred by section 21 of the Fiscals Ordinance, 1S67. The plaintiff appealed against a judgment of the Court below holding that his action was barred by prescription. Ihe fac'sof the case fully appear in the judgment of the Supreme Court. Van Langenlerg for the plaintiff, appellant. Layard for the defendant, respondent. Cur, adv- vult. 233 (apth September). The judgment of the Court was delivered by Clarenck, J. — This is an action against a Fiscal. The question raised on the appeal is one of prescription. To plaintiff's libel defendant pleaded that the cause of action did not accrue within nine months of action bronght, and pleaded the aist section of the Fiscals Ordinance. The substance of plaintiff's complaint is as follows: — Plaintiff, in January 1879, held a judgment obtained in a Kandy District Court action for a sura of money against two men named Loku Banda and Punchy Banda. Defendant then being Fiscal for the Central Province, plaintiff issued his writ and placed it in defendant's hands for execution, with instructions to seize and sell certain land of the judg- ment debtors. Defendant purported to seizB the land, but in consequence of defendant's officer having omitted ceitaia necessary formalities, there was no valid seizure. Mean- while, between the date of the ostensible seizure and the date appointed for the sale, viz. on the 20th January 1879, the judgment debtors conveyed the land to one Appuhamy> who. thereupon laid claim to the land, whereupon defendant did not sell the land, and plaintiff brought an action against Appuhamy for the purpose of setting aside Appuhamy's conveyance, but failed in that action by reason that, there having been no valid seizure prior to the conveyance, the conveyance was not obnoxious to section 42 of the Ordi- nance. Plaintiff's action against Appuhamy was dismissed on 12th January 1880, and that dismissal was affirmed in ihe Supreme Court on the 7th September 1880. Plaintiff's present action was brought in February 188 1, Plaintiff contends that his cause of action did not accrue until the fcupreme Court judgment was passed. On the contrary, we think that plaintiff's cause of action accrued when the Fiscal failed to seize. Plaintiff had then a dis. tinct right to have the land seized. The Fiscal, according to plaintiff's averments, failed to seize, and plaintiff had at once a cause of action and a right to be placed in the same position, by means of damages, as if the Fiscal had done his duty. 234 We think that when the Fiscal failed to seize, there was at once a breach of his duty to plaintiflF, and damage to plaintiff. We think, therefore, that the decision of the learned District Judge was right an,d should be affirmed. Affirmed,. Proctor for the plaintiff, 0. Vandenvall. Proctor for the defendant, £■ Beven. z^th yanuary and i^ih February, 1882. Present— Clarence, A. C J , and Dias, J. C. R. -J S. B. DB SiLVA Galle, > V. } 60,977. -' T. V- K. PjtREEA and two others. Practice — Lessor and Lessee— Action by lessee against tres- passer — jfoinder oj" lessor as defendant to warrant and defend title. PlaintiS, a lessee mho had been duly put in possession of the property leased, sued bis lessor and two others, averring that second and third defendants had trespassed upon the property and forcibly aupropiiated certain goods of plaintifi's, and calling upon his lessor (the first du fendant) to warrant and defend i!tle, and, in failure, to pay plaintif! the rent advanced and the value of the goods appropriated by the trespassers . The trespassers having claimed and proved title to the property leased, first defendant was by the Court below decreed to repay the advance rent and cast in damages and costs. Seld (reversing the decision of the Court of Requests), that the first defendant had been improperly joi ned in the suit aad was entitled to be absolved from the instance with costs. D. O. Negambo 7,744 (i) approved quoad hoc. The first 'defendant appealed against a judgment oi the Court of Requests (If- D. Mason, Commissioner), decreeing him to repay to plaintiff certain rent received from him, and to pay Rs. 5 as damages, and plaintiff's costs. The facts of the case are sufficiently disclosed in the judgments in appeal. Roosmalecocq for the first defendant, appellant. Cur. adv. vult- (1) I S. C. C, 54. 235 (14th February). Clakencb, A.. C. J. —Plaintiff avers a lease from first defendant of a cocoanut pit for two years from 2and September 1880. He further avers that on 17th July 1881 second and third defendants forcibly ousted him and threw out his cocoanut husks and appropriated them. He thus joins these three defendants in one action : he asks that first defendant might be called on to warrant title, and on failure thereof may be condemned not only to return the rent paid by plaintiff, but to pay for the husks appropriated by second and third defendants | and in the alternative plaintiff asks for damages against second and third del'en- dants for the husks. The first defendant answers that he has performed his part of his contract with plainiiff^ and objects to being sued ia this suit jointly with second and third defendants. The second and third defendants allege title to the pit. The Commissioner, in spite of &tsi defendant's objectioa, called on him to warrant his title to lease^ and. holding on the evidence that he had failed to do so, decreed him to pay one year's rent already received from plaintiff in advance, and to pay Rs. j_ damages, and to pay plaintiff's costs. The second and third defendants, who according to the Com- missioner have defended themselves successfully, are thus- left to bear their own costs. The first defendant appeals. I think that the first defendant's objection to the consti- tution of plaintiff's suit was rightly taken in the Court below and should have been upheld. It is a mistake ta suppose that a purchaser or a lesseer when suing a treS' passer, has a right to join his vendor or lessor as a defen.^ dant party and call upon him to warrant title. As between plaintiff and first defendant all that appears on the pleadings is that first defendant leased to pkintiff, that plaintiff was in possession, and that the other defendants trespassed. A purchaser in possession, against whom an attempt is made to evict him by process of law, has a right to call on his vendor to defend the title, but it is no sequence of this that a purchaser coming into Court as a plaintiff to claim damages from a trespasser should be able to join his ven. dor as a co-defendant. This was in effect pointed out by Sir John Phear in D. G. Negomlo 7,744. (i); and although upon another point (the right of a vendee who has (1) iS.C. C, 54. 236 not obtained possession to maintain ejectment) there h a subsequent contrary decision of this Court, I do not understand the later decision as throwing any doubt on the- principle just mentioned. DiAS, J — This is an action by a lessee agaitist his lessor, who is the first defendant, founded on a tortious act of the secoqd and third defendanis. The plaint avers that on the 2ind September iSSo the first defendant leased to the- plaintiff a cocoanut husk pit tor two years ; that on 17th July 18&1 the second and third defendants forcibly took possession of the pit and appropriated the husks. The second and third defendants claim the pit as their property, and the first defendant denies his liability on the ground that he put the plaintiff in quiet possession of the pit, which plaintiff continued to possess uninterruptedly till the date of the alleged trespass. After hearing evidence on both sides, the Commissioner gave judgment for the plaintiff as against the first defendant, who now appeals. The jadg. ment of the Commissioner is erroneous in law.. The lease imposes no obligation on fitst defendant to prevent the second and third defendants from taking the plaintiff's. Cocoanut husks or, in default, to pay damages. If the first defendant is responsible for the tortious act of the- second and third, every landlord will be liable to pay damages to his tenant whose house has been robbed. Set aside- First defendant absolved. Plqintvff to. pay all costs. Proctor for the plaintiff, A. T. Weeramoria. Proctor for first defendant, B. O, Goonesekere. Proctor for second and third defendants^ B. Samarawikrama. 237 3rrf and 28th March, 1882. Present— CLAEENgE, A. C J., Dias and Qrbnier, JJ. P. C. \ E. E- MODDBR Chilaw, > V. 14,398. J Thomis alias Shadrach. Vagrants Ordinance, 4 a^ 184.11 sect. 41 sulsect. G— Found in house for unlawful pw^ose—r Fornication, The purpose of compnitting secret fornication is not an "unlawful purpose'^ within the meaning of subsect. 6 of sect. 4 of th& Vagrants Ordinance, 1841. The defendant was charged with being found in the com- plainant's house for an uBlaiyful purpose. The Magistrate found he was there for the purpose of committing fornica' tion with an inmate of complainant's house, and acquitted defendant, holding that this was not an " unlawful parpose'' within the purview of the Vagrants Ordinance, 1841, sect. 4, subsect. 6. The complainant appealed. The facts are ftiUy disclosed io the iadgwents of the Supreme Court. (15th February). The case first coming- on before Clarence, J., it was by his order put on for the full Court. No Counsel appeared on the appeal. Gur.. adv. vult. (28th March). Gebniee, J. — I think that the judgment of the Ma^gistrate in this case is right, although I cannot adopt all his reasoning in support of it. The charge is laid under the 6th subsection of section 4 of Ordinance 4 of 1 84 1. Ihat subsection is copiesl almost verbO'tim from section 4 of the Vagrant Act (5 Geo. 4 cap. 83), and the judicial interpretation which has been placed upon the words " unlawful purpose,'' which occur in the English statute, will apply to the same words as used in our Ordi- nance, la Hoy es V- Stephenson {iy the Court of Queen's Bench decided that being in a garden (the term " garden" occurs both in the Statute and in our Ordinance) for the purpose of fornicalion is not being there for an " unlawful purpose" within the meaning of the Vagrant Act; that every immoral purpose is not necessarily an unlawful pur.. " (I) 9 W. R., S3 238 pose ; and that the true eonstruction to be placed apon the words " unlawful purpose" " is a purpose to do something forbidden by the statute or common law." Now, the facts of the case, as I gather from the record, are, that the defendant was found, on the night of the i6ih of November last, in the cora.plaliiant's dwelling house in a room occupied by a maid servant. The defendant had not been forbidden the house by the complainant, and his visit on this occasion was no doubt with the consent, if not at the invitation, of the servant,. who in her evidence says, "He"' (the defendant) " is my husband, and had come to see me." She,, however, adds, " We are not married," The M-agis* trate has found as a fact (and I see no reason to differ from his finding) that the defendant's purpose was to commit fornication with the maid servant. There is no statute law- forbidding secret fornication of this kind', nor in my opinion is it forbidden by our common law. What the later Roman Dutch Law regarded as a criminal offence was public forni> cation (i). It is unnecessary,, in my opinion, to review in this case the decision of Justice Stewart in P. G'. Panadura 22,247 (^O, as the evidence does not establish that the servant, at the time of the alleged, offence,, was a married woman. True she says, "■ I was married to another man, but left him some three or four years ago at Negombo" ;. but she does not say thai she was lawlully married, or that her husband is living ; and for aught that appears on the record he may be dead. The Magistrate, moreover, has expressly held that there is no reason to suppose that defendant was aware that the servant had previously been married. The facts aa proved in the Panadura case were entirely different. Clarence, A. 0. J. — I am clearly of opinion that this defendant is not shewn to have been on the premises in question for an unlawful purpose within the meaning of the Vagrants Ordinance- The case reported in 3 Grenier being at all events distinguishable,, it is unnecessary now to con- sider whether it was rightly decided. DiASf J. — I am of the same opinion. Affirmed- (i) Vander Linden, InstU., bk, 2, cap. 7, sect. 5 ; Henry's Transla- tion, 356. (2) 3 Grenier, P. C, 6. 239 jgth May and 8th June, i88a. Present— DiAS and Grenier, JJ, J. P. ^ C, Matthew Colombo, > V. bo,[ 1. J 3,994' J C. Oabolis and others. Security to keep the peace — Ordinance ii of i868, sect. 22g— Refusal to require security — -Appealable order. Held, {per Dias, J., duhilante GrSnier, J.) that the order of a Justice of the Peace, refusing to require the defendants to give security to keep the peace, was an appealable order. The complainant in this case, upon affidavit that ' the defendants had used towards him threats likely to provoke a breach of the peace, prayed that they might be required to find security to keep the peace. The Justice, believing there was no reason to fear a breach of the peace, refused to require such security, and complainant appealed against this refusal. The matter was first argued before Geeniee, J., by whose order it was put on before a fuller Bench. Browne {Templer with him) for the complainant, appellant. Layard for the defendants, respondents. Cur. adv. vult. (8th June). Dias, J. — On the 6th April last the com. plainant swore an affidavit charging the five ace ised with using threats, and prayed that they might be bound over to keep the peace. The matter was investigated on the ijth April, when evidence was called on both sides, and in the result -the Justice of the Peace discharged the accused, i^ gainst this order the complainant appeals. It appears that the complainant and another are rival dubashes, or persons supplying ships with provisions. The party opposed to the complainant is supported by some persons who are headed by Carolis, the 2nd accused. Disputes and cases and counier-cases seem to have been going on between these par- ties for some time- On these proceedings it is difficult to say which party is in the wrong, but one thing is clear beyond all doubt, that if some steps are not taken at once, these disputes are likely to result in a serious breach of the peace. The Justice of the Peace himself thought that the accused might have used threats towards the complainant, but he 240 did not think those threats were serious. From this opi- nion I entirely dissent, and it appears to me that ist, 2Dd and 3rd defendants should be bound over to keep the peace. No case, however, has been made out as against the 4tb and Jth accused, who were properly discharged. An objection was taken at the hearing of this appeal by the learned Counsel for the respondent, that the order appealed from is not an appealable ord^r. This questioa depends on the construction to be placed on the 229th claase of the Ordinance No. 11 of i368. That clause provides that in every case in which any person considers himself aggrieved by the proceedings of any Court,. Magistrate or Justice, in having required or refused security to keep the peace or for good behavioilr, &c. In this case the Justice of the Peace discharged the accused, or in other words, refused to require the accused to give security to keep the peace. It was contended for the respondent that the words " refuse security" meant the rejection of security on the ground of insufficiency or for some other cause. This constrnction does not seem to me to he borne out by the context. The clause seems to me to suppose two cases, viz. ist, the case of a party accused who is required to give security, and and, the case of the complaining party who prays that the accused party may be required to give security. The construction comendtd for by the respondent would only give an appeal to the accused party, and there is nothiusr in this clause or in any other clause of the Ordinance to shew why the com" plaining parly should be in a worse position than the accused party. In my view of the Ordinance the order appealed from is an appea able order. Gbeniee, J. — When this case originally came before me, sitting alone, I entertained grave doubts as to whether the order complained of by the appellant was an appealable order or not. The appeal was re-argued before me and my brother Dias, and I cannot say that the arguments of the learned Counsel for the appellant have altogether removed those doubts. But I feel bound by the judicial interpreta- tion which this Court has by several decisions placed upon the Z29th section of the Administration of Justice Ordinance, and I will not therefore say that the appeal should be rejected. Upon the merits of the case, I agree with my brother DiAS that the interests of justice demand that the first 241 three defendants should be required to give security to keep the peace. I should have felt disposed to require the com- plainant also lo give security if the evidence had disclosed that he had in any way provoked the threats used by the defendants, or had himself evinced an inteaUon to commit a breach of ihe peace. Bu'i as it is, the evidence is all one way and affec'^s only ihe defendants. Set aside. 1st and i6th fune, 1882. Present — Clarence, J. Saibo Meeba Mabkab Colombo, "r ^ ^ jy, g^^g^ is^^-^ Makkar D. c. ^ I alombo, y- . 8^,853- Ex parte J. L. Mohamado Lebbe Mabkab. Insolvency — Injunction — Assignee's right to restrain execu- tion creditor of insolvent from selling moveables of insolvent in execution — Summary application. Defendant was adjudicated insolvent on loth January, and appellant was appointed his assignee on 14th February. Plaintiff obtained in this suit a money judgment against defendant on i6th January, issued writ, and on 23rd February seized in execution certain shop goods of defendant then in the custody of appellant as assignee, and advertised them for sale- Appellant, upon affidavit of these facts and notice to plaintiS and defendant, moved (in effecti in this suit that the Fiscal might be restrai> ed by injunction from selling the goods in execution. Htld, that the application had been rightly refused by the District Court. Semite, that the Court might have granted an injunction, had the application been made in the oidinary course upon a fresh libel filed. Plaintiff in this action obtained judgment for Rs. 460, interest and costs, on i6th January 1 8 S2, against the de.* fendaut by default. The defendant was on loth January 1882 adjudicaied insolvent. The appellant was on 14th February appointed assignee of his insolvent estate, whicli was placed under sequestration. On the 21st February the Fiscal delivered over to appellant as such assignee certain shop goods of the insolvent which had been sequestered with the rest of his estate. On writ issued by plaintiff in execution of his judgment, the Fiscal, on 23rd February. Seized these shop goods in spite of the assignee's protest. On f 3th March, upon affidavit of these facts by the assignee. 242 and after notice to the plaintiff, the defendant, and the Fiscal, the assignee moved for a rule nisi on the plaintiff, the defendant, and the Fisca', calling upon them to show cause why the seizure should not be set aside and the writ of execution recalled. The District Jud^e {T- Berwick) disallowed the motion, holding that; the questions involved could not be disposed of upon summary proceedings like the present. The assignee appealed. Dornhorst for the assignee, appellant. Layard for the plaintiff, respondent. Cur. adv. mil- (i6th June). Clarence, J. — This is an appeal by an assignee in insolvency against a dismissal by the learned District. Judge of an application which is rightly chHracteriz- ed by the District Judge as an application for an injunctioa to stay a sale in execution- Plaintiff goi judgment on the i6ih January against the defendant for Rs. 460, claimed as rent due lor a certain shop at Kayman's Gate. On the a3rd January plaintiff issued writ in execution of that judgment. On the t3th March the present appellant; upon notice to plaintiff" and defeudant made his present application. The affidavit in support of the motion states that defendant was adjudicated insolvent on the lOlh January, that appellant was appoint- ed assignee on the i4ih February, and that while certain shop goods of the defendant were in ac'ual custody of the appellant as as>ignee. the Fiscal on the 23rd February seiz;d them in execution of plaintiff's judgment, refuses to with- draw, and is about to sell. The plaintiff's case in opposition to the motion was not called for by the learned District Judge ; there are therefore no affidavits in answer to appellant's affidaviS and no tnate.- rial on which I can arrive at any conclusion on an impor- tant question of fac', which seemed to be shadowed forth in the argument before me, via- whether the house in winch the shop goods were seized is the house concerned in plain- tiff's ac ion for rent. I asked whether in order to save trouble and expense counsel could come to any agreement as to the fact with referenca to that. Counsel, however, were unable to agree to anything. I do not know therefore whether plaintiff's claira falls within the purview of section 243 53 oi tbe Insolvency Ordinance. I am not prepared to say that under no circumstances caa an assignee in insolvency obtain an injunction to restrain a judgment creditor of the insolvent from selling under his writ. It is quite true that ia the ordinary case in which goods seized by a plaintiff in execution against his defendant are claimed by a third party, the Court would be most unwilling to interfere at the in- stance of such third party by injunction. See for instance Garsiin v. Asplin (i). And the assignee will of course have his aciion after the sale. But the claim of an assignee in insolvency stands on rather a different footit)g from that of the third party in the simple case just now put, inasmuch as the facts on which his claim of title to the goods is based are so mucii more easily ascertained. Our Insolvency Ordinance, based on the English Act of 1849. appears to confer no power on the District Court to issue injunctions in the matter of the insolvency. The English Bankruptcy Court has that power under the Act of 1869, and it is a power frequently exercised. See for instance Re Bishop (z). I am not prepared to say that cases might not occur in which the District Court if appealed to duly by libel might be justified in restraining on an assignee's application an execution creditor's sale- But in the case before me I think that the assignee has at all events mistaken his proceedings. Whatever might have been his right had he made his application by filing a libel, I think he went wrong in preferring it summarily by way of motion in an action to which he is no party- Appeal dismissed. Proctor for the plaintiff, y. If'. Vanderstraaten. Proctor for the applicant, ^okn Oklmus- (i) I Mad., 150. I (2) L. R., 13 Ch. D., no, DC. ■) Kandy, > 38,i8o. ) 244 iird fune, i88a. Present— Clarence and Di4S, JJ. K. R. SeTADO MoHiMADO V. Kandy, > q ^ y^^^ Carogher 88,4.89. J Ex parte G. A. Mao Caroghbr. Fiscal— Execution— Ordinance i^ of 1867, sect. 44— S'a/f of debts — Common law proceeding. The procedure for the attachment of debts prescribed by section 440! the Fiscal! Ordinance, 1867 does not preclude a plaintiff from selling in the ordinary course of excention debts due to his execution debtor, but simply provides an alternative and summary proceeding for the pur- pose. The plaintiff in this case, upon a mortgage decree, seizsd and sold iu execution the defendant's interest in a morl- gage granted hy one Burke to defendant. T. W- Hall became the purchaser. Defendant moved, under section jJ of the Fiscals Ordinance. 1867, to set aside the sale, on the ground that the procedure prescribed by section 44 shonld have been adopted by the plaintiff. The District Judge {A. C. Lawrie) having set aside the sale, the plaintiff and Hall appealed. The facts more fu'ly appear in the jadg* ment of the Supreme Court. VanLingenlerg for the plaintiff, appellant. Browne for the purchaser (T. W. Hall), appellant. Dornhorst for the defendant, respondent. At the close of the argument, their Lordships delivered the opinions embodied in the following written judgments, which were subsequently handed in. Clarence, J. — It seems in this case that the plaintiff got judgment against his defendant and proceeded to execution. It is not disputed that the property hypO' thecated by defendant to plaintiff included a mortgage granted to defendant by one Burke. Plaintiff in execution of his judgment seized that secured debt and sold it, the purchaser being Mr. Hall. Within 30 days after the sale the defendant applied to the District Court to have the sale set aside on the ground that there was irregularity in the sale, in that the Fiscal did not " comply with the require- meats of sect. 44 of the Fiscals Ordinance" That sect, says, 24,5 ■" When the person against whom execuHon is decreed is entitled to money due to him by some other party, it shall be lawfat for the party in whose favour such execution is decreed to call on the person owing money to his debtor to show cause why he should not pay the money due by him into Court. If he does not dispute the debt, he shall pay the same into Court within such time as the Court shall allow him, of which the Court shall make record, and if he fails to do so, the Court may iss le execution against faim without any further action or process." Then follows some procedure applicable to the case in which an execution debtor's debtor disputes his debt. It seems to me that this provision simply offers to the execu- tion creditor an alternative, which he may if he pleases adopt, but which he is under no obligation to adopt it he prefers to sell the debt as it standi. According to the law of this couatry debts are saleable. The Fiseals Ordinance expressly recognises that. Section 59 prMvides the means and prescribes ihe manner in which such choses in miction are to be seized, and section 76 clearly contemplates not merely the seizure of the debt but also tlie sale- This execution creditor has got judgment against his defendant for this money and is lorced, by reason of his defendant not voluntarily paying off the judgment, to resort to the Fiscal's action, and in my opinion he is entitled to deal with his defendant's property wherever he finds it and sell it in satis* faction of his debt, unless the Ordinance has subjected him to any res'riction. I think that the ++th clause imposes no such restriction, but simply ofiers him an alternative mode of procedure, which he may or may not adopt iu his dis- cretion. DiAS, ]• concurred. Set aside with costs- Proctor for the plaintiff, f, H. de Saram. Proctor for the defendant, W GoonetiLLke. Proctor for T- W- Ball, 0. Vanderwall. 245 a7 V. 6,310. J Thegis Singho and 5 others. Assault on police officer in ike execution of his duty — Ordi. nance 11 q/"i863, sect. 165 — If'arrant of arrest, description of offence in — Conviction of assault at common law. Where a warrant of arrest against an accused party gave the names •of the complaining and accused parties, and stated the ctiacge to be " tlireatming to rio bodily harm" : Bdd (per Da Wkt, A. C. J. and Dias, J.) that the warrant suffi. ciently c!c>cri led a ciiminal offence. f/fWalpn (per Ciarhncs and Dias, JJ., following P. C. Kalutara 64,188 ( I )) that upon a charge of assaulting a police officer in ihe execution i f iiis duty, in hieach of sectinn 165 of the AdminisHraiioii of jfuit ce Ordinance, 1868, the accused coal4 be convicted of an assault at ci,mmon law. The six defendants were charged with an assault upon the complainan'i a Peace Officer, when engaged in the execu ion of his duty as such, viz. in attempting to arrest one Sameretunga upon a warrant of arrest issued in J. P. Colombo case No. 5.247, This warrant was in the follow- iog terms : WARRANT OF APPREHENSION. The Quebn on tlie Complaint of Don Andris de Silva Sanierctuaga of Cawdane » Complaiaanti lice of) ., PeJl No. S247 Justice of the Don William de Silva Sameretunga of Waralappolia Accused. To ttie Peace Officer of Cowdane Take into your custody the body of the above named accused, charg- ed with threatening to do bodily harm and bring t>im before vac or some other competent Justice of the Peace forthwith. Wrt. retble, i4tb April next. Given under my hand at Colombo this 31st day of March 1887- (Signed) J. E. Smart, justice of the Peace far Col. Dt. The Police Magistrate (If'. J. S- Boake) acquitted the ~ (i)4S.C.C., .17. 247 defendants, holding that the warrant, by virtae of which the arrest was attempted, was bad, as it did not sofficipnily describe the offence with which the [«arty ugainst whom it issued was charged- The complainant appealed. The appeal first came on before Clarencb, J., by whose direction the case was put on for the Full Bench. Dornhorst, for the comiilainant, appellant, cited P. G. Kalutara 64,188 (i). Browne for the defendants, respondents. Their Lordships, at the close of ihe argunnent, delivered the opinions contained in the following judgments, w:)ich were handed in on 13th July. De Wet, A.. C. J, — In this case, which is an appeal from the Pi^Lce Court of Colombo, it appears tlial certain defen- dants were charged before the Police lVlaa;istrate of that Court with having on the2ndApiil 1882 assaulted one Bon yoronis Seneviratne, Peace Offi.;er of Cowdaiie, in ihe execution ot hi-; du y, at a lime whed he went to arrest one Bon Jt'illiam De Silva Sam retunge, who was charge) under a warrant dated 3tst March 882, issued by a Justice of 'he Peace upon the complaint of one Don Avdris Be Silva Sameretunge, and with having contravened the provisions of section 165 of Ordinance No ji of 1S68 After hearing the evidence of tl)e complninant, and upon the warrant of arrest being produced, the Magistrate ac- quitted the' defendants, holding that the warrant was bad inasmuch as the allegation therein contained, namely " threatening to do bodily harm" was an insufficient des- cription of a criminal offence. The principal contention raised by re>^pondents' Counsel in this Court was, that the name of the person agaiist whom the threat was uttered should have appeared in the warrant. I am of opinion 1 hat this was not necessary, as the warrant sufficiently dencribsd the nature of the offence, the name of the person complaining, and the name of the person complained against. Under these circumstances, therefore, holding as I do tha' tbe warrant was perfectly legal, the Police MagistriUe is ordered to proceed with the case No 6,310 instituted by the appel- (2) 4 S. C. C , 1 17. 248 lant against Thegis Singho and o'hers for assaulting him id ihs execulion ol his duiy. Clarence, J.— As the oilier merr.bers of the Court think that this case should be sent back to the Police Court for further proceedings, I am content that that course should be adopted. It will at aiijr rate be open to the Magistrate, should the evidence justify sucii a course, to deal with the case after the precedent reported in 4 S. C. Rep., 117. But. if I were called upon to pronounce a decision as to the legality of this warrant, I should wish to take time to cousider that point. D IAS, J. — The question in this case is, whether the war. rant of apprehension under which the prosecutor acted was or was not legal. Two questions were argued at the bar viz. first, whether or not the defendants could be convicted of resisting the complainant in the execution of his dutvas a Peace Otiicei : (this question depends upon the validity of the warrani) ; and secondly, assuming that the warrant was illegal, whether the defendants should have been convicted of an assault at common law. On the first question I am of opinion that the warrant was legal. It is a warrant in the form E. given in the Schedule to the Ordinance 11 of 1868. It was objected that the warrant was bad inasmuch as it did not state the name of the party against whom the threat was used. The answer to this objeciion is, that the stai utory form of the warrant does not require it. Even if the form required it, I think there is sufficient on the face of the warrant, to indicate the person against whom the threat was used The na;nes of the complaining and accused parties are inserted in the warrant, and it may be reasonably presumed that the threat was used by the accused party against the complaining pirty. On the second question I agr.-e with the opinion of Mr. Chief Justice Cayley, reported in the 4th Volume of the tSupreme Court Reports, p. 118, that the defendants can be found guilty of common assault on this plaint- Under these circumstances I agree wiih the rest of the Court that ihe case should be sent back to be proceeded wi h in due cuurse. Set aside- [ The defendan's were on 14th August i88» tried by the «ame Magistrate and conTicted both of the Tesistance charged and of commoa assault, but ** under 'Ctrcunistances ■of great aggraYatton*" They were fined one riapee each.] 9.st and 2md March, i SSs-- fresent — Clarence, J. D. C. ^ F. M. Arookiampuli-b Colombo, > V. 8 ^645. * M. A. Sambo andanother. Fiscal — Procedure to fet -aside sale in execulioit^Ordinance 4 of 1867, sect, ^i— Summary proceediri^s — Statement of Observations on the course to be adopted in proceeding under section 53 of the Fiscah Ordinance, 1867 to have a Fiscal^s sale in execution set aside ^ar irregularity. This was an action on a promissory note for Rs. 3C0 against a man and wife, and judgment was on 12th June 1882 entered for the plaintiff in default of defendants ap- pe ir'Ug. Upon writs of execution issued the Fiscal of Kandy seized and sold, on 17th October 1882, certain land of the defendants'. On '?3rd November 1882, the first defendant moved (with notice to the purchaser at the Fisc^l's sale) that it might be entered of record that he im- peached the Fiscal's sale, and moved to read and file the affidavit of ist defendant. This affidavit averred that, though the land sold was worth over Rs. 1,000, there had been no advertisement of the sale in the Gazette or any newspaper; and that there had only been two bidders at the sale. The District Judge (T- Berwick) disallowed the motion in the following terms: This motion is a superfluity (and therefore a mischief) and made under a misconception of the nature of the action intended and the {»-u{)er procedure therein. 250 Yhe Court is i'nfortned that the defendants' property has been seized and sold under the writ of execution on the judgment in this suit, and I'hat the defendant desires to get this sale set aside on grounds of irre- gularity and informality) irhich he intends to allege and prove in due course. There are two — or 1 should rather sayj three — modes of pro- cedure appropriate to this action : the defendant might, on satisfying the Couit by ex parte proof that there are sufficient grounds primi fade for the proceeding, move the Court for a Rule Nisi on the various patties interested, to have the sale set aside and fresh proceedings taken on the writ ; or, second, he might simply move the Court to set aside the sale, giving due notice of his motion, when parties would be heard thereon. In either of these cases, if the matter be contested, the Court would hear evMence on both sides if necessary, either by affidavit or vM voce. To neither of these modes of procedure is the present motion appropriate. There is a third mode of procedure, however, which is that which probably lurks in the defendant's mind, and connected with the provL sion in the Fiscals Ordinance, which is In these words : '• It shall be open to the debtor impeaching such sale on the ground of irregularity or informality to state or report to the Court his objections to the sale being confirmed, and the Court having inquired into the same sum- marily shall either confirm or disallow the sale as to it shall appear just and reasonable." The intended meaning oS the word " summa" rily" bafHes me. In England it means without the jury which the Common Law requires. The words "disallow the sale" I fancy to mean, "set aside the sale.'' If the defendant desires to proceed under this provision his course is simple and plain. He ought to file a paper or pleading setting out the grounds of law or allegations of fact on which he relies in support of the setting aside or non-confirmation of the sale. This Court will not inquire into these summarily, but will require tte presence of both parties (or notice to them) before it either confirms or disallows the sale ; and therefore the hearing of any testimony either vitd vuce or by affidavit, when or before these allegations are filed, would be altogether out of time. Having filed his allegations (upon the proper stamp which pleadings require) which should conclude with the prayer that the sale be set aside and cancelled (or, in the cu rious language of the Ordinance, " disallowed"), he can next use the ordinary procedure for bringing the other parties interested into Court, and for obtaining a decision on his prayer. If they do not appear on due notice, bis application will be allowed as of course, or on such ez parte evidence as the Court may think proper. If they do appear, the Court will bear and decide upon such evidence, if any, as is offered on the tespective sides. It is obvious that the first branch of the motion before me, viz. that the defendant impeaches (or intends to impeach) the sale, is altogether inappropriate to the procedure just pointed out, and it is therefore dis- allowed. In disallowing, as I also do, the second branch of the motion, viz- tor liberty to read and file certain affidavits, I take the opportunity to make the following observations. First, premising that the motion was originally made simply to file, and not to read and file, the affi lavits— By filing affidavits you record testimony. No testimony can be recorded unless it has been given, whether vivd voce in the witness box, or otherwise. Therefore no affidavits can be filed until they have been read. It was therefore very necessary to insert the word " read" in making the motion, and I draw the attention of the local profession to this, because of the prevailing mis.conception on the subject. 251 As to " reading" the affidavits, that is to say as to ofleiing certain testimony — (whether vivd voce, by witnesses in the box, or documenj tary, is of no consequence) — there is only one class of cases in which testimony can be received behind the backs of the other parties interest- ed ; and that is, where it is offered as primA facie evidence to justify the granting of a conditional Rule, or other purely'«x parte proceeding r a^, for example, an application for injunction very commonly is. You do not file your proof with an action for ejectment, but you reserve your proof till the day of trial. When both parties are befoce the Court, or have been cited,, and the q,uestion is contested, is the proper time to offer your testimony. If there is no contest and the point is yielded, no evidence is required except in the few cases when the party is absent on citation and the Court thinks ex parte evidence desirable^ It is only necessary to state these propositions Co show that the propo' sal to tender affidavits in the present proceeding at the present time is altogether misconceived and a waste of stamps. The plaintiff and first defendant appealed.. De Saram, for the appellants. Cur. adv. vult. (and March). Clargnob, J. — I do not think that there need be any difficulty in carrying into effect the provisions of the 53rd section of the Ordinance with regard to the im* peaching of execation sales. The party who desires to impeach the sale is to place his objections before the Court within the 30 days. The intention is> that he should lay before the Court a definite statement of his objections, committing himself definitely to specific objections. 1 he best method of doing this will undoubtedly be to present to the Court a written statement of the objections relied on- The words of the enactment are ." state or report." The Legislature probably had in contemplation that cases would arise (and in Courts of Requests actions, for example, such instances are probably not uncommon) in which the party may be without professional assistance and may be unable to write. It is no doubt open to a party in such case to present his objections to the Court orally, when the Court will of course reduce them to writing. The best course undoubtedly is to present to the Court a written statement of the objections, and this in District Court cases there will usually be no difficulty in doing. I am informed by counsel that this is the course which was adopted by the appellants in the present instance, but as no written statement of objections is now to be found in 252- ffie paper book,* I am unable to express any opiniott on fe dbcument s6 presen'ed to the Cbuft. The objecting party having thus lodged his objections, the- next step is to take order for their discussion ^ Milirays sup^ posing that the Court does not find' them to be on' their tick untenable,, in which case, of course, they may be at once- repelled'. Notice must, of course, be given to all' other par* ties interested, and on the day fixed for the discussion thfr several parties may adduce their evidence in support of and in opposition to the objections. It hardly needs to be said that when a party intends to use affidavits the proper course is to give copies beforehand to the other side. Ihe inquiry into the objections is to be "'summary.''' There is, I thinkr Bo reasonable doubt as to what is meant by " summary" proceedings, viz-, proceedings as brief and as devoid of technL ealities or formalities of procedure as may be found oom> patible with the full investigation of the matter. The learned District Judge has referred to an instance,, and nothing more, of proceedings in England which fall within the category of summary proceedings. If it be the fact that appellants tendered to the Disti'ict Court a written statement of the objections in virtue o^ which they proposed to impeach this sale, they adopted a proper course. The motion noted as to be made by plain., tiff's Proctor,. Mr. &. Perera,. however, is ilUconceived-. , I have already pointed out the proper course to be taften in lodging the objections- I suppose that the District Judge has rejected that motion, but if I were simply to dis- miss this appeal the objecting parties would be out of time with their objections if any order has been made rejecting them. It does not clearly appear what order has been made. I shall assume that appellants have laid before the * Ttie followiiis; document is stitched into the paper.book fti 34)ir No. 86,64s 1 6th Nov. 1882. Mr. Charles Perera files a stitement of objections to the sale of defendant's prooerty, to wit, Bini^ap'itiya Weli- canda Cumbure held on 17th Ott i882^beii* confirmed. ' " Statement of Objections, irrespective of Arguments to be urged at discussion. 1. The above property is worth from Rs. i.ooo to Rs. r.geo andwSs^ not publisheil in the Government Gazette as required by the Ordinance. 2. No notice of sale of the said property was given either to tht plaintiff or to his proctor. 3. The Fi^al of Ka:ady was asked by plafntifl's agent not to sell the said property. (Signed)i J. W. Mack, Secretary. 2^58 District Court sonae ob}ections, aot now t» be found in the paper-book. Set aside. Proctor ftir the plaidtiS. Charles Perera. 19th Septemler, i88a, gth March/ and ittk April, 1883. Present — Ds Wet, A. C. J., Cla>bbncb aod Dias, JJ. D. C. j G. MacCarogher Kandy, > v. ^9'79J- ' J- F- Baker and another- 'Pdsgessoty action — Nature of the possession necessary-^ Alility of an agent, who has possessed in right of the doniiaias, to maintain possessory action. M., the owner of two Coffee estates, soM an u-nditiHed half share of them to B , tvho gave M. a mortgage for tbe purchase amount over the prcpffty so sold on 2nd July 1876. M. died, having his brother the plaintiff (who was in England) his executor, and thereafter B. continued in the sole occupation and management oE the estates. At B 's request plaintifi came out to Ceylon, and took cliarge of the two estates in January 1880, and continued with B.'s consent in the sole occupation and management of them till Septemoer i88ir plaintiff himself finding all necessary funds tor their U)>{ieep. In July 1880 plaintiff raised such funds on a mortgage of M.'s half share, irhich (in' August 1881) was sold in execution under the mortgage debt, and purchased by secoml defendant. In June 1881 plaintiff had again mnrt'^ageil M.''s half share to first defendant. In Septemler 1881 plaintiff was deprived o'E his possession of the estates by T, who acted as the agent of the dei fendants and with B.'s knowledge and consent, to plaintiff's knowledge. Held {per Da Wet, A. C. J. and Clarencb, J , Usselitienle. Di.as, J.) that, plamtifi's occupation of B.'s half share having been in the charac-i ter of agent for B., the right to maintain a possessory action in cespect ■ol that share was B.'s and not plaintiff's. Per Dias, J —Plaintiff, having been in possession of an undivided half share of the estates for a year and a day, when he was forcibly dispossessed, was entitled to be restored to . possession, ajnd to recover damages for the forcible dispossession. This was a possessory action, in which the plaintiff sought to be restored to the possession of an undivided half share of each of two estates, Esperanxa and Eringobragk. The facts are sufficiently disclosed in the following judg- ment of the Court below, and in that of the appellate Court. (grd A.pril 1882). Lawrie, D. J.— There are two ques* 254 tions of fact to be determined here : First, was the pfaiotiff in possession of Esperanza and Eringobragh estates for a year and a day prior to September j83i ? And, secondly, was he forcibly dispossessed by the defendants ? If he has succeeded in establishing both these facts^ then, it follows, 1 think, that he is entitled to a possessory judgment, even though the plaintiff's right to the land is doubtful. As to posse' sion, I think there can be no doubt that Mr. Mac Carogher was in sole possession of the estates from Janu- ary j8!Jo ti'l September i88i- He was owner of an un, divided half, and held a mortgage over the other half, and the owner and mortgagor of that half had speciallv requested him to come from England and take charge. The plaintiff's right, title and interest in an undivided half share of the estates was sold by the Fiscal on the 33rd August 1881, and was purchased by Mr. Hall- I am not aware whether Mr. Hall has got a transfer from the Fiscal. None has been produced. On 17th September i88r, Mr. Tytler arrived on the esta'e and handed to plaintiff a letter iu these terms ; — "This is to inform you that the bearer, Mr. W. A. Tytler, calls to take over charge of Esperanza aod Eringobragh estates, and we have to request you will be good enough to hand over the properties to him." This letter was signed by Mr. Halt, purchaser at Fiscal's sale, and John F. Baker, mortgagee. Plaintiff objected to give up possession, and it was not until the zpth September) when Mr. Burie came to the estate, that the plaintiff so far yielded as to give to Mr. Tytler the keys of the store. To these -keys, Tytler, as acting for the owners of an undivided half, was equally entitled with the plaintiff. I have read the accounts of what happened, as narrated by the three persons present, the plaintiff, Mr. Tytler, and Mr. Burke, and I am of opinion that nothing was done by the plaintiff which implied consent to his losing possession. Indeed, by giving up the keys, which he could not well retain ex- clusive possession of, he was not giving up possessioT of the land. The ouster was not committed then, but afterwards gradually hy Tytler s taking the whole management, in pick' ing all the crop without consulting the plaintiff or account' ing to him. Notwithstanding the evidence called by the defendant, I decide the second question of fact for the plain- . tiff. 1 hold it proved that the ouster was by Mr. Hytlw acting for defendants, assisted no doubt by Burke, bi^ assisted by him on behalf of these defendants. They have 255 since then got all the crop, and it is, 1 think, mere pretence to say that Burkv possesses or that Tyiler acis for him. Since the plaintiff lost possession, his right, title, andii- terest as creditor in a mortgage over an undivided half of these estates granted to his deceased brother by Burke was sold by the Fiscal, and was purchased by Hall on the 3id March l88a. Sftme months after, this action was raised. The position of Mr. Burke with regard to the estate, and with regard to the mortgage, seems full of doubt. With regard to the estate, he never paid a penny for it, but still he holds (or held) a transfer for half share. He threatened to abandon it after Mr. Robert MacOarogker's death, and it; was at his urgent request that the plaintiff came out from home, and took charge. Since then Burke seems to have contributed nothing to the upkeep, but to have let the whole burden fall on Mr. George MacOarogher- With regard to the mortgage bond, just when the plaintiff's interest on it; as creditor was about to be sold. Mr. Burke objected to the sale on the ground that the debt had been discharged. The plaintiff seems to me to be in some risk of losing every- thing. I am bound in this case to give him a part of the remedy he claims. I think he should have a possessory judgment for an undivided half of the land. The defen. dants have no right or title to deny him that. They have shewn no right to possess more than half. They have without right obtained possession of the whole, possession gained not qui'e, perhaps, by physical force, but with a threat of force and urider compulsion of a kind quite as formidable as force. If the p ainiifi gets this judgment, he will at least be in a position to raise questions between him and Burke. The defendants now interpose between Burke and the plaintiff j when their interposition is removed, the parties will be on a fairer relative position. Durin? the possession by Mr. Tytler, the plaintiff has not contributed anything to the maintenance of the estates. Indeed it seems clear that his funds were exhausted, and 1 cannot give him any substantial damages. Indeed, it does not seem to me to he a case for daraasres at all. Possessory judgment to be entered for plaintiff without damages, and with costs in the second class. Both parties appealed against this judwraent. The appeal was first argued on 19th September 18 8a before Clarence j^d DiAS, JJ. Their lord'hips differing in opinion, Coun- 256 sel subsequently agreed to take the decision of Db Wbt, A. C- J.) without further argument, Grenier for the plaintiff, appellant. Browne for the defendants, appeli^ots- Cur. ady- vult. The Court delivered judgment on 12th April 1883. Clarence, J. — This is in substance b poBsesBory action, in which plaintiff seeks to be restored to possession of an undivided half share of two coffee estates, and also prays for damages against the defendants, viz., a sum of Rs. 6,500, which he claims as the value of half the crop, they having taken the whole. The facts which led tip to the acts complained of appear to be these : Plaintiff's brother owned the two estates and sold an undivided half share to one Burke- Burke paid down none of the purchase money, but gave plaintiff's brother a mortgage for the amount, Rs. 40,000, bearing date the 2nd July, 1876. Plaintiff's brother died, it does not appear precisely when, and plaintiff is now his Executor. In ih79 Burke had no funds wherewith to work the estates, and solicited plaintiff to come out from home, threatening to abandon the estates. Plaintiff came out in July 1879, and in Januaiy iSBj entered i .to occupation of tbe estates, and continued in the occupation and management of the entirety of the estates until September 1881, when occurred the acis of which plaintiff now complains- While plaintiff was tJius in occupation Burke found no funds for the up. keep of the estates, and such funds as were provided were provided by plaintiff. All this was with Burke's assent. In July 1880, plaintiff obtained advances for ihe upkeep of the estates from one Seyadoi to whom he mortgaged his brother's remaining half of the estates. The crop, however, did not meet the expendiiure, and in August ibSi that remaining half of the estates was seized under writ of Seyado's and sold to second"' defendant. In June 1881 plaintiff executed a mortgage bond in favor of ist defendant, by which he purported to mortgage his brother's remaining half of the estates to ,ist defendant in consideration of ist defendant guaranteeing a debt due to the Oriental Bank Corporation by Burke and plaintiff's brother or plaintiff. 