m
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 PY noe!>. AND co., 3, RBK 'COO-HERO?,
 
 CeylttT, Refers. Sufrtp 
 
 JUDGMENTS 
 
 AND OTHER 
 
 DECISIONS AND DIRECTIONS 
 
 OF TIIK 
 
 SUPREME COURT 
 
 OF THE 
 
 ISLAND OF CEYLON, 
 
 FROM THE 
 
 PROMULGATION OF THE NEW CHARTER , 
 1st Oct. 1833 to March 1836. 
 
 ARRANGED ACCORDING TO THE RESPECTIVE SUBJECTS OF THEM, 
 
 BY 
 
 SIR CHARLES MARSHALL. 
 
 LATE CHIEF JUSTICE OF CRTLO.N. 
 
 PARIS. 
 1839.
 
 SB 
 655,75
 
 a 
 
 ss 
 
 EXPLANATORY OBSERVATIONS. 
 
 THE following notes consist of the recorded decisions of the 
 Supreme Court of Ceylon, whether in the shape of judgments, 
 letters to District Judges, answers to petitions, or in any other 
 mode in which its opinions may have been expressed, on points 
 of law or practice, from 1st Oct. 1833, when the new Charter 
 of Justice came into operation, up to March 1836. My induce- 
 ment in occupying myself, since my relinquishment of office, in 
 arranging these decisions, and throwing them into a digested 
 form, arose out of the interest, which every one must naturally 
 be supposed to take, in the continued success and reputation of 
 any institution, in the formation of which he has taken any 
 part. In making use of this expression, however, let me guard 
 myself against the supposition, that I am assuming any merit, as 
 regards the original construction of the present system of judi- 
 cature in Ceylon. I feel bound on this occasion, as I have done 
 on every former one, to admit that, so far from being entitled 
 to claim any share in the paternity of that system, I entertained 
 at first sight great doubts of its applicability to Ceylon , though, 
 when once its introduction w r as decided upon, I considered it 
 my duty to give my humble assistance, as far as that was called 
 for, towards maturing and improving its details, and to apply 
 myself to the task of bringing it into operation, with a zeal 
 which should leave no room for supposing that my doubts had 
 any tendency to diminish my exertions. 
 
 Most completely, indeed, have those doubts been dispelled, 
 and most sincerely and warmly do I congratulate those whg de-
 
 IV EXPLANATORY OBSERVATIONS. 
 
 signed and framed this scheme of judicial policy, in which sim- 
 plicity of structure and uniformity of operation form the striking 
 features, on the complete success of this new and interesting 
 experiment; the working of which has attracted no small at- 
 tention among the inhabitants of continental India, who, it is 
 said, would gladly see introduced among themselves so speedy, 
 so uncumbered, and so nnexpensive a course for obtaining legal 
 redress. Xor will it, I trust, be thought unreasonable that 
 those, on whom has devolved the humbler but more laborious 
 task of bringing the machine into practical use, and of guiding it 
 through the first difficulties of novelty and consequent opposi- 
 tion, should claim some merit for their exertions. Some credit 
 will, it is hoped, be awarded to the industry and vigilance 
 which, after clearing away the somewhat formidable arrears of 
 former tribunals, have preserved the records of the new courts 
 clear from a single case in arrear, and have, besides, so regulated 
 the order and dispatch of the ordinary business, that every case 
 must (without the intervention of peculiar circumstances requir- 
 ing delay) be finally decided, even though carried in appeal to 
 the Supreme Court, in less than twelve months , much less than 
 half that period being sufficient to bring the generality of cases 
 to a termination. And I have never yet heard it imputed to 
 these courts, whether of original or appellate jurisdiction, that 
 the primary objects, thorough investigation, patient hearing, 
 and mature consideration, have ever been sacrificed to the de- 
 sire of making a display of speedy decision. 
 
 As head of the Court, which was to direct and correct the 
 proceedings of all the other tribunals in the island, the task of 
 framing new Rules of Practice, and of answering the very nu- 
 merous questions, which the District Courts, by our own express 
 invitation, were in the habit of putting to the Supreme Court, 
 for a considerable time after the Charter was brought into ope- 
 ration, naturally fell upon myself. While, therefore, I claim 
 but little merit for the prominent part I took in launching the 
 Charter, I feel anxious, on the other hand, that these decisions, 
 for which I am so deeply responsible, should be put in such a 
 shape as, considering them as authorities, may not only be use- 
 ful to the Ceylon public, but will the more easily subject them 
 
 ', '
 
 EXPLANATOJtTf OBSERVATIONS. V 
 
 to criticism and correction, where, after more mature consi- 
 deration by sounder and wiser heads than my own, they shall 
 be condemned as erroneous (1). My earnest hope is that this 
 publication, presenting itself in a shape which will enable any 
 one to lay his finger, without difficulty, on the recorded decision 
 or opinion of the Supreme Court, on any subject which has 
 been brought under its consideration, will promote discussion 
 of the freest and severest kind. My wish would be, that no - 
 courtesy be shewn to me, or to my decisions ; that though, like 
 those of every competent tribunal, they will probably be consi- 
 dered as law unless and until they are overruled, they may be 
 impugned and contested with the most perfect freedom and un- 
 reserve, and in the District Courts no less than in the Supreme 
 Court, whenever they may appear assailable. Any little morti- 
 fication which I might be weak enough to feel, at finding my 
 judgment on any question condemned, would be amply com- 
 pensated by the recollection, that the error had been productive 
 of more intelligent consideration, and the establishment of 
 sounder principles. The fanciful reputation of infallibility as a 
 Judge, a consummation as remote as the perfection of human 
 nature, would be dearly bought by persistance in error, 
 sanctioned only by having been conceived and put forth cj- 
 cathedra. 
 
 But if 1 might presume to speak prospectively, I w r ould ven- 
 ture to express an ardent hope, that the present Judges of tho 
 Supreme Court may so far agree with my view of the subject, 
 as to take measures that this compilation may be kept up, by 
 the addition of all decisions, which may have taken place since 
 the period when these cease, or which may hereafter be passed. 
 I feel persuaded that those learned persons will concur with 
 me in thinking that, whether as regards courts of justice or the 
 public, it is always most desirable that decisions, involving 
 questions of law or of general interest, should be not only re- 
 corded, but published. Such publications furnish at once a 
 
 (1) I should observe that, on all questions of serious doubt or difficulty, I 
 look the opinion of the learned Puisne Judges, before they were decided; 
 and that wherever any of the judgments, contained in the following pages, 
 have been pronounced by either of the Puisne Judges, it will be so slated.
 
 TI EXPLANATORY OBSERVATIONS. 
 
 check on the errors and vacillations to which Judges, as well as 
 other men, are subject 5 and an assurance to suitors (always 
 sufficiently inclined to be sceptical, as to the correctness of 
 decisions unfavourable to themselves) that their cases have met 
 with due consideration, and have been ultimately decided on 
 grounds, open to all the world for criticism. Nor can I imagine 
 any means, more likely to attain the objects already adverted to 
 of the framers of the Charter, simplicity and uniformity, or to 
 assist the Judges in the work of assimilation which, by the 48th 
 clause of that instrument, they are so pointedly directed to 
 pursue, than an authenticated and digested record of the deci- 
 sions of the Supreme Court of Judicature, easy of access, as well 
 as intelligible, to all who wish to have recourse to it, and re- 
 gularly and speedily published. It has been matter of great 
 regret to me, that I did not foresee how numerous would be 
 the decisions and opinions, which the Supreme Court, in its close 
 and immediate superintendance of nearly thirty subordinate 
 courts, exercising totally new judicial powers, would be called 
 upon to pronounce ; and that I did not, by classing them as they 
 were successively delivered, according to the respective subject 
 matter of them, save myself the labour of the present search 
 through the somewhat voluminous records, from which the 
 selection and arrangement must be made, and so avoid the con- 
 sequent delay in the publication of them. 1 sincerely hope that 
 these notes may be found not unworthy of being taken as the 
 nucleus of such a periodical publication, by the present Judges 
 of the Supreme Court. 
 
 The alphabetical order, in which I have disposed the follow- 
 ing notes, appeared the arrangement the most unpretending, 
 and the best qualified to attain the desired object, facility of re- 
 ference. I have not scrupled to introduce observations of my 
 own of a general nature, whenever I thought they might be of 
 advantage to those for whose use they are more immediately in- 
 tended ; namely the District Judges, and the practitioners in the 
 different courts. In some instances, in which the subject has 
 required and admitted of it, I have endeavoured to give a com- 
 pendium of the entire law, as practically applicable to Ceylon : 
 Of these, I will mention the title "Evidence," as one on which
 
 EXPLANATORY OBSERVATION*. ^ VII 
 
 I have bestowed some pains, in the hope of making it generally 
 useful. Some of Ithe'points, recorded on the different subjects, 
 may appear at first sight trifling or insignificant : The best proof 
 that they are not to be considered altogether useless is, that they 
 have, all of them, arisen out of questions, either actually con- 
 tested, or put to the Supreme Court by District Judges, in mo- 
 ments of doubt or perplexity. And it is to be recollected that, 
 generally speaking, the decision of the Supreme Court on any 
 one point, whether it be of an apparently trifling nature, or of ge- 
 neral interest and importance, would only be made known, un- 
 less by means of a publication like the present, to the particular 
 District Court, in which the question has arisen. And this 
 reason, and the difficulty which the District Judges and practi- 
 tioners, residing out of Colombo, must experience in consulting 
 the records of the Supreme 7 Court, at the moment when such 
 reference becomes necessary, will account for the length, at 
 which some of the following decisions and letters are given. 
 The facts of each case have been compressed into as small a 
 compass, as was consistent with the intelligibility of the point 
 decided. 
 
 Those whose eyes have been accustomed to dwell on our Eng- 
 lish Reports, whether of law or equity, may probably exclaim, 
 with somewhat of contempt, at the absence from these pages of 
 the niceties of construction and hair-splitting distinctions, with 
 which those learned authorities abound. Most willingly do I 
 confess the inferiority of this unpresuming production in that 
 respect, because it furnishes the most convincing proof that the 
 system itself is sound ; that directness of procedure and ge- 
 neral intelligibility are substituted for the fictions, subleties, 
 and refinements, which, however they may serve to exhibit the 
 learning and acuteness of our advocates, have long been a sub- 
 ject of reproach to the administration of justice in England, 
 pure and admirable as it is in other respects. The object of the 
 following little Digest is, not to dazzle and confound by the in- 
 tricacies of the labyrinth, but to prevent aberration from the 
 plain, straight, and open road, which the Charter, and it is hoped 
 the Rules of Practice also, have chalked out. And while on this 
 part of the subject, I cannot omit an observation on the mate-
 
 VIII EXPLANATOBY OBSERVATIONS. 
 
 rials, of which the District Courts are composed, as reflecting 
 very great credit, both on those courts themselves, and on the 
 system of judicature, under which they are sitting. It is well 
 known that very few of the District Judges have enjoyed the 
 advantages of any thing like a regular legal education. I cer- 
 tainly am not so far weaned from early impressions, as not to 
 consider this, generally speaking, as a great and serious incon- 
 venience. The necessity of the case, however, that is the want 
 of regularly-bred lawyers, left no other alternative but that of 
 appointing the best wn-learned persons to he found. It is no 
 small praise to those gentlemen themselves, to reflect on I he 
 way in which the whole machine has been, and I have no doubt 
 still is, in operation. But that any thing like this result could 
 have been expected, if the plan of procedure had been less 
 simple, will at once be declared impossible, by all who recollect 
 that as much of English litigation, and of its continual difficulties, 
 arises from the intricacies of practice, as from the uncertainty 
 of the law to be administered. 
 
 I have only to add a few^words, and indeed I have already 
 indulged in a prolixity, which will call for all the patience of 
 those who may look at these preliminary pages, to account for 
 this apparently trifling work being, after more than two years, 
 still incomplete. Circumstances, which occurred soon after my 
 return to England, but which it is unnecessary here to enter 
 into in detail, made me doubt whether I had not greatly over- 
 rated the value of the proposed collection ; and whether indeed 
 it would be worth the expense of publication, or the trouble of 
 transmission to Ceylon. Under that impression, I laid aside 
 my materials, not 1 confess without regret, but preferring the 
 disappointment of my own wish, to the imputation that I was 
 thrusting myself vainly and uselessly on public notice in Ceylon. 
 Some conversation, however, which I had with Sir R. Wilmot 
 Horton, on his return to England, has reassured me on this 
 point, as regards public opinion in that island ; and the wish 
 which His Excellency was good enough to express, that the work 
 should be completed, at once determined me to resume the task. 
 And in order to repair, as fur as lies in my power, the delay 
 which has already taken place, and the prolongation of which
 
 EXPLANATORY OBSERVATIONS. IX 
 
 must proportionally diminish any value which the publication 
 may possess, I now transmit the first part, forming perhaps 
 about one half of the notes ; the remainder of them, it is my 
 intention to complete, as quickly as other avocations will per- 
 mit. It is no small gratification to me, to think that this em- 
 ployment of my time will renew, to a certain degree, my con- 
 nexion with an island, which is associated in my mind with many 
 pleasing recollections ; and that it may serve to recall me to the 
 remembrance of those gentlemen, who were fellow -labourers 
 with me in the same vineyerd, and whose expression of kindness, 
 when I took leave of them, will never be obliterated from my 
 memory. 
 
 CHARLES MARSHALL. 
 Paris, ist January 1839.
 
 ERRATA. 
 
 Faga Line 
 
 55 10 . . For " or," read "for." 
 
 56 (Summary) 1 .. " 212," read "2,^." 
 
 61 20 .. " demonstration," read " observation." 
 
 66 9 .. " recorded," read " received." 
 
 71 11 .. " text," read " test." 
 
 74 6 . . " casts," read ' ' costi." 
 
 ABBREVIATIONS. 
 
 The following abbreviations of words of constant recurrence have been 
 copied from the MS. of these notes, and been allowed to remain, for the 
 sake of compression and expedition. The explanation, though scarcely 
 perhaps necessary, will prevent the possibility, it is hoped, of mistake. 
 
 S. C Supreme Court. 
 
 C. J. P. J Chief Justice. Puisne Justice. 
 
 D. C. D. J. ...District Court. District Judge. 
 
 L.B Letter Book of the Supreme Court. 
 
 pit plaintiff. 
 
 deft .defendant. 
 
 admn. admor. . administration. administrator. 
 
 exor .executor. 
 
 em execution, and at p. 137, last line, examination. 
 
 par exn parate execution. 
 
 declon declaration. 
 
 reg regulation. 
 
 ordce ordinance. 
 
 par paragraph. 
 
 fid. com fidei commissum.
 
 ACTION. 
 
 See title False Claim, and other heads. 
 
 ADMINISTRATION, EXECUTORS, WILLS, ETC. 
 
 Administration not to be too rigidly enforced at first, page 1 Cases prior 
 to 1 Oct. 1833, p 2 Interests of parties consulted, 2 All deaths reported, 2 
 Military men, 3 Priority of right toadmn., 3 Discretionary power in 
 D. C., 3 Widow joined with others, 3 Widower neglecting to apply, 4 
 Or to give security, 4 No prescription of admn., 4 Right of widow or 
 brother (Moors), 4 Son or daughter, 5 Can adm. go to a pauper? 5 
 No one can be forced to take, 5 Security, when required from executors, 5 
 Deposits received, 6-^Appraisement, list amended, 6 Appraisers put iti 
 possession, if necessary, though widow appeared, 6 Property wrongfully 
 put in list, 6 Percentage, 7 Suit for probate transferred from district 
 where testator died, 7 Renunciation by, and liability of, executors, 7 
 Contract as to division of estate, void, 8 Claims to be made before final 
 account, 8 Monies ordered to be paid over, though account not filed, 8 
 Vigilance of courts, 9 Personal liability of cxors., etc., 9 Differ- 
 ences between, 9 Admn. to secretaries of D. C., 9 Removal of admor. , 
 Sequestration, 10 Exors., etc., not witnesses for the estate, 10. 
 
 THE 27th clause of the Charter gives the District Courts juris- 
 diction in matters of intestates' estates, and wills: And the 4lh 
 section of the rules of practice prescribes, with some minuteness, 
 the course of proceeding to be followed in the exercise of that 
 jurisdiction. 
 
 In many of the districts of Ceylon, the system of administra- 
 tion is a novelty, or nearly so. The Supreme Court has there- 
 fore, on several occasions, recommended the District Courts 
 not to force the system into operation too suddenly or inflexi- 
 bly, in those districts which have not already become familiar 
 with it. And where a suit was dismissed after the pleadings
 
 2 Administration ichen necessary. 
 
 and evidence for the plaintiff had been gone through, on the 
 ground that the plaintiff had not taken out letters of adminis- 
 tration to the estate of his relations, whose property he sought 
 to recover, the S. C., on appeal, directed the case to be restored 
 to the list, and proceeded with, as soon as the plaintiff should 
 . have taken out administration. No. 14,333, Caltura, 14 May, 
 /"1834. Sec also Mr. Justice NomYs judgment in No. 11,498 
 . from the same court, 27 Aug. 1834. And in another case the 
 ' S. C. held -that the want of administration furnished no ground 
 of appeal against a decision on the merits ; No. 4874, Colombo 
 South, 5 Feb. 1834 : For the objection should have been taken 
 in the very first instance, in the written pleading of the party 
 making it. 
 
 With respect to those cases, in which the death occurred be- 
 fore the 1 Oct. 1833, the practice of each district, as ii existed 
 before that period, modified in the discretion of the D. C. by 
 the rules of the 4lh section, should be resorted to. For those 
 rules, it must be remembered, are prospective; and therefore 
 are not necessarily Binding on the courts, in cases antecedent to 
 their promulgation. Letter Book, 27 Dec. 1833. 
 
 On the other hand, where it has appeared obviously for the 
 interests of the creditors and heirs, that administration should 
 l>e taken out, the S. C. has ordered thai step to be taken, either 
 ' he ne';t of kin, or, if they refused, by the secretary of the 
 D. C. No. 1 157, KornegaHe, 21 Oct. 1833. So, where a wi- 
 dower was about to enter into a second marriage, the court re- 
 quired hiiii to lake out administration to the estate of his de- 
 ifo, and in default thereof, ordered that the secretary 
 of the D. C. should do so, in order that the interests of the chil- 
 ;i of ihe first marriage sliuuidbe protected. No. 1502, Cal- 
 tura, 1 July 1835. SD, it is oflcu necessary to appoint an admi- 
 nistrator, as representative of the estate, in order that ques- 
 li-;a.s bul',ve;Mi different claimants may be brought to issue; 
 which cannot regularly be done, while the estate is unrepre- 
 sented. LA}. 30 May" 1834. 
 
 The 9ih rule of the ith section directs that all deaths shall be 
 reported lo the District Courts by the Police Officers : And it is 
 intended that all dealhs shall be so reported, without reference
 
 Administration to whom granted. 3 
 
 to age 5 though the rules, generally speaking, are of course only 
 applicable to persons dying of an age which renders them ca- 
 pable of making a will, or of possessing property. L. B. 29 
 Oct. 1833. 
 
 The testamentary jurisdiction of the D. Courts does not ap- 
 ply to military men, dying intestate in Ceylon , this being other- 
 wise provided for by stat 6 Geo. IV. ch. 61. L. B. 15 Nov. 1833. 
 
 As regards the priority of right to administration, it may be 
 observed that the English law, which adopts the computations 
 of the Civil Law, in regulating the propinquity of kindred, may 
 safely be followed, at least as regards Europeans, and their des- 
 cendants, and the Cingalese inhabitants. And the order of 
 precedence may briefly be staled thus: 
 
 1st. The widow or widower of the deceased , in default of 
 whom 
 
 2dly. The children. 
 
 3rdly. The parents. 
 
 4thly. Brothers. \ 
 
 5thly. Grandfathers. f And the females of each 
 
 Gthly. Uncles or nephews. ( class respectively. 
 
 7thly. Cousins. / 
 
 This is the general rule-, but it is a rule, which peculiar cir- 
 cumstances,, or the relative situation of the parties claiming ad- 
 ministration, frequently make it necessary to depart from. 
 Questions indeed are constantly arising, as to the parties best 
 entitled to be chosen administrators: And on this point, the 
 District Courts, by analogy to the office of ordinary, by which 
 functionary this authority is exercised in England, must be 
 allowed to exercise a certain latitude of discretion, with a view 
 to the safety and due distribution of the property. Thus, 
 where the District Judge expressed doubts of the safety of leav- 
 ing the estate under the sule control of the widow, the S. Court 
 authorised the joining of such other persons as the D. C. should 
 consider right. Xo. 1, Amblangodde, 3 May 1834. 
 
 So, where the intestate left two adopted sons, to whom he 
 hequeathed property, the D. Court of Ratnapoora directed ad- 
 ministration to be granted jointly to the adopted sons and to 
 the widow. On appeal by the widow, who disputed the fact 
 
 1.
 
 f Administration to whom granted. 
 
 of the adoption, and, even admitting that fact, claimed to be 
 sole administratrix, the S. Court, having directed the fact of 
 adoption to be ascertained, affirmed the decree , considering, 
 with the D. C., that it would be safer to unite the two parties 
 in the office. No. 4, Ratnapoora, 13 Jan. 1836. 
 
 Where certain relations of the intestate applied for the usual 
 citation three years after her death, on which the widower 
 came in and claimed administration, the D. C. decreed the let- 
 ters to him, but ordered that he should pay the costs. On ap- 
 peal by the widower, the S. C. affirmed the decree, on the 
 ground that, if he had applied for administration in the first 
 instance, as it was his duly to do, or if, when he found the re- 
 lations suing for it, he had waived his preferable claim, no costs 
 of contestation would have been incurred. No. 14, Galle, 6 
 March 1835. 
 
 "\Vherelhe widower appeared to the citation, and administra- 
 tion was granted to him on the usual conditions, but he neg- 
 lected to comply with them by giving ihe necessary security, 
 and afterwards applied to have the letters cancelled as being 
 unnecessary, and on the ground that they had been granted 
 too late, the D. C. refused the application: And the S. C., on 
 ( appeal, affirmed that decision, observing that there was no term 
 of prescription as regarded applications for, or the issuing of, 
 letters of administration : tbat as the D. C. had directed admi- 
 nistration to be taken out, and as indeed the widower had him- 
 self applied for it, the necessity for the measure must be pre- 
 sumed, and could not now be retracted by the widower, ex- 
 cept as far as his own right was concerned, which he had for- 
 feited by the nonfulfilment of Ihe conditions; and therefore, 
 that the D. C. was called upon to grant administration to some 
 other and filler person. No. 1923, Chilaw and Pullam, 3 June 
 1835. 
 
 A somewhat singular question arose between Moorish par- 
 ties: The widow of the deceased married his brother, and af- 
 terwards each claimed administration, adversely to the other. 
 The D. C. decided in favour of (he widow. On appeal to thd 
 S. C., it was agreed by Moorish assessors at Colombo, that hv 
 ihe Mahomedan law, if there be a son, or two or more daugh-
 
 Administration Security. 5 
 
 ters, the widow is entitled in preference to the brother, because 
 the joint interest of the widow and children is greater than that 
 of the brother; but if there be no children, or only one daugh- 
 ter, then the brother, having a greater interest than the widow, 
 has a preferable claim. No. 20, Matura, 23 Feb. 1835. 
 
 A daughter claimed the exclusive right to administer her mo- 
 ther's estate, as being the eldest child. The D. C., and in ap- 
 peal the S. C., decided that her brother was at least equally en- 
 titled; and therefore, that the administration should be joint. 
 No. 42, Galle, 2 Dec. 1835. 
 
 Where a Buddhist priest applied, in forma pauperis, for ad- 
 ministration to the estate of his predecessor, of considerable 
 value, the S. C. expressed great doubts whether admn. should 
 ever be granted to a pauper, at least where the amount was 
 considerable; this being inconsistent with the necessity of the 
 administrator finding valid security. No. 32, Matura, 9 Dec. 
 1835. 
 
 From the foregoing cases, and from the generality of those 
 which come before the courts, it will be seen that administra- 
 tion of the estates of intestates is an object, for the most parr, 
 eagerly sought after, and keenly contested. On the other 
 hand, no person can be forced to takeout administration, unless 
 where his doing so is imposed as a condition; as, for instance, 
 to his being allowed to substantiate his claim against the estate. 
 L. B. 25, 31 Oct. 1833. Ibid. 31 Oct. 1834. 
 
 With respect to the security required for the due perform- 
 ance of this most important trust, it is to be observed that the 
 27th clause of the Charter t; authorises District Courts to take 
 " proper securities from all executors and administrators." 
 To an inquiry by a D. Judge, whether security should be taken 
 from an executor named in the will, no directions to that effect 
 being contained in the rules of the 4lh section, the S. C. re- 
 turned for answer, That as regards executors, a discretionary 
 power is left to the D. C. to require security, if the particular 
 circumstances of the case, or situation of the parties, should 
 render such precaution necessary ; that according to the prac- 
 tice of the lateS. C., which was founded on thai observed in 
 the diocese of London, security was, in general, only required
 
 6 Administration Appraisement. 
 
 from administrators ; that the selection of executors by a testator 
 denoted a degree of confidence in their integrity, which would 
 render it superfluous to demand security from them, except in 
 extraordinary cases; that the Rules of Practice, therefore, 
 bein" framed for cases of ordinary occurrence, and not for 
 those which form exceptions to the general rule, take no notice 
 of security from executors, leaving it to the D. C. to exercise 
 the discretionary power vested in them by the Charter in this 
 respect, when any special case may arise to make it necessary, 
 for the safety of the estate, that the executor should find secu- 
 rity. L. B. 3 Dec. 1834. 
 
 The security pointed out by the fourth rule of the 4lh sec- 
 tion, is that of two sureties, to be carefully examined by the 
 Court as to their solvency. But the S. C. has expressed its 
 opinion that title deeds, and other valuable deposits, being often 
 very preferable to personal security, ought not to be refused, 
 when offered. L. B. 18 Sept. 1835. 
 
 Where the appraisers had, by mistake, omitted to insert cer- 
 tain property in their list of appraisement, the D. C., with the 
 sanction of the S. C., permitted the list to be amended, though 
 some years had elapsed since the appraisement. L. B. -26 April 
 1834." 
 
 The 7th Rule, and Form No. 13, contemplate authority being 
 given to the appraisers to lake possession of the property, only 
 in the event of their being no will, and no widow or next of kin 
 appearing: The S. C., however, sanctioned the adoption of the 
 same course, though the widow had appeared to claim admi- 
 nistration, where circumstances rendered the precaution ne- 
 cessary for the security of the estate. L. B. 8 May 1834. 
 
 Administrators, being sued for the restoration of property, 
 which they had unlawfully, as it was alleged, inserted in the list 
 of appraisement, pleaded that the properly was still in the plain- 
 tiff's possession, and moved lhat this suit might be dismissed, in 
 order that they might institute proceedings for the recovery of 
 the properly in dispute. But the S. C., on appeal, observed that 
 this course could only have the effect of delav and unnecessary 
 expense : that the insertion of (he property in the list might 
 naturally be considered as only the first step towards gelling
 
 Administration, etc. Suit transferred. 
 
 possession ; that the plaintiff was therefore justified in resist- 
 ing this act, on the same principle that a survey of land, in- 
 cluding disputed property, is often resisted ; and that there 
 \vas no reason why the right to the property should not be tried 
 in this action, the libel being amended by praying that the arti- 
 cles be struck out of the list, instead of that they be restored to 
 the plaintiff. IVo. 333, Amblangodde, 9 May 1835. 
 
 The percentage allowed to appraisers is one-half per cent, 
 on all immovcable property, and on bonds, money, or other 
 property, of which the value is fixed and ascertained; and one 
 per cent, on all other moveable property. L. B. 5 Feb. 1834. 
 
 Where executors represented that the testator had been 
 domiciled in the district of Hambantotte, but that the executors, 
 witnesses to the will, and heirs, resided in Matura, and that in- 
 convenience would therefore he occasioned, if probate must be 
 taken out in the Court of the former District-, the S. C., in pur- 
 suance of the 36th clause of the Charter, ordered that the suit 
 for probate should be transferred to Matura; with a reserva- 
 tion, however, that this order should not be construed to give 
 jurisdiction to the D. C. of Matura, in any suit to be instituted 
 by the executors, in which that Court would not have had juris- 
 diction under the 24th clause of the Charter. Civil Minutes, 
 Colombo, 9 Oct. 1835. And see L. B. 27 Jan. and 2 Feb. 1836, 
 from which it appears that the S. C. considers the district in 
 which an intestate was last domiciled, and in which his pro- 
 perty is situated, to he that in which administration should be 
 sued out, rather than the District in which he died, under the 
 G\h and 7th Rules of the 4lh Section. 
 
 An executor sued his co-executors, to be relieved from a 
 judgment obtained in a former suit against the executors gene- 
 rally, for a share of the estate, as sworn to in the final account, 
 lo which account the present plaintiff alleged that he was no 
 party, having never acted, or interfered in the estate. The 
 defendants contended in their answer that, as the decree was 
 against all the executors, generally, the plaintiff was equally 
 liable with themselves. The D. C. directed evidence lo be gone 
 into. On that order being appealed against by the defendants, 
 the S. C. affirmed it, and directed evidence to be adduced, first,
 
 - 
 
 8 Administrators, etc.; liability of 
 
 whether the plaintiff had actually renounced the office of exe- 
 cutor, and if so, in what manner that renunciation had been 
 expressed ; which would be for the plaintiff to show : On the 
 other hand, for the defendants to prove that the plaintiff had 
 acted, or taken any part in the management of the estate : And 
 also whether he had been served with a summons in the former 
 case, and whether he had appeared, or taken any part in that 
 suit. No. 406, Amblangodde, 6 May 1835. 
 
 A widow, before obtaining administration to the estate of her 
 deceased husband, executed an agreement, by which she en- 
 gaged to assign certain lands to her three sons, after she should 
 have obtained letters of administration. An action was brought 
 on that agreement, and dismissed by the D. C., as contrary to 
 the law of inheritance, according to which the lands should be 
 divided equally among the heirs. On appeal, the S. C. affirmed 
 the decree of dismissal, observing that such an agreement must 
 be either superfluous, or illegal : For cither it must be an en- 
 gagement to administer the estate according to law, which the 
 administrator binds himself to do by bond to the Court on re- 
 ceiving administration; or it must be an undertaking to deviate 
 from such course, which would be fraudulent and illegal. No. 
 2291, Hatlicaloa, 17 June 1835. 
 
 Claims against estates should be brought forward, before the 
 final account filed : And where the brother of the deceased sued 
 the widow and administratrix for the funeral expenses paid by 
 the brother in 1824, lha final account having been filed in 1834, 
 but before this action was brought, the D. C. dismissed it, and 
 the dismissal was aflirmctl by the S. C. No. 1965, Chilaw and 
 Pullam, 2 May 1835. 
 
 A widow and administratrix being sued by the nephews and 
 nieces of the deceased for their shares of a sum of money, which 
 she had admitted by her provisional account to be in her hands 
 to the credit of the estate, the D. C. dismissed the action, on the 
 ground that the time for filing the final account had not yet 
 arrived. The S. C., however, on appeal, referred it to the Re- 
 gistrar to say what sum was due to the plaintiffs, observing that 
 the administratrix must eilher pay their respective shares, or 
 pay the whole amount into Court, if it was intended to dispute
 
 Administrators, etc.; disputes between 9 
 
 the justice of the claims. No. 565, Manar, 6 Jan. 1836. It 
 may here be observed, that the frequent frauds practised in 
 Ceylon in the administration of estates, have compelled the 
 Courts to exercise the greatest vigilance in watching the con- 
 duct of executors and administrators, and the utmost strictness 
 in enforcing the fulfilment of their duties. And it is hoped that 
 the 14th and following rules of the 4th section, which were 
 framed with a view to this necessity, are strictly enforced. 
 
 Where an executor, being sued by a creditor of the estate, 
 was ordered to credit the estate with certain sums, which he 
 had omitted to insert in his account, but the executor failed to 
 comply with that order ; the S. C. expressed its opinion that the 
 creditor, who had previously obtained judgment and execution 
 against the estate, was entitled to execution against the pro- 
 perty, and even the person, of the executor himself. For it is 
 a rule that, when the properly of an estate proves insufficient 
 for the payment of the debts, the executor or administrator, if 
 he have misapplied the assets, becomes personally responsible 
 for the deficiency. And the order to credit the estate with the 
 sums omitted, was tantamount to a declaration by the Court 
 that the executor had, pro tanto, misapplied the assets. L. B. 
 11 Dec. 1835. 
 
 A District Judge having applied to the S. C. for instructions 
 how to act, when administrators differed from each other, was 
 advised to decide between them, as between two litigants, it 
 being taken for granted that one of them had complained to the 
 D. C. ; leaving the dissatisfied party to appeal, if he thought 
 proper, against the order, whether interlocutory or final. A 
 reference to arbitration, both parties binding themselves to abide 
 the award, would often perhaps be the least ruinous and best 
 mode of settling such disputes: Or it might become necessary to 
 revoke the letters of administration, and grant them to some one 
 or more persons, who had no interest in the estate. L. B. 10 
 Aug. 1835. It is to be remarked that the 7lh and 8th rules of 
 the 4th section contemplate administration being granted to the 
 secretary of the D. C., in default of parties legally entitled to 
 claim it. In some of the courts, however, the secretaries have 
 unfortunately been found unfit for the office, and have some-
 
 10 Administrators, etc.; removal of 
 
 times indeed expressed themselves unwilling to undertake it, 
 from a consciousness of their unfitness. 
 
 An administrator having failed to file his final account, or to 
 settle the estate, and being in a precarious state of health, the 
 D. Judge applied to the S. C. for instructions how to proceed : 
 Whether the administrator should not be removed $ his property 
 and that of the sureties, together with that of the estate under 
 his administration, sequestered, and a new administrator ap- 
 pointed? To this, he received for answer that the first step 
 should be to remove the administrator and appoint another, 
 under the authority of the 27lh clause of the Charter ; that it 
 might probably be found necessary to put the estate itself under 
 sequestration, till the new administrator should have given the 
 requisite security -, but that, as regarded the property of the 
 administrator and his sureties, the administration bond should 
 be regularly put in suit, for the recovery of any deficiency which 
 might be found in the estate, before their property could be 
 held liable to sequestration. L. B. 21 Oct. 1834. 
 
 Executors and administrators should not be allowed to give 
 evidence in favour of the estates. No. 6863, Colombo North, 
 16 Dec. 1835. For even though they should have no beneficial 
 interest as heirs or legatees, still their liability for costs, and 
 still more their claim for commission, would render them im- 
 proper as witnesses. 
 
 AGREEMENT. 
 
 See Titles Commission, Debtor and Creditor, Fraud, Land. 
 Husband and Wife, Interest, Marriage, Minority, Obligation, 
 Partnership, Renter, Ship.
 
 II 
 
 AMENDMENT. 
 
 Of list of appraisement $ see title Administration, supra, 
 page 6. 
 