257 This bond purported to secure such payments as might thereafter be made by ist defendant, and recited that plains tiff was in possession and had found funds for working the esiales On the 17th September 188 1 a Mr, lytler came to the estates, with the letter set out in the learned District Judge's Judgment, in which and defendant as " purchaser at Fiscal's sale'' and ist defendant as "mortgagee" inform^ ed the plaintiff that Mr. Tytler had come to take over charge of the estates, and requested plaintiff to hand over the properties to him. The purchase here referred to seems to have been and defendant's purchase of plaintiff's brother's half share, and the mortgage seems to have been the security created by Burke in June 1881, in favour of ist defendant. What followed is described by plaintiff (pp loi 11). I'he learned District Judge finds upon the evidence that both Tytler and Burke acted on behalf of defendants- At the time when this interference with plaintiff's occu^ pation of the estates took place, the plaintiff's right to the unsold half was good, but defendants certainly had no right to interfere with the occupation of any one who might be in occupation in respect of Burke's half. I fail, however, to see that a possessory action is maintainable by plaintiff in respect of Burke's half. Plaintiff by arrangement with Burke lived on the estates and worked them, and found all the money which was found for that purpose. When plaintiff's own half was taken from him, there remained to him nothing except his mortgage over Burke's half for the Rs. 40,000, and Burke's debt to him in respect of the funds which he had found. His occupation of ihe estates was merely in the character of agent for Burke, and though Burke would be entitled to assistance against any interfere ence with his enjoyment, either in person or by deputy, of his half share, the right is in my opinion Burke's and not plaintiff's. The case is probably a hard one on plaintiff, who seems to have expended money on the entire estates. The truth probably is that the estates were worth little, if anything, when plaintiff's brother sold the half to Burke, a transaction which on its face amounted to a loan of Rs. 40,000 on the security of coffee property worth the same amount, at six per cent. But however that may be, it appears to me that plaintiff is not entitled to the remedy which he seeks in the form of a deokratioa ol his right to remain in possession, 258 or an order restoring him to possession, I am not, how ever, clear that plaintiff had not, to the amount of half the sum which he may have expended on the raising of the crop w^hich defendants took, some right of lien or legal hypotheo over that crop, vf'hich he should still retain if his deprivation of control over the crop is to be considered as having^ been effected by compulsion. There seems, however, to have been no attempt to ascertain how much is due to plaintiff for outlay, and no account decree is asked for. I ihinfc, therefore, that we must regard plaintiff as having failed to establish any tiile to relief on this head also. J think that the order in appeal should be : — Set' o/side^ Lismiss plaintiff's claim to a declaratmn that he is entitled to possession of one half of " Espei anna" and " Erimgobragh!' estates. Absolve defendants from the instance mth regard to plain' tiff-' s cMm of damages. Plaintiff to pay defendants' costs in loth Courts. DiAs, J. — This is a possessory suit by the plaintiff to be restiored to possession of an undivided half of two coffee estates, of which he has been forcibly dispossessed. The plaintiff also claims R's^ 6, joo as damages. The entirety of the two estates, originally belonged to the plaintiff's brother, who somewhere in 1876- sold an undivided half thereof to one Burke, who entered into possession and remained in possession till 18794 In 1879 Burke, being unable to carry on the cultivation, wrote to plaintiff wh(J was then in England to come and take charge of the property. Plaini tiff came out in July 1879, and in January 1880 entered into possession and carried on the cultivation till September 1881, when he was fbrcibly dispossessed by the defendants or their Agent, one Mr. Tiftler. The plaintiff's brother having sold a half to Burke, the remainder passed to plain- tiff under his brother's will j that half seems to have been soldion a writ of execution and purchased by the and defen^ dant. The question for consideration is, whether in September i8'8i, wlien he was forcibly dispo.ssessed by the defendants, the plaintiff was in lawful possession ofan undivided moiety of the estateSi This issue was found by the District Judge in the affirmative, and that finding is fully borne out by the recorded evidence. 259 This case is governed by the Roman Dutch law, there being no Kaudyan law on the matter. All the Dutch authorities agree on this, that a person who has been in lawful possession for a year and a dav, and has been unlaw, fully and forcibly dispossessed by another, is entitled to be restored to possession if application should be made to a Court within one year of such dispossession (i). The poS' session upon which such a remedy can be furnished is defined by VanderLinden as " a possession obtained fleither secretly, nor by force, nor on condition of quitting on first notice." This definition of Vander Linden's is founded on the interdict unde vi (2). All the Dutch authorities which I had access to agree that the possession must be a lawful possession. This is reasonable enough, as otherwise the possession of a robber will entitle him to the same remedy (3). VanderLinden, however, goes further and Idys down that even a mala fide possessor is entitled to this remedy (4). I am, therefore, of opinion that in September 1881 the plaintiff was in lawful possession of an undivided moiety of the estates^ when he was unlawfully and forcibly dispossessed by the defendants, and that the learned Judge ■was right in decreeing restoration to plaintiff. The defen.* dants' appeal must, therefore, be dismissed. The plaintiff also appeals against that pan of the }Udg.k ment which disallows his claim for damages. I think the plaintiff's appeal must succeed, and he is entitled to dama. ges consequent on the wrongful dispossession on the part of the defendants. The case, I think, should go back for further hearing and adjudication on this point. The de- fendants should pay all costs in both Courts. Db Wet, A. C. J. — This case was argued before the Senior and Junior Puisne Judges, and as they cannot agree upon their Judgment, th© matter has been refereed' to me. After a careful perusal and consideration of the evidence and the Judgments of both my learned brethren, I am of opinion with my brother Clasencb that there should be absolution from the instance, considering, as I do, that the (i) VanderLinden, Instit., Henry's Trans., p iSj. (2) Trayner's Latia Maxims, p 557. Voety a* Pond.,. 43; 16. 3. Ortolan'si /Soman ^aiv, para. 23.10, p39[. Hnniet's Roman Law, ist Ed„ p 105. (3) See further 3 Menzies' Cape Report^, 342, 343. Tralyntt 3 Latin Maxims, 602; (4) Van Leeuvren, Comm., Kotze's Trans., p 198. 260 plaintiff has entirely mistaken his remedy. I atHr moreorer, of opinion that plaintiff should be ordered to pay defen- dants' costs in this Court as well as in the Court below. Set aside. Decree a* formu. latedly Claeencb, J. Proctor for the plaintiff, Edwin Beven. Proctor for the defendant, Wm. Goonelilleke. 12th and 26th April, 1883. Present — Dias, J. C. R. •« J. W. A. Wright Kandy, > v. 20^351. ^ The Municipal Councii, of Kandy. Assessment for Police tax, objection to — Ordinance i of 1867, sect. I — Limitation — Notice of action— Ordinance ij of i86_5, sect. I'll- Plaintiff, on ist March t88j, received notice that the Municipal Council of Kandy, the defendant, had assessed plaintiff's house as of the annual value of Rs. 900, foe the purposes of the tax for maintain- ing the Police in the town. On 3rd March, and again on 7th and 2yi August, 1882, the plaintiff protested against this assessment as excessive; and on 19th September vfas informed that the assessment had been reduced to Ks. 800. On 3rd October 1882, plaintiff btought the present action, praying that the assessment might be reduced to Bs. 600, the real value of the house. Held ^aflSrming the decision of the Court below), that the action was not maintainable, no notice of action having been given to the defen. dant, as required by section 177 of the Municipal Councils Ordinance, 1865. Held also, that the present action, embodying the objection to the assessment, was barred by section i of Ordinance 5 of 1867, not having been commenced within 15 days of the receipt of uotice of assessment. Plaintiff sought by this action to have the assessment of the annual value of his house at Rs. 800 reduced to fts real value, Rs. 600. Plaintiff had on ist March )88z received notice of an assessment at Rs. 900, and had objected to it as excessive on 3rd March, and on 7th and 23rd August, 1882. He received no reply to his letters till 19th Sep- tember, when he was informed that the assessment had been reduced to Rs. 800. The present action was then brought on 3rd October 1881. The Court below (J. M.' 261 Gibson, Commissioner) dismissed plaintiff's ac'ion, holding that it was not maintainable, by reason of no notice of action having been given in terras of section 177 of the Municipal Councilf Ordinance, i86_5, and by reason that it had not; been commenced within 1 j days of ist March i88j (when plaintiff had received notice of the oricrinal assessment) as required by sect, j, Ordinance 5 of 1867. Plaintiff appealed. Satnpayo {Dornkorst with him), for the appellant— The Ordinanre of 1867 requires the householder " to object" : plaintiff, by bringing an action in ordinary course, has in effect objected 10 the assessment- Jf, then, the action be treated (as it evidently was meant to be) as an " objection" to assessment, it would be absurd to require one month's notice, when the objection has to be taken within i j days. Again, the objection was taken in time, because the assess- ment to which the aciioa takes excejuion is not the assess* ment of which plaintiff received noiice on ist March, but the new assessment fixed by the defendant's letter of 19th September. That letter reduced the annual value from Rs. 000 to Rs. 800, and was therefore a new assessment, to which plaintiff was entitled to object anew. Fan Langenberg, for the defendant> respondent — The Court, before which the objection is lodged, has to " decide upon such objection in a summary way." This clearly con- templates some proceeding more short and simple than an ordinary action. Plaintiff's original objection was to the excess of Rs- 300 over the Es. 600 which he considered the true value. That objection was lost by not being taken within 15 days. Plaintiff now seeks to repeat his objection to Rs. aoo of those Rs. 300, The action (qua action) is also barred by section 177 of the Mtcnicipal Councils Ordi- nance, 1865, not having been begun withiu 3 months of the cause of action accruing. Cur. adv. vutt. (a6th April). Dias, J.— This is a proceedina; under the ist section of the Ordinance No. j of 1867. That section gives a summary remedy to a party dissatisfied with the assessment of his land for the maintenance of the Police Force. But the plaintiS in this case proceeds against the 262 Municipal Council by action. No objection on this score was taken by the defendant, and I shall treat the plaint as a sutnmary application under the Ordinance. The plaintiffs house was ass>^ssed by the Municipal Council at U$ 9003 year. Of this assessment notice was given to the plaintiff on the 1st of March i88a. The plainti£f protested against the assessment on the 3rd March 1882 and again on ths 7th and igrd of August, and on the 19th of September he was informed by the Municipal Council. that the assesstnent would be reduced from Rs. 900 to Rs. 800 per annum. The plaintiff says that the proper annual value of his bouse is Rs. 600, and he prays the Court to reduce the assessment to that amount. The defendant pleads that he did not receive the notice required by the i;7th clause of OrdinaDoe 17 of 1865, and he further pleads that under the 1st section of Ordinance j of 1867 the plaintiff's right, if any, is barred. The learned Commiss-ioner decided in favour of the defendant, and I think that decision is right. The plaintiff had notice of the assessment on the ist of March 1882 and he did not file his plaint till the 3rd October, and under the I St section of the Ordinance the plaint or application to the Court should have been made within ij days of the assess- ment and notice thereof. It was urged for the appellant that the delay is owing to the defendant who did not answef the plaintiff's letter of the 3rd of March till the 19th of September. The Ordinance, however, makes no distinction, and there is nothing in the Ordinance which will ope- rate as an excijse for not taking action within 15 days. I think the opinion oi the learned Commissioner on the two objections taken by the defendant under the 177th section of the Ordinance 17 of 1865 and the ist section of the Ordinanpe 5 of 1867 is right. Proctor for the plaintiff, f- D. fmklaas. Proctor for the defendant, Jf. W. Sipan. 263 I3 1 33,482. J 0. WlJESINC D. C. \ A. A. I. Perera and another V. SI6HE and others. Stamp — Deficiency of stamp— Stamping at trial on pay- ment of penalty — " OriginaZ," " Duplicate," " Notary's Pro- tocol" -^Evidence ^Ordinance 19 of lijji — Ordinance 2i of J'8'j i; sects. 36, 39 and j^o. The value o( the stamps to be affised to an instrutnent must be determined by the law in force at the date of the instrument. But when an instrument, upon its tender in evidence, is held to be insutf'- ciently stamped, the procedure for stamping it at the trial, and the amount of penalty payable, must be deiermined by the stamp law in force at the time of such tender. When a notarial instrument has been executed in three copies (called respectively the "Original," "Duplicate," and "Notary's Protocol"), neither of these copies is receivable in evidence unless and until the propbr stamp duty has been paid upon each and every copy. The plaintiffs in this case appealed against a judgment of the District Court (H- Ulevill, Judge) nonsaitiilg them wiih costs; The facts material to this report appear in the judg- ment of CliARENCE, J. Ferdinands, K. (^. K., (jGrenier ynxth him) for the plain* tiffs, appellants. VanLangenherg {Seneviratne with him) for the defendants' respondents. Cur. adv. vult- (a 8th March). Clabence, J. — This case comes in ap. peal under the following circamstances. The action is one in which the title to land is in issue. Amongst the matters upon which plaintiffs seek to found title is a certain docu- ment, which is described by the District Judge as marked " letter F," and which would appear to bear date the 15th September 1857. The plaintiffs, it seems, have to prove that deed, if it be necessary for the purposes of their case thnit it be received in evidence. The District Judge has expressed himself as unable to decide without the instru- ment. There being as yet no finding on any other pari of the evidence, no finding at all in fact, we are not in a posi- tion to say how the case stands. If it be the fact (whether or no it is the fact we do not know) that plaintiffs cannot 264 es'abiish their title without this instrument, then in the absence of the instrument the plaintiffs' action must fail; and plaintiffs in fact are appealing against a nonsuit. It seems, however, that there has been some misunder- standing in the District Court with respect to the proof of this instrument. Tiie plaintiffs first of all tendered what has been referred to on the argument of ihis appeal as "the Duplicate," viz. that copy of the instrument which the Notary had to retain for the purpose of sending it later on to the Registrar General or to the District Court, to be there filed and indexed. Notarial instruments were in 1857, under the Ordinance of 1852, as they now are under the later Ordinances, execu'fed in triplicate, the three copies con- sisting of, first, the copy delivered out by the Notary to the parties, which has been referred to in the argument of this appeal as "the Original''; second, the copy which the Notary retains for the purpose of sending it in to be filed at a Central Office, and which has been referred to as " the Duplicate"; third, the copy which the Notary retains in his own possession, which in this country is popularly styled " the Notary's Protocol." It appears that at the trial on September ist last, the plaintiffs produced what has been described as " the Duplicate.'' It is admitted that this was insufficiently stamped ; but plaintiff j were and still are ready to pay the deficient; duty and the penalty, and so stamp the instrument and render it; admissible. An un^ fortunate misunderstanding, however, seems to have arisen ■with reference to the procedure and requirements in that behalf. The Stamp Ordinance now in force is the Ordinance 23 of 187 1. So far as there may be any question, what value of stamps does this instrument require, we must have re. course to the Ordinance 19 of 185a, which was the Stamp Ordinance in force at the date borne by the instrument. But in my opinion all questions as to the procedure neces- sary for supplying a deficiency of stamp duty, and so, rendering the instrument admissible in evidence, must be determined by rf ference to the Ordinance in force at the time when the instrument is tendered in evidence. I think also that the intention of the Legislature is that the penalty payable should be the penalty prescribed by the Ordinance of 1871. Little, however, turns on that, since the penally is the same under each Ordinance, subject to a possible reduction. 265 It is agreed that the "Duplicate" is not sufficiently stamp- ed. The District Judge then had to ascertain, by reference to the Ordinance of 1852, what was the proper stamp duty. For the procedure to be adopted after that, we must go to the Ordinance of 1871, The Ordinance of 1871, as Counsel observed during the argument of the appeal, is not very clearly framed, but I think its intention can be discovered- Sections 39 40 di^al with instruments tendered in evidence at the trial and then discovered to be insufficiently stamps ed. The party tendering the instrument is to pay into Court the amount of the deficient duty (which amount the Judge is to determine) plus the penalty required by this Ordinance, 2)Z«i an additional penalty of five rupees. Sec- tion 41 empowers the Judge to allow the party seven days' time to find the money, but with that provision we are not now concerned. The party, then, has to pay the deficiency of duty, plus Rs. 5, plus the penalty required by the Ordi* nance. Now there is, no doubt, a little difficulty about the determination of that penally. We have to go to the 36th section to find what the penalty is. That section is some- what obscure, but the intention seems to be this — that the party may apply to the Commissioner of stamps, who may stamp the instrument on payment of the deficiency of duty, plus a penally of Rs. 100, and who may also, with the Governor's sanction, reduce the peiialty of Rs. too. This is the only provision defining the penalty to which we can resort when called upon to determine what is the " penalty required by this Ordinance," within the meaning of section 39. The difficulty is this— the penalty contemplated iii Section 39 seems to be the penalty prescribed by section 36, but the penalty prescribed by section 36 is a penalty which may amount to Rs. 100 and which may be reduced by the Commissioner to a lower amount— a penalty, in fac*, seeming to require for its determipation a decision of the Commissioner of Stamps. There is, no doubt, a difficulty here. The only way out of the difficulty, which occurs to me, is to suppose that inasmuch as the Ordinance makes no provision whatever for any reduction of penalty by a judge, at the trial, the intention was that the full penalty of Rs. 100 should be paid, unless indeed within the seven days which may be' allowed under sectiun 41, a remission' of penalty shpuld be obtained from the Commissioner of Stamps. Unfortunately, in the present case, it seems to have been assumed in the District Court that the procedure to be 266 adopted was that prescribed by the Ordinance of [8^2; and, instead of the Judge himself determining the defi- ciency of duty and then dealing with the matter ac. cording to the provisions of seciions sg, 40 of the Ordi- nance of 1871, the hearing was adjourned in order that the party might procure the instrument to be stamped by the Commissioner of Stamps. The Commissioner of Stamps, so it is said —whether that be accurate or not I do not know — refused to stamp the instrument. What were the grounds for such refusal we do not know ; but it is suggested that there was some difficulty as to who was to determine the penalty. There does not seem to have beea any suggestion during the proceedings in the District Court, but that the deficiency of duty was owing to a mere mis- take. The District Judge, it seems, declined to deal with the matter under the Ordinance of 187 1. After this the plaintiffs, it seems, discovered in the possession of a mem- ber of their family what has already been referred to as the " Original." That document bears a stamp of one rupee which is the amount of stamp duty required by the Ordi- nances alike of 1851 and 187 1 for such an " Original.'* The plaintiffs then asked to have that " Original" admitted in evidence, and so to Avoid the necessity of stamping the document previously tendered. The District Judge declin- ed to allow that, and plaintiffs stand nonsuited. I am very clearly of opinion that the " Original'' ought not bs admitted so long as the " Duplicate" is insufficient. ly stamped. These two words " Original'' and ' Duplicate,'" as thus employed, are somewhat misleading, so far as stamp duty is concerned. The stamp denoting the ad valorem duty is affixed to the " Duplicate," no doubt because that copy is afterwards filed in a Public Office : so that copy is really the principal copy so far as concerns stamp duty. The copy delivered out to the parties is required to bear merely a uniform stamp of one rupee, and that only where the ad valorem duty exceeds Rs. a. 50. The " No- tary's Protocol" needs no stamp whatever. In these provi- sions the Stamp Ordinances of 1852 and 187*1 are alike. The procedure prescribed for the Notary requires hira to prepare three copies of the instrument, each of which is signed by the necessary parties and witnesses. Then, for the sake of convenience, the ad volar em stamp is affixed to one only of those three copies, viz. the copy which is ulti. mately filed in a Public Office. The " instrument" in fact 267 consists of three copies, to one of which the ad valorem stamp is affixed. The instrument is sufficiently proved by proving any one of the three copies, because so far as con- tents, execution and attestation are concerned, the three are equally alike. But it seems clear to my mind that the instrument cannot be proved by .the admission of either copy unless the proper ad valorem duty has been paid. Otherwise, indeed, the consequences would be these I'-^A deed requires an ad valorem starap of, say, Ks. i,ooo ; quite a possible case. The " Original" needs only a single rupee stamp. Without paying the ad valorem duty at all, a party would be able to prove the deed at the cheap cost of one rupee by tendering merely the " Original" : which, I think, is absurd. Therefore, in this case, it being brought to the notfce of the Court that the ad valorem duty due upon the deed has not been paid, the deed cannot, in my opinion, be proved by the production of eiiher of the three copies until the deficiency has been duly atoned for. I think that this case should be sent back to the District Court in order that the plaintiffs may have due opportunity of procuring this instrument to be properly stamped unde^ section 40 of the Ordinance of iS/r, that Ordinance oasting on the District Judge the task of determining the deficient amount of duty. There should, I think, be no costs of this appeal. Other costs may by left to be costs in the cause- De Wbt, a. C. J.-^I concur in this judgment. DiAS, J. concurred. Proctor for the plaiatiffs> 3- Ball. Proctoi for the defendants, T- Oooke. 268 z^rd Felruary and 2!st March, 1883. Present — De Wet, A. C. J., and Clarbncb, J. D. C. ■> K. CoBNELis and three others Kandy, [ v. 90,056. J U- Babanis and two others. Voluntary donation of land — Subsequent lease for valualile consideration by donor — Contest between donees and lessees. H., in 187 1, conveyed to her minor children, the plaintiff', certain land, with a declaration of irrevocability, reserving to herself the management of the property during the plantiffs' minority, and tlie power to lease it for terras not exceeding one year, on the expiration of a present lease then having 5 years to run. Upon the donees attaining majority, they were at liberty to divide the property. In 1872 H. leased the property to third defendant for a term ending in August 1878 ; and in 1873 to first and second defendants for 4 years from 1878 (with recital of the gift to plaintifis), the entire rent being paid in a''vance. H. having died shortly after this, the present action was begun in 1882, during the minority of one of the plaintiffs, the fitst two defendants being in possession under their lease. 'I'he plaintiffs alleged a distinct ouster in November 1875, and prayed ejectment. Held, that the deed of gift was intended to operate upon all the plaintiffs attaining their majority. It appearing also that the greater part of the proceeds of the lease to the first two defendants had been applied to the discharge of a debt (pro- bably contracted before the gift) due by the donor to first defendant : Held, affirming the decision of the Court below, that plaintiffs were not entitled to recover. The plaintiffs in this case appealed against a dismissal of their action with costs. The facts are sufficiently disclosed in the judgments in appeal. The District Judge (/4. C Lawrie) held that the ouster alleged had not been proved, and was o£ opinion that Helenahami, plaintiffs' mother, had had power to execute the lease under which defendants claimed the land. Grenier for the plaintififs, appellants. PanLangenberg for the first defendant, respondent. Seneviratne for the second defendant, respondent. Cur. adv. vult. (aist March). De Wbt, A. C- J.— In this case it ap- pears that during the minority of three children of one Dona Helena Hamy, since deceased, she gifted to them certain properties mentioned in a Deed of Gift bearing date J 7th January, 1871, subject to the coaditions therein con- 269 tained. While the deed was still in existence and during the minority of the donees, she subsequently, by her deed matk'rd F., annexed to the libel, and for consideratioa there- in expressc'l leased the said lands and premises, th-> subject matter of the gift, to the defendants, for a period of four years commencing from the iith Aus;us', 1878 The lease was still in existence at the time of action brought by the donees. On due consideration I am of opinion that the donees were entitled, at the death of the donor, to th-^ property mentioned in the deed of Gift, subject, however, to the kase — a burden or encumbrance wLiich was imposed upon the property gifted by the donor herself subsequent to the date of the deed of Gift. The appeal must, therefore, be dismissed with costs. Clarence!, J — Omitting irrelevant matters, the facts in this case are simple- lu i8;i, Helenahami and lier second hu'iband executed a voluntary deed, dealing with the two houses in question, in favour of ist, and and 4th plain'. iffs, who are children of Helenahami by her first husbtind. The deed is not a " deed of assisiance.'' It simply purports to gift the property to jst, and and 4th plaintiffs, who were then all minors. There is an express declaration that the gift shall never be revoked. There is also a proviso that, until the donees attain majority (meaning I have no dr>ubt until tliey should all have attained majorii)) Helenahami should manage the properly in order to provide maintenance for tha donees until they should come of as:e ; and for that purpose a power is reserved to Helenahami of granting leases for terms not. to exceed one year each, on the expiration of a subsisting lease which then had 5 years to run. When the donees should have attained their majority, they were to be at liberty to divide the property between them. In 1872, Helenahami, her second husband being now dead, executed a lease in favour of 3rd defendant,* for a term ending in August, 1878. In June i873> Helenahami executed another lease in favor of ist and and defendants for a term of 4 years from August 1878. That lease recites that the rent for . the full terra had been paid in advance on the execution of the lease. Helenahami died very shortly after executing the lease. * He never appeared to the action. 270 This action was instituted in January i88a, at which date tVie 1st and and defendants were in occupation under the last mentioned lease. At the date of action brought ist plaintiff had aUained «i, 2nd plaintiff had matriad 3rd plaimifif, and 4th plain*i£f was, and still is, a minor. The libel avers that defendants forcibly took possession of the property in November 1875, and prays that they maybe ejected, and for mesne profils- No attempt whatever was made at the trial to prove the forcible en'ry averred in the libel ; and there is no doubt that deffndants did not get into possession forcibly as alleeed. but came in quietly as lessees under Helenaham. The lease under which the defendants are in o .-cupatioa IS not within the powers reserved to Helenahami by the gift-deed ; but the position of defendants is this — they are in occupation of the property as purchasers, j6ro fanfo, for value, under an instrument granted by Helenahami after the making of tne voluntary instrument. The contention put forward b)' plaintiffs is — that the voluntary instrument operates to entile them now to possession in preference to the subsequent instrument made for value in favour of ist and and defendants. The lease to ist and and defendants recites that the pre periy had already been gifted to ist, and and 4th plaintiffs, and that the consideration for the lease was applied in greater part to the discharp^e of a debt due by Helenahami to 1st defendant upon a juda;mei>t. , The lessees, therefore, had notice of the gift. The consideration for which the lea?e was made is distinctly averred in defendants' plead- ings, and not even a suggestion is made by plaintiffs that the consideration was not a reality. The English cases upon the subject of contests between volunteers and subsequent purchasers for value are based of course upon the statute of Elizabeth, which is not in force here. Without, however, entering upon any genera' con^ sideration of the question, how far there may be Roman Dutch Law or Equity going to the same length as the English cases, I am of opinion that plaintiffs shew no right to recover in this action. It is, at any rate, a principle of the Roman Dutch Law, to compel restitution of property alienated in fraud of creditors. See Voet, xlii. 8. Then, what are the circumstances here. Setting out of consideration the question whether plaintiffs under the gift have any right to the benefit of possession 271 until all have attained their majority, the circumstances are these :— Plaintiffs declare that defendants took possession forcibly in 1875. That is uatrue. The truth is that a couple of years after making the gift the donor owed ist defendant 3 sum of money for which he had obtained judgment, and to provide for the discharge of that debt she sold to ist and 2nd defendants the leasehold interest by virtue of which they are now in possession. When that debt was contracted, we do not know, but, having regard to the dates that we do know, the proba. bility is that it was owing at the date of the voluntary deed. If Helenahami in 1873 was unable to pay that debt by reason of her having deprived herself of the property in question, the creditor could have insisted on avoiding the voluntary deed, in order that this properly might become available for him. That is an action perfectly well known to the Roman Dutch Law and corresponds to the Actio Pauliana of the Roman Law. The debtor, however, in fact did not force the creditor to sue for the avoidance of the voluntary deed, but granted him a lease, and t^e beneficiaries under the voluntary instrument now come forward and claim to turn him out before the expiry of the lease- They do not pretend that the ist defendant was not a creditor when tbe lease was executed, but they come forward with a false story of the defendants having forcibly taken possession of rhe property. I think that the judgment appealed against should be affirmed and this appeal dismissed with costs. Appeal dismissed. Proctor for the pl^iintiffs, Edwin Beven. Proctor for the first defendant, y. B- SiebeL Proctor for the second defendant, C- ^ayetileke. 2^th April, 15^83. Present— Clarence, J. P. C -x Anthonipulle Saverimutto JVlannar, > v. 5,785. J Thommai Bastian. Toll— Ordinance No li. of 1^61 , sections 17, 18 — Evasion of toll — "One mile from the Jerry." Section 18 of the Toll Ordinance, 1867 enacts that "it any person, 272 not being a duly appointed toll-keeper, shall convey any goods or any passenger not in his service, across any river or stream either at or within a distance of one mile above or below any road, bridge, ferry, canal, or place at vrhich tolls shall be leviable such person shall be guilty of an otfencf." Held, that the intention of the Ordinance seemed to be to mark out a belt of two miles of water, one mile on each side of the ferry, within which two miles no person is to cross from one bank to the other except by the ferry. One of the toU.houses in the present case was situated at the end of a causeway prtjecting from the mainland into the sea, the other being on an island opposite. The defendant's boat, starting at a point half a mile from the root of the causeway, passed between the toll-houses, and landed its cargo on the island at a point two miles from the toll-house on the i.^ldnd. Held, that defendant had not committed a breach of section i8. Semkle, that if the landing place had been within the mile, the de- fendant would have been liabk, notwithstanding that his starting-place at the root of the causeway was more than a mile distant from the toll house at the end of the causeway, but within the two- mile belt. Plaint — That the defendant not being a duly appointed toll-kerper did on the i7ih instant convey across the Man- nar Channel goods not being his own by means of a boat within a distance of one mile from the Mannar Ferry, in breach of the 17th and i8ih clauses of the Ordinance No. 14 of 867. The facts sufficiently appear in the following judgment of the Police Magistra'e {S- Haughton.) " The question at issue in this case is one merely of the interprelation to be put on the wording; of clause 18 of Ordinance No. 14 of iBfj, the facts being admitted by the defendant. The ferry .renter complained to me in my capa- city of Assistant Agent with reaard to the conduct of the defendant and others, in consequt^nce of which he was cheated, he believed, out of toll payable to him under the Ordinance. The offences appeared to me to be provided for ia the 17th and i8lh clauses of the Ordinance, and I instructed him to prosecute the offenders accordingly in the event of the cominuance of the "'ffence. Five cases were accordingly instituted by him, and fuur of them including the present, case came on for trial yesterday. I reserved judgment, wishing to consider the question raised, and in the evening the defendants in the lour cases presented to me Petition A. filed in the case. The question which I am now called upon to decide in my capac ty as Police Magis- trate is not without difficulty. I have referred to the old case, No. 2o65, referred to by thci Petitioners. It was one brought by the ferry-rentei ia i8j2 agginst three men fot 273 breach of the 13th and 14th clauses of the old Ordinance, No. 9 of [845. (which are practically identical with clauses 17 and 18 of the existing Ordinance.) I find from the re-cordbook that the case was dismissed by Mr. Walker, the Magistrate at that time, and that the ferry .renter appealed against his decision, but the result of the appeal has not been recorded. " The annexed sketch of the locality will serve to explain the circumstances of the present complaint by the ferry- renter. Erukelempitti to g \ > \ 2! " 2; > fa H 1— 1 £. •=1 rn 7^ "< 2 a H o a Causeway V Fakupitti O 2 >■ > 2! O O *^ Q m k! f O " The lines A B and C D are lines at the distance of a mile from the Ferry and the Causeway, North and South 274 of it. The dotted line is the line taken by the defendint's boat in conveying goods between Pakupitti and Erukelem- pitti. The distance between the lines A B and C D is two miles, i. e. a mile on each side of the Causeway. The dis- tance from the island toll-house to the mainland of Ceylon, across the ferry and along the Causeway, is about two miles also. The dotted line taken by defendant's boats is some five miles long from Pakupitti t6 Erukelempitti. " I maintain that defendant in this case has committed a breach of clauses 17 and iS of the Ordinance in the matter of the conveyance of goods by him from Pakupitti to Era- kelempitti under the circumstances. He conveyed goods not being his own across a stream (arm of the sea in this case) by means of a boat, within a distance of one mile from a ferry, in breach of the i8th clause of the Ordinance, and in doing so he evaded payment of toll, in breach of the latter part of the 17th clause, which enacts, " or if any person shall do any other act whatsoever in order to evade or reduce payment of toll, and whereby the same shall be evaded or reduced," &ca. The fact that defendant had obtained a coast-wise permit from the Customs authorities in no way exempts him from the consequences of evasion of the toll. Of course the case is different as regards ships and large boats which leave the ports of Mannar on coast' wise or other permits. Such boats, it is true, convey goods within a mile of the ferry, but they do not do so ' in order to evade toll' It is a fallacy to suppose that the local canoes which convey goods across the channel within a mile of the ferry on purpose to evade toll, are, merely because they have obtained a permit at the Customs, therefore in the same category as the vessels referred to in the last para- graph. Moreover, if the present evasion of toll now com. plained of were to become general, all the canoes in the place might take out Customs permits, to the abandonment of the ferry altogether, and the consequent ruin of the ferry-renter, loss to Government in the ferry revenue, and a corresponding loss of funds for the maintenance of the Mannar Causeway, only recently much damaged by a severe storm. "Defendants, in addition to the possession of a coast- wise permit, lay stress on the fact that the places at which they load or unload the goods are more than a mile from the Mannar ferry ; but the Ordinance is silent on the subject of loading or unloading within a mile of the ferry: it is the 275 " conveying" within a mile of the ferry that is the offence. Both places, it is true, are more than a mile from the tolU house, but if the Causeway be regarded as part of the ferry, which I consider it to be in a certain sense, then Fakupitti is barely half a mile from the Causeway at the mainland side. For every reason, therefore, I am inclined to think the clauses in question must be interpreted against the defendant, the alternative involving as it does the possible loss of the Mannar ferry revenue in future years in the event of the offence becoming more general. Defendant is accordingly found guilty and sentenced to pay a fine of twenty rupees, half to informer, namely complainant. " As defendant is likely to appeal, the complainant is instructed if he (defendant) does appeal, not to prosecute the other cases further until the result o£ the appeal is made known." Defendant appealed. /. Grenier, for the appellant — To constitute a breach of the 1 8th section of the Ordinance both the places between which the goods have been conveyed must be within a mile of the ferry. Cartigeser v. Murogappen (i). That case was decided on a construction of section 14 of the Ordinance No. 9 of 1845, which section is practically identical with section 18 of the Ordinance of 1867. In the present case« the landing place certainly was beyond the mile from the ferry. No Counsel appeared for the GOTiplaiaant, the respondent. Clasencb, J — I think this appeal entitled to succeed. I say nothing about the starting point of these boats, because I am by no means prepared to say that if a boat started near the root of the Causeway, travelled along the side, and landed its passengers within a mile of the ferry^house on the island, that would not be an evasion of the toll within the meaning of the Ordinance. It appears that the boats in question, starting somewhere near the root of the Cause- way, go through the narrow passage between the end of the Causeway and the toll house, and. then before landing travel along the coast to a point about two miles from the toll-house. I think that a boat going through the passage on such a coastwise voyage as this, a voyage of which the (i) I Lorenz, 142. 276 end is two miles from the ferry, is not within the Ordi- nance, even although the boat originally started from the opposite side of the water. The intention of the Ordinance- seems to be this ; taking the instance of a rtrer^fbrry by way of illustration) it marks out a belt of two miles of water, odq mile on each side of the ferry, within which two miles of water nobody is to cross from one bank to the other except by the ferry. But all boats are perfectly free to start outside the two.mile belt^ traverse the two mites of water and land beyond the two.mile belt, on the opposite side • and that is reasonable onough. Otherwise you might have had this : a man starting in a boat ten miles below it and landing on the opposite bank would be liable to punishment which is absurd. This seems to me the natural construc- tion of the Ordinance, and the case decided under the re< pealed Ordinance (i Lorenz, 143) is to the same effect. I will not part with the case without expressing my obli- gations to the Magistrate for the very clear manner in which in his judgment he has shown the position of the locality. Set aside. Defendant acquitted^ 2nd May, 18S3. Present — Clarence, J. C. R. ^ Valipullb rincomalie, > v. 3S'9^S' ' KONAMALE PONNIAH- Consideration, tmlawful— Compounding criminal offence-^ Rolbery, In a suit to recover a sura of money agreed to be paid by the de- fendant m consideration of plaintiff's withdrawing a Justice of the Peace change against the defendant of assault and theft from the person of the plaintiff, inv^'a "'^' ""* °°""^'" "** ^^'''°^' P"''"" P°"^y' *"■* "'"'f"" Plaintiff brought .suit to recover the sum of Rs. 10, and Rs; 35 the value of a necklace,, which defendant had agreed to pay plamtiff in consideration of the latter withdrawing a charge she had lodged against the defendant before the Justice of the Peace charging him with assaulting her and 277 stealing from her person a necklace of the value of Rs. 3 j. Defendant denied both the assault and theft and the pro. mise sued on- After evidence called on both sides on the question of the promise, the Commissioner (G- Haughton) holding the plaintiff entitled on the evidence to Rs. 20, gave her judg.* ment for that sum with costs in the first class. Defendant appealed. Drielerg, for the appellant — The consideration for the promise was unlawful being a compounding of a felony. 10' 0. Golomlo 34.920 (i). Plaintiff cannot therefore recover. No Counsel appeared for the respondent. Clarence, J.^This is an action on a promise, the con- sideration for which is stated in plaintiff's libel to be that plaintiff should withdraw a criminal prosecution for a rob. bery. Plaintiff avers that she was assaulted and robbed by defendant and compromised the prosecution upon defen. dant's making the promise now sued on. I think this was an agreement against public policy, which cannot be en- forced by action. The case cited by Mr. Drieberg is a decision of this Court which covers this case. The judgment is set aside and plaintiff's action dismiss, ed. Defendant should have demurred to the libel instead of falsely denying that he made any promise. J give no costs of appeal. I may poiat out that this decision will not affect any action of plaintiff's based directly upon the assault and robbery alleged. Set aside. Plaintiff's action dismissed' Proctor for plaintiff, C. Gandappa- Proctor for defendant, ^ohn R. Ganagaratna (1) Leg. Misc., 31st July 1866, p 53. V^^°dy, 278 27/A Apil and ^th May, 1883. Present — Clarence, J- D. C "4 Abram Saibo & Co. V. H. A. Kerr. 91,^73. ) Ex Parte T. C. Kbee. Mortgage — Gqffee estate with the " live and dead stock" thereon— Bungalow furniture on estate. Bungalow furniture, fcept on a cofEee estate for the use of the Supers intenclent, is primi facie not covered by a mortgage of the "dead stock" on the estate. If any person be interested in maintaining the contrary, it is for him to satisfy the Court of any particular usage or circumstances, by reason of which such furniture does form part of the " dead stock." Plaintiff having obtained provisional judgment (for Es. 701. 2j and interest) on a promissory note, issued writ and caused to be sold certain property of the defendant. T. 0. Kerr, the claimant, having claimed the proceeds as a mortgagee, the following statement of facts was submitted by the plaintiff's and the claimant's proctors tor the deci. sion' of the Court upon the claim : Under D. C. Kandy writ No. 91,573 the " furniture" in the Bunga- low on Kinrara Estate was seized. The plaintifis in this case are unsecured creditors. Under D. C. Colombo writ No. 88,271 the Kinrara Estate mth all the live and dead stock thereon was seized. The plaintifi in that case holds a special mortgage of the Estate and ot the live and dead stock thereon. The sale under the mortgagee's writ is fixed for the 27th instant. He wishes the furniture to be sold as forming part and parcel of the Estate. Mr. Beven, on behalf of the plaintiffs in D. C. Kandy 91,573, and Mr. Vanderwall, for the plaintiff in D. C. Colombo No. 88,271, solicit the opinion of the Court as to whether the furniture is to be legaided as part of the Estate and sold under the mortgagee's writ as such. Mr. fanderwall contends that furniture on the Estate comes under the denomination of " dead stock." Superintendence being necessary to the management of a coffee estate, it follows that furniture for the Superintendent's Bungalow would be as indispensable in most cases as machinery or implements. See judgment of Mr. Berwick in D.C. Colombo No. 71,450(1), copy of which is annexed. Moreover, the term " dead stock" covers everything that is opposed to " live stock." Mr. Kerr states that with a few exceptions the articles of furniture now on the estate were purchased by him with the estate. Mr. Beaen contends that, assuming Mr. Berwick's judgment to be an authority on the point (which he denies), it is not applicable to the case (i) See Appendix H. 279 on which an opinion is now sought. In this judgment the question, was whether the furniture belonged to the proprietor or the Superinten- dent ; in this case it is admitted to be the property of the proprietor^ the only question being whether it was mortgaged or sold. No men., tion is made specially of the furniture in the Bond, and it is submitted that it cannot be regarded as " dead stock." Furniture is no more the stock of an estate than the pots and pans of the coolies, , To hold as a^ matter of law that all furniture in a bungalow belongs to the estate— ^^ foi Mr. Berwick's construction comes to that — would have the effect of depriving the Superintendent of the tight to any moveables that he may bring into his bungdlow. The District Judge {A. C. Lawrie) gave it as his opinioa " that the furniture in a bungalow on an estate mortgaged^ 'which mortgage includes live and dead stock, is not in- cluded in these words, and is liable to be seized and sold on. the writ of an unsecured creditor." The claimant appealed, Browne, for the appellant, cited Voet, ad Pand., xx. i- i, 6 (i). He referred to Gullwick v. Swindell (a) ; Ex parte- Sykes (3) J Mather v. Fraser (4) ; Walmesley v. Milne (j) f Meux V. Jacobs (6). He read, as part of his argument, th& judgment of Berwick, B. j^., in B- 0- Colombo 7 £1450 (7). The plaintiff did not appear upon the appeal. Cur. adv. vult. (4th May). Clarence, J — Plaintiff sued the defendantr H. A. Kerr, on a Promissory Note, and obtained provisionaF judgment for Rs. /Oi'sj, under which judgment plaintiff issued writ, and the Fiscal in execution of that writ seized and sold certain hou<:ehold furnitare in the bungalow on Kinrara Estate. This levy seems to have produced Rs. 2j 1. 73 net, which sura appears to be in Court to the- credit of this action. The money was afterwards claimed by a Mr. T. C. Kerr, who claims in the character of a mort* gagee of the Kinrara Estate, and a kind of Special Case- was submitted by the Proctors of plaintiff and Mr. T. (7» Kerr for the decision of the District Court. It is not ex. pressly stated, but I presume, that the mortgage under which Mr. T. G. Kerr claims is a mortgage made by the defendant to this action in favour of Mr. T. C- Kerr or some (i) Berwick's Trans., pp. 263, 269. (2) 36L. J.Ch. 173. (3) 18 L.,(. Bk. 16. (4) 25 L. J. Ch.- 361. (5) 29 L. J. C. P. 97- (6) L R„ 7 H. L, 481. (7) See Appendix H. 280 one in whose shoes Mr. T. G. Kerr standsi The mortgage deed is Dot before ine> but it is agreed by both parties that the mortgage purported to hypothecate the estate with " the live and dead stock on the estate." Mr, T". G. Kerr con* tends that " live and dead stock" includes the bungalow furniture seized and sold under plaintiff's writ. The learned District Judge held the contrary and made an order allow- ing plaini i£f to draw the money, and against that order Mr' T. G. Kerr appeals. The sole question contested was, whether appellant's charge extends to the furniture. I have looked through the list of the furniture, and I find that it consists of ordinary lioasehold furniture, such as chairs, tables, almirahs, lamps, glass, crockery, and so forth. In my opinion the term '" dead stock" as applied to a coffee estate does not pr'mA fade include such things as these. It is suggested on ap* pellant's behalf that bungalow furniture on a coffee estate is a kind of stock in trade kept on the premises for the use of a paid Superintendent. All I think it necessary to Say as to that is, that in my opinion articles such as theses in the bungalow of an estate owner do not prima facie answer to the idea of " dead stock" on the estate ; and if any one ■s interested in maintaining that by reason of any particular usage or circumstances 1 ought to regard such articles as comprised in the description, it is for such party to satisfy me by laying before me some materials warranting me in so far extending the purview of the phrase. A.11 that appears >n this case is, that the furniture was on the estate, and was seized on plaintiff's writ against defendant. I think that the decision of the District Judge- was right and see no reason for taking away this sum of money from plaintiff at appellant's instance. appeal dismissed. Proctor for plaintiff, E- Beven. Proctor for claimant, G. VanaerwalU 281 n^rd and sist May, 1883. Present — Burnsisb, C, J. P. C. ^ A. SiLViv Jegombo, > v. j 4,383. J N. E. SiLVA and nine others. Pagrants Ordinance, 4 q/'i84i, sect- 4, sulsecl- 4 — Gam- i/ig— Alternative charges — Naming of defendants in plaint —■ Conviction, uncertainty of — Accomplice, evidence of. P/ai»!<— .That in breach of the 4th section of the 4th clause of the Ordinance No. 4 of 1841 the ist 2nd 3rd 4th 5th 6th 7th 8th 9th and loth did g^ame, play or bet with dice on the night of the 26th Janu- ary instant at Timbirigascotua in a shed Isept or used by ist defendant for common and promiscuous gaming. Upon appeal against a general verdict of " guilty," Held, that the conviction vfas bad for uncertainty, and (there beincj nothing on ihe. record by which it could be amended) must be quashed. Observations on the form of plaints, and on the evidence of accom., plices. The facts material to this report are disclosed in the judgment of the Appeal Court. Domhorst for the defendants> appellants. Cur. adv. vult. (31st May). BuRNSiDE, C. J. — The conviction in this case must be set aside on more than one ground. In the first place, I cannot find that the complainant charged any one with an offence. The complaint is in these words, so far as can -be gathered from the mutilated form in which it appears : " That in breach of the 4th section of the 4th clause of the Ordinance No. 4 of 1841 the ist 2nd 3rd 4th 5th 6th yth 8th 9th and loth did game, play, or bet with dice on the night of the 26th January instant at TimbirigascQtua in a shed kept or used by ist defendant; for common and promiscuous gaming." If by i 2 3 4 56 789 and 10 it is intended to designate the defendants, all I can say is that such a designation is one which a court of appeal cannot recognize. Again, the charge is laid in the alternative, " game, play, or bet." Now under the Ordi- nance it is an offence under certain circumstances to do any one of these acts, and it has been repeatedly pointed out that a charge of all three acts in the alternative, as one offence, is bad for uncertainty. The Police Magistrate has 282 not found of which act the defendants were guilty — whether of "gaming," "playing," or "betting.'' Such a conviction is therefore bad for unceriainty, and there is nothing in the record by which I could amend it so as to cure the defect. Again, the Magistrate has convicted the ist defendant of keeping the place in question for " common or promiscuogs gaming," an offence under a wholly different section, and with which the first defendant was not charged. Again, the Magistrate finds that some of the defendants " took part in the gaming." Now it may well be that a perspp tsk^s p v- 51.756. J W. J. Fernando and two othfer^. ReiiiHng Police office*- in execution df Ms duty — Ordinance i6 of 1861;, sect "j^— Ordinance j8 of l86r, siet. 13 — Presence of complairidht dt trial — U^ng indecent language in the street . Where defendant was chargefl by an Inspector of Police with resist- ing a police constable in the execution of his duty, Held, that the presence of the constable at the itii.\ \^as a piVsenc:^ of the cottiplainant within thd liieaiiiilg of sect. 13 of Ordinance No. 18 of 1861. The evidence showing that the duty the constable was engaged in at the time of the resistance was the arresting 61 one JuSi, who wis brawling in the street and refused to desist at the request of the con- stable. Held, that, apart from any special statutory power, the constable was justified in arresting Jusa and tabing himi intcf his eustody. Plaint — That the defendants did on the night of ihs a6th day of March 1883 at Main Street, within ttie jurisdictioti of the Court, assault, resist and obstruct P. C. 564, juanis Appu, in the execution of his dii'y as a P'oMce Constable, whilst conducting W. J. Fernando, who was arrested for disorderly conduct in a public street, Negjombo, to the Police Station, in breach of cl. 75 of Ord. No. 16 of 1865. The constable No. 564 in his evidence stated : " On aSth March last Jusa Sinno was using indecent lariguage on the Ghilaw Koad> 1 went up to him twice and told him tiot to. He did not listen, so I took hire up." He then went on to state an assault upon him by the defendants. The next witness, AlexandH, stated, "Jusa Sihno was making a disturbance when the constable (complainant) arfested him, and took him as far as the Secretary's house," when the alleged resistance took place. The 3rd defendant', who alone was tried, was c'onvicled by the Police Magistrate (W- E. i)avids'onj arid sentenced to six weeks imprisonment at hard labour'. T he defiendaint Sppealdd. Be Saram, for the defendant, appellant — It is noted that the complainant on the record, B- M Keilk,,v/as absent at 294 the trial- The charge should then have been dismfssed, and not tried. (Sec'ion 13, Ordinance 18 of i8<5i). It is also not proved that the person now calling himself Policeman No. <64 was a Police Constable at the time of the assault. Farther, the Court is not in a position to judge whether the words used amounted to "indecent language," none of the witnesses specifying the actual words used. It is possible that the constable was mistaken in thinking thu words were indecent, they not being so in realiiy. [Clarbnge, J,— It is undesirable thai witnesses should be made to repeat ia the box all the obscene language they may have heard used in the street]. The witnesses should, at least, have ex- plained what they meant by " making a drsturbanoe." There is, again, no law that casts on a police officer the duty of arresting a person using indecent langaage in the street. Neither sect. 7 of the Vagrants Ordinance, iS+i, Bor sects, jz, _55 of the Police Ordinance, 18 65, imposes this duty. The respondent did not appear. Clasenge, J.— In this case I think every point has been urged which could be taken for the defence. The first point is that complainant (Inspector Keith) was not present at the trial. Now, I do not think that sect. 13 of Ordi- nance No. 1 8 of 1 86 r. requires (at any rate in such a case as this) that complainant should be personally present. The expression used is. '*if complainant shall not appear." Now, complainant is an Inspector of Police, and the sub- stance of his complaint is an offence committed by resisting one of his officers in the execution of his du'y. I think complainant appeared within the meaning of the Ordinance by being represented by his Police Officer. No doubt, if the actual presence of complainant in Court were necessary for the defence, it would be required ; but there is not the slightest suggestion that defendant has in any way been pre- judiced by the absence of the nominal complainant. In fact, everything in the case favours the contrary supposition. The next point is that the policeman does not distinctly say he was a policeman at the date in question. This is probably an oversight, but I find the deficiency supplied by the evidence of other witnesses. I do not doubt that de-. fendant struck the constable and rescued the man yusa from his custody. The question then is, whether the constable had any right to arrest ^usa. Now, it is proved that the maa- ^usa was brawling in a public street and 285 refused to desist when required to do so by the constable, and in my opinion a constable, under those circumstances, irrespective of any special statutory permission, has a right to arrest a pany so disturbing the public peace. Affirmed. j6tk February andx\at March, 1883. Present — Db Wet, A. C. J., Clabbncb and Dias, JJ. D. C \ W. M. Karunaratnb Kandy, > v. 89. 362. J J. W- H. Anorbwbwb and five others. Kandy an law — Adaption for purposes of inheritance, re. guisitet for — Marriage — Ordinance 6 of 18+7, sects, a and a8 — Ordinance 13 of 185^, sect 35. M. (a Kandyan Singtalese) and B. (a woman of European descent^ professing Christianity, were in 1836 married aecordinsr to the rites o£ that religion in Gampola. After 7th December 1849 ("hen the Ordi- nance 6 of 1847 was confirmed by Her Majesty by notice in the Gazette), B. being still alive, M. conducted as his wife M. M. (a Kandy. an woman) according to Kandyan customs. Held, that M 's second marriage was mvalid and bigamous, under Ordinance 6 of 1847. sert. 28. The requisites for a Kandyan adoption, for purposes of inheritance, discussed. D. C. Kandy 53,309 (i) approved. This was an action broiit;ht by the plaintiff for the pur- pose of establishing his right as the adopted son and sole heir at law of Henry Martyn deceased. 1 he first defen^ dant was the Administra'or of Martyn's intestate estate, the other defendants representing; Martyn's children. The second, third and fourth defendants, and three minors re_ presented by the fifth defendant (being the issue of Martyn's^ second marriage) set up a counter clain<> to being the sole heirs ; and the sixth defendant, a nephew of Met'tyn's, also claimed to have been adopted by Martyn as son and sole heir to his property. The facts, and the nature of the evidence adduced to prove adoption, appear in the judgments of the Court below and of the Appellate Court. (loth July, 1882). Lawbib, D- J — I find as matter of (i) Grenier (1873), D. C, 117. 286 fnct: (i) That the deceased Henry Marlyn was by birth a Kandyan. (a) ' hat he was, when a boy, sent to a Chiis ian t^chool and was for the rest of his life a Christian, and was known as Henry Martyn. (3) That in 1836 he was married at Garapoia (after publication of banns) by the Rfvd. Mr. Oakley to Mary Anne Brackenburg, a woman of European descent. (4) That Mdrtyn and his wife had two children, who died when young; and about 1847, irnme. diaiely ofter the de^alh of the younger child, Martyn applied to Babappuhamy, alias Abraham Wetasinghe, and his wife ElMdbeth MacDonaid. to give him one of their thildVea to be brought up by him and that fPetasinghe gave over the plaintiff to Martyn. (5) That at that tinle Marl)fn was a Conductor on Pinhayapitia Coffee Estate under Colonel Byrde, and so far as appears, bad not then acquired much property. (6> That the plaintiff's father gave him ovef to Martyn on the understanding or proni That Martyn told Abraham tf'imatusooria Mohandiram that he was bringing up the plaintiff as an heir to his prtpetBy. (9) That about the time whed these statements were maJ6 by Martyn, 6i.h defendant was given up to him by his parents on the uaderstanding that Martyn would eduCaW and provide lor hint*. (lO) That Martyn ofteti told Mr. Be Saram (Police Magistrate o' Garapoia from 1852 till 1800 or 1861) that he had adopted the 6th de- fendant and would make him his heir. ( i) That Henry Martyn and his wife took care of both the plaintiff and sixth dctendant^ attd that both of thetn were sent to school by them and spent their holidays at MOrtyn's house, (la) That when both boys were still young, Henry Martyrk conducted as his wife, according to K.andyan customs, a Sinhalese woman, Miittu Menika, oi casie equal to his own, the daughter ol a L kaik , a. id tliat whatever unpleasantness this may have Ciused at first, his wife Mary Anne Bracken-' lurg btcame reconciled to Muttu Menika's presence, aiirf thai ihey lived together with Martyn until their respecive deaths. (13) That Muftu Menika bore to Henry Martyn several children of whom six suivive, viz. ind 3id 4lh and the three minor defendants. (14) That these children were recognised bv Martyn as his own, that he ma'in'aithed them, sent them to School, had iheiu- baptizsd, and he and his 287 wife Mary Anne Brackenliurg represented to the Clergyman who bapiiz^d them that they were her own children (15) That the plainiifi after his leaving school, when he was about 16, spent some little time at Martyn's house j that thereafter he was employed on lh« Railway, r(«turning of'en Uy Martyn's, bat that in 1869 he received an appointment in Badulla, and from that time until Mctrlyn'i deaibin J ^80 h« Vps seldom at Jifar<3i(n'$ house- (16) That there is no evi- dence to sh^w that alter Martyn had had children by Mutlm Mmikoix he ever spoke of the plaintiff as his adopted sun or heir ; that in one letter, dated March 1874, he signed himself " your affectionate father." (17) That it is not clear from Mr. J)e Sar(ii>i's evidence, whether Martyn spoke of Senewi- riitne as hii^ adopted .«oo after he had children by Multu Menika- (18) That Senewiratne was at one time turned out of Mnrt^n-'s house, but that be was afterwards reconciled to hinJ, and that during the late years of Martyn's life Senewi- ratne jived either in or near Martyn's hgu:>e and asaisieU him in several ways j that the letter addressed to Captn., ifyrrfe in 1880 was not written by H Martifn and cannot be i?km as bis statement, (xp) That Martyn married his eldest daughter to Andrswewe, then a 'clerk in the Pussellawa, Court, who is DOW Katemahntmaya, and that Martyn treated his other children by Muttu Menika as leyitimaie children, (lo) That Henry Martyn survived both his wife AuA Muttu Menika and died intestate in i83o. (21) There- a'ter Andrewewe, R M., was appointed .\dministrator of his Estate. (23) That the present action has been raised by IHlliam Martyn claiming the whole properly as the sole adopted son and soU heir. That the and 3rd 4ih and 5th defendants, the children of Muttu Menika, claim the wholes estate as the legitimate children and sole heirs of Martyn, and that Senewiratne, 6th defendant. clai(as as sole adopted son and sole heir. On th«se facts I am. of opinion that the plaintiff and 6th defendant have proved that they were ori^fiually adopted by Henry Martyn at a time when he had no children of his own ; that their informal adoption by Martyrt was not irrevocable ; that it depended on his good will and pleasure ; that there is evidence that long before his death, Martyn, having children of his own whom he treated as legitimate' had ceased to treat the plaintiff and 6ih defendant as his sole heirs and adopted sons, though there was reason to believe he intended to leave them something if he made a 288 ■will ; tlia^ in the circumstances described in the proof neither plaintiff nor 6th defend mt has right to succeed to the Estate of the deceased, either separately or jointly, as adop'f d sons and heirs. That thouiih the deceased treatsd his children by Muttu Menika as legitimate, and probably believed that in law they were legitimate, still they are by the Ordinance of 1847 illegitimate. I hold that in 1836, when Henry Martyn. was married in Kandy. there was no Ordinance which regulated marriages in the Kandyan Provinces, for the Regulations 7 of 1815 and 9 of 182a applied only to the maritime settlements. In 1836 Kandyans cculd be married in either of two ways : (1) According to their own laws, manners, and customs. (1) By a Christian Minister and according to the forms of any Christian Church. Any doubts which might have existed as to the validity of marriages by clergymen prior to 1847 were removed by the Ordinance 6 of 1817, sect. 2. I hold that the marriage of Hemy Martyn and Mary Anne Brackenburg in Kaufly in 1836 was (a) a, good and valid marriage (sec. 2). (b) No subsequent marriage by Martyn, solemniz-'d after the not fi- cation in the Gazette of tile confirmation of the Ordinance by Her Majesty, could be valid. The Ordinance of 1847 was confirmed by the Queen, by Gazette Notice, 7th De- cember 1849- The Ordinance provided that any person married according to that Ordinance, and thereafter con- tracting ano'her mariase before the prior marriage had been dissolved, was guilty of bigamy and liable to imprisonment for three years. The Ordinance 13 of 1859, sec. 35, declared that the Orditjance 6 of 1^47 at no time extended to marriages con., traded in the Kandyan Provinces, by residents thereof, according the laws, ^nanners ana customs heretofore existing and in force among the Kandyans. But as the marriage of Henry Martyn and Mary Anne Brackenburg was not contracted according to the laws, man-" ners and customs heretofore existing among Kandyans, the Ordinances 13 of 1859 and 3 of 1870 do not affect the question as to the validity and effect, of that marriage, for it was a marriage between a Kandyan and a woman of European descent. The only Ordinance then which regulates the validity and legal consequence of the marriage in 1836 is 6 of i8+7i and that Ordinance, scc. 28, declares that any subsequent 289 marriage shall be void if the prior marriage shall not have been legally dissolved. I hold it proved that Martyn conducted Muttu Menika afer the confirrDation of the Ordinance of 1847, and that, there was no valid marriage between them. I am thus obliged to hold that the children. 2nd, 3rd, 4th, and 5th defendants, are illegitimate. I am of opinioa that Eandyan law applies, and that these children are entitled to all the acquired property of the deceased, but in the absence of his nearest legitimate heirs I cannot prejudge the questions which might arise between the children and them. I dismiss the plaintiff's action. I refuse to enter up judgment as praved for by the and, 3rd, 4th, 5th, and 6th defendants, and I find the ist defendant entitled out of the £state to the costs to which he has been put. I find no costs due to or by other parties. The plaintiff, and all the defendants with the exception of the first, appealed. Ferdinands, A. Q A., for the plaintiff, appellant. Dornhorst (Withers with him) for the and, 3rd, 4th and 5th defendants, appellants. G^enier {VanLangenberg with him) for the 6th defendant, appellant. Authorities cited : — TMarshall's Judgments, pp 352, 353 ; Austin, p 74 ; D- 0. Kandy 53.309, Qrenier (1873), 117 ; Sawers' Digest, p 25- Cur. adv. vult- (aist March). Clarenck. J. — The circumstances out of which I his appeal arises are these : — The deceased. Henry Martyn, concerning whose property the parties are contending, was a Kandyan Sinhalese, who was supposed to have embraced Christianity. He married in 1836 an Eurasian woman, by whom he had no children who survived a tender age. He then received into his family the present plaintiff, who claims to inherit the whole of the property as an adopted child. Shortly after this, Henry Mart.n went through the form of marriage according to Kandyan usage with one Muttu 290 Menika, a woman of his own caste- The learned District Judge finds on the evidence, and I see no reason to dis. approve of the finding, that this took place after the Ordi- nance 6 of- 1847 came into operation J and if so, then by virtue of section aS of that Ordinance, Henry Mar tyn and MuHu Menika were not legally married, in ss much as the Eurasian woman was still alive. By Muttu Menika Henry Martyn had six children, viz. Sophia, Henry, and Charles, who are the and, 3rd and 4th defendanis, and three minors, who ^re assumed to be represented in this suit by the 5th defendant as guardian. The 6th defendant, who is the son of a brother or half, hfpther pf Heniy Marfyn, also claims the whole of tjie prpp^rty, as having been adopted hy Henry Martyn &om&- what before the alleged adoption of plaintiff. Henry Martyn died in April 1880, and administration to his estate was granted to ist defendant, who is the husband' of the daughter Sophia. The present action is instituted by plaintiff, praying an account as against the administrator, and a declaration that he alone is entitled to the whole estate, to the exclusion of Muttu Menika's children and 6th defendant. Ihe foregoing circumstances raise several questions of Kandyan Customary Law, viz. : — Whether plaintiff has been legally adopted for purposes of inheritance. Whether 6th defendant has been legajly adopted for pur- poses of ii^heritance. If so, has such adoption been in effect annalled, so far as inheritance is concerned, either as to the intestate's heredi- tary or apqijiired property, by the birth of Muttu Menika's children ? Do Muttu Menika's chWiren, though illegitimate, inherit the acquired property ' All the parties are appellants, except the ist defendant, the Administrator. The learned District Judge has found that both plaintiff and 6th defendant w«re •' adopted'' by intestate, but that long before his death he ceased to treat them as sole heirs and adopted sons. Plaintiff's action has been dismissed ■witbcosts. The Administrator has been declared entitled to be paid his co.sts out of the estate, and the other patties are left to bear their own costs. So far as plaintiff is concerned, the foundation of his 291 action is his claim to succeed as an adopted heir. The requisites to a claioi of that kind are well explained in the judgment of Sir Richard Cayley, when District Judge of Kandy, which was adopted by the Supreme Court in Appeal (i). It is necessary to establish, not merely that there has been adoption, but that the adoption was with the view of the adopted' child's inheriting. No special formalities are necessary, hut some kind of public declaration or acknow- ledgment is necessary. The materials adduced on plaintifiE's behalf appear to me insufficient for the purpose. They are as follows: — Plaintiff himself says generally : — " He (intestate) looked to me as his heir. He always said that all his property would come to me." Mr. Imray, who knew intestate well, says : — " My impression was that he (plaintiff) was adopted by Mr. Martyn- I always understood that." This is but taint, and, moreover, there is nothing concerning heirship. Dr. Shiptou knew Martyn well, as his Medical man. He sayscr-" Plaintiff lived with Martyn. Martyn told me that he was his adopted son * * * They treated him as their child." Plaintiff's father speaks of Martyn's promising to make plaintiff his heir, when the father gave him up. Abraham Wimalasuriya Mohandiram knew Martyn for 41 years, and was intimate with him. This witness says : — " He (Martyn) was bringing up this child as an heir to his property. He said that once on my asking him." It further appears that Martyn educated plaiiitifi aS well as 6th defendacft. This material appears to me insufficient to establish affir,* matively that plaintiff was adopted by Marlyrt for purposed of inheritance. The occurrence spoken to by U'imatasuriyct Mohandiram is the only direct acknowledgment of ddopttba as heir spoken to by any of plaintiff's nfithes^66, and doe& not appear to have been made in ]}ublic Or an an^ botkblb' occasion. There is nothing answering to the emphatic and solemn declarations established in the case adjudicated by Sir Richard Cayley. This being so, plaintiff's action is not maintained ; but I am unwilling under the circumstances to shut him out from all further chance of establishing his claim. (i) D. C. tandy 53,309, Grenier (1873), n?. 292 DiAS, J. — In my opinion the evidence adduced does not establish plaintiff's adoption by Henry Martyn. The law of adoption is a very old Kandyan custom and has fallen into disuse of late. Henry Martyn,. the alleged adopting parent, was a Kandyan Sinhalese by birth. He married a Burgher lady, became a Christian, and was for some time Interpreter of the Gampola Court. He seeras to have witfidrawn himself from all Kandyan social infiu- ences. He married a Kandyan tady, by whom he had children, and he seems to have lived and died under the belief that these children were legitimate. The plaintiff is in no way related to Henry Martyn, and is the son of a loW'Country Sinhalese man. His mother was a Miss MacDonald, who seems to have been a school friend of Henry Martyn's Burgher wife. Where a Kandyan adopts a child with a view of making him his heir, he generally takes a nephew or some such near relation j and it is extremely unlikely that Henry Martyn should adopt an utter stranger, a son of a low-country Sinhalese man, though he had several children of his own. The probabilities are all against the adoption. The evidence adduced consists of certain statements said to have been made by Henry Martyn to some strangers, some of them being Europeans. These statements were not made on any special occasion, but casually in conversation. According to Kandyan law, as I understand it, the inten- tion to adopt must be clearly evidenced by declarations or other overt acts made in as public a manner as possible. Henry Martyn seems to have been a man of intelligence, above the average Kandyan, and if he really intended to follow the old fashioned law of adoption he would have done it by some writing about which there could be no dispate. Under all the circumstances, the conclusion that'I come to is, that Henry Martyn lived and died in the belief that hia children by Muttu Menika were his heirs. De "Wet, A. C J. — After reading the evidence in this case and the judgment of the District Judge, and having had an opportunity of perusing Mr. Justice Cl&bbncb and Mr. Justice Dias' opinions, I am clearly of opinion that the plaintiff has failed in proving that he was the adopted son of Henry Martyn- Under these circumstances the judg^ ment of the District Court must stand, and plaintiff be adjudged to pay the costs incurred by the administrator in 293 defending the action, leaving the other defendants to pay their own costs. Affirmed. Proctor for plaintiff, M. C Sidde Lelle. Proctors for the ist defendant. Barber isf Eastlake- Proctor for the 2nd, 3rd, 4th and 5th defen dauts, C, Van- derwall. Proctor for the 6th defendant, C. Jayetileie. 261k April and ist May, 1883. Present — Clahence, J. C. R. ^ M. Mahamadti Tambt Vlatale, > v. 3>747- ^ Maramadu Ali and another. Mortgage — Mortgagee plaintiff purchasing property mart, gaged in execution — Ejectment — Non-joinder of parties in possession in mortgage suit. Plaintiff obtained judgment in a former action on a mortgage bond against his debtor, and bought the mort<;aged property in execution on i8th January 1882. Plaintiff brought the present action against two defendants to obtain a declaration of title to, and possession of, that property, alleging that defendants had taken the crop off tfie land after plaintiff's purchase. The second defendant had on 19th April 1881 purchased the same land in ezecuti)n of a money jmlgment against plaintiff's mortgagor during the subsistence of the mortgage.. {TeZtf, affirming the decision of the court below,' that plaintiff, not having joined in his mortgage suit the ourchasei; in execution of the money judgment (the present second defendant) could not succeed in the present suit. Plaintiff sued to recover possession of a |- share of a field which he had purchased on i8th January 1882 in execution of a decree in bis own favour pas'^ed in a suit on a mortgage bond, in which present plaintiff was p'aintiff, which decree had declared the land in question specially bound and executable to satisfy the mortgage debt. The present defendants were alleged to have taken the crop off the land and to be disputiog plaintiff's title. The defendants in answer alleged that the land had been purchsed by 2nd defendant on 19th April ]83i in execution of a money judgment against plaintiff's mortgagor during the subsis- 294 tence of ihe mortgage, and that aofi defendant had been in possession since his purchase. At the trial, parties' proctors agreed upon the following points : I. That and defendant purchased this land under writ in C R. Matale 45,341, on J$th April 1881. a. That the land was specially mortgaged to plaintiff, and that plaintiff having Obtained judgrtient on his mortgage bond sold up the specially mortgaged field and purchased, it under writ in B- 0. Karidy 88,^59, on i8th January iSSi. 3. That defendants disputed plaintiff's rights. It is disputed whether defendant did or did not take possession of the field after his purchase in April 1881. 4. The institution of B. G. Kandy 88,859 was od 3 1st July 1881. The Commissioner (L. G. Tatej gave judgment as fol- lows : — " In this case I am of opinion that the purchase by and defendant on 19th April i88i must be iaif*heldi He pur- chaseid\ the land subject to plaintiffs ijortgage, an* t-hfr mortgage would therefore follow the land. The suit oD' the mortgage bond would have to be taken against the purchaser at that sate. Plaintiff is non-suited wHh cbStS." Plaintiff appealed. Dornhorst, for the appellant, conteoded that whether or not the defendant was in possession at the institution of the mortgage suit was a question of fact, and required' evidence to prove it in the absence of admisbion- Evea if the de* fendant had been then in possession, all be could now demand of the plaintiff was prbot of the mortgage debt as' against defendant. The omission of plaintiff to join in his mortgage suit the purchaser under the money jiudgnoent did not for ever deprive plaintiff of bis right to obtain possess sion of the land which he had bought ia CKecutioa bl his mortgage decree. The defendants were not represented in appeal. Cur. adv- vulU (ist May). Ci,ARENCB, J — I think this judgment riglif. Defendant's purchase is, of course, subject to plaintiff'is mortgage, but, accorditig to previons decisions of this Cbnr^> 295 plaintiff's judgment against the mortgagor does not bind this defendant. Affirmed. Procter for plaintiff, F. A. Prim Proctor for defeiadants, J. B. Williamson. i2th yune, 1883. Present — Burnsidei C. J., and Clabencq, J, D G 1 The Qjjben's Advocate • • I V. Cologgbpi }-Mutufantrige Hendrick Cure and others. I Ex parte G. Lieschinq, Fiscal for the Wes- '^■5 ' J tern Province. Parate execution— Fiscals Ordinance, sect ^i— Necessity for separate suit — Notice of motion to parties aj^ected. Pirate execution, under sections 50 and 51 of the Fvealf Ordinance, 1:867, shoul'^ issue in the suit in which the original execution issued. No notice of the motion for parate execution need be given to the party sfiected, who may be heard upon motion to recall the writ. In this case judgment by default was entered for the plaintifi for Rs. 687.48 and interest and costs against the second defendanr, on 23rd March i88i, and against the £rst and third on j6th August 1883. ■ Upon writ issued, the Deputy Fiscal of Panadura seized aud sold in satisfac- tion of the judfiment a share in a land called Ambegaha- watte, the property of the first defendant. At the sale on i6th November 18^2, Mututantrige Marselino Cure bepame the purchaser for Rs. 17+0. His sureties were C.olemle' pattbendige Grigoris Perera, Badegamuwage Don Bastian Pwris, Hjututantrige Arnolis Cure, and Mututantrige Hen- drick Cure. The one-fourth purchase money was paid, but default was made in the payment of the balance, Rs, 130^, within two months of the sale, as stipulated in the Condi' tions of Sale^ The property was accordingly resold on 27th February 1883, at the risk of the original purchaser, and was bought by one Sa^fnuel Cure for Rs. 512. On 19th March 1883, the Fiscal for the Western Province filed an affidavit setting out the above facts, and moved that parate execution might be issued against the first purchaser Marse~ 296 lino Cure and his snretie.s, to recover the difference between the amounts realised at the two sales, viz. Es. 1228. The District Judge {T. Berwick) disallowed this motioa for want ot notice, and the Fiscal appealed. Layard, for the appellant^The application for parate execution has rightly been made in the suit in which the original execution issued. See remarks of Caylet, C. J. in Liesching v. Silva (1). It is of the very nature of parate execution that it should issue without notice to the pariy to be affected by it. Voet (ad Fand., 42. i. 48) speaks of ''executio parala sine forma judicii- ' The Supreme Court, considering the question of parate execution, said as follows {Marshall's judgments, p 179): "Though the creditor, who took upon himself to aver the necessary facts, was permitted to arrive per sail urn at that stage which in ordinary cases is only to be: attained .by regular steps, there was no reason why, from this point, the proceedings should differ from other cases. . ... . As an execution, obtained by reguilar aijd gradual proceed- ing, might still be challenged, and might be "taken off" by the Court from which it issued, if it appeared to have been improperly or irreaularly obtained, so afirtipri such power of revision ought to exist in cases of parate execution in which the seizure of the person or property is the initiation of llie proceeding, previously to which the defendant has no opportunity of coiitesiing the claim." And again (p 181): " Such right of opposition was the more necessary in a case like the present, where the defendant had no opportunity of opposing the applica. lion at the time of making r, since the Regulation was im- perative on the court to issue the writ on the plaint (true or false) of the auctioneer, without fiifther pleading or process."' The learned District Judge has himself pointed out that the right course for the party against whom the writ issues is to come in and move for its recall on proper notice to the plaintiff and Fiscal. Davithami v. Meera Lebhe (2). BuENsiDE, C J. — I think the writ should go It is an old form of proceeding engrafted on our Fiscals Ordinance- The very term' jftara/e seems to show that it roust issue without notice and in the original suit. There can be no costs, of course. (1) 4S. C. C, 142. I ^a) 3 S. C. C, u. 297 Clarence, J. — I also think this writ should have issued ex parte- The purchaser against whom it issues will have an opportunity of contesting it by moving to have it re- called. Set nside. Proctor for the plaintiff, H. Van Guylenhurg. Proctor for the Fiscal, R. F. de Saram. 1st and igth yune, 1883. Present — Bubnside, C. J., and Clabence, J. C. R. ■X KUHABAVALOE Batticaloa, > v. . 16,309. -' MoHiDiN Bavva and two others. Bpnd — Prescription. The plaintiff sued on an instrument which, after acknowledging the receipt of a sum of money, provided for the recovery of it with interest in case of default of payment. The parties, in the body of the instru' inent, called it a " money debt bond," " this bond," " this unprofes> sional bond" ; it bore tbe Etamp proper to a bond for the amount mentioned, and professed to create a general mortgage over all the property of the obligors. Plea, prescription. Held, that this instrument was not a " bond." Held also, that regard being had to the intention of the parties, as evidenced by the use of a bond-stamp and by other circumstances, it would be inequitable to allow the defendants to set up the shorter term of prescription as for a promissory note. Observations on tbe requisites to constitute a " bond" in this country. This was an action, begun on apth August 1882, by the obligee against the obligors upon the following instrument, dated 5th September 1S74 : '^To Sidamperanather Kumaravelo of Kavelkuda ..' the money debt bond granted by Isooboo Lebbe Mobadeen Bawa and Isooboo Lebbe Mohamado Tamby of Kattankudiaripu is to the follow- ing effect : — We have now received the sum of Rs. 45 from the said Kumaravelo, and in failure to pay the amount in full as principal within one month's time, we allow interest to be recovered by suing at the rate of 2$ per cent per annum from the expiration of the time for payment till recovery, along with the principal from us and from all our property. Having thus consented we have written and granted this bond to Kumaravelo by Mohadeen Bawa and the other. Witnesses whereof are [here follow 3 names]. At the consent of the parties this unprofessional [informal, simple] bond was written by affixing a stamp o£ 15 cents." 298 The defendants first filed an answer in person, wherein they pleaded that they had in 1873 granted to plaintiff a bond for the debts of plaintiff's sister, after which they had made certain payments on that bond, and for the balance granted the bond in question, which they had paid and settled. An amended answer was subsequently filed, pleading that the cause of action was prescribed under sec - tion 4 of Ordinance No. 8 of 1834 and section 7 of Ordi- nance No. 22 of 187 1. At the trial, the Court {B- G. Pole, Commissioner) upheld the plea of prescription and nonsuited the plaintiff. Plaintiff appealed. The appeal was first argued before Claeence, J , by •Dornhorst, for the appellant, and Sampiyo, for the respon- dent. By direction of Clarkncb, J., the case was piit on for argument before the Full Court, and, DiAS, J., being absent on Circuit, now came on. Browne, for the plaintiff, appellant — A bond in our law ■ is the equivalent of the Uterarum obligatio of the Roman Dutch Law. This is defined by Van der Keessel, Thesis sxxi (commenting on Grotius, Bk. 3, cap. 5, section i) as follows : — " Literarum obligatio, which is used by Grotius in a wider sense than ander the Roman Law, is any pro. raise reduced into writing, to do something arising from any just cause or consideration, and even from any other nomi< nate contract ! and differs therefore essentially from the mere acknowledgment of a debt made in writing, to which no promise is annexed.'' The present instrument falls within this definition. It also professes to create a general mortgage over the obligors' property, which (though gene* ral mortgages are now abolished) indicates that the parties intended to enter into a bond. This intention is further borne out by the fact that the stamp of i j cents afiSsed is that proper to a bond, a 5 cent stamp sufficing for a pro- missory note. If the present document be a " bond,'' the action on it will only be prescribed in 10 years. (Section 6, Ordinance 22 of 1871.) Sampayo, for the defendants, contra — The old Prescription Ordinance, No. 8 of 1S34, spoke in section 3 of bonds " whether notarial or not, and whether under seal or not." The corresponding provision in the new Ordinance, 22 of 299 1871, section 6, says nothing of bonds hot under seal, apparently attaching to the word " bond" the meaning it bears in English Law, from which the term is- derived. [CiiAKJEiNCE!. J. — The Ordinance of 1834 seems to recog*. nise such a thing as a bond not under seal,, which is a con.^ tradiction in termsj.. As to the stamp, it is not open to parties to entirely change the character of an instrument by affixing a higher stamp duty; in this instance, to convert a promissory note into a bond, by affixing a. bond stamp, to it. Cur. adv. vult.* (19th June). BuRNSFDE, C J. — The qiiestion for dec!.. sion ia this case is, whether a particular instrument not under seal is a bond or only a written security within- clauses 3 and 4 of the Prescription Ordinance 8 of 1 834. By the 3rd section of that Ordinance, which is the pre- scription Ordinance applying to the present case, the instru- ment in question having been executed before it was re.. * At tlie first argument, before Clajibnce, J.., Grenier as arrpicus. curiae referred the Court to the two following cases, in which a simi- lar (question bad arisen. In 0. R. Colombo ^^, (Civ. Min. ot Sup. Ct., 13th Feb.. 1866)1 the material part of the instrument (which mas ia Tamil) was as follows : "This debt bond which was caused to be written and granted to Gabriel Gomis is as follows, to wit, owin|f to my neces- sity 1 have this day borrowed and received the sum of £ 6 on interest,, which sum of jf 6 is to be paid on 6th September next ensuing with interest at the rate of i^ per cent and after satisfying the same receive back this bond." G, Stewart, Commissioner, held this to be a bond, '^ being simply an undertaking to pay an existing debt with interest." The plaintiff refusing to stamp the instrument as a bond, his action was dismissed, and on bis appealing, the Supreme ,Court simply affirmed the judg- ment. In O. R. Cohmio 50617,, (Supreme Ct. Civil Min., 13th June 1867) the above case was cited and relied on. Here the instrument (which, was also in Tamil), was as follows :: " The debt bond which was caused to be written and granted on this ist June 1866 to to the following purport, to wit, I do hereby declare to have in a case of my necessity borrowed and received this day from the above person the sum of £ 34 equal to rix, dollars 401 Therefore I do hereby agree to compute interest thereon at the rate of z per cent and to pay both the said sum of riz dollars 40 and interest on demand ot the said creditor. " The question here too turned on the stamp, and the Commissioner (ff. If. Gillman) after carefully considering the meaning of the Tamil words employed, held the instrument to be a promissory note. In. appeal, the Supreme Court simply aififmed this judgment too. 300 pealed, an action or claim on certain instraments, and amongst them a " bond" conditioned for the future pay- ment of money, whether under the seal of the obligor or not, is prescribed after lo years ; whilst by section 4, an action or claim upon a written security not falling within the description of instruments set forth in section 3, is prescribed after 6 years. The plaintiff in his pleadings described the instrument as a *< bond,'' and so contended at the trial. The defendant in the first instance filed an answer in person, in which be himself called the instrument a *' bond," the execution of ivhich he admits, and pleads payment. Subsequently he was. allowed to put in a further answer, which he did by a proctor, and he then pleadsd prescription under the 4tb clause- of the Ordinance. The learned Judge of the Court of Requests, without giving any reason, upheld the plea of prescription, and the plaintiff thereupon appealed. In the instrument itself (I quote from the translation which I find as a part of the record in the case — I do not myself know anything of Tamil^y it is stated that the obligor had granted this " nnoney debt bond," and " had caused this land to be written and granted," and in the attestation " a6 the instance of the parties this unprofessional bond was taken." Although by the law of this Colony sealing is not neces.4 Sary to the validity of any instrument, it seems to be a contradiction in terms to call an instrument not under seal a " bond," a word which has a recognised legal meaning, indicating an instrument under seal. In D. C. Colombo- 80,998, 4 S. C. C, 8_S, a case in which I appeared as Counsel, I find it stated that " a bond is a bond and a deed IS a deed, whether it has a seal or not, if in other respects it is executed as required by law." It is my misfortune that I am unable to see how this statement advances the argument. I can find no principle by which we caia be guided in arriving at a conclusion on this point, and I am afraid that the question is more one of fact than of law. The parties to this instrument evidently treated it as a " bond," until the proctor for the defendant appears upon the scene ; and taking this fact in connection with the fact that, by the translation of the instrument, it is declared to be a " bond," I think we must as a matter of fact treat it as a " bond.'" The judgment of the Cgurt of Requests is therefore set 301 aside with costs, and the case seat back to the Conarnissioner to deal with the issues raised by the first answer, the plaio- tifE being entitled to judgment on the plea of prescription. Clabe!KCB, J. — The question raised by this appeal is, whether the instrument upon which the plaintiff sues is a " bond" within the meaning of section 6 of Ordinance No. 22 of 1871. The instrument is in Tamil attested by three witnesses but not notarially. Its purport is that the defendants ac^ knowledge to have received &s. 45 from the plaintiff payable in one month from the dae of the instrutaent (5th Kep. tember 1874) aad they agree that in default of such pay^ ment the principal may be recovered with interest at 2j per cent per annum. The defendants first of all answered in person, admitting that they granted the instrument, but setting up what seems to have been meant for a plea of satisfaction. They after- wards filed a fresh answer signed by a proctor, which set up simply the defence non accrevit intra sex annos, and pleaded the 4th section of Ordinance 8 of 1834 and the 7th section of Ordinance 22 of 1871. The tomraissioner without assigning any reason upheld the plea of prescription, and plaintiff appeals. The instrument having been made in 1874, it falls, so far as prescription is concerned, under the Ordinance 2 a of 1871. It certainly is a " written promise or contract," and as such must fall under the seventh section of that Ordi< nance if there be no other part of the Ordinance governing the matter. If section 7 is the section that applies, the present action is barred, not having been brought within six years. Plaintiff, however, contends that the instrument falls under section 6, the term of prescription in which is ten years. The actions embraced by that section are actions " for the recovery of any sum due upon any hypothecation Or mortgage of any property, or upon any bond conditioned Jor the payment of money, or for the performance of any agreement or trust or the payment of penalty." Plaintiff contends that the instrument sued on is a " bond condition., ed for the payment of money." " Bond" is an English Law term having a specific mean- ing. It means a written obligation or acknowledgment of debt under seal. But as the English distinction between specialties or acknowledgments or contracts under seal and 302 promtses not under seaJ has no place in the law of this Island, it becomes a difficult task to conjecture what was the intention of our Legislature in using the term "bond." The term is also used in the Ordinance 8 of 1834. There has been undoubtedly,, in countries governed by the Roman Civil Law^ a distinction drawn between instruments private' and instruments authenticated by judicfal officers or notaries, bin there is not in our system anything like the English- distinction between instruments under seal and instruments not under seal. It is therefore very difficult to find any principle on which we can interpret here a technical term- borrowed' from the English Law, in -which its meaning had reference to a distinction which does not exist here. I think it best not to attempt to guess at the question, but to con- tent myself by saying that, whether the word " bond" has been used by our Legislature in simple heedlessness, or with some definite intent, so far as concerns the instrument before me I see no reason why the instrument should be placed on a different footing from the simplest class of acknowledgments of debt or promises to pay. It is simply an acknowledg. ment of debt signed before witnesses, with an undertaking that if the debtor fails to pay on a specific date the creditor may recover it with specified interest. Whatever may have- been meant by " bond" in our Ordinance, I see no reason why such an instrument as this should be called a bond, and so placed- on a different footing to a simple promise to pay. If this instrument had been written in English, and being: so written had styled itself a " bond," it miglit have beea reasonably argaed that the parties should be regarded as having mutually intended that it should entaiJ the rights and liabilities attached by our Legisla^ture te the word " bond." The instrument however is in Tamil,^and the Tamil expres- sion which has been translated " bond" means, so far as I understand it,, simply particulars of debt. By the kindness of Mr. Grenier, amicus curice, I was furnished, when this case first came before me, with refer* ence to two previous cases which came up in appeal to thi» Court, and in which the point was- mooted, what meaning is to be assigned to the term " botwl" as employed by our Legislature. These cases however throw no- light upon the question. In the first, 35|li c. R. Colombo, S. C. Civ. ^ 3.7839 Min , 17 th October i86j, the instrument was in Tamil, -witnessed but not notarial, and styled itself V. 32,334. i Sekana Lebbb. Insolvency — Property acquired pending insolvency, sale of in execution— judgment on debt contracted pending insolvency — Right of purchaser to sue for rent —Surrender by assignee to Insolvent — Ordinance 7 of 1853, sect. 7^. Pending the Insolvency and before the certificate of K., mho had a Hfe..interest (acquired pending tlie insolvency) in a house occupied by defendant, plaintiff purchased K.'s interest in the house at a sale in execution of a judgment against K. obtained upon a debt contracted pending the insolvency Plaintiff now sued defendant for use and occupation. Defendant admitted occupation, but pleaded the insolvency and bis liability to the assignee for the rent. Held, that the right to recover rent had passed to and was vested in the assignee, and that plaintiff's action had been rightly dismissed. Quare, whether, if the assignee had surrendered the property in ques- tion to the insolvent, the plaintiff would have acquired any right by his purchase prior to such surrender. Plaintiff began this action, on iSth August i88i, to recover Rs 98 for the use and occupation during seven months of plaintiff's house by defendant, " as a monthly 305 tenant." Defendant adtnttted the usb and occupation, but went on to deny that plaintiff had purchased the right and title of y. G. de Kroes, and that Kroes had any right in the house ; and set out> among otheir immaterial matters, that defendant had receivbd from Jf'. L. A. Pkebus, Kraes' assignee in insolvency, a notice that all Kroes' right had Tested in his assignee, to whom all rent was payable ; that the house was held subject to a fidei commissum, aaA Krovs' interest was therefore not alienable^ At the first trial (before y. E. Smart, Cfommr) it was proved that Kroes had been declared insolvent on 14th Oc tober 1879; '^^l* ''^^ judgnoents (Nos. 82,953 and 83,142 D. G. Colombo) in execucion of which plaintiff had purchased Kroes' right to the house, had been obtained on aoth December 1&80 and 17th January 1881 respeet-ively ; that the debts on which these judgments had been obtained had b^en contracted after th6 insolvency ; arid that at the time of the insolvency Kro^s had no interest in the house. De- fendant further proved that since the judgment in 0- R. Colombo 28,460 (June 1882) he had been makihg Kfets a subsistence allowance at the assignee's request. The Court having givep judgment /or the plaintiff, oa appeal by the defendant, the Supreme Court set the judg- ment aside and sent ihe case back for further trial. At the second trial (before W. J. 8. Boake, Cotnmr.) the evidence previously recorded was read of consent, and the assignee proved that the iusolveney proceedings were stiH pending, that the insolvent's life interest in the house had been acquired pending theinsolvendy, th^t he had not suf rendered the house to the insolvent, and that he had requested de- fendant (who had been iii occupation of the house for 4 or 5 years) to pay the rent to Kroes as an allowance, pending in- solvency, but that, had such payment not been made to Kroes, he (the assignee) would have claimed the rent. Kroes obtained a certificate on 12th September 1882, his creditors being still unpaid. The (jourt held that there had been no surre^r^er hy the assignee to the insplveqti. and' that (had there Ijeen such surrender) the assignee bad not the power to; malie itc 308 further, that the sale pending insolvency was invalid. Plaintiff's action was dismissed, and he appealed. VanLangehlerg for the plaintiff, appellant. Browne {(Withers with him) for the defendant, respondent. Cur. adv. vull. (a6th June). Burnside, C. J.