 Of Judgments, etc. ; see titles Judgment, and Execution, 
 parate. 
 
 APPEAL. 
 
 All judgments and orders appealable from, without exception, page 12 < 
 And awards, 13 When a case should be slopped on interlocutory appeals, 
 13 Prevention of appeals for mere delay, 14 By hearing interloe. appeals 
 immediately, 14 And making appellant pay costs, 14 Or the proctor, in 
 case of malpractice, etc., 15 Distinction between demurrer and answer, 16 
 Objections to questions no ground for stopping trial, 18 Appeal must be 
 from a judgment, etc., not from a mere suggestion, 19 And in a suit, etc., 
 pending, not from a decree of a former court, 19 Nor from an order, regu- 
 lating duties of an officer of D. C., 19 Nor against the general conduct of 
 D. C., 20 Nor will S. C. receive a secret petition of appeal, 20 Nor one 
 sent direct to S. C., without the necessary steps taken in D. C.,20 Prose- 
 cutors may appeal, but without prejudice to the accused, 20 Complaints 
 .therefore to be recorded, though rejected, 21 S. C. will not give extraju- 
 dicial opinions, 21 Security; sequestered property taken pro tanto, 21, 2 
 Certificate always necessary, 22 If suit dismissed, security to prosecute, 
 and for costs, sufficient, 22 On appeal as to costs, etc., merits cannot be 
 gone into, 22 Solvency of sureties, how reported, 22 Periods for appeal, 
 etc., eitendcd, 23 As for want of stamps, or negligence in D. C., 23 Or 
 if respondent consent, 23 Or if only one day too late, 23 Or a first appeal 
 from a new court, 24 Or to correct an error, 24 Allowed in blank, secre- 
 tary having embezzled the stamps, 24 Appeal heard immediately, to de- 
 feat delay, 25 Rejected on repeated neglect; but allowed, though too late, 
 where decision bad on the face of it, 25 On reference to S. C., circum-
 
 12 Appeal from all judgments, etc. 
 
 stances to be staled, 25 How far appeal stays execution, 25 Criminal ap- 
 peals received at any time, 2f> Without stamps or security, 26 But execu- 
 tion not stayed, unless ordered, 26 No inconvenience from criminal appeals, 
 27 To prevent prosecution, rejected, 27 Speedy transmission of proceed- 
 ings, 27 Advantage of sending originals, 27 D. J. to explain delay, 28 
 Responsible for his officers, 23 Excuses for delay , 28 Place of hearing, 28, 9 
 Consent necessary for Colombo; duty of proctor on this subject, 29 Ap- 
 peal once heard at Colombo will be there decided, 29 Arrangement of 
 proceedings, 30 Appeal postponed, till after trial for forgery, 30 Decrees 
 of S. C. how to be executed, 30 D. C. to record its opinion on fresh evi- 
 dence, 31 Appeal to II. M.; After review, fresh evidence not received, 31 
 Suits for divorce, etc., appealable to H. M. 32. 
 
 THF. 31st clause of the Charier makes the S. C. "A court of 
 " appellate jurisdiction for the correction of all errors, in 
 " fact or in law, which shall be committed by the D. Courts; 
 " with sole and exclusive cognizance, by way of appeal, of 
 ' all causes, suits, actions, prosecutions, matters, and things, 
 " of which (he D. C. may take cognizance, by way of original 
 " jurisdiction." And the 35th clause gives the most extensive 
 power to the S. C., "To affirm, reverse, correct, alter, or vary 
 " all sentences, judgments, decrees, or orders of the D. C., ac- 
 " cording to law; or to remand for further hearing, or fresh 
 " evidence ; or, upon hearing the appeal, to receive or reject 
 " such fresh evidence." These very general terms would 
 make it difficult to imagine any decree or order, interlocutory 
 or final, against which an appeal would not lie. But it would 
 seem that some of the D. Judges have been misled by those di- 
 rections, which often occur in Ordinances and the Rules of 
 Pract., by which certain points are to be decided according to the 
 discretion of the D.C. It has been imagined that such discretion- 
 ary power, when exercised, is final, and not subject to appeal. 
 Thus: Opposition having been made by a defendant to the 
 plaintiffs application to be allowed to sue as a pauper, as di- 
 rected by the 45lh rule of the 1st section, the D. C. overruled 
 the opposition, and on the defendant filing a petition of appeal 
 against that decision, the D. Judge indorsed on it that this was 
 an order overruling the defendant's objections, against which 
 there was no appeal ; but most properly transmitted the petition
 
 Appeal Interlocutory. 13 
 
 so indorsed to the S. C. for instructions. The S. C., after re- 
 ferring the D. Judge to the 31st and 35th clauses of the Charter, 
 observed that the answer given by the D. Judge to the appellant, 
 if allowed, might be equally given to an appeal against any 
 other order ; for on any contested point, the decision of the 
 Court might be said to " overrule the objections" of the unsuc- 
 cessful party: That it might, with equal correctness, be said 
 that the decision of the D. C. under the 28th rule, as to the suf- 
 ficiency of evidence, was one "against which there was no ap- 
 peal." In neither rule was the right of appeal expressly given, 
 for any such provision would have been superfluous 5 but by 
 neither was such right taken away, nor could it have been taken 
 away, by any order of court. L. B. 28 Aug. 1834. 
 
 A question was proposed by one of the D. Judges, whether, 
 when the parties have submitted to arbitration, either of them 
 be at liberty to appeal against the award? To which the S. C. 
 directed an answer to be returned in the affirmative. For the 
 award might be contrary to law, or to the terms of the submis- 
 sion to arbitration. L. B. 20 Aug. 1834. And vide infra, title 
 Arbitration. 
 
 But a question which must constantly be recurring, and 
 which often requires nice consideration, is, whether oh an ap- 
 peal from an interlocutory order, the case should be stopped 
 till the decision of the S. C. is obtained, or should be proceeded 
 with. This question was submitted to the S. C. by one of the 
 D. Judges in a case in which, after the parlies had consented to 
 go to trial, and several witnesses had been examined, the'deft. 
 objected to the case being proceeded with. The D. Judge at 
 first refused the application, but afterwards, in his anxiety not 
 to go wrong, postponed the further hearing, and on reference 
 to the S. C., requested specific instructions, as to what orders 
 might be appealed against, and what might not. He w : as in- 
 formed in answer, that every order of the I). C., of whatever 
 nature, might be appealed against, either by a separate and 
 distinct appeal at the lime of making the order, cr by general 
 appeal, aflor the decision of the case. In considering whether 
 a case should bo stopped in its progress, in order to allow the 
 appellant to bo heard at that stage of the case before the S. C.,
 
 14 Appeal for delay. 
 
 the question would naturally be, is it necessary that Ibis point 
 should be decided in appeal at once, or will tbe justice of the 
 case be more effectually promoted, by leaving the dissatisfied 
 party to his ultimate appeal, after judgment in the D. C.? The 
 order, rejecting the postponement, was one which the defend- 
 ant would have had a right to appeal against, if the objection 
 had been taken in proper time \ but the evidence having been 
 entered into, the D. C. would have been justified in refusing 
 to postpone the continuation of it. L. B. 27 Oct. 1834. And 
 see No. 2939, Galle, 6 March 1835. 
 
 It is indeed of the utmost importance that D. Courts should 
 well consider the necessity of postponing a case, on an appeal 
 from an interlocutory order ; because otherwise, these appeals 
 might be used by dishonest suitors, as the means of almost in- 
 terminable delay. Serious apprehensions were entertained at 
 first, and by no one more than by the writer of these notes, that 
 the very general power of appeal against every order, coupled 
 with the option given to the appellant by the 50th clause of the 
 Charter, to have the appeal heard on circuit, would tend to 
 defeat the ends of justice, by the frequent interposition of ap- 
 peal, and the consequent postponement of the proceedings. 
 It may, however, be confidently said that these apprehensions 
 have not been realised, and that the inconvenience will never 
 exist to any alarming extent, as long as the object of groundless 
 and vexatious appeals is frustrated by speedy decision, and par- 
 ties are discountenanced, as far as maybe done with propriety, 
 fromiiaving recourse to such a mode of obtaining delay. 
 
 As one step towards the first of these modes of preventing 
 appeals for mere delay, the S. C. has always decided appeals 
 from interlocutory orders at Colombo, under the 50th clause of 
 the Charter, unless where the nature of them required that 
 they should be heard and considered on circuit. And by an or- 
 der of 9 3Iay 1835, on all appeals against interlocutory orders, 
 the registrar is directed to send the proceedings forthwith to 
 one of the judges, without keeping them eight days in the re- 
 gistry as in other cases, unles the judge shall order otherwise. 
 And in order to discourage the practice itself, the S. C. has 
 taken occasion to censure the party appellant in the order of
 
 Appeal for delay. 15 
 
 affirmation, and to direct him to pay the costs of the appeal, 
 without reference to the ultimate decision of the case, where 
 the appeal was obviously only for delay. The excuse for the 
 length, at which some of the following decisions and observa- 
 tions of the S. C. are given, will be found, it is hoped, in the 
 great importance which the writer attaches to whatever tends 
 to uphold and improve the character of the practitioners on the 
 one hand-, and on the oiher, to repress all unnecessary ex- 
 pense and delay, and any thing resembling unfair practice. 
 
 Thus, where a defendant pleaded that he resided in another 
 district, to which the plaintiff replied that the act, in respect of 
 which the suit was brought, was done in the district in which 
 the suit was commenced, and the D. C. ordered the parties 
 thereupon to proceed, against which order the defendant ap- 
 pealed : The S. C. affirmed, and directed the defendant to pay 
 all costs of the plea and of the appeal. It observed, "The Charter 
 gives every party the fullest power of appealing against any 
 order, interlocutory or final : But it must be the endeavour of 
 the S. C. to prevent this privilege, so largely given for the pur- 
 poses of substantial justice, from being perverted to the end of 
 fraudulent delay. It does not appear whether the defendant 
 moved to appeal by his proctor, or in person. If the former be 
 the case, the proctor must either have neglected to read the 24th 
 clause of the Charter, which gives jurisdiction either according 
 to the residence of the defendant, or to the place where the 
 cause of action arose ; or, having read it, must have had recourse 
 to this expedient to gain time, knowing, as he must or ought to 
 have done, that the ultimate decision must be against him. It 
 has been matter of consideration whether parlies, who avail 
 themselves of Courts of Justice in this island vexaliously or im- 
 properly, shall or shall not be liable to punishment, beyond their 
 liability for costs. (Yidc infra, title False Claim.) But it is 
 clear that no proctor can be permitted to have recourse to prac- 
 tices on behalf of his client, which, if resorted to by the client 
 himself, might render him liable to punishment. If, therefore, 
 the proctor, who drew this plea, also advised the appeal, he 
 ought to pay all costs which may have been incurred by either 
 side, in consequence of a step so utterly useless, to say the least
 
 16 Appeal for delay. 
 
 of it. And the D. C. is recommended to resume the hearing of 
 the case immediately, in order to prevent the encouragement of 
 similar defences, by allowing the parly to gain hisobvious object 
 of delay." No. 13,236, Negombo, 30 Oct. 1833. 
 
 The following case and the judgment may serve to illustrate 
 this part of the subject, and to show the anxiety of the S. C. to 
 discountenance chicanery and vexatious practice, under colour 
 of technical language. A widow sued for certain lands, as the 
 property of her deceased busband. The defendant filed what 
 he called a " demurrer," alleging, 1st, that the land was service 
 parveny, and therefore could not be held by females , and 2dly, 
 that the plaintiff had not taken out letters of administration to 
 her husband's estate. After some further interchange of plead- 
 ing, the D. C. ordered the parties to proceed to trial. Against 
 this interlocutory order the defendant's proctor appealed, en- 
 tering into a long discussion to show that, as he had "demurred" 
 to the action, the Court should have dismissed it without further 
 inquiry. Upon this appeal, the S. C. made the following order : 
 " That the interlocutory decree be affirmed ; that the D. C. 
 do forthwith proceed to the hearing of the case upon the merits, 
 after answer filed as hereinafter directed ; and that the de- 
 fendant's proctor do pay all the costs, which shall have been 
 incurred on either side, by this most useless and vexatious ap- 
 peal. The S. C. observes with regret that an attempt has been 
 made in this case, on the part of the defendant, to mislead the 
 Court, and to divert it from the real question in dispute, by the 
 use, or rather the abuse, of certain terms of art, wholly inap- 
 plicable to the state of pleading as it exists in the courts of this 
 island, and of which, even if they had been applicable, it is 
 plain that the proctor does not understand the meaning. The 
 confusion which has arisen in the pleadings of the parlies, and 
 of which the proctor has now endeavoured to take advantage, 
 is allribu table lo the misapplication of the word demurrer, which 
 the defendant, or the person who drew his defence in the first 
 instance, misapplied to that defence ; a misapplication which 
 the defendant's proctor has adopted, and repeated in his peti- 
 tion of appeal. That proctor, before he attempted to write a 
 dissertation upon law pleadings, by which he has consumed the
 
 Appeal for delay. 17 
 
 lime of the court in the shape of a petition of appeal, would 
 have done well to inquire the meaning of the term demurrer. 
 He would then have found that, by demurring, a party objects 
 that the facts alleged by the opposite side, supposing them to 
 be proved, would not establish his case ; and therefore, that there 
 is no necessity for answering such allegations. Whereas, in the 
 present instance, the defendant asserts two facts, neither of 
 which form the subject of the plaintiff's libel, but both of which 
 are capable of proof, and which the defendant was bound to 
 prove, before they could avail him as a defence to the action. 
 This, therefore, was to all intents and purposes an answer, 
 upon which the parties might at once have proceeded to trial ; 
 the issues raised by the defendant being, first, whether the land 
 be Service Parveny, so as to preclude the plaintiff from even 
 the right of occupancy, and secondly, whether the plaintiff 
 have or have not taken out letters of administration, and whe- 
 ther such letters be indispensable, to enable her to maintain 
 this action. These are the two points upon which the defend- 
 ant, by what he calls a demurrer, but which is in truth a plea 
 or answer, has rested his defence. This court, however, is un- 
 willing to preclude the defendant, in consequence of his proc- 
 tor's blunder, from establishing any claim which he may him- 
 self have to the land in question. And it is therefore further 
 ordered that the defendant be allowed to file an answer to (he 
 real merits of the case, provided the same be filed within 
 four days from the day of promulgating this order in I he D. C. 
 No. 130, Pantura, 13 Aug. i834. 
 
 And in another instance, where a plaintiff's proctor appealed 
 against an interlocutory order, by which appeal the suit was 
 needlessly delayed for five months, the S. C. directed that the 
 proctor should pay the costs. No. 296, Amblangodde, 8 April, 
 1835. 
 
 So, where tho D.C. directed a decree in a former case to be 
 filed for its own satisfaction, and the defendant, whose answer 
 had made the production of the decree necessary, appealed 
 against the order : The S. C. affirmed the interlocutory or- 
 order, with costs against the appellant, and directed that his 
 
 2
 
 18 Appeal for delay. 
 
 proctor should not be allowed his costs in appeal. No. 231, 
 Ainblangodde, 7 March 1835. 
 
 In another case, the plaintiffs proctor having objected to the 
 cross-examination of the plaintiff's witnesses by the defendant, 
 the D. C. overruled the objection, and the plaintiff appealed; 
 on which I he judge stopped the trial, and sent the proceedings 
 up to the S. C., where the decision was affirmed with costs of 
 appeal, and of all the witnesses in attendance on the day of trial 
 on both sides. The judgment of the S. C., after observing on 
 the greater degree of latitude permitted on cross-examination, 
 proceeded thus: " But whatever may have been the weight at- 
 tached to the objection, it ought not to have been allowed to 
 stop the progress of the case, by an express and immediate ap- 
 peal to the S. C. The 27th rule of Ihe first section directs thaC 
 'If any objection be made to the relevancy or admissibility of 
 ' a question, or to the terms in which it is put, the court shall 
 ' decide upon such objection, making a note thereof, and of the 
 ' decision, if either parly require it.' By this course, the ob- 
 jecting parly has the opportunity reserved to him, of appealing 
 after the decree is passed, should that be unfavourable to him, 
 against any evidence improperly received : And if the evidence, 
 independently of such testimony as should be found lobe objec- 
 tionable, would not bo sufficient to warrant the decision, it 
 would be a good ground of reversal. But to allow a party to 
 stop the case, and put the opposite parly to all the expense of a 
 new hearing, for the purpose of appealing against the admissi- 
 bility of a particular queslion, would enable him to postpone the 
 final decision to an indefinite period, and to increase the costs 
 equally without limitation. The S. C. has had occasion to ani- 
 madvert on the frivolous and vexaiious appeals against inter- 
 locutory orders, so frequently resorted to in some of Ihe D. G. 
 And in some instances, where the appeals have been instituted 
 by the proctor, this court has fell itself called upon to direct the 
 costs to be borne by the proctor himself. Thai course is not 
 adopted in the present instance, because the proctor appears to 
 ha vi been actuated b} zeal for his client, and not from motives 
 of vexaiious delay, which indeed could only prejudice his own 
 case, supposing the claim to be well founded. But it is hoped
 
 Appeal- when inadmissible. 19 
 
 that appeals, on grounds so untenable, will not again be made 
 against interlocutory orders ; especially where the rules of prac- 
 tice prescribe a different mode of proceeding. 1 ' No. 706, Cal- 
 tura, 9 May 1835. 
 
 General as the terms are, by which the appellate jurisdiction 
 is given to the S. C., the appeal must be from some judgment or 
 order, in a suit, prosecution, or other matter, pending before 
 the D. C. 
 
 1st. It must be against a judgment or order: Therefore, where 
 a plaintiff was obliged to abandon his case, owing to the neglect 
 of duty on the part of a headman, and theD. C. recommended 
 the plaintiff to recover his costs against the headman, and the. 
 headman appealed, the S. C. rejected the appeal, observing that 
 the recommendation of the D.C. was no decree, nor did it make 
 it obligatory on the headman to comply, without an action: It 
 was a mere expression of opinion by the D. C.. and of advice to 
 the plaintiff. No. 442, Jaffna, 20 Feb. 1835. See also No. 
 1652, Negombo, 6 Jan. 1836. And vide infra, as to appeals 
 in criminal cases. 
 
 2diy. The judgment or order must be in a suit, prosecution, 
 or other matter, pending before Ihe D. C. Therefore, where 
 to an action on a decree, obtained in a late Provincial Court, 
 the only defence was, that the decree was not well founded, 
 and ought never to have been pronounced, though it had never 
 been appealed against ; the D. C. gave judgment on the decree, 
 and the S. C. aflirmed that decision, observing that the defendant 
 ought to have appealed against the original decree, and that if 
 he were allowed to question the propriety of that decree in the 
 present action, the D. Courts would be made to sit in appeal on 
 the judgments pronounced by those tribunals which had pre- 
 ceded them. No. 1486, Jaffna, 20 May 1835. 
 
 So, uhere an officer of a D.C. appealed against an order 
 made by the D. Judge, directing certain duties to be performed 
 by the officer, which the latter considered ought not to hare 
 been imposed upon him, theS. C. rejected the appeal, observ- 
 ing that this was no judicial decision by the D. C., but an act 
 done by the D. Judge, in the exercise of that control, which the 
 head of every court, and of every office, must possess, in regu> 
 
 2.
 
 20 Appeal by prosecutors. 
 
 laling the conduct of the subordinate officers. Petition Book, 
 1835, page 165. 
 
 A complaint was made by a salt-renter, thai the D. C. was in 
 the habit of rejecting his complaints against persons infringing 
 the salt regulations : In answer to which, he was told that the 
 S. C. would receive an appeal from any decision of the D. C.-, 
 but could not listen to any general complaint like the present. 
 If the renter considered that the D. C. took an erroneous view 
 of the regulations, he had only to appeal against any one deci- 
 sion, whether in the shape of a rejection of the complaint, or in 
 any ulterior stage 5 and the disputed point would at once be set 
 at rest. Petition Book, 183-i, page 103. 
 
 An appellant presented a supplementary petition to the S. C., 
 praying that the contents of this, and of former petitions, might 
 be kept secret from the D. Judge, lest he should be displeased 
 and dismiss her claim, which, as she said, would deter her from 
 prosecuting her appeal. This petition was referred at once to 
 the D. C., "as the best means of convincing Ihe petitioner, that 
 the S. C. can neither believe nor listen to such imputations." 
 And it w : as added that the D. Judge would no doubt assure the 
 petitioner, that she was under the protection of the Court, a* 
 long as she was a suitor there; and that she had nothing to ap- 
 prehend, either in conducting her suit in the D. C. or in appeal. 
 Petition Book, 1 835, p. 1 10. 
 
 The S. C. is under the daily necessity of rejecting petitions 
 of appeal, on the ground of their being sent direct to the regis- 
 trar's office, instead of being filed in the D. C., and the other 
 preliminary steps taken, as directed by the rules of the 8lh sec- 
 tion. And the court has frequently animadverted on the con- 
 duct of petition-drawers, in receiving fees for preparing peti- 
 tions, which they must well know, and are bound to inform their 
 nmployers, cannot regularly be received by the S. C. Petition 
 Book, passim. 
 
 The question was proposed by one of the D. C., whether a 
 prosecutor on a criminal charge was entitled to appeal? The 
 S. C., on consideration of the very extensive words of the Char- 
 ter, answered this question in the affirmative : But added that 
 Ulis right of appeal must not operate as any hardship or incon-
 
 Appeal security. ^21 
 
 venience upon parties accused ; that as, on the one hand, the 
 Charter provides that appeal from conviction shall not operate 
 as a stay of execution, unless by order of the D. Judge, so an 
 appeal by a prosecutor, whose complaint is dismissed, ought not 
 to subject the defendant to any personal restraint, or even to 
 the necessity of finding security for his re-appearan.ce ; and 
 that it would only be necessary to send up the proceedings, 
 which would be decided upon forthwith at Colombo, unless the 
 S. C. saw reason to reserve the case for circuit. L. B. 10 June 
 1834 ; and see circular letter to the D. Judges, 21 June 1834. 
 
 Where a complaint was made before a D. C. which refused to 
 entertain it, but made no record or entry of such refusal, the 
 S. C. directed a re-hearing, in order that the complainant might 
 have the benefit of appeal, which he could not have, if no record 
 of the complaint and of its dismissal existed. L. B. 13 June 
 1835. 
 
 The S. C. is naturally cautious, not to express any extra- 
 judicial opinion, by which its consideration of any case, when 
 regularly brought before it, might be fettered : Thus, where a 
 D. Judge, in his laudable anxiety to know whether one of his 
 decisions, just pronounced in a civil case, was according to law, 
 referred the proceedings to the S. C. of his own accord, for 
 opinion, the S. C. was compelled to decline receiving them ; 
 observing that, though the judges would willingly give advice to 
 a D. Judge as to the course to be adopted, they could not pass 
 an opinion on a matter actually decided, and which might be 
 brought before them in appeal, without giving the party, to 
 whom such opinion might be unfavourable, a just right to com- 
 plain that the case had been prejudged in the appellate court, 
 without his having had an opportunity of being heard. ,L. B. 
 6 Nov. 1835. But where a criminal conviction was, in like 
 manner, referred for their opinion, the judges, not feeling the 
 same objection, did not refuse to consider and state their respec- 
 tive views of the case. L. B. 8 July 1835. 
 
 The security to be given by appellants, and the mode of 
 giving it, are prescribed by the 4th and 6th rules of the 8th 
 section ; and it does not appear that many disputed points have 
 .arisen on this subject. Vide infra, title Bail, in appeal.
 
 22 Appeal security. 
 
 AN here a defendant's property had been sequestered at the 
 beginning of the suit, on account of his non-appearance, and 
 after judgment for the plaintiff, the defendant appealed, but 
 omitted to give security, considering that the sequestered pro- 
 perly \\as available for that purpose : The S. C. directed that 
 lie !h:>uld only be called upon to give security for so much of 
 the amount of the debt and costs, as well those of appeal as in 
 the court below, as the sequestered property should be insuffi- 
 cient to cover. \o. 318, Kandy, 17 May, 1834. 
 
 \ certificate from the secretary, as directed by the lOlh rule, 
 should always accompany the proceedings, whether the decree 
 appealed against be interlocutory, or iinal : And in all appeals 
 from final decrees, a security bond, as required by the 3d and 
 4lh rules, should be entered into ; though where a suit is dis- 
 missed, and the subject in litigation is not endangered by 
 the delay, it is sufficient to take security for the due prose- 
 cution of the appeal, and for the payment of costs, already 
 incurred, or which may ultimately be awarded. L. 15. 29 April 
 1835. 
 
 Where a defendant, on an appeal against the award of costs 
 against him, endeavoured to obtain a revision of the whole case 
 upon the merits, the S. C. expressed its opinion against the 
 adoption of such a course : It observed that either the appeal 
 must be- against the decree generally, in which case security must 
 be given to the amount of the subject in litigation and costs j 
 or it must specify the precise object to which the appeal is limited, 
 whether costs or any other matter, in which case the amount of 
 security would be limited to the precise object of appeal, and 
 the S. C. would not allow the appellant to go into am other sub- 
 ject. L. li. 29 Sept. 1834. 
 
 On one occasion the S.C. was obliged to censure the conduct 
 of a head-moor man, who had certified the solvency of proposed 
 sureties, on the mere report of the (\tmisteer, and had even 
 affirmed it as of his own knowledge, when in fact he knew no- 
 thing personally about them. Such report should be made by 
 the headman, or other person really acquainted with the cir- 
 cumstances of the sureties: and not 1>\ a superior officer, wholly 
 ignorant on the subject, and whose name therefore could only
 
 l time for extended. 23 
 
 be used for the purpose of lending a fictitious character to the 
 persons proposed. L. B. 16 Sept. 1835. 
 
 The period for appealing, fixed by the 1st rule of the Slh sec- 
 tion at 10 days after judgment, is the same as that observed in 
 the late High Court of Appeal, and is as much as can bo neces- 
 sary to enable a parly, generally speaking, to decide on the ex- 
 pediency of appealing, without giving the appellant an unrea- 
 sonable power of harassing the successful party. The 3d rule 
 gives 10 days more for finding security : And the supplementary 
 rule. No. 3, 25 April 1834, requires the appellant to furnish 
 the stamp for the secretary's certificate at the same time. But 
 the 5th rule allows a relaxation of tbese periods of prescription, 
 provided the appellant can satisfy the I). C. that his omission 
 was not imputable to negligence. On this latter rule, many re- 
 ferences have been made to the S. C., as to the propriety of the 
 admission or exclusion of appeals, notwithstanding the lapse of 
 time ; on which questions the S. C.. and in most instances the 
 D. C., have shown a disposition to let in the party to his appeal, 
 whenever any reasonable excuse appeared for the delay. 
 
 Where the delay has been occasioned by want of stamps 
 in the office of the D. <;. (L. B. 21 Dec. 1833, and 25 Aug. 
 1834). or by the negligence or misconduct of the officers of the 
 court (L. B. 21 Dec. 1833), it is scarcely necessary to say that 
 the appeals were admitted without a moments hesitation. And 
 wbere a party presented an unstamped petition of appeal to the 
 P. C., which was not returned to him til! 9 days afterwards, and 
 he afterwards filed a petition of appeal in regular form, but out 
 of time: the S. C. ordered it to ba received, observing that the 
 appellant might not unnaturally have concluded that, if unne- 
 cessary delay were permitted to the officers of the D. C., his own 
 want of punctuality would not be too severely criticised. L.B. 
 18 Aug. 1335. 
 
 The object of the rules of limitation being the protection of 
 respondents, and not the sparing the time or trouble of the courts, 
 the S. C. ordered an appeal to be received, with the consent of 
 1he respondent, though no satisfactory reason -was assigned for 
 the appellant's delay. No. 0975, Kandy. 30 June 1835. 
 
 "Where the petition of appeal was filed one day too late, the
 
 24 Appeal lime extended. 
 
 S. C. considered lhat this omission could scarcely beimputable 
 to wilful negligence, and admitted the appeal. L. B. 10 July, 
 1835. It may be doubted, however, whether this case ought to 
 be drawn into a precedent, where no ground is shown for the 
 delay ; for the line must be drawn somewhere. 
 
 A first appeal from a 1). C., newly established, was received 
 by the S. C., though the time for appealing had elapsed, on the 
 ground lhat parties, to whom litigation was comparatively a 
 novelty, might very possibly have remained in ignorance of, or 
 have misunderstood, the rules by which the prosecution of ap- 
 peals is regulated. L. B. 13 Jan. 1835. 
 
 A D. Judge applied to the S. C. for authority to amend a de- 
 cree, which had been erroneously drawn up, and which the de- 
 fendant, \vho was thereby decreed to pay more than was in- 
 tended, had only acquiesced in from not perceiving the purport 
 of it. The S. C. observed that the amendment of judgments, 
 once pronounced and recorded, was a power which ought to 
 be exercised as rarely and cautiously as possible 5 but lhat as 
 the acquiescence of the defendant in the decree had arisen from 
 bis having mistaken the nature and effect of it, the case might 
 safely be considered as falling within the 5th rule; viz. u an 
 omission to appeal, not imputable to negligence: 1 ' And as the 
 necessity for appeal arose, not from the defendant's feeling dis- 
 satisfied wilh the decree, as it was intended to be pronounced, 
 but from lhat decree having, by mistake, varied in its terms 
 from the real intention of the D. C., Ihe appeal was allowed 
 without stamp. L. B. 9 Sept., 1835. This course, it should 
 be observed, was adopted in deference to the opinion of one of 
 the learned Puisne Judges, who entertained strong doubts of the 
 power of the D. C. to amend its judgment, even though autho- 
 rised to do so by the S. C. The majority of the Judges would 
 otherwise have adopted the latler course. Vide infra, titles 
 Execution, parate, and Judgment, amendment of. 
 
 So, where the appellant had furnished money for stamps, 
 \Uiich the secretary of the D. C. was supposed to have embez- 
 zled, the S. C. directed that the appeal should be allowed with 
 the necessary documents on blank paper ; observing that it would 
 be in the highest degree unjust, to make the suitors bear the
 
 Appeal time extended: Stay of exn. 25 
 
 loss occasioned by the dishonesty of the recognized officer of the 
 court, against which dishonesty they had no means of guarding. 
 L.B. 12 Sept. 1835. 
 
 An appellant, the defendant in an action on a bond, having 
 been allowed by the D. C. to give security after the time pre- 
 scribed, and Ihe proceedings being referred to the S. C., to de- 
 cide on the allowance or rejection of the appeal, in pursuance of 
 the 5lh rule, the S. C. presumed that it had been proved to the 
 satisfaction of the D. C., that the omission was not imputable to 
 negligence, and proceeded forthwith ta consider the merits of 
 the case, to sec if any good ground existed for the appeal ; in 
 other words, for the defence set up : And it appearing that there 
 was no good ground, the appeal was at once rejected. For if 
 the case had been allowed to remain the usual time in the regis- 
 try, before final decision, the probable object of the appeal, 
 viz. delay, would not only have been attained, but the defend- 
 ant's own neglect in giving security would thus have been 
 allowed to assist him in that object. No. 152, Matele, 20 May 
 1835. 
 
 Where sureties were rejected as insuflicient, and time was 
 given to the appellant to procure others, which he neglected to 
 do, though frequently admonished by (he court on the subject, 
 the S. C., on reference, declared the appeal rejected. L. B. 16 
 Sept. 1835. So, wilh respect to furnishing the stamp for the 
 certificate of appeal, under the supplementary order No. 3. 
 L. B. 2 April 1835. But where a D. Judge referred to the S. C. 
 under the 5th rule a case in which a party had appealed too late, 
 but the decision appeared obviously untenable, the S. C. recom- 
 mended the reception of the appeal, notwithstanding the lapse 
 of time. L. B. 16 Sept. 1835. 
 
 In transmitting proceedings under the 5th rule of the 8th sec- 
 tion, the D. Judge should always state explicitly, whether any 
 and what reasons have been assigned for the omission, and 
 whether those reasons were or were not satisfactory to the D. C., 
 as proving that the delay had not arisen from negligence. Ibid, 
 and L. B. 19 Jan. 1836. 
 
 Appeal does not operate as a stay of execution, except as re- 
 gards the removal and sale of the property. See 6lh, 7lh, and
 
 26 Appeal, criminal at any lime. 
 
 8th rules of the 8lh section: And L. B. 17 and 19 Oct., 1833, 
 and 2 2 and 26 July 1834. 
 
 With respect to the lime for appealing in criminal cases, the 
 rule in that behalf at the end of the 8th section directs the ap- 
 plication lo be entered at the time of conviction, or a petition to 
 be transmitted to the I). Judge within 10 days afterwards.. This 
 rule, however, was intended to induce a speedy reference to the 
 S. C., but not to debar defendants, nor does it in fact debar 
 them, from appealing at any time against convictions. Accord- 
 ing!}, these appeals have never been rejected on the ground of 
 their having been made too late. As no stamps are recpiired in 
 any criminal proceedings, and no security on appeal from them 
 (L. I?. 17 June 1835), the order for (he transmission of the pro- 
 ceedings issues immediately on the petition of appeal being re- 
 ceived, and the conviction is decided upon, almost invariably, 
 on the court day next after the receipt of the proceedings. A 
 representation was made to the S. C. by a D. Judge, soon after 
 the promulgation of the new Charter and the rules of practice, 
 of the evils likely to arise from allowing appeals from all con- 
 victions; and especially painting out that, if the execution of 
 punishment were postponed pending appeal, as to which no pro- 
 vision was made by the rules of practice, the great object of 
 example would be lost, while the immediate infliction of it. in 
 the case of corporal punishment at least, would render the ap- 
 peal useless. The S. C. observed in reply, that the 39th clause 
 of the Charter had provided that no appeal in a criminal case 
 should have the effect of slaying the execution of any sentence, 
 unless by order of the D. Judge ; that a repetition therefore of 
 that provision in the rules would have been superfluous, and 
 indeed improper, as implying that the Charier stood in need of 
 such confirmation : thai as to the apprehended inconvenience 
 from ihc frequency of criminal appeals, the S. C. would hope 
 that this would not prove very extensive, but that, at all events, 
 it had no power to restrict the right of appeal in the slightest 
 degree : that the Charter conferred this right in criminal cases, 
 as fully and universally as in civil matters, this being indeed the 
 avowed intention of those who framed that instrument , and 
 that Ih nigh the remedy would be a -\ ery useless one, as regarded
 
 l transmission of proceedings. 27 
 
 ihc appellant, where corporal punishment was awarded and not 
 suspended during appeal, still one great object, that of bringing 
 the correctness of the decision under review, would be effected. 
 L. B. 7 Nov. 1833. It is gratifying to be able to add that, 
 after more than two years' experience, no inconvenience had 
 bean observed by the S. C.. or expressed by the D. C., to have 
 arisen from the frequency of criminal appeals ; though a scrupu- 
 lous and most laudable delicacy has been observed on the part 
 of Ihe D. Judges, in postponing corporal punishment, wherever 
 the shadow of a doubt might be supposed to exist, as to the 
 propriety of Ihe conviction. 
 