— Pending the insolvency and before the certi6cale of one Kroes, who had been the owner of a house and premises in the occupation of the defendant, the plaintiff puTchased Kroes' interest at a Fiscal's sale, and now sues the defendant for use and occupation. The defendant admits the occupation, but pleads the insolvency of Eroes^ and says that he (defendant) is liable to the assignee for the rent. He al> V. 35,425. J J. W. H. Ebert. Landlord and tenant-^Notice to quit— Increased rentjhr holding over- Plai-ntiS as landlord gave notice on zath February to tbe defendant liis tenant to quit the plaiatiS's houjse on 31st March^ in default of which the plaintiff would charge the defendant rent at the rate of Rs. 50 instead of Rs. 3 1,50' per month for such time as the defendant should hold over. The defendant quitted the house on I5tb or i8ih April,, and plaintiS brought this actioa to. recover Rs,. 50, as lent foe April, Beld, that plaintiff was entitled to lecover. Defendant was plaintiff 's rapn'thly tenant of a- bouse> pay- ing Ks- 31.50 rent per month- Defendant entered at the end of iVIarcb, 1882, paying a month's rent in advance. On aoth February 1883, plaintiff gave defendant notice to quit the house at the end of the following March,. Intimating that ia the event of defendant's holding over after 3.i.st JVlarch he would he charged rent at the increased rate of Bs- 50 a mKJoth. . Plainti£f,.alleging that de/eudant had held over till iSch April, claimed rent at the old rate for March> and Rs, 50 for the period held over in April. The defendant's answer admitted the receipt of the notice to quit, but denied plaintiifs right to give such notice, as there ^as no rent in arrear. The defendant brought into Court Rs. 1575, being rent at the old rate for only ij' days in April,, during which defent^aot continued in occupation j payment being pleaded of the rent for March, 1 8 S3. The Court below (W. J. S- Boake, Commissioner) held that the original payment in advance covered tbe rent fosr 308 March 1883; but gave judgment for the plaintiff for Rs. 50 as rent at the increased rate for the days held over in April, 1883. The defendant appealed. Browne (Layard with him) for the appellant — A landlord cannot recover for the period held over any sum he pleases to fix. His action is for damages for use and occupation, which must be assessed in the lisual way. Again, he can only recover for the precise n^pber ,p| j^ys during which the tenant held over -not for a whole month, when the tenant has held over only 15 days. "Where the tenant has given notice of bis intention to quit, and holds over, he is liable under an English Statute, II Geo. 2, c. 19, 8. 18, to pay double rgnt, but fhat Statute does not operate here. Pe also referred to Yoet, ad Bond,, 19. «, 3a, Berwick's Transln., p 237. Wendt, for the plaintiff, contra — The landlord, at the epd pf March 1883, was entiflpd lo delivery of possession. He said tp the tenant, "Ifyp-a st^y an beyon^ that tjn^e, I shall charge v. S>3^7- •' A. H. CamfbeIiL and others. Clul, action against, for goods^suppiied-^Zii^ljUity of ^^erer tary to be sued-^Practice — Exeejition, A Club is not a partnetship,, neither is it a corporation capable of being sued thio|igh the representation of any ofBcer or member of its body. 'The remedy oif a tradesman who has sapplied good^ to the il) 8 a. B,, 9^, 1 (2) Car. & irf., 494, 310 Club is simply an action against those persons who have contracted with him ; and whatever judgment he may obtain is enforceable against those persons and their property. Where the defendants were 0., Secreta-y of the N E. Club, three other persons named, "and others members of the said CluVanit judgment was entered agdinst C. with a direction that it should be enforced only against the common property of the Club ; Held, that this judgment was an absurdity,, and that a judgment against C. was legally leviable on C.'s own property and on nothing else. The facts of this case suiSciqntljr appear frona the judg> ment of the Appellate Couvt. The first defendant, appellant, was not represented upon the appeal. De Saram for the plaintiff, respondent. Cur, adv. vult. (17th July). Clabbnce, J — The plaintiff in this action sues to recover a sum of Rs. 94.49 for dairy produce supr plied to the Niiwara Eliya Club. So far as appears there seems no doubt that plaintiff supplied the goods and that be has not been paid. It is certainly most discreditable to the Nuvrara Eliya Club that a tradesman should have been compelled to sue for the amount of a small undispu'ed bill. Unfortunately the proceedings which have taken place in this action have been entirely misconceived, and seem to have been founded in a complete ignorance of what is a Very simple and well known matter of law. A Club is not a partnership : neither is it a corporation capable of being sued through the representation of any oflScer or member of its body. The remedy of a tradesman who has supplied goods to the Club is simply an action against those persons who have contracted with him > and whatever judgment he may obtain is enforceable against those per- sons and their property. The parties so responsible to the tradesman are those who have contracted with him either personally or through some autihorised agent. The queS' tions which arise in such cases — whether a defendant has contracted with the tradesman — whether he has authorised some other person to pledge his credit— ;and the like, are simply questions of fact to be determined according to the circumstances. Unfortunately for the plaintiff the proctor who represent, ed him in the Court of Requests seems to have completely misconceived the nature of the plaintiff's remedy. When 311 this appeal came on before me, I adjourned the hearing for a short time, in the hope that some settlement might be arrived at by which the unfortunate plaintiff would get his money without its being necessary for a Court of Appeal to deal with the confused mass of misconceived proceedings which has taken place. No snch arraogement having been made, I am obliged to deal with the appeal in the ordinary manner. The plaint states, as the defendants to the action, Mr. Camplell (the Secretary of the Club) three other gentle- men named, aud concludes with the absurd item, " and others members of the Nuwara £liya Club." Under date November 3olh, the Commissioner [G. A. Baumgartner] signed this entry in the paper-book : " Judg- ment for plaintiff as prayed against defendant against whom summons was served, with costs." It appears that at that time one of the defendants, Mr. H- S Saunders, had been served, and this entry probably relates to him,. The Commissioner, however, proceeded to modify this entry by a memoran* dum in which be directed that no writ should issue till that particular defendant's share of the debt should have been determined. \ On the 8th January, the plaintiff's Proctor applied for execution against the common property of the Club, an application which can only be accounted for by supposing that the Praetor was under the singular impression that a Club is a kind of corporate body, and that any member of the Club is a personage through whose representation the corporation may be sued. The Commissioner refused the application. After this the appellant, Mr. Campbell the Secretary, was served, and he qot having answered, the Commissioner proceeded to an ex parte hearing. Plaintiflf wa^ sworn, and from what he said it appeared that Mr. Oa'npbell had sue., cpeded Mr. Hearn as Secretary, that Mr. Htarn and Mr. Campbell had noth been in the habit of ordering supplies from plaintiff, and th ft some of the goods in question in the case (how much plaintiff did not say) had been supplied before appellant assumed office. The Commissioner, how* ever, appears to have viewed the action as an action against the Club sued by the representation of their Secretary. He pronounced judgment against Mr. Campbell, but directed that it should be enforced only against " the common pro- perty of the Club." This of course was an absurdity. 312 Under a judgiient against Mr- Oainphell levy might have been made ou Mr. Oamipbell's property, bat it could be legally made on nothing else. This took place on the 6tli; March. On the lath April, Mr. Campletl applied to have thd judgraerit reopened. So far as appears by the Commis- sioner's note, the only material put forward as gfotind for reopening the judgment was a completely insuffici-Tlt and ^darcely intelligible attempt at an excuse for not filing answer. The Commissioner refused to reopen the jUdgi raent. Mr. Cdmpiell now appeals against that order. ' Other proceedings are minuted in the paper-book which need not be further noticed here. The Court and the two Proctors engaged seem to have gone astray upon the idea of execution against " the common property of the Club.'' After consideration of thisunfortunate mass of proceed- ings, I deal with it in appeal as follows : — I decline to interfere at appellant's instance with the judgment .for Rs. 9^.49 entered against him for default of answering. He has completely failed to excuse his default, and I shall not interfere simply on the merits with the judgment for this paliry sum. It appears by plaintifE's evidence that appellant has been in the habit since he assumed office of ordering goods ol plaintiff, and although it was not made to appear at the ex parte hearing how much of the Rs. 91..49 worth of butter &c. was supplied on appellant's orders, and how much on those of his predecessor, Mr Hearn, I am not going for the sake of a defendant who is in de'auk to take up the time of the Court of Requests or this Court in appor.. tioning this paltry total of Rs. 9 (.-49. The judgment against appellant for that sum will stand, and I must point out that as a judgment against appellant it is enforceable simply against appellant and appellant's property. Plaintift has no right to levy under it upon any oiher property than that of appellant. With regard to costs, appellant will bear bis own costs in the Court of Requests, and will pay plaintiff's costs in appeal. As at present advised, I am of opinion that plaim- tiff's costs in the Court of Requests should be paid by his Proctor, whose incompetence appears to have been the primary cause of these mistaken and embarrassing proceed- ings, and I direct that plaintiff's costs in the Court of Bequests be paid by his Proctor, unless withitl 15 days of 313 this date, and upon notice to plarntiS and to appellant, he shows cause before this Court to the contrary. Affirmed. Proctor for the first defendant, A. Thomas%y I2th and igih July, 1883. Present— DiAS, J. C. R- ■) Meragalpedegedera Hawadia Kandy, > v. 2 J, 03 a. J Elaoialpategedera Sarah a. Bond— ^Mortgage — Joint and several liahility — Co^obligees —Recovery of share of one of the obligees. Where a mortgage bond, purporting to secure a sum of Rs. 380 to {our mortgagees, provided that in failure of payment " from this " mortgage and from the heirs and assigns of me the said debtor "the said principal and interest due the said tour creditors or one " of them or any person assigned and authori^d by the said four " persons are or is empowered to recover in full" ; and plaintiff as the assi^^nee of one of the creditors sued to recover Rs. 70 as the share due to the said creditor ; Held, that the plaintiff as representing one of the four creditors was entitled to recover the full amount of the bond^ and was therefore clearljr entitled to recover one fourth. The facts sufficiently appear from the following judgment of the Court below (T. M. Gibson, Commissioner) : It appears that the defendant borrowed a certain sum of money from four persons on a mortgage deed No. 2676, and in that deed there is a clause stipulating " that the said principal and unpaid interest shall be "recovered in full by the said four obligees or one of them or any one " orthem who may be assigned and authorized by the otherb to recover '* the same." It is therefore quite clear that the case should be brought for the whole amount by all the four persons' or by any one of them who may be authorized by the three others in some legal manner to ilo so. But one of these four persons without any legal authority has assigned over the fourth share of the whole amount to the plaintiff, and plaintiff relying on this assignment deed has brought this case for !(th the amount appearing in the bond. Thire is nothing to shew that the four persons contributed an equal share to the loan and that the assignee is entitled to ^th. Besides, the whoje bond should be put in huit and the cause of action should not be split. The English La# on this point is very clearly laid down in Addison on Contracts (6th Ed., Chstp. zzz, sect, z, p 1044) : " A covenant with several persons for the payment of a sum of money is a joint covenant with all, in the performance of which they have a joint inteiest, so that One dC them cannot sue Cor his particular share or proportion of the 314 cntiret7> bat M muA join in one joint action tot the whole ; and the pointing out of the share which each is to talce of the entire amount will not create a separation of interests so as to enable the parties to maintain separate actions." Plaintiff's case dismissed with costs. Plaintiff appealed. [The material words of the bond in the original were as follows: §<5<^!9© ta«Dds<<;a3j3 s^asas^Nooi «S«J ®a5S>a3^9 These words were rendered, in the translation used in the Court below, '' the said principal and unpaid interest shall " be recovered in full by the said four obligees or one of " them or any one ot them who may be assigned and " authorized by the others to recover the same " The translator who gave this version sent up an amended trans ■ lation with the record, in which he said the translation should run, "the four obligees or otherwise by any other person who may be assigned and authorized by the said four obligees to recover the same." By order of the Supreme Court a translation was made by the interpreter attached to that Court, which rendered the words as given in the head- note to this case]. DomhoTSt, for the plaintiff, appellant— It is the privilege of the debtor to have only one action brought against him. That privilege he has renounced, and the objection to one of the creditors suing for his proportionate shdre does not lie in his mouth. Apart from the bond and its special stipulation, the plaintiff would have been entitled to recover, as one of four creditors, by the Roman Dutch Law. Van der Linden, Instil , Bk. I, sect. 9, § 7 (Henry's Trans., 203). Pothier, Obligations, vol. i, pi. 2, cap. 3, p 144 (Evans's Transl.). Van Leeuwen, Comm., Bk. v, chap. 3, § ti (p 514, Engl. Transl., 1820). i No Counsel appeared for the respondent. Cur. adv. vult. (tpth July). DiAs, J.-This case stood over from time to time for a correct translation of the bond. The defendant granted the bond in favour of four persons, one of whom assigned his mterest in the bond to the plaintiff, who instituted this suit to recover one-fourth of the principal and interest due on the bond. In the amended answer the defendant denies the plaintiff's right to sue on the 315 assignment. The learned judge dismissed the case on the ground that the plaintiff cannot sue alone. Whether he can do so or not must be determined by the contract which is embodied in the bead. In that document the defendant admits to be indebted ta four persons in Rs. 280, and m failure of payment the defendant authorisses the four credi. tors or one of them or any person assigned and authorized by the said four persons to recover the whole of the amount. According to this stipulation, the plaintiff as represeming one of the four creditors, is entitled to recover the full amount of the bond. This being so, the plaintiff is clearljr entitled to recover one-fourth. Set aside and judgment entered, for the plaintiff as prayed for with costs of suit in both Courts. Set aside. Proctor for the plaratiff, Edward Swan. Proctor for the defendant, ^1 D. yonklaas- %oth and I'jth ^uly, 1883. Present — Clarencb and Dias, JJ.. D. C. y P. I>. J. DB SiLVA Galle, > V. 48,336. J W. Hbhdrick and others. Preference and concurrence — Funi in hands- if third party, '^Jixei" ly notice to pay creditor — Deht due by Municipality —Notice to Secretary — Ordinance ij of i86_S, sects. 5a ana 44- Plaintiff, and A. and W. had each obtained judgment agfainst the present defendant. The Municipality of Galle owed defendant a debt.. On 24th July, the defendant, by word of mouth and by written notice, requested the Secretary of the Municipality to pay his debt to A. The debt not having been paid owingf to the absence of the Chairman of the Municipality, the plaintiff (on 26th J uly) and W. (on the 27th) attached the debt under their respective judgments. Plaintiff having obtained a rule on A. and W. to show cause against the money being applied, solely or in concurrence, to the satisfaction of plaintiff's judg< roent, the District Judge discharged it with costs. Held, that the notice to the Municipality . had been rightly served on the Secretary ; that the fund had thereby been "fixed" as the property of A. ; and that plaintiff had shown no tight to it. The plaintiff in this case appealed against an ordt:r of the 316 District Judge (/4. H. Roosmalecocq) discharging with costs a rule obtained by plaintiff on one Abdul Kader and one mrakoon, calling upon them to show cause wi.y a debt due to their common defendant by the Municipalily of Galle should not be applied (entirely or in concurrence) to the satisfaction of plaintiff's judgment. The facts of ibe case sufficiently appear in the judgment of Ciabekck, J. Withers for the plaintiff, appellant Dornhorst for Abdul Kader, respondent. Car. adv. vult- (ayth July). Clarence, J.— The point raised upon this appeal is a very simple one- The plaintiff in this action, one Abdul Kader, and one Ifirakoon, bad each in a separate action obtained judgment against the same debtor, one Hendrick. Hendriok had a sum of money owing to him by the Galle Municipality. Abdul Kader appears to have pressed Hendrick for payment, and Hendrick agreed to provide for Abdul Kader' s^i\m with the money to come to himself from the Munioipalitv. Hendrick in pursuance of that arrangement went with Abdul Kader to tfje Secretary of the Munici{!iality, and having stated to the Secretary the arrangement that had been made betWL-en himself and Abdul Kader, handed to the Secretary a written order to pay the money to Abdul Ka er, at the same lime banding inhia own receipt for the money. This took place on the a4,th July. A clerk of the Municipality wrote out a cheque for the amount, but the Treasurer (Government Agent) who alone could sign the cheque, not being in the way, no cheque was then handed to Abdul Kader. Next day, July 25tb, the plaintiff in this action served the Manicipahty with notice attaching the debt uader his judgment) and on the ayth Wirakoon did the same In consequence of this action on the part of' present plaintiff and JHrakoan, the money was not paid to Abdul Kader. Customary delay seems then to have taken place, and at length the plaintiff in this action obtained the issue of a rule in this action call- ing on Abdul Kader and Wirakoon to shew causs why the money should not be applied in satisfactipn of plaintiff's writ or in coiicurrence. Thereafter the matter was discuss- ed in presence of those three parties upon tl^at rule, and the District Judge adjudging that Abdul Kader was entitled to the money discbacged plaintiff's rule with c9Sts> 317 When the facts are thus ascertained, it becomes plain- that plaintiffs claim is altogether unmaintainable- The debt due by the Municipality to Hendrick had become fixed as the property of Ahdul Kader before plaintiff purported to attach it. It would be difficult to conceive a more com- plete assignment of the debt than th^t which here took place- The moment Sendrick's order to pay Abdul Kader was sh^wn to the Secretary the money (to ase ths express sipa employed by Lord Thurlow in ) eat?9 v. Qrovef (i)) was fixed. Mr. Withers in arguing the appea} sery properly confined himself tp the question of noticei »nd upon that point there can, we think, be qo doubt but that the notiep given to the Secretary was sij(}iqi?nt. It is true there is » Treasurer, by virtue of sect. 2J of the Ordinance, who has,, so to speak, the key of the moQey box, but the notice was properly given to the Secretary, f^ide sect. 44 of the Ordi- nance, which distinctly recognises the Secretary as the proper officer to receive notices, by enacting that all process in actipns against the Municipality shall be served on him* We do not know whether Abdul Kader is still unpaid by the Municipality. If not, all that can be said is that either he or his legal adviser has been unnecessarily supine- Plaintiff's rule was rightly discharged by the District Judge, and plainiifE must pay JJ/dul Kader's costs of the rule. Ifirakoon will pay his own costs of the rule t he need not have appeared- Affirmed- Proctor for the plaintiff, W. H. Diai. Proctor for Mdul Kader, W. E. de Vos. Proctor for Wirakoon, A. T- IPeeresooriya- (i) I Ves, jun. 281. 318 2nd and ';tk August, iSS^v Present — Dias, J. D C. Ins. •» h re A. C. Chambbrlik. ETandy, ? 886. J Ex parte T. C. Anderson and J. W. Koet. Insolvency — Mortgage cr ditor, who has realised security r proving for balance debt after one dividend has been paid — Right to payment ofjhst dividend out of finds in Assignee's hands before payment of second dividend to other creditors- Ordinance i of 1853, sections 108. \og— District Court rescinding its own order ailounng proof of claim. C. was declared insolvent on 5th September- 1879. On zfitb Novem- ber A. and H., mortgagees of a coffee estate belonging to the insolvent, commenced an action for realizing' their secuiitjr. They sold the estate nnder a morteagee's decree and purchased' it themselves for Rs. 10. Meanwhile a dividend had been declared and paid to the proved creditors. On 21st April 1882 A. and H. were allowed to prove a claim o{ Rs. 25,244,51 against the insolvent estate, being balance due on their mortgage, deducting certafn payments already received by them out of the estate. On nth September A. and H. moved that out of the monies in the Assignee's hands they might be paid (before any payment on account of second dividend)'an amount equal to what they would have received as first dividend on tlie debt they had now proved had ttey been proved creditors at that date. The Court below refused this motion, and also refused to allow the mortgagees to prove any balance sum due on their mortgage bond^ against the insolvent estate. Ueld, that the District Court could not set aside its own order pre- viously permitting the proof of the mortgagees' claim. Held also, that by section 109 of the Insolvency Ordinance the act of proving a debt which is the subject of a suit is a relinquishment of that suit, and that appellants were- rightly allowed to prove for their balance debt. Held also, that in equity a creditor, who proves after a dividend has been made, is entitled to be put on the same footing as the creditors who have already reci-ived the previous dividends, [provided be does not disturb any dividend already paid]. Ex parte Stiles (i) and \Ke tf heeler (i) followed. Archibald Charles Ohamberlin was adjudicated insolvent, on his own petition, on jth September 1879. He estimated his liabilities at Rs. 181,565.41; and his assets at Rs. 181,437, the latter consisting of Annfield Estate and some debts due to the Insolvent. On ipih September 1879, T. C- Anderson and J- W. Holt, professing themselves to be mortgagees of Annfield Estate, moved for and obtained the appointment of T, C Anderson as Provisional Assignee, with power to take (1) I Atk., 108. I (2) 1 Sch. & Lef,, 242. 819 possession of tlie Estate and all other assets of the Insolvent. On a6th November. Anderson and Holt commenced a suit No. 841243 for realising their mortgage, the Insolvent and his Assignee Amlrose being defendants. T". C. Anderson had previously been removed at his own request from being Provisional Assignee. Judgment was entered for the plain- tiffs by 'Consent of the Insolvent and his Assignee. The Assignee having «old some coffee found on Annfield Estate, deposited the proceeds in Court, and the sum of Rs 2866.94 was on a6th JVIay drawn by Anderson and Holt as roort* gagees of the crops. On 31st April 1882, Anderson and Holt proved a claim of Rs. 25,144.51. They filed an affidavit of T. Anderson, setting out that they were creditors of the Insolvent in the sum of Rs. 35,000 and interest secured by a secondary mortgage of Annfield Estate ; that on judgment obtained on their mortgage the Estate was sold by Fiscal and pur., chased by the mortgagees for Rs. 10, some coffee being bought by them for Rs. 445 ; that there was a balance sum due of Rs. aS, II 1.45, from which the sum of Rs. 2,866.94. already drawn was to be deducted j and that they had no other security for the balance due. They moved on i ith September 1882 that, out of the monies in the Assignee's hands, they might be paid as first dividend the sum of Rs. 374.67 before any payment was made to other creditors on account of a second dividend, as they had not proved at the date of the first dividend. On this motion, which was opposed by certain proved creditors, the District J udge (A. 0- Lawrie) made the fol- lowing order: " Ihe first question is whether Messrs. Anderson and Holt can piove at all. The logth section of the Ordmance pro. vides that " no creditor whu has brought any action against any insolvent in respect of a demand prior to the filing of a petition for sequestration, or which might have been proved as a debt under the insolvency,, shall prove a debt under such insolvency, or have any claim entered upon the pro* ceedings, without relinquishing such action." I hold thai: this clause excludes IVlessrs. Anderson and Holt's claim from being received under the Ordinance. They had the choice, either of proving their claim, of allowing the Assignee to realize the Estate, and of ranking as preferential creditors on the price obtained foriti or of ignoring the insolvency proceed.* ings altogether, and by raising action on their mortgage and 320 realiziog at a time of their own choosing the mortgaged Estate and (as they did) of purchasing it of thenaselves at a nomiDal price of Re. i. They chose the latter course, which doubtless was the one which best suited the circuraj stances in which they were placed. They were justified in what they did. but having choseri this course they cannot, in my opinion, now claim to be ranked on the proceeds of lands and property mortgaged to thenS, for the apparent balance of the secured debt (which, be it remarked, is not the real balance; for the Estate Was worth more than a rupee). " The clause of the Ordinance which I have quoted Seema to me unambiguous : no creditor shall prove a debt, or have any claim entered upon the insolvency proceedings, without relinquishing any action against an insolvent for a debt proveable under the insolvencyi Messrs. Anderson and Holt's debt was one proveable under the insolvency : that, of course, is admitted, for they now seek to prove it. They raised an action for its recovery ; they did not relinquish that action — the Ordinance says distinctly that they cannot prove. " Had I been of a different opinion, if I had held that their claim could now be entered on the proceedings, I should have held that they were entitled to the same rate of dividend as the other proved creditors. " A creditor who comes in late, after a dividend has beeil declared and paid, cannot disturb that declaration and payi ment ; but if there remain unallotted in the Assignee'^ hands a sufficient sum to give him an equal dividend with the other creditors, I think he is entitled to get it. The principle which underlies all insolvency proceedings IS, td secure an equal distribution to all creditors of an estate in> sufficient to meet the claims of all in full. And had Messrs. Anderson and Holt here been entitled to claim at a'l, £ should have held that they were entitled to the same num- ber of cents for each proved rupee as any of the other credit tors. I reiect the claim of Messrs. Anderson and Holt ; I refuse to allow them to rank as Creditors of this insolvent estate, or to receive dividends therefrom. The Assignee is directed to prepare a new dividend sheet, omitting their claim, and I further order the Assignee within 6ne week to bring into Court the sum of Rs. 2 ja deducted and retained by him as commission without the authority of Court." Anderson and Holt appealed. 321 Layard, for the appellants. — The District Judge on'iist April 1882 allowed the appellants to prove their claim of Bs. 25,244.5 1> and he could not in January 1883 cancel that order and refuse to recognise the appellants* claim. If Anderson and Holt be allowed now to prove for the balance due under their mortgage, they are entitled to a dividend equal to what they would have received had their claim been proved when the first dividend was declared ; and if there be sufficient funds, they are entitled to be first paid such previous dividend, and the balance is to be divided among all the creditors, including those who have last proved. I Griff. & Holm., Ed. 1869, p 730. Ex parte Stiles (1). He Wheeler (2). When they have realised their security, the mortgagees may prove for the balance left due, and are entitled to dividend on such balance, providecl they do not disturb any dividend already made, i Griff. & Holm., 631, 648. Ex parte Stiles, and Ee Wheeler were decided under the Act 6 Geo. 4 c. 16, which was repealed by Act la & i^ Vict. c. 106. Section 108 of our Ordi. nance is almost verbatim taken from section 188 of the Act of 12 & 13 Vict,, which had adopted similarly the 109th section of the Act of Geo. 4. Our. adv. vult. (7,th August). DiAS, J.—In this case Messrs. Anderson and Holt, who are the appellants, were mortgage creditors of the insolvent. On this mortgage they obtained a decree, and caused the mortgaged property to be sold in execution, and themselves became the purchasers for the nominal sum of Re. I. For the balance of their judgment, to wit Es. 25,244.51, they proved in the insolvency proceedings* Subsequently, on the nth of September 1882, the appel- lants' Proctor made the following motion : " Messrs. Ander- soit and Holt not having proved their debt before the first dividend, Mr. Thomas moves that they may be paid out of the Rs. 2,100 in the hands of the Assignee the dividend they have failed to receive, amounting to a sum of Rs. 2 74.67, before any part of the said Rs. 2,100 be applied to the payment of the second dividend." This motion was dis- cussed on the 22nd of January 1S83, and the learned judge refused the motion on the ground that the appellants cannot be treated as creditors of the insolvent estate, as they had (i) I Atk,, 208. I (2) I Seh. & Lef,, 242. 322 mo right ^o prove as tli^ did without previously reliiiqaish- ■ing the action which they brought on their mortgage bond. It must be observed that this order deals with a matter not brought before the Court by the appellants' motion of the iith Septembei- i&8a. !rhey proved their debt in the previous April. That order has never been set aside, and the order now appealed from has the effect of setting it aside altogether. Independehtly of the power of the District CdUrt to set aside its own final order, the District Judge jirpceeded to give his opinion on a matter which was not before him. Oii this ground alone that part of the order taust be set aside ; but I think the District Judge's order is substantially bad. The District Judge relies on the 109th section of Ordi- nance 7 of 1853. That section enacts that "no creditor whq has brought any acdon against any insolvent in respect of a demand prior to the filing of a petition for sequestration, or which might have been proved as a debt under the insolvency, shall prove a debt under such insolvency! or have any claim entered upon the proceedings, without relinquishing such action ;" and the clause goes on further to enact that the act of proving a debt under a petitidQ for Sequestration shall be deemed an election by the creditor to take the benefit of the^ petition for sequestration ; or, in other wot'ds, the act of proving a debt which is the subject of a suit is a relinquishment of that suit. This clause seems to me to cover the case now in hand. The appellants were holders of a decree for a large sura of money. They realised their security, but there is still a considerable balance due to themt As regards this balance they must be taken to have relinquished their suit and placed themselves in the position of general creditors of the insolvent estate^ and as such they are entitled to prove as they did for the balance still due to them. Ex parte tpgolitif. (i). I am therefore of opinion that their proof of the aisc April 1882 should staibd. X now eome t& the question raised by the thie appellants' iuotioQ, which is, that thsy are bntitted to receive a previous dividend out of the monies in the hands of the Assignee before it is applied towards the payment of the second divi' dendi, In respeqt of this previieus dividend they claim a sum of Rs. 474.64, This amount may be right, but it will have (1) I Rose, 394; 2 V. &©., 253. 32$ to be verified by the District Court before it [a paict over. I shall only decide the point, whether or not thev are en- titled to the payment which they clain). Our Infolvents^ Ordinance is founded on the English Act of 1849,. and ^^^''' Act, with regard to the questiot) now in hand, is founded on a previous Act, 49 Qeo. iii. a- lai ;. and ondef these acts it was held that in equity a creditor who proves after a. dividend has been made is lentitleid tQ be put ou the same footing as thg creditors who have already received the pre- vious dividends. Ex parte SUtes (i) y Re Jfheelet (a). I am therefore of opinion that out of the monies bow i^ the hands of the Assignee the appellants must in the first instance bo paid a suoi equal to the previous dividend which' they failed to receive, and as to the balanea they will b# entitled to a share of the second dividend with the rest of the general creditors. The order appealed from is therttfove set aside, and the appellants are declared entitled to receive from the funds now in the hands of the Assignee a sum eqiual to their share of the previous dividend (the amount of which is to be ascertained by the Court) and to a' further dividend out qJB the balance. The costs ia both Courts will b« paid by thp opposing creditors* Order set aside. Proctor for the AppeHants, E. Dumaresf Thomas, Proctor for the Insolvent, E' Seven- Proctors for the opposing creditors, Jf. B. Sieielr W. Gome' tilleke- Proctors for other proved creditors, 4* ^"^ Twest ; F. Van Langenberg' (i) I /Uk., 208. I (2)> I Sch. Sl Let, 34ar 324 22nd June and iSth August, 1883. Present — Burnside, C. J. and Claebnce, J. D. C. 1 F.G. Morgan Colombo, > V. 85,981. J D. J. WijEYEGOONBTiLLBKE and another. Mortgage — Purchase by mortgagee, under third parly's writ, of part of mortgaged property — Merger — Extinction of debt. Plaintiff, who held a mortgage over eleven of defendant's lands to secure a debt of Bs. 4,000, obtained, on 23rd February 1882, a mort. gagee's decree, and levied a sum of Rs. 596 by sale of part of the mortgaged property. A third party, having previously obtained a money judgment against defendant, seized and sold another part of the property mortgaged, expressly subject to plaintiff's mortgage, and plaintiff purchased for Rs. 100. The greater pact of the mortgaged property still remained undiscussed. Held, that defendant's motion, to have satisfaction of plaintiff's mort- gage judgment entered up, had been rightly refused under these cir- cumstances. The facts of this case are disclosed in the judgments in appeal, and in the reasons for the order of the Court belovr aa shown in the note to the judgment of the Chief Justicb> The judgment of the third party, under which plaiutifE purchased, was a money judgment tor Bs. 492.47!, dated aoth February i88a, obtained in D, C. Colombo 86,178 on promissory notes. Layard, for. the defendant, appellant — The plaintiff, by purchasicig siibject to his own mortgage^ must be taken to have extinguished his own debt. He has succeeded to the place of his de'btor,*and /^et (i), treating of the modes in which a mortgage debt is extinguished, includes such sue. cession in that category. Si debitum principale solutione ... vtl confusione dum creditor debitori succedit, aliove simili modo, quo obligationes aut ipso jure aut ope exceptionis dissolvi Solent, sublatum iit The debtor has an equitable right (ope exceptionis) to havre the debt declared satisfied. The purchaser at the sale knew (for the mortgage was notified in the Conditions of Sale) that, in order to free the land which he was buying, he would have to pay the mort- gagee Rs. 4,000. The plaintiff, though the mortgagee, can be in no better position than any stranger who purchased (i) AiPand,, u. 6. 1. 325 at the sale. The plaiatiff in fact declared by his acts that he considered the land worth the Rs. loo over and above the encumbrance on it- Equity is strongly in the defendants' favour. Here was a mortgage of eleven parcels of land to secure the large amount of Rs. 4,000. The pkintiff could have each parcel sold separately, and could scare of$ intending purchasers (as he seems to have done here : for he purchased 13 acres of land for Rs. 100) by causing the Fiscal to give notice of his mortgage. In the present instance, the judgment on which the land was sold was for Rs. 46T.3 j, and the levy has brought only Rs. 100. Each remaining parcel of mortgaged property could be sold seriatim till the balance was realised. The mortgagee becomes the purchaser of the mortgaged lands at one-tenth their market value, and yet the mortgage debt remains untouched. This entails utter ruin to the mortgagor. In view of these circumstances I would ask the Court to reconsider the judgment in C. R, Ratnapura 4, ipa ( i) which» in a parallel case, decided that the purchase by the mortgagee did not extinguish the debt. Domhorst, for the plaintiff, respondent — Assuming the law to be as contended, the defendant is still not entitled to have satisfaction of the entire debt entered up^ because this particular land did not carry the entire encumbrance of Rs. 4,000) which was leviable on ten other parcels of land. Fbet, in the passage cited, lays down the universally recognised proposition, that upon the extinction of the debt the mortgage goes with it. The " succession" he mentions is clearly succession by inheritance : that is to say, where the creditor becomes the heir of the debtor and takes upon himself the rights and liabilities of the deceased. See Berwick's Translatioa of the passage (2). Cur. adv. vult. (aSth August). BuRNSiDB, 0. J. — On the 13th of De- cember 188 1 the plaintiff filed his libel against the defen. dants, alleging that the first defendant by his bond dated the 20th May 1879 became bound to the plaintiff in the sum of Ss. 4,000 with interest > that as security he raort' gaged to the plaintiff eleven distinct lands, which were described in the libql j and that the second defendant bound (1) 3 S.C.C,, 106, I ^2) Page 444. 326 himself as security for the payment of the amount j that the principal sum with interest was still due : and he prayecf that it be decreed that the defendants jointly and severally pay the sum so due with interest, and that the lands so specially mortgaged be bound and executable for the mort^ gage debt. Judgment on the a^rd February i88a, in defaalt of appearance, passed against the defendants, and it was decreed that the plaintiff recover against the defendants, jointly and severally, the sum of Es. 4,000, with interest at 12 per cent., with costs of suit, and that the eleven lands mortgaged be and were thereby declared executable for the decree upon the footing of the mortgage. Upon this judgment and decree executioa issued and a> portion of the lands mortgaged was seized and sold, the proceeds whereof, amounting to Rs. 596. 70, were applied towards the plaintig's judgment. * Another judgment was recovered a'gainst the first defen» dant (but whether before or after the plaintiff's judgment does not appear, nor is it material} for the sota of S.S. 492.42!, upoB which execution issued for that amount- Under this writ the Fiscal seized one of the lands specially mortgaged, and decreed bound and executable for the plaintiff's judgment, and it was on the 25th May put up for sale upon, amongst others, the following conditions : " Notified mortgage in favor of Mr. F. G. Morgan, " plainti£f in ease No. 85,98 1 I>. C. Colombo, bon4 being " dated 20th May 1879, *<"' ^s. 4,000 and interest and •' costs of suit." The plaintiff at such sale became the purchaser for the sum of Rs. ioo> Upon an affidavit disclosing the above facts a motion was made on the aSth February for an oidex directing the recall of the writ against property issued in this action at th& plaintiff's instance on the 26th February 1883, and a decla- ration that the judgment debt by way of principal, interest and costs recovered by the pla^intiff against: the defend^i^t in this action had been fully satisfied and discharged- On the argument of this mption onthe 5th March 1883,11 was disallowed with costs, but tJie ,Jeai;ned Pistrifit Judge gave no reasons whatever for his order. The defendants- thereupon appealed, and upon the argument Counsel direct- ed their attention solely to the point whether the purchase- by the plaintiS of a portion of the morCpged land operated as an extingvusbment of the entire judgment debt, so as to 327 entitle the defendants to have a declaration that the plain^ tiff's judgment and execution against them had been satis' fied. Before deciding that point, which is a new one and one of great importance, bearing upon the latv of mortgage in this Cdony, I thought it right that we should have before ns the reasons and grounds upon which the District Judge refused to make the order. The case having been referred back to the District Court with that view, it has been returned to us, and having now perused the reasons* record- ed by the District Judge for refusing to make the order, I think he was right and that we cannot interfere. Before the question raised before us is ripe for decision more facts than those disclosed in the affidavit upon which the motion in the Court below was refused must appear. The plaintiff's judgment included in it a personal liability from the defendants beyond the mere mortgage debt for which the lands were specially liable j and although it may Well be that the lands were discharged from the mortgage when the mortgagee became the owner, yet before they could claim to have the judgment and execution declared satisfied, they must show that their personal liability, not * These reasons were contained in the District Judge's letter to the Supreme Court, dated 9th July 1883, and were as lollows : " I have not any very distinct recollection of the reasons for which the motion of 5th March last was disallowed, but as it was one to enter up satisfaction of judgment and was opposed, I presume that the defendant had failed to adduce evidence sufficient to convince me that the judgment had been satibfied. This supposition is confirmed by the contents ot the Petition of appeal : for it admits that the judgment was for Rs. 4,000, interest and costs ; and the only .satisfaction alleged is the proceeds of a levy in execution realising Rs. S96-70 besides the argumentative satisfaction supposed to depend on the circumstances, that on another writ against the defendant at the instance of another Creditor the present plaintiff had purchased for Rs. 100 lands which were sold to him subject to a mortgage over them in his (the plaintiff's) own favour for the very bond debt for which he holds the present judgment. The lands were up to the moment of his purchase of course only worth their gross present market value minu^ the amount of the plaintiff's incumbrance: and I presume that the lands ceased to be affected by the mortgage when the mortgagee became owner, but that though the mmtgage and the liaUlily of the lands was thus wiped out, the delt a,nd the personal liability of the debtor to the creditor remain unaffect- ed, at aU events to the extent to which the present gross value of the lands, minus the price paid to the Fiscal for them, may happen to be less than the amount due upon the mortgage. But what that result.. ing value may be, there appears to have been no evidence offered either in the affidavit filed or otherwise: and neither does there appear to have been evidence of the amount due for costs, not embraced in the original mortgage. 328 only in respect of the mortgage debt but on the entire judgment debt, had been extinguished. The appeal must be dismisaed with costs. Clabencb, J — PlaintifE has a judgment for Rs. 4,000, interest and costs against the two defendants, who are priacipal and surety. This judgment is founded on an instrument by which the first defendant as principal became bound to pay the Rs. 4,000 and interest, and mortgaged by way of security eleven various pieces of land and undivided shares of land. • The second defendant bound himself as surety. Plaintiff got his judgment, with the usual mortgagee's decree, on the Z3rd February 1882, and it would appear that thereafter plaintiff . seized and sold some of the mortgaged property, the proceeds of which, amounting to U.S. 596.70, were applied in reduction of plaintiff's judgment debt. It* would further appear that after this another creditor of tbe 1st defendant's, having a judgment against ist defen- dant, purported to seize another item of the property which was comprised under plaintiff's mortgage, when the present plaintiff beame the purchaser for Rs. 100. On affidavit of these facts the defendant moved the Dis- trict Court to enter up satisfaction of present plaintiff's judgment ; plaintiff opposed the motion, and defendants appeal against a dismissal of the motion with costs. It appears to me that we are not in a position to interfere with the order appealed against. It is not as though plain- tiff being mortgagee of a single item of land had simply bought the mortgagor's interest when sold under some other creditors' writ. The defendant's contention would then, I presume, have been, that plaintiff, having presumably acquired the mortgagor's remaining interest at the price of the marginal value over and above the mortgage debt, it would be inequitable were he allowed to recover the amouot of the mortgaee-debt and still retain the land, but in the present instance plaintiff has so bought the mortgagor's interest in a portion only of the mortgaged property still remaining unsold. Defendants did not ask for any inquiry, but simply for a declaration of entire satisfaction. To that, upon the materials disclosed, they could not in my opinion be entitled. I therefore think that this appeal should be dismissed with cOsts, leaving it open to defendants to- renew their apph'cation' in soeae other form. Appeal dismissed. Proctor for the plaintiff, Jf. W. Vanderstraaten. Proctor for the defendants', IP- P. Ranesingfie, ^Ih and nth October, 1883. Present — Clarence, J. D. C. ^ V. 8. T. Eamen Chettit Colombo, V- A. Bastian Silva and another 86,619. ) Ex parte The Queen's Advocate. Preference and concurrence — Fund in Court— Order of pay- ment— Property passing to payee — Fund ''Jixed." Claims of preference or concurrence in the proceeds of a levy can be brought forward so long as the money remains in Court, and no longer. Plaintiff levied a sum of money on a' mortgagee's decree founded on a''Special mortgage of his defendant's property, and on 12th October 1882 obtained an order of payment in his favour for the amount of the levy. The Government Agent refused to pay the proceeds to plaintiff, on the ground' that the Crown had a preferent claim to them in virtue of a debt due by defendant to the Crown. On jgtb March 1883, and subsequently, the Queen's Advocate moved for, and on 25th July ob- tained, an order for the payment of the money. Held, that the Q^ueen's Advocate's claicii to preference had been wrongly entertained, as the money must be regarded as having got home to the plaintiff at the date of the order of payment to him, and as being no longer in Court. In this case plaintiff obtained by default a simple money judgment against ths second defendant on 5th June iBSa, and against the first defendant on 22nd June 1882, for the sum of Rs. 500 and interest, due lipori a mortgage bond whereby the defendants had bound themselves jointly and severally. The latter judgment contained a declaration that the property specially mortgaged was specially bound and ekecntable to satisfy the judgment. Upon writ of execution issued the Fiscal levied a sum of Rs. 332.64, which he deposited in the Kachcheri on 7th and 28th September 3 882. Oil lath October, the plaintiff moved for and ob* t^ini^d an order of payment for the Rs. 332. 64, in part saiisfaCtiod of the judgment. On 19th March 1883, the 330 Queen's Advocate moved for an order of payment for the Rs. 333 64 which, it was alleged, had been seized in the hands of the Government Agent under the Crown's writ in D. 0. Colombo 183*. After several postponements, on aoth June 1883, the Queen's Advocate renewed his motion, filing a Petition of Intervention, which averred that the Crown had obtained judgment on ipth May 1882 against the defendants for Es. 3766.16, in suit No 1832, and pray- ed *o have the sum in deposit paid out to him. The plain- tiff having been heard against the motion, the Court after consideration ruled (on the assumption that the money was Still in deposit in the Kachcheri) that the Crown in virtue of its prior general legal hypothec over the propertv of its debtors, was entitled to preference over the amount levied, even if levied upon property specially mortgaged to the plaintiff ; and allowed the Queen's Advocate to draw the money in case it was still unpaid to the plain' iff. The Queen's Advocate took out an order of payment on 35th July. The plaintiff appealed. Withers for the appellant. Ferdinands, D.Q.A., for the Queen's Advocate, respon- dent. Cur. adv. vult. (nth October). Clarbnce, J. — It is agreed that the sum of money, about which plaintiff and the Crown are disputing, is the proceeds of plaintiff's levy under his raort- gage decree founded on defendant Bastian's mortgage. The Crown claims preference quoad the proceeds of this levy, claiming a legal hypothec in virtue of a debt due by Bastian to the Crown, for which the Crown got judgment on the a6th May 1882. Claims of preference or concurrence in the proceeds of a levy can be brotight forward so long as the money remains in Court and no longer. Now this money came into Court in September 1883, and on the 12th October the then Acting District Judge, on plaintiffs application, made an order for payment in plaintiff's favour. It is agreed by Counsel at the bar that the money never has in fact been handed over to plaintiff, and that the reason why it has not is that the Government Agent, on plaintiff's applying at the Kachcheri for the money, refused to honour the order of the District Court, on the ground that the 3Sl Crown had a claim against the execution debtor Bcsiian. The first record of any steps taken by the Crown in this <:a«e occurs under date the 19th March 18.83., when the Queen's Advocate is recorded as having made an application fur the monevt Nothing further ssems then to have been done until the 3istiMay> when that application was renewed. The matter was ultimately discussed on the 27th June» after five postponements, with the result that the District Judge made the order against which plaintifiE appeals. This is not a seizure by the Crown in execution, but a simple claim of preference, and the claim in my opinion fails, because the money in my opinion must be considered as having got home on 6he date of the order of payment in favour of plaintiff. After that date I regard the money as no longer in Court, although the Government Agent (as It seems to me wrongfully} refused to make the actual cash payment' Disposing of the matter upon this ground, it is unneces- sary for me to express any opinion on the question, whether in fact the Crown has, by virtue of the debt due to the Crown by Bastion., a legal hypothec ranking over plaintiffs mortgage. Un that question, and on the further questioa involved, viz. when Bastian'f debt to the Crown is to b« considered as having accrued due» I express no opinion* Set aside. Proctor for the plaintiff, F. Muttucomaru. Proctors for the Queen's Advocate, Loos i*f VanCuylenburg. tr6th October and 6th November,, 1883,. Present — Clabence and Dias,, JJ. D. C. ■\ The Qvbbn's Advocate Kandy, ^ ^bgyakun Eajakaruna Wahal* Mudianselago 89,1 10. ) LoKU Banoa and others. Principal and Surety — Continuing guarantee, revocation of, by death of guarantor— Lir^biity of guarantor's heirs- Negligence of principal obligor's employer. The 6rst defendant as principal, and the three other defendants as bis sureties,, were the obligors upon a bond conditioned for the da* 332 accQuoting by first defendant to the Crown for all moneys received by him in the performance of his office. The Crown now sued the first defendant and the heirs of the sureties' to recover an amount unaccount- ed for, being sums received by the first defendant for the four years 1878-81. Answer : ist, that no debt was due by the principal. The Court below found there was. 2nd, that the sureties had died before the defaults relied upon bad Jbeen committed by the principal. Held bad for not averring notice of such death to the obligee ; also not established by proof of such notice. 3rd, that the gross negligence of the obligee, in continuing for four years the principal's employment, when he had failed to account for the receipts of the first year, relieved the sureties from liability. It appearing that the sum unaccounted for, for the first year, was Rs. 3.66, Held, that the defence was not sustaineil. This was an action brought by the Queen's Advocate to recover from the first defendant, as principal debtor, and the secon.di third and fourth defendants, as his sureties, the sum of Gs. 2343.39 as diie upon a penal bond, dated 29th June 1874, for Rs- _5,940i given by the defendants (bind, ing their heirs, executors, adininistrators and assigns) in favour of Her Majesty, iti order to secure the due perfor. mance ^y the first defendant of his duties as Korala of .Maturatta. The libel averred that the first defendant had, in pursuance of his said duties, collected the commutation money for the Government share of the paddy crop's of certain fields for the four years 1878-1881, and bad failed to pay or account for the sum of Rs. 2,343-39- A decree "was prayed for declaring the property mortgaged by the bond speqlally. bpiind apd executab|le for the judgment. Judgment was entered by default against the first defendant and his wife the fourth defendant. The second and third defendants were dead at the time of action brought, and their heirs were added as parties to the record in their room, These heirs Ijled an Answejr, in which they denied the existence of the debt by first defendant, and pleaded that, the sureties having died before the acciual of the debt, they •were not liable to pay it j and that the obligee (the Crovrn) had been guilty of gross negligence in not calling the first defendant to account, and the sureties were thereby absolv- ed from liability. The Court below {A. 0. Latvrie, Judge) found that the debt was due by first defendant j that one of the sureties had died in 1876, before any debt existed, and the other in 18/8, when the debji was only Rs. 3 65, arid no breach of the obligation had been committed ; that this 333 gtnpunt wa; 90 small that there had been no negligence on the part of the obligee in not calling for an account ; that iq 1S79 ^^^ fi''^'' defendant owed Rs. 581.62, and shonid cer^. tainiy haye lieen called upon to account for that sum early, ii^ 1880, wbicl> was not done ; that, emboldened by impunity, the first defendant had in i88p kept back Rs. 1,636243, and was only suspended from office in i^^i after he ha4 collected Rs. 2 1.S6| for that year. The Cqurt held that " the negligence was not so great as to absolve the sureties if they bad been alive and to render inoperative the mortgage bond." Judgment was accordingly given with costs agaipst |he first and fourth defendants personally, and against th^ substitiited defendants (representatives of the deceased sure* ties) to the extent of making them parties to ibe decree declaring the mortgaged property (some of which the Court assumed to belong to the siireties) specially executable fPF the debt. No costs were payable to or by the substituted defendants. The following authorities were referred to in the above judgment •. — Instil., 3 ao. a 5 Dig., +6 i. 4. 1 j Smith's 'Mercantile Lam, Chap xi, section ?, 9th Ed p. 474; Brad' pury v. Morgan (1) ; Qffbrd v. Davies (a) ; Btll's Bommen. taries, Bk. iii, Pt. i. Chap. 3^3; Marshall's Judgments, P Si'^' The first and third substituted defendants appealed. VanLangenberg, for the appellants— There is not snS5ci> ent proof (as the Court below seems to have felt) of the extent of first, defendant's debt. The evidence is only that obtained by summing up certain indorsements made by the first defendant on the counterfoils of receipts granted by him. These entries may be admissions against firsi defen- dant hjgiselfj bijjt are certainly insufficient as against the sureties, who are entitled to demand strict proof of their principal's indebtedness. Again, the sureties' death, revoked the guaiaiitee they bad given of the first, defendant's deb^ Bradbury v- Morgan (3), relied upon by the Court belovir to the contrary, has been questioned and its authority con> siderably weakened in Harriss v. Fawcett (4), which was (i) 31 L. J Ex. 462 ; I H. & C, 249. (2) 31 L. J. C. P. 319 ; " C. B. (N. S.) 748. (3) 1 H. & C. 249- (4) L. R. ijElq. 311. 334 affirmed in appeal (j). Ooulthart v. GUmentson (6)' is a later case, decided ia 1879, to the same effect. The Crown's continaing to employ the first defendant, afier his defal. cations and withont the consent of the sureties, discharges the sureties from liability to make ^ood any loss arising from the dishone<'ty of the first defendant during the subse- quent service. Phillips v, Foxatl (7) ; Sanderson v. Aston (8). A surety is released by the creditor giving the princi. pal time to pay, without the surety's knowledge ; and it is only equitable, as put by Sir Charles Marshall (9), that '' unnecessary delay on the part of the creditor, in com« pelling fulfilment by the principal, inasmuch as the oppor« tunityof recovering against the principal may thereby be lost, operates as a release of the surety and throws the risk of ultimate failure to obtain satisfaction from the principal on the negligent or indulgent creditor.'* Ferdinands, D- Q. A., for the plaintiff, respondent — The evidence of debt is sufficient to bind the sureties. An account delivered by a principal charging himself is evidence against his surety. Lysaght v. Walker (10). It is neither alleged nor proved that the obligee had notice of the sureties' death. As to negligence, the mere giving of time to a principal will not discharge the surety (11). and the surety is not discharg- ed by the delay of the creditor in suing. Eyre v. Everett (12) J Trent Naiigation Co. v. Hwrley (13). Mere negli. gence, even if gross, on the part of a creditor, unaccompanied by positive acts of concurrence in the defalcation of a debtor, will not discharge the surety, and is no ground of equitable defence. Madden v. M'MuUen (14). And here the court below finds there was no negligence. VanLangenlierg in reply. Cur, adv. vult' (6th Noyember). Clakbocb, J.— This, so far as con* cerns appellants, is an action upon a Guarantee. By the obligation declared on, which was made in 1874, the rst defendant Loku Banda, as principal, and three other obli- (5) L. R. 8 Ch. App. 866 (6) L. R. 5 a. B. D. 42. (7I L. R. 7 a. B. 666 (8) L. R. 8 Ex. 73. (9) yudgmenls, p. 53*. (10) s BlighN.S. (11) Van der Linden, Imtit., Bk. i, sect. 10, § 6 ; Henry's Transln. 211. (12) 2Russ. 381. I (13) 10 East 34, I (14) 4 L. T.,N. S. 180. p 211 335 gors, as sureties, purported to hypothecate certain lands. The condition of the obligation was, thai Loku Banda, who had been appointed as Acting Korala, should whenever re- quired duly account for all moneys coming to his hands as Korala. The libel averred that £oA» Banda received on account of the Crown certain paddy rents of the years 1878, 1879, 1880 and 1881, and thaS he had failed to account for the moneys so received, and was thus indebted to the Crown in an amount of Rs. 2,343.39, for which sum plaintiff asks for judgment against the obligors, and for the usual mortgagee's decree. The Fiscal having reporled that two of the sureties, Kaiu Banda and Punchirala, were dead, the present appellants, their heirs, were by amendment sub^ stifuted as parties defendant in the room of Kalu Banda and Punchirala- So far as concerns appellants, the judg- ment of the District Court is a decree declaring the lands mortgaged by the obligation specially bound and e&ecutable for a debt of Ks. 2,343.39, It is a remarkable circumstance, that although the deed on which plaintiff founds purports to mortgage siitty four items of land, it is completely silent as to the title to and ownership of the property mortgaged. Four obligors, the principal obligor and three sureties, purport to mortgage these sixty four pieces of land. Whether they were all jointly entitled, and if so in what shares — or whether some of the lands belonged to the principal obligor and others to this or that surety— as to all this tbe mortgage deed is comi* pletely silent. It is to be supposed, since appellants have considered it worth their while to appeal, that some of the mortgaged lands belonged to the obligors whom they repre- sent : if that be so, and if appellants succeed in establishing their defence to the action, an inquiry will be necessary to determine which are the lands to be excluded from the ope< ration of the mortgage decree. The defence set up by appellants in their answer is con. tained in these pleas : — First, appellants deny that " first plaintiff" (a clerical error, probably, for " first defendant'') is indebted to the Crown at all. On that issue the learned District Judge has found upon the evidence in favour of the Grown, and it has not been contended in appeal, that there is any reason for disturbing that finding. Secondly, appellants aver that Kalu Banda and Punchirala died before " the alleged defalcations," and thereupon appeL 386 ladts state, as a coaclAsion of law*, that " the Crown has no claim against these defendants, as representing the Estates of the said deceased.'' It appears that Kalu Banda dieid' in August 18781 and Punchirala in 1876,' and that the moneys for which the principal obligor has failed to account to thd Crown are due— Rs. 3.66 in respect of the year rSyS;' Rs. 581.62 in respect of 1879, ^s- ii^^S^ 24'! in i'es|iedt of iSSo, and Rs. 2i.86§ in respect of 1881. tbeyear in which' he was dismissed from office: so that the defaults in respect of which these appellants are no«r sued occurred after the death of the sureties whom they represent. The Guarantee' sued on is a continuing^ Guarantee'. It is not suggested that* any notice was given to Loku Banda's employers of the deiathpf the two sureties. Kalu Banda and PuncMrala, and without entering upon any question as to what might have' been the case had such notice been given, I am decidedly of- opinion that this hypothecation by way of Guarantee was not terminated by the Guatantors' death, of which no notice was given to the Employers. Thirdly, appellants have pleaded " that the Grown has " been guilty of gross negligence in allowing the ist defen> " dant to continue the collection of taxes for four consecu' " live years, when the accounts of the ist year were not " closed," and " that by reason of such negligence the de- " fendants are relieved from the obligation of paying foi' any " alieLjed defalcations of the first defendant.'' This, it will be observed, is a very different kind of plea from the plea' which was upheld in Phillips v. Foxall (15)- Defendants say that they are absolved by the negligence ol Lokit Bandies employer in having continued Z>9ia £a»c{a in his employ^ ment for . four consecutive yciirs when the accounts of the' first year were not closed. 1 he four years here referred to' appear to be the years 1878, 1879, 1880, 1881. Duriug the year 1878 Loku Banda failed to account for the trifling sunof of Rs 3:66. I certainly can see no ground on which the conduct of the Crown in continuing- Lokii Banda in office because h6 h^d not accounted for Bs. 3.66 can be consider* . ed as material for the exotieration ot his sureties. In the year following, ia i8jg, Loku Banda failed to account foi' Rsi j8i.6i and was still continued in office, which led up! to his default of nearly three times as much in 1880. We need not speculate as to whether ajipellants could have founded a successful contention on the continuance of Loku (15) L, R, 7 a. B. 666! 33«7 Banda in office aftet his default of 1879 without notice to the sureties, because appellants have not in their plea set up any such contention. We cannot go outside the language of the plea. For tliese reasons it appears to me that, there being, no defence pleaded which avails to esoaerate appellants from the Guarantee, their shares in the hypothecated lands, what^ ever they may be, are rightly decreed to be bound and exe- cutable. As the Queen's Advocate on his side has not appealed upon the question of costs, it simply remains for us to dis- Oiiss the appeal. DiAS, J., concurred. Appeal dismissed. Proctor for the plaintiff, f. B. Siebel- Proctor for the substituted defendants, Edwin Seven, iSlh and 3 th November, 1883. Present — Bubnside, C. J. P. C. -i F. W. O. MODDER latticaloa, > v. 19,718. J V. MUTTtJK.UTTir. yudge, interest of —Prosecution at instance of the Court. Upon a charge of theft coming on for trial against deFendant in the Police Court, the complainant was absent. ' Ttie Magistrate dismissed the charge, but (consideiing the charge too setious to be dropped) direct* ed the Police officer attached to the Court to present a fresh plaint in his oirn name against the detendant. Upon this new plaint the Court tried and convicted the defendant. The Supreme Court, upon appeal by the defendant, quashed the proceedings, holding that the Magistrate, having, identified himselt with the prosecutor, had rendered himself incapable of dealing with the case as a judge. This was an appeal by the defendant agaioist a coavictioa and sentence of the Police Court (P. W. Cmolly, Magis- trate). The facts sufficiently appear in the judgment of the Supreiiie Court. Vanlangenhe^g {Weinman with him) for the defendant] appellant. Cur. adv. vuU. 338 (50th November). Burssidb, C. J.— In this case a complaint was at first laid in P. C. Case No. 19,701 by the owner of a pieqe of cloth against the defendant, charge ing him with theft and with unlawfully receiving the cloth knowing it to be stolen. The case was fixed for hearing on the a6th October. It was called on that day, and the de- fendant was present, but complainant was absent. The Police Magistrate then very properly recorded that a charge of that nature should not be allowed to drop ; and what he should have done was to have adjourned the hearing and to have issued process conapelling the complainant to appear and give evidence. In this way he woulil have been free to have dealt judicially with the case- Instead of doing this, he disoiissed the case, and then directed the Police Sergeant of his Court to file a plaint in bis own name against the accused charging him with theft. The Sergeant of Police did as he was directed, and the present plaint was lodged, which was heard by the Magistrate himself, and upon which he convicted and sentenced the ax:cused. I cannot support the conviction. The Magistrate by directing the prosecU' tion identified himself with the prosecutor and has rendered himself incapable of dealing with the case as a Judge. He would have been placed in a very di£Scult and embarrassing position if it had turned out that the charge was false or frivolous or vexatious. The officer acting under his direc. tions would have fallen back on the instructions of his superior, and the Magistrate would have had the delicate task of deciding how far he himself was responsible for the penalties of a vexatious prosecution. On the other hand, the accused would have had just reason to complain that his rights against the complainant were prejudiced by the part which the Magistrate had taken in. directing him to prosecute. The Police .Magistrate has evinced a very praiseworthy desire to prevent the very improper practice of compounding offences without the permission of the Court, but I cannot too earnestly impress on Magistrates the absolute necessity of keeping the functions of judge and prosecutor distinct. Their proceedings as judges are open to the grossest objection when the essential difference between the two duties is not regarded. Proceedings quashed. 333 i:,ihand icth November and 12th December, 1883:. Present— BuRNSUiB, C, J. P. C. ■» GoXINDAI Halduininulla, ? v. ■ J Karpbn. Police Court -Practice -Pretentalion of filaint by eom- plainanf in person—Proctor, right of, to appear before plaint entertained —Ordinance 18 of iSjt,, section, 2. A plaint in a Police Court mast br presented to. the Magistrate by the complainant in person, and not through, a proctor,, unless the Magistrate dispenses with the personal appearance of the complainants The plaint in this case charged an assault upon the com - plainant, and was presented to the Pohce Magistrate by Mr. 3^. D. Bartholomeusz .{a^proctoT practising in the Hal' dummulla Courts) acting as proctor foe the complainant. The Magistrate (L O.Pyemont) indorsed the following order upon the plaint : — This plaint is submitted by Mr. Proctor Bgrthaloveuiz. I decline tp accept the plaint, as I hold that a proctor cannot appear in a Police Court case until the plaint has either been accepted or rejected by the Court. Complainant should present the plaint. The complainanc appealed*. Wendt, for the appellant — .. The Magistrate does not record that the complainant was not in Court and ready to be examined if necessary, as re^ q,uired by Ordinance 18 of 1 871, sect. » ; and the plaint dis- closes an offence cognizable by a Police Court) being in the form prescribed by Ordinance 18 of 18S1. A party, in the ab< sence of special provision to the contrary, would be entitled to professional assistance- The acceptance and rej^^ction of plaints is a proceeding in open Coart,.as sect. 2 of the Ordi^ nance of 1871 does not direct that this shall take place in channbers. Again., information of the date fixed for the hearing of the co-nplaint is to be givento " the complainant, Or his proctor or advocate" (Ordinance i8 of 1861, .sect..j) ; and under section 13, which provides for the dismissal of the charge in case " the complainant shall not appear" at the hearing, it has been held that appearance by proctor is sufiBcient. P. C Pasyala 9.913 (i). Moreover, where the (I) Civ. Min, of S.C, loth August i88i.. 340 plaint is drawn and presented by a proctor, one of the chief reasons £or examining the complainant no longer exists,. viz. the possibility that he does not uuderstand the nature of the charge he is making. See the remarks of Cayley, C. J., in P. C.^aff-na Lr. A (f). So the provision as to examining the complainant has been held not to apply to a case in which the plaint is signed by the Queen's Advocate. P. 0. Colombo^ 3,1 16 (a). Cur. adv. vult. (20th November). The record wts sent down to the Court below with a request to the Magistrate to state whether, at the time the proctor presented the plaint, the complainant herself was present. The Police Magistrate replied that " the complainant was not before him when the plaint was presented to him by her Proctor Mr. BarthoUy. meusx" An affidavit of Mr. Bartkolomtusx was forwarded with this letter, in which he deposed that when the plaint had been refused by the Magistrate, he (the proctor) had informed htm that the complainant tierself was standing outside the Court and could be called ia for examination j but the Magistrate required the complainant alone to present the plaint, and refused to have the proctor or allow him. to represent the complainant m any way. (i.atb December). Burnside, C. J. — The Magistrate was, in my opiaion, right in not accepting the plaint from the Proctor, the complainant herself not being before the Court. In Police Court cases a complainant may no doubt be advised, and to a certain extent be represented, by a Proctor ; but a Proctor would have no right, except in the presence of the complainant, to. present a complaint on his behalf. The complaint is a personal one. The complain- ant's appearance before the Court, except the Police Magis- trate chooses to dispense with it, should be personal ; otherwise the Magistrate is prevented from doing that which by law he is authorized to do, i.e. examine the com- plainant on the presentation of the plaint. It ws)s not the duty of the Magistrate to call the complainant in for exami- nation : and until the Magistrate had accepted the plaint there was no proceeding before him on which the com- plainant could be represented by a Proctor. Affirmed'. U) 4 S. C. G. 36! j (J) 4 s. C. C. 120. " 341 Jth September, xyrd: Octoher, and 30th November, 1883W. Present — Burnsid.b, C. J., and Claebncb, J. D. C. Y Arbp Colombo, > 85,440. ^T. D. D. C. Y Arbpun Ahama,t Colombo, J V. Martinus and another. Jfurisdiction — District Court or Ooiirt of Requests— Rs^ ioo> amdintercst — Practice in commercial trmtters. — Costs- — Proctor^ status of, independent oj client.. Ad action to recover Rs^ loaand interest thereon^ must be brought in the District Court. The Court will follow the Enerlish practice in commercial matter;!,, and will not give interest on claims {or goods sold and delivered, on account stated, and such like, unless a specific agreement to pay in- terest be shown. Where a proctor has appeared in the case simply as proctor for the plaintiff,, and has signed plaintiff's petition of appeal against an order directing plaintiff's prontor to pay the defendants' costs, such proctor basno status to appeal on his own account against that order. The plaintifiv and his proctor,, filed in. th^s case separate petitions of appeal against an order of the District Judge- (T. Btrunck), casting the plaintiff's proctor in the defendants* costs. The facts are sufficiently disclosed in the judgmeat of the Appellate Ooiurt. Browne for the ptajntiff^ a>ppeIlaQt- Lay'ird for the plaintiff's proctor, appellant. Dotnhorst fov the defendants,, respondents. Cur. adv. vuht. (30th November).. The judgment of the Court wa» delivered by GiABENCB, }, — The plaintiff's libel claimed Rs. irtk for goods sold awi delivered and on the common, money cou-Qts. Defendants, who are Executors, pleaded the general issue. At the trial the plaintiff produced a docu- ment which the District Judge accepted as genuine, and as establishing an account stated between plaintiff and defendants' testator to the extent of Rs. ico indebtedness. The additional Rs. ro was claimed as money len^, but plaintiff offered no proof whatever in support of that claim. Thereupon the District Judge gave plaintiff judgment for Rs. 100 with interest at 9 per cent per annum from date of action, and considering that the action for Rs. 100 and 34,2 interest should have been brought in the Court of Requests, and suspecting that the U.S. lo item had been improperly added lo found District Court jurisdiciion,. he ordered de- fendants' costs to be paid by plaintiff's Proctor. Plaintiff's Proctor presented a petition of appeal on bis own account, as proctor, against that order» and also pre- sented another petition of appeal, signed by him as plaintiff's proctor, purporting to be the petition of appeal of plaintiff against the order. There is no appeal by the defendants against the judgment Both the appeals before us seek to relieve plaintiff's Proctor of defendants' costs. If the effect of that would be to throw them on the plaintiff, we could not entertain the question in the absence of distinct assurance satisfying us that the Proctor who has signed both appeal petitions had placed himself at arm's length from plaintiff. But in my opinion plaintiff's Proctor ought to be relieved of defendants' costs without throwing them on plaintiff, and therefore we may entertain as plaintiff's appeal the appeal petition pre< sented by him as the appeal petition of plaintiff.. The appeal presented by him on his own account ought not to have been presented,, since so long as he appeared in the suit simply as proctor he had no status independent of plains tiff. That appeal must simply be rejected. There being no appeal by defendants against the judg* ment for Rs. loo and interest, we mast take it that that judgment is right, and I may observe that were that matter open, I should not be prepared to say that judgment was wrong in giving interest. We must, in my opinion, follow the English practice in commercial matters, which does not allow a plaiutiff interest on claims for goods sold and delivered, account stated,, and the like, unless a specific agreement to pay iaterest is shown ^ but in this case the document which the District Judge accepted as proving the account stated contains mention of interest. The question, then^ simply is» whether it would have been within Court of Requests jufisdiction to decree pay- ment of interest over and above the Rs loo. There is at any rate a judgment giving plaintiff Rs. i03 and iaterest on Rs. 100 at 9 per cent per annum from the institution of the action to the date of the judgment. That is a judgment for more than Rs. loo. In my opinion, therefore, the Court of Requests had no jurisdiction, and therefore, irrespective of the Rs. lo, the 34,3 action cannot be said to have been imprnperly brought in the District Court. There is, therefore, no valid ground for giving costs to the defendants. Bat in the complete ab> sence of explanation of the insertion in the libel of the claim of Bs. 10, which no attempt was made to substantiate, I do not think that we should take upon us to interfere with the District Judge's order to the length of giving costs to plaintiff. I think that the order in appeal should be varied by ex- punging the order decreeing plaintiff's Proctor to pay de- fendants' costs, and in lieu thereof decreeing that plaintiff and defendants respectively bear their own costs^ Whether plaintiff's Proctor is entitled to recover costs from his client, is a question not now before us. Ito costs to be given of this appeal. fkried. Proctor for the plaintiff, E- F. Perera. Proctor for the defendants, ^ Ohhnus. 6th and 12th December, 1883. Present — Dias, J. C. R. ^ T. Amaris Appu )lombo, > v. 2_50. J W. Sadris Pbbera and others. Husband and wife —Surviving spouse giving bond for debt qf deceased spouses-Liability of land belonging to the com- munity to be sold under judgment on the bond — Children of the marriage, rights qf. The surviving spouse of a marriage cnntracted in the community of goods had (without the consent of the children o( the marriage^ granted a personal debt-bond for the amount of principal and interest due to the same obligee upon an older bond of the deceased spouse. Held, that the entire property of the community was liable to sale in execution uf the judgment obtained upon the survivor's bond, though the children of the marriage were no parties to it, or to the action founded upon it. The purchaser at such sale takes an imperfect title, subject for its validity to proof on his part that the obligation of the survivor had been incurred for the purpose of paymg off the debt of the community. Ederemariesin gam's Case (1), and Z>. C. Caltura 17,064(2), speci- ally considered. (i) Vandecsuaaten, 264. | (2) 3 Lorenz 235. 344 TMs was an action Fof a declaration of title to, and eject- ment of the defendants 'from, certain land purchased by the plaintiff in execution of a judgment passed in G. R. Odombo 39,756, apon a debt bond dated itSth March 1878 executed in favour of the plaintiff in that suit by his defendant, Nonohamy. The Fiscal seized and sold (and the present plaintiff bought) in execution of this judgment, the land in v 26, 949. J L. O. Bon Andris. Tarty paying off mortgage— Succession to rights of mort- gagee — Necessity for cession of action. Ferdinands for the defendant, appellant. Browne for the plaintiff, respondent, (24th June iS7_5). ^^ Curiam — The D-istrict Judge has not stated any reason for giving judgment in plaintiff's favour ; bat the plaintiff's Counsel's contention before the Court is that his client is entitled to judgment as being placed in the position of the mortgagee, whose mortgage he paid off in 1872. But no transfer of the mortgage or cession of action in favour of the plaintiff has been proved and it has been decided by this Court that such transfer or cession is necessary to entitle a person paying off a mort- gage debt to the rights of the mortgagee. Judgment of 3,3.rd January 1875 ^^' aside, and plaintiff nonsuited with costs. Present— Anderson, A. C. J., Stewart and Clabencb, JJ. D. C. 1 A. E, Sayadu Mahammado Badulla, > v. adulla, > 3,149. J 33,149. -' A. A, Assan Alyar. Stranger paying off mortgage — Bight to s land in mortga- gee's shoes— -Necessity for notarial assignment— Ordinance J of 1840, sect. 2. Plaintiff declared upon a parol agreement to buy land of the defendant, in pursuance of which plaintiff had paid defen- 850> A-ppenduc A. dant consideration) which it was now sought to recover as- defendant had failed to convey. Part of the money paid by- plaintiff had been applied to disc^rging » mortgage on the lands, and plaintiff prayed a decree declaring the lands- specially executable for his judgment. Judgmeat was- entered by default, and the lands sold. These lands had been mortgaged to SupreniaTiianr who assigned his interest by deed to Peria Kwritppen, to whom the lands were also afterwards secondarily mortgaged. With a view to his purchase of the lands under the agree, ment, plaintiff paid off Pma Kan^tpen, but got no cession of action or assignment of his rights. Before this payment defendant had made a tertiary mortgage of the land to Ahulaker, who assigned it by deed to Annamalai. Anna, malai now contested the plaintiff's right to draw the pro- ceeds realised by sale of the laads> The District Judge (0. £. D. Fennycuick) held that, in view of Ordinance 7 of 1 840, plaintiff was not entitled to priority, but that " as a matter of plain right and wrong, Annamalai should not be given preference^ as he knew that the mortgage assigned to him was only a tertiary one and> that Peria Karuppen's< two bonds had preference." Plain" tiff was therefore allowed to draw the proceeds, and Arnia- malai and his assignor appealed. Ferdinands for the appellants. Ondaatje for the plaintiff, respondent. (17th November 1876). The judgment of the Court was delivered by Stewabt, J.— Set aside, and it is ordered, that the claim of the appellants Annamalai and Aiulaker to be paid in preference by virtue of the mortgage to the latter and the assignment thereof to- the former, he allowed. To entitle plaintiff to stand in the place of Pieria Karuppen- it was essential that he should hav« obtained a transfer of' the mortgage to Peria. Karuppen or a legal cession of Pm<» if ocB^e*'* right of action, neither of wliieh; the plaintiff possesses. See the judgment of the Supreme Court ia A C. Matara 26,949, a4th June 1875, 351 ■Appendix B. *{To 'Cannen Assary v. Arunasalem Assary, ante p. 43). D- C. ^ A. L. F. Moorogappa Chetiy Colombo, > V. 631498. J Simon de Silva, Stamp, cancellation, of — Adoption of stamp -vendof's date' BbrwioK) D. J. — The first question the Court has to ^decide is whether when a person gives another his sig. nature to a stamped document, authorising him to fill it •up as a Promissory Note for a certain sum, he may afterwards repudiate what is done in accordance with his own authority and directions! and deny that there is a valid obligation. For the decision of this question it makes no difference whether the document so authorised to be so creat-ed be a Promissory Note or some other species of obligation, such as a Bond or a Cheque. We liave frequently, for instance, heard of this kind of autho- rity to fill up blank Cheques. There is no plea or evidence in this case that the plaintiff 'abused the power deputed to him by filling Up the document of obligation for a larger amount than he had been author rised to insert — no plea or evidence of any fraud or impo. sition practisea-~aad no plea or evidence of want of -consideration. I am of opinion that a man is not entitled to repudiate an act of this uature, done by his own authority, and in precise compliance with that. And that when, as in this case, the blank cheque or note was given for a debt actually due, a man is guilty of a fraud and imposition on his creditor, who gets his forbearance by the indulgence of an intended Promissory Note, with the intention of abusing that for. bearance by turning round and , disputing its validity. I hold that the document creates a valid obligation. The other questions turn on the technical requirements to the validity of a Promissory Note under the iStamp Or- dinance : that is to say, have the stamps been duly cancelled by the person on whom the Ordinance casts the duty of doing so, viz. in this case, by the defendant ? On this part of the case I have merely to repeat the words of my judg- ment in case 61,495 (23rd October, 1873) in which I held that when a note is executed on the day which the stamp- Tendor's memorandum on the stamp shews to have been 352 Appendix B. the date of the sale of the stamp, the maker may cdopt the writing he finds alread/ on the stamp and need not repeat the entry of the date, and multo magis when he cannot write, as is the fact here, where the maker can only sign by a mark, and cannot write a date. He cannot even cipher. In all other respects the facts are identical. The judgment in 62,495 is appended and is to be taken as herein incorporated. Judgment will be entered for the Plaintiff with costs. Note.— Defendant's counsel moved to be allowed to amend his pleadings by pleading fraud and want of con. sideration— which, being objected to by plaintiff's Proctor, the Court disallowed. Judgment in No. 62,495. (a3rd October 1873). Berwick, D. J. — It is objected to the Promissory Note sued upon that it is invalid, inasmuch as it has not been duly stamped at the time of execution, and that it cannot now be stamped. The first question that arises is a general one applicable to all ducu^ ments requiring stamps, namely, whether in order to being deemed '' duly stamped", it is necessary that the date of cancellation should be written accross the stamp, (i) by the very hand of the person who cancels it by writing his name or initials or mark thereon; and (a) simultaneously with his doing this. In the present case the stamp bears on it the date " 20th Novr. /7a" written by the stamp- vendor : the document to which it is affixed was executed on the same date : and at the time of execution the maker of the Note simply wrote his name across the stamp without adding (or repeating) the date of doing so. It is contended for the plaintiff that he adopted the ''true date" he found already on it. The words of the 9th section of Ord.'No, ^3 of 1871 which apply are as follows : — " Aii instrument is not to be deemed duly s'amped unless the affixed stamp be of not less than the proper amount of duty required by this Ordi- nance, and unless the person required by this Ordinance to cancel the adhesive stamp affixed to the instrument cancel the same by writing or marking in ink, on or across the stamp, his name or initials, or the name or initials of 353 Appendix B. his firm or principal, together with the true date of his so writing or marking, so that every stamp may be effectually cancelled and rendered incapable of being used for any other instrument." This clause (with some modifications) was copied from the 24th section of 33 and 34 Vict. c. 97, which however had the very essential addition, which our legislators (for what reason I know not) have omitted, '■ or unless it is otherwise proved that the stamp appearing on the instru. ment was afHsed thereto at the proper time ;" words which, though they refer to the various subsequent provisions for the different times when different instruments must or may be stamped, also seem to me to shew that the Euglish Legislature did not mean to make the dating of the cancel- lation imperative. (1 ) I will first dispose of the question, whether the date of cancellation must be written by the very hand of the person who writes his name, initials, or mark across the stamp for the purpose of cancelling it. Now, when I sign or seal a document or deed which a Notary or clerk has previously written out and dated for my signature, the dating and every word in it becomes, by my signing, as much my act as if I had written out every word with my own hand, although in truth the penmanship was that of a clerk. This is so obvious, that it is difficult to imagine, (and would require very conclusive evidence and unmis" takeable language to shew) that the legislature intended more from the cancellor of a penny stamp, than the law re- quires from the grantor of a solemn deed ; and so, it is a perfectly reasonable presumption that the enactment ia question did not mean to insist that the date, like the signature, need be iu the parties' own handwriting, although such may be the strictly grammatical construction of the sentence. But the context and the very reason of the case clearly shew that the strict grammar must be disregarded and that the other is the just interpretation. For the enact- ment contemplates the case of persons who are unable to write, as it was to be expected that the Legislature would do in a country where a comparatively small number of peasant proprietors and other persons who have constantly to deal with stamped documents, can sign their names- People are therefore required by the Ordinance to write or mark their " name or initials," which (though a somewhat inaccurate expression) evidently means that people who 354 Appendix B. cannot write their name or initials are to sign by making their marks. The coupling of the two distinct verbs io the phrase " write or mark'' necessarily implies distiact mean- ings or shddes of meaning, and it mast be taken that the liberty to " mark" is for thosa who cannot " write" and who can only sign by a mark. But sucU persons are not likely to be able to write or cipher a date, which must therefore in their case be done by others than the persons required by the Ordinance to cancel by their marks the stamps on documents they sign, issue or deliver. The intention and true interpretation may be ascertained from another section of the same Ordinance, viz. sect. 13 ; or at all events it aids this interpretation. This is the section which is intended to enforce the due stamping of instruments by the sanction of a pecuniary penalty : aiad all that it requires is that it shall be the duty of every person signing as a party, or issuing or delivering any instrument &c , to see [which evidently means to take care] that the stamps ar<3 distinctly [not " duly"] cancelled before he signs, issues or delivers such instrument. It seems to me tha: an indict, meat framed on the only section which defines a specific pecuniary penalty for breaking the substance of the rule, vizt. the cancellatioQ of the stamp before execution or delivery ot the insrrument, would be bad if it charged the accused with not filling up the date with his own hand. (2) As regards the necessity for the date of cancellation being noted at the time of cancellation, — there is nothing either in the £nglish Act or the Ceylon Ordinance whicti expressly requires this (although the 13th section of the latter requires that the stamps must be cancelled betore the signature, issue, or delivery of instruments, on pain of a pecuniary penalty for default). They simply provide that an instrument shall not be deemed " duly stamped" until it has been cancelled in the manner provided ; and assum- ing the insertion of the true date of doing so to be a part of the requisite cancellation, the purpose of the Ordinance is satisfied by the trae date being written at any time, whether that purpose be to aid in preventing the same stamp being subsequently used for another document, or whether it be to indicate whether the stamp was affi&ed " at the proper time." For either of these purposes it cannot matter what interval of time elapsed between the signing and the dating : only, till the true date is there, the stamp is not duly can- celled. Especially, for either of these purposes, it cannot 355 Appendix B. matter that the date of cancellation was written some minutes or some hours previous to the writing of the ini- tials or signature ; i.e. whe'her unico contextu with it, or otherwise. Mere simuUaneousness is. therefore, I think, not necessary : at all events, not if the date was inserted or adopted wiih the object of cancellation ; and this last re. mark suggests the only real difBcully I have on this part of the case- Here the date was not put on the stamp unico contextu with the cancellation, but for quife a different object, vizt. by the stamps vendor in order to shew the date of sale, which happened also to be the very date of making the instrument and the true date of cancellation ; and the difB-* culty simply arises from the circumstance that in the event of the stamp being subsequently used on another document, either by the same person or by a person bearing the same name or initials as he who cancelled it, his fraud on the revenue would not be apparent on the face of the stamp itself, for the stamp-vendor's date would stand for its ori' ginal purpose only, and the second user might add a new date of use to those initials which he found corresponding with his own. In this view, mere initialing, without a date distinct from that pu^ by the stamp^vendor would not effect what the Ordinance desires, namely that every stamp ' may be rendered incapable of being used for any other instrument." It, was perhaps on this account that the alternative provision ia the corresponding clause of the English Act (which appears to admit of other proof) was omitted in our Ordinance- But on the whole, seeing the remoteness of this contingency, which indeed involves that there be not onlv identity in the name or initials, but that the ordinary handwriting and signatures of two persons should be undistinguishable ; seeing also the weighty con- siderations on the other side, the universality of the rule which enables a signatory to adopt that which be fields ready written and subscribes to ; that, moreover, in this case being the " true date" of his own signature ; seeing the absolute impossibility that " marksmen" should write the d^te with their own hands j I might alnjost add, seeing the grsat inconvenience to the public of having, as in my own case, constantly to date as well as initial 50 to jo stamps on a single official or judicial document, an incon- venience which it is difficult to think the legislature con> templated ; and keeping in view that enactments of this 2B& Appendix B. kind should be construed so as to press as little as possible on the subject, consistently with their plain and rational interpretation, and without doing manifest violence to them j — I incline to think that in a case such as this, where a man adopted and subscribed to that " true date" which be found on the stamp when he cancelled it by signing bis name across it on the actual day on which he executed the in^ strument, the stamp was " duly cancelled" within the intention of the Ordinance. Another question raised in this case is, whether the Promissory Note may now be stamped at the trial under sections 38, 39, and 40, if held to be insufficiently cancelled. Strictly speaking the above finding makes it unnecessary for me to give a decision on this point at present, but it is better that I should do so now, as it will save the expense of a second appeal in the event of the Supreme Court taking a different view from this Court on the other ques- tion, and will enable the whole cause to be finally disposed of at once in each Court, for the stamping now would practically end the case, there being no defence besides that founded on the Stamp Ordinance- I am of opinion that even if the Note has not already been duly stamped by proper cancellation, it may now be stamped under sections 38, 39, and 40 by order of the Judge and then given in evidence : whereupon judgment would necessarily follow for the plaintiff. Under these sections all documents tendered in evidence at a trial may be post-stamped by leave of the District Judge, provided only that the instrument -in question " is one which may legally be stamped after the execution thereof." These words, however, I think contemplate instruments which, though they may bejegally stamped by the Commissioner under certain circumstances and within a certain time in virtue of sections 23 and 36,.cannot other, wise be legally stamped after execution. The question here, therefore, is whether a Promissory Note more than 14 days old may legally be stamped after its execution. Now, the 8th section, which provides that no instrument " shall be pleaded or given in evidence or admitted to be good, useful or available in law unless it is duly stamped,'' does not invalidate or render void, though it suspends the operation of, an instrument : the invariable construction of similar English provisions having been that the word " un- less" means merely " until." But until the recent Ordi- 357 Appendix B. nance No. 23 of 187 1, Promissory Notes as well as Bills of Exchange stood here as at home on this peculiar footing, that they were absolutely void if not stamped at the time of their being made (or within 14 days, in case of urgent neces- sity), and could never be subsequently stamped so as to be made available in law for any purpose wl^atever. This was provided for in the previous Ordinance 11 of 1 861 by the words at the end of sect. 15 : " No person who shall take or receive from any other person any such Bill, Draft, Cheque, Order, or Note as aforesaid, either in payment or as a security, or by purchase or otherwise, shall be entitled to recover thereon, or to make the same available for any pur- pose whatever."' There is. a similar clause in the new Ordinance, but with this difference, that either by actident or design (I cannot say which) ihe word Note is omitted, and the question connes to this, Can the Court supply the omission J or, Is a promissory note, identical with, or intended to be included in, any (and if so in which) of the things described as " bill of exchange, draft, cheque, or order," in the a4th clause (art. 3) of the new Ordinance ? A Promissory Note is a very different thing in its nature and some of its legal incidents from a Bill of Exchange, and no lawyer would, intentionally confound them. Indeed it was not contended that a Bill of Exchange is a Promissory Note. But it was argued by the learned Counsel for the defendant that a Promissory Note is comprehended in the term "draft." If so it is contrary to the plain meaning of the term. Drafts and Cheques are identical with liills of Exchange : they are directions to a third person to pay money, but not so are F'romissory Notes, the English Act has closely adhered to this distinction j for sect. 53 and sect. 54 (of 3s and 34 Vict. c. 97) provide that " except as aforesaid" (the exception referring -to the case of an instru.