 The appeal, however, as we have seen with respect to civil 
 cases, must be against some judgment or order in a prosecution 
 actually in existence. Thus, where a deft., about to be prose- 
 cuted under a Kandyan law, for having forcibly taken posses- 
 sion of land, appealed against the mere reception of the prose- 
 rution, the S. C. rejected the appeal as premature ; observing 
 that no order had as yet been made, Irom which the defendant 
 conld regularly appeal ; and that, till the facts of the case ap- 
 peared, it would be impossible to say whether it fell within the 
 local law or not. L. B. 26 Nov. 1835. 
 
 One of the most important objects in the administration of 
 justice being final and speedy decision, as far as expedition is 
 compatible with full inquiry and due consideration, and it being 
 well known that the object of the majority of appellants in this 
 island is to gain time, it is obvious that the transmission of the 
 proceedings to the S. C., as shortly as possible after the appeal 
 is instituted, becomes an object of the highest importance. 
 With this view, and in order to save the time formerly con- 
 sumed in copying the depositions on stamps, the originals are 
 now transmitted in appeal to the S. G. And in answer to a D. 
 Judge, who suggested that the revival of the old course, of re- 
 quiring the depositions to be copied on stamps, would tend to 
 prevent vexatious litigation, the S. C. expressed its hope that 
 the celerity, with which cases might now be transmitted imme- 
 diately after security is given, and the subscqent dispatch in de- 
 ciding them, would go further to check vexatious litigation, 
 than any additional tax which could be imposed, and which, H
 
 28 Appeal excuses for delay. 
 
 might be feared, would offer too great an obstruction to the 
 honest litigant ; and that moreover, the limited establishment of 
 many of the D. C. would render such copying utterly impracti- 
 cable. L. B. 12 Dec. 1833. 
 
 The S. C. accordingly never fails to call on the D. Judges for 
 explanation of any delay : There seems indeed no good reason, 
 \vliv a single day need intervene between the giving security 
 and the transmission of the proceedings. L. B. 14 Feb. 1835. 
 In many instances, the delay has been accounted for by the 
 negligence of the officers of the D. C.; but the S. C. has never 
 failed to state explicitly, in answer to such reasons, that it is the 
 D. Judge, as head of the Court, and not the subordinate officers, 
 who must be held immediately responsible to the S. C. for the 
 performance of the several duties attached to the D. C. L. B. 
 14 Feb. 1835: That the D. Judge is the authority, to whom 
 alone the S. C. can look for the due execution of its judicial or- 
 ders; and that it is one of the most important duties of the D. 
 Judge to keep his officers to their respective posts, and to as- 
 certain, by his personal superintendence, that their several 
 functions are punctually and faithfully discharged. L. B. 25 
 April, 1835 : And that if his officers proved negligent, it was 
 the duty of the D. Judge to lose no lime in representing such 
 negligence to government, and requesting the appointment of 
 efficient officers. L. B. 24 Aug. 1 835. 
 
 Among other excuses for delay in the transmission of pro- 
 ceedings, the want of a bookbinder, to bind them together, has 
 more than once been urged. And where the business of any 
 court is so extensive as to furnish actual occupation for such an 
 officer, no doubt he ought to be provided. But as a general 
 principle, the S. C. considered that it was the duty of the secre- 
 tary of the D. C. to see that each pleading and document is 
 bound up, from the very commencement of the suit, as each is 
 filed ; and that if that duty were performed, nothing would re- 
 main for him to do at the last, but to annex his own certificate, 
 and transmit the proceedings, on the very day on which security 
 was given, to the S. C. L. B. 15 May 1835. 
 
 Another very fruitful source of delay, as regards D. Courts, 
 situated within either of the three circuits, has been the omission
 
 l place of hearing. 29 
 
 to ascertain from the parties I heir wishes as to the place of hear- 
 ing ; the 50th clause of the Charter making (he consent of all 
 parties necessary to enable the S. C. sitting at Colombo, to dis- 
 pose of appeals from any of those courts. The 9lh rule of the 
 8th section directs how this point shall be ascertained; and the 
 circular letter to the D. Judges, of the 15th April 1825, points 
 out the necessity of ascertaining the wish of the respondent at 
 the time of decision, lest he should not be found afterwards. 
 It is matter of regret, however, that this precaution is fre- 
 quently omitted, and delays are very unnecessarily incurred in 
 consequence. The attention of the D. C. has frequently been 
 called to this point, and to the form in which the wishes of the 
 parties ought to be recorded. L. B. passim ; circular letter 
 to the D. Judges, 15 April 1835. And it is to be observed that 
 even where the wish of one or both of the parties is, that the 
 case should be heard on circuit, the proceedings should never- 
 theless be forthwith transmitted to the S. C. at Colombo. L. B. 
 23 Oct. 1834. And see the I Oth rule of the 81 h section. 
 
 Where an appellant complained that, though she had ex- 
 pressed her wish that the appeal should be heard and decided at 
 Colombo, it had nevertheless been disposed of at Jaffna, with- 
 out notice to herself or her proctor ; the S. C. returned for an- 
 swer that as the respondent had not concurred in wishing the 
 case to be heard at Colombo, it had necessarily been decided on 
 circuit ; that with respect to notice, it was the duly of the 
 proctor, who had drawn the present petition as well as the peti- 
 tion of appeal, to have acquainted his client with the rule laid 
 down by the Charter, as referred to in the 9th rule of the 8th 
 section, and that the case would therefore be heard at the ses- 
 sion at Jaffna, of which due notice had been given by proclama- 
 tion ; and that if the petitioner had sustained any loss, in con- 
 sequence of the proctor's negligence, or ignorance of the law, she 
 must seek her remedy against him. Petition Book, 1835, 
 p. 91. 
 
 Where parties have once expressed their wish that the case 
 should be heard in appeal at Colombo, and after such hearing it 
 has been referred back for further inquiry; the S. C. will not, 
 iu general, allow either party to retract their wish, and remit
 
 30 Appeal decrees of S. C. how executed. 
 
 the case for final decision to the circuit : For this would, very 
 probably, be to leave the ultimate decision to a judge of the 
 S. C., who may not have taken the principal part in the pre- 
 vious consideration of the case at Colombo. ]No. 5,276, Kandy, 
 14 Oct. 1835. 
 
 Previously to the transmission of the proceedings, the secre- 
 tary of the D. C. should examine them carefully, to see that 
 tliev are arranged in proper order, as directed by the circular 
 letter to the D. Judges of the 5th June, 1834. The trouble, and 
 what is of infinitely more importance, the loss of time, occa- 
 sioned to the judges in appeal by neglecting this rule, is too 
 serious to be passed over without notice. L. B. 14 March, 
 1835, and passim. The secretary, also, should never fail to 
 note on petitions of appeal, and indeed on all other documents 
 received by him, the day of the month and year, at the moment 
 of receiving them. L. B. 20 May 1835. The inconvenience 
 of recording orders, or other proceedings, on the back or cover, 
 has been observed upon, and it is hoped, is now abolished. 
 L. B. 12 June 1834. And see circular of the of Jan. 1836, 
 and the form accompanying it. 
 
 Important, however, as speedy decision has been considered, 
 generally speaking, to be, special circumstances may sometimes 
 make it desirable that the hearing of a case in appeal should be 
 postponed. Thus, where a defendant was appellant, and it was 
 discovered that a deed filed by the plaintiff was a forgery, on 
 which he was committed for trial : The S. C., on reference b) 
 the D. Judge, considered that, though the verdict of the jury on 
 the criminal prosecution would not necessarily be conclusive 
 in the civil action, it would be more satisfactory not to decide 
 the latter, till the former had been disposed of. L. H. 27 April 
 1835. 
 
 In carrying a decree of the S. (1. into execution, the D. C. 
 should be careful to make no order, if possible, from which the 
 party may appeal ; for that would, in effect., be admitting an 
 appeal against the decree of the appellate court, which is final. 
 The proper course is to let the fiscal follow (he very words of the 
 decree of the S. C., taking care that he be furnished, in caseg 
 affecting land, with all plans and other documents, necessary to
 
 Appeal to H. M. in council. 31 
 
 enable him to fulfil the directions. And if it should become 
 necessary to explain such decree, care must be taken, in so 
 doing, not to vary it. L. U. 12 Aug. 1835. 
 
 When a case is referred back to the D. C., for further evi- 
 dence, that court should never fail to record its opinion on the 
 case, as it presents itself after such new evidence has been gone 
 through, even though the order of reference by the S. C. should 
 not expressly so direct : For otherwise, the S. C. would often 
 be obliged to decide on the value of evidence, and the credit due 
 to witnesses, without having had the advantage of seeing and 
 hearing them give their evidence. L. B. 6 May 1835. 
 
 The course to he pursued, in appealing to the Queen in coun- 
 cil, is laid down with great particularity by the 52d clause of the 
 Charter. One case only has occurred of such appeal, since the 
 institution of the present courts. And the only point of any 
 general interest, which was decided in that case, was that after 
 the judgment of the S. C., forming the subject of appeal toH. M., 
 has been brought by way of review before the three Judges col- 
 lectively at Colombo, according to the first rule and limitation 
 prescribed by that clause, it is too late for the party appellant to 
 move for fresh evidence to be heard. The judgment of the 
 court upon that point was delivered and recorded at considerable 
 length $ but it is sufficient for the present purpose to state shortly 
 the grounds on which it proceeded; premising, however, that 
 the value of this decision, as an authority, must depend on that 
 of H. M. in council, with the result of which, the writer of these 
 notes is unacquainted. Those grounds were, That the very ex- 
 pression of bringing the judgment " by way of review before 
 the three judges," who are " thereupon to pronounce judgment 
 according to law," seems to exclude the idea of fresh evidence, 
 the admission of which would give the proceeding a character of 
 a new trial, rather than of a " review" or criticism of the deci- 
 sion already pronounced by the appellate court : That a dis- 
 tinction has been obviously and intentionally made by the Char- 
 ter, between cases in appeal immediately from the D. C., and 
 those in review from the decree of one of the judges of the S.C. ; 
 the 35th clause, which regulates the course in appeal, giving the 
 S. C. the most ample powers, not merely to confirm, reverse, or
 
 32 Appeal to H. M. for divorce, etc. 
 
 vary decrees, but to remand for further hearing or fresh evi- 
 dence $ whereas the 52d clause confers no such power on the 
 S. C., sitting in review : That not only is no such power given, 
 but, if given, it would have been unnecessary and productive of 
 inconvenience and injustice ; for though fresh evidence may 
 often be found necessary, when a case is transferred from the 
 D. C. to the S. C., still it must be presumed that all defects in 
 the proceedings in the court below will be discovered while the 
 case is in appeal, and will not be reserved till the decision, not 
 of the original court, but of that of appellate jurisdiction, is 
 under review, as the last preliminary to the case going before 
 the King in council : And that if this were permitted, the main 
 object of appeals, delay, might always be attained, by keeping 
 back some piece of evidence, till the case came up in review. 
 ]Vo. 6,047, Kandy, 20 June 1835. 
 
 In a suit instituted before a D. C. for a divorce, one of I he 
 grounds on which it was contended that the D. C. possessed no 
 matrimonial jurisdiction, was that no appeal from the decision 
 of cases of this nature could be carried home to England, inas- 
 much as the second condition of the 52d clause of the Charter 
 limited such appeals todecisions involving properly to the amount 
 of 500/. or upwards. The S. C., however, in deciding that this 
 branch of jurisdiclion did reside in the D. C., observed, as re- 
 gards this ground of objection. That though it might appear at 
 first sight, that parlies would be without appeal to H. M. in 
 council, where no value appeared as the measure of Ihe injury 
 sought to be redressed, the S. C. would certainly supply that 
 apparent omission, by considering every case of the description 
 like that before the court, as above !he value of 500/. ; since 
 questions of this nature could srarcely be measured, as to their 
 importance, by monej to any amount. No. 11,016, Colombo, 
 6 Feb. 1836. given more fully under tit. Jurisdiclion. 
 
 APPEARANCE. 
 
 See titles, Contempt, Practice, Proctor.
 
 33 
 
 APPRAISERS. 
 
 See Administration. 
 
 ARRITRATIOA. 
 
 Reference to arbitration common in Ceylon, page 33 May be before ac- 
 tion, verbal or written ; or pending action, by order of C.; but must be vo- 
 luntary 33 Reference to "commissioners," without consent, illegal 34 
 And decrees, founded on their reports, void 3i Such reports not evidence, 
 35 Any subject of action may be referred, 35 But criminal charges ought 
 not, 35 Order of reference to be duly recorded, 36 Arbitration, or Gang- 
 sabe", Should not be allowed after decision in D. C., 36 Award, duly made, 
 conclusive, quoad D.C., 37 But appealable to S. C., 37 Gansabe"s, how 
 enforced, 37. 
 
 THIS mode of settling matters in dispute, by referring them to 
 the decision of one or more arbitrators, is very common in Cey- 
 lon j and that particular kind of arbitration called Gangsabe, by 
 Avhich, in some districts, the matter in dispute is referred to the 
 inhabitants of a village, generally, is specially reserved by the 
 4th clause of the Charter from the effect which the exclusive 
 jurisdiction, conferred on D. C. by that clause, might otherwise 
 have had, in preventing the continuance of that custom. The 
 submission, as it is called, or reference to arbitration, may 
 either be made without any suit pending between the parties, 
 and then, either by verbal agreement, or, which is a much pre- 
 ferable course, by written bond or contract ; or it may be made 
 after action brought, at any time during the progress of it, by 
 order of the court. But this expression, " by order of the 
 court," must by no means be taken as giving the courts autho- 
 
 3
 
 :tt Arbitration must be voluntary. 
 
 rity, of their own mere will, to order the arbitration. The re- 
 ference, lobe legal and binding, must be strictly voluntary, and 
 should indeed be so expressed to be, in the order of reference 
 itself. A court of justice may recommend the adoption of this 
 course, not for the purpose of saving its own time or trouble, 
 but where the subject in dispute, and the facts to be inquired 
 into, are of a nature to convince the court that arbitrators 
 would be more likely to come to a satisfactory conclusion than 
 the court itself could do. But if the parties, or either of 
 them, be unwilling to accede to Ihis proposal, the court is bound 
 to proceed with the case to a decision, however difficult it may 
 appear to be, to form a correct conclusion. And so completely 
 unfettered ought parlies to be left in this respect, that even the 
 recommendation of the court to refer ought not be pressed upon 
 them too warmly ; for the party who was dissatisfied with the 
 award would rarely fail to endeavour to set it aside, on the 
 ground that he had been persuaded to go to arbitration against, 
 his own judgment. 
 
 It has been considered the more necessary to make those ob- 
 servations, because a practice formerly existed to a considerable 
 extent in the courts of Ceylon, of referring cases, especially 
 where land formed the subject of litigation, to persons who were 
 styled " commissioners," and frequently without any wish, or 
 even consent, of the parties to that effect being expressed. 
 These commissioners inquired into the matter in the best way 
 they could, made their report, and that report became in fact 
 the decree of the court. This mode of proceeding, if permitted, 
 would be, in rcalify, a delegation by the court of its judicial 
 powers to irresponsible deputies. No. 91, Tenmorachy and 
 Patchelapally, 30 July 1834, and see L. B. 27 Nov. 1834. Now, 
 though parties may choose their own judge or umpire, and bind 
 themselves to abide by his award, the court has no power to 
 appoint a substitute, nor any right to compel parties to submit 
 to the decision of such substitute. Accordingly, where the de- 
 cree of a B.C. was founded, not on evidence, but on the report 
 of commissioners appointed by the court, no agreement or con- 
 sent by the parties to a reference appearing on the proceeding's, 
 the S. C. referred the case back for evidence 5 observing that
 
 drWralion what may be referred. 35 
 
 the report or award, not being made by a Gangsabe*, or by ar- 
 bitrators chosen or consented to by the parties, was not binding 
 on either party. No. 5173, Kandy, 6 Dec. 1833. And to 
 show how litlle the report of these commissioners ought to be 
 relied upon ; in another case, in which the S. C. made a similar 
 order to hear evidence, the witnesses who were called to prove 
 the possession of the parties, and who must therefore have been 
 supposed to be the persons best acquainted wjth the subject, 
 stated that they had no knowledge of the survey, on which the 
 report of the commissioners was founded, not having been pre- 
 sent when it was made, and never having heard of it. No. 
 13,962, Galle, 3 Sept. 1834. 
 
 As these reports and surveys are not binding as decrees, or 
 as forming the foundation of decrees, so neither ought such 
 reports to be received in evidence : For the facts so reported 
 ought to be sworn to, in open court, by the persons stating them. 
 The only, or at least the chief, use of these references by the 
 court, without the consent of the parties, is to ascertain what 
 the precise object of litigation is ; so that the court may be sure 
 that the parties and witnesses, having been present at the in- 
 spection, are speaking of the same object. And thus a plan or 
 survey may be prepared, pointing out the spot in dispute, to the 
 correctness of which the parties, having been present when it 
 was made, cannot refuse their assent. No. 5173, Kandy, and 
 13,962, Galle. See also to the same effect L. B. 13 and 16 Dec. 
 1833. 
 
 Supposing, however, the parties to be desirous or willing to 
 refer their matters in dispute to arbitration, there seems to be 
 no subject, which can form the object of a civil action, which 
 may not be so referred. The subjects most proper for arbitra- 
 tion are said by Mr. Kyd, in his treatise on the Law of Awards, 
 to be "long and intricate accounts 5 disputes of so trifling a 
 nature, that it is of little importance in whose favour the decision 
 may be given, provided there be a decision 5 and questions on 
 which the evidence is so uncertain, that it is much better to 
 lave a decision, whether right or wrong, than that the parties 
 should be involved in continual litigation." 
 
 .With respect to criminal prosecutions, the courts in England 
 
 3,
 
 36 Arbitration how reference made. 
 
 have allowed these also, for the minor offences, as assaults, 
 nuisances, and the like, in which the injured party has his 
 choice of remedy by action or prosecution, to be referred to 
 arbitration. But in this island, in which false and malicious 
 prosecutions are so frequent on the one hand, and fabricated 
 defences on the other, it would be highly inexpedient and dan- 
 gerous to permit of any mode of disposing of criminal charges, 
 except by judicial decision, or by compromise in cases of 
 " trifling assaults, or other petty offences of a purely personal 
 nature," as allowed by the 3d rule of the 2d section : and only 
 then, with the express sanction of the court, or of the crown 
 officer. 
 
 When a civil action is to be referred to arbitration by consent, 
 it is strongly recommended to the D. Judges not to content 
 themselves with making a bare entry of such consent in llu> 
 proceedings 5 but, if there be no regular band of submission 
 executed, to record the terms of reference plainly and explicitly, 
 but without unnecessary language, and to cause the parties, 
 after explaining to them the entry so made, to sign it. 
 Thus : 
 
 " It is ordered, by and with the consent of both parlies, thai 
 " the matters in dispute between them in this action he referred 
 " to the award and final determination of [insert the na;v.es of 
 4i the arbitrators], whose award the said parlies 
 
 " do hereby agree and consent to abide by, provided the & 
 " be legally made on-or before the day of r.c.xt, 
 
 " or such other day as this court, on motion, may ord. 1 :-. ' 
 
 The terms of the order, as suggested above, may casiiv be 
 varied according to circumstances. 
 
 It is scarcely necessary to say that a parly must not bo allowed 
 to take his chance of a decision in his favour in the I). C. : and 
 on failure, to ask to go to arbitration ; though this is a pr; 
 which has been often attempted. No. 1780, Chilaw andPuLlam. 
 And where a Gangsabe was applied for under similar circum- 
 stances, and was refused by the D. C., the S. C. affirmed that 
 refusal j observing that the Charter, which directed that the 
 decisions or awards of Gangsabes should be respected, could 
 never be supposed to have contemplated a party having recourse
 
 Arbitration Award how far conclusive. 37 
 
 to that jurisdiction, after proceedings had been instituted before 
 a more regular tribunal. No. 1780, Chilaw and Pullam, 29 
 Dec. 1834: No. 5871, Kornegalle. 
 
 But when the matter in dispute has been legally and regu- 
 larly submitted to arbitration, the award should be held con- 
 clusive by the D. C., unless some very strong circumstances, 
 as fraud, partiality, or the like, should appear to vitiate it. In 
 \o. 4-1G-2, from Kandy, 30 Oct. 1833, the S. C. set aside a decree 
 of the court below, which had been passed in opposition to the 
 award of arbitrators and umpire, where no sufficient grounds 
 had been adduced for impeaching the award. 
 
 Where a Gangsabe had fixed certain boundaries to the pro- 
 perly in litigation, and one of the parties had taken upon himself 
 to remove the boundaries so placed, the S. C. animadverted 
 severely on his conduct, ordered him to replace the boundaries 
 at his own expense, and referred it to the consideration of the 
 D. Judge, whether he ought not to be proceeded against crimi- 
 nally for the offence of removal. No. 256, Matelle, 22 Nov. 
 1833. As the Gangsabes have no power to carry their awards 
 into execution, it may not be irrelevant to recommend the D. C. 
 to enforce such awards, when they appear to have been duly 
 and regularly made. 
 
 But though an award, when duly made, is to be considered 
 final as regards the D. C., it is not so with reference to the S. C. 
 On reference on this point from one of the D. C., the S. C. re- 
 turned an answer to that effect, L. B. 20 and 26 Aug. 1834 5 
 and recommended the award being made a rule of court, so as 
 to give it the effect of a judgment, by an entry to the following 
 purport : 
 
 " On motion of the above-named [plaintiff or defendant]- 
 " It is ordered that the award of the arbitrators made in this 
 " case on the day of be made a rule of 
 
 " court." 
 
 ARRACK. 
 
 See Prosecution.
 
 38 
 ARREST. 
 
 e3- 
 
 See titles, Bail, Contempt, Debtor and Creditor, Process. 
 
 ASSESSORS. 
 
 Success of the experiment, and advantages of assessors, page 38 Sec. 7 of 
 Rules of Prac., 39 Former rules at variance with, must yield, 39 Appre- 
 hended difficulties as to cast, etc., not realized, 40 Permanent assessor, 40 
 Bnrghers and Villales have sale together, 40 But violent or premature 
 abolition of distinctions deprecated, 40 Exemptions from serving, 41 Pe- 
 nalty for non-attendance; discretionary with, and may be remitted by, B.C., 
 41 Assessors must be present at all proceedings to render them valid, 42 
 Their names should appear, and that they were sworn, 43 And two only 
 insufficient, 43 On questions of fact, S.C. leans to the opinion of assessors; 
 of law, to that of D. J., 43 Course, whenD. J. and assessors differ, 44. 
 
 ONE of the most striking novelties of the new system being 
 the intervention of assessors in the proceedings of the courts of 
 original jurisdiction, except indeed in the Kandyan provinces, 
 where assessors have always formed a constituent part of the 
 courts, considerable anxiety has naturally been felt as to the 
 success of an experiment, of which serious doubts were enter- 
 tained in various quarters. As. far as the experience of the 
 writer of these notes, and all that he has heard since he left 
 Ceylon, will enable him to judge, he should say that the expe- 
 riment has succeeded as fully as could reasonably have been 
 anticipated by the warmest advocates of that part of the system. 
 It would be absurd to expect that all the classes of natives, from 
 whom assessors are in rotation chosen, should be found at once 
 gifted with all the requisites for pronouncing sound opinions on 
 the various questions submitted to them. But that they are
 
 Assessors how chosen. 39 
 
 already of considerable use in the decision of questions of fact is 
 incontestable ; and it is equally clear that it is impossible for 
 men to be called upon periodically to serve in this capacity, as- 
 sisting personally in the daily administration of justice to their 
 fellow-citizens, without having their ideas enlarged, and their 
 feelings of independence and self-respect improved, or without 
 mutually creating and imbibing some degree of conGdence in 
 each other's integrity, the want of which has been one of the 
 greatest misfortunes and stains of the native character. 
 
 The 7th section of the rules of practice is devoted exclusively 
 to the mode of selecting, summoning, erapannelling, swearing, 
 challenging, and taking the voles of, assessors. The following 
 are the points, which the S. C. has been called upon to decide, 
 or to express an opinion upon, relative to this subject. 
 
 Soon after the promulgation of the Charter, a difficulty sug- 
 gested itself to the I). Judge of the Four Korles, arising out of 
 the proclamation of 20 Aug. 1831, by which it was directed that 
 when a superior chief was defendant, one half at least of the 
 assessors should be of equal rank : And as the number of superior 
 chiefs resident in the Four Korles might often be insufficient to 
 fulfil this direction, and as the 6th rule of the 7th section pro- 
 hibits all objection to an assessor on the ground of cast or rank, 
 it was feared that great dissatisfaction might be created among 
 the superior chiefs, by having assessors of inferior rank, sitting 
 in judgment on their cases. To this objection the S. C. re- 
 turned for answer, That the rules of practice were framed, in 
 pursuance of II. M. express order to that effect, for all the dis- 
 tricts of Ceylon, Kandyan as well as maritime ; that when it 
 unfortunately happened that the new rules conflicted with former 
 practice, the latter must necessarily give way ; but that the 
 anticipated inconvenience, it was hoped, would never arise, 
 because, three being all that were required to sit at once, it 
 would only be necessary that two, at the most, should be of 
 equal rank with the defendant ; that if there should not be two 
 of that rank on the list of assessors for the week, the parties 
 might agree on a set of three, in pursuance of the provision to 
 that effect in the Glh rule ; that if they failed so to do, or the D. 
 Judge had not received sufficient notice to enable him to pro-
 
 40 Assessors difference of cast, etc. 
 
 cure the attendance of the persons required, the parties must 
 submit to the inconvenience : and that, as regarded cases, in 
 which the plaintiff was of inferior rank or cast to the defendant, 
 there seemed to be no good reason, why the defendant should 
 have the casting vole in his favour, any more than the plaintiff. 
 L. B. 17 and 19 Oct. 1833. 
 
 It may however be safely said that llr's, and other appre- 
 hended inconveniences of a similar nature, arising out of the 
 jealous and exclusive feelings of the natives on the subject of 
 have never shown themselves in any formidable manner-, 
 or, where they have appeared, have been overcome by the good 
 sense and discretion wilh which they have been combated by 
 I ho D. Judges and the Fiscals. In those districts, in which per- 
 manent assessors have been appointed, the very example of that 
 officer, who is always chosen from among the higher classes, 
 and who must, from the very nature of his office, sit with asses- 
 sors of all ranks and classes, has no doubt contributed very much 
 to efface these prejudices. In more than one district, juries, 
 and there can be no distinction between jurors and assessors in 
 this respect, had hccn, before the \\ritcr left Ceylon, empan- 
 uelled of burghers and first-class villalles, who sat together pro- 
 miscuously, and wilh the most perfect cordiality : and a jury, 
 similarly composed, was struck at Colombo, by consent of both 
 sides, for the trial of persons charged with treason, at Kandy in 
 1835. 
 
 On the other hand, the S. C., from the conviction that the 
 total eradication of these mistaken but long-cherished feelings 
 can only be effectually brought about by time, aided by the good 
 -MIS:' and more enlarged views of those who entertain them, 
 has felt opposed to any violent or premature amalgamation of 
 (lasses, which have hitherto been kept distinct : The D. Judge 
 of Matele, in Sept. 1834, forwarded to the governor an applica- 
 tion from two persons of the first class of assessors, requesting, 
 for themselves and others of the first class, that the assessors inr 
 Malele might no longer be separated into 1st and 2d class, but 
 that all the Kali' assessors might be summoned and sit indiscri- 
 minately : And the I). Judge recommended a compliance with 
 this application. On the matter being referred to the Judges of
 
 Assessors exemption penalty. M 
 
 the S. C., the answer returned was, That this application by two 
 persons, "for themselves and others," appeared much too vague 
 a term to afford safe ground for adopting the suggestion of 
 mixing the first and second classes of assessors indiscriminately ; 
 that a very material question would be, who those " others" 
 were, both numerically, and with reference to their weight and 
 respectability ; that unless a decided majority of the first class 
 signified their express desire that the separation should cease, 
 the Judges would not take upon themselves to recommend a 
 union, which would be doing violence to the feelings of the dis- 
 sentients; that on the other hand, if a majority of the first 
 class, both in numbers and respectability, were to join in signing 
 a requisition to, the effect proposed, the Judges, if such a requi- 
 sition were brought judicially to their notice, might feel them- 
 selves called upon to direct at once, under the authority vested 
 in the S. C. by the 21st and 51st clauses of the Charter, that the 
 two classes should be united ; unless indeed His Excellency the 
 Governor should communicate to them any reasons of a public 
 or political nature, which would render such a junction improper. 
 L. B. 4 and 21 Oct. 1834. 
 
 For obvious reasons of general convenience, it has been 
 thought right by the S. C. to exempt from the duty of serving as 
 assessors, the registrar and deputy-registrars of that court, and 
 the secretaries of the D. C., L. B. 20 June 1834 , and also lb& 
 several medical sub-assistants, and the pupils of the vaccine 
 and military department in the several districts. Ibid. 9 Aug. 
 1834. 
 
 The question was put to the S. C. by one of the D. Judges, 
 whether any penalty was to be levied, and to what amount, and 
 in what manner, upon assessors who failed to attend in obe- 
 dience to the summons, without sufficient cause; to which an 
 answer was returned, That according to the form generally used 
 by fiscals, for summoning jurors or assessors, no specific penalty 
 is inserted for non-appearance, but the court should impose 
 such fine, as the nature of the default and the circumstances of 
 the defaulter would seem to call for -, that if any penalty were 
 inserted in the summons in use in any particular district, it 
 would bo discretionary with the court to impose the whole Dr
 
 42 Assessors functions of. 
 
 any part thereof, in the same way as the penalty of 5/. imposed 
 on a witness for non-attendance might be mitigated by the court, 
 though the subpoena did not mention any such discretionary 
 power. L. W. 8 and 11 March 1834. And see L. B. 17 Feb. 
 1834, where it is said that the penalty imposed by the S. C. on 
 jurors for non-attendance is wholly discretionary, varying ac- 
 cording to the circumstances of the neglect, or the necessity of 
 enforcing obedience ; that the usual fine was from 5 to 10 RD. 
 which the court however was frequently in the habit of remitting, 
 on good ground shown for non-appearance ; from which an 
 analogy might be drawn as to assessors. And where a person, 
 who had been summoned as assessor in one of the D. C., pre- 
 sented a petition to the Chief Justice, complaining of his having 
 lain three months in jail, from inability to pay the fine imposed 
 upon him for non-attendance, the C. J. referred the petition to 
 the D. Judge, intimating to him that, if he concurred in think- 
 ing that the man had been sufficiently punished for his con- 
 tumacy, it was open to the I). C. to have him brought up and 
 discharged, without any formal remission of the fine by govern- 
 ment, because this commitment (like lhat of witnesses, on which 
 subject a circular letter was sent on the 21 Feb. 1834 to IheD. 
 Judges) being merely in vindication of the authority of the court, 
 stood on a different fooling from a penally, given by a specific 
 regulation to the crown ; and the enlargement of the prisoner 
 would come with a belter grace from the D. Judge, than from 
 any other quarter. The D. Judge concurred entirely in this 
 view of the case, and discharged the person in contempt with- 
 out delay. L. 15. 26 and 30 April 1834. It is scarcely necessary 
 to add, lhat the order imposing such fine may always be appealed 
 from, like an ordinary conviction. 
 
 As regards the functions of assessors, the question was pro- 
 posed to the S. C. by one of the D.Judges, immediately after the 
 promulgation of the Charter, whether it was intended lhat asses- 
 sors should sit and decide on criminal matters of a petty nature, 
 or whether such offences should bo disposed of by the D. Judges 
 alone ? The answer of the S. C. was, That as the 20lh clause 
 of the Charter directed lhat the D. C. " should be holden before 
 one Judge, and three assessors,' 1 the assessors formed an essen-
 
 'Assessors presence when necessary. 43 
 
 tially component part of the court, and their attendance was 
 necessary during the whole of the proceedings, civil or criminal, 
 and whether of a serious or petty nature, in order to render 
 them valid ; that the 30th clause of the Charter had pointed out 
 the description of orders, on which the opinion of the assessors 
 should be required, and that any orders of mere course, or not 
 included in that description, might be granted without the inter- 
 vention of the assessors ; as indeed they might by the D. Judge 
 out of court. L. B. 2 Oct. 1833. Sec also L. B. 13 Feb. 1835. 
 Thus, an indorsement by a D. Judge on a mandate of arrest, 
 directing the discharge of the defendant, as having been irre- 
 gularly arrested, has been considered not to require any mention, 
 of assessors. L. B. 11 and 17 Aug. 1835 : infra, title Debtor and 
 Creditor. The S. C. has sometimes returned proceedings to the 
 D. C, on the ground that the names of the assessors were not 
 recorded at tbc head of the proceedings of each day, and also 
 that no entry had been made of their having been sworn , it 
 being necessary to tbe regularity of the proceedings that both 
 these points should be recorded. L. B. 21 Oct. 1835. And 
 where it appeared, on appeal to the S. C. on the merits, that on 
 the day of the decision of the case, only two assessors were 
 present r the S. C. drew the attention of the D. Judge to that 
 circumstance, observing that, as three assessors were absolutely 
 indispensable to the very existence of the D. C., it was incom- 
 petent, without that number, to hear or decide any case what- 
 ever ; But as the evidence adduced on the day of decision was 
 of very secondary importance in the consideration of the case, 
 the S. C. considered it sufficient to direct that its confirmation 
 of the opinion expressed by the D. Ju^ge and the two assessors 
 (for it carefully abstained from calling this defective record a 
 judgment) should be publicly recorded in a court duly consti- 
 tuted. No 5159, Badulla, 4 June 1831. Vide infra, title 
 Contempt of Court, on which offence assessors should give 
 their opinion at the time of its commission, to justify a convic- 
 tion. 
 
 On matters of mere fact, and especially where the credit due 
 to the evidence of native witnesses is in question, the S. C. has 
 always felt inclined to lean to the opinion of the assessors (see
 
 V4. Assessors differing in opinion. 
 
 No. 1 1,850, Colombo, 30 April 1834, infra title Debtor and Cre-- 
 ditior) ; and has sometimes referred cases back, in order tbat 
 the assessors might be asked their opinion as to the probability 
 of a particular transaction, and whether they considered it con- 
 sistent with the habits of the class of persons supposed to have 
 been engaged in it : As in No. 216, Tenmorachy and Pat chela- 
 pally, 3 Dec. 1834. And where a D. Judge had given judgment 
 for a debt, alleged to have been contracted tinder circumstances 
 of extreme improbability, and the assessors had expressed their 
 disbelief of the witnesses called in support of the claim, the S. C., 
 on appeal, adopted the view of the assessors, and reversed the 
 judgment of the D. C. No. 2552, Iluanwelle, 3 June 1835. On 
 the other hand, on questions of legal difficulty, or of evidence 
 requiring nice discrimination, the S. C. naturally inclines to the 
 opinion of tho D. Judge ; especially where that functionary has 
 had the advantage of a legal education and attainments : As in 
 No. 39,931, Colombo South, 8 Oct. 1834. As to the course to 
 be adopted, where a difference of opinion exists between the 
 D. Judge and one or more of his assessors, see the 30th clause 
 of the Charter, which provides that if the whole, or a majority, 
 ef the assessors differ from the D. Judge, the opinion of the 
 Judge shall prevail, but the opinion of the dissentient assessors 
 shall be recorded : And see also L. B. 24 April 1834, where it 
 was observed that, though the Charter did not require a differ- 
 ence of opinion between one of the assessors only and the rest 
 of the court to be recorded, yet that the mention of even one 
 dissentient voice was highly proper and convenient, as furnish- 
 ing fuller information to the S. C., if the decision were appealed 
 from. 
 