> ment bearing an impressed stamp of sufficient amount but improper denomination) " no Bill of Exchange or Promis- sory Note shall be stamped with an impressed stamp after the execution thereof ;" and that a person who takes or receives such " bill or note," not being dtily stamped,'" shall not be entitled to recover thereon or to make the same available for any'purpose whatever"; and Sections 48 and 49 respectively' define the terms " Bill of Exchange" and " Promissory Note" for the purposes of the Act ; the otie as including draft, order, cheque, and letter of credif, and documents entitling a person to draw upon any o if I thought the document already insufficiently stamped. But in view of the opinion already expressed on the latter point such direction is unnecessary. Judgment will be entered for the plaintiff for the amount of the Note in suit with interest thereon at la per cent, per annum from its date till judgment, and interest on the whole at the same rate from judgment till payment. Th e agreement to pay 24 per cent, has in other cases been held illegal. It is to be particularly regretted that our Legislature has not followed the provisions of sect, ji, subsection 3, pro. visoes a and i, of the English Act, with respect to caacelL ing adhesive stamps on Bills and Notes. In Affbal, before Morgan, A. C. J., Stewart and Catlet, J J-, Affirmed for the reasons given by the learned District Judge, but interest allowed at the rate s,tipulate4 for. (Civil Minutes, 13th July 1875.) This decision was followed (so far as concerns the stamp* ing of promissory notes after execution) , by the same learqed Judges in D. C. Colombo, 6^,822, decided the same day in appeal. So far as regards the adoption by the maker of the stamp vendor's dale, the above judgment was followed by DiAS, J. in D. C. I^andy, 841O50 (Civil Minutes, 26th May, 1880,) and by the Supretne Court in very many subsequent cases- 360 Appendix C. (To Bawa v.Ashmore, ante p 115). nth and 2%nd March, 18S1. Present— Cavley, CJ.. Ci,A,RENCK,aad Dias, JJ. D. C. "J fuanis de Soyia Kaiutara, > v. 34,611. J G. D- L. Browne. The facts sufficiently appear from the judgments in appeal. Van Langmberg for the plaintiff, appellant. Browne for the defendant.. respondent. Gur. adv. vult- (22nd March). Caylet, 0. J.— We do not think that plaintiff waa guilty of any contempt of Court in entering the Police Court when he did. A Police Court is open, so long as their is fair room, to any one who will behave himself properly and not disturb the proceedings, and if the effect of the Police Magistrate's order was to exclude the public generally from his Court we think that such order was ultra vires. The publicity of Courts of justice is an important safe-guard for the due adcainistration of justice, end should be maintained. J[t may, however, be that the order was only intended to exclude persons from some particular part of the Court, where their presence might interfere with the business. It is not, however, necessary to decide upon the l&gallty of the order. That the defendant bonajde thought that the plaintiff had com- mitted a contempt m coming itito the Court in spite of this order, we have no doubt, though there is nothing to show that plaintiff was aware of the order ; but the fact that the defendant made a mistake iri treating as a contempt that which was not a contempt will not render him liable to an action for damages, if he acted in his judicial capacity and within the scope of his jurisdiction. Now, the 107th section of the Ordinance No. 11 of 1868 confers upon Police Magistrates the power of causing persons who com- mit contempt of Court to be apprehended ; so that appre- hension for contempt is within the scope of a Magistrate's jurisdiction ; and although in this case he may have acted (as we think he did) upon an erroneous view of the law, his act, though'ill-advised, is not actionable. After causing the 361 Appendix C. plaintiff to be apprehended, the defendant ought in ordinary course to have charged him with the contempt, and then have taken bail from him to appear the next day and answer to the charge, or have remanded him if he could not giva bail. Instead of this, the defendant caused the plaintiff to be detained in the Court, until he had finished hearing the case which he was then trying as Police Magistrate. It appears from the jadgment of the District Couit that the plaintiff was thus detained for about lo minutes, when the defend- ant, thinking it unnecessary to take further proceedings, released him. A judge or magistrate must have some con^ trol over the arrangement of the business of his Court, and we do not think that the defendant acted beyond his powers in keeping the plaintiff in Court for lo minutes (while he finished the case he was then hearing) before taking the proper proceedings for contempt j nor was he liable to an action for releasing the plaintiff without taking these pro- ceedings. We accordingly think that the judgment of the Court below must be affirmed. It need hardly be observed that the remarks of the plaintiff's proctor in the petition of appeal as to the manner in which the defendant in his (the proctor's) opinion gave his evidence are altogether improper. The plaintiff's proc- tor's opinion as to the demeanour of the defendant in the witness-box can have no possible bearing on the appeal ; and the expression of such opinion, if inserted with the object of prejudicing the defendant'.s case, amounts to a contempt of this Court. Moreover, it appears from the District Judge's letter, which is filed in the case, that these comments of the proctor have no foundation in fact. Clabencb, J., concurred. DiAS, J. — This is an action by the plaintiff against the defendant, Mr. Browne, who is the Magistrate of the Police Court of Panadura, to recover damages for causing the plaintiff to be assaulted when he entered the Panadura Court, and for illegal detention. The defendant pleads " not guilty," and says that, acting in liis judicial capacity, he caused the plaintiff to be detained for misconduct in disturbing the defendant in the discharge of his judicial duties. The case was tried on the 31st May 1880, and it 362 Appendix C. appeared that on the day the plaintiff is said to have been detained, viz. the ■zSth January i83o, the defendant waS engaged in hearing a Poh'ce Court charge, when plaintiff entered the Court and made a noise and canne between the defendant and the accused parties in the Police Court case which was then being heard, when the defendant ordered the plaintiff to be detained as for a contempt of Court. It also appears that the Police Magistrate, Mr. Browne, had issued a general order last year that the Court house should be kept tledr during the hearing of the cases, and that ail parties not aciuaily engaged in the Court should remain in the outer verandah. There can be no doubt of the right of a judge to do such acts as are necessary to preserve order in the Court, but a general order like the one issued by the Magistrate is not right, as every Court of justice is open to the public, who have a right to enter it not only as parties concerned in suits but even as spectators, provided they conduct themselves in a proper and orderly manner, so as not to disturb the proceedings of the Court. The question which the District Judge had to decide was, whether the defendant in doing what he did was acting in his judicial capacity. This issue was fouud in favor of the defendant, and the plaintiff's claim was accordingly dismissed. This dismissal, I think, is right and should be affirmed. The District Judge in a letter calls our attention to some improper remarks in the petition of appeal. This petiiion of appeal is signed by plaintiff's proctor, and I agree with the District Judge that the proceedings do not warrant the remarks in the appeal petition, and I think that the conduct of the proctor, who attached his signature to the appeal petition, is highly reprehensible ; but I do not think it necessary to take any further notice of such conduct than to express my disapprobation of it. Affirmed. 3()3 Appendix S. (To Bawa v. Askmore, ante- p 1 1 1);. C. R. \ M.N. Cader Mohiadeen Kandy, \ v. 19,830. / T. N. M.. Ismail Lebhe. P'taint — The plaintiff in person sues thje defendant for the recovery of the sum of Rs 70 being rent due by defendant to plaintiff for the use and occupation by defendant witb' plaintiff'spermissionof house No. 36 situated at Trincotnalie Street, Kandy, belonging to plaintiff, from aana March i8>8i to a 5th May 1882, at. the rate of R,s. j per mensem, which sum defendant has failed to pay though often de.» manded. And. plaintiff prays for judgment against the defendant for the said sum of Rs. 70. and costs of suit. Answer —The defendant in person answering says that he never occupied a house in rent belonging, to the plaintiff, and that he was never indebted to him in the aniount claimed or any part thereof as house rent. Wherefore- defendant prays tiiat plainti£'s action, may. be dismissed with costs. judgment (rjth July 1882).. In this case defendant originally filed' answer denying the- use and occupation of plaintilErs house^H;hat. is,, as I under- stand it, the house alluded to tn the Libel ; for if it has not that meaning,, then it is wi'hout meaning at all. At the day of trial defendant by his Procter movetj to amend his Answer by admitting being in possession (i.e. in i^se and occupation) of the house,, and claiming it as his own pro., periy. This extraordinay application was, as a matter of course, disallowed, and the case went to trial on the pleadings. The defendant then admitted being in occupation, and judgment must necessarily go against him. He has- by amendment shown himself unworthy of belief, and the Court will believe the plaintiff. The order of the Court is that the deffendknt do 364 Appendix D. pay plaintiff the sum of Rs. 70.00 and costs of suit- A. M. ASHMORE, Commissioner. The defendant appealed. No Counsel appeared for him. Domhorst for the plaintiff, respondent. (1.7th August i88s). Clarence, J — The Libel and Answer appear to have both been drawn by petition- drawers. The term '• rent" is used in both, but the inten- tion of the Libel seems to be, to sue defendant for use and occupation of a certain house, and the intention of the Answer seems to be to plead nunquam indebitatus., under ■which plea it would be open to defendant to. set up the defence that the house was his and not plaintiff's. A Court of Requests case of this kind, however, is best not disposed of upon considerations as to the nature of the English action tor use and occupation, or of the English plea of the general issue, — a plea which, T hope, may ere long be banished from our Courts. It would seem that plaintiff claims the house in question as plaintiff's, and defendant claims it as defendant's. Both parties should have further opportunity of adducing evidence directed to that issue. Defendant's occupation seems to be admitted. As plaintiff does not appear to have taken any objection to defendant's going into the question of title, there will be no costs in appeal. Set aside. Further trial' Proctor for the plaintiff, J. D. yonklaas. Proctor for the defendant, A. Bawa. 365 Appendix E. (To Asaguru v. Jayetu Guru, ante p 401). J.u. 1 ombo, > ,i8[. J D. C. -J Bias Colombo, > V. 83,181. J Perera jurisdiction of Court to grant costs where it has no jurisdic- tion to try the action. The fscts are suflBciently disclosed in the judgment of the District Judge {Berwick), At the trial on 5th December i88a, Bumbleton, instructed by J. E. R. Pereira> appeared for the plaintiff, and Weinman, instructed by E. F. Perera, for the defendant. The folio wing judgment was delivered io Court on nth January, 1883: — This is an action at the instance of a husband. conGlud<- iDg for a divorce ; and a plea to the terriiorial jurisdiction of the Court has been put in on behalf of the wife. It has been agreed by Counsel for the respective parties that this plea must be sustained, and it will, therefore, be decreed that this present suit by the pkintiff be dismissed for want of jurisdiction in the Court to determine it- It remains to decide as to the question of costs, and this was the only question virtually argued before me, defendant'is Counsel contending that she is entitled to costs, and' plains tiff's Counsel opposing on the ground that if the Court has no jurisdiction to grant the prayer of the libel it has no power to award costs — no jurisdiction in fhe soit at all. Obviously the argument for the plaintiff seems opposedi to reason and logic. It does not follow in reason or logic that because a Court has no jurisdiction to award the prayer of the libel it has no -jurisdiction in the suit at all. If it were so, it would not have jurisdictiun to. decide that it had no jurisdiction : which is absurd. It has, however, been decided in England that under th-e Common Law of that Kingdom a Court has no power to award costs when the subject or the object of the suit is out of its jurisdictipn. It was in effect so ruled in the Court of Exchequer by Chief Baron Pollock and Baron Watson in 1857 in Lawford v. P'artridge (26 L. J. Ex., N. 8., 14) i the gist of the ruling is summed up in the Chief Baron's words ; " The Court has merely the power to declare i's own incompetency at the trial, and direct Appeiullx E. the suit shall abate." Agaifl, in the following year, i8_s8, in Peacock v. the Queen (27 L. J. 0. P. 235), the Court of Common Pleas having dismissed an ap- peal on the ground of its want of jurisdiction, the defendant's Counsel apolied for costs, " but the Court thought that under th circumstances they ought not to be granted." This decision does pot seem to be of much value on the general question, because it does not profess to be founded on any general principle, but on some peculiar circBpistances, which seems to iridicate that under other circumstances the Court would have decreed costs. in another case which occurred nearly 20 years later, Brown v. Shaw, decided in 1876 (L. R. r Ex. Div. 4.15), the de- fendant in a County Court suit appealed against a judgment of that Court, and the superior Court refused costs, Bramwell, B., giving what appears to me the extraordinary reason, that '«the plaintiff need not have appeared. If we have no jurisdiction it is a matter eoram non judicer and I think we have no power to grant costs. We must take it, then, that plaintiff's counsel has appeared simply as amicus curice to point out that we have no jurisdiction." We may take it us a matter of fact that plaintiff's counsel had not appeared as amicus curice-, but that he appeared before it as plaintiff's Counsel on a retainer to plead for his client, and that he appeared on behalf of his client purely ; and nothing can more conclusively demonstrate the inherent unsoundness of a settled principle than the necessity for bolstering it up with palpably false assumptions. The true test, whether a person was bound to appear to contest jurisdiction, or was to treat the suit with impunity as a mere nullity, is whether the incompetency of the tribunal depends on a- special privilege personal to the party himself, as in the case of Consuls, Ambassadors, and the like, in which case the party must appear and specially plead his privilege. How* ever. Brown v. Shaw virtua'ly followed Lawford v. Partridge^ But in the very same year that Brown, v. Shaw was thus decided) the highest tribunal in England, the House of Lords, in Mackintosh v. the Lord Advocate (L. R.. 2 App.. ,Ca. 41-78), when refusing to enterlaih an appeal from the Scotch High Court of Justiciary on the ground of their own want of jurisdiction, gave the respondent his costs. The Queen's Bench afterwards, in Diss Urban Sanitary Authority V. Aldrich (L. R., 2 Q. B. D., 179) expressly followed this 367 AppendLbc E. •decisioii of the House of Lords j and ag'aiit Jn G- N. H L & N. IP. yoint Oommittee v. Inett (L. R., a Q B. D., a8j) L. 0. J. dockburn laid down a doctrine eritire'y dif- ferent from that laid down by Harons Pollock and Bramwell in the case above cited. Lord Chief Justice Cbckburn said, " The respondent is obliged to come here to inform us of the absence of jurisdiction j for if he did not, the objection would not appear, and judgment would be given against him. If he is oblii{ed to come here by the action of the appellants he is entitled to his costs. It is clear that, to some extent, there is jurisdiction to hear and determine whether the appeal will lie or not. I am of opinion that, under these circumstances, there is jurisdiction to give costs." Thus exploding, I dare say, for ever in England the other illogical and irrational doctrine- But as we are bound by our own Common Law, and not by the Common Law of England, reference must be made to it, and it speaks clearly and decidedly upon the point. "There is no doubt," says Voet, "thai a judge, whose jurisdiction is declined, can so far take cognisance of the suit as to condemn in costs a plaintiff rashly suing before him, when he thinks that his is not the proper tribunal ; for as he is the proper judge to decide the question of the competency of the tribunal, it follows that he can also con-, deran a party in the costs incurred in respect of that ques. tion, although he is incompetent to decide the principal subject of the action (eisi in principali negotto incompetens sit), just as a judge can condemn an appellaiu in the costs of an appeal, if he decides that the appellant has abandoned his appeal". Ad Pand., J. i. (dejudiciis) § 6_;. Against this weight of authority — our Common Law concurring with the most recent and authoritative decisions on the English Common Law — have been cited certain local decisions* of the Supreme Court, all very probably in ignorance of, or at all events without any express reference to, our own Common Law on the subject, and based appa<- renily on the erroneous notion formerly entertained of the English Law on the subject ; for they ars all, I believe prior to the House of Lords and Queen's Bench cases ; and one of them, reported in Grenier, C- R. Reports for 1873 * G. R. Ralnapura 5.789, Vanderstraateii p. 34 ; C. R. Panadura 16.129, C. R. Anurcdhapura 954, Grenier for 1873 (0 R.) p. 20 ; C. R. Colombo 20,8 r3 3 S. C. C. 23. 368 Appendix E. {Anuradhapura 9^4) expressly refers as an authority to the now exploded case of Lawfofrd v- Partridge. This has been over-ruled and superseded by the highest English tribunal. I do not think the Supreme Court would now follow it in opposition to our own Commoa Law and the manifest reason and logic of the question as demonstrated both by Voet and Lord Chief Justice Cockburn. The decree will be that the plaintiff's suit in this Court be dismissed, and that he do pay defendant's costs. [Note — No appeal was taken against this judgment] 369 Appendix F. (To yohanna v. Harmanis, ante p i"]^). D. C. Testy. Colombo 3.567. The following Order and Judgment of the District Court (T. Berwick, Judge) set out the facts of this matter. Interlocutory Order. loth June, 1872. The question raised on the special case submitted to the Court is, whether three of the children of two spouses who have died intestate are bound to collate a gift of land re- ceived from them, in order to share' in the succession to the deceased's estate. It will be *ell to note, though I do not think it will affect this particular case, that two of the devisees are children of their father's first marriage and one of them the only child of his second marriage. The other heirs are children of the first marriage. The gift is by the common father and his second wife. There is no question of the law, that whatever is given by parents to children for their advancement and settlement in life, either on the occasion of their marriage or to set them up in trade or business, must be collated, if the recipients desire to partake in the general succession. The disputed question in this case is, whether they must collate other gifts called " simple gifts,"' i.e., non oh causam acceptae- I'he point has never before arisen, so far as I am aware, in our Courts, and it is a much disputed point among our Civil Jurists. The weight of authority however seems to be in favour of the doctrine that collation of such gifts does not take place under the Civil Law, It is so stated by Burge, vol. iv. p. 080 ; and I find that this is the view taken without comment by Warnkdenig, Inst. § 654, and also in a recent and learned English work on the Modem Roman Law by Tomkins and Jencken, p. 263. Van Leeuwen, in the Censura (3.13- § 16) states that this is the more commonly received opinion, although he adds in § 17 that the rule is different in Zeeland, Burgundy, &c j and Voet expresses himself in the same sense as to the view entertained in Holland {nostris moribus) at the end of § 13 of his great work, lib. xxxvii, tit. 6. The principal authority with which I was pressed to the opposite conclusion was that of an American edition of an English translation of Domat's great French work, § 4957. 370 Appendix t. Bat whenever Domat is cited it must be remembered what his work really was, viz. an attempt to rearrange such doc- trines of the Roman Civil Law as had been adopted into the French system -; and I have referred to the original authorities rdied on by him-, and I am bound lo say {though with all the reverence that- is dua to his name) that if his words are correctly translated (and I have not access to a French edition) the texts cited by him appear not .to war^ j'ant his wide proposition but to be limited to the cases of gifts on account of marriage- Indeed the Rubric both to the Novel (i 8, c. 6) and the chapter {Code, <5. c. ao) cited by him expressly and in terminis refer only to coUatioris of -dowry and donations on account of marriage. I should therefore have no hesitation in adopting what is stated to be the better and more commonly received doctrine by the high authorities already cited, were it not for a pas- sage in Van der Keessel, a work of the very highest value here. In his Thesis 349 he lays down that, besides what has been given by the parents to the children on the occa.. sion of their marriage or in advancement of trade or the like, " simple donations" must also be collated, and adds " this construction of the Art. 29 of the Political Ordinance of Holland being rendered necessary by the whole analogy of our law." And in Thesis 352 he mentions— what has cer. tainly a very important bearing on this case— that the East Indian Colonies are governed by the Political Ordinance of 1580 and not by the Placaat of 1599- (For a good histori- cal account of these two Acts and the Provinces to which they respectively apply, see Grotius, book 2, c. 28, and also Van Leeuwen's Comm., p. 189). But Van der Keessel unquestionably referring to colla* tion with a surviving parent and not to collation among children where both parents are dead, his Thesis is therefore not in point to the present case. But if he means his doctrine to extend to a case like the present, then it must be observed that his words contain a very long advance on anything in his text, which is Grotius 2. 28. 14 5 and he cites as his authority no judicial decision or commentator, but only certain collections of local customs j and I am inclined therefore to think that his construction of the Ordi- nance is entirely rested on his own view of the " analogy" (as he says) of the law. But both Grotius, in the very text 371 Appendix T. Van der Keessel is treating on, cites the Political Ordinance and so does Voet, bat neither of these high authorities puts any such construction, on it i on the contrary both Voet and Yan Leeuwen give their opinion in a precisely opposite sense, and both admit that the local laws of 2^eland (the custom of which Van der Keessel cites and rests on) are different. Van Zurck {Cod Bat. Ootlatie van. Goederen in erffenh, § i, n. 8 j E^. i; i;8, p. 216) is express on the sub., ject : Simple donatie, buiten de voorschreve uitzetting,. en losten tot studies ten zy de vader anders gewUt heejt, komt in geene collatie, maer in Zeeland. wel. In Holland komen r/an 00k niet in collatie SrvHqfts-kosten,. nog Pillegaven. " Sim- ple donations, other than those aforesaid for advancement' la life (starling in the world) do not con e into collation, unless the father has. desired otherwise." Considering then that this has been a much disputed question, if Van der Keessel's meaning is that children collate among themselves, apart from collation with the surviving parent on the divi- sion of the matrimonial communio honorum, not only dona- tions oB causambat ""simple donations,." then I am not dis* posed to look on his opinion, valuable as it is,, as amounting to more than that of an individual opposed to the general ■weight of opinion : and it appears to me that in a case of this kind I ought not to attempt to form any decision for myself; which among diverse opinions is the best, but ought simply to follijw that of which it can be said', in the words of Van Leeuwen, communior et receptior- est sentenlia. Following this rule, I consider that if the gift in question is to be viewed' as a donatio simplex, it need not be collated. Whether k should be so constdered is a question oa which I have not before me materials on which to form a sound opinion. If it was given to the three children who are the beneficiaries out of special partiality and. affection, . then I think it ought not to be collated. Especially so, if the other children were then married or provided for otherwise or were subsequently provided for before the father's death. On the other hand there may be circumstances which would shew that the gift was really intended- simply to be a provi- sion for them in anticipation of what they would get at their father's death ; in which case it ought to be collated and ceases to be a donatia simplex, i and I therefore wish the 372 AppenduE F. case to be Set down for evidence on this point before judg- ment. I will, however, dispose at once of the ground on which it was mainly attempted to resist collation, v'z. that the deed was not a deed of gift at all but executed for valuable consideratiotj, viz. the discharge of a mortgage to which the land was subject. It was unquestionably a free and abso. lute gift of land subject to a mortgage, and 1 do not think that the personal covenant to discharge this debt in the least alters its character. There was at the least a gift of the difference of value to the donor between the value of the land and the amount of the debt. Indeed the deed truly calls itself a gift, and contains the usual clause of acceptance of it as a " gift-" The only questions, therefore, are ist, one of fact — was it a gift for advancement in antici- pation of inheritance, or was it a " simple gift," i. e., non ob causam : and 2nd, one of law, viz. must gifts of the latter class be collated- On the point of law I have stated the view which I think the Court will most safely adopt. On the point of fact the case will be set down for evidence. Costs to stand over. 9th September, 187a. It is stated by counsel that no evidence is forthcomiag on either side— Judgment reserved. Judgment. loth September, 1872. It only remains, therefore, to decide whether, in the absence of all eVidetJCe, the presumption of. law is in favour of a gift (that is to say, a considerable gift) from parent to child being a donatio oh causam, (viz. for putting out into life) or a simplex donatio, that is to say, as something extra to this mere purpose and from a special generosity or affec. tion. I have not been able to find any authority in Roman Dutch Law which is directly to the point, but there is a great deal from which it may be inferred that such dona- tions are, in case of doubt, to be presumed to be for ad- vancement in life and therefore liable to be collated. Indeed 373 Appendix F. collation appears to be the rule or general proposition, and all other cases of considerable gifts which are not Collated^ mere exceptions grafted on the rule. Consequently the rule should be followed till authority be adduced for an excep- tion. Thus in the Oere^ar-a the principal proposition is laid down in these words before the author proceeds to details : Huic collationi subjecta sunt omnia quae a parentibus, de quorum successione quaeritur, sunt profecta (pt. i. 3. jj ); and prqfectitia bona omnia conferenda sunt : adventitia nan utique : the distinction taken by these terras being between gifts received from parents and those received from strangers, (Ibid § I (5); and this distinction drawn by the later Civil Law between prqfectitia and adventitia, which were both collated by the early Roman Law, reminds one of the uni- versality of the rule in its first origin and application, when the law was introduced for the very purpose of enabling the foritifamiliated or emancipated children, who had ac. quired separate property or adventitia, to partake of an inheritance with those who remained partners in the com. mon family and in paterna potestate, from which inheritance they would otherwise have been excluded. (See Groenewe- gen, ad God. vi. 20.) So by the Scotch Law, which is so parallel, not to say constantly identical, with Roman Dutch Law in matters of Civil Law origin, every provision given by father to child falls under collation (not including how- ever the expense of suitable maititenance and education, nor inconsiderable presents) except where it appears (as by the provision being made on death-bed or otherwise) evidently to have been the grantor's intention that the child should have the provision as a praecipuum over and ab jve his sliare of legitimum . Erskine's Inst. p. 9+0 : and this rule of Scotch Law is adapted if not adopted from the Justinian Code, Lib. 3 tit- 28 § 29, and based on it. I also find i» Zurck's Batavian Code, in the place where the Dutch Law is particularized as to what expenses on the occaSiuo of marriage are included among those liable to be collated by the child, the following quotation, which I have been unable to trace to its source (as the reference is either not given or given at second hand) but which no doubt justly states the Civil Law on the precise point there discussed, and by a very fair application of the same principle would apply to other than gifts or disbursements on the occasion of mar- riage— yE^MJa^y profecta est, ul in dubio haec omnia staluamus '674 Appendix F. esse conferenda, tan^uam dotis portionem consiiluentia, quam- diunon apparet aliui parentis animus. Van Zurck, p. 2i7) ^• Oollatie. For these reasons I think that the gift which is the sub- ject of the special case should be collated, and it is ordered accordingly. Costs of the special case and arguments to be paid out of the estate. [Note— No appeal was taken against this judgment]. D. C. ■) S M- Odayappa Chetty Colombo; 375 Appendix G. (To Ear parte hoberfson, ante p 167.) U. U. /j S. M- olombo, j> 67,2 16. JR. ikf. C Muttayah Ohetty. The facts sufficiently appear from the judgments of the Court below and of the Appellate Court. (:st September i87_5). Berwick, D J — Mr. layard ■urged mainly two points on behalf of his client. The first being his right to have a postponement of the hearing to enable him to subpoena witnesses to prove that the detend. ant himself had taken the copy of the Eule to the Fiscal 's office and that therefore the process must (by inference) have been served upon him, and that the witnesses examined on the 27th must therefore have committed perjury : and the second being that the present proceedings are irregular. On the first point i)e urged that his client is taken by surprise by the rule of the 27th instant whereby the pro' ceedings fubsKjuent to the filing of the libel were quashed and the plaintiff committed to answer for contempt, inas much as on the 27 ih and until the conclusion of the hear, ing on that day he bad no no ice that he would have to answer for a contempt, and had only appeared to answer the allegations of non-service of process contained in the de-i fendant's affidavit of 30th June, and to prosecute his own motion for judgment for default of appearance ; and that that is a distinct question from the question of contempt, which he ought now to be allowed to disprove by calling witnesses to contradict the e-vidence given for the defend, ant on the 27th instaat, on which the proceedings were ordered to be quashed and on which he is now charged with contempt. It is qpite true that the questions whether he should have judgment for default of defendant's appear, ance and whether he should be prosecuted for contempt are distinct questions but they involve one and the same issues of fact, which came on for hearing and evidence on both sides and trial and decision on the 27th instant. The defend, ant then called evidence which clearly proved that neither the summons nor the rule had been served on the defend, ant, and the plaintiff called no evidence to contradict that, though the defendant had filed his list of witnesses so far back as 3oih June. The issue of fact being identical and having 376 Appendix G. been solemnly tried ap4 adjudicated on upon full trial and examination of witnesses and their cross examination by by ^)laintiff's proctor, the issue must be taken as res judicata, and the Court thinks that ihe plaintiff is not nowr entitled to reopen it. Still injavorem libert-atis the Court would be disposed to indulge the plaintiff if it had the sligh'est reason to think it even possible that the ends of justice would be thereby advanced. But everything points exactly the other way. In the first place the circumstances that he did not call his witnesses on the 27th instant and never filed any list during the two monlhs the matter was standing for trial makes it highly improbable that honest testimony of the kind suggested can be produced. In the next place, when the plaintiff was committed on the 27th, he was allowed till the 3oih to shew cause, and yet neither tendered affidavit nor asked for subpoenas. Again on the 30th the matter was allowed on the application of his Counsel to stand over for another two days and yet no affidavits from the witnesses are filed nor steps taken about the witnesses tor their attendance to.day. To-day his Counsel states that to-day (since the case was first called on in the evening) his wit- nesses have been asked by his proctor Mr. Obeyesekere to make affidavits to this effect: that defendant was seen at the Fiscal's office with the copy of rule (ioferring service) but that his witnesses have refused to do so : and also refuse to come to Court unless forced by subpoena. The circum- stances that the witnesses would not make voluntary affi.. daviis to that effect is pretty nearly conclusive that they are unable honestly to d j so. Further his Counsel has informed the Court that it was almost so late as § pa<5t 3 p.m. to day or yesterday, (I am uncertain which day was stated) that the witnesses were asked to swear, and t is not sug- gested that the plaintiff was aware of their ability (if they be honestly able) to depose to such and such an effect long before. There is absolutely nothing to shew this Court either that these witnesses could not have been called on the 27th or that this plaintiff did not have knowledge till now of what they could depose to. As already said, and had the plaintiff any reason to believe that the proposed witnesses were in a position to prove what he stated, I would adjourn this matter that the subpoenas might be issued to them, even though affidavits would be the more proper mode of purging the contempt charfjed. Under these circumstances I think I went as far as I could go in the interests of 377 A-ppendiz O. justice in intimating my willingness to adjourn the hear- ing if Mr. Obeyesekere could put in a precise affidavit and motion, of which I suggested the terms as follows, which I drafted, adapting them to the facts alleged for plaintiff ab the bar : " That from conversations he lias had previously with A» B and C he Has reason to believe and does believe that they are iii a positioti to give credible evidence of facts which would shew (he evidence given on the 27th ultimo by D, E and F to have been false, perjured, atld Which could purge his client of the contetopt charged againSt him:— and that the said A, B and C decline to make affidavit thereof, aiid that! he has reason to believe that such refusal is vexatious and obstructive of justice. Therefore pray^ that the said A, B and C be cited and Compelled to give the evidence in open Court which they decline to give voluntarily by affi» davit." Mr, Obeyesekere would not make such an affidavit and the circumstances prove that there is not the slightest reason to aaticipate tha^the suggested witnesses either could or would give the evidence required. There was therefore no ground whatever foi an indulgence to which the plaintiff had no legal Olaim and which would only have been a farce and hardly consistent with the decency due to legal proceedings. And it is preposterous to say that the plaintiff has been taken by surprise in any respect whatever. The second matter urged was that the proceedings were irregular inasmuch as they were not grounded on an affi> davit charging plaintifiE with contempt. The plaintiff had the return of the Fiscal stating that sertibe had been made on a person " pointed out by a man on behalf of the plain., tiff", and the evidence taken in his presence after due notice, on the 27th, and the order of that date, as well as the de- fendant's afSdavit of 30th June, and I do not think that aiiything more was necessary. The last objection taken by his Cbu'nsel was thai there was nothing to connect plaintiff with iHe " man" who pointed out the party as defendant. . It is suf&cient in res* pect to this defence to say that besides the Fiscal's return, and besides the fact that no one else but the plaintiff could have any interest in the commission of the fraud, we have the broad fact that he himself moved to take the benefit of the fraud, and that the whole matter came before the Court 3?8 Appendix |}. on his own Proctor's motion for judgment on the false and fraudulent service. The Court has not the slightest doubt that the false ser- vice was made by the procurance of the plaintiff) and ad- judges the plaintiff to have been guilty of a high contempt of Court and of the administration of justice in abusing the process of this Court by wilfully and falsely procuring a summons, and rule for judgment for default of appearance, to be served on the wrong party as defendant, with intent to deceive the Court, defraud the defendant, and pervert the course of justice. In determining the punishment, the Court has in view that it is inundated with motions to open up judgment or avoid rule for judgment being made absolute, on the ground of false returns of service on the wrong party : and that this has become — notably among the chetties — one of the most crying curses of the country, and is rapidly convertmg the Courts of Justice into temples of injustice and fraud : that it is therefore necessary to impose such a punishment as may tend to check the alarming progress of this kind of fraud : and to adapt the nature of the punishment to the nature of the offence : to punish the party convicted in his purse, seeing that greed was the motive of the offence ; and to make the punishment also disgraceful to him, as the crime is one of the most disgraceful character. He is therefore sentenced to be imprisoned for the term of nine months and to pay forthwith into Court for the use of Her Majesty a fine of one thousand rupees, and to be further imprisoned with hard labour till the whole of the fine be paid, provided that such further imprisonment is not to exceed the term of twelve months in addition to the former term of nine months- In appeal by the plaintiff, the case was argued before Cayley and Dias, JJ. by Ferdinands {Layard with him) for the appellant, and Grenier for the respondent. (ist October, 1875). Their lordships affirmed the judg- ment of the Court below save as to the imposition of impri- sonment at hard labour in default of payment of the fine, and directed the Court below to proceed as provided by sect. 5 of Ordinance 5 of i85_5, in case the fine was not paid as directed. The judgment proceeded as follows : 379 A^peudisL Cfc. The appellant complains that his motion for subpceaas to two of his witnesses was improperly rejected by the District Court. This motion was made on the ist Septem- ber, two months after the appellant had notice of the nature uf the proceedings against him. The defendant's affidavit, on which the. proceedings are founded,, was filed on the 30th June, and the case came on for hearing on the a 7th August, on which day the appellant was committed to be brought up on the 3ath. On the 50th the hearing was adjourned to the ist September on the application of' the appellant's Counsel, so< that the appellant has no reason to complain that the proceedings were hurried,, and that he had no time to subpoena witnesses. Mr. Obeyesekere in his affidavit says that he was instructed by two persons to draw an affidavit to the effect that Muttaya Chetty, during the latter end of J.une last, came to the Fiscal's office with a translation of the rule served on him in this case. A draft affidavit is produced, and it is alleged that the two persons named in. it have refused to come to the District Court to swear to it without being duly subpcened. This seems to be a mere excuse to avoid swearing the affidavit, which could have been sworn to. before any Justice of the Peace. Every safeguard to which a person charged with contempt is entitled appears to us to. have been observed, and in view of the serious nature of the offence disclosed in this case,, and its prevalence in this Island, we do not think the punishment too severe. 380 Appendix H. (To Ex parte Kerr, ante p 178). D. C. ■} H. S. Saunders isf Co. Golomboi f V. 71,4^0. i H. W. Banner. " Beacl-siQC^' — Bungalow furniture ^Mortgage. (3rd July 1879). T- Berwick, D. J.— I have had to delay giving judgment in this case until I should be furnish^ ed with a copy of the deed of sale under which the plain, tiff purchased the estate mentioned in t;he pleadings, and this I only received twb days ago. This document marked A is put in by consent. The amended Libel states the plaintiiff purchased the Derry Clare Estate from the defend- ant and claims the value of certain furniture then in the Bungalow of the said estate as having passed under the deed of sale. It also alleges the usage that the " ordinary" furniture in an Estate Bungalow passes with the estate. The defendant does not claim the furniture in question ; be denies that he sold it to the plaintiff, denies the alleged usage, and alleges that it was the personal property of his son who had been his superintendent of the Estate and who died there, as it would appear, shortly before the sale- According to the terms of the Deed of sale the defendant sold " all tlie coffee Estate called Derry Clare bounded** "together with all the buildings, machinery, fixtures, tools, implements, live and dead stock, standing thereon or belonging thereto." There is no express mention of Bungalow furniture in the Deed and there does not appear to have been any express agreement in any form respect, ing it. I think all the ordinary and necessary furniture kept in the EiState Bungalow by the proprietor for the use of the superintendent must be cpnsidgrgd kept for the use of, and for the furtherance of the cultivation and management of , the Estate and must pass with it as a part of the "dead stock standing thereon" or '' belonging thereto"j but that it passes in virtue of these terms in the deed, and without any regard to any usage- The usage of which evidence has been given only confirms the construction put upon these terms as that ordinarily put on them by the purchasers and vendors of coffee estates ; but this contruction of these terms is I think 381 AppeucUz H. the natural and rational construction, and must stand indepen- dently of any usage. Obviously, ordinarily (though perhaps not invariably) a bungalow Jor the residence of the Superin^ tendent is essential to the proper management af a Goffee Estate; ^nd so is a reasonable amount of what is understood by "ordinary" furniture. And whatever " ordinary" furniture is brought into the Estate by the proprietor for the neces-. sary use of his superintendent is as much brought there for ^he use and benefit of the estate as any purely agricultural iaiplengents, machinery, or cattle- A distinctipn may of ^p^rse l?3ve sometimes tp be drawn between ordinary furni- tme ahsjolqtely necessary for the use of the superintendent, that is to say for the use of the es,tate, and any articles of luxury — gay, for example, a piaao, which tl;ie proprietor may choose to send to his superintendent from either personal or liberal considerations, and which may b,e found on thf l^nngalow at the time qf sqle. B.ut it is impossible to hold that the vendiOi; i$ bound to make good to bis vendee any> thing npt on or belonging to thp estate at the lime of the sale, and still more impossible to hold that he is bound tp make up. to his vendee the value of any furniture which did not belong to himself for the use of the Estate, but which happened merely to be in the bungalow at the time of sale, and was the private property of the superintendent or any one else- And this brings me to the only real point in this case which is a pure question of fact, namely. Was the the furniture in question the property of the defendant and also placed there for the sole use and benefit of the estate, or was it the personal and private property of his son and Superintendent ' The evidence does not afford sufficient materials to enable me to decide this question with any degree of certainty. And the mere allegation in the answer that it was the property of the son unaccompanied by any oath or direct evidence of-any kind has no legal weight. It roust be remembered, too, that the defendant is out of the Island and does not appear to have ever been in it. He is represented here by an Attorney, a man of business, and it does not appear that either the defendant himself or his Attorney is at present in possession of any data on which he can have any exact knowledge whether the furniture had been purchased and charged against the estate (that is against himself) or not. The plea in question has therefore no other significance morally as well as legally than that of Appendix K> throwing on plaiatiff the burden of establishing a doubtful question. In the absence of better evidence I shall have to be guided by the most probable presumptions. It may fair^ ly be assumed from what has been said of young Mr> ' Banner's habiis and position that he would surround him- self with articles of luxury for his purely personal use and enioyment, which had no relation to the needs of the estate^ and which had been purchased or acquired hy himself or given to him by his father for his own personal use. But in the absence of positive evidence either way I think it must also be presumed^ especially in view of the evidence as to what is usually dune in such cases, that the bungalow contained a certain amount of furniture supplied by the pro. prietor for use of whoeyer might happen to be there as supers intendent at the time — supplied at the proprietor's cost for the use of the estate — and that upon the whole this presuajp- tion overrides any presumption arising from the negative evidence that as yet no entry has been found in the estate accounts of any charge against the estate on this account. That there was furniture in the bungalow of an ordinary character such as is generally supplied for the use of Estates has not ^een questioned; All things considered, i think the amount claimed for this, Rs. 650, is reasonable. Plain- tiff will therefore have judgment for this sum and any costs of suit. 388 Add«iidniu. i^thundiCth October, 1883, Present — Clarbncb and Dias, JJ. D. C. \ S- A. G. SiLVA Negombo, > v. i2>730- ■' M. Sarah Hamy. Registration — Pt iority — Ordinance 8 q/" 1 8 ^3 , section 39— Canjlieting sales ly the Fiscal of the same land — fraud — Mortgage ireated pending seizure — Ordinance 4 of 1867, sec- tion 42. The defendant, on 14th September 1880, boug^hc A. piece of land at a sale in execution of a money judgment recovered by him against S., and obtained a conveyance from the Fiscal on 21st February 18S2, ■which was registered on i ith March following. Pending seizure under defendant's writ, S. mortgaged the land to plaintiff. Plaintiff put this, bond in suit on 3rd December 1880, obtained a simple money judgment on it, had the land sold in execution on 17th February 1881^ and purchased it himself. Plaintiff obtained his conveyance from the Fiscal on 24th February 1882, and registered it on the 27th. Plaintiff now sought to be quieted in possession against defendant, ■who set up her own title. Held, that though plaintiff's mortgage was invalid by the operation of section 42 of the Fiscals Ordinance, yet bis money judgment was not affected thereby. Held also, that in the absence of any proof of fraud, plaintiff's con- veyance prevailed, by virtue of section 39 of Ordinance 8 of 1863, and he was entitled to the decree prayed for. The plaintiff in this case appealed against a judgment of the District Court {F- y. de Livera, Judge) nonsuiting him ■with costs on the ground that the sale to plaintiff, under a mere money decree, of the land which had previousl)' been sold to the defendant, did not give plaintiff a superior title. The facts sufficiently appear in the judgment of Clarencb, J. VanLangenlerg for the plaintiff, appellant. Domhorst for the defendant, respondent. Siripina v. Tikiria (i) was referred to in the argument. Cur. adv. vult. (26th October). Ciaeence, J.— .The land in question in this action was the property of one Gregoris Silva. (1) I S. C. C. 84. 384 On the 14th August 1880 it was sfeized under a writ issued against Gregoris by present defendant. On the 8th Sep- tember fohowiiig, the land beiUg ^till under seizure, Silva purported to morfgage the land to present plaintiff. The land was sold under defendant's writ on 14th September and purchased by defendant, b(lt for hodae reason wbich does not appear defendant did not get her conTeyatic6 froin the Fiscal until aist February J882. Meaii*hile, pkintiff pi;t his mortgage bond in suit on 3rd December 1880, and on the 17th becember 1880 obtained judgment by default; not, however, a decree declaring the laid specially bound or executable, but a simple judgment for a sum of money. Under this judgment plaintiff had the land in question sold by thfe Fiscal on the 17th February 1881. Plaintiff him. Self purchased and got his Fiscal's conveyance on the 24tii Febiuary 1882- Plaintiff's conveyance was registered on the 27 th February i88i, and defendant's on the 1 ith March following. Plaintiff now claims to be quieted in possession as against the defendant, who sets up her own title against plaintiff ; and the sole qaestioa contested between the par ies is, which title is to prevail ? No issue is i^aised by either party as to the actual cause of action in the shape of 6nster or trespass, nor do the pleadings raise any issue as to the fadUin of either Fiscal's sale. Plaintiff's mortgage was invalid by the operation of the 42nd section of the Biscals Ordinance, but that does tiot affect plaiintiff's judgment for a sum of money. Having got a juclgment in December 1 8S0 against Silva for a sum of mgney, plaintiff had a right to levy on ^ilva's property, and the Fiscal sell- ing under his writ any property ol Silva's would make a good title to the purchaser. But when the Fiscal purport, ed to sell this land in February 1881 under plaintiff's judg' ment, the land had in tact been already sold in September 1880 to the defendant. Plaintiff's conveyance therefore passes nothing to him, unless it derives effect from the Registration Ordinance- But in our opinion the effect of the 39th seciiou of the Ordinance is to sink defendant's prior purchase, and thereby give effect to plaintiff's. Whefl an owner of land conveys it to A for value, and subsequently executes another conveyance of the same land in favour of B alstf for value, it is true at the Saie of thte second con* Vejance the' O'^ner has nothing left in hitti to ettntfey, bttt by the operation of the Ordinance B's conveyance dveffides 885 A'3 if registered before it. Unless the Ordinance has this effect, it has none at all, and this seems the actual construc- tion of the enactment. We can see no difference in prin» ciple between a conveyance executed by the land owner in propria pet sona, and one executed for him by the Fiscal. It therefore appears to us in the absence of, at any rate, any- proof of fraud, that plaintiff's conveyance prevails, and that he is entitled to the decree for which he asks. There must be a declaration of title in plaintiff's favour as prayed for with a decree quieting him in possession, and defendant must pay all costs in both Courts. DiAS, J., concurred. Set aside. Proctor for plaintiff, H. Ball. Proctor for defendant, H'. N- Rajepakse. DIGEST. Accomplice See Vagrant, 2. Accrnal of cause of action See Fiscal, 5. Action See Practice, 3. — Adminisikation. Administration Adnwnistration, necessity for— Action hy au/r- vwing spouse to recover moveables belonging to the eomrmmity — Minor child, rights of. In an action by a husband to recover certain moveables that belonged to the community be- tween himself and his deceased wife, which property the defendant detained, the defendant pleaded non detmet and that the plaintiff could not recover without obtaining administration to his wife's estate ; there being also issue of the marriage. Held, reversing the decision of the Court below, that plaintiff could recover the half to which he was himself entitled, and should be allowed time to obtain administration or to have himself appointed guardian O/d Utem of his minor child. D. C. Matara, 32,371. Sama/rwwerav. Be 8ih)a 88 Admission See Practice, 4. Adoption 8e» Kandyan Law. Advocate, admission of, as Proctor See CsEAST, DIGEST. AfiEtrmation See Evidence, 1. — Evidence, 2. Agent See Contempt of Codbt. — POSSESSOET action. Alternative charges See Vageast, 2. Animus fnrandi See Theft. Appeal See Practice, 2. Appealable order See Secdkity to keep the peace. Arrack Arrack Ordinance, 1S44— Breach of secUon 26 — Proof of possession of Ueense — Ordinance 5 of 1881, section 3. Upon a construction of section 3 of Ordinance No. 5 of 1881, Held, that the word " condition" in this section might be construed to include the possession of the license contemplated by section 26 of the Arrack Ordinance, 1844 ; and accordingly Held, that the section under construction cast the burden of proving the possession of such license on the defendant. P. C. Panadura, 4,276. Fonseha v Perera ... Assanlt 1. — Assault on Policeman in the execution of his duty — Absence of count for Assault at Common La/u) — Gowoietion of Assault at Common Jjoaj). The defendants were indicted for cutting and wounding two policemen while in the execution of their duty. The jury, under the Judge's direction, found that, (1) if the policemen were acting in the execution of their duty, the Ist de- fend^t was guilty on the indictment, and thQ DIGEST. m Assault— cotitt?. 2nd, 3rd, 5th and 8th defendants were guilty of assault and battery on a police constaj)le in the execution of his duty, and 4th, 6th and 7th de- fendants were not guilty ; but (2) if the police- men were not acting in the lawful execution of 'their duty, the 1st defendant was guilty of out- ting and wounding, and the rest were not guilty. ^eZc2,^that, it being admitted at the bar that the policemen could not be regarded as having been in the lawful execution of their duty, the eonviction of assault at Common Law could not be sustained.. Tke Queen Y. TTra/nelis ... ... ... ... 1 2. — Assault on poUce officer in tHe execution of his duty — Ordinance 11 of 1868, sect. 16S — Wa/rrant of arrest, description of offence in — Conviction of assault at Common Law. Where a warrant of arrest against an accused party gave the names of the complaining and accused parties, and stated the charge to be " threatening to do bodily harm" : 3eld (per Db Wet, A. C J., and Bias, J.), that the warrant suflBloiently described a criminal of- fence. Hetd-sAso {per Clabence and Dias, JJ., follow- ing P- 0. •Ealutara 64,188 (4 S.O.C., 117)) that upon a charge of assaulting a police oflBcer in the execution of his duty,, in breach of section 165 of the Administration of Justice Ordinance, 1868, the accused could be convicted of an assault at Common Law. P. C. Colombo, 6,310. Seneviratne v. Thegis ' 'a 2461 3. — Besisting poUcs officer in execution of Ms duty — Ordinamee 16 o/1865, sect. 75-^Ordvnanee 18 of 1861, sect. 13^ — Presence of complodna/nt at trial —Using indecent language in the street. Where defendant was charged by an Inspector of Police with resisting a police constable in the- execution of his duty, Seld, that the presence of the constable at the trial was a presence of the complainant within the meaning of sect. 13 of Ordinance No. 18 of 1861. The evidence showing that the duty the con- stable was engaged in at the time of , the resis- tance was the arresting of one Jasa, who wa* iV DIGEST. Assault— cojifd. brawling in the street and refused to desist at request of the constable. Held, that, apart from any special statutory power, the constable was justified in arresting Jusa and taking him into his custody. P. 0. Negombo, 61,756. K^thY. Femmido... 283 Assessment for Police tax Assessment for Police tax, iabjeetion to—Ord/i- ncmce 5 of 1867, sect. 1 — Limitation — Notice of aetiotb—Ordina/nce 17 o/1865, seet. 177. Plaintiff, on 1st March 1882, received notice that the Municipal Council of Kandy, the defend- ant, had assessed plaintiff's house as of the annual value of Es. 900, for the purposes of the tax for maintaining the Police in the town. On 3rd March, and again on 7th and 23rd August, 1882, the plaintiff protested against this assess- ment as excessive ; and on l&th September was informed that the assessmept had been reduced to Es. 800. On Srd October 1882, plaintiff brought the present action, praying that the assessment might be reduced to Es. 600, the real value of the house. Held (affirming the decision of the Court be- low), that the action was not maintainable, no notice of action having been given to the defen- dant, as required by section 177 of the Mvmcipal CovMcils Ordinance, 1865. Held also, that the present action, embodying the objection to the assessment, was barred by section 1 of Ordinance 5 of 1867, not having been commenced within 15 days of the receipt of notice of assessment. C. E. Kandy, 20,351. Wright v. The Munici- pal Cowihcil of Kand/y. .,, .,, ... .,, 260 See Cbowu, 1. Assignee See Insolvency, 2. — Insolvency, 3. Assignment See MOETGAGB, 1. — MOETGAGB, 3. — FfsCAL, 4. DIGEST. V Autrefois acq^uit iSfee Maintenance. Bond l.—Bond — PreaeripKon. The plaintiff sued on an instrument which, after acknowledging the receipt of a sum of money, provided for the recovery of it with in- terest in case of default of payment. The par- ties, in the body of the instrument, called it a " money debt bond," "this bond," "this unpro- fessional bond" ; it bore the stamp proper to a bond for the amounb mentioned, and professed to create a general mortgage over all the pro- perty of the obligors. Plea, prescription. Seld, that this instrument was not a " bond." Seld also, that regard being had to the inten- tion of the parties, as evidenced by the use of a bond-stamp and by other circumstances, it would be inequitable to allow the defendants to set up the shorter term of prescriptioii as for a promis- sory note. Observations on the requisites to constitute a " bond" in this country. 0. E. Batticaloa, 16,209. Kwmaravaloe v. Mohidin Bcnoa 297 2. — Bond — Mortgage — Jovnt and several liability — Go-obUgeea — Becovery of share of one of the obli- Where a mortgage bond, purporting to secure a sum of Rs. 280 to four mortgagees, provided that in failure of payment " from this mortgage " and from the heirs and assigns of me the said " debtor the said principal and interest due the " said four creditors or one of them or any per- " son assigned and authorized by the said four " persons are or is empowered to recover in " full" ; and plaintiff as the assignee of one of the creditors sued to recover Rs. 70 as the share due to the said creditor ; Held, that the plaintiff as representing one of Ihe four creditors was entitled to recover the full amount of the bond, and was therefore clearly entitled to recover one fourth. C. R. Kandy, 21,032. Haviadia v. Sarana ... 313 Bond to Fiscal Se6 Fiscal, 4. Vi D I S E S T. Burden of proof See Aerack. Bye-law Bye-law, Mwnicipal, dealing with same suhjed matter as earlier Ordinance — Ordinance No. 15 of 1862— Bye-lam] imder Ordinance No. 17 of 1865. Where an Ordinance of 1862. made it an offence punishable with a fine of Es. 50 to obstruct cer- tain officers in the execution of their duty in con- nection with the abatement of nuisances, and a bye-law made by a Municipal Council under an Ordinance of 1865 entitled its officers to the protection accorded by the Ordinance of 1862 to the first-mentioned officers, and made resistance to them in the exercise of their duty punishable with a fine of Es. 10 ; Eeld, that a charge of resisting an inspector appointed by the Municipal Council, while in the exercise of his duty, was rightly laid under the Ordinance of 1862. B.M.Kandy, 17,820- FranaJeeY.MeyaLehhe... 97 See Local Board. Cattle trespass Cattle da/mage feasant — Oustody of cattle seized — ^Publicum Stabulum — Apportionmeyit of dama- ges. A herd of plaintiff's cattle had on several occa- sions trespassed on defendant's land and done damage, and one h«ad of this herd was sei^ied damage feasant and detained by defendant. Plaintiff, having tendered Rs. 2.50 (as the amount of damage done on the day of seizure by the animal seized), which was accepted as part pay- ment and the cow not released, sued to recover his animal. Defendant claimed right to detain it till payment of the full amount of damages. Held, that there was Toa puhlieum stahulum, or public pound, in Ceylon, and that defendant was entitled to detain the trespassing cattle la his own custody. Held also, that it was for the plaintiff, as the wrong-doer, to apportion the damages among the several head of trespassing cattle ; and that, proof on this point being wanting, everything would be presumed against him. C. E. Kandy, 19,410. Sangeravalo v. Gray,,. II D I G B S T. Vll Certificate in the form R. See Imsolvency, 1. Certificate of Queen's Advocate See Jurisdiction, 3. Cession of Action See Pbincipal and Surety, 1. Child of tender years as witness See Evidence, 1. Club 1. — Ghih — Bight of 8ecreia/ry to represent in Court. Plaintiff sued for wages for work and labour done for the defendant, a Club, and served sum- mons upon the Club's Secretary ; Seld, that the Colombo Club was not author- ised to sue or be sued by any corporate name, and that plaintiff's right of action, if any, was against the individual persons who had contract- ed the debt. 0. E. Colombo, 32,332. Peris v. The Colombo CUh 100 2. — Club , action against, for goods su/pplied — Ida- biUty of Secretary to be sued — Practice — Execu- tion. A Club is not a partnership, neither is it a corporation capable of being sued through the representation of any officer or member of its body. The remedy of a tradesman who has sup- plied goods to the Club is simply an action against those persons who have contracted with him ; and whatever judgment he may obtain is enforceable against those persons and their pro- perty. Where the defendants were C, Secretary of the N. B. Club, three other persons named, " and others members of the said Club," and judgment was entered against C. with a direction that it should be enforced only against the common pro- perty of the Club ; Held, that this judgment was an absurdity, and 'that a judgment against C. was legally leviable on O.'s own property and on nothing else. C. E. Nuwara Eliya, 8,387. Cotton y. Camp- bell 309 Viii DIGEST. Coffee estate See Mortgage, 6. — Mortgage, 7. Coin Ordinance Coin Ordinance, No. 5 o/1857, sects. 12 and 13 — Conviction under both seetions-^Semtenee. The first count of an indictment charged the prisoner, in the words of section 12 of the CoiM Ordimamce, 1857, with uttering 6 counterfeit coins. The second count charged him, also in words of that section, with uttering 6 counterfeit coins while having 28 other such coins in his possession. The third count, in the words of section 13, charged a possession of 28 such counterfeit coins with intent to utter. The jury having convicted the prisoner on all three counts, andthe.Coart having sentenced him to impri- sonment at hard labour for two years as for the conviction under the second count ; Held, upon a case reserved, that the offences charged by the first and third counts were in- cluded in that charged by the- second count, and that no farther sentence should pass as for th^ conviction upon the first and third counts. The Queen V. Hendrich 143 Collation See Inheritance. Commencement of prosecntion See Prosecution, 1. Commercial matters See Jurisdiction, 4. Commission See Fiscal, 2. Committal See Contempt of Court. Common Law See Assault, t. — Assault, 2. — Fiscal, 6. D 1 S E S T. IX Comitmmty of goods Pase See Administration. — Husband and Wife, Complainant, nouunal See AssAOLT, 3. Complainant's presence at trial See Assault, 3. Compounding offence See Consideration. Condictio indebiti Condictio indebiti — Money paid under mistake of law — Costa — " Putting cases in evidence." S., the owner of a house which he had mort- gaged to A., died, having by his will (of which defendant was executor) bequeathed a life-inter- est in the house to H. PlaintifE entered into occupation of the house as lessee of H. A. ob- tained judgment on his mortgage against defend- ant as executor, and on 8th March 1879 sold the house in execution. It was bought by J., who shortly afterwards died. In June 1879 (plaintiff's lease expiring on 31st July) defendant, as execu- tor, demanded of plaintiff Es. 55 as rent for April and May, threatening legal proceedings. Plaintiff paid. Plaintiff was afterwards sued for the same amount, in respect of the same occu- pation, by. J.'s representatives, and pleaded his payment to the executor, but was condemned to pay the amount and coats. PlaintifE now sought to recover f rOm defendant the Es. 55 pirns the costs incurred in the action by J.'s represerita- tiyes. Held, reversing the decision of the Court be- low, that plaintiff (having paid with full know- ledge of the facts, and if anything upon a mis- taken view of the law) could not recover either the Es. 55 or the costs of the former actioii. Observations on the practice of " putting cases in evidence." D. C. Galle, 46,340. Bogawrs v. VanBwuren,,, 209 Conflicting sales in execution /See Ee&istkahon. Page J. DIGEST. Confusio See Mbeger. Consideration Consideration, vmlomiful — CormpormdAng xyfimi- nal offence — Bobbery. In a suit to recover a sum of money agreed to be paid by the defendant in consideration of plaintifE's withdrawing a Justice of the Peace charge against the defendant of assault and theft from the person of the plaintiff, Held, that the contract was against public policy, and therefore invalid: C. R. Trincomalie, 35,985. Valipulle v. Pon- niah ... ... ... ... ... ... ... 276 Consignee Consignees, liahiUty of, for landing charges — Charges of the Whwrf ^ Warehouse Co. — Ord. 10 of 1876, Schedule A—" Consolidated landmg and shipping charges." Plaintiffs were the consignees of certain rice which defendants had undertaken to carry upon Bills of Lading which gave them the right to land the rice at consignees' risk, with a lien on the goods for charges, according to a scale visible at defendants' agents' office. Defendants em- ployed W. to land the goods, who detained 5 per cent of them till payment' of landing and storage charges. Plaintiffs now claimed damages for this detention alleging a tender of a reasonable amount for such charges, no scale of charges being visible at defendants' agents' office. The scale there visible was that contained in Schedule A to Ord. 10 of 1876, (being the scale charged by W.) which prescribed a " consolidated landing and shipping charge" of 10 cents per bag of rice, with a reduction of 10 per cent, when the goods were taken from the Wharf by consignees and not stored. W. claimed 9 cents a bag for the goods in question, which had been removed from the Wharf. Seld, that the charge of 9 cents per bag was tor the processes necessary to be gone through in order to place the goods on the Wharf free to be removed by the owner, which processes must (in the absence of evidence to the contrary) be presumed to be covered by the expression " land- ing charges" in the Bills of Lading. Held, therefore (there being bo evidence that DIGEST. 11 Consignee— contt!. Page the amount tendered by plaintiffs was a reasona- ble payment for such " landing") that the deten- tion by defendants' agent, W., of part of the goods till payment of 9 cents per bag on the whole consignment was justified, and that plain- tiffs' action failed. B. C. Colombo, 85,584. Guzdm 8r Go. v. The British India Steam NoAjigation Co, 84 Contempt of Court Contempt of Oowrt — Breach of Injunction- Power of District Oowrt to issue inju/nction affect- ing propertif outside its territorial Vvmits hut the subject ofswit before it — Agent of party enjoiried — Notice — Oomirmttal for defimed period. la an action in the District Court of Colombo to enforce a mortgage of a coffee estate situated within the jurisdiction of the District Court of Kandy, the District Court of Colombo issued an injunction against the defendant and his agents to restrain them from coppicing the cinchona trees growing on the mortgaged prdperty. B., the defendant's manager of the estate, after the issue of the injunction, directed his subordinate, the superintendent of the estate, to uproot all the cinchona trees growing on the estate. Upon ' motion to commit R. as for a contempt of Court : Held, that the Diatrict Court of Colombo, haying otherwise jurisdiction to entertain the mortgage suit, had power by injunction to res- train the defendant (and any agent of his, though not a party to- the action, and resident outside the court's territorial jurisdiction) from acts upon the land concerned in the action. Quasre^ whether, the defendant having sub- mitted to the jurisdiction of the court, it was open to his agent R. to raise the question of jurisdiction. Held also,, that the fact of R. being the manager and agent of defendant (on whom the injunction had been served) was not sufficient proof, upon the present motion, of notice to R. of the injunc- tion ; and that it was for the plaintiffs to show, beyond reasonable doubt, that at the time of the alleged breach R. knew of the existence of the injunction. It was proved that at the time of uprooting the cinchonas R. lived 20 miles from the estate, and directed the uprooting by letter to the superintendent, who inquired whether R. had aatboi^ity to. do so,, and stated that his reason for xii j:>ig.est. Contempt of Coxu:t—contiL hesitating to uproot was the fact that there had been a legal dispute about cinchona cutting.. Upon this B. forwarded a letter from defendant informing the superintendent that he had the right to uproot, having consulted his legal ad- visers. E. had no direct notice of the injunction. EMd, that though these facts did not justify the committal of R., it was a case in which R. should pay all the costs in the court below. D. O. Colombo, 85,069. Bennett v. Gow, Ex parte Bobertson ... 158; Conveyance without titles See TnLB, Conviction See ASSATJLT, 1. AsSAtTLT, 2. — Coin Okdinancb.. — Yasbaj^t, 2'. Co-obligfees See Bond, 2. Costs See CoNDicTio indjibiti^ — Jtjkisdiction, 1. — JlTEISDICTIGlir, 4. — Practice, 3.. Court See Judge. Court of Bequests See JURISDICTION, 4. Creasy, Harry, In re ... i,„jj, " •" .•■ .,, J:4&t Crop, mortgage of See MoEiGAGE, 5. Crown. Grown, Itahility of, %mder rating- enactment — PoUee Ordinamce, 1865, sect. 49 — Objections to assessment — Odinomce 5. of 1867, seel. 1 — Roman, Dutch La/u] — Yeotigalia. Section 1 of Ordinance 5, of 1867 covera exactly the same subject-matter as sect. 49 of the Police Ordinance, 1865, and a little more, inasmuch as it provides for an appeal. The provisions of sec- tion 1 of the Ordinance of 1867 must be regarded as substituted for the provisions of the Ordinance of 1865, and as impliedly repealing them. By Proclamation of the Governor in Executive- Coancil, dated 4th December 1869, under section 34 of the Police Ordimance, the percentage on the assessed annual value, leviable on the buildings in the town of Pussellawa, as tax for the mainte- nance of Police, was fixed at 6 per cent. From 1871 to 1881 certain Gossrernment buildings in. that town, occupied by the Public Works De- partment, were assessed for, and. paid, the tax. like private budldings. In the assessment of annual values of the buildings for the- year 1881,, under section 37, the Government buildings were not assessed?, and the Governor by Proclama- tion of 10th June 1)881 fixed, the percentage levi- able at 7| per cent. H., whose estate of Rothschild had' been ass- essed for the tax, and on ^om a notice had been served under section 40 computing' the tax at 7f per cent, on the assessed annual value,, objected before the Coua?t of Requests, to paying the 7^ per cent., and contended that the increase from 6 per cent, was owing to, the omission from, the assess- ment of the above P; W.D. buildings, which were liable to be so assessed under the Police Ordi- nance. The Court below having ordered a new- assessment to. be made including the Govern- ment buiJdings,. Held, that H'. had in effect required the Court, below to alter the peBcentage fixed by the Gover- nor's Proclamation, which it clearly had na power to do» no appeal being given from the determination embodied in the Proclamation. Upon the question whether the Crown was bound by section 34 of the Police Ordinance^ 1865: Held, that if the Crown's pBerogative had not been divested by statute, the mere fact of the- Crown having waived it for 10 years did not stand in the way of its now being asserted. Held also (following Ex parte thc' Postmaster- General^ re Bonham, L. JJ. 10, Ch. D.,. 595) thai Page. Crown— eonirf, Pase the fact that section 33 expressly bound the Crown did not necessarily render the Crown lia^ ble under section 34. Held, that there was not in the Ordinance ex- pression of a clear intention that the Crown was to he bound, and that the law must therefore be consiSered not to have been changed by the Ordinance. C. R. Pussellawa, Lr. A. Sorsfall v. The Queen's Admocate ... ... ... 144 See MoaTGAGE, 6. DSiSiage feasant iSee Cattle Tkes? ass. Pamagea See Cattle Tbespass. Bate of cancelling stamps See Stamp, 1. DeMs, sale of See Fiscal, 6. Decree See Httsbanb and "Wira, 1^ Delivering judgment See Psactioe, 1. Deputy Fiscal See Fiscal, 4. Description of offence See AsSATTLT, 2. District Court, powers of See Contempt of Court. — Insolvency, 4. — Jurisdiction, 4. — Practice, 1. SIGEST, XT Sivideud Page See Insolvency, 4. Bog, tax npon See Local BoAEt). Dominns See Possessory action. Donation Voluwta/ry donation of land — Subsequent lease for valuable consideration by donor — Contest be- tween donees and lessees. H., in 1871, conveyed to her minor children, the plaintiffs, certain land, with a declaration of irrevocability, reserving to herself the manage- ment of the property during the plaintiffs' mino- rity, and the power to lease it for terms not ex- ceeding one year, on the expiration of a present lease then having 5 years to run. Upon the donees attaining majority, they were at liberty to divide the property. In 1872 H. leased the property to third defendant for a term ending in August 1878; and in 1873 to first and second defendants for 4 years from 1878 (with recital of the gift to plaintiffs), the entire rent being paid in advance. H. having died shortly after this, the present action was begun in 1882, during the minority of one of the plaintiffs, the first two defendants being in possession under their lease. The plaintiffs alleged a distinct ouster in November 1875, and prayed ejectment. Held, that the deed of gift was intended to operate upon all the plaintiffs attaining their majority. It appearing also that the greater part of the proceeds of the lease to the first two defendants had been applied to the discharge of a debt (pro- bably contracted before the gift) due by the donor to first defendant : Seld, aflBrming the decision of the Court be- low, that plaintiffs were not entitled to recover. D. C. Kandy, 90,056. GorneUs v. Babands ... 268 See Title. Souatio simplex See Inheeitance. Xvi 11 1 G B S T, Donor without titte subsequently acquiring title Page See Title. Duplicate of deed See Stamp, 2. Xjectmeut See Mortgage, 8. Squitable assignment See Mortgage, 1. Estoppel See Stamp, 1. Svasiou of toll See Toll. Evidence 1. — Evidence — Oaihor affirmation — Child of tender years, admissibility of the evidence of, after simple warning to speak the truth — Evidence improperly admitted. Upon a charge of rape, the proseoutrix M., a child of between 9 and 10 years of age, gave her evidence without being sworn or affirmed, but after having been simply warned to speak the truth, and having promised so to do. The pri- soner having been convicted, Held, upon a case reserved, that a child, like every other witness, must be sworn or affirmed before its evidence can be received, and that therefore M.'s evidence had been improperly re- ceived. Held also {per Clakencb and Dias, JJ., dissen- tiente De Wet, A.C.J.) that, this evidence having gone to the jury, the conviction could not be snstained, although there might be other evi- dence in the case sufficient to support a verdict. The Queen V. Buye Appu. ... 136 2. — Witness who does not understand the obligation of an oath — Oath or affirmation. Upon a charge of rape, the prosedlitrix D. was called as a witness She was about 10 years of age, understood the difEerence between truth and Digest. xvii XvidenCe — contd^ Page falsehood, and that it was not right to tell what was not true ; was possessed of great natural in- telligence, but was wholly uninstructed, and satisfied the Court that she did not understand the obligation -of an oath. She was affirmed and examined, and the jury convicted the prisoner mainly on her evidence. Held, upon ei, case reserved, (per Claeence and DiAS, JJ., disgentiente De Wet, A. O.J.) that to render D.'s testimony admissible it was not necessary that she should comprehend the nature •of an oath ; and that she was a proper person to be affirmed ; and that the conviction should there- fore be confirmed. Per De Wet, A.C.J. — In all cases, no witness «an give evidence except upon oath or solemn affirmation ; and the presiding judge having been satisfied that D. did not understand the obliga- tion of an oath, or its equivalent a solemn affir- mation, she should not have been called upon to make an affirmation. D.'s evidence having been illegally admitted, and the jury having convict- ed on that evidence solely, the conviction should be set aside. TheQueenw. Peris Appu 155 See CONDICTIO nSDEBITI. — Stamp, 2. — Vagrant, 2. Sxecation See Clcb, 2. — Fiscal, 6. — Fiscal, 7. — Insolvency, 2. — Insolvency, 3. — Mortgage, 6. — Mortgage, 8. Extiuctiou of debt See Mortgage, 9.. Pees See Fkcal, 2. Ferry See Toll, STIU D 1 & £ S 1. Fiscal 1.— Fiscal— Ord. No. 4 of 1867, sect, bl— Pa/rate execution — " Forthwith"' — AppUcabiUty where the property sold is not the execution debtor's, but is swrrendered by a, friend of his. PlaintifE, as execution creditor in a previous suit, issued his writ, but his debtor having no property, S., a friend of the debtor's, surrendered his own property in execution of the judgment. The defendant, as Fiscal, sold the right, title and interest of the execution debtor in that property. The purchaser having failed to pay part of the purchase amount, the defendant, 9 months after- wards, resold the property, and 13 months after resale applied for and obtained parate execution against the first purchaser and his surety to re- cover the difference between the amounts realis- ed at the two sales, upon which levy a very small sum only was recovered. PlaintiS now brought action to recover the difference between the amount of his writ and the amount recovered, which difference he had lost by the negligence of the defendant in not reselling and not issuing parate execution, promptly. 'H.Ad, that parate execution was a proceeding instituted for the benefit of the execution credi- tor, and that, the application for parate execution having certainly not been made " forthwith," as required by sect. 51 of the Fiscals Ordinance, 1867, plaintiff would have been entitled to a ver- dict ; but Seld, that the procedure provided by the Ordi- nance applied only to sales of the execution debtor's interest in property, which was admit- tedly nil in this case ; and that on this ground the decree of the court below dismissing plain- tiff's action and ordering defendant to pay the costs ought to be afiirmed. D. C. Kandy, 87,506. Yegappa Chefty v. Page 123 2. — Fiscals Ordinance, No. 4 of 1867, sect. 48-— Sale of moveable property over £ 750 in value— Fiscal's commission. Held, that the words " when the proceeds do not exceed the sum of seven hundred and fifty pounds sterling," in sect. 48 of the Fiscals Ordi- nance, 1867, applied only to the proceeds of the sale of immoveable property, and did not affect the rate chargeable by the Fiscal on the proceeds of the sale of moveables. 0. R. Colombo, 33,634. Sally, BasUm „, 182 DIGEST. 3:iX Tiscal—cmtd. Page 3. — Fiscal'a Sale—Ordinance 4 of 1867, seet. 58 — Irregula/rities — Action to set aside sale on grounds fallmg under sect. 53. Section 53 of the Fiscals Ordinance, 1867, pre- scribes the sole procedure open to a party con- sidering himself aggrieved by irregularities in the publishing or conducting of a Fiscal' s sale, and such sale cannot be set aside in a separate action on grounds falling within the purview of section 53. D. 0. Matara, 82,285. Idroos Lelhe v. The Deputy Fiscal of Matara 224 ^—Fiscal — Ordinance, 4 0/1867, sects. 5,83 — Bond to Fiscal of Province — Assignment thereof by. Deputy Fiscal ofDistriflt. Upon a seizure of certain property in execu- tion, two persons claimed it as their own, and were allowed to retain possession on "giving a bond to the Fiscal of the Central Pi?ovince, under- taking to deliver the property to the Fiscal when called upon. The Deputy Fiscal of Matale pro- fessed to assign this bond to the plaintiff by indorsement as directed by section 83 of the Fiscals Ordinance. Held, that the assignment was bad, having been made by a party having no interest in the bond. D. 0. Kandy, 88,616. Ibrahim Saibu v. TFwflsp- j>e» %>.— Fiscal, action against, for neglect of duty — Pre- scription — Ordinance 4 of 1867, sect. 21 — Accrual of cause of action. Plaintiff, the holder of a writ against two per- sons, placed it in the hands of defendant, a Fiscal, for execution. Defendant purported to seize certain land of the execution debtors, but the seizure was bad for the omission of certain formalities. Between the seizure and the day fixed for sale, viz. on 20fch January 1879, the exe- cution debtors conveyed the property seized to A., who claimed the land and stayed the sale. Plaintiff brought an action to set aside A.'s claim as made pending seizure, which action was finally decided against plaintiff in appeal on 7th September, 1880, on the ground that there had been no valid seizure prior to the conveyance to A. Plaintiff brought the present action, for damages, against the defendant in February 1881. 226 XX DIGBST. Fiscal — fonld. Pase Beld (affirming the decision of the District Court) that plaintiff's cause of action accrued on defendant's failure to make a valid seizure, and that plaintiff's action, not having been brought within nine months of such accrual, iras barred by section 21 of the Fiscal^ OrdAnanee, 1867. D. C. Kandy, 87,943. Mutappa Ohettif v. Oonolly 232 6. — Fiscal — Execution — Orddnance 4 of 1867, sect. 44 — Sale of debts- — Gom/mon Icmr proceeding. The procedufre for the attachment of debts pre- scribed by section 44 of the Fiscals Ordinance,. 1867, does not preclude a plaintiff from selling in the ordinary course of execution debts due to his execution debtor, but simply provides an alternative and summary proceeding for the pur- pose. D. C. Kandy, 88,489. Mehamado v. Mae Gairogher, Ex parte MacOarogher 244 7. — Fiscal — Procedmre to set aside sale in execution — Ordinance 4 of 1867, sect. 53 — Sumjmary prO' eeedings — Statement of objections.. Observations on the course to be adopted ia proceeding under section 53 of the Fiscals Ordi- Jiarecej 1867, to have a Piscal's sale in execution set aside for irregularity. D. C. Colombo, 86;645. Aroohiampulle v. 24^ 8. — Parate execution — Fiscals Ordina/nce, sect. 51 — Necessity for separate sy/it — Notice of motion to pa/rtiee affected. Parate execution, under sections 60 and 51 of the Fiscals OrdinoMce, 1867, should issue in the suit in which the original execution issued. No notice of the motion for parate execution need be given to the party affected, who may be heard upon motion to recall the writ. I). 0. ColombOi 1,950. The Queen's Ad/oocaie y. Oure, Ex parte liiesching 295, iSee MoKTOASB, 2. — Registeatign. Fiziug fond by notice See Pbeferbbce and Concueeencb, 1. Page Fornication See Vagrant, 1. Forthwith See Fiscal, 1. Fraud See Eegistration. Fund in Court See PrEJEBENCB and CoNCtTEKENCE, 2» Fund in third party's hands See Peefebence akd Ooncuebbnce* 1» Fnrnitnre on estate See Mortgage, 7. Gaming^ See Vagrant. Guarantee, continning^ See Pbincipal and. Sttrett, 2^ "Hear, try and. determine" See Transieb of prosecution^ Heirs, liahility of See Princifal and. Surety, 2.^ Solding^ over See LANDioaD and. Tenant^ HtLsband and wife 1. — PracUoe — Husband cmd! wife — Power of wifey who has heen deserted hy her hushoMd, to sue for- property constituting thejovnt estate — ^IJecree. As a general rule, a Boarried woman whose- husband is alive cannot maintain an action, bub where the husband is absent and has deserted his wife, she may commence an action in respect of property forming part of the joint estate ;, but Husband and vife—contd. Page the wife, before sb© can proceed with the suit, is bound to summon the husband and give him an opportunity of taking up the suit if so disposed. D. C. Matara, 30,171. Lekuhamvy v. Abeyhamy 211 2. — Husband' cmd wife — Swrmvvng spouse gwing bond for debt of deceased spouse — LiabiUty of land belonging to the community to be sold vmder judgment on the bond — Children of the marriage, rights of^ The surviving spouse of a marriage contracted in the community of goods had (without the con- sent of the children of the marriage) granted a personal debt-bond for the amount of principal and interest due to the same obligee upon an older bond of the deceased spouse. Held, that the entire property of the commu- nity was liable to sale in execution of the judg- ment obtained upon the -survivor's bond, though the children of the marriage were no parties to it, or to the action founded upon it. The purchaser at such, fiale takes an imperfect title, subjeet for its validity to proof on his part that the obligation of the survivor had been in!> Gurred for the purpose of paying ofi the debt of the community. Ederemanesingam's Case (Vand. 264), and D. G. Galtwra 17,064 (3 Lorenz 235), specially con- sidered. C. R. Colombo, 250. Amaris A'ppuv.Pepera... 343. See Administbation. HTpotliecation of mortgage to mortgagee's creditor See MoRTQAGS, 3. Improper admission of evidence See Evidence, 1. EVIDBNCE, 2. Increased rent See Landloed and Tdnant. Indecent language See Assault,, 3. DIGEST. XXUl Inheritance Page Inheritance ab infcestato — Collation— -DaaKtio simplex, liabiUiy of to collation. S., the owner of three lands, coHveyed by deed to the defendant, his only son (the youngest oJ seven children) undivided half-shares of the lands, resOTving to* himself the right of posses- sion so long as he should live. S. having died intestate, the plaintiffs (his wife and children) raised the present action to eject the defendant from certain encroachments made by him on the remaining halves of the lands, which the plain- tiffs claimed to inherit exclusively, the defendant being unwilling to collate the subject matter of his gift. Defendant claimed, in addition to the halves gifted to him, an undivided one-fourteenth of the estate of S. as one of seven children of S. Held, that the gift, not having been made in consideration of marriage or for other special purpose, was a donatio simplex, and as such not liable to collation except in two cases, viz. first, if it was expressly made liable to collation ; and second, if some of the donor's children have received dowries, and the donatio simplex be given in lieu of a dowry. Held accordingly, that the gift to the defen- dant was not liable to collation. D. C. Colombo, 79,606. Johawna v, MwrmoMis 172 See Kandyan Law. Injunction See Contempt op CotraT. — Insolvency, 2. Insolvency 1. — Insolvent — Ordinance 7 of 1863, sect. 152— Certificate in the Form B. P., an insolvent, had passed his examination and had his protection extended for one month from 23rd November 1880. He applied on 30th May 1882 for a certificate of conformity, but on the day fixed for considering it withdrew his ap- plication. No further order as to protection was made. Held, that under these circumstances a certifi- cate in the Form R. in the Schedule to Ordinance 7 of 1853 was wrongly issued to a prove.d credi- tor. XXIV B 1 & E S 1. Insolvency— c<»j«(2. Pa&b Be T. A. PiefiB (S. C. Min., 4tli Nov. 18?3) followed. D. 0. Ins. Colombo, 1,216. Be M. Perem, Ex rpairteH.T.Pefera 205 2. — Insolvency — t'Hjwrvettonr^ Assignees right to re- straim execution crecUtor of msohient from selUng moveahles of insolvent in execution — Svmn/ma/ry application. Defendant was adjudicated insolvent on lOfch January, and appellant was appointed his as- signee on 14tli February. Plaintiff obtained in this suit a money judgment against defendant on 16th January, issued writ, and on 23rd Febru- ary seized in execution certain shop goods of defendant then ia the custody of appellant as assignee, and advertised them for sale. Appel- lant, upon affidavit of these facts and notice to plaintiff and defendant, moved (in effect) in this suit that the Fiscal might be restrained by in- junction irom selling the goods in execution. Held, that the application had been rightly re- fused hy the District Court. Semble, that the Court might have granted an injunction, had the application been made in the ordinary course upon a fresh libel filed. D. 0. Colombo, 85,853. Meera MwTewr v. Bamsy Lehhe, Bx parte Mohamado Lebbe 241 3. — Insolvency — Property acquired pending insolr vency, sale of in execution — Judgment on debt contracted pending insolvency — Bight ofpv/rchaser to sue for rent — Surrender by assignee to Insol- vent — Ordinance 7 of 1853, sect. 79. Pending the insolvency and before the certifi- cate of K., who had a life-interest (acquired pend- ing the insolvency) in a house occupied by de- fendant, plaintiff purchased K.'s interest in the house at a sale in execution of a judgment against K. obtained upon a debt contracted pend- ing the insolvency. Plaintiff now sued defendant for use and occupation. Defendant admitted occupation, but pleaded the insolvency and his liability to the assignee for the rent. Meld, that the right to recover rent had passed to and was vested in the assignee, and that plaintiff's action had been rightly dismissed. Quaere, whether, if the assignee had surrender- ed the property in question to the insolvent, the plaintiff would have acquired any right by his puroha,se prior to such surrender. C. E. Colombo, 32,334, Loos v, Sekana Lebbe. 304 DIGEST. XSV lasftlvenoy— co»j«rf. Page 4 — Insolvency — Mortgage creditor, who has realised security, proving for balance debt after one di/oi' dend has been paid — Bight to payment of first dividend out of funds in Assignee's hands before payment of second di/uidend to other creditors — Ordinance 7 o/1853, sections 108, 109 — District Court rescinding its own order allowing proof of claim. C. was declared insolvent on 5th September 1879. On 26th November A. and H., mortgagees of a cofEee estate belonging to the insolvent, commenced an action for realizing their security. They sold the estate under a mortgagee's decree and purchased it themselves for Rs. 10. Mean- while a dividend had been declared and paid to the proved creditors. On 21st April 1882 A. and H. were allowed to prove a claim of Rs. 25,244.61 against the insolvent estate, being balance due on their mortgage, deducting certain payments already received by them out of the estate. On 11th September A. and H. moved that oulj of the monies in the Assignee's hands they might be paid (before any payment on account of second dividend) an amount equal to what they would have received as first dividend on the debt they had now proved had they been proved credi- tors at that date. The Court below refused this motion, and also refused to allow the mortgagees to prove any balance sum due on their mortgage bond, against the insolvent estate. Held, that the District Court could not set aaide its own order previously permitting the proof of the mortgagees' claim. Held also, that by section 109 of the Insolvency Ordinance the act of proving a debt which is the subject of a suit is a relinquishment of that suit, and that appellants were rightly allowed to prove for their balance debt. Held also, that in equity a creditor, who proves after a dividend has been made, is entitled to be put on the same footing as the creditors who have already received the previous dividends, [provided he does not disturb any dividend al- ready paid]. Ex parte Stiles (1 Atk. 108) and Be Wheeler (I Sch. and Lef. 242) followed. D. C. Ins. Kandy, 886. Be GhamberUn, E.o parte Anderson ,,, ,,, ,,, ... 318 See MojlTGAGE, 1. XXVl B 16 BS 1. Page Interest See .Tduisdicimn, 4. Interest of judge See Judge, 2, Irregularities in Fiscal's sale See Fiscal, 3. Jcint and several liability See Bond, 2. — Judgment. Joint estate See Husband and Wipe. Judge 1. — Judge — Power to order removal of proctor ap- pearing in cause — Bond fide belief that Cowrt's hmsiness was hei/ng obstructed. A Commissioner of Bequests has clearly power to turn out of Court any one who obstructs or disturbs the business of the Court, even though such person be an Advocate or Proctor actually engaged in the pending case. It is also within the jurisdiction of the Commissioner, as a matter of course, to determine whether or not any per- son to whom his attention may be directed is so obstructing or disturbing the business as to render it expedient that such person be removed from the Court. And if the Gommissiener have decided that point in the affirmative and acted accordingly, he is protected against action, civil or criminal, [unless he have acted with malice], and the correctness of his opinion on the facts cannot be reviewed by another tribunal in any separate action founded on such act. B. M. Kandy, 17,879. Bama v. Ashmore ... 110 2. — Judge, interest of— Prosecution at instance of the Court. Upon a charge of theft coming on for trial against defendant in the Police Court, the com- plainant was absent. _ The Magistrate dismissed the charge, but (considering the charge too seri- ous to be dropped) directed the Police officer attached to the Court to present a fresh plaint ia DI&EST. XXVII JvLdge—contd.. 'Fasm his owU' name agomst the defendant. TTpon, this nevr plaint the Court tried and convicted the defendant. The Supreme Court, upon appeal by the de- fendant,, quashed the proceedings,, holding that the Magisti-ate,. having iudentifled himself with, the prosecutoE,. had rendered himself incapable of dealing with the case as a judge. P. 0. Batticaloa, 19,718. Modder v. Muttu- hutty, 332 Judgment Jioint and several tiability on judgment. "Where a judgment dfecreed that plaintiff should; recover a sum. specified from the defendants and oat of the estate o£ aa intestate person in. their hands, Se?^, that under- this jjidgment the plaintiff mig.bt recover the whole amount from either de- fendant. D. C. Kandy, 81,309. Be Silva v.. Bmhamy. 8lJ Jlidgmeut for admitted^ amDunli See Practice, 4 Jurisdiction l.—Jv/risdiction to give costs^ where the Cburt has: no jurisdiction to. try the action — Plea to the jwrisdiction. Plaintiff, sued the defendants for damages for breach of an agreement to marry. The defen- dants pleaded to the merits, justifying the- breach. At the triaJ the Commissioner,, holding, he had no. jjardsdiction- to try a matrimonial, action, dismissed plaintiff's suit with costs. Heldy (without expressing any opinion as to. the power of the Court ia case th& defendants had taken the plea to the jurisdiction) that, the plea not having been taken by the defendants but originated by the Court, costs were impro- perly decreed' to the defendants. .He7e2 also,, that the proper order would have- been that the suit do abate. C. R. Balapitiya, 29,712. Asagurwv. Tayetu Gwu ,„ , ,„ ,., ,„ ,„ m XXviii DIKES -t. Jurisdiction— eonid. Pare 2, — Jurisdiotion of Supreme Court over case in which accused home been cormnitted for trialhefore it — Case not yet on Calendar. The two parties committed for trial in this case before the Supreme Court at Colombo on charges of theft, stellionatus, &c., moved the Court for a transfer of the prosecution to the current Session of the Court at Kandy, on the ground that the first defendant's medical advi- sers had directed him to leave the Island as soon as possible ; and that the Colombo Session would delay his departure over two months. Seld, that, the Justice of the Peace being ftmctus officio, the Supreme Court had jurisdic- tion to make the order asked for. Seld also, that sufficient cause had not been shown for making such order. J. P. Colombo, 3,111. The Queen v. Armitage. 