 ATTACHMENT. 
 
 See title, Contempt of Court.
 
 45 
 
 ATTORNEY. 
 
 See titles, Appeal, Practice, Proctor. 
 
 AUCTIONEER. 
 
 Restrictions, privileges, and responsibility of auctioneers, page 45 In dis- 
 putes with, English or Civil law may be resorted to, 46 Auctioneer, desir- 
 ing the buyer of land to pay the seller, promising to get a good title, which 
 he fails to do, liable to the buyer for the price and expenses, 46 Queiy, if 
 he had not so promised? 47 General liability for deposit, till title made out, 
 47 Should execution of transfer by seller, or payment to him of the price. 
 Lave precedence? 48 Recommended that the two acts be simultaneous 48. 
 
 THE regulation of government, No. 12 of 1825, prescribes the 
 mode by which, and the restrictions under which, any person 
 shall be appoinled to act as auctioneer in Ceylon, the duties 
 payable to government for his license and on sales effected by 
 him, the charges and expenses which he shall be entitled to re- 
 ceive from bis employers, and the periods within which he shall 
 paj over to the seller the value of the property sold ; :t also 
 authorizes him to refuse to deliver goods sold, till the purchase- 
 money is paid, and gives him the privilege of paraie exe-cii- 
 li;ii on his own affidavit, which now is reduced to simple 
 affirmation, for the recovery of purchase-monies, after the 
 expiration of certain periods. Yide infra, title Execution, 
 parate. 
 
 As the licensed auctioneer, therefore, has the exclusive pri- 
 .vilege of exercising that calling, and is besides invested with 
 Jtliis great and extraordinary advantage of parate execution, the 
 ifublic lias a right to look for somewhat more than ordinary
 
 46 Auctioneer liability of. 
 
 fidelity, zeal, and vigilance, in the discharge of his duties ; and 
 courts of justice, accordingly, have inclined to consider any 
 negligence on his part s calling for the utmost strictness, in 
 seeing that the consequences of such neglect fall on himself, and 
 not on liis employers. 
 
 In matters of dispute between auctioneers and their employ- 
 ers, whether buyers or sellers, recourse may, generally speaking, 
 be had, for the guidance of the litigants, to the English or the 
 civil law, indifferently. For, as was observed by Mr. Serjeant 
 Rough in the following case: " The principles on which such 
 questions must be decided arc similar in their nature, whether 
 derived from tbe usage and practice of the Roman Dutch law, 
 or of the English law : The rules, binding on an auctioneer, 
 arc not less strictly laid down in the Dutch civil law, than they 
 are by English decided cases : If there be any difference, it is 
 that, by the former, the auctioneer is to be yet more considered 
 a public responsible officer, than he is by the latter." No. 411, 
 Colombo, 25 Nov. 1835. 
 
 In that case, the plaintiff had become the purchaser of cer- 
 tain land, at an auction held by the defendant, Mr. Gambs, who 
 afterwards called on the pit. to pay over the purchase-money 
 to the vendor of the land, promising, according to the evidence 
 of one of the witnesses, that he, the auctioneer, would get the 
 titles for the pit. in a month. This payment was accordingly 
 made by the pit. to the seller; and the deft, sued for and re- 
 covered from the pit. the amount of stamps and other expenses 
 necessary for the transfer. No title, however, w^as ever made ; 
 it turned out that the seller had no right to the land, and the 
 pit. was eventually ejected therefrom by the lawful owner, and 
 thereupon brought the present action, to recover both the pur- 
 chase-money and the sums paid for expenses. On the part of 
 the deft., it was contended that the payment by the pit. to the 
 vendor was his own sole, well-considered act, and that as he 
 had thus settled with the seller of his own accord, he had taken 
 upon himself the task of procuring a good title, and the deft., 
 as auctioneer, was not liable for the amount. The D. C., how- 
 ever, gave judgment for the pit., and the S. C. affirmed that 
 judgment. The Senior Puisne Justice, before whom the caso
 
 Auctioneer liability of. 47 
 
 was argued in appeal, requested the Chief Justice and second 
 Puisne Justice to give their consideration to it, and they fully 
 concurred in the judgment pronounced by Mr. Serjt. Rough, 
 which was, in substance, as follows : " The general rule of 
 law is that the auctioneer is privileged to receive and retain the 
 deposit or purchase-money in his own hands, till the contract is 
 fully completed between the seller and buyer: In the present 
 case, no doubt can be entertained of the purchase-money baring 
 been paid to the seller by the pit. ; since the deft., in another 
 action, has filed the receipt from the seller to the pit. for that 
 sum. Now, though it may, at first sight, appear a hardship, 
 that the auctioneer should be compelled to refund monies, which 
 have never actually reached his hands, yet as the payment to 
 the seller by the pit. was made in reliance on the trustworthy 
 direction of the deft., and on a consideration which has wholly 
 failed, since no title has been or could be made out, and as 
 there is nothing in the Reg. No. 12 of 1825 which in any way 
 exonerates the deft, from the duty of seeing that the conditions 
 of sale were duly performed on both sides (a duty of which he 
 ought to be perfectly aware) he cannot be permitted to divest 
 himself of his liability. And considering the negligence of the 
 deft., and the early demand made by the pit., the decree must 
 also be affirmed as regards interest and costs against the deft. 1 ' 
 The Chief Justice, in assenting to this judgment, observed that, 
 if the deft, had simply told the pit. to pay the money to the 
 vendor, without saying more, and the pit. had then followed 
 that advice, instead of depositing the amount with the deft, as 
 the safer course, it might perhaps have been considered that the 
 pit. had taken upon himself the risk of ultimately getting a good 
 title : But that, as the deft, went on to promise expressly that 
 he himself would get the titles for the pit., it must be supposed 
 that the pit. paid over the money to the vendor, trusting to that 
 assurance by the deft. The learned Senior Puisne Justice, refer- 
 red, in the course of his judgment, to the folio wing English cases. 
 Burrough r. Skinner, 5 Burrough, 2639 Edwards v. Hodding, 
 5 Taunton 815, and 1 Marshall, 377 Horsefall v. Handly, 2 
 Moore, 7 and Lee v. Mann, 1 Moore, -481 : The substance of 
 vhich cases is, that an auctioneer, receiving from a purchaser
 
 $8 Auctioneer transfer and payment. 
 
 a deposit on land sold by him, is liable for the amount of such 
 deposit till the contract is completed and ended 5 and if a good 
 title be not made out, must refund the deposit to the purchaser, 
 even though he should have paid over the amount to the 
 seller. 
 
 In another case, the auctioneer sued the seller of the land, 
 for not executing a deed of transfer, the purchase-money having 
 heen paid into his, the auctioneer's, hands, and he being ready 
 to pay it over to the deft., on the lalter executing the deed. 
 The deft., on the other hand, insisted on the money being paid 
 over before the transfer, or at least at the same time. Each 
 party thus declaring himself ready to perform his part of the 
 contract, as soon as it was performed on the other side, little 
 difficulty could exist as to the arrangement of the material parts 
 of the case : But the D. C. having awarded costs to the pit., the 
 deft, appealed against the decree on that ground. The S. C., 
 after making some inquiry as to the custom, whether the exe- 
 cution of the deed of transfer ought to precede or to follow the 
 payment over of the purchase-money, modified the decree, 
 and directed that each party should pay his own costs : It then 
 took occasion to observe, " There appears to have been rather 
 more pertinacity on both sides lhan the circumstances called for, 
 arising perhaps from the uncertainty which seems to exist as to 
 the practice on similar occasions. The more general rule is 
 stated to be, that the seller of the land signs the deed of transfer 
 first, and that the auctioneer then pays over the purchase- 
 money ; the deed meanwhile remaining in the hands of the 
 notary. But this, though the more usual practice, is not uni- 
 versally so. Where there is any want of confidence between 
 the parties, it is not unusual, as this court is informed, for the 
 seller to withhold his signature, till the moment when the 
 money is actually produced, and ready to be paid over to him : 
 And on consideration, it seems but just that the seller should 
 ha>e that right. The confidence, or the right of withholding 
 confidence, ought to be mutual. The auctioneer is entitled to 
 detain the purchase-money, till the transfer is completed ; the 
 seller ought to be equally entitled to refuse that completion, till 
 the payment of the money. It is true, the detention of the
 
 Bail arrest, when allowed. 49 
 
 title-deed by Ihe notary may, to a certain degree, be a security 
 to the seller ; but it is not a perfect security, for he must trust 
 to the integrity and firmness of the notary for the detention. 
 The far better course, therefore, would be to make the signature 
 of the deed of transfer, and the payment of the purchase-money 
 by the auctioneer, simultaneous acts. If the auctioneer and 
 seller would agree to meet at the house of the notary at an ap- 
 pointed hour, for the performance of these mutual acts, much 
 unnecessary delay, and many disputes and law-suits, would be 
 avoided." No. 4599, Colombo, 24 June 1835. 
 
 BAIL IN CIVIL ACTIONS. 
 
 Arrest allowed, only on suspicion or (light, or in cases of enormous wrong, 
 page 49 Reasons for change from former rule 50 Change in the law of 
 England, and laic deci.-ion upon it; intended absence, (hough compulsory, 
 justifies arrest 51 Discretion wilhD.C.incasesof wrong 52 Bail for appear- 
 ance, performance, or surrender 52 Surrender, no discharge of bail, actkn 
 against bail being ripe for judgment 52 Surely in appeal 53 Case refernd 
 back to D. C. to hear fresh evidence and decide; surety liable for perform- 
 ance of that decision, as (hat of S. C. 53 Dail in criminal cases 5i No bail 
 after conviction 55 Surety for good behaviour 55. 
 
 THE new Charter of Justice, it is to be observed, does not, 
 like that of 1 SOI, give any directions as to the arrest of defend- 
 ants in civil actions ; but by the 51st clause, directs the Judges 
 of the S. C. "to frame such general rules and orders of court 
 as to them shall seem meet, touching" (among a variety of 
 other matters) "arrest on mesne process, or in execution, tb.3 
 taking of bail," etc. The2d rule of the 1st section, accordingly, 
 directs that a warrant of arrest shall issue, instead of the usual 
 summons, if the plaintiff state to the court that the deft, is in- 
 debted to him (without reference to amount) and that he has no 
 adequate security, and also that he believes (the ground of such 
 belief being verified by the oath of a third person) that the deft, 
 intends to abscond, or leave the jurisdiction of the court ; or if 
 the pit. stales a case of such enormous personal wrong, as, in 
 the opinion of the court, renders such security necessary. This, 
 it will be seen, made a material alteration, as regards the first 
 class of cases, from the law of arrest, as it stood antecedently 
 
 4
 
 50 Bail law of arrest: 
 
 to the introduction of the new Charter. For the practice in UK- 
 S. C., as directed by the Charter of 1801, was that a man might 
 be arrested on a naked affidavit of debt exceeding RD. 100 
 (71. 10.<.) without any suspicion of flight or other circumstances. 
 In the provincial courts, the debt required was RD. 100 or up- 
 wards, and an affidavit was necessary, verifying a suspicion of 
 flight. The writer of these notes is not sorry to have an oppor- 
 tunity of explaining thus publicly the grounds which induced 
 him to suggest, and the learned Puisne Judges to concur in, 
 this change in the law regulating arrests. There appeared no 
 good reason why an arrest should be allowed, solely on the 
 ground of the largeness (let the amount be fixed at what it 
 might) of the debt. If there were no fear of the debtor's leav- 
 ing the jurisdiction, it was difficult to see why he should be de- 
 prived of his liberty, whatever might be the amount, till judg- 
 ment and execution had been obtained against him. On the 
 other hand, it seemed to the Judges, that the arrest ought to be 
 allowed in any case, without regard to the amount, in which 
 the court was satisfied that the defendant was preparing to quit, 
 or had the intention of soon quitting, the jurisdiction ; and that 
 no sound objection could exist to the principle of this rule in any 
 district. If the deft, had no intention of flight, he could have 
 no difficulty, it might be presumed, in finding security ; and be- 
 sides, would have his remedy against the pit. for the malicious 
 arrest. If he really did intend to leave the jurisdiction, then 
 he ought to be compelled to give security, whether the debt 
 were great or small. In the maritime districts, this rule ap- 
 peared particularly called for. An instance had occurred in 
 1833, a short time before the arrival of the Charter, and such 
 instances were by no means of rare occurrence, in which this 
 power of arrest operated very beneficially, and prevented a 
 flagrant act of injustice. The master of a ship, (the Seppings, 
 it is believed) had permitted his crew to order a quantity of 
 shoes, which were hastily supplied by the person to whom the 
 order was given, having been made by different workmen em- 
 ployed by him, and on his own responsibility. The whole amount 
 was sir.all, though, fortunately for the plaintiff, it was some- 
 thing above 100 RD. ; the ship was on the eve of sailing for
 
 Bail arrest in England. 51 
 
 England ; the master denied that he was in any way liable, 
 and referred the pit. to the crew, eaeh of whom was perhaps 
 liable for a few Rix-dollars, and w r hich was therefore nearly the 
 same thing, under tin 4 circumstances, as telling him that he 
 should go unpaid. The master was arrested, gave security, and 
 it appearing on the trial that he had made himself responsible 
 for the goods, the pit. got judgment, and recovered his just 
 debt. But for the interposition of the process of arrest in 
 this case, which could not have been had recourse to under 
 the system then existing, if the debt had not exceeded 100 RD., 
 the chance would have been very small of this poor man ever 
 being paid. 
 
 It is gratifying to find this view of the subject, thus taken in 
 Ceylon in 1833, confirmed in great measure by the alteration 
 lately made in the English law of arrest, which, it is believed, 
 (the writer has not the Act before him) reduces the gr< unds, on 
 which arrest on mesnc process can be permitted, to those of 
 meditation of flight, or fraud. At the moment of these notes 
 going to press, two questions have arisen in Westminster Hall, 
 which may not improbably occur in Ceylon, one as to the dis- 
 cretionary power given by the Act to a Judge, to hold a defendant 
 to bail on an affidavit of his being about to quit England ; 
 whether this power applied to cases, in which the intended 
 departure of the debtor was not for the express purpose of de- 
 laying the creditor, though it might have the effect of doing so. 
 The deft, was an officer in a regiment stationed in Ireland, had 
 come to England on leave, which would have expired in a few 
 days, but was arrested before that period. It was endeavoured 
 to set aside the arrest, on the ground that the deft's. departure, 
 to return to his military duties, would have been compulsory, 
 and not with the view of delaying the pit. The Judges, however, 
 held that the arrest was perfectly legal ; that it was impossible 
 to say how long the deft, might be detained in Ireland by his 
 duty, and that the intention of the Act was to invest the Judges 
 with a discretionary power, to be exercised in any case, in which 
 the absence of the party would have the effect of delaying a 
 creditor. Larnhin v. Willan, Exchequer, Mich. Term 1838. 
 The other question relates to the facts necessary to be disclosed 
 
 k.
 
 52 Bail how given surrender. 
 
 by the affidavit to hold to bail. The Common Pleas has decided; 
 that the grounds, on which the belief of the intended flight is 
 founded, should appear, in order to enable ihe court to exercise 
 a sound discretion. Baleman v. Dunn, C. P. Nov. 1838. 
 
 In the second class of cases contemplated by the 2d rule, that 
 of " enormous personal wrong," the question of arrest is 
 Jeft very much, and necessarily so, to the discretion of the D. 
 C., according to the circumstances of the case. The same 
 discretion was given to the former S. G., by the Charter of 
 1801. 
 
 The 3d rule of the 1st section directs how bail shall be given ; 
 whether to the fiscal for mere appearance, or bail above, to 
 perform the judgment of the court, elc. In point of practice, 
 it is believed that the security is often given in the first instance, 
 according to the form No. 5, by which the bail undertake at 
 once, both for the appearance of the defendant, and for his per- 
 formance of Ihe judgment, or surrender. 
 
 To judge from the results, it would seem that but few litigated 
 or disputed points have arisen upon this branch of practice; for 
 (here is but one case which presents itself, as having been de- 
 cided in appeal, on the subject of bail in civil actions before the 
 D. Courts. The question in that case was. at what time bail 
 should be allowed to surrender a defendant in their own dis- 
 charge. The bail-bond, which was according to the form No. 5, 
 that is engaging for the performance of the judgment by the 
 deft., as well as for his appearance, was entered into the 3d 
 Feb. 1834 , judgment having been obtained against him, exe- 
 cution against his person issued on the 27 June, and was returned 
 non est inventus on 7 July , action was commenced against 
 the bail on 10 July, and judgment was obtained against them on 
 30 Sept. ; but on the 20 Sept. they produced the body of the 
 principal deft., in order to their own discharge. The D. C. 
 considered that the bail were liable, and gave judgment against 
 them, from which judgment they appealed. The case wa.s 
 heard before the C. J. on circuit at Galle in March 1835, and 
 he held that the surrender was too late to operate as a discharge 
 of the bail, not having been made till the case against them was 
 ripe for judgment. The English rule was that the principal
 
 Bail security in appeal. 53 
 
 must be surrendered within eight days after the return of the 
 process against the bail, or the latter would be fixed ; and even 
 that was a relaxation of the strict rule, according to which a 
 surrender would be no discharge of the bail, after the w rit of 
 execution against the person of the principal had been returned 
 non est inventus. It would be an injustice to allow the bail to 
 put the pit. to all the expense, inconvenience, and delay of an 
 action against them, and then to exonerate themselves by the 
 bare surrender of their principal at the eleventh hour. No. 1 154. 
 Galle, 6 March 1835. 
 
 Analogous to the subject of bail, is that of the security re- 
 quired by the 3d, 4lh, and 6th rules of the 8th Section to be 
 given for the due prosecution of appeal, performance of the 
 judgment, and payment of costs. On this subject, also, only 
 one case presents itself on the records of the S. CI, of sufficient 
 importance to deserve notice. The facts of that case, as far as 
 they bear on the present subject, were these : The plaintiff had 
 obtained judgment against one Mahamado Tamby. who appealed 
 to the S. C., and the present defendant, who had been bail for 
 him in the court below, in gelling a sequestration taken off, bo- 
 came his surety in appeal, entering into the usual bond accord- 
 ing to the form No. 2, attached to Sect. 8 of the Rules. The 
 S. C., after hearing the case on the merits, referred it back for 
 further evidence and decision-, and the 1). C., accordingly, af- 
 ter hearing fresh evidence, gave judgment against M. Tain by, 
 which was not appealed against. M. Tamby, however, not 
 being able to satisfy that judgment, the pit. sued the present 
 deft., as the surety in appeal, and obtained judgment against 
 him. The deft, appealed, contending that he had only bound 
 himself for the performance of the judgment of the Supreme 
 Court, and for the payment of such sums as the Supreme Court 
 Should decree: and therefore, that he was not liable for sums 
 decreed by the District Court. The S. C., however, affirmed 
 the decision, observing That the deft., in becoming surety in 
 appeal for M. Tamby, engaged that that person should "well 
 and truly perform and abide by the judgment which should ulti- 
 mately be pronounced by the S. C.; 1 ' that as the order of the 
 S. C., in referring the case back, directed that the D. C.,
 
 5V Bail in criminal cases. 
 
 ''should receive such further evidence as might be offered by 
 either party, and should thereupon give judgment as justice 
 might require," the decree ultimately pronounced by the D.C., 
 and not appealed against, became virtually, though not literally, 
 the judgment of the S. C.; that it was impossible that it ever 
 could have been the intention of the parties to draw the distinc- 
 tion attempted to be established by the deft., since the return 
 of the proceedings back to the D. C. for further evidence, 
 without any order to return them to the S. C., was a matter 
 arising out of peculiar circumstances, and could not have been 
 contemplated by the deft., when he entered into the engage- 
 ment. The S. C., however, might perhaps have felt some- 
 doubt whether, in the strict construction of the bond in ques- 
 tion, the deft, could have been held liable, if that liability had 
 not been supported by a decision of the Court of K. B. in a case 
 strongly analogous in principle to the present. Nares v. Howies, 
 14 East, 510. In that case, the deft., as surety for a collector 
 of duties under 43 Geo. III. ch. 122, entered into a bond, the 
 condition of which was that the collector should duly demand 
 and pay over "the duties in the said act mentioned.'' The act 
 authorized the collection of duties under any other act passed io 
 the same session ; and the duties actually collected and not ac- 
 counted for, and for which the action was brought, were col- 
 lected under some other act so passed. It was objected that the 
 bond did not extend to duties, collected under any act except 
 the 43 Geo. III. ch. 122. But the Court held that the duties, 
 being assessed under and by virtue of an act referred to in the 
 act in question, might be considered as assessed by that act. In 
 that case, then, as in the present one, the surety undertook 
 that his principal should perform whatever should be directed 
 by a certain designated authority : In each case, the power of 
 direction was legally transferred to another quarter : In the 
 present case, therefor e, as in that cited, the substituted autho- 
 rity became binding on the surety. No. 6220, Kandy, 20 May 1835. 
 With respect to bail in criminal cases: The 12lh rule of 
 the 2d section directs That every D. Judge shall, within three 
 days after a person is charged with any offence, commit him 
 for trial, or admit him to bail ; except in cases of murder or
 
 Bail for good behaviour. 55 
 
 other grievous offences, in which additional evidence is ex- 
 pected : In which cases the Court may commit for further exa- 
 mination. It was suggested by one of the D. Judges, on the 
 promulgation of the Charter, that though the rule might be 
 easily complied with in bailable offences, it might frequently 
 occur that, in cases not bailable, the evidence could not be so 
 far completed within the three days, as either to establish such 
 a suspicion of guilt against the accused, as would w arrant his 
 commitment, or to justify his discharge for want of evidence. 
 The S. C. returned or answer, That the inconvenience appre- 
 hended would be obviated, it was hoped, by the concluding 
 part of the rule ; for though the exception only expressed 
 "murder or any other very grievous offence," there could be 
 no objection to the D. Judge, in his discretion, applying the pro- 
 vision to any offence not bailable ; that generally speaking, 
 indeed, "grievous offences," and "offences not bailable" 
 might be said to be nearly convertible terms, but that it was 
 considered desirable, when the rules were framed, to limit the 
 exception as strictly as possible, in order to discourage the de- 
 layswhich used so frequently and so unnecessarily tooccur in the 
 preliminary proceedings ; and that the rule itself was not new, 
 for it formed the 7th instruction for magistrates, promulgated by 
 Reg. No. 8 of 1806. L. B. 2 and 5 Oct. 1833. 
 
 A question was put to the S. C. by another D. Judge, whe- 
 ther, after a person had been convicted and sentenced by the 
 D. C. to imprisonment, he had authority to discharge him on 
 bail-, and was informed that the D. C. had no power to bail a 
 party convicted, unless where the prisoner had appealed, and 
 the D. Judge, having considered a stay of execution desirable 
 pending appeal under the 29lh clause of the Charter, should see 
 fit to allow him to remain on bail till the decision of the S. C. 
 was known : Sentence once passed, and either acquiesced in, 
 or affirmed by the S. C. on appeal, could only be remitted or 
 mitigated by pardon from the Governor. L. B. 1 1, 17 Oct. 1834. 
 
 As to the mode in which security for good behaviour, re- 
 quired by a sentence to be entered into at the expiration of the 
 term of imprisonment, should be given, w here the defendant is 
 out of his own District at that period, seePetn. Book of 1834,95.
 
 56 Commission to merchants, 
 
 BOND. 
 
 See Obligation. 
 
 COMMISSION OR PERCENTAGE. 
 
 Merchants allowed 212 per cent, for debts sued Tor, though not reco- 
 vered, page 56 A shroff, keeping (he private accounts and money of his 
 superior, is not entitled to commission, no promise or demand having been 
 made for it 53 No analogy between shroffs and merchants, as to commis- 
 sion 57. 
 
 AN English merchant at Colombo, as attorney of the assignees 
 of Messrs. Palmer and Co. at Calcutta, sued another English 
 merchant for the balance of monies recovered b} the defendant 
 from the estate of Messrs. Beaufort and Iluxham, to the use of 
 Palmer and Co. The only, or principal, question in the case 
 was, as to the right of the defendant to charge a commission of 
 21/2 per cent, on certain debts due from Beaufort and Iluxham 
 to Palmer and Co., which the deft, had attempted, but without 
 success, to recover by actions at law. Judgment having been 
 given by the District Court for the deft, on this point, the pit. 
 appealed to the S. C. The chief arguments on the part of the 
 pit. and appellant went to show that the actions by the deft, 
 were unnecessary and unjustifiable, and therefore that the com- 
 mission ought not to be allowed. The deft., however, to show 
 that the actions had been brought bom\ fide, adduced letters 
 received from Palmer and Co. acknowledging his zeal , and he 
 relied further on the notice published by the merchants of Co- 
 lombo, and on the general usage which was established by evi- 
 dence, as to the commission usually charged by them. The 
 S. C., seeing no reason to doubt that these actions were brought 
 in good faith, and being satisfied that the claim was supported 
 by the general custom of merchants in Ceylon, admitted the 
 claim, and affirmed the decree of the D. C. Jeffery v. Read, 
 No. 214, Colombo, 25 Feb. 1834. 
 
 In an action against the Shroff of the Kandy Cutcherry, by
 
 Commission to shroffs. 57 
 
 the Government Agent of the Central Province, on a balance of 
 accounts, one of the questions was, whether the defendant, 
 who had kept the private cash and accounts of the plaintiff, was 
 entitled to one half per cent., which he claimed on the monies 
 so received by him, as the private cashier of the pit. The facts 
 of the case, as far as they bear on this question, appear in the 
 following judgment of the S. G., as it was delivered by the 
 Chief Justice, and concurred in by the Puisne Judges. The 
 frequent disputes, arising out of the confidence, often too im- 
 plicitly reposed in these subordinate officers by their supe- 
 riors, and by which the former are exposed to a degree of 
 temptation which can scarcely be justified, will perhaps be con- 
 sidered a sufficient reason for the length at which this judgment 
 is inserted : 
 
 This claim to a commission of 1 /2 per cent, on monies re- 
 ceived by the deft, on the plaintiff's private account, is staled 
 to be made by analogy to the commission charged by merchants 
 on the receipt of money 5 1/2 being charged by the deft., in- 
 stead of 1 per cent, as charged by Ihe merchants : And it is 
 contended that, by law, and without any express agreement, 
 the deft, is entitled to this percentage, as his quantum meruit(iy 
 for his services. It seems impossible to support the claim for 
 commission, in the mercantile sense of the word ; because the 
 chief consideration, on which the right of a merchant or 
 banker to commission is founded, is wanting in the present in- 
 stance ; the expense, namely, of providing a place of safe cus- 
 tody, and other incidental expenses, and the risk of loss. The 
 expense is borne in the present instance by the Government ; 
 and the risk, provided the deft, availed himself of the place of 
 security which his office leaves at his disposal, would have been 
 nothing. For it by no means follows, as has been contended 
 on the part of the defendant, that because the Government has 
 
 (i) To those unacquainted with English law terms, it may be useful to 
 explain that this expression signifies the remuneration which the law, in the 
 absence of any express agreement as to amount, implies that every one is 
 entitled to, for work or services performed for another; "as much as he has 
 deserved." So the term "quantum valcbaf'for goods, etc., furnished, with- 
 out express stipulation as to price; "as much as the thing was worth." See 
 further as to this implied contract of remuneration, under title Obligation.
 
 58 Commission to tkroffs. 
 
 declared that it would not be responsible for private deposits, 
 therefore the deft., a mere depositary, would have been liable 
 for any loss, not arising from gross negligence. But is the deft, 
 in a situation to demand, as a ir alter of right, any remunera- 
 tion from the pit., whether in the shape of commission, or of 
 monthly stipend, or of any other mode of payment ? The con- 
 tract, which the law implies in the absence of any express agree- 
 ment, that every one shall receive what he has juslly earned, 
 which is the contract on which the defendant relies, is certainly 
 one of the most equitable nature, and ought therefore to be most 
 liberally construed. But the law will not raise this implication, 
 unless it may be fairly inferred from the circumstances, that 
 remuneration was contemplated at the time the services were 
 performed. Then the question naturally suggests ilself, what 
 may be supposed to have been passing in the minds of these 
 parties, when the deft, first entered upon the duties of his office? 
 As far as custom has been proved, the custom not of mer- 
 chants, hut of shroffs, there appears nothing to justify the 
 supposition, that the deft, expected remuneration. Two gen- 
 tlemen, who have filled many situations connected w ilh the re- 
 venue, swear that they never heard of such a claim being made, 
 or of any payment for these private duties being even offered : 
 Nor has any such instance been adduced by the deft. It is 
 quite true that no custom of the service could make it incum- 
 bent on the deft, to perform these extra duties, if he had 
 thought proper to refuse them : And it is equally true that, if 
 he had stipulated for additional payment, and the pit. had 
 agreed to make it, the pit. would have been bound to fulfil his 
 engagement ; however objectionable it might be to allow a pub- 
 lic servant to act as a private banker, mixing up the money of 
 individuals \vilh that of the public, for hire. But if the deft, 
 had ever intended to claim such remuneration, he ought to have 
 so staled, and in all probability would have done so, to the pit., 
 if not \\hen he first found these private duties imposed upon 
 him, at least on some subsequent occasion. Instead of which, 
 it appears that he held the situation of Shroff for two years and 
 a half, during which period he kept the pit. 's accounts as his 
 predecessors had done, balancing them at the end of each month.
 
 Contempts how prosecuted. 5 ; 
 
 and yet never advanced this claim till after his dismissal from 
 office. If the claim had been made at first, or after a reason- 
 able period, the pit. would have had an opportunity of consider-, 
 ing whether he would accede to the terms proposed, or provide 
 himself with another clerk, who had no public duties to per- 
 form. As the case presents itself, Ihe court cannot believe 
 that the idea of claiming this percentage ever entered the deft/s 
 mind, till he found that he was no longer to be retained in his 
 office : Or, as one of the assessors in this court has expressed his 
 opinion, in language somewhat homely, but strongly marked 
 with probability, "The deft, hoped to gain the heart of his su- 
 " perior by compliance, and did not think of being paid till they 
 "had quarrelled." On this point, therefore, the S. C. is of 
 opinion that the decree of the B.C. should be affirmed. No. 7184, 
 Kandy, 2 Dec. 1835. For a further report of this case, as to 
 the validity of a note or check produced by the deft, against the 
 pit., vide infra, title Promissory Notes, etc. 
 
 As to commission to appraisers, vide supra, title Administra- 
 tion, p. 7. 
 
 CONDITIONS. 
 
 See title Renter. 
 
 -. 
 
 . 
 CONTEMPT OF COURT. 
 
 Rule that a day must elapse before convicting for contempt, strictly en- 
 forced, page 59 Assessors should give their opinion on the contempt, when 
 committed 60 Obstruction of any order of Court is a contempt 60 If com- 
 mitted out of C. it must be proved, and the accused may offer counterproof ; 
 interrogatories, however, always useful 61 Attachment for not appearing, 
 etc., a criminal, rather than a civil proceeding 61 Batta, etc. 62 Attach- 
 ment may be omitted, and order taken for general denial 62 Attacht. r. 
 flsral ; previous explanation should be demanded 62. 
 
 THE 19th rule of the 2d section, following a former and most 
 wholesome regulation, No. 15 of 1820, on that subject, directs 
 that in all cases of contempts of the D. C., their process, or offi- 
 cers, the party charged with the offence shall be committed to
 
 CO Contempts how prosecuted. 
 
 prison, or give security, till the next day, when he is lo be 
 called upon to answer touching the contempt ; and if he fail to 
 satisfy the court that no contempt was intended, judgment shall 
 be passed upon him, as therein directed. This rule, by which 
 one day must be allowed to elapse, before the court decides on 
 an offence, of which it is itself in truth the prosecutor, has been 
 strictly enforced by the S. C. ; and whenever it has appeared 
 that the conviction has taken place, without the requisite delay 
 having intervened, that court has never failed to set such con- 
 viction aside. Criminal Minutes, 10 May 1834, and several 
 other cases. 
 
 A case came before the S. C. in appeal, in which the conviction 
 had taken place regularly, on the day after the alleged contempt ; 
 but it did not appear from the proceedings, that any assessors 
 had been empannelled at the lime the contempt was actually 
 commitled. The proceedings were referred back to the D. C., 
 in order that it might be staled whether Ihis had really been the 
 case 5 or whether Ihe clerk had merely omitted to insert the 
 names of the as-essors. It was observed by the S. C., That if 
 no assessors had been empannelled, the court was not silling, 
 it was not legally in existence according to the 20lh clause of the 
 Charier ; and therefore the defendant could not with pro- 
 priety be said to be guilty of a " contempt of court:" That if 
 indeed a person, desirous of insulting a D. Judge, were to seize 
 the opportunity of his first taking his seat, before -the assessors 
 could be sworn, such an offence ought not to go unpunished ; 
 but Ihat in such case, it would be the duly of the D. Judge to 
 have the assessors sworn immediately, or, if the regular asses- 
 sors happened not lo be in court, any three persons who had 
 witnessed the insult, and then to take their opinion as to the 
 intention of the person offering it ; but that in the present in- 
 stance, as far as appeared from the proceedings, the assessors 
 who gave their opinion on this point on the day of decision, 
 were not present the day before when the offence wascommilled, 
 and if so, their opinion could be of little value. Criminal Mi- 
 nutes, 20 Aug. 1834. 
 
 Forcible obstruction having been offered lo a surveyor, while 
 endeavouring to execute an order of survey, issued from a D.C.,
 
 Contempts attachment. 61 
 
 the D. Judge applied to the S. C. for instructions on the two 
 following points : First, whether this was to be considered a 
 contempt of court, and so to be treated under the 19lh rule ; 
 secondly, if so, w helher the parly accused of the contempt had 
 a right to offer evidence in his own vindication. To these ques- 
 tions, the S. C. directed the follow ing answ er to be returned : 
 On the first point, That the forcible obstruction of the execu- 
 tion of any order of the D. C., whether it were "process" in 
 the more limited sense of the word, or an order of any other 
 description, provided it were legally issued, and legally at- 
 tempted to be carried into effect, \vas a contempt of the court 
 out of which it issued; that a surveyor, or any other person, 
 to whom such order w as directed, became, pro lanto, an officer 
 of the court, within the meaning of the rule : On the second 
 point, That a distinction w as to be made, and had indeed been 
 made by the rule, between contempts committed before the D. 
 Judge himself, in his own view, and those committed against 
 his process or officers ; the latter class requiring to be established 
 by "due proof," in the former class all proof being obviously 
 superfluous, beyond the ocular demonstration of the Judge him- 
 self and the assessors, unless he should wish, fur his own satis- 
 faction or that of the assessors, to take the opinion of any of the 
 bystanders; that in the present case, as the contempt was 
 alleged to have been committed out of court, and as proof 
 would therefore be necessary to substantiate the charge, the 
 defendants must decidedly be at liberty to meet that charge by 
 counter-evidence ; that the proceeding by interrogatory, how- 
 ever, might still be found convenient in either class of cases ; 
 for though in cases like the present, the answ ers would not be 
 conclusive, still they might often go some way to show whether 
 any real disrespect had been intended to the orders of the court. 
 L. B. 18 and 19 Aug. 1835. 
 
 As regards the proceedings against a defendant by attachment 
 for contempt in not appearing: A fiscal, shortly before the 
 promulgation of the new Charter, applied to the S. C. for in- 
 structions, whether he could carry the mandate of attachment 
 into execution, without provision being made for (he subsist- 
 ence of the defendant by the plaintiff in the action, according
 
 62 Contempts attachment against fiscal. 
 
 to Ihe 33d section of proclamation of 22 Jan. 1801 : To which 
 the S. C. directed an answer to be returned, That the w rit of 
 attachment was a proceeding, not at the suit of the plaintiff, but 
 in vindication of the authority of the court; that the defendant 
 in such case was not taken either in mcsne process or in execu- 
 tion, but as having been guilty of a contempt of court ; and 
 therefore, that the proclamation alluded to did not apply. L. B. 
 29 July, 5 Aug. 1833. And see further, as to the mode of con- 
 finement of, and the allowance of batta to, a defendant, under 
 such circumstances, L. B. 13, 19 Nov. and 3 Dec. 1833. Sec 
 also L. B. 1, 11 March 1834, and Nos. 7 and 11 of the Sup- 
 plementary Rules for the D. C., by which it is declared that 
 there is nothing in the Rules of Practice, as originally framed, to 
 prevent the court from omitting the proceeding by attachment, 
 and issuing instead thereof the order nisi for the general denial, 
 whether on default of appearance or of answer, unless the 
 plaintiff insist on the more rigorous course, or unless the court 
 consider the attachment necessary for the vindication of its own 
 authority. And this course was recommended, where a defend- 
 ant, against whom an attachment had issued, was reported by 
 the fiscal to be lame and unable to travel. L. B. 5 and 8 Aug. 
 1835. By the Mutiny Act, a soldier failing to appear to an 
 action for debt under 30J., cannot be proceeded against as in 
 contempt 5 infra, title Debtor and Creditor. 
 
 On the subject of motions for attachment against fiscals : It 
 was brought to the notice of the Chief Justice by the fiscal of 
 Colombo, that many hasty and unnecessary motions were made 
 against him and his officers to this effect, occasioning much 
 vexation and loss of time in his office, which would be obviated, 
 if parties, in all cases in which the returns to writs of execution 
 appeared unsatisfactory or not sufficiently explicit, or where 
 doubts arose as to the due performance of any other of the 
 fiscal's duties, would call on that officer or his deputy for ex- 
 planation , and if such explanation were refused or insufficient, 
 would then move the court against the officer, when such ex- 
 planation or the want of it would enable the court to decide 
 whether hd had been in contempt or not. The C. J. considered 
 that it would be better to bring this subject to the notice of the
 
 Copies civil, when granied. 3 
 
 bar, and to leave the matter to the good sense of the members 
 of it, than to propose any general rule or order on a subject, in 
 which much must necessarily be left to their discretion, accord- 
 ing to the circumstances of each case. He accordingly men- 
 tioned it in court on 8 April 1835, when the proctors of Colombo 
 at once signified their acquiescence in the suggestion , which 
 seems indeed so fair and reasonable in itself, that the adoption 
 of it throughout the island could scarcely prove otherwise than 
 beneflcial. L. B. 8 April 1835. 
 
 A witness, juror, or assessor, committed for non-payment of 
 a fine imposed for non-attendance, may be discharged by the 
 court which commitled him. L. B. 26 and 30 April 1834 5 supra, 
 Assessors, p. 42. A Buddhist priest fined for a contempt in re- 
 fusing to give evidence, see title Evidence, witnesses. 
 
 COPIES. 
 
 Of civil proceedings; who entitled to, page 63 Mode of applying for and 
 granting; stamps; no fees demandablc 64 If a proceeding be not forth- 
 coming, documents -which best supply its place should be furnished 64 In 
 criminal matters, greater caution used; but granted on good ground, as vin- 
 dication of character 65 Where the object was action or prosecution, S.C. di- 
 rected a written motion to be referred to K. A. ; if he assented, copies 
 granted; if he objected, parties to be heard 65 Reasons for that course 66 
 Copies of depositions, unnecessary on appeal 69 Of process, to be furnished 
 by D. C. to fiscal 69 Of lost document, how given in evidence 69. 
 
 THK S. C. has not unfrequenlly been applied to by D. Judges 
 for instructions, as to the propriety of granting or refusing copies 
 of their proceedings. With respect to those of a civil nature, 
 the S. C., in answer to an application of that description, ob- 
 served, That as a general rule, the best mode of deciding whether 
 a party was entitled to the copy applied for, was to consider the 
 relative situation in which he stood with respect to the proceed- 
 ings in question, and whether the alleged or probable use to be 
 made of the copy afforded a fair and reasonable ground for the 
 application ; that a mere stranger to a suit, for instance, having 
 no interest in the subject-matter of it, would have no right to 
 make any such application ; while on the other hand, a party
 
 64- Copies civil, how granted. 
 
 to the suit, wishing lo appeal (as was the case in the present 
 instance) would often be unable to frame his petition of appeal, 
 or to support it by argument, unless lie was in possession of the 
 .decree, and of the opinions of the assessors, if they were opposed 
 to the decree ; and that to deny him copies, therefore, might 
 be to deny him the means of obtaining justice. L. B. 7, 13 Oct. 
 1835. With respect to the mode in which such copies should 
 be applied for and granted, the S. C. on another occasion, ob- 
 served that they might be obtained, either by common motion 
 made orally in court, or by application in writing, if the object 
 proposed required, in the opinion of the D. Judge, the latter 
 more formal requisition; that the slamp necessary for each 
 ." office-copy" must be regulated by the table of stamps promul- 
 gated on 1 Oct. 1833, and not by any former order or practice ; 
 that as regarded the persons by whom such office-copies 
 should be furnished, this must depend on the number of clerks 
 in each court, with reference to the quantity of business , that 
 on one occasion, the S. C. had recommended that the party 
 "himself should be allowed to furnish a copyist and the necessary 
 stamps, but that this course should only be resorted to when 
 the lime of the secretary and clerks was really and fully occu- 
 pied, and even then, that the copy must be examined with the 
 original by the secretary, in order that he might certify it to be 
 a true copy. L. B. 25 June, 2 July 1834. But where a D. 
 Judge recommended that when the clerks of his establishment 
 were insufficient for this duty, a supernumerary should be em- 
 ployed, and should charge certain fees for his labour, the 
 Judges of the S. C. declared that they should not feel justified 
 in sanctioning this arrangement, by which parties would in 
 Efect be subjected to the payment of a fee not enumerated in 
 the table : That table was framed in the supposition that it was 
 to include all that a suitor ought to contribute, towards defraying 
 the expenses of the administration of justice ; whereas, by 
 adopting the course proposed, suitors would in truth be paying 
 for the establishment of another officer of the court. L. B. 18, 
 23 April 1834. 
 
 Application was made to a D. C. by a defendant in a suit in 
 the late Silling Magistrate's Court, for the copy of a decree of
 
 Copies criminal, when granted. 65 
 
 dismissal passed in that court, but which decree had never 
 been recorded by the S. M. It appeared that the case had been 
 carried up in appeal by the plaintiff, but the appeal had been 
 declared abandoned by the court above, in consequence of the 
 death of the plaintiff and appellant. The D. Judge, having 
 applied to the S. C. for instructions, received for answer, That 
 as the defendant's application could not be literally complied 
 with, the decree in question having never been recorded, the 
 best information which could be substituted would be the co- 
 pies of the plaintiff's petition of appeal, and of the order of the 
 appellate court thereupon , that from the first of those docu- 
 ments, it would appear, in the plaintiffs own words, that the 
 late court had " dismissed the appellant's case with full costs," 
 and from the second, that the appeal had been dismissed on the 
 ground of the plaintiff's death 5 and that, though these docu- 
 ments might not be as satisfactory as the original decree would 
 have been, still the production of them would probably be 
 equally efficacious in a court of justice, or on sale of the pro- 
 perty, since the decree of dismissal itself would scarcely appear 
 to amount to more than a nonsuit, by which the plaintiff's re- 
 presentatives would not be absolutely barred from bringing a 
 fresh action. L. B. 7, 12 Oct. 1835. 
 
 With respect to criminal proceedings, a greater degree of 
 caution is no doubt necessary in granting copies, than of civil 
 matters. But the S. C., as w r ell that now existing as its prede- 
 cessor, has inclined to grant such copies, whenever a good 
 ground has been shown. Thus, where the applicant had been 
 acquitted, his identity not being proved, and he was desirous 
 of obtaining a copy of the acquittal, preparatory to his applica- 
 tion for the office of Police Vidahn, the S. C. granted the appli- 
 cation. Petition Book of 1835, p. 6. Where this application 
 has been made for the purpose of action or prosecution, the 
 course adopted by the present S. C., as well as by the former 
 one, w r ill appear from the following judgment in a case of The 
 King v. Achland and another, which was delivered on 16 Dec. 
 1835 by the Chief Justice : 
 
 "The defendant in this case applies for copies of the proceed- 
 ings and depositions, had and taken before the D. C., in order 
 
 5
 
 66 G'pies criminal, how granted. 
 
 to enable him to consult counsel, as to proceedings for conspi- 
 racy and perjury against the witnesses, \vho have given evi- 
 dence on the part of the prosecu'ion. The question involved 
 in this application is one of no small importance, as regards the 
 practice which is to be observed in future, on similar occasions; 
 And we are therefore anxious that our opinions upon it should 
 be known and recorded. For myself, individually, I am not 
 presumptuous enough to suppose that any decision of mine 
 should be necessarily recorded as binding on future judges. 
 But there is this advantage attending the practice of recording 
 all judgments, with the reasons on which they are founded : 
 that future parties have a right to avail themselves of such 
 judgments, at least to the extent of urging that, if the reason- 
 ing on which they are founded be sound, they ought to be re- 
 ceived and acknowledged as law. If the reasoning can be 
 shown to be fallacious, that person must be a very weak man, 
 and not a very conscientious judge, who would feel sore at his 
 doctrines being combatted; who would not rather desire to see 
 them refuted, if capable of being so, and his decision overruled. 
 We do therefore think it highly desirable that the opinion of 
 the court, upon every question of general importance, should 
 be fully stated and recorded j the unanimous opinion, when the 
 courlis undivided, the individual opinions of the judges, when, 
 unfortunately, they disagree. 
 
 When this subject was first brought to my consideration, by 
 the application originally made by Mr. II. Staples to the Regis- 
 trar, it appeared to me that the proper course to be pursued 
 was as follows: First, thai the application should be made by 
 regular motion in writing, setting forth the grounds on which 
 it was made : Secondly, that the motion should be referred to 
 the Ring's Advocate, in order that that officer might state if he 
 had any objection to offer to it; this being the course which it 
 seems v. as pursued by the former S. C. : Thirdly, that if no ob- 
 jection were offered on the part of the K. A., the application 
 should be at once granted : Fourthly, if the K. A. did object 
 to it, then that the parties should be severally heard in support 
 of, and in opposition to, the motion. In this view of the sub- 
 ject, the learned Second Puisne Justice expressed his entire
 
 Copifs criminal, how granted. 61 
 
 concurrence; the learned Senior Puisne Justice expressed his 
 dissent, on the grounds which I shall presently notice. In con- 
 sonance, however, with the opinion of the majority of the 
 court, the course suggested has been pursued; the two first 
 steps have been duly taken ; and at the third stage, at which 
 we have now arrived, the K. A. states that he has no objection 
 to offer to the motion. According to the opinion of the court, 
 therefore, we should have nothing more to do than at once to 
 grant the application. But we could not feel salisQcd with that 
 naked acquiescence in the motion. We feel bound to notice 
 the objections which the learned Senior Puisne Justice has re- 
 corded, both from respect to himself, and also lest it should 
 hereafter be supposed that we had overlooked them, or had not 
 given them full consideration. 
 
 As a general principle, we have always felt most anxious that 
 every person, against whom a well founded case of perjury was 
 presented, should be prosecuted. In a country where this of- 
 fence is so fearfully common, Courts of Justice are bound to fa- 
 cilitate, rather than to offer any impediments to, such inquiries. 
 The Senior P. J., however, "not only thinks that the K. A. 
 should be consulted, but that the D. Judge, before whom the 
 proceedings in originali were had, should also be referred to , 
 that it would be to give up the natives to the utmost oppres- 
 sion, if, though believed by a D. Judge as a magistrate, they 
 should be liable to an after prosecution before the D. C.'' In 
 the present instance, the K. A. has been referred to, and he 
 makes no objection to copies being granted. With regard to 
 the D. Judge, with all our respect for the gentleman holding 
 that office, we cannot discover the necessity or propriety of con- 
 sulting him on the subject. Cases do sometimes occur of so 
 glaring a nature, that the D. C. feels bound, of its own motion,' 
 to commit parlies for perjury : But we are very far from saving- 
 thai prosecutions should not in many cases be instituted, with- 
 out any such expression of opinion on the part of the court. 
 How can the D. C., or the S. C., or the King's Advocate, know 
 what evidence may be adduced to contradict the witnesses, 
 Whose testimony is about to be impugned ? Then the proceed- 
 ings, in the course of which the perjury is alleged to ha\e been, 
 
 5,
 
 68 Copies criminal, how granted. 
 
 committed, become absolutely necessary to enable tbe prose- 
 cutor to frame bis accusation. In England, it seems, tbe cu- 
 tborilies are conflicting, on the subject of compelling tbe pro- 
 duction of records, in order to enable parties to initiate pro- 
 ceedings (1). Hut it must be remembered that in England, tbe 
 same necessity does not exist, at least as regards the depositions 
 of witnesses; because the employment of a short-hand writer 
 would obviate all difficulty. In this country, it would be dan- 
 gerous to trust to anything but the notes of the Court, and the 
 correctness of the interpreter. The proceedings, therefore, 
 form the necessary materials, out of which the complainant 
 must construct his accusation, as much as stolen properly, or 
 marks of violence on the person, furnish the groundwork of 
 prosecutions for theft or assault. And it cannot be said that a 
 person accused of perjury should be allowed any greater ad- 
 vantages, because he has given evidence on the part of the 
 crown; or that any obstruction should be thrown in the way of 
 his prosecution, more than in other cases. 
 
 But it is said that it would be oppressive upon the natives, if 
 they were to be liable to a prosecution, after having been be- 
 lieved by the D. Judge. We cannot understand how the belief 
 of the D. Judge can or ought to operate to screen a witness 
 
 (1) The practice is said to be in England, that the judges will refuse a 
 copy of an acquittal to a person intending to bring an action thereon, if 
 there \verc a probable cause for the prosecution. Carlhew's Rep. 421. And 
 see Leach's Hawkins, ch. 23, sect. 1*2, etc. But with all deference, this 
 rule seems to involve more than one fallacy. First, almost every case which 
 goes before a common jury in the ordinary course may be said to have had, 
 prima facie, a probable cause; inasmuch as, without a probable cause, the 
 grand jury would not have found the bill : Secondly, the judges, by ibis rule, 
 take upon themselves to decide in a great measure the very question between 
 the parties, and that, after hearing only one sidecf the question; for the party 
 acquitted complains, not that he has been put upon his trial without an ap- 
 parently probable cause, for that is scarcely possible, but that the cause or 
 foundation of the prosecution, however probable in appearance, has been 
 fabricated or perverted by the prosecutor: And the means of substantiating 
 this complaint, that is, that the evidence has been fabricated, etq., will of- 
 ten not present themselves, or be attainable, till after the conclusion of ther 
 trial, the very evidence in which the judges take as their test for deciding 
 on tbe propriety of granting or refusing the copies,
 
 Copies of depositions~process lost documents. 69 
 
 from trial, or at least from preliminary inquiry, whose testimony 
 is alleged to be false. If this proposition could be maintained, 
 prosecutions for perjury would be limited to those cases, in 
 which the attempt at deception had failed : The unpractised 
 and unsuccessful swearer would he brought to justice, while 
 the more consummate and accomplished villain would find im- 
 punity in the very excess of his guilt, which had enabled him to 
 deceive the court into a belief in his truth : According to this 
 doctrine, Titus Gates, and his confederates in his most detest- 
 able conspiracy, ought to have escaped prosecution, because 
 they succeeded so completely in working on the credulity of the 
 Judges and Juries, whom they made the instruments of their 
 wickedness. 1 ' 
 
 It was accordingly ordered that the copies be allowed. Cri- 
 minal Minutes of 1835, 16 Dec., p. 487. And on the next 
 court-day, the learned Senior Puisne Justice expressed his as- 
 sent to the decision of the majority of the Court, on the ground 
 that parties might be situated differently in Ceylon from what 
 they would be in England. The above judgment may therefore 
 be considered as unanimous. 
 
 We have seen, under title Appeal, supra p. 27, that copies of 
 depositions are no longer necessary for that proceeding, the ori- 
 ginals being now always transmitted to the S. C. 
 
 A doubt having been started, whether the copy of process, 
 required by the first rule of the first section to be served by 
 fiscals on defendants, ought to be furnished by the D. C. or by 
 the fiscal, the S. C. directed inquiry to be made, as to what had 
 been the practice at Colombo ; and finding that it had been 
 usual for the late Provincial Court, and was now the practice 
 for the B.C., to furnish the fiscal with the copy together with the 
 original, recommended the adoption of the same course in the 
 court where the difficulty had arisen ; observing that if this 
 should occupy too much of the time of the officers of the court, 
 application should be made to government for printed forms of 
 copies, as well as of the originals, of the summons. L. B. 11, 
 14 Nov. 1833. 
 
 Copy of a document which a witness has been subpoenaed to 
 produce, but which is stated at the trial to be lost, may be
 
 70 Costs distinctions of. 
 
 given in evidence, though such copy was not filed according to 
 the 20lh Rule of the 1st Section. L. B. 5th, 6lh Oct. 1835. Tide 
 infra, title Evidence, and the reasons there given. 
 
 COSTS. 
 
 Of what costs consist ; arc between parly and party, or proctor and client ; 
 and interlocutory, or Dual; page 70 In general, costs follow decision 71 
 Pit. getting judgment against one deft, only, liable for costs of the others 71 
 Costs should fall on the party occasioning the action 72 So, unnecessary 
 costs, whatever be the decision 72 On each party 73 Interlocutory, cannot 
 be claimed, unless expressly awarded 73 Only paupers exempt; course 
 where pauper successful 74 In Ceylon, crown receives and pays costs, 74 
 Costs classed according to the judgment, 75 Double costs, imposed as a con- 
 dition of rehearing, or as a fine for deceiving D. C., but not for groundless 
 action, 76 Security for costs, if pit. reside out of, or be a foreigner to Cey- 
 lon, but not for poverty, 77 Taxation ; duplicate bills to S. C. 78 Deci- 
 sions on taxation; 10 p. cent, in 1st and 2nd classes; retaining foe; fee on 
 trial ; copy of decree ; list of property ; draw ing bill of costs ; party conducting 
 bis own case 79 Appeal from taxation; order to refund 80. 
 
 THE expenses to which parlies are put in the prosecution 
 and defence of actions, and which are commonly called "costs,' 1 
 consist in Ceylon of the sums paid for stamps, and of Proctor's 
 fees j both of which heads are regulated by the respective tables 
 of 1st Oct. 1833, and the supplementary rule of the OlhOct. 
 1834. ISo fees are demandable from the officers of the Courts. 
 It is sometimes necessary to distinguish costs, as between party 
 and party, which signify, generally speaking, those which are 
 allowed to the successful party against his adversary, from costs 
 as between proctor and client, which are those which the client 
 must pay to his proctor at all events, whether he succeed or 
 not. See Supp. Rule, 9th Oct. 1834, art. 5. It may not be ir- 
 relevant to the present subject, though falling more properly 
 under the head of "Proctor," to observe that any agreement, 
 by which the payment of the proctor's fees is made to depend 
 on the success of the suit, is highly reprehensible, and has never 
 failed to be strongly animadverted upon by the S. C., whenever 
 such an arrangement has been brought to its notice. Costs also 
 are either interlocutory, that is given by special order on some
 
 Costs who liable for. 71 
 
 particular proceeding in the progress of the suit ; or /Sna7, being 
 the general costs, awarded at the termination of it. 
 
 Costs being, in England, the creatures of Acts of Parliament, 
 for they were not recoverable by either party at Common 
 Law, the decisions of English courts on this subject have re- 
 ference chiefly to those acts, and do not furnish much guidance, 
 except by analogy, to courts out of that country. The general 
 rule, though not an absolutely universal one, is that the suc- 
 cessful party is entitled, on obtaining judgment, tr> receive his 
 taxed costs from the losing one, the legal merits of the case thus 
 being the text. See Rule 40 of Sect. 1, by which it is left to 
 the discretion of the court to modify this rule, by making each 
 party pay his own costs, or in such other way as the justice of 
 the case shall seem to require. But this discretion, as in every 
 other instance, must be exercised on good and solid grounds, 
 and not on a merely fanciful view of the case by the D. C. 
 Thus, where in an action for the breach of a promise of mar- 
 riage, the D. C. gave damages, and not merely nominal ones ; 
 but being unfavourably impressed with respect to the action, 
 decreed the parties to pay their own costs : The S. C., on ap- 
 peal, directed the costs to be paid by the defendant, observing 
 that there appeared no reason ^hy the plaintiff should not be 
 allowed her costs, as in any other case in which a party is ulti- 
 mately successful ; that the defendant had it in his power to 
 prevent any costs being incurred, beyond those of the libel and 
 summons, by admitting his having been under an engagement 
 to marry the plaintiff, of which the evidence left no doubt, 
 and by offering to pay such moderate damages as the court 
 should award. No. 1134, Caltura, 26 Aug. 1835. And see 
 No. 1514, Matiira, 18 Sept. 1835. 
 
 NN here a prosecutor sued for penalties on the civil, instead of 
 the criminal, side of the D. C., and obtained a judgment, which 
 the S. C. reversed , it is scarcely necessary to say that the plaintiff 
 or prosecutor was ordered to pay all the costs, No. 2578, Ruan- 
 wello, lf> July 1835. 
 
 In an action against two defendants, for damage done to the 
 plaintiffs dhooney, it appeared on the trial that the second de- 
 fendant alone was liable, and that the first was wholly blameless.
 
 72 Costs icho liable for. 
 
 The D. C. gave judgment against the second defendant, with 
 costs, generally. On appeal against Ibis decree, the S. C. 
 directed that the costs incurred by the first defendant should be 
 borne by the plaintiff, since it was his fault, and not that of the 
 second defendant, that the first defendant had been needlessly 
 joined in the action. No. 033, Negombo, 20 May 1835. 
 
 Of several losing parties, be \\ho has made the action neces- 
 sary, should bear the costs : As, where two persons brought an 
 action for land, which the defendants claimed as their own pro- 
 perly; a third person, who had sohl it to the plaintiffs, inter- 
 vened as third plaintiff, and avowed the sale, and on the trial it 
 appeared that the defendants were the legal owners, on which 
 the court gave judgment against all three plaintiffs, with costs, 
 generally : The S. C., on affirming (he decree as regarded the 
 merits, directed that, as the first and second plaintiffs appeared 
 to have acted without fraud, and to have purchased the land 
 from I be third }Ja.inliff ; in I he supposition that that person was 
 legally cnlilled to dispose of llie property, the costs should be 
 paid by the third plaintiff alone, unless she could show cause to 
 the D. C., why the other plaintiffs should be obliged to pay any 
 part thereof. No. 3200, Malura, 11 Nov. 1835. See also No. 
 147-2, Callura, 28 Oct. 1835, where, a breach of contract having 
 been clearly proved, though no actual damage, the D. C., and 
 in appeal the S. C., directed the costs to be borne by the second 
 defendant, at whose instigation her daughter, the first de- 
 fendant, had been induced to break her promise of marriage. 
 The S. C., however, awarded nominal damages, in order to 
 avoid the inconsistency of giving costs without damages. 
 
 Each part}', whatever may he the ultimate decision, ought to 
 pay the costs which he has unnecessarily occasioned. Supp. 
 Hule, 9 Oct. 1834, Art. 5. And this rule, which is founded on 
 obvious justice, makes it sometimes necessary to give special 
 directions in final judgments as to costs. In an action on bond 
 for 100 II D., by which b.jnd the defendant mortgaged his field, 
 covenanting to cultivate it and to pay half the produce to the 
 plaintiff in lieu of interest, till he should repay the principal ; 
 the defendant admitted the debt, but averred payment cf the 
 produce for certain years, and failure of the crops for others.
 
 Costs on interlocutory orders. 73 
 
 The defendant having proved his averments, the D. C. gave 
 judgment for the plaintiff for the principal, but decreed him to 
 pay the costs up to judgment. The S. C., on appeal, modified 
 this decree as to costs, as follows: The plaintiff is clearly en- 
 titled to costs up to the time of filing answer, because till then, 
 he could not know whether his claim would be admitted, or re 1 - 
 sisted. But he is also entitled to subsequent costs, except suck 
 as were unnecessarily incurred, in consequence of his own act . 
 He is entitled to those of the judgment and of any ulterior pro-- 
 ceedings, because, though the answer admits the debt, that 
 admission was not accompanied by paymentof money into court, 
 or even by a lender of the amount. On the other band, the 
 expense incurred by the defendant's witnesses should be borne 
 by the plaintiff, because it was by his refusing or neglecting to 
 admit the facts staled by the defendant's answer, and which 
 appear lo have been truly staled, that any such evidence became 
 necessary for the purpose of establisbing these facts. No. 918, 
 Negombo, 1 April, 1835. We have seen that parties are often 
 decreed to pay the costs of vexatious or unnecessary appeals 
 from interlocutory orders, without reference to the ultimata 
 decision. Supra, litle Appeal, page 14 et seqti. 
 
 It will, however, sometimes happen that the justice of the 
 case requires each party to pay his own costs, though the deci- 
 sion is against one of them: As where the plaintiff had caused 
 property to be sequestered, as belonging to the defendant, but 
 on a third party intervening and claiming it, the plaintiff failed 
 to prove it to be the defendant's property, on which the D. G. 
 gave judgment for the inlervenient with costs, but recorded its 
 opinion that there were circumstances of suspicion sufficient to 
 justify the sequestration : The S. C. considered that it would 
 not be just, in a case where collusion was suspected, to let all 
 the costs fall on the plaintiff, and accordingly directed that 
 each party should pay his own. No. 6555, Kmdy, 20 May 
 1835. 
 
 With respect to costs on interlocutory orders, these are some- 
 times given at the lime when the orders are issued, as already 
 mentioned. But it must be observed that, if they be not ex- 
 pressly so given, the parly, in whose favour the interlocutory
 
 74 Costs who exempt from. 
 
 order is made, cannot claim them as a matter of course, but 
 they must be left to abide the result of the action, or such order 
 respecting costs as may ultimately be made. No. 955, Caltura, 
 28 Sept. 1835. A late Sitting Magistrate dismissed a suit, 
 without saying anything as to costs : The defendant applied to 
 the D. C. to amend the judgment, by awarding casts : On refer- 
 ence to the S. C., it was considered that the amendment sought 
 could not now be allow ed. No. 9585, Galle, L. B. 2 and 9 Oct. 
 1835. Vide infra, title Judgment, and the reasons there given 
 for i his opinion. 
 
 As regards the parties liable to costs, it would seem that no 
 persons can claim exemption from Ibis liability, except paupers. 
 The mode in which persons shall be allowed to sue or defend in 
 forma paupcris, is prescribed by the 42d, and four follow ing 
 rules of the first section. On this subject, one of the D. Judges 
 applied to the S. C., to know whether costs were to be recovered 
 against a party, who lost a suit with a pauper : To which the 
 S. C. returned for answer, That the indulgence was granted to 
 the pauper alone, and was not to be extended to the adverse 
 party, unless he also had proved himself a pauper, and had ob- 
 tained permission to appear as such; and therefore, that when a 
 pauper party succeeded, the failing parly, if costs were awarded 
 against him, was liable for those vhii-h the pauper must 'have 
 incurred, had he sued or defended in the usual form. L. B. 28 
 Peb., 7 March 1834. Other doubts, however, having arisen, 
 and a diversity of practice existing as to the mode, in which a 
 successful pauper parly should proceed, to obtain the benefit of 
 bis judgment, a supplementary rule of practice was passed, 4 
 Aug. 1834, by which the pauper is allowed to 'sue out execution 
 without stamp ; but precautions-are added, as will be seen by 
 reference to the rule, by which both the costs of Hie proctor, 
 if one has been employed, and the court fees, are directed to 
 be first satisfied out of the amount levied. L. B. 30 July and 
 6 Aug. 1834. 
 
 An application for a similar privilege was made on behalf of 
 another (lass of persons, those namely engaged in litigation 
 with go\ eminent, one of whom claimed lo be allowed to defend 
 without stamps, on the principle of the English maxim, That
 
 Costs how classed. 15 
 
 the King neither pays nor receives costs. The S. C., on the 
 question being submitted, directed an answer to be returned, 
 That the principle of the King neither paying nor receiving 
 costs, even supposing that principle to have been acted upon in 
 Ceylon, would scarcely bear upon the question of the necessity 
 of defendants at the suit of the Crown proceeding on stamps ; 
 that the system of stamps was in truth a tax imposed upon all 
 litigants, for the purpose of defraying, in some measure, the 
 expense of the judicial establishments, and as no exception was 
 made in favour of any class of suitors, except paupers, there 
 seemed no reason why parties litigating with govt. should be 
 exempted more than any others; that the rule, however, that 
 the King neither pays nor receives costs, had not been acted 
 upon in Ceylon, at least that costs had always been paid when 
 the Crown was successful; that it was but reasonable that 
 this practice should be mutual; and that, though there would 
 be an impropriety, and indeed a difficulty, in decreeing costs 
 against the King in the usual manner, as between party and 
 party, since execution could not go against the King, still the 
 S. C. could entertain no doubt that whenever a party was suc- 
 cessful in a suit by or against the Crown, and the D. Judge 
 granted a certificate to that effect, and also to the effect that the 
 successful party would have been entitled to costs, if the suit 
 had been with a private person, such costs would be paid by 
 government, without the least hesitation. L. B. 16 March and 
 28 April 1835. And on a subsequent court-day, the Chief Jus- 
 tice acquainted the bar, that on the first occasion, in which a 
 defendant at the suit of the Crown should be successful in ap- 
 peal, the S. C. would recommend to govt. the payment of his 
 costs. 
 
 The class, in which costs ought to be charged, somclimes 
 becomes a matter of doubt : A plaintiff having obtained judg- 
 ment in the 5th class, the defendant made a payment in part, 
 thereby reducing the balance to the amount of the 4lh class; 
 execution afterwards issued for that balance, and when the 
 question of costs arose, the D. Judge was at a loss to know 
 whether the proctor ought to charge his costs in the 5th class, 
 in which judgment was originally obtained, or in the 4th, (o
 
 76 Costs double. 
 
 which the case had been reduced by the payment. On applica- 
 tion to the S. C. for instructions, he received for answer, That 
 the proctor was entitled to costs in the class in which judgment 
 was recovered 5 that the lest, by which this question, as a 
 general principle, should be tried, was, whether the plaintiff 
 was justified, by the result of the suit, in bringing his action in 
 the higher class ; that of this there could be no doubt in the 
 present case, since judgment had been recovered in the 5th 
 class, and the present proceeding seemed to be only a continua- 
 tion of the original action ; that if indeed a fresh suit had been 
 commenced upon the judgment, a proceeding which would have 
 been unnecessary and vexatious, the costs incurred in that ac- 
 tion could only have been taxed according to the amount 
 sought to be recovered by a fresh judgment. L. B. 6, 7 March 
 1834. If a plaintiff obtain judgment in a class below that in 
 which he has brought his action, the defendant is only lia- 
 ble for costs in the lower class; and the difference must be 
 taxed as between proctor and client. L. B. 28 May, 13 June 
 1835. 
 
 On one or two occasions, where a party appellant has applied 
 for the rehearing of a case, the S. C., entertaining doubts of the 
 existence of any real grounds for the application, and desirous 
 of repressing useless and vexatious litigation, has granted the 
 rehearing, but on the condition, fully explained and assented to 
 by the appellant, that in case of his being again defeated in the 
 D. C., he should pay double costs to the adverse party ; which 
 condition, in case of failure, has been enforced. But where a 
 D. C., on dismissing a suit, awarded double costs against the 
 plaintiff, the S. C. would only affirm the latter part of the decree, 
 on the ground that the D. Judge hod recorded that the plaintiff 
 had endeavoured to impose upon the court, by the answers 
 which he gave to the questions proposed to him, and therefore 
 that the award of double costs might properly be considered in 
 the nature of a punishment, for endeavouring to mislead the 
 court by his answers, as directed to be imposed by the 29th 
 rule of the 1st section. The S. C. expressed strong doubts, 
 whether a D. C. would be justified in imposing double costs, 
 merely because an action was brought on insufficient grounds,
 
 Costs security for. 77 
 
 or even on no real grounds at all, unless such action were at- 
 tempted to be supported, as in the present instance, by false 
 statements, made personally by the plaintiff in court : For a 
 parly might often deceive himself, or be misled by others, as to 
 his right of action, and it would often be unjust to make him 
 answerable for the statements set forth by another hand in his 
 libel; but when he gave false answers on his examination in 
 court, his offence could scarcely be attributable to others, and 
 was therefore safely and properly visited on himself, as that of 
 swearing falsely was visited, when duly proved, on a wilness. 
 No. 823, Walligammo, 1 July 1835. See also title False 
 Claim. 
 