4A 3. — Jurisdiction of Police Cowrt — Paddy Ordimanee, No. 14 of 1840, sects. 6 andU — Penalty of double value of Government share of crop — Queen's Ad- vocate's certificate under Ordinance 11 of 1868, sect. 99. Section 14 of the Paddy Ordinance, 1840 enacts inter aUa that any proprietor, who shall thresh the crop of his field liable to tax, without giving due notice to the headman, shall on conviction ba fined to the amount of double the value of the share due to Government as tax. The defendant, having been charged with a breach of section 14, was convicted and sentenced by the Police Court to pay a fine of Rs. 69, being double the value of the Government share. Held, tjiat in the absence of the Queen's Advo- cate's certificate contemplated by section 99 of the Administration of Justice Ordinance, 1868, the Police Court had not the jurisdiction to en- tertain the charge. P. C. Chavagachcheri, 6,889. Kanther v. Kovinlar. ... ... ... ... ... ... 154( 4. — Jurisdiction — District Court or Court of He- quests — PiS. 100 and interest — Practice in com- mercial matters — Costs — Proctor, status of, inde- pendent of client. An action to recover Rs. 100 and interest thereon must be brought in the District Court. The Court will follow the English practice in commercial matters, aud Trill not give interest DIGEST. Jurisdiction— con«rf. Page on claims for goods sold and delivered, on ac- count stated, and such like, unless a specific agreement to pay interest be shown. Where a proctor has appeared in the case sim- ply as proctor for the plaintiff, and has signed plaintifE's petition of appeal against an order directing plaintiff's proctor to pay the defendants' costs, such proctor has no status to appeal on his own account against that order. D. C. Colombo, 86,440. Ahamat v. Martinus.^ 341 See Contempt or Coukt. — TkANSMB op FilOSECUTIOir. Juris quasi possessio iSee Servitude. Eandyan law KandyoM law — Adoption for purposes of inheri- tance, requisites for — Marriage — Ordmamce 6 of 1847, sects. 2 and 28 — Ordinance 13 of 1869, sect. 36. M. (a Kandyan Singhalese) andB. (a woman of European descent), professing Christianity, were in 1836 married according to the rites of that religion in Gampola. After 7th December 1849 (when the Ordinance 6 of 1847 was confirmed by Her Majesty by notice in the Gazette), B. being still alive, M. conducted as his wife M. M. (a Kandyan woman) according to Kandyan customs. Held, that M.'s second marriage was invalid and bigamous, under Ordinance 6 of 1847, sect. 28. The requisites for a Kandyan adoption, for purposes of inheritance, discussed. D. C. Kandy 53,309 (Grenier, 1873, p 117) approved. D. 0. Kandy, 89,562. Karv/naratne v. And/re- ioewe 285 Eandyan Provinces See Sekvitude. Labour Ordinance S^ee Mastee and Seevant. Landing charges $ee Consignee, XXX I) I G R S T. Landlord and Tenant Landlord a«cZ tenant — Notice to quit — Increased rent for holding over. Pagu Plaintiff as landlord gave notice on 20th February to the defendant bis tenant to auit the plaintiff's hou'se on Slat March, in de&nlt of which the plaintiff would charge the defendant rent at the rate of Bs. 50 instead of Bs. 31.50 per month for such time as the defendant should hold over. The defendant quitted the house on. 16th or*18th April, and plaintiff brought this action to recover Es. 50 as rent for April. Beld, that plaintiff was entitled to recover. C. E. ColomfaOi 35,425. Jacobs v. Eberit ... 307" Lease See Lessor and Lessee. — Donation.. Lessor and Lessee Pra/cUce — Lessor and Lessee — Action Vy lessee against trespasser — Joinder of lessor as defendant t» warrant and defend) title. Plaintiff,, a* leasee who had been duly put in possession of the property leased, sued his lessor and two others, averring that second and third defendants had trespassed upon the property and forcibly appropriated certain goods of plaintiff's, and calling upon his lessor (the first defendant) to warrant and defend title,, and, in failure, to pay plaintiff the rent advanced and the value of the goods appropriated by the trespassers. The trespassers having claimed and proved title to the property leased, first defendant was by the Court below decreed to repay the advance rent and cast in damages and costs. Held (reversing the decision of the Court of Bequests), that the first defendant had been im- properly joined in the suit and was entitled' to. be absolved from the instance with costs. D. C. Negomho, 7,744 (1 S. C. C. 54) approved quoad hoc. 0. B. Galle, 60,977. Be Silva r. Ferera. ... 234 Licence See Akuack, limitation PAGJi iSee Assessment for Polick tax. — Prosecution, 1. Xive and dead stock See MoKiGAeE, 7,. Xocal Board Local Board Bye-law — Ordinance No. 7 of 1876 — Power to' •create orimmal offences bypassing bye- laws for purposes not specified in the Ordinance — Ultra vires. A Local Board established under Ordinance No. 7 of 1876 had passed a Bye-law making it an offence for any person ■ after the 30th June of each year to keep a dog, for which the tax levied by the Board had not been paid, within the limits of the Board and without notice thereof to the Board. The Bye-law professed to have been made under section 35 of the Ordinance, and was pub- lished in the Gazette as having been approved by the Governor in Executive Council. Seld, that the bye-law in question did not fall tinder any of the eighteen purposes specified in section 35 -, and accordingly, Held, that the bye-law was idtra vires of the Local Board. P. C. Gtampola, 3,477. Ambrose y. Slema Lebbe 95 Maintenance Non-iTiainlenance of illegitimate child — Flea of autrefois acquit. Defendant on a charge of not maintaining his illegitimate child (in breach of subsect. 2 of sect. 3 of the Vagrants Ordinance, 1841) pleaded autre- fois acquit, showing that he had in a previous case been acquitted on a charge tendered by complainant of not maintaining the same child. Held, that though there was no special verdict on the point the previous case must be taken to have disposed of the question of paternity, which was of the essence of the charge. Held also, that, the non-maintenance of illegiti- mate children being a criminal offence, the pre- vious verdict rendered the matter now in issue res adjudieata, so that the special plea ought to have been sustained. P. 0. Colombo, 7,874. Batchyhamy y. Pieris... 93 XXXJl DIG K ST. nXarriage Page 5'ee Kasuyax Law. 3Uaster and Servant Ordinance No. 11 of 1865, sect. 11 — " Quitting service." On a charge under sect. 11 of the Labour Ordi- nance of quitting service without notice or reasonable cause, the evidence showed that de- fendant was complainant's cook, having also to work in the bungalow, and that one evening, after preparing the dinner, he went away without leave (leaving his boxes behind) and returned the next morning. Held, that these facts did not amount to a quitting of complainant's service within the meaning of the Ordinance. P. C. Dimbula, 6,650. Bellv.Dilh 102 Maxim Mohilia non hahent sequelani. See MoKTGAGE, 6. Mercliant Shipping Act See Ship. Merger See Mortgage, 4 — Mortgage, 9. Minors, rights of See Administeation. — Husband and wife. Mistake See CoNDICTlO INDEBITI. Money paid under mistake See Co^-DlCTIO ISDEBni. Digest. Mortgage 1. — Equitable assignmient of mortgage debt—Insol' vency—' Order and disposition' of Insolvent— Pase Trust. M., the owner of a cofiee estate, mortgaged id to W. & Co. as security for funds supplied and to be supplied to him by W. & Co. for the work- ing of the estate. W. & Co. subsequently, with notice to M., entered iato an agreement with H. B. & Co. that the latter should advance to W. & Co. the monies necessary for them to keep their engagement with M., W. & Co. undertaking to. hold the securities created by the mortgage bond as trustees for H. B. & Co. to the extent of their advances to W. & Co. "W. & Co. having become insolvent, their assignees (the defendants) claim- ed the sum due upon the bond (which had been deposited in the bands of a stakeholder) for the benefit of the general creditors as agSdnst S. B. & Co.. Seld, that the agreement of W. & Co. with H. B. & Co. constituted an equitable assignment tO the latter of the former's rights under the mort- gage though tho indicia of title had remained with W. & Co. Seld, that therefore the right of action on the mortgage (which had been a ehose in action in- the order and disposition of the insolvent) did not pass to the assignees for the benefit of the general creditors, and that H. B. & Co. were entitled to the sum deposited as due under the mortgage bond. D. C. Colombo, 30. Harvey, Brand 8f Go, v. Hedges 49 2. — Furehase in executiou of land subject to mort- gage — Subsequent 'pv/rehase under the mortgagee's writ — Might of first pv/rchaser to refund of pur- chase money. Plaintiff on money judgment obtained issued writ and caused the Fiscal to sell (subject to a mortgage in favor of C.) an undivided interest in land belonging to the defendants, which was purchased by the respondents. This sale was never confirmed by the Court. Subsequently C, having obtained a mere money judgment on his mortgage bond, caused the same property to be sold in execution and purchased it himself. Heidi that under the 53rd clause of the Fiseals Ordinance, 1867, confirmation by the Court was necessary only for those sales which had been impeached, and if no objection to the sale were iXliV » I 6 E S T. Mortgage— e&nid. Page lodged witMn 30 days 16 was confirmed 'ipso facto. Held accordingly, that respondents were not under section 55 entitled to a refund of their purchase money. D. C. Cdombo, 77,900. Perera y. Bias, Ex parte Jayesekere ... ... ... ... ... 78 3. — Mortgage, hypothecation and part assignment of, to mortgagee's creditor — Suit to enforce such mortgage against third pcvrty in possession of property morigaged^— Proof of debt due hy party assigning. S., the owner of Grotto Estate, mortgaged it in 1875 to W. to secure a debt and future advances. In 1876 W. by deed acknowledged a debt due to plaiiitifE, and as security hypothecated to plain- tiff W.'s mortgage on Crrotto, giving plaintiff a Power of Attorney to sue on W.'s mortgage to recover such part of S.'s debt to W. as would cover W.'s debt to plaintiff. In 1878 S. sold Grotto to A. who re -sold to defendant. Plaintiff having in 1880 obtained judgment against W. and S. on the bond of 1876, declaring S.'s debt to W. executable pro ta/nto in satisfaction of that judgment, and declaring also the property mort- gaged by S. to W. so exetiutable, sought to sell Grotto in execution, and brought the present suit to set aside defendant's objection to such sale. Held, that plaintiff's judgment against W. and S. did not bind the defendant, and that before she could seek to enforce S.'s mortgage to W., 6he was bound to establish as against the defen- dant that a debt was owing to her from W. ; and this she had neither averred nor proved ; and that plaintiff was therefere not entitled to the rehef prayed against defendant. D. 0. Kandy, 88,445. [Barry v. Allah Piiche. . . 106 4.— Mortgage — Mortgagee's remedy against third parties, transferees of mortgagor, in possession— Pleadmg — Continuance of Mortgage debt — Merger of mortgage in judgment— Registration — Priority. C. and P., on 6th Januaiy 1876, mortgaged three pieces of land to plaintiffs to secure a debt of Es. 7,500. Plaintiffs, on 30th October 1879, obtained judgment on their mortgage and a mortgagee's decree. Plaintiffs sued out execu- tion against the mortgaged property but found the defendants "in possession." The defendants had purchased the interest of 0. in the mortgag- ed property at a sale in execution of a money DIGEST. XXXT Fags HE octgage— conf c2, decree obtained by plaintiffs, in another suit,, after the date of the mortgage. Plaintiffs now, setting out the above faots> and averring thai defendants " continued in possession objecting- to the plaintiffs selling the said lands to satisfy the amount of the mortgage decree," prayed that the lands might be declared executable and liable to be sold under plaintiffs' writ in the mortgage suit. Held, following D. G. Matam 29,149 (1 S. C. 0. 80) that this disclosed a misconception of plain- tiffs' remedy, which should have been to aver and establish, as against the mortgagors' transferees, the mortgage and the continuance of the debt, and to pray (not that the. lands be declared sale- able under a previous writ issued against the mortgagors, but) that the lands be declared sim- ply executable and saleable as against the trans- ferees. As to continuance of the debt, the plaintiffs merely averred that they had obtained a judg-- ment against the mortgagors. Defendants did not demur, but denied the mortgage. The mort- gage was ^rima /awe established, by the admis- sion in evidence, by consent, of plaintiffs' mort- gage deed. Seld, that there was no sufficient averment of the continuance of the debt ; and defendants were absolved, from the instance,, but without costs. D. C. Kandy, 87,172. Sinnaiah Chetty v. Babcmis 213; ^—Morigag^^Goffee estate— Mortgage' of coffee c/ro^ with eovena/nt to consign- crop to mortgagee for miring, shi/pment a/nd sal&SAght of uTvsecur- ed creditor to seize and sell sueh crop im emeeution —Preference and concv/rrence — Moveables, right of mortgagee' to follow— MoMrn, MobUia non habent sequelam. On 1st October 1880' plaintiff obtained judg- ment on a cheque against the defendant, the owner of a coffee estate. On 2nd October de- fendant, by a deed which was registered within one week of its execution, " specially hypothe- cated, assigned and set over to the appellants, as a first charge free from all encumbrances," the crop of the estate for the season 1880-81, to secure certain advances to be made by appellants to defendant, undertaking to consign such crop to appellants for curing, shipment and sale, de- fendant to be credited witk the n.et procseds. ixxvi . DIGEST. Mortgage— conzd. Page Appellants made certain advances in pursuance of this arrangement. Plaintiff thereafter issued his writ, seized and sold part of the hypothecat- ed crop. Held, that appellants having a preferent right of hypothec over the coffee, had a right to pre- vent the plaintiff, who had no such hypothec, from selling such coffee in execution of his judgment. The coffee having been sold under plaintiff's writ, and the proceeds deposited in Court : Held, that, as long as the money remained in Court, the appellants as hypothecary creditors had a right to be paid thereout the amount of their advances in preference to the execution creditor or any others claiming concurrence with them. D. C. Kandy, 86,520. Bamen Ghetty v. Hoodie, Ex parte Whittall ^ Co 217 6.— Mortgage — Mortgage effected after accrual of Crown debt — Sn.gM of Crown to "preference of paymenf — Ordinance 14 o/1843, sect. 5— Sale of execution debtor's " interest"-'—Seizitre, continu- ance of. In 1873 the first defendant was the owner of certain land. In November 1873, S. obtained judgment for a large sum of money against the first defendant. In July 1879 the Queen's Advo- cate obtained judgment against the first defend- ant for certain money due by him to Government upon his purchase of an arrack-rent. In Decem- ber 1879 fii'st defendant mortgaged his land to plaintiff. In 1876 S. seized the kind in execution of his judgment, but did nothing further under bis writ. In January 1881 the first defendant's interest in the land was sold by way of a joint levy under the writs of S. and the Crown, and was purchased by the second defendiant. Plain- tiff now sued the defendants on the mortgage contract, praying that the mortgagor's interest as it stood at the date of the mortgage might be declared specially executable for ths debt. Held, that the seizure of the land effected by S. in 1876 must be taken to have been abandoned by 1879 when the mortgage was created ; and that the mortgage was therefore not affected by such seizure. The Fiscal having, at the sale at which second defendant purchased, sold the execution debtor's interest in the land : Held, that this sale passed only the debtor's DIGEST. mortgage — contd. Page interest as at the date of seizure, when plaintiff's mortgage was in existence. Held therefore, (affirming the decision of the Court below) that plaintiff was entitled to judg- ment. Per Claeence, J. — The Ordinance 14 of 1843, by giving the Crown a " preference of payment" over other creditors, did not give it power to sell the property of its debtor free from all encum- brances created after the accrual of the Crown debt ; and it is questionable whether the privi- lege of the Crown amounts to more than a right to preference quoad any assets which may from time to time have been realized and brought into Conrt, including perhaps a levy by a mortgagee under a mortgagee's decree. D. C. Kandy, 87,824. Be Mell v. Perera ... 227 7. — Mortgage — Coffee estate with the " live and dead stock" thereon — Sitngalow fitrnitwre on estate. Bungalow furniture, kept on a coffee estate for the use of the Superintendent, is prima facie not covered by a mortgage of the " dead stock" on the estate. If any person be interested in main- taining the contrary, it is for him to satisfy the Court of any particular usage or circumstances, by reason of which such furniture does form part of the " dead stock." D. C. Kandy, 91,S73. Ahram Saiho Sf Go. v. KerryExpoHeKerr 278 8. — Mortgage — Mortgagee plaintiff purchasing pro- perty mortgaged in execution — Ejectment — Non- joinder of parties in possession in mortgage sidi. Plaintiff obtained judgment in a former action on a mortgage bond against his debtor, and bought the mortgaged property in execution on 18th January 1882. Plaintiff brought the present action against two defendants to obtain a decla- ration of title to, and possession of, that property, alleging that defendants had taken the crop off the land after plaintiff's purchase. The second defendant had on 19th April 1881 purchased the same land in execution of a money judgment against plaintiff's mortgagor during the subsis- tence of the mortgage. Held, affirming the decision of the court below, that plaintiff, not having joined in his mortgage suit the purchaser in execution of the money Mortgage— TO"''f. Page judgment (the present second defendant) could not succeed in the present suit. C. E. Matale, 3,747. Mahamiadv,. Tamby v. Hahamadu Ali \ 29S 9. — Mortgage — Purchase hy mortgagee, v/nAer third party's writ, of part of mortgaged property — Jfer- ger — Extinction of debt. Plaintiff, who keld a mortgage over eleven of defendant's lands to secure a debt of Rs. 4,000, obtained, on 23rd February 1882, a mortga- gee's decree, and levied a sum ot Rs. 596 by sale of part of the mortgaged property. A third party, having previously obtained a- money judg- ment against defendant, seized and sold another part of the property mortgaged, expressly sub- ject to plaintiff's mortgage, and plaintiff pur- chased for Rs. 100. The greater part of the mortgaged property still remained undiscussed. Held, that defendant's motion, to have satis- faction of plaintiff's mortgage judgment entered up, had been rightly refused under these circum- stances. D. 0. Colombo, 86,981. Morga/iiY. Wijeyegoone- tillehe 324- See Bond, 2. — Insolvekcy, 4. — Practice, 4.. — Phncipal and StraETY, 1.. — Eegistkation. Mortgagee proving in. insolvency See Insolvency, 4. Mortgagee purchasing property mortgagecL See MoETGAGE, 9. Moveables See Mortgage, 5-. Municipal bye-laws See Bye-law. Municipality See Prepekence and Concurrence, 1, DIGEST. Uunicipality bi Kandy See Bye-law. Naming of defendants See Vagrant, 2. Xr^gligrence See Principal and Surety, 2. JSle Itiiainibns officiatur See Servitude. Ifon-joinder See MoRTGAeE; 8. Ifotary's protocol of deed See Stamp, 2. ITotice of action See Assessment for Police tax, Notice of motion See Fiscal, 8. ITotice to pay See Preference and Concurrence, 1. ITotice to qnit See Landlord and Tenant. Oatb. or afSrmation See Evidbnce, 1. — EvlDENCB, 2. Objection to assessment See Assessment for Police tax. — Crown. Objection to execution sale See Fiscal, 7. Page jl BIG J! ST. Obstructing Court's business Page Bee Jldge, 1. Onus probandi See Burden op PBOor. "Order and disposition" See MOETGAGE, 1. Order of payment See Pbeferbnce and Concuerence, 2. Ordinance dealing with same subject as bye-law See Bye-law. Ordinances No. 8 of 1834, sect. 2. See Sebvitude. No. 14 of 1340, seofcs. 6, 14. See Jukisbictiow, 3. No. 4 of 1841, sect. 3, subsect. 2. See Maintenance. ' , sect. 4, subsect. 4. iSee Vagrant, 2. ■ , sect. 4, subsect. 6. See Vagrant, 1. No. 14 of 1843, sect. 5. See Mortgage, 6. No. 10 of 1844, sects. 26, 65. See Aukack. No. 6 of 1847, sects. 2, 28. See Kanbyan Law. No. 5 of 1852, sect. 6. See Servitude. No. 19 of 1852 [repealed.] See Stamp, 2.. No. 7 of 1853, sect. 79. See Insolvency, 3. ■ , sects. 108, 109. See Insolvency, 4. . sect. 152. See Insolvency, 1. No. 5 of 1857, sects. 12, 13. See Coin Ordinance. No. 13 of 1859, sect. 35. See Kandyan Law. No. 18 of 1861, sect. 13. See Assault, 3. No. 15 of 1862, sect. 16. See Bye-law. No. 8 of 1863, sect. 39. See Ebgistration. No. 11 of 1865, sect. 11. See Master and Servant. No. 16 of 1865, sect. 49. See Crown. , sect. 75. See Assault, 3. No. 17 of 1865. -See Bye-law. , sects. 44, 52. See Preference and CONCUBRENCB, 1. , sect. 177. See Assessment for Police tax. No. 4 of 1867, sects. 5, 83. See Fiscal, 4. , sect. 21. See Fiscal, 5. ■ ■, sect. 42. See Registration. . sect. 44. See Fiscal, 6. ■ — , sect. 48. See Fiscal, 2. , sect. 61. See Fiscal, 1. , . See Fiscal,. 8. D I G B S T. xli Ordinances— con^c/. Page No. 7 of 1863, sect. 53. See FiscAt, 7. See Fiscal, 3. -, sects. 53, 55. See Mortgage, 2. No. 5 of 1867, sect. 1. See Assessment job. Police TAX. No. 14 of 1867, sects. 17, 18. See Toll. No. 11 of 1868, sect. 22. See Jukisdiction, 2. , . See Transpee of prose- cution. , sect. 62, subs. 3, 11. See Practice, 2. ■ , sect. 76. See Practice, 1. , sect. 99. See Jurisdiction, 3. ; sect. 119. See Transfer op prose- cution. . ■, sect. 166. See Assault, 2. , sect. 229. See Security to keep THE PEACE. No. 18 of 1871, sect. 2. See Police Court. No. 22 of 1871, sect. 3. See Servitude. No. 23 of 1871, sect. 9. See Stamp, 1. , sscts. 36, 39, 40. See Stamp, 2. No. 7 of 1874, sect. 1. See Transfer op prosecution. No. 7 of 1876, sects. 35, 79. See Local Board. No. 10 of 1876, Schedule A. See Consignee. No. 6 of 1878, sect. 16. See Prosecution. No. 5 of 1881, sect. 3. See Arrack. Original of deed See Stamp, 2. Faddy See Jurisdiction, 3. Farate execution See Fiscal, 1. — Fiscal, 8. Farties See Husband and wipe. — Lessor and Lessee. — Mortgage, 8. Fenalty See Stamp, 2. Flaint See Yaorakt, 2. Xiii DIGEST. Plaint, presentation of p^^j. See Police Coubt. Flea See Jtikisdiction, 1. — Maikienancb. Pleading See Mqbtgagb, 4 Police Conrt Police Couri-^Practice — Presentaiion of plaint by oonvpUfAnwnt m person — Proctor, right of, to appear before ylaimt entertained — Or&Mnee 18 of 1871, section 2. A plaint in a Police Court must be presented to the Magistrate by the complainant in person, and not through a proctor, unless the Magistrate dispenses with the personal appearance of the complainant. P. C. HaldummuUa, . Govindai v Karpen 339 See JuKisDiCTioN, 3. Policeman See Assault, 1, 3. Police officer See Assault, 2, 3. Police tax See Cbown. Possession See Possessory action. — Sekyiiude. Possessory Action Possessory action — Nature of the possession necessary — Ability of an agent, who has possessed in right of the dominus, to maintain possessory action. M., the owner of two cofEee estates, sold an un- divided half share of them to B., who gave M. a mortgage for the purchase amount over the. DifiBST, xlii'i Possessory Aotion—eontd. Pi.SB, property so sold on 2nd July 1876. M. died, leaving his brother the plaintiff (who was in England) his exeoator, and thereafter B. continu- ed in the sole occupation and management of the estates. At B.'s request plaintiff came out to Ceylon, and took charge of the two estates in January 1880, and continued with B.'s consent in the sole occupation and management of them till September 1881, plaintiff himself finding all necessary funds for their upkeep. In July 1880 plaintiff i-aised such funds on a mortgage of M.'s half share, which (in August 1881) was sold in execution tinder the mortgage debt, and pur- chased by second defendant. In June 1881 plaintiff had again mortgaged M.'s half share to first defendant. In September 1881 plaintiff was deprived of his possession of the estates by T., who acted as the agent of the defendants and with B.'s knowledge and consent, to plaintiff's knowledge. Held (per Db Wet, A. C. J.,, and OtAEENOE, J., dissentiente Dias, J.) that, plaintiff's occupation of B.'s half share having been in the character of agent for B., the right to maintain a possessory action in respect of that share was B.'s and uo6 plaintiff's. Per Dias, J. — Plaintiff, having been in posses- sion of an undivided half share of the estates for a year and a day, when he was forcibly dis- possessed, was entitled to be restored to posses* sion, and to recover damages for the forcible dis- possession. D. C. Kandy, 89,797. MacGaroghery.. Baker... 25£ Power of judge See Judge, 1. Practice 1. — District CotMrt reserving judgment — Delivery iy Judge in open Court — Ordinance 11 e/ 1868, section 75. The District Court, after the trial of this casa on 2Sth January 1881, reserved judgment. The judge, having been removed to another station, sent his judgment in the case to his successor, who caused it to be read in Conrt by an officer of the Court as the judgment in the case, on 27th September 1881, Seld, that this could not be regarded aa tha xUt digest. Practice— coatd. Page . judgment of the District Court within the mean- ing of Ordinance No. 11 of 1868. D. C. Ratnapura, 1,828. Sumcmgala v. Pia- daasa ... ... ... ... ... . ■ ■ • - • " 2. — Practice — Appeal to the Privy CounoiZ — Ord. 11 of 1868, sect. 52, suhsects. 3 and 11. The Supreme Court delivered a judgment in this case on 22nd November 1881, which did not pass the seal of the Court till 28th March 1882. Appellant (the plaintiff) filed his petition of ap- peal on Sth April, and tendered his bond for security in appeal (the acceptance of which was unopposed) on 7th July, 1882. Seld, that the 14 days within which (under subsect. 3) the petition of appeal had to be filed were to be reckoned from the date of the judg- ment sought to be appealed against passing the seal of the Court, and not from the date of its deKvery in Court ; and that therefore the petition was filed in time. Held alRO, that the bond for security in appeal had been tendered within the three months of filing the petition of appeal, and was therefore in time.. D. C. Kegalla, 4,026. CassvmLebheY.Do'wnail 16 S.-^Second action for same subject-matter^— Staying proceedings in, till payment of costs of former action. Plaintiff brought an action to recover from the three present defendants possession of a vihara and its endowments, and obtained judgment, which was reversed in Appeal by the Supreme Court, and his suit dismissed. Plaintiff then commenced the present action for the same sub- ject-matter and declaring on the same cause of action, though tracing his title somewhat differently from the previous suit. Seld; following Thomas v. Braine (reported 3 S.C.C. 149), that the District Court has a dis- , cretionary power to stay proceedings in a second action till payment of the costs of the former action by the unsuccessful plaintiff. Held also, that that discretion had been right- ly exercised in the present case in making the order staying further proceedings. D. 0. Kandy, 90,099. Dhammajoti v. Parana- tala 25 DIGEST. xir Practice— con<<2. Page 4. — Admiammir-r-Moiiigage — Interim judgment for a/mount adndtied — Sale of mortgcbged property to satisfy part of mortgage debt. Flaintifi sued to recover Rs. 1181.25 as princi- pal and interest due upon a mortgage bond. Defendant admitting the bond impugned it as invalid for stipulating for usurious interest, and set_ out several different transactions, out of ■which in connection with the bond he admitted Ei. 283.52 to be due to the ^laintifE. PlaintifE applied by Rule Nisi to have judgment entered up in his favour for the sum admitted, which rule was discharged. Seld, that the answer did not contain such an absolute admission of part of plaintiff's claim as entitled him to judgment therefor. Seld also, that plaintiff could not have a mort- gagee's decree declaring the mortgaged land specially executable, enforceable piecemeal ; but, if anything, only a judgment for a mere sum of money. D. C. Colombo, 87,285. Aaerappa v. Be Zoysa 74 See Cltjb, 2. — Contempt of Cotjbt. — Htjsband and wife, 1. — Jurisdiction, 1. — Jurisdiction, 4. — Lessok and Lessee. — Police CouaT. Preference and Concurrence 1.— Prefererace and eojicurrence — 'Wwnd in "hands of third party, " fixed" W^--V!ptice to pay creditor — Debt due by MwrddpaUty—^lfeiice to Secretary— Ordinance 17 o/]865, sects. 52 am,d 44. PlaintifE, and A. and W. had each obtained judgment against the present defendant. The Municipality of Galle owed defendant a debt. On 24th July, the defendant, by word of mouth and by written notice, requested the Secretary of the Municipality to pay his debt to A. The debt not having been paid owing to the absence of the Chairman of the Municipality, the plaintifE (on 26th July) and W. (on the 27th) attached the debt under their respective judgments. Plain- tifE having obtained a rule on A. and W. to show cause against the money being applied, solely or in concurrence, to the satisfaction of plaintiff's llvi DIGEST. Preference and CoTucvLVvence—contd. Page judgment, the District Judge discharged it with costs. Held, that the notice to the Municipality had been rightly served on tbe Secretary ; that the fund had thereby been " fixed" as the property of A. ; and the plaintifE had shown no right to it. D. 0. Galle, 48,336. Be SilvaY. Bend/rich ... 31& 2. — Preference and conawrrence — Fund in Court-^ Order of pa/yment — Property passing to payee — Fund "fixed." Claims of preference or concurrence in the proceeds of a levy can be- brought forward so long as the money remains in Court, aud no longer. PlaintifE levied a sum of money on a mortga- gee's decree founded on a special mortgage of his defendant's property, and-on 12th October 1882 obtained an order of payment in his favour for the amount of the levy. The Government Agent refused to pay the proceeds to plaintifE, on the ground that the Crown had a preferent claim to them in virtue of a debt due by defendr ant to the Crown. On 19th March 1883, and subsequently, the Queen's Advocate moved for, and on 25th July obtained, an order for the pay- ment of the money. Held, that the Queen's Advocate's claim to preference had been wrongly entertained, as the money must be regarded as having got home to the plaintifE at the date of the order of payment to him, and as being no longer in Court. D. C. Colombo, 86,619. Bamen Chetty v. SiUa, Ex parte the Queen's Advocate 328> See MoRiGAGE, 5. MOMGAGE, 6. Prescription See Bond, 1. — Fiscal, 5. — Peosectjtion. — Sbrviiudb. Presence of complainant at trial See AssATTLT, 3. DIGEST. xlvii Triucipal and Surety l.^Cession of Action — Surety paymg off debt — Cession necessary for surety to reach immoveables mortgaged. PlaintifE (a surety), bringing tbe amount of the debt into Court, prayed in a previous suit that the defendant, the creditor, be decreed to accept the money and hand over to plaintiff the deeds hypothecated. Defendant drew the money out of Court. Plaintiff's Rule Nisi calling upon de- fendant to execute in his favour a cession of action, having been discharged on the ground that his libel was defective, plaintiff brought the present action to compel defendant to cede to him his right of action against the principal debtor. Held, that plaintiff must be taken to have de- posited the money conditionally on defendant's executing a cession of action. Seld also, that though the plaintiff could re- cover the mere money debt from the defendant without such cession, it was equitable that plaintiff should be given recourse to the mort- gage security, which he could not reach (being land) without such cession in writing. Held also, that cession, [if not made the con- dition of the payment], must be claimed within a reasonable time after payment. D. C. Kalutara, 36,176. Hendrick v. Frederick 2. — Principal and Surety — Continuing guarantee, revocation of, by death of guarantor — Liability of gua/rantor's heirs — Negligence of principal obli- gor's employer. The first defendant as principal, and the three other defendants as his sureties, were the obligors upon a bond conditioned for the due accounting by first defendant to the Crown for all moneys received by him in the performance of his office. The Crown now sued the first defendant and the heirs of the sureties to recover an amount un- accounted for, being sums received by the first defendant for the four years 1878-81. Answer : 1st that no debt was due by the principal. The Court below found there was. 2nd, that the sureties had died before the de- faults relied upon had been committed by the principal. Held bad for not averring notice of such death to the obligee ; also not established- by proof of such notice. 3rd, that the gross negligence of the obligee, in continuing for four years the principal's employ- Pagb ilviii DIGEST. Principal and Surety— contd. Jr AGE ment, when he had failed to account for the receipts of the first year, relieved the sureties from liability. It appearing that the sum unaccounted for, lor the first year, was Rs. 3.66, Held, that the defence was not sustained. D. 0. Kandy, 89,110. The Qaeen's Advocate v. Lohu Bcmda ■•• 331 Priority See MoKTGAGB, 4. — Registeaiion. Privy Council See Peactice, 2. Proctor See Ceeasy. — jueisdiction, 4. — Police Couet. Promissory note See Stamp, 1. Proof of claims See Insoltbncy, 4. Property mortgagred, third party in possession of See Mortgage, 3. Property sold other than debtor's See Fiscal, 1. Prosecntion Prosecution, commencement of — Timber Ordi- nance, No. 6 of 1878 — Limitation of prosecution ^Sentence. The defendant was on 7th November 1879 charged before a Justice of the Peace with a breach of the Timber Ordinance, 1878, committed on 16th January 1879. After evidence taken, the case was on 5th April 1880 laid over sine die. Summons was re-issued on defendant in June 1882, and after further proceedings defendant was on 21st September committed for trial, and D I G li S T. xlil Prosecution— cont(2. Page was arraigned and tried on 2nd November 1882. He was found guilty and fined Rs. 100. Seld, that the prosecution did not commenoa upon the presentment of the indictment at the trial, but must be regarded as having been on foot at the date of the committal for trial. As the charge on which the defendant had been committed and been tried was not dehors the charge contained in the original information, Seld, that the prosecution commenced when the defendant appeared to the summons, and that therefore ic had been begun within the period limited by section 16 of the Timber Ordi- nance, 1878. It appearing that the defendant had committ- ed the offence in the bond fide belief of owner- ship, and that he had been cast in damages in a civil suit for the land concerned, Seld, that the fine of Rs. 100 was excessive, and ought to have been merely nominal. D. C. Or. dsiUe, 11,075. The Queen v. Perera. 129 See Transfes op peosbcutign. Prosecution at instauoe of the Gonrt See Judge, 2. Publicum stabnlnm See Cattle Trespass. Purchase in execution See Mortgage, 2. — Mortgage, 9. Putting cases in evidence See CoNDicTio indebiti. Queen's Advocate See Jtjrisdiction, 3. Quitting service See Master and servant. Bating Enactment See Crown. 1 DICE SI. KeBind of purc]iaBe''moiiey _ Page See Mortgage, 2. Kegistratiou Begistration — Priority— OrdMicmee 8 of 1863, section 39 — OonfiicUng sales hy the Fiscal of the same land — Fraud — Mortgage created pending seimre — Ordinance 4 of 1867, section 42. The defendant, on 14th September 1880, bought a piece of land at a sale in execution of a money judgment recovered by him against S., and obtained a conveyance from the Fiscal on 21st February 1882, which was registered on 11th March following. Pending seizure under defendant's writ, S. mortgaged the land to plain- tiff. Plaintiff put this bond in suit on 3rd December 1880, obtained a simple money judg- ment on it, had the laud sold in execution on 17th February 1881, and purchased it him- self. Plaintiff obtained his conveyance from the Fiscal on 24th February 1882, and register- ed it on the 27th. Plaintiff now sought to be quieted in possession against defendant, who set up her own title. Held, that though plaintiff's mortgage was invalid by the operation of section 42 of the Fiseals Ordinance, yet his money judgment was not aflected thereby. Held also, that in the absence of any proof of fraud, plaintiff's conveyance prevailed, by virtue of section 39 of Ordinance 8 of 1863, and he was entitled to the decree prayed for. D. 0. Negombo, 12,730. Silva v. Sarah Eamy 383 See Mortgage, 4. — Ship. Kegfulatiou 13 of 1822 See Servitude. Sent See Landlord and Tenant. Rescission of order See Insolvency, 4. Resistance See Assault. DIGEST. li " Bdglit, title and interest" Page See Mortgage, 6. Bobbery See COS'SIDEB.A.TION. Bomau Dutch Law See Cbown. — Sekvitude. Sale in ezecntion See FiscAi,, 2'. — Fiscal, 6. — FiscAi,, 7. — EBGISTfi.ATION.> Secretary of club See OlTTB^ Secretary of Utuiicipality' See PaEPsaEifCE and Conouebence, 1. Security in appeal See Pbactice, 2. Security to keep the peace Secitrity to Jee&p the peace— OrcHtiance 11 of 1868, sec*. 229 — Befuaal to. reqv/ir.e security—' Appealable order. Held, {per Dias, J., duhitcmte Gxesibr, J.) that the order of a Justice of the Peace, refusing to require the defendants to give security to keep the peace, was an appealable order. J. P. Colombo, 2,994. Matthew v. Cmralii ... 239. Seizure See MoBTGAGB, 6; — Ebgistratiqn. Sentence See Coin Ordinance. — Pkosecuion. lii DIGEST. Servitude Servitude ne luminibus officiatur — Acquisition hy prescriptive possession — Juris quasi possessio — Ten years' uninterrupted enjoyment — Ordi- nance 8 of 1834, sect. 2 — Ordinance 22 of 1871, sect. 3 — Kandyan Provinces, law in force in — Begulation 13 of 1822 — Orddnamce 5 of 1852, sect. 5. Plaintiff and defendant owned adjoining lands. Plaintiff's house stood close to the boundary, and his sitting-room and bed-room had windows looking out on defendant's land, through which plaintiff had for over ten years uninterruptedly enjoyed light and air. Defendant began to build on her own land so as to exclude such light and air from plaintiff's windows, and plaintiff sought an injunction to restrain her from so doing. Seld, that the servitude claimed by the plain- tiff (me luminibus officiatur), being a negative servitude, could not, under the Roman Dutch Law, be acquired by prescription in virtue of bare enjoyment for the necessary period, such enjoyment involving no invasion of the neigh- bour's dominium. The Regulation 13 of 1822 repealed " all laws heretofore enacted or customs existing" in the maritime districts of the Island " with respect to the acquiring of rights or the barring of civil actions by prescription" ; and this repeal was kept alive by the subsequent Ordinances, 8 of 1834 and 22 of 1871. Ordinance 5 of 1852, sect. 5, provided that, on a casus omissus arising in the Kandyan Provinces, resort should be had to the law on the subject in force in the maritime provinces. Meld, that consequently the Roman Dutch Law on the subject of prescription was in effect repealed for the Kandyan Country also. There being no local Kandyan law on the sub- ject of prescription, and the case therefore fall- ing under Ordinance 8 of 1834 or Ordinance 22 of 1871, Held, (following 0. B. Point Pedro 41), that ten years' enjoyment' of the use, convenience or advantage, which would be enjoyed by the owner of the dominant tenement if there were a servitude in existence, brings the corresponding servitude into existence, by virtue of sect. 2 of Ordinance 8 of 1834 (corresponding to sect. 3 of Ordinance 22 of 1871) ; and that the plaintiff, having had the uninterrupted enjoyment (with- out express permission or licence) of these win- dow-lights, deriving light from defendant's land,- Page Digest. liii Servitude— coned. Pagk was entitled to have the defendant restrained by- perpetual injunction from building so as to obscure them. C. B. Point Pedro 41 (Earn. 1860-62, 75) dis- sented from by CLAaENCE, J. D. 0. Kandy, 89,917. Neaie y. De Ahrew 188 Setting aside Fiscal's sale See Fiscal, 3. — Fiscal, 7. Sliip British Ship — Begistration — 17 and 18 Viot. c. 104, s. 107 — Fravdulent Begistration. Plaintiff sued to have a declaration of title to one-half of a dhoney, of which defendants were in the unlawful possession, the first defendant being entitled to the other half. The Court below found that the defendants had repaired the dhoney and fraudulently had it registered as their exclusive property under a different name. Held, that plaintiff was not shut out by the registration from showing her title, notwith- standing that she had taken no steps to have her own title registered in accordance with the Merchant Shipping Act, 1854. D. 0. Kalutara, 35,733. Ana v. Vissenty Naide 21 Stamp 1. — Stamp, ca/ncellation of, v/nder sect. 9 of Ord. 23 of 1871 — Adoption by maker of promissory note of Stamp-vendor's date on stamp — Completed note handed by m,dker to payee — Estoppel. Plaintiff as payee sued the maker of a promis- sory note dated 21st April 1879, which defendant impugned as a forgery. The stamp on the note was affixed at the left-hand top corner of the paper and had the maker's name written across it. It bore also some illegible initials and under them the date 21-4-79 apparently put by the stamp-vendor. The Court below after evidence called for the plaintiff held the note not • duly stamped and nonsuited the plaintiff. Meld (following D. C. Colonjbo 63,498, Giv. min. of S.G., 13th July 1875) that, the stamp- vendor's date on the stamp being even with the date of execution of the instrument, the maker must be taken in cancelling the stamp with hi» stamp— con«cf. PiGE signature to have adopted the date alread|y on the stamp as his date of cancellation, and that therefore the stamp was duly cancelled as re- qmred by section 9 of th& Stamp Ordinance, and consequently the note was duly stamped-. Semhle,. that if the maker had tendered to- the payee the note in question as a note duly stamp- ed and signed by himself — the appearance of the note itself being consistent with its being such — the Court would accept the note as duly stampedy until diefendant showed the contrary, subject to any question of estoppel. C. E. Colombo, 30,492. Cannen Assary v. Arrm>asalem. Assary ... ... ... ... ... 4t 2. — Stamp — Deficiency of stamp — Stam/pvng at trial on, payment of penalty — "Original," " DupUeate," " Notary's Protocol" — Evidertce — OrcUnaThce 19 of. lSb2T-0rdmiance 23 o/1871, sects. 36, 39 amd 40. > The value of the stamps to.be affixed to an in- strument must be- determined by the law in force at the date of the instrument. But when an instrument, upon its tender in evidence,, is held to be insufficiently stamped, tlie procedure for , stamping, it at the trial, and the amount of penalty payable,, must be determined- by the stamp law in force at the time of such tender. When a notarial instrument has been executed in three copiiea (called respectively the " Origi- nal," " Duplicate," and '• Notary's Protocol"),, neither of these copies is receivable in evidence unless and until the proper stamp duty has been paid upon each and every copy. Di C. Chilaw, 23,482-. Fererav. Wijesinghe..., 2.63: Stamping at trial See Stamp, 2. Stamp-vendor's date: See Stamp, 1. Statement of objections: See Fiscal, 7. Stay of proceedings See Pkaotige, 3. BIG EST. It stock, live and dead Pagb See MoRT&ABS, 7. Succession See Inheritance. Summary proceedings See FiscAX, 7. — Insolvekcy, 2. Surety See Pbincipal and Sttrety. Surrender of property to iusolrent iSee Insolvency, 3. Surviving spouse See Administbatiok. — Httsband and wife. Territorial jurisdiction See Contempt op Court. — Transfer op prosecution. Tieft I%efl — Animus furandi — Debt due to defendant Defendant was charged with the theft of certain jewels and a sum of Rs. 17. The evidence showed that the property had been taken from, the dead body of a woman who at the time of her death was defendant's debtor on a promissory note. Defendant had also taken the jewels in the presence of neighbours, to whom he had de- clared that he took them as security till his debt should be paid. Meld, that this evidence disclosed an absence of the cmimns furomdA, and that defendant was entitled to be acquitted on the charge of theft. D. C. Cr. Kurunegala, 2,036. Eadirawcdl v. Kader Meeddn 103 Tliird parties in possession of mortgaged property See Mortgage, 3. — Mortgage, 4. p-* MOKTOAGB, 8. ]vi DIGEST. Threatening bodily harm See Assault, 2. Timber Ordinance 8ee Prosecution. Title Title to land — Donor conveying without title, but subsequently acqui/ring title — Voluntary con- veyance. S., being owner of one half ^Zms one-fifth of a certain land, conveyed the whole land by way of gift to plaintiff, his son-in-law, on 25th January 1872. S. acquired title to the remainder soon afterwards. Plaintifi now alleged an ouster from possession by defendants, the widow and cer- tain children of S. Held, that plaintiff was entitled to judgment for whatever S. owned at the date of his convey- ance to plaintiff, but that, "that conveyance being a merely voluntary one, the title subsequently acquired by S. did not pass to plaintiff there- under. It appearing that S. was by arrangement al- lowed to possess the subject matter of the gift until his death. Held, that fourth defendant, who was a lessee for an unexpired term under S., was entitled to be absolved from the instance, plaintiff having left it in the power of S. to deal with the pro- perty. Page D. C. Matara, 31,034 Mathes v. PvMchyhamy 122 Toll Toll — Ordinance No. 14 of 1867, sections 17, 18 — Evasion of toll — " One mile from the ferry." Section 18 of the Toll Ordinance, 1867 enacts that " if any person, not being a duly appointed toll-keeper, shall convey any goods, or any passenger not in his service, across any river or stream either at or within a dis- tance of one mile above or below any road, bridge, ferry, canal, or place at which tolls shall be leviable such person shall be guilty of an offence." Held, that the intention of the Ordinance seemed to be to mark out a belt of two miles of water, one mile on each side of the ferry, within DIGEST. Irii Toll— conic?. , . Page which two miles no person is to cross from one bank to the other except by the ferry. One of the toll-houses in the present case was situated at the end of a causeway projepting from the mainland into the sea, the other being on an island opposite. The defendant's boat, starting at a point half a mile from the root of the causeway, passed between the toll-houses, and landed its cargo on the island at a point two miles from the toll-house on the island. Held, that defendant had not committed a breach of section 18. Semble, that if the landing place had been within the mile, the defendant would have been liable, notwithstanding that his starting-place at the root of the causeway was mraje than a mile distant from the toU-honse at the end of the causeway, but within the two-mil« belt. P. C. Mannar, 5,786. Saverimutto v. B,asf:ian 271 Transfer of prosecution Trcmsf&r of Prosecution hy Si^rema Court— Ord. No. 11 0/1868, sects. 22 cmd ll9—0rd. No. 7 of 1874, sect. 1—" Try." Upon a transfer of a prosecution by tba Supreme Court from the District Court of Ke- gombo to that of Colombo after information filed in the former court by its Secretary, the District Judge of Colombo quashed another indictment for the same offence tendered by the Deputy Qu,een'a Advocate, holding that the accused should be tried, if at all, on the information originally filed in the Negombo Court, and holding also^ thait under sect. 1 of Ord. No. 7 of 1874 he had power only to try, and not to hea/r and determine^ any prosecution before him by virtue of that section. Keld, that the order quashing the indictment was wrong, and that the Queen's Advocate could prosecute either on the original information or on any other he chose to tender. Meld also, that the word " try" in sect. 1 of the Ord. of 1874 must be construed as giving the District Court power also to hear and determine the matter of any prosecution before it by the Queen's Advocate. D. C. Cr. Segombo, 537") The Queen v. Serat D. C. Cr. Colombo, 356 J Swigho 67 gee JuBisDiciioN, 2. Iviii DIGEST, Trespasser Pasb See Le8S0£ and IlESSEB. Trial See Assault, 3. Trust See Mortgage, 1. Ultra vires See Local Boab]>. Vncertauity of convictioii See Vagkant, 2. TTulawfnl consideration See CONSrDERATION. ITnlavfal purpose See Yagrant, 1. Unsecured creditors, rights of See Mortgage, 6. Vagrant 1.— Vagrants OrcUncmce, 4 o/1841, sect. 4, swbseet. 6 — Foitnd m house for unlcuwful purpose — Form- cation. The purpose of committing secret fomieation is not an '" unlawful purpose" within the mean- ing of subsect. 6 of sect. 4 of the Vagrcmts OrcU- ncmce, 1841. P. 0. Chilaw, 14,398. Modder v. Thomi^ ... 237 2.-— Vagrcmts Ordina/nce, 4 of 1841, sect. 4, subsect. 4 — Oarrdng — Alternative charges — Naming of de- fendants in plaint — Conviction, uncertcdnty of— Accomplice, evidence of. Plamt — ^That in breach of the 4th section of the 4th clause of the Ordinance No. 4 of 1841 the the 1st 2nd 3rd 4th 5th 6th 7th 8th 9th and 10th did game, play or bet with dice on the night of the 26th January instant at Timbirigascotua in a shed kept or used by Ist defendant for oom- zuon aud promiscuous gaming. DIGEST. ll^ Vagrant— con«rf. Pase Upon appeal against a general verdict of ■• guilty," Held, that the conviction was bad for uncer- tainty, and (there being nothing on the record by which it could be amended) must be quashed. Observations on the form of plaints, and on the evidence of accomplices. P. C. Negombo, 51,383v Sihay. 8ih>a. ... 281 Vectigalia See Crown. Voluntary donation See Donation. — Title. Warrant and defend title See Lessob amd Lessee. Warrant of arrest See Assault, 2. Wharf and Warehouse Company- See CONSIBNEE. Witness See Evidence, 1. — Evidence, 2. ^;^ 11 I . 4 V' . i^i!<\.