 In some few instances, defendants arc entitled to call on the 
 plaintiffs to give security for costs. In England, the only three 
 cases, in which such security is required, are 1st, where the 
 plaintiff is an infant; 2dly, where he resides abroad ; and 3dly, 
 in an action of ejectment, where there has been a former action 
 of the same description. As to the first case, however, the 
 authorities are conflicting; nor does there seem to be any good 
 ground for an infant, or those who represent him, being called 
 on to give security. A case indeed was decided in the Common 
 Pleas about 1813, to be found in Mr. Taunton's Reports, and in 
 1st Marshall, anonymously, in which the court took this view 
 of the subject. The reason for the third class of cases is the 
 fictitious nature of the action, which prevents any one decision 
 from being considered as final. This, therefore, is also inap- 
 plicable to Ceylon. The remaining cause, that of the plaintiff 
 residing out of Ceylon, seems to furnish a just ground for this 
 precaution. By the civil law, also, a foreigner, having no pro- 
 perty within the jurisdiction of the court, may be called on to 
 give security for costs : But if he be unable to find such security, 
 he may be admitted to swear that he will satisfy the costs. In a 
 case in which a foreigner in Ceylon was thus called on to give 
 security, which he was unable to do, the S. C. directed him to 
 enter into a bond, by himself alone, in the penalty of 30/., to be 
 forfeited if he should not pay such costs as might be awarded 
 against him, or if he should leave the island, or attempt to do 
 .so, without making such payment. For under the present
 
 7tf Costs taxation of. 
 
 system of judicature in Ceylon, parlies are not allowed to be 
 s\u)rn in their own behalf (rule 30 of sect. 1), and besides, a 
 bond scorned much more likely to prove effective in answering 
 the end proposed, than any oath would bave been. IVo. 7086, 
 Colombo Xorlh, 19 June 1835. Wbere security for costs has 
 been demanded in Ceylon, on the mere ground of the poverty of 
 the plaintiff, the S. C. has given its opinion that this furnished 
 no reason for the application. L. B. 27, 30 Oct. 1834 : And 
 \\heie security had been ordered on this ground by the court 
 below, the S. C., on appeal, referred the case back to be pro- 
 ceeded with in the ordinary course. No. 2523, 5097, Ma- 
 tura, 20 March 1835. Cases may, however, present themselves 
 in \\hich other grounds, as suspected fraud or the like, might 
 justify this precaution ; as, to give an extreme case, where a 
 plaintiff in England, after the case was ready for hearing, was 
 convicted of felony, and sentenced to transportation, the court 
 required security for costs, both retrospective and prospective. 
 Harvey v. Jacob, 1 B. and A. 159. 
 
 The taxation of costs, a most important branch of the duty 
 of every court and its officers, is provided for by the 4lst rule 
 of sect. 1, which directs that all bills of costs, whether between 
 party and party, or protor and client, shall be taxed by the 
 secretary of the court, with appeal to the D. Judge, and after- 
 wards to the S. C., if either party be dissatisfied. By a sup- 
 plementary rule of 4 June 1834, it was ordered for the rea- 
 s /us there assigned, and in order that the S. C. might exercise 
 an immediate and constant control over all bills of costs, that 
 every proctor in each D. C. shall furnish a duplicate copy of 
 every bill of costs lo the secretary, who must transmit all such 
 duplicates on the first of every month to the S.C., where they are 
 carefully examined and criticized. And by a circular letter to 
 the, D. Judges of 1 May 1835, the S. C. directed that the above 
 rule should apply to all descriptions of bills of costs; whether 
 presented by proctors or by the parties. The attention of 
 those interested is also directed to another supplementary rule, 
 No. 9, of 9 Oct. 1834, by which several directions and explana- 
 tions are given to the officers of the courts, and several charges 
 are declared to be inadmissible : But this order was held not to
 
 Costs taxation of. 79 
 
 be applicable to bills of costs for business transacted previously 
 tol Oct. 1833. 
 
 Tbe following points bave been brought to the notice of Ihe 
 S. C. on different occasions, and maybe considered as decided, 
 unless on further consideration, the decisions upon them should 
 be held not to rest on sound foundations. 
 
 In the first and second classes, proctors are allowed by the 
 table of fees 10 per cent, on the amount in dispute, in lieu of 
 all charges : On this branch of the table, it has been decided 
 that 
 
 The proctor shall be allowed his 10 per cent., whether he be 
 engaged at the commencement, or in the progress, of a suit ; 
 but no retaining fee : 
 
 No charge for drawing pleadings can be taxed against the 
 losing party, if a proctor be once engaged at any s!age of the 
 case; for the proctor has become entitled to his lOper cent., and 
 the successful party might have avoided the charge for draw- 
 ing the pleadings, by employing a proctor from the beginning: 
 Such charge must therefore be borne by the party himself. 
 
 If no proctor be engaged at all, the charge for drawing 
 pleadings, by persons not proctors, may be taxed against the 
 losing party, at the rate of 9d. for every 120 words ; but no 
 percentage is allowed. L. B. 25 Nov. 10 Dec. 1834 5 id. 22 
 April, 2 May 1835 -, and 28 May, 13 June 1835. 
 
 In cases above the first and second classes, the proctor is en- 
 titled to his retaining fee, at whatever stage of the case he may 
 be retained. Ibid. 
 
 Proctors are entitled to the same fee for "attending the 
 court on the trial of a cause," when it is decidedhe summarily, 
 as when it is decided after hearing evidence. L. 13. 11, 13 
 June 1835. 
 
 If a party choose to take a copy of the decree, it must be on 
 stamp , but as the successful party may always take out execu- 
 tion, immediately after judgment, on common motion, without 
 Ihe aid of any such copy, this charge cannot be taxed against the 
 losing party, but must be borne by the party applying for it. 
 L. B. 10 Dec. 1834, 2 May 1835. 
 
 Nor can any charges be allowed for making out a list of pro-
 
 80 Costs appeal from taxation. 
 
 perty taken in execution ; for this is a duty thrown on the fiscal 
 or his officer, and the plaintiff has only to point out the pro- 
 perty. If therefore a party chooses to have such a list made 
 out, it must be at his own expense. L. B. 2, 8 July 1834. 
 
 Nor can any charge be now taxed for drawing or copying bills 
 of costs, whether by proctor or party ; this charge having 
 been voluntarily relinquished by the proctors of Colombo, and 
 disallowed, as a general rule, by the S. C. L. B. 10 and 19 
 Sept., and 4 and 8 Nov. 1834. 
 
 AVhere a party employs no proctor, he is entitled to make no 
 charges in the shape of costs, except for sums actually expended 
 by him in the progress of the suit-, for stamps for instance, 
 and drawing pleadings ; provided, with respect to this latter 
 item, he produces vouchers to show that he has actually dis- 
 bursed money for that object : If a party draw his pleadings 
 himself, he ought not to be allowed to charge for his ow n labour 
 in his own cause. L. B. 18 May, 2 June 1835. 
 
 With respect to appeal from taxation, the S. C. had occasion 
 to observe, That there would seem to be scarcely any necessity 
 for such appeal, unless indeed to prevent execution, or to avoid 
 immediate payment, since the contested items would be brought 
 to the notice of the S. C., on the duplicate bill being transmitted 
 to the Registry, in pursuance of the supplementary order of 
 4 June 1834; but that, if made, such appeal must be on 
 stamp, no exception being made in favour of appeals for costs ; 
 and that the criterion of the class, in which such appeal 
 should be brought, would properly be the amount of costs taxed, 
 as that would indeed be the only subject then in litigation be- 
 tween the parties. L. B. 9, 14 May 1835.' 
 
 When a bill of costs has been taxed by one of the Registrars 
 of the S. C., an order issues as a matter of course for the proctor 
 to refund such of the charges as, upon that taxation, have ap- 
 peared not to be warranted by the table of fees, or the general 
 practice of the D. Courts. 
 
 As to getting a revision of a case on the merits, on an appeal 
 ostensibly for the costs only, vide supra, p. 22. 
 
 See also titles Pauper, Proctor, Stamp.
 
 81 
 CUSTOMS' DUTIES. 
 
 See title Prosecution. 
 DEBTOR AM) CREDITOR. 
 
 Creditors entitled before heirs, page 81 Third parties 82 Balance, as- 
 signed to 3rd person, cannot be opened 82 A. having entrusted B.'s money 
 to C., may sue C. in his o\vn name, 84 A. undertaking to pay B.'s debt, 
 rannot sue B. till paid 85 Difficulty of seizing the point of a case 86 Buyer 
 of goods answerable for price, though acting for another 8G Agreement to 
 pay it to a creditor of seller, not within Reg. of Frauds 87 Payment to 
 creditor's agent (accountant) good 83 So, to a Culchcrry Modlear 89 A. 
 obtaining B.'s goods from C. is liable to B., (hough C. had no authority to 
 issue them, 89 Debt, recovered by a deft., sequestered by his creditor 90 
 Goods sold and delivered liable for purchaser's debts, though not paid for 91 
 Insolvents; suit by, how conducted, 91 Transactions relating to, vigi- 
 lantly watched ; assignees required to produce former deed of composition 92 
 Can D. C. remand insolvent for above 12 months? 92 Term must be 
 specified, or till compliance with order 93 Dowry 'Malabar) not liable for 
 husband's debts 94 Contracts void by fraud 9i But not always by infrac- 
 tion of a positive law 9i Soldier cannot be arrested for debt under 30/. (Mu- 
 tiny Act), and if attachment for non-appearance issue into another district, 
 I). C. is justified in not executing it, and discharging deft. 95. 
 
 THAT creditors of an estate have a right to be paid, before 
 the heirs can claim their respective shares, seems a position too 
 clear and too well-founded in justice, to require any authority 
 to support it. And yet instances have occurred, in which par- 
 ties have stoutly resisted this legal and equitable preference. 
 Thus: A person having obtained judgment and execution on a 
 bond, entered into by Perera as principal, and Fernando as 
 surety, which judgment bad never been appealed from, sought 
 to put the execution in force against the estate of the surety, for 
 the amount vhich had not been recovered from the principal. 
 The daughter of the surety opposed this proceeding, on the 
 ground that the one-fourth share of the estate, which she 
 claimed as one of the heirs of her father, ought first to be set 
 aside for her. The D. C., however, considered that as the pro- 
 perty of the surely was, by the terms of the bond, rendere4 
 liable for the debt of the principal, the daughter's claim must 
 
 6
 
 82 Debtor and Creditor third parlies. 
 
 be set aside till that debt was satisfied : And the S. C. confirmed 
 this decision, observing that, as a general rule, creditors are 
 entitled to priority over heirs ; and that as the original decree 
 against the defendant's father had never been appealed from, it 
 must be presumed to have been well-founded, as against that 
 person. No. 14, 136, Caltura, 11 June 1834. 
 
 Questions frequently arise between the debtor, the creditor, 
 and a third party, in which it is not easy, at first sight, to say on 
 which side the justice of the case lies. The chief points to be 
 considered in such cases are, what was the original intention 
 of the contracting parties, what the real justice and equity of 
 the case require, and if, as is generally the case, one of the 
 contracting parties must be the loser, to take care that the loss 
 falls, if possible, rather on him who trusted to the parly occa- 
 sioning the loss, than on him who is brought into the Iransac- 
 tion, w ithout having so placed his confidence : And above all, 
 where there is the slightest suspicion of fraud, a court must na- 
 turally lean against that side, on which such suspicion arises. 
 An action was brought in 1835, to recover the sum of 
 RD. 3888. 7. 2, which the defendant, in 1830, had acknow- 
 ledged in writing to be due from him to Mootoo Samy, the bill- 
 broker, on a settlement of accounts, and which debt 31. Samy 
 had assigned for a good consideration to the plaintiff. The de- 
 fence to this action on its merits (1), was that though the de- 
 fendant did not deny that a balance for the above sum had been 
 struck, yet several transactions had taken place between him 
 and 31. Samy in 1828, which ought to be taken into the account ; 
 and which, if so taken, w ould have reduced Jhe balance to less 
 than one-fourth. One of those transactions was the employ- 
 ment of a vessel, belonging to the defendant, by 31. Samy ; by 
 which the latter, it was alleged, had received certain sums in 
 the shape of freight. An objection of a more technical nature 
 
 (i) It may be useful to those who are not conversant with legal language 
 to observe that the merits of a case mean the real substantial justice, which 
 the law would award, considered apart from technical objections, such as 
 the want of stamps or the like; on which latter points, however, courts are 
 sometimes obliged to decide, though contrary perhaps to what moral honesty 
 and the conscience of the parties would dictate.
 
 Debtor and Creditor third parties. 83 
 
 was also made ; that the paper-writing, by which the defendant 
 acknowledged the balance to be due, was inadmissable in evi- 
 dence for want of a stamp : And a similar objection was taken 
 on the part of the plaintiff to a letter from M. Samy to the de- 
 fendant, which was offered in evidence by the latter, to show 
 that 31. Samy had actually received freight. On these points, 
 the S. C., on appeal from the decision of the D. C. in favour of the 
 plaintiff, delivered the following judgment, affirming the original 
 decree: ** The court is of opinion that the paper, by which the 
 defendant solemnly acknowledges, on 18 Feb. 1830, that the 
 balance due by him to M.Samy. on llie settlement of the accounts 
 on that day, amounted to RD. 3888. 7. 2, must be conclusive 
 against him. The want of a stamp would have been fatal to 
 this instrument, if it had been at templed to enforce it as a 
 promissory note; but the document is perfectly admissible, for 
 the collateral purpose of showing what the balance was declared 
 and admitted to be, at the time it was written, on the authority 
 of Gregory v. Fraser, 3 Campbell, 454. See further, title 
 Stamp, as to the admissibility of unstamped instruments for 
 collateral purposes.) And on the same principle, the court is 
 very much inclined to think that the letter from 31. Samy to 
 the defendant would be admissible on behalf of the defendant, 
 if it could avail him : For the objecC of producing it is. not to 
 enforce it as an agreement, but to increase, by its collateral 
 evidence, the probability of the defendant's vessel having 
 earned freight for 31. Samy. But it is admitted, that this charge 
 for freight never found its way into the book of accounts of 
 these parties at all : The defendant's remedy, therefore, if that 
 claim has not been satisfied, must be sought against M. Samy. 
 and not against the plaintiff, to whom the integral debt, acknow- 
 ledged by the defendant to be due to M. Samy, has been assigned 
 on a good consideration. So, as to the other deductions, 
 sought to be made on the part of the defendant: The transac- 
 tions to which they refer, as well as that relating to the freight, 
 took place in the year 1828 ; whatever claim, therefore, the 
 defendant might be able to make against M. Samy, if the action 
 were between those two persons (as to which it is unnecessary 
 to say more than that the strongest evidence would be required 
 
 6.
 
 8V Debtor and Creditor third parlies. 
 
 to rebut the solemn acknowledgment of the defendant), it is 
 impossible that such claim can be substantiated against the pre- 
 sent plaintiff. This court does not hint in the remotest degree 
 at any fraud in this case : But it would be dangerous in this, or 
 in similar cases, after a debtor has admitted a specific debt to be 
 due from him, and after that debt has been assigned to a third 
 party, to allow the debtor to rake up old transactions of former 
 years, and to bring forward admissions of the original creditor, 
 by which the person to whom the debt has been assigned might 
 find it reduced to nothing. The defendant should have consi- 
 dered that, by giving the acknowledgment to TVL Samy, in Feb. 
 1830, he was creating for that person a false credit, if he intended 
 afterwards to dispute the charges, of which the sum thereby 
 acknowledged to be due, consisted." No. 4099, Colombo South, 
 30 Dec. 1835. Two other points arose in the course of the 
 trial of this case ; one as to the admissibilily of a copy of ac- 
 counts, the other as to the right of the defendant to examine 
 M. Samy as a parly to the suit, which will be mentioned under 
 the respective heads of "Evidence," in speaking of the subpoena 
 duces tecum, and " Examination of parties." 
 
 In an action to recover certain sums paid by .the plaintiff to 
 the defendant, it appeared that both parties had kept taverns 
 in the service of the same arrack renter , and that the plaintiff 
 had paid over the monies received at his tavern to the defendant, 
 for greater security. The renter being dead, these sums became 
 in fact the property of the executors; but they looked to the 
 plaintiff for payment, and he accordingly brought the present 
 action. The defendant denied the plaintiff's right to sue for 
 money belonging to other parties , and averred that he should 
 have a good ground of defence to an action by the executors. 
 The D. C., being satisfied that the sums in question had been 
 received by the defendant, gave judgment for the plaintiff for 
 the benefit of the estate : And the S. C. affirmed that judgment 
 in substance ; observing, That there could be no doubt that the 
 plaintiff, though only acting in trust for the executors, was en- 
 titled to sue the defendant for the amount which he had paid 
 over to the latter's charge , and that as the plaintiff was avowedly 
 Suing for money due from him to the estate, there was no rea-
 
 Debtor and Creditor third parlies. 85 
 
 son why the defendant should not have made any defence to 
 this action, which he might have had against the right of the 
 executors to receive the amount. No. 6863, Colombo North, 
 16 Dec. 1835. 
 
 An action was brought to recover, among other sums, the 
 amount of a debt which the plaintiff had engaged to pay for the 
 defendant to a third person. At the trial it appeared that this 
 debt had not yet bee n paid by (he plaintiff, against whom an 
 action was at that moment pending, at the suit of the defendant's 
 creditor. The D. C., however, gave judgment for the plaintiff, 
 which the S. C. was compelled to reverse, as far as regarded 
 this sum. The S. C. observed, " The plaintiff is premature in 
 his demand; for his right of action against the defendant will 
 not be complete, till he has fulfilled the engagement into w hich 
 he has entered, and the performance of which must form the 
 consideration of his claim on the defendant. In thus modifying 
 this decision, however, il is right to state that the decree of the 
 D. C. has the authority of an English decision, Barclay v. Gooch, 
 2 Espinasse's Reports, 571, in support of it; though that deci- 
 sion was subsequently, and on more malure consideration, 
 overruled. Maxwell v. James, 2 Barnewall and Alderson, 51. 
 It was observed on the latter occasion, that no money had yet 
 come out of the plaintiff s pocket, and non conslat lhat any ever 
 would; for if he recovered from the defendant, still it was pos- 
 sible that he himself might never pay it : The period of time, at 
 which his remedy against the defendant would commence, had 
 not yet arrived. Reasoning, which applies precisely to the 
 present case ; for though an action has been commenced against 
 the plaintiff by the defendant's creditor, still it is quite possible 
 that the defendant may find means to defeat il." But to pre- 
 vent unnecessary expense, il was furiher ordered, thai when 
 the plaintiff should have satisfied the debt, he should be allowed, 
 on proving lhat fact to the salisfaclicn of the D. C., to move to 
 enter up judgment for the sum so proved to have been paid or 
 salisliecl, without the necessity of a fresh action. No. 6106, 
 Kandy, 6 May 1835. 
 
 Erroneous judgments frequently proceed from want of suffi- 
 ciently mature consideration of whal the true queslion between
 
 86 Debtor and Creditor third parties. 
 
 the parlies, or the true difficulty to be solved, may be. The 
 outward and more prominent features of a case may seem to 
 refer it to one class or description, when a stricter investigation 
 of the real and substantial points involved in it may probably 
 give it a totally different character. The following case presents 
 a double instance of this mistaken view ; one, as regards the 
 rule above alluded lo, that the party confiding in one unworthy 
 of trust should be the loser, rather than he who has not so 
 trusted; the other, as regards the regulation for the prevention 
 of frauds. Nor are such instances to be necessarily set down as 
 any reflection on the sagacity of the Judges, in whom they 
 occur ; more especially when it is considered that many of the 
 functionaries, for whose use, if the writer may presume to use 
 the expression, these general observations are intended, have 
 not had their minds schooled by early discipline in legal and 
 logical reasoning. Men even who have possessed those advan- 
 tages, and who have moreover passed their lives in the study of 
 legal difficulties, are often obliged lo postpone the consideration 
 of such questions, till they are able lo abstract their minds from 
 the confusion, which discussion in open court will sometimes 
 produce, and to devote themselves in private to the cool and 
 calm investigation of the real questions which the case presents. 
 And such is"lhe course which all Judgrs will do well to pursue, 
 whenever they feel the slightest doubt, whether they clearly sec 
 and fully comprehend the point at issue. An action was brought 
 against an administratrix, for the value of 34 head of cattle, 
 alleged to have b?en sold by Hie plaintiff to the deceased hus- 
 band of the defendant, which sale the defendant, in her answer, 
 denied. Several witnesses proved the sale and delivery of the 
 cattle to the deceased, who, il appeared, had bought them for 
 one Sinne Pulle, the beef-eonlraclor w ith government, lo whom 
 they were afterwards transferred, but whom the plaintiff had 
 refused lo trust : It further appeared lhat the deceased, as a 
 mode of payment, undertook to settle a debt due from the 
 plaintiff to certain Natlicotea Chillies, which however he had 
 failed lo do. On Ibis evidence, the D. Judge considered, 1st, 
 thai the evidence was not sufficient lo establish a sale to the 
 deceased, inasmuch as the sale, if any had taken place, was
 
 Debtor and Creditor Reg. of frauds. 87 
 
 rather to S. Pullc ; and that, even if it were otherwise, the 
 plaintiff was the fittest person to bear the loss, on account of his 
 misplaced confidence in the deceased : 2dly, that the claim of 
 the plaintiff could not be supported, on account of regulation 
 No. 4 of 1817, which enacts that no contract shall be valid for 
 (among other objects) charging any person with the debt of 
 another, unless it be in writing. (And see ordinance No. 7 of 
 1834, which makes a similar provision.) Judgment was accord- 
 ingly given for the defendant, which, however, was set aside 
 by the S. C., and judgment directed to be entered for the 
 plaintiff against the estate, for the following reasons: "On the 
 first ground assigned for the decree of the court below, the as- 
 sessors differ from the D. Judge ; for they consider that, ' ac- 
 cording to the evidence, the plaintiff is entitled to judgment:' 
 And on questions involving merely the credit of witnesses, and 
 the sufliciency of their evidence, considerable weight ought to 
 be attributed to the opinion of the assessors. It is true that 
 the cattle were ultimately received by S. Pulle 5 but the legal 
 sale, according to the witnesses. Mas to the deceased. Nor is 
 there anything contradictory in that circumstance, when it is 
 considered that the plaintiff declared his unwillingness to give 
 credit to S. Pulle. The argument, that the plaintiff is the fittest 
 person to bear the loss, for his mistaken confidence in the de- 
 ceased, is not applicable to the circumstances. It is not the 
 case of a person confiding in another, and when he finds his 
 confidence likely to be attended with loss, endeavouring to 
 throw that loss upon a third person. It was the deceased in 
 whom the plaintiff confided : it is to the deceased, or, which is 
 the same thing, to his estate, and not to any third party, that 
 the plaintiff now looks for payment. As regards the sufliciency 
 of the evidence, therefore, this court agrees with the assessors 
 in the court below, that there is nothing to bar the plaintiff from 
 recovering his debt. 
 
 "On the second point, theRegn. against Frauds and Perjuries, 
 the I). Judge and his Assessors are of the same opinion; but 
 this court is compelled to differ from that opinion, inasmuch as 
 the Regn., when the spirit of it comes to be examined, does 
 not bear upon the present case. This suit is not brought against
 
 88 Debtor and Creditor payment to agent. 
 
 the estate, on a bare engagement entered into by the deceased, 
 to take upon himself a debt due by the plaintiff to a third per- 
 son ; it is for a debt contracted by the deceased himself to the 
 plaintiff himself. It is true that the mode, in which it appears 
 to have been agreed that the cattle should be paid for, was by 
 paying the amount to certain chillies, to whom the plaintiff was 
 indebted. Hut this is no more, than if Ihe deceased had under- 
 taken to pay the amount into the hands of Ihe plaintiff's bankers 
 or agents. The regn. is intended to prevent creditors from 
 fixing debls, which perhaps they consider desperate as regards 
 their original debtors, on solvent persons; unless the guarantee 
 of such solvent persons has been reduced to writing. And if 
 the Chillies had brought their action against the deceased, or 
 against his estate, upon this underlaking for the debt due to 
 them from the plaintiff, the regn. would have been an insuper- 
 able bar lo such action, without a nole in writing signed by 
 the deceased in support of it. But it is no answer whatever lo 
 the present claim." No. 11,850, Colombo, 30 April 1834. 
 
 It often becomes a question, whether a debtor who pays his 
 debt to a third person, considering him as the agent of the cre- 
 ditor, be absolved from further liability. The real question in 
 such cases is, whether the creditor have, by his acts or permis- 
 sion, or in any other w ay, so conducted himself as to lead the 
 w orld to suppose that such third person was authorized to re- 
 ceive monies for him in general, or the sum in question in par- 
 ticular. Thus : In an action between a renter and his sub- 
 renter, the lalter proved that he had paid the kist or instalment 
 in question to his principal's accountant, who was indeed called 
 to prove that fact; but it appeared that the accountant had ne- 
 ver paid over the amount to the renter. The D. C. decided that 
 this was no payment to the renter, and that the subrenter was 
 still liable to him, and must seek his remedy against the ac- 
 countant. But the S. C. reversed this decision, and held that 
 the subrenler was absolved from all further liability : For as 
 the accountant was the admitted agent of the renter, payment 
 to the former was, in law, payment to his principal, the renter ; 
 and it was for that person to sue his own trusted servant, if he 
 had not paid over the money he had received, rather than for.
 
 Debtor and Creditor agent. 89 
 
 the subrcnter to have that burthen imposed upon him. No. 
 13,046, IS'egombo, 2 April 1834. So, where in an action by 
 Government for certain sums for tobacco and tithe rent, the 
 defendant proved different payments to the Modlear of the 
 Cutcherry (who afterwards became a defaulter) ; which pay- 
 ments were not denied on the part of Govt., but which it was 
 contended the defendant had no right to make to that person : 
 TheD. C. decided that these payments were good, having been 
 made to the authorized and recognized servant of Govt. 5 and 
 that the defendant, therefore, could not be called on to pay them 
 over again. Govt. appealed, on the ground that the Modlear 
 had granted no receipts for the payments, and had never 
 brought the sums to account; But the S. C. a dinned the deci- 
 sion. The judgment of the D. C. was so full and clear in its 
 statement of the facts, and so correct in the conclusion drawn 
 from them, that it left nothing to be added in affirmation of it. 
 And the writer of these notes regrets that he has not that judg- 
 ment in his possession, so as to be able to insert it here. No. 
 1397, Trincomalec, 2 May 1835. Both these cases, it will be 
 observed, exemplify in reality, as well as in appearance, the 
 rule of making the loss fall on the party who trusted to the per- 
 son making default. 
 
 These and similar decisions proceed on the principle that the 
 agent, in receiving the money, was acting within the scope of 
 the authority delegated to him by his principal. On the other 
 hand, a person receiving property belonging to the principal 
 through the agent, cannot shelter himself from responsibility to 
 the principal, on the ground that the agent had exceeded his 
 authority in parting with such property. Thus : An action 
 was brought by Govt. against a Culcherry Modlear, for the va- 
 lue of certain quantities of paddy, which had been issued at 
 different times from the Govt. store, on the private orders of 
 the defendant on the storekeeper, but without any authority 
 from Govt. The defendant did not deny his orders, on which 
 the paddy had been issued, but contended that these were mere 
 private transactions between himself and the storekeeper, since 
 the latter had no authority to issue Govt. stores, without the 
 signature of the Government Agent j and therefore that the
 
 90 Debtor and Creditor debts sequestered. 
 
 store-keeper was the person responsible, and that Government 
 had no claim upon the deft. And the D. C. adopted this 
 view of the case, though it animadverted in strong terms on the 
 fraud, which it considered had been practised in private be- 
 tween the Modlear and the storekeeper. The S. C., however, 
 reversed this decree, and gave judgment for the plaintiff-, ob- 
 serving, That it might very possibly be true that the store- 
 keeper was not bound to issue the paddy, and that he ought 
 not tj have done so without the sanction of the signature of the 
 Govt. Agent; but that the defendant was not the less liable for 
 property which he, or others to his use, had received, because 
 he obtained it by means of misrepresentation, which the store- 
 keeper, by a greater degree of vigilance, might have defeated 5 
 that if a person prevailed on a servant to lend his master's 
 horse, or other property, the servant would be wrong in yield- 
 ing to the persuasion without authority, but the person obtain- 
 ing it would still be responsible for its value. No. 2095, Trin- 
 comalee, 2 May 1835. 
 
 Monies due to a debtor, or which have been recovered and 
 realized, are liable to the creditor of such debtor, like any other 
 property : And where a plaintiff, having obtained execution 
 against his debtor, caused property, which had been decreed to 
 the lattcr/to be sequestered in satisfaction of that execution, the 
 C. J., on the matter being referred to the S. C., expressed his 
 opinion that no notice was necessary to be given of such se- 
 questration to the debtor, who might safely be left to apply to 
 the court, if he thought he had any ground for obtaining a stay 
 of execution, as regarded the property so seized. L. B. 25 June, 
 1 July 1834. And \\here, in an action on a bond for ten am- 
 monams of paddy, the defendant proved a decree against a 
 debtor of his own, in favour of the plaintiff for that exact quan- 
 tity, the D. C. considered this to be a suflicient answer to the ac- 
 tion : And the S. C. affirmed that decision, presuming that this 
 decree against the defendant's debtor, of the precise amount 
 claimed, must have been in satisfaction of the debt due to the 
 plaintiff, unless it could have been proved clearly and positively, 
 that another debt was due from the defendant to the plaintiff, 
 to the same amount. No. 166, Matele, 25 February 1835.
 
 Debtor and creditor insolvents. 91 
 
 Goods once sold, and the possession of (hem transferred to 
 the purchaser, become his property and liable for his debts, 
 though the price may not have been paid. And where the 
 seller reserved to himself the right of resuming the property, 
 on non-payment of the balance of the purchase money within 
 a certain period ; but, instead of exercising that right, took the 
 undertaking of a Ihird party for the payment -, the S. C. held 
 that this was a waiver of the right of resumption, and left the 
 buyer the absolute owner of the goods; that this ownership was 
 not divested out of him and transferred to the third party, by 
 the undertaking jf the latter to pay the balance, or even by his 
 part-payment thereof; and therefore that the goods continued 
 to be the property of the buyer, for whose debts conse- 
 quently they must be held liable. No. 1735, Kandy, 9 Decem- 
 ber 1835. 
 
 I'nder this head of "Debtor and Creditor" may naturally be 
 classed what few decisions have taken place on the subject of 
 insolvents. It will be recollected that one cf the main condi- 
 tions, on which persons are allowed the benefits of the laws 
 passed in favour of insolvents, is the assignment to trustees, 
 on behalf of the creditors, of all property of which the insolvent 
 is possessed, or to which he may be entitled. In an action for 
 the breach of an agreement, it appeared that the plaintiff had 
 been imprisoned, and afterwards discharged as an insolvent, 
 according to the course prescribed by Regn. No. 8 of 1824 : 
 And the D. C., on this being proved, dismissed the action, con- 
 sidering that all debts due to the plaintiff had passed, by opera- 
 tion of the Regn., to his assignees, who alone therefore had 
 the right of suing for the recovery of such debts. On appeal, 
 the S. C. assented to the principle, on which the D. C. had de- 
 cided , but in order to prevent hardship on the insolvent, and 
 the necessity of an entirely fresh action, modified the decree as 
 follows : " That the proceedings he referred back to the D. C., 
 in order that the plaintiff may have an opportunity of giving 
 notice to his creditors, or their legal representatives, that the 
 present action has been commenced, and that they, the credi- 
 tors, may be made parties to the suit if they wish it. If they 
 decline interfering, the plaintiff should then be allowed to con-
 
 92 Debtor and Creditor insolvents. 
 
 tinue the action, but only in the nature of a trustee for his cre- 
 ditors, to whose use any sums, which may be recovered by the 
 plaint ill', would be received and held by the court. The 
 D. C. was correct in considering that the rights of the plaintiff 
 had passed to his creditors, when he received the benefit of the 
 Insolvent Regn. : But it would be hard and unjust towards 
 him, if he were precluded, by the disinclination of his credi- 
 tors to take up this or similar proceedings, from recovering 
 debts, which may enable him to discharge a part of those, for 
 which his future property is still liable to his creditors." No. 
 1875, Alipoot, 20 Feb. 1835. 
 
 It is scarcely necessary to observe that in all transactions af- 
 fecting the disposal of the insolvent's property, courts will na- 
 turally look with even more than their ordinary vigilance at the 
 conduct of all parlies concerned, in order to be certain, as far 
 as that is possible, that the most perfect good faith has governed 
 their respective acts : And the parly who seeks to establish an 
 assignment, or any other transaction, by which the right to, or 
 control over, the property is conferred on him, must act openly 
 and without reserve, so as to stand clear of any, the slightest, 
 suspicion. Thus, where persons sued in the character of as- 
 signees of an insolvent, for a debt due to him, and endeavoured 
 to rest their claim on a deed of assignment executed after the 
 commencement of the action, and refused to produce a deed of 
 composition of prior date, which the insolvent had entered into 
 with his creditors, the D. C. dismissed the aclion ; and the S. C. 
 concurred in the view taken by the court below, observing that 
 the non-production of a deed, so essential to the support of the 
 plaintiffs case, must necessarily excite suspicion, even suppos- 
 ing the subsequent deed of assignment to be sufficient to main- 
 tain their right. To prevent the necessity of a fresh action, 
 however, the case was referred back lo the D. C. to give the 
 plaintiffs an opportunity of still producing the deed in question. 
 No. 3740, Colombo North, 8 April 1835. 
 
 While touching on the respective rights and liabilities of in- 
 solvents and their creditors, it may be not irrelevant lo mention 
 a question which was proposed by a D. Judge, whether the D.C. 
 were still authorized, under the 6th clause of regn. No. 8 of
 
 Debtor and Creditor remanding insolvent. 93 
 
 1824, to remand a prisoner, on proof of his misconduct as 
 pointed out by the 5th clause, for a period of imprisonment not 
 exceeding three years, notwithstanding the proviso contained 
 in the 25th clause of the Charter, by which the criminal juris- 
 diction of the D. C. is limited, as regards imprisonment, to 12 
 months? The G. J., to whom this general question was referred, 
 returned for answer, that his own view of the remanding under 
 the 6th clause of the regn. was, that it was rather in the nature 
 of a civil than a criminal proceeding, and in truth was little 
 more than allowing the law, as it stood before the regn., to 
 take its course, where fraud was proved against the debtor ; 
 and if so, that the D. C. had authority to remand for three 
 years, notwithstanding the restriction of the Charier : But he 
 added that this was to be considered as merely his own indivi- 
 dual opinion ; and that if the matter were brought to the notice 
 of the S. C. by regular appeal, the other Judges might take a 
 different view of the subject. L. B. 28 Feb. 1834. 
 
 Where the insolvent, how r ever, is remanded in such case, the 
 judgment must specify the term of further imprisonment which 
 he is to undergo. And in a case in which a D. C. remanded 
 the prisoner generally, merely declaring that "the court did 
 not consider him entitled to the benefit of the regulation," the 
 S. C. directed the insolvent to be discharged ; observing that 
 as the 6lh clause directed that on proof of fraud, the prisoner 
 should be remanded to prison, for such period, not exceeding 
 three years, as the court should direct, to be computed from the 
 day of filing his petition, a specific term of imprisonment ought 
 to be awarded : Otherwise, any prisoner might, for the most 
 trifling concealment, or omission in his statement, be declared 
 not entitled to the benefit of the regn., and might be detained 
 in prison for the full term of three years. No. 5652, Kandy, 
 30 Sept. 1835. 
 
 But. there seems to be no objection to the insolvent being re- 
 manded, till he perform some act, which justice demands, for 
 the benefit of his creditors. Thus, where an insolvent had 
 been remanded for a further term of imprisonment, on account 
 of his having omitted in his statement a certain bond in his pos- 
 session, the S. C. Bet aside the judgment as regarded the term
 
 9V Debtor and Creditor Fraud. 
 
 of imprisonment, on the ground lha' the bond was under 
 RD. 50, the amount specified in the 5th clause of the regn., and 
 also in consideration of the imprisonment already undergone ; 
 but directed that the insolvent be detained in prison, till he 
 consented to deposit the bond in court for the benefit of the cre- 
 ditors. No. 221, Caltura, 29 July 1835. 
 
 It may be memtioned here that, according to the customan 
 law of the Malabar districts, dowry property, and the rents and 
 profits arising therefrom, are not answerable for the husband's 
 debts, even to the extent of one-half-, and need not therefore 
 be inserted in the schedule of such husband, when seeking re- 
 lief as an insolvent. No. 2089, Jaffna, 15 Oct. 1834. See this 
 case more fully stated, infra, title " Husband and Wife." 
 
 It is a general and well-known maxim of law, that fraud 
 vitiates every contract of which it forms a part. But the fraud 
 contemplated by this maxim is an intention to deceive by means 
 of the very contract itself, and not a mere infraction of some 
 positive law, even though passed for the prevention of fraud, 
 unless indeed such law superadds to its penalties the annulment 
 of any contracts made without observance of its provisions 5 as 
 is done by the ordinance against frauds and perjuries. Thus : 
 In an action to recover a gold necklace, alleged to have been 
 pawned by the plaintiff with the defendant, the D. C. considered 
 that, as the plaintiff had failed to prove that he had conformed 
 to the 15th clause of the regn. No. 6 of 1806, he had forfeited all 
 right to recover the necklace, and dismissed the action. TheS.C., 
 however, set aside this decision, and referred the case back to 
 the D.C., to decide on the credit due to the plaintiff's witnesses, 
 as to the fact of pawning : For though the regn. directed that 
 " no person shall either give or receive in pawn any gold or 
 silver thing, without first showing it to one of the police- 
 officers of his village," and though persons infringing that pro- 
 vision rendered themselves liable to punishment, an infraction 
 of the law of which both these parties were equally guilty ; still 
 the regn. did not enact that the owner of the goods should lose all 
 right to recover them back, on payment of the money borrowed. 
 The B.C. according!) heard further evidence, but disbelieved that 
 any pawning had ever taken place ; on the expression of which
 
 Debtor and Creditor Mutiny Act. 95 
 
 disbelief, the S. C. affirmed the original decree of dismissal. It is 
 very probable that the omission to comply with the very whole- 
 some direction of the regn. contributed in a great degree to dis- 
 credit the plaintiff's witnesses in the opinion of the D. C., and 
 very properly so : For such omission must necessarily raise 
 strong suspicions of fraud, though it did not amount, under the 
 regn. then in force, to such conclusive evidence of it, as wholly 
 to vitiate the contract, if any such had really been entered into. 
 No. 225, Pantura, 21 May 1834. (In the ordinance afterwards 
 passed for improving the police of Colombo, the 21st clause 
 directs that, besides punishment for pawning, without showing 
 the article to the constable, etc., the person so pawning shall 
 not be entitled to recover back the article pawned.) So, where 
 a verbal contract had been entered into between the master of 
 a ship and his crew, the S. C. held that such contract was not 
 absolutely void, on account of its not being in writing ;"' though, 
 by English Acts of Parliament, the master might be liable to a 
 penalty for not having it reduced to writing. No. 657, Galle, * 
 31 Dec. 1834. See this case more at length, infra, title "Ship- 
 ping." 
 
 The mode of procedure for the recovery of debts, or for any 
 other species of redress which a party seeks in a court of jus- 
 tice, forms v\ hat is usually called Practice 5 the course of which 
 is laid down in a very general outline by the rules and orders. 
 The points which have been decided on this subject will be 
 found under the title " Practice." (See also titles Execution 
 parate, and Nantissement, as to the distinction between ques- 
 tions of law and of practice.) The ^following decision, how- 
 ever, respecting the course to be adopted by the creditors of 
 soldiers for the recovery of their debts, seems more properly to 
 find a place under the present head. The annual Mutiny Act 
 directs (clause 3), " That no person, enlisted as a soldier, shall 
 be liable to be taken out of H. M.'s service, by any process or 
 execution whatsoever, other than for some criminal matter," 
 unless on an affidavit that the debt amounts to 30/. An action 
 was brought in the D. C. of Colombo, against a non-commis- 
 sioned officer in one of the regiments quartered at that place; 
 and on his non-appearance to the summons, a warrant of arrest
 
 06 Debtor and Creditor Mutiny Act. 
 
 issued, and it appearing that the defendant had gone to Kandy, 
 the warrant was transmitted to the D. Judge of that district for 
 endorsement and execution, in pursuance of the 14th rule of 
 section 1. When, however, the defendant was brought up, that 
 court, finding that he was in H. M. service, considered that it 
 had no authority to enforce the warrant, and accordingly or- 
 dered him to be discharged. On the warrant being returned 
 thus inoperative to the D. C. of Colombo, the plaintiff moved 
 that the warrant of attachment might re-issue 5 and the D. J., 
 feeling a difficulty on the subject, referred the matter, as a 
 point of practice, under the 47th rule, to the S. C. for instruc- 
 tions how to proceed. And on the motion of the plaintiff, and 
 in consideration of its being a point of some importance, the 
 question was argued before the C. J. and Second Puisne J. ; the 
 Senior Puisne J. being then absent on circuit. The arguments 
 adduced on the part of the plaintiff, and the view taken by the 
 S. C., will be seen by the answer directed to be sent to the D.J.. 
 of which the following is the substance : 
 
 " The result of a very full consideration of the question and 
 arguments is, that the mandate of arrest could not legally be 
 carried into effect ; and that the D. C. of Kandy was justified 
 in discharging the defendant, when he was brought up before 
 that court, by virtue of the mandate. It has been endeavoured 
 to support the enforcement of this mandate, on the ground that 
 the defendant, not having appeared in obedience to the original 
 summons, was in contempt ; and therefore, that the arrest was 
 ' for a criminal matter,' and fell within the exception in the 
 third clause of the Act. This is certainly the only ground, on 
 which the right of arrest could be contended for ; and on the 
 first glance at the 3d clause, it appears a strong ground. There 
 is no doubt that a party who commits a wilful contempt of Ihe 
 court, or of its process, stands in the light of a criminal, and is 
 to be dealt with as such; and the commitment to prison is to be 
 considered as a punishment for an offence. (Vide supra, 61,2.) 
 But the previous question here is, whether the defendant have 
 been guilty of any contempt, of which the court can take cog- 
 nizance. And in the consideration of that question, the proviso 
 at the end of the 3d clause becomes very material : " That any
 
 Debtor and Creditor Mutiny Act. 97 
 
 plaintiff, on notice of the cause of action first given in writing 
 to any soldier, etc., may file a common appearance in any action 
 to be brought for any debt, and proceed therein to judgment and 
 outlawry, and have execution, other than against the body." 
 Here, then, is a course of proceeding pointed out by the Act 
 itself, by which all necessity for the personal appearance of the 
 defendant is obviated : And if no necessity exists for his personal 
 appearance, it is difficult to understand how he could be guilty 
 of a contempt in not appearing, or liable to punishment for his 
 non-appearance. Having received notice of the cause of action 
 in writing, he may naturally have considered, or have been in- 
 formed, that unless he w r as desirous, on his own account, to ap- 
 pear and answer the demand, the proceedings might be left to 
 go on to a conclusion, without any intervention on his part. 
 The plaintiff could gain nothing in point of time by the defend- 
 ant's personal appearance; since a power is given to the 
 plaintiff, by entering an appearance and proceeding ex parte, 
 to obtain all that can be obtained against the defendant, as long 
 as he remains in the King's service, viz. execution against his 
 property. 
 
 There is indeed one privilege, w Inch the course of proceeding 
 lately introduced affords to parties, and of which the present 
 plaintiff may be deprived; viz., that of examining the defendant 
 personally in court, under the 29th rule, as to the cause of 
 action. If this should be a privilege of which the present 
 plaintiff wished to avail himself, the S. C. can only regret that 
 its rules of procedure are superseded by a higher authority ; but 
 it can never maintain that those rules are to be of greater force 
 than an Act of Parliament. With this exception, however, the 
 practice prescribed by the Act is closely similar to that which, 
 is often pursued in the D. C., where no absolute necessity exists 
 for arresting the defendant on his non-appearance. Sup. 62. 
 
 It still remains for the court to notice one line of argument, 
 which has been used against the discharge of the defendant by 
 the D. C. of Kandy. It has been urged that the Charter con- 
 fers upon each D. C. a separate and exclusive jurisdiction , that 
 the proceedings of one court, therefore, cannot legally be inter- 
 fered with by another j that great inconvenience would arise, 
 
 7
 
 98 Debtor and Creditor Mutiny Act. 
 
 if one D. C. could arrest a defendant, and another discharge 
 him, more especially as the record of the proceedings would not 
 be before the latter court, which could therefore be but imper- 
 fectly informed on the subject ; that there would have been no 
 necessity for sending the defendant to Colombo, but that he ought 
 to have been detained in custody, at least constructively, at 
 Kandy, from whence he might have applied to the S. C. for a 
 writ of Habeas Corpus. The Judges entirely concur in the 
 abstract proposition, that one D. C. is not to interfere with the 
 proceedings of another. But in the present instance, it must be 
 recollected that the interference of the D. C. of Kandy was no 
 spontaneous act on its part; it was called upon by the D. C. of 
 Colombo to exercise certain powers, as an intermediate agent 
 it is true, but into the legality of which powers it was incum- 
 bent on that court to inquire, before it ventured to exercise 
 them. This was not the case of an arrest by one court, and a 
 discharge from that arrest by another. Both acts, that of the 
 arrest and that of the discharge, were performed by the same 
 court. Nor was that court without sufficient information before 
 it, to enable it to decide on the legality of the commitment 
 which it was required to order : For the mandate of arrest de- 
 scribes the defendant as " Serjt. J. Hall," a description which 
 it has not been contended was insufficient to invest him with 
 the military character ; it specifies the amount of the claim, 
 which is under 30J., and it directs the arrest and detention of 
 the defendant, till he shall appear and answer. This, then, 
 was enough to satisfy the D. C. of Kandy, that the mandate 
 could not legally be carried into effect : And if the Mutiny Act 
 had been brought to the notice of that court in the first instance, 
 it may be doubted whether the mandate would have been even 
 partially executed , as indeed, under the same hypothesis, it is 
 to be presumed that the D. C. of Colombo would never have 
 issued it. 
 
 A more technical objection has been made to the return of 
 the D. C. of Kandy, though not indeed insisted upon very 
 strenuously^ that the order of discharge takes no notice of any 
 intervention on the part of the assessors. Whether that inter- 
 vention were recorded in the minutes or not, cannot be decided
 
 Debtor and Creditor Mutiny Act. 99 
 
 without reference to the D. C. \ but the opinion of the Judges 
 is, that there was no necessity for any mention being made of 
 the assessors in the indorsement on the mandate. (Vide supra, 
 p. 43, referring to L. B. 2 Oct. 1833, where it is stated that 
 orders of mere course, or any orders, not included in the de- 
 scription pointed out by the 30th clause of the Charter, may be 
 made without taking the opinion of the assessors, or even by the 
 Judge out of court.) 
 
 The S. C. is therefore of opinion that the motion made on 
 behalf of the plaintiff, for the re-issue of the warrant of attach- 
 ment, should not be granted." L. B. 11, 17 Aug. 1835. 
 
 See further, on the subject of debtor and creditor, the follow- 
 ing titles : Interest 5 Minority; Nantissement ; Obligation; 
 Partnership ; Pearl Fishery ; Prescription ; Principal and 
 Surety , Promissory Notes ; Renter. 
 
 DECREE. 
 
 See title, Judgment. 
 
 DEPOSITIONS. 
 
 Originals, and not copies, to be transmitted on appeal , vide 
 supra, p. 27; L. B. 2 Nov., 12 Dec. 1833 5 16, 25 Nov. and 
 4 Dec. 1835. And see L. B. 28 Feb. and 31 March 1835, for 
 the reasons why the originals are preferable to copies. 
 
 Are not to be taken on stamps. L. B. 12 Dec. 1833. 
 
 DONATIO INTER VIVOS. 
 
 Revocable, on non-fulfilment of the conditions imposed; see 
 title, Temple. 
 
 DOWRY. 
 
 See title, Husband and Wife. 
 
 7.
 
 100 
 
 EDICTAL CITATION. 
 
 Meaning of ihc term, page 100 Defects of Reg. No. 5 of 1819, 100 Re- 
 quisites to give validity to certificate of quiet possession 101 All claims 
 received as long as publication open 102 Ordce. No. 7 of 1855 requires 
 strong proof of possession and publication, and then gives a valid title 
 103 Stamp necessary 103 Affidavit abolished 103 Citation may issue, 
 though possession not disturbed 10* One of several occupiers may have 
 citation 104. 
 
 THIS term is used in the law of Scotland, and of some other 
 countries in which the civil law prevails, to signify any citation 
 against a person, whether foreigner or not, who is absent from 
 the country, but who possesses landed property in it : And it is 
 said to be justified by the necessity of the case, and by the pre- 
 sumption that every owner of property in a country will leave 
 some person there in his absence, authorized to represent him 
 and defend his interests. (See Yoet Lib. 2, title 4, par. 16, as 
 to the different kinds of edictal citation.) In the following few 
 observations, the term is used in a more limited sense ; and is 
 confined to the proceeding, by which a person who is in posses- 
 sion of land, but is without a valid documentary title to it, seeks 
 to confirm himself in his possession, by publicly calling on all 
 persons w ho may have any claim, to come in and establish it ; 
 and in default of any claimants appearing, or, having appeared, 
 being able to establish any legal claim, such possessor seeks lo 
 be u quieted in his possession" by the authority of the court, as 
 law ful owner, or at least as having the best apparent right to 
 the land. It is evident that this proceeding, if allowed to give 
 a valid title to the party pursuing it, requires to be strictly re- 
 gulated as to the conditions, on the fulfilment of which its suc- 
 cess is to depend, and to be vigilantly watched in its progress. 
 "for otherwise, it might, by means of collusion, be made an in- 
 strument of fraud and injustice, easy of execution, and difficult 
 of detection or remedy. The regn. No. 5 of 1819, the three 
 first clauses of which went to define the cases in which edictal 
 citations might be sued for, and to prescribe the mode of pro- 
 ceeding thereon, was found to be by no means efficient, either
 
 Edictal Citation 'Certificate of possession. 101 
 
 as regarded the end proposed, or the means by which lhat end 
 should be attained. The two following judgments will show 
 the view taken of the system, as it stood under the regulation, 
 and of the necessity which existed for some further provision, 
 for the better attainment of Ihe object in view. 
 
 In an action for land, the plaintiff relied chiefly on a certifi- 
 cate of quiet possession; but his witnesses not being present, 
 the D. C. gave judgment for the defendant. On appeal to the 
 S. C., the decree was affirmed, not as absolutely final, but as a 
 nonsuit for want of evidence, leaving it open to the plaintiff to 
 bring a fresh action. (Tide infra, title Practice, as to the dis- 
 tinction between a nonsuit, and final and absolute adjudica- 
 tion.) " But it may be useful (the judgment went on to state), 
 in the event of such second action, to make one or two observa- 
 tions on the document, on which the plaintiff seemed princi- 
 pally to rest his case , the certificate of quiet possession. The 
 process of Edictal Citation is one which might be made emi- 
 nently useful in this Island, where so much land is held on no 
 valid documentary title. But it is to be feared that, as hereto- 
 fore obtained, the writ of quiet possession cannot and ought 
 not to have that force and validity given to it, which the plaintiff 
 would claim for it. In the first place, the party suing out the 
 Edictal Citation ought to be in actual and bond fide possession of. 
 the land ; and he ought to establish this to the satisfaction of the 
 court, not by his naked affidavit or affirmation, but by that sort 
 of proof which would satisfy the court that he really did possess 
 the land at the time, either by actual occupation or cultivation, 
 or by the exercise of those acts of ownership which, according 
 to the nature of the property, denote possession. In the second 
 place, it should be shown that the citation had been published 
 with a decree of notoriety, of actual obtrusion on the notice 
 of the neighbourhood, lhat should make it almost impossible 
 for any person to plead ignorance of it. But unless these two 
 conditions have been fully complied with, the mere production 
 of the secretary's certificate of quiet possession ought to go but 
 little way, towards establishing the right of the party producing 
 it. An unprincipled suitor would have little scruple in making 
 a false affirmation of possession ; nor would he meet with much
 
 102 Edictal Citation Certificate of possession. 
 
 difficulty, it is to be feared, in procuring the citation to be re- 
 turned as duly published, though perhaps the publication might 
 never have extended beyond the conniving headman, by whom 
 the return would be made to the fiscal." No. 2354, Ghilaw and 
 Putlam, 7 Oct. 1835. 
 
 In the other case above referred to, persons having obtained 
 the Edictal Citation, ; ml the two months, being the term pre- 
 scribed by the Regn. of 1819, having expired, they applied for 
 the certificate of quiet possession } which the D. C., however, 
 refused to grant, on the ground that certain other claims to the 
 land, but which had not arisen out of the Citation, were still 
 undecided. The applicants having appealed, the S. C. affirmed 
 the interlocutory order in the following terms : "It would be 
 a sufficient reason for affirming this order, that the certificate of 
 quiet possession had not as yet been granted, and that the ap- 
 plication had been suspended, in order to await the decision 
 upon certain other claims : For, as long as the application is 
 kept open, there can be no doubt that all claims ought to be re- 
 ceived, whatever may be the day mentioned in the citation. 
 But the appellants have evidently formed a very erroneous opi- 
 nion of the effect of this proceeding by Edictal Citation, and of 
 the certificate consequent thereon. They seem to imagine that 
 the certificate of quiet possession gives a valid and indefeasible 
 title to the party obtaining it. This, how ever, in the present 
 state of things, is by no means the case. Much more certainty, 
 as regards the possession of the party suing out the Citation, 
 much greater and more certain publicity to that proceeding, 
 and much longer time for claimants to come in, must be se- 
 verally provided for, before an effect so decided and conclusive 
 can be given to the certificate : And these objects w ill possibly 
 soon form the subject of legislative enactment. But the only 
 force which ought to be given to this certificate of quiet posses- 
 sion, as obtained under the present practice, is the arriving at 
 the following conclusion : That though the neighbourhood 
 ias been cited in a certain manner to come forward with 
 claims, if any existed, yet that, for a certain number of months, 
 none had been made. This fact would no doubt go some way 
 in assisting a party to prove title by prescription, or in any
 
 Edictal Citation Ordce. No. 7 of 1835. 103 
 
 other way founded on possession. But it would not and ought 
 not to he held conclusive against subsequent claimants, if such 
 claimants could account satisfactorily for their silence, during 
 the term the citation was pending. And therefore these appli- 
 cants, if they had been well advised as to their own interests, 
 and were actuated by an honest desire of ascertaining and con- 
 testing all claims to the lands in question (which is the real 
 ground and meaning of Edictal Citation) ought to have been 
 eager that these and any other claims should be received and 
 discussed, whether the time specified in the citation had ex- 
 pired, or not. No. 976, Ainblangodde, 25 Nov. 1835. 
 
 Soon after these decisions, an ordinance was passed, No. 7 of 
 1835, repealing Regn. No. 5 of 1819, as far as relates to this 
 subject, and substituting what it was hoped would prove a more 
 effective course of proceeding, in the place of that which had 
 been found defective. The three main objects of that ordi- 
 nance were, 1st, to require satisfactory proof of possession ; 
 2dly, to enforce the greatest possible degree of publicity j 3dly, 
 those two conditions being literally and substantially com- 
 plied with, and no adverse claims being set up or established, 
 to give the party in possession a good and valid title. Whether 
 this ordinance has proved successful, or the reverse, the waiter 
 of these notes has no means of saving. It is one which would 
 necessarily require the test of experience, as to its manner of 
 working, before its merits or demerits could be pronounced 
 upon with confidence. Whatever faults and deficiencies may 
 as yet have been discovered in it, have no doubt been rectified 
 and supplied, by the same knowledge and experience which 
 pointed them out. 
 
 The following points, though decided with reference to the 
 Regn. of 1819, will be found, it is believed, not inapplicable to 
 the proceedings under the Ordce. of 1835. 
 
 The item "Edictile Citation," in the table of stamps of 
 1 Oct. 1833, being general and without exception, must be 
 taken to include those moved for under the Regn. L. B. 18, 
 22 Sept. 1834. 
 
 The affidavit of the applicant, it is scarcely necessary to say, 
 can no longer be received. Id. Ibid. And see Rule 30 of Sect. 1.
 
 101 Edictal Citation by one of several occupiers, 
 
 A person applied for Edictal Citation, without asking for a 
 certificate of quiet possession, slating that he required the cita- 
 tion for the purpose of having title deeds passed in his name ; 
 that in truth his possession had not been disturbed, and that he 
 held certain documents, showing his right to a certain extent, 
 but not absolutely conclusive. The D. Judge doubted whether 
 this citation, which he considered to be unnecessary litigation, 
 ought to be granted -, and referring to the S. C. for instructions, 
 received for answer that there did not appear any objection to a 
 party moving for Edictal Citation, even though he should not be 
 actually disturbed in his possession 5 that he might wish to 
 give an opportunity to other persons to bring forward any 
 claims to the land, which might often be a very proper precau- 
 tion, previously to venturing on having title deeds passed in his 
 name $ that in such case, the proceedings might turn out to be 
 superfluous, but could scarcely be called "unnecessary litiga- 
 tion," since, if no one answered the citation, no litigation could 
 be said to arise. L. B. 18, 22 April 1834. 
 
 In one case, in w hich the usual citation had issued, the certi- 
 ficate of quiet possession was refused, on the ground that there 
 w as another person equally interested with the applicant, who 
 had not joined in the application, and whose share had not been 
 set apart. But the S. C., on appeal, referred the case back to 
 the D. C., in order that the other person in possession might be 
 called in, and have an opportunity of joining in the application ; 
 or, if he refused, that his share might be excepted out of the 
 proceedings. Nos. 436 and 649, Amblangodde, 17 June 1835. 
 
 ESCAPE. 
 
 BY supplementary Rule of 16 June 1834, D. Courts are, for 
 the reasons there given, authorized to try persons for this of- 
 fence : And one of the D. Judges, in answer to a question sub- 
 mitted by him to the S. C., was instructed, That any person 
 found within the jurisdiction of a D. C., having made his escape 
 from lawful custody, might be tried before that court, though 
 the original act of escape took place in a different district ; for
 
 Escape. 105 
 
 as every moment's continuance at large was a substantive of- 
 fence, he might be legally tried in either District, though not in 
 both. L. B. 27 Aug., 2 Sept. 1834. 
 
 EVIDENCE. 
 
 English rules introduced by ordce. No. 6 of 183i; reasons for it. page 106 
 Leading rules: 1st oidcnce confined to points in issue; test, by which to 
 ascertain ihem 107 Evidence to character ; of parties, of witnesses 108 
 2dly, Affirmative to be proved; exceptions 109 3dly, Best evidence to be 
 given; Example, in proving deeds 110 Difference of this proof in England, 
 and Ceylon, and reason of it 112 Names of absent persons as witnesses to 
 deeds, of no effect 113 Handwriting, how proved 113 Admissions of par- 
 ties; caution against collusion Hi Confessions of criminals 115 Former 
 decree, if issue and parties the same 115 4lhly, Hearsay not evidence: 
 Except ,when part of the transaction; or complaint of rape, etc.; or evidence of 
 a deceased witness; or dying declarations; or declons. of deceased persons as 
 to relationship, or adoption; or on other subjects, if against their own in- 
 terest; or reports of customs or public rights, or of character, in suits, etc., 
 for defamation; or admissions of parties, etc., 116 ct sequ. Applicalion of 
 these 4 rules 118 Positive and presumptive evidence distinguished 119 
 Presumptions of law 120 Witnesses: number of; one sufficient; excep- 
 tions 121 Lists of, civil ; default in filing, how taken advantage of; how 
 filed; amendment of 122 Criminal, when to be filed 124 When witnesses, 
 not in list, admissible 125 Summoning ; subpoena (whether indispensable) ; 
 penalty; subpoena duccs tecum; how acct. books produced, examined, elc.,125, 
 6,7 Privilege from attendance, claimed and refused; by Moorish women; by 
 Buddhist priests; judgment of S. C. 127 Payment of expenses, civil 131 
 Criminal 132 Examination on interrogatories 133 In other districts, should 
 be by D. J.; omission in 26th rule 133 Out of Ceylon 13i Discretion with 
 D. C. 134 Incompetency ; 1st, for want of understanding; 2dly, conviction. 
 of perjury; 3dly, husband or wife ; exceptions; no other relations excluded; 
 4thly, interest; nature of, to disqualify; exception, agents, etc.; how compe- 
 tency restored 135 Credit of witnesses 138 Advocates, proctors, and inter- 
 preters ; communications to, when privileged ; other privileged communica- 
 tions 139 Examination of parlies; distinction between party and proctor, 
 and reasons for it 140 Prosecutors, informers, etc., competent 141 Oath, 
 must be in the ordinary form, and administered in court 141 Ceremonials 
 of different casts 1)3 Examination and cross-examination: Leading ques- 
 tions; objections; questions of law; of opinion; by the court; of competency 
 and credit; criminating questions 144 Proficiency in these rules only ac- 
 quired by experience and observation ; attendance on S C. recommended 
 146 (note) Evidence to be vivik voce; exceptions 146 Depositions at length
 
 106 Evidence English rules. 
 
 and in first person 147 When evidence may be dispensed with ; great cau- 
 tion necessary ; cases on this subject 148 Prisoners may cross-examine, and 
 enter on defence, before commitment 149 References to other titles 150. 
 
 THE ordinance, No. 6 of 1834, after reciting that "by Ihe 
 abolition of torture for the purpose of obtaining confession, by 
 the introduction of trial by jury in criminal cases, and from 
 other causes, the English rules of evidence had been gradually 
 introduced, and were generally adhered to, within the island of 
 Ceylon, though they had never been expressly established by 
 positive enactment," declares " that those rules are and shall 
 continue to be the law of Ceylon, as well in civil as in criminal 
 matters, except where altered or modified by express law." 
 The rules of evidence, as prescribed by the Civil Law, had not 
 only become obsolete in point of practical effect, but had been 
 so deeply broken in upon by existing laws, of which the aboli- 
 tion of oaths by parties, decisory and others, may now be added to 
 those alluded to by the ordinance, that it had become necessary, 
 either to recognize the English rules as the general law, or else 
 to draw the line of demarcation between such of them as had 
 been introduced by express enactment, and the practice of the 
 Civil Law, as far as that still remained untouched : A task 
 which would have been as difficult in execution, as it would 
 have been unsatisfactory in its results-, for it could only have 
 produced, at best, a piece of patchwork. Indeed it may well 
 be doubled, whether it would have been possible to have recon- 
 ciled what yet remained of the Roman Dutch rules of evidence, 
 with the present mode of administering justice in Ceylon. An- 
 other reason, which seemed to render this measure highly expe- 
 dient, was that in the Kandyan provinces, the R. Dutch law had 
 never prevailed at all. "Without this ordce., therefore, either 
 the Dutch rules of evidence must have been introduced for the 
 first lime into those districts, and without any other part of the 
 same code; or a different law of evidence must have governed 
 the Randy an, from that which prevailed in the maritime dis- 
 tricts. 
 
 Such, then, being now the law of the island, it may be useful 
 to those who have not gone through a regular course of legal 
 reading, to have a brief compendium presented to them of die
 
 Evidence confined to the issue. 107 
 
 leading principles, on which that law is founded. Without go- 
 ing into the nice distinctions and refinements, which have arisen 
 out of the numerous decisions in England on the law of evi- 
 dence, it is proposed to give such general rules as are to be 
 found in the best wTiters on this subject, accompanied by any 
 observations which the state of things in Ceylon seems to call 
 for, and noticing under each head, the decisions of the S. C., 
 referable to that head (1). 
 
 First : Evidence should be confined to the points really in 
 issue between the parties ; the substance of which should be 
 proved, and no more. See "Issue." This rule, which in Englandin- 
 volves some nice distinctions, as to what averments or assertions, 
 appearing on the pleadings, are necessary to be established by 
 evidence, and what are not, may be stated in very general terms 
 as applied to Ceylon, where technicalities of pleading are almost 
 unknown. The only way, by which to ascertain what the issue 
 is, and consequently what evidence is necessary, is to begin by 
 clearing the case on the one hand of all the superfluous and ir- 
 relevant statements which so often appear in the pleadings, and 
 on the other hand, to supply any omissions which render the 
 case obscure, by calling on either part for explanation. This 
 course, indeed, is in substance prescribed to the D. C. by the 
 8th rule of section 1. Whatever is admitted by either side, 
 either in the w ritten pleadings, or in the viva voce examina- 
 tions, may be considered as proved. This process w ill show 
 
 (1) The matter, out of which the following very general analysis has been 
 compressed, with the exception of (hat which has reference more particularly 
 to the state of things in Ceylon, has been taken principally from Air. IMiil- 
 lips's work, though the order pursued by that author has not been strictly 
 adhered to: And some of the heads have been blended together, where the 
 division would have been too minute for so mere an outline. For fuller ex- 
 emplifications and illustrations of the rules, the reader must apply himself to 
 that valuable work itself. At the time the writer of these notes left Ceylon, one 
 of the D. Judges, in his laudable zeal to bcncGt the practitioners of the 
 courts, was engaged in making an abridgment of this treatise; a publication 
 whidi would be of the greatest use to those gentlemen who have not had a 
 legal education, provided they take care fully to understand the spirit of 
 every position of Phillips, before they attempt to apply it in practice: The 
 writer trusts he shall be forgiven this caution, in consideration of the nicety 
 of distinction, which sometimes separates one class uf cases from another.
 
 108 Evidence of character. 
 
 the real nature of the claim or complaint, and of the answer or 
 denial, in its true light, and freed from all false colouring -. and 
 will reduce the facts to be proved by evidence to those which 
 still remain denied on either side, and which are essential to 
 the establishment of the claim or defence. Whatever is unne- 
 cessarily stated in the pleadings, it would be equally unneces- 
 sary, and would therefore be a waste of the lime of the court, 
 to attempt to prove : Such evidence should be rejected as irre- 
 levant. The application of this rule, that is the task of decid- 
 ing what are the points really in issue between the parties in 
 each class of cases, must be left to the discrimination of the D. 
 Courts. But there is one subject, on which the admission or 
 exclusion of evidence is often a matter of delicacy, and on 
 which therefore some observations may be useful, and may 
 perhaps serve as a guide for the application of the rule in other 
 instances : This is, the character of parties or of witnesses. As 
 regards parties, it is every day's practice, on the trial of a per- 
 son on a criminal charge, to call witnesses to prove his general 
 good character, on those points which bear some affinity or 
 analogy to the crime imputed, and on which therefore a good 
 character heightens the improbability of his guilt ; as, for ho- 
 nesty, on a charge of theft ; humanity, on a charge of murder, 
 and the like. But the tenderness of English practice will not 
 permit converse proof of former misconduct of a similar nature, 
 unless where such collateral evidence is necessary to show the 
 intention of the prisoner in committing the act in question ; as, on 
 aprosecution for uttering counterfeit money or forged notes, evi- 
 dence of similar utterings, or of the possession of other counter- 
 feits, is admissible, as proving the guilty knowledge of the pri- 
 soner, which is indeed one of the principal points in issue. But 
 as a general rule, evidence of bad character should be carefully 
 excluded during the trial ; though after conviction, it may often 
 be proper to institute inquiry into the former conduct and 
 character of the prisoner, in order the better to apportion the 
 punishment. No. 424, Negombo (criminal), 15 Oct. 1835. In 
 civil actions, the character of the parlies ought never to be in- 
 quired into, unless it forms the subject of the action, and so is 
 put in issue 5 as in an action for slander, or other injuries done
 
 Evidence affirmative to le proved. 109 
 
 to the plaintiff's character, it is plain that the amount of damage 
 must depend, not only on the nature of the injury, but on the 
 previous value of the character injured. As regards icilncsses, 
 their character for credit may be said to be always in issue, 
 whether in civil or criminal cases ; because it is only in pro- 
 portion to the credit given to them, that their evidence can avail 
 the party calling them. It is therefore always open to a party 
 to call witnesses to impeach the credit of those of his adversary : 
 But this can only be done by asking as to the general character 
 and credibility of the witness, and not by inquiring into parti- 
 cular acts of his life ; for a witness cannot be expected to come 
 prepared to answer particular charges, not in issue, and of 
 which he would have had no notice. And where a D. C. al- 
 lowed a suspected deed, not in question between the parties, 
 to be given in evidence, for the purpose of discrediting a no- 
 tary, who was one of the witnesses, the S.C. observed on the 
 irregularity of this piece of evidence, though it concurred with 
 the decision which the D. C. had come to on other grounds. No. 
 11,371, Colombo, 6 Jan. 1836. As, therefore, on this subject 
 of character, so on all other points, the question to be asked, in 
 deciding on the necessity or admissibility of a piece of evidence, 
 must always be ; Is the matter, to which this evidence refers, 
 really in issue, or relevant to the dispute, between the parlies ? 
 Secondly : When, as is generally the case, one party affirms 
 a thing, and the opposite party denies it, whether such affirma- 
 tive and negative be expressed on the face of the pleadings, or 
 be implied from the nature of the transaction, it is for the former 
 to prove his affirmative ; and till that is done, the latter is not 
 called on to prove his negative : And this is also in accordance 
 with a maxim of the Civil Law , that the proof is incumbent on 
 him who affirms, not on him who denies. See Voet., lib. 22, 
 lit. 3, par. 10, et sequ. But to this rule there are some few 
 exceptions or limitations. As, if one charges another with the 
 omission of his duty, he is bound to prove his charge, though it 
 involve a negative , for the law always presumes innocence, 
 and that a person has not acted illegally, till the contrary is 
 proved. And wherever the law presumes the affirmative of a 
 fact, as it does that a person is still alive, or that a child is legi-
 
 110 Evidence best, must be given. 
 
 
 
 ing to show that such person is not living, or such child not 
 legitimate, must give evidence to that effect (1). It is also laid 
 down, as incidental to this rule, that where a fact lies more pecu- 
 liarly within the knowledge of one of the parties, the burthen 
 of proof lies on that party. Acting on this principle, the S. C. 
 decided that in an action by a grain-renter for his share of the 
 crop, his claim to which was not denied, but the question was 
 as to the amount of the defendant's crop, it was for the latter 
 to show what that amount was ; for this must be a fact wilhin 
 his own knowledge, whereas it would be almost impossible for 
 the renter to prove with precision the crop of every field within 
 his rent. No. 1091, Jaffna, 2 May 1835. It must be recol- 
 lected that, where the burthen of proof lies on a defendant, and 
 he, being called on by the court to prove his case, succeeds in 
 doing so, the plaintiff must then be allowed to go into counter- 
 evidence, however satisfactorily to the D. C. the defendant's 
 case may have been proved. The parties have, in fact, merely 
 changed places. An instance occurred, in which the S. G. was 
 obliged to refer a case back for the reception of the plaintiffs 
 evidence, the D. C. having decided after hearing the defend- 
 ant's only. No. 5229, Kandy, 21 Nov. 1833. 
 
 Thirdly : Every fact, which it is proposed to establish, must 
 be proved by the best and most complete evidence that the na- 
 ture of the fact will admit of. By best evidence, is meant such 
 as leaves none of greater or superior weight unproduced : By 
 most complete evidence, must be understood all which it is in 
 the power of the party to adduce ; with this qualification, 
 however, that after the mind of the court is rationally and 
 
 (1) These instances are mentioned here, because they stand rather pro- 
 minently in English treatises, as exceptions to the general rule. But they 
 scarcely seem inconsistent with the principle, that the affirmative must be 
 proved, rather than the negative. For the death of a man is a positive fact, 
 as \vcll as his existence, and often as easily, or more easily, proved : And so, 
 the facts necessary to establish the illegitimacy of a child, whose reputed 
 parents were married, may be of an affirmative, rather than a negative cha- 
 racter. In such cases, each party may be said to assert both an affirmative 
 and a negative : For instance; a plainiff asserts that A. B. is alive and not 
 dead; the defendant asserts that A. B. is dead, and not alive, etc.
 
 ERRATUM, p. 110, 1. 
 osc the last line of p. Ill to the top of p. 110.

 
 Evidence deeds, how proved. Ill 
 
 fully satisfied with the evidence adduced on a particular point, 
 it is a mere waste of time to hear further evidence to the same 
 point (see the 28th rule of the 1st section, and infra, p. 148, as 
 to dispensing with further proof), unless counter-evidence, ad- 
 duced by the opposite party, should make a balance of the 
 weight of testimony necessary. For an example of this rule 
 in its several branches, which may be taken from one of the 
 most ordinary transactions in Ceylon : Where a deed or other 
 written instrument is to be established, it is plain that the ori- 
 ginal is the best evidence of its existence, and must therefore 
 be produced 5 unless the party seeking to establish it can show 
 that it has been lost or destroyed (provided such destruction be 
 not wilful on his part), or that it is in the hands of the opposite 
 party, who does not produce it. In such case, a counterpart, 
 or, if there be no counterpart, a copy, when proved to be a 
 correct one, becomes the best evidence of which the case is ca- 
 pable, and therefore admissible : And if there be no copy, ver- 
 bal evidence may even be given of its contents, subject of 
 course to the doubts which must necessarily be created by such 
 a mode of proof, and which must vary according to the credi- 
 bility and apparent memory of the witnesses. In proving the 
 execution of such deed again, the best and most complete evi- 
 dence is to be found in the testimony of the notary (if the in- 
 strument be notarial) the writer, who in most instruments 
 passed among natives signs in that character, and all the sub- 
 scribing witnesses, whose evidence can be obtained. And if all 
 these persons prove the execution, and their evidence be not 
 shaken, the deed may be said to be completely proved. But it 
 sometimes happens in transactions between natives, either 
 through fear of the deed being denied, or from some other 
 cause, that the neighbours are called together to hear the in- 
 strument read, and to see the parties and witnesses sign it. 
 In such case, it is usual and proper, as a matter of caution, and 
 to make the evidence complete, to summon a few of the most re- 
 spectable inhabitants to speak to the fact : But it would be use- 
 less and absurd to summon the whole village for that purpose ; 
 nor indeed would it be necessary to hear those who were in 
 - 4imto(i a marriage be proved) $ in such cases, the parly wish-
 
 112 Evidence proof of deeds. 
 
 attendance, if the court felt satisfied with the unshaken evi- 
 dence of the subscribing witnesses. 
 
 In what has been suggested above, as to the proof of written 
 instruments, it is right to notice a variance from English prac- 
 tice in this respect. Indeed it may be well to remark, gene- 
 rally, that though the English rules of evidence are now the law 
 of Ceylon, the application of them must vary in some instances, 
 according as the state of society and oilier circumstances vary 
 from those of the mother country. The principles, or leading 
 rules, remain unchanged 5 but they would not remain un- 
 changed, they would be perverted and bent from their true 
 direction, by an attempt rigidly and inflexibly to apply them to 
 a stale of things, differing from that for which they were ori- 
 ginally conceited, without corresponding modifications. In 
 England, Ihen, an instrument is considered sufficiently proved 
 by the evidence of one of several subscribing witnesses, unless 
 any doubt or suspicion be thrown upon its validity j but in Cey- 
 lon, where forgery is so fearfully common, and false testimony 
 so easily obtained, it would be by no means safe to permit 
 deeds to pass, thus imperfectly proved. It is true that if one 
 false witness be produced to support a forgery, it may not be 
 much more difficult to procure several for the same object. But 
 it is in the contradictions, which are almost certain to appear on 
 the judicious cross-examination of several witnesses to a fabrica- 
 tion, that the detection of the fraud, and the protection of the 
 party attempted to be defrauded, mainly consist. It is incum- 
 bent therefore on the D. C., to see that all the subscribing wit- 
 nesses to a deed, and a fortiori the writer, be called to prove 
 the execution, or that a most satisfactory reason be given for 
 the absence of any of them ; and this, though the instrument 
 fce notarial : For though it is to be hoped that the greater num. 
 her of persons appointed to that office are honest and honour- 
 able men, still too many instances have occurred to the con- 
 trary, to make it safe to trust solely to their integrity. If any 
 such writer or subscribing witness be alleged to be dead, or to- 
 have become blind, or to be out of the jurisdiction, such fact 
 should be salisfaclorily shewn, and his signature, as far as that 
 may be practicable, be proved. And where the evidence has
 
 Evidence of handwriting. 113 
 
 been defective in these particulars, as where the writer of the 
 deed stated that he did not know w hether one of the subscribing 
 witnesses were alive or not, the S. C. referred the case back for 
 further inquiry. No. 4826, Chilaw and Putlam, 15 Nov. 1834. 
 And in another case, where only one out of four subscribing 
 witnesses was called, the S. C. considered the proof insufficient. 
 No. 13.808, Galle, 21 March 1834. This doctrine is by no 
 means to be considered as imputing to the English practice a 
 deviation from the rule, of requiring the best and most complete 
 evidence : It is merely an application of the same rule to dif- 
 ferent circumstances : That which is held to be full and com- 
 plete evidence on this subject in England, cannot be safely so 
 considered in Ceylon. 
 
 It is no uncommon practice in Ceylon, especially in the Kan- 
 dyan districts, to insert in deeds the names of persons not pre- 
 sent, as witnesses to them 5 and this may often be done without 
 any fraudulent intention. But it is impossible that the insertion 
 of such names can really give any validity to a deed ; it would 
 make the attestation of witnesses absolutely nugatory. No. 186, 
 Maturatte, 24 Oct. 1833. 
 
 If there be no subscribing witness, the execution of a deed, 
 supposing witnesses are not absolutely essential to its validity, 
 may be proved by a person present at such execution, though 
 not called on to subscribe, or by proving the handwriting of the 
 parly to the instrument, as far as that is practicable. Persons 
 indeed, conversant with native writing, appear sometimes to 
 speak as positively to the genuineness of signatures, as is usually 
 done with respect to European writing. The means of know- 
 ledge, which enable a witness to take upon himself to speak to 
 another's handwriting, form a very fit subject of inquiry on 
 cross-examination, or by the court, which must of course decide 
 according to the extent and nature of the opportunities which 
 the witness may have had. This knowledge may have been, 
 acquired, either by having seen the person in question write on 
 former occasions (1), or by having received letters from him, 
 
 (1) Provided he have observed (he character of what has been so written,' 
 o as to enable him to recognise that character in the writing now produced. 
 It would seem scarcely necessary to say that this must be implied. But the 
 
 8
 
 Hi F.videncc admissions, elc. 
 
 or by having had other occasions to become acquainted with his 
 writing. The bare production of documents, unsupported by 
 proof, or by the admission of the opposite party, amounts to 
 nothing. No. 747, Ratnapoora, 20 Jan. 1836 : L. B. 19 May 
 1835. 
 
 The admission of a party may be considered, generally speak- 
 ing, as the best evidence against himself, whether made before 
 or after the commencement of the action, whether in writing or 
 verbally, and whether made by the party himself, or his agent 
 or attorney, or by a person who is proved to have a joint- 
 interest with him in the case. But in the application of the 
 latter part of this rule, courts must be on their guard against a 
 species of collusion, which is not unfrequently attempted in Cey- 
 lon, of setting up a fictitious party, by whose acts or admissions, 
 it is hoped, the person really interested may be bound. Thus, 
 in an action on an otty bond against three defendants, two of 
 whom admitted the bond, but the third denied it, the D. C. gave 
 judgment for the plaintiff on those admissions. But the S. C. 
 referred the case back for regular proof of the otty bond, ob- 
 serving that, without such proof, the third defendant, or any 
 other bona fide purchaser, might be defeated by collusion be- 
 tween the oily holder and the Isl and 2d defendants. No. 86, 
 Walligammo, 8 July 1834. In anoth'er case, the plaintiff sued 
 two defendants for usurpation of her land, claimed by her in 
 right of inheritance and long possession, by her ancestors and 
 herself, of which she gave proof. For the defendants, evidence 
 was given of a sale by Ihc 2d defendant to the 1st; supported 
 by certain rent-vouchers, \\hieh threw an air of greater proba- 
 biliiy over Ihe defence, but which still left untouched the real 
 quoiion, whether Hie second defendant had any right to dispose 
 of the properly. The D. Judge saw at once this material defect 
 in the defence, attempted to he established by Ihc collusion of 
 (he defendants, and gave judgment for the plaintiff in terms 
 
 general terms, in which ihc rule is usually laid down, might induce a belief 
 that iho mere seeing another in the act of writing would give a knowledge 
 of the characters; Whereas, without an inspection of what is so written, a 
 person might be in the daily habit of seeing another write for years, without 
 gaining any acquaintance with bis Land.
 
 Evidence former decree. 115 
 
 which left nothing for the S. C,. to add in affirmation of it. No. 
 11,371, Colombo, G Jan. 1836. See also No. 2461, Batticaloa, 
 infra, title Fraud. 
 
 On the same principle that admissions are evidence against 
 the parties making them in a civil suit, confessions of criminals 
 are admissible against them, and may rank among the best and 
 strongest evidence, provided they have been given voluntarily, 
 and not by means of promises, threats, or ill-treatment. (Vide 
 infra, title " Examination of Parties.") And even where the 
 confession itself is inadmissible, from having been obtained by 
 undue means, any facts, such as finding stolen property in a 
 concealed place, may still be received in evidence, though dis- 
 covered by means of the confession which is itself rejected, as 
 improperly obtained. 
 
 A former decree of a competent tribunal ranks as the best 
 proof of the matter thereby decided ; for if this were otherwise, 
 the decree would not be a decision, and litigation would be end- 
 less. But it must always be borne in mind that such decree or 
 judgment, in order to be conclusive, must have been pronounced 
 directly on the point now in issue, and between the same par- 
 ties, or between parlies whose interests were identical with 
 those now litigating. These two requisites will be considered 
 more fully under title " Judgment." But it may be well to 
 mention here a mistake which has more than once occurred, 
 with respect to the weight which ought to be given in a civil 
 suit to a verdict of acquittal on a criminal prosecution, relating 
 to the same object. It often happens that the genuineness of a 
 deed produced in a civil suit is doubted, and the party producing 
 it is committed to take his trial for the forgery of it. It has 
 been supposed that if such party be acquitted, the deed must 
 necessarily be received as genuine. This is not so j the verdict 
 of acquittal is no proof of the validity of the instrument, which 
 must still be proved in the usual manner. No. 691, Mada- 
 walatenne, 30 Oct. 1833. The proof may have been insufficient 
 to establish the forgery, or to fix that offence on the party ac- 
 cused , but it by no means follows that the instrument must be 
 valid, any more than an acquittal of murder would be proof that 
 the person alleged to have been murdered was still alive. Oa 
 
 8,
 
 116 Evidence Hearsay. 
 
 the same principle, an acquittal of perjury is no proof of the 
 truth of the statement. No. 412, Maturatte, 22 Nov. 1833. 
 " A conviction is conclusive evidence of the fact charged, if it 
 afterwards become a question in a court of civil jurisdiction ; 
 but an acquittal is no proof of the reverse, because it does not, 
 like a conviction, ascertain facts." Buller's Nisi Prius, 245. 
 
 Fourthly : Another general rule, which must be familiar to 
 every one at all conversant with the proceedings of British 
 courts of justice, is, that hearsay is not admissible as evidence. 
 This indeed is but a corollary of the proceeding rule, if the ori- 
 ginal speaker be living: because a repetition of what he said is 
 not the best evidence of the fact, intended to be proved by his 
 statement. Another reason given for the rule is, that the state- 
 ment, in all probability, was not originally made upon oath. 
 And a third reason is, that the opposite party would have had 
 no opportunity of cross-examining the real deponent. 
 
 To this rule, there are some exceptions or limitations: 
 
 1st. Where the hearsay forms part of the transaction, which 
 is the subject of inquiry; that is, where it is necessary to inquire 
 into the nature of a particular act, or into the intention of the 
 person who did the act, proof of what that person said at the 
 time of doing it is admissible, for the purpose of showing its 
 true character. Such evidence, however, is not to be received 
 as proof of the act having been done ; but only, that fact being 
 proved, as explanatory of the transaction. 
 
 2dly. On prosecutions for rape, or attempted rape, it is 
 always matter of inquiry, whether the prosecutrix made a com- 
 plaint to any one, as speedily as possible after the injury com- 
 mitted. This is in close analogy to the first exception , for the 
 immediate complaint almost forms part of the transaction under 
 examination. Such disclosure, however, is admitted, not to 
 prove the truth of her statement of the principal fact, which it 
 ought not to be allowed to do ; but as corroborative evidence of 
 her repugnance and resistance : For in the absence of such im- 
 mediate complaint, where the means of making it present them- 
 selves, a strong inference arises of consent. 
 
 3dly. The testimony of a deceased witness, given on oath in 
 it former action, provided the parlies and the point in issue be
 
 Evidence Hearsay. 117 
 
 the same : But if a witness, examined in a former action, be 
 alive, his evidence should again be given viva voce. (Vide 
 infra, under this head, Examination of Witnesses, 146,7.) 
 
 4lhly. The deposition of a witness on a criminal prosecution, 
 taken upon oath before the D. C., in the presence of the party 
 accused, may be read in evidence on the trial, if it be proved 
 that the witness is dead, or unable to travel, or kept out of the 
 way by the accused. 
 
 5thly. The dying declarations of a person are admissible, on 
 a prosecution against the party charged with occasioning the 
 death, provided it be proved that the deponent was conscious of 
 his approaching death; a consciousness, which is considered to 
 operate as powerfully in the elicitation of truth, as the obliga- 
 tion of an oath. 
 
 *! Cthly. Declarations of persons deceased are admissible to prove 
 relationship, where that fact cannot be satisfactorily established 
 by living witnesses, or other existing proofs. How far such testi- 
 mony can be relied on in Ceylon, where veracity is not a pre- 
 vailing virtue, nor accuracy of recollection a very general en- 
 dowment, musj be left to the discretion of the courts, accord- 
 ing to the circumstances of each case. When offered in evi- 
 dence to prove the time of a person's birth, such declarations 
 must necessarily be received with the greatest caution, on ac- 
 count of the extremely vague ideas of the natives as to the 
 lapse of time, even when called to speak, of their own personal 
 knowledge, to a transaction of former date ; unless the period 
 be fixed in their memory by sdme public event, with which the 
 fact in question may be associated in their minds. On ques- 
 tions of adoption among natives, however, such evidence is 
 often found to be very material , and these declarations are 
 usually accompanied by acts, which go far towards explaining 
 the meaning of the expressions used. Where the declaration 
 of the deceased appears to have been made obviously against his 
 own interest, such declaration or admission may, generally 
 Speaking, be received in evidence on any subject. 
 
 7thly. General reports (1), which are a species of hearsay, 
 
 (1) This expression is used here, in preference to "common reputation,"
 
 118 Evidence application of rules. 
 
 are sometimes received in evidence, to show the impression on 
 the public mind, as to a particular fact: As, to prove the exist- 
 ence of a custom, or the exercise of a right, for a length of lime. 
 But this must be understood as confined to public matters, and 
 ought not to be admitted as regards private rights. And even 
 as regards public rights, these reports should be received with 
 the same caution, as was recommended with respect to the de- 
 clarations of deceased persons, and for the same reasons. Ge- 
 neral reports are also sometimes admitted, to show the public 
 impression on questions of opinion : And in one class of cases, 
 namely, where defamation is the injury complained of, theS.C. 
 of Ceylon has always received evidence of common reports, 
 touching the character of the complainant, in extenuation of 
 the slander, etc., whether in civil actions or criminal prosecu- 
 tions. See title Libel. 
 
 Sthly. After what has been said (p. 114) on the subject of ad- 
 missions by a party to a suit, or by persons having a joint inter- 
 est with such party, it is scarcely necessary, unless to avoid the 
 possibility of misconception, to observe that such admissions 
 do not come under the description of hearsay, and may be re- 
 ceived in evidence against the party making them, but not in 
 his favour. 
 
 By these four rules, well imderstood and correctly applied, 
 most questions of evidence, arising in the ordinary course of 
 judicial proceedings, may be governed. To have entered \\ itli 
 greater particularity into the respective subjects of them, 
 would have exceeded the limits of this very brief summary, 
 without perhaps producing any corresponding advantage to 
 those for whose use it is designed. For it may be questioned 
 whether in Ceylon, where the object of all the courts is speedy 
 and substantial justice, obtained by the simplest and easiest 
 means, rather than a rigid adherence to form and precedent, ft 
 be not preferable that the D. Courts should have recourse, in 
 all cases, to first principles, truslfng for the true application of 
 them to plain common sense, and to rectification, when neces- 
 sary, by the S.C., than that they should, on every occasion, he 
 
 which is the term usually applied in the law books, but which might mislead 
 the general reader, by its somewhat equivocal meaning.
 
 Evidenceyositive and presumptive. 119 
 
 searching for "a case in point," on the applicability of which 
 to the case pending it would still, in the generality of instances, 
 require a legal head to decide ; since it is rare that any two 
 cases exactly correspond, in all their features and bearings. 
 
 There is one view of the subject of evidence which, though 
 it does not present itself in the shape of a general rule, yet 
 ought not to be passed unnoticed ; and which indeed should be 
 always kept sight of, in the application of the principles above 
 sketched out. This is, the distinction between positive evidence, 
 and presumptiw, or, as it is sometimes called, circumstantial evi- 
 dence. Positive proof is where a witness speaks to a fact of his 
 own knowledge : As, if he deposes tojhaving seen rent paid for a 
 certain period, or to having seen a person take certain property. 
 Presumptive or circumstantial proof is where the fact is not 
 proved by direct testimony, but is to be inferred from circum- 
 stances, which could not, or in all probability would not, have 
 existed, if the fact itself had not taken place : As if, in an ac- 
 tion for rent, the tenant produce a receipt for rent, not for the 
 period in dispute, but for one subsequently expired ; or if, on a 
 prosecution for theft, or for receiving stolen properly, the pro- 
 secutor prove that the properly was found concealed in the pri- 
 soner's house : In the first case, a presumption arises that the 
 rent in question has been paid, because otherwise, it is very 
 improbable that the landlord would have granted a receipt for 
 rent subsequently become due ; in the second case, a presump- 
 tion arises that the prisoner has stolen or received the property, 
 from the apparent improbability that, otherwise, it should have 
 been found concealed in his house. But such presumptive or 
 circumstantial evidence is but a substitute for direct proof, and 
 should never be relied on by itself, if positive evidence of the 
 fact can be obtained : And this, on the principle of the third 
 rule above given -, for if direct proof exist, presumptive evi- 
 dence is not the best, though it may very properly be adduced 
 in support and corroboralion of the witnesses to positive facts. 
 And presumptive evidence may always be contradicted or neu- 
 tralized by contrary proof. Thus, in the cases just put-, the 
 landlord may show by evidence some reason why the later rent 
 was accepted, and a receipt given for it, though the former
 
 120 Evidence presumptions of law. 
 
 rent still remained unpaid ; and so the prisoner may be able sa- 
 tisfactorily to prove tbat the property was placed in his house, 
 v il limit any guilty connivance on his part. As regards the re- 
 lative value of these two different kinds of evidence, there can 
 be no doubt that positive proof of a fact is more satisfactory 
 than circumstantial evidence, provided the witnesses to the fact 
 itself can safely be relied on. On the other hand, a train of 
 circumstances will sometimes produce a degree of conviction of 
 a particular fact, almost as strong as if the fact had been sworn 
 to by eye-witnesses ; and with this superiority in point of value, 
 that such a chain of circumstances could scarcely be put toge- 
 ther, by any exertion of ingenious wickedness ; whereas nothing 
 is easier, or it is to be feared more common in Ceylon, than for 
 two or more persons to combine together to swear to a parti- 
 cular fact,' though such combination, happily, can rarely stand 
 the test of judicious cross-examination. 
 
 On some subjects, the law is said to raise presumptions ; that 
 is, to draw certain inferences from particular circumstances. 
 As that a child, born during marriage, is legitimate till the ille- 
 gitimacy is proved, sup. 109, 10 ; so, that the person in pos- 
 session of properly is the owner, till the contrary is proved 5 
 So, in the instance just given, that where a receipt for rent is 
 produced, the former rents have been paid, unless the con- 
 trary be shewn : So, that a bond has been satisfied, after an 
 unexplained forbearance by the obligee for many years, which 
 by the common law of England was fixed at 20. The whole 
 law of prescription, indeed, is founded on these presumptions 
 in favour of long possession of land, or of satisfaction of debts, 
 or compensation for injuries, after certain periods of silence or 
 acquiescence on the part of creditors or claimants. And the 
 laws on that subject, whether the English statute of limitations, 
 or our own regns. and ordnce. of prescription, only reduce this 
 principle to practical cerlainty, by defining the periods, at the 
 end of which such presumptions shall respectively arise, in each 
 class of cases. Vide infra, til. Prescription. But there is one 
 presumption which our law always raises, not from circum- 
 stances, but from principles of humanity, or rather indeed of
 
 Evidence Witnesses, number of. 121 
 
 justice ^ that every man shall be presumed innocent, till he is 
 proved to be guilty. 
 
 Under this title of "Evidence," may most conveniently be 
 classed such general observations on the subject of witnesses, as 
 appear necessary to complete this outline. And these will be 
 given, as shortly as may be consistent with intelligibility, un- 
 der the heads mentioned in the summary placed at the beginning 
 of this title of E vidence. 
 
 As regards the number of witnesses necessary : The second 
 clause of the ordinance, No. 6 of 1834, following the Charter of 
 1801 as regards criminal matters, declares and enacts that the 
 testimony of one credible witness, in any case civil or criminal, 
 may be deemed sufficient evidence before any court, of any fact 
 deposed to by such witness as of his own knowledge ; except 
 where the evidence of two or more w itnesses is required by 
 law, that is, by the law of England generally introduced by 
 the first section. In treason, therefore, the evidence of two 
 witnesses would be necessary, except in treasons relating to the 
 coin, as to which one witness has been made sufficient by sta- 
 tute. As regards perjury, the law of England not being quite 
 decided, and the charter of 1801 having contained a clause on 
 the subject, it was thought proper to provide for it in express 
 terms, which is accordingly done by the third clause, to which 
 the reader is referred. That clause also provides that no local 
 laws, requiring a particular number of attesting witnesses, or a 
 particular mode of executing instruments, nor any rule for re- 
 gulating the proceedings of the D. C., shall be affected by the 
 ordce. And we have seen that where there are several sub- 
 scribing witnesses to an instrument, they ought all to prove 
 their signatures, or their absence should be accounted for, not 
 by virtue of any express law, but for the reasons assigned above 
 p. Ill, 2. With these exceptions, then, one witness, if full cre- 
 dit be given to him, is sufficient in any case, civil or criminal. 
 The observations of Mr. Phillips on this point are well worthy 
 of perusal, for the clear common sense, and conclusive reason- 
 ing, which they contain. " In deciding upon the effect of evi- 
 dence, the question is, not by how many witnesses a fact may 
 have been proved-, but whether it has been proved satis-
 
 Evidence Tidinesses, Ks1s of. 
 
 factorily, and so as to convince the understanding. The num- 
 ber of witnesses is not more conclusive on matters of proof, 
 than a number of arguments on a subject of reasoning. If the 
 law were in every case to require peremptorily two witnesses, 
 this would by no means ensure the discovery of truth 5 but it 
 would infallibly obstruct its discovery, whenever a fact is 
 known only to a single witness ; and thus secret crimes might 
 escape with impunity (1). Abstractedly speaking, there cannot 
 be any reason for suspecting the evidence of a witness, because 
 he stands alone. The evidence of a single witness may be so 
 clear, so full, so impartial, so free from all suspicion and bias, 
 as to produce in every mind, even in the most scrupulous, the 
 strongest and deepest conviction. On the other hand, witness 
 may crowd after witness, all asserting the same facts, yet none 
 be worthy of credit. In short, it is the character of witnesses, 
 and the character of their evidence, that ought to prevail, not 
 their number." Phillips, part 1, chap. 7, sect. 1. To these 
 excellent remarks, however, it may be permitted to add one 
 observation, which indeed is little more than a repetition of 
 what was said above, p. 112, but which the habits of the na- 
 tives in Ceylon require should he constantly borne in mind, 
 whether with reference to proof of deeds, or of any other facts ; 
 namely, that where it appears that more than one witness 
 might have been called to testify to a fact, the court would na- 
 turally inquire why only one was produced, and would not be 
 satisfied in such case with the evidence of the single witness, 
 unless it appeared above all suspicion, uncontradicted, and in 
 no respect requiring confirmation. 
 
 Lists of witnesses, in civil cases, are directed by the 21st rule 
 of sect. 1, to be filed by the respective parties within eight days 
 after filing the documentary evidence. If the plaintiff fail so to 
 do, the defendant may move to have the case dismissed, unless 
 cause be shown to Ihe contrary. If the defendant fail, the 
 plaintiff may move to proceed ex parte, unless cause be shown. 
 But these steps can only be taken by the respective parties, after 
 due notice to the other side, as directed by the rule. And 
 
 (1) And in civil matters, it may be added, just debts would often be eva- 
 ded, and personal injuries remain unredressed.
 
 Evidence Witnesses, lists of. 123 
 
 where actions have been dismissed by D. C. on this ground, 
 without the previous rule to show cause, the S. C., on appeal, 
 has referred the cases hack for further proceeding , observing 
 that, under the 21st rule, the plaintiff must have an opportunity 
 of showing cause against the rule for dismissal on the day ap- 
 pointed, according to the form No. 15, on which day he would 
 either come prepared with his list, or would show cause for his 
 omission to satisfy the D. C. 5 or, in default of either of those 
 courses, the action would then be dismissed. No. 400, Caltura, 
 27 May 1835 ; No. 87, Jaffna, 2 May 1835. In one case, the 
 plaintiff moved that the case might proceed ex parte, because 
 the defendant, who was ill, had sent his list of witnesses to the 
 court by his daughter, instead of presenting it himself, or by a 
 proctor. The D. C. rejected this motion, and the S. C. affirmed 
 the decision , observing that there was nothing in the rule, or 
 in the nature of the document, which required that a party 
 should be either present or represented in court at the lime of 
 its delivery ; that the list might be sent by a servant, or even 
 by the post, provided enough appeared on the face of it, to in- 
 form the officer of the court, in what case and on whose behalf it 
 was sent; that if the list did not arrive, or turned out to be 
 fictitious, the consequences could be injurious only to the party 
 running the risk, or practising Ihe deception, since he would 
 only be allowed to summon the witnesses named in the list ; 
 and that even if no list had been produced, the illness of the 
 defendant, if believed, would have been a sufficient ground for 
 granting a moderate extension of time. No. 1195, Callura, 
 9 May 1835. A question was referred to the S. C., whether a 
 plaintiff might be allowed to amend his list of witnesses, by 
 erasing two names, and substituting those of two persons, whom, 
 it was evident to the D. C., the plaintiff had intended to sum- 
 mon. The defendant opposed the motion. The answer re- 
 turned was, that as the D. Judge expressed himself satisfied as 
 to the intention, there could be no objection to the mistake 
 being rectified, provided no injustice would be sustained by the 
 defendant in consequence of the substitution, which must de- 
 pend on the stage in which the case w r as; and that if sufficient 
 notice of the amendment were given to the defendant before the
 
 124 Evidence Witnesses, lists in criminal cases. 
 
 hearing, it would be difficult to understand on what ground he 
 could resist the application. L. B. 19, 21 Jan. 1836. 
 
 As regards cases in the criminal jurisdiction of D. Courts, no 
 time is prescribed by the rules of practice for filing lists of wit- 
 nesses, on the part of the prosecution : And to a question pro- 
 posed by aD. Judge, whether the lime prescribed in civil suits, 
 or what other period, ought to be adhered to, the S. C. directed 
 an answer to be returned, That it would be scarcely possible to 
 lay down a fixed and invariable rule, as it was a point which 
 must often be left to the discretion of the court , that the names 
 of the witnesses for the prosecution ought, in most instances, to 
 be given in when the accusation is first made, because, gene- 
 rally speaking, the prosecutor must know, when he goes to 
 make his complaint, who are the persons who saw the injury 
 committed ; that frequent exceptions must, however, present 
 themselves to this general rule, either from the nature of the 
 injury itself, or from collateral facts becoming material, which 
 the prosecutor could not be supposed acquainted with, at the 
 time of making his complaint : That with respect to the wit- 
 nesses for the defence, if the accused intended entering into it 
 at length before the D. C., the lime allowed in civil cases might 
 w ilh propriety be adopted ; but that if he reserved his defence 
 till his trial before the S. C., the time of his commitment was 
 the proper moment for giving in his list of witnesses, according 
 to the supplementary rule of 5 April 1834. L. B. 17, 21 Sept. 
 1835. This rule directs, for the reasons there given, that no 
 w itness shall be summoned on the part of any defendant in a 
 criminal prosecution, whose name is not given in to the D. C., 
 at the time of his commitment or being held to bail, unless by 
 order of the S. C., on motion by the proctor for prisoners: And 
 in order that he may have full opportunity to summon all wit- 
 nesses really necessary, he is to be allowed till the following 
 day, if he require it, to give in- his list. The S. C. has decided 
 that a complainant is not bound, and that it might often be im- 
 proper for him, to give up the name of his informant, on his 
 making his complaint in the first instance ; more especially as 
 this must be disclosed, when the list of witnesses for the prose- 
 cution is filed. No. 966 (criminal), Colombo, 12 Aug. 1835.
 
 Evidence Witnesses, how summoned. 125 
 
 A question of some importance was submitted to the S. C. by 
 the D. Judge of Colombo, No. 1, viz., whether a witness could 
 ever be examined on the part of the prosecution, whose name 
 was not on the list, and who might have been in court during 
 the examination of the other witnesses : To this question the 
 following answer was returned : That the course adopted by the 
 S. C., in deciding on the admissibility of a witness under the 
 circumstances proposed, was to consider whether ths necessity 
 of such additional evidence might have been foreseen by the 
 party wishing to adduce it, and whether that parly therefore 
 ought to have summoned the witness in the regular manner ; 
 that if those two questions were answered in the affirmative, 
 the evidence of such witness ought not to be admitted, because 
 otherwise, the rules requiring that lists of witnesses should be 
 furnished, and that no witness should be allowed to hear the 
 evidence of the others, would become nugatory ; that on the 
 other hand, it must sometimes happen in the progress of a case, 
 that the evidence of a person becomes material, from the dis- 
 closure of some circumstance which could not have been antici- 
 pated, or for the purpose of contradicting evidence adduced by 
 the opposite party, or for other reasons ; that in such case, 
 where the party could not reasonably be expected to come pre- 
 pared with such evidence, it would be an unjust and too rigorous 
 construction of the rule of restriction to exclude such testi- 
 mony, and would indeed deprive the prosecutor in many in- 
 stances of his right to adduce evidence in contradiction of the 
 defence set up, since it was impossible for him to foresee with 
 certainty what line of defencelnight be adopted ; and that it 
 might often operate with equal hardship on a defendant, where 
 new evidence, in addition to that given on the preliminar} r in- 
 vestigation, was adduced on the trial. L. B. 18, 22 June 1835. 
 It will be observed that the mode recommended by this letter, 
 of deciding whether evidence, offered without adherence to the 
 general rule, be admissible, is the same as is prescribed by the 
 27th rule of sect. 1, as regards civil cases. 
 
 The mode of summoning witnesses is prescribed by the 23d 
 rule of sect. 1 : And by a supplementary rule of 3 Dec. 1834, all 
 subpoenas and process, issuing from the D.C, of Colombo, No.l,
 
 126 Evidence Wilnesse*, subpoena, etc. 
 
 must be delivered into the fiscal's office six days (if the service 
 be within the gravels), and ten days (if without), before the 
 day of appearance. This rule was made, in consequence of 
 representations of the inconvenience occasioned by citations 
 being delivered at the fiscal's office, without allowing sufficient 
 time for the service and return. If the same necessity had ap- 
 peared to exist in other districts, a similar rule, it is to be pre- 
 sumed, would have been, or would now be, issued. The 
 penalty of 5/. for non-attendance in obedience to the subpoena, 
 may either be levied in whole or in part, as the D. Judge shall 
 think fit; and any witness, committed for non-payment of the 
 fine, may be discharged by the D. Judge's order, as soon as he 
 considers that the contempt has been sufficiently expiated. 
 Circular Letter to D. Judges, 21 Feb. 1834. In the D. C. of 
 Colombo, No. 1, when the hearing of a case is postponed, the 
 witnesses, in order to avoid delay and ensure their attendance 
 on the adjournment day, are served with fresh subpoenas for 
 lhat day, before leaving the court. Supp. Rule, 15 April 1835. 
 This also is a rule, which would no doubt be extended to other 
 districts, if necessity or convenience required it. The question 
 was submitted to the S. C. by a D. Judge, whether the 23d rule 
 did not make subpoenas absolutely necessary , and whether it 
 would not be irregular to admit the evidence of a witness, who 
 had not been subpoenaed : To which an answ er was returned, 
 That there was nothing in the 23d rule, making it obligatory on 
 a parly to summon his witnesses by subpoenas, nor was it ever 
 intended to impose thai nccessily upon him 5 that if he did 
 avail himself of the process of ihe court, he must use it accord- 
 ing to the form prescribed, and on payment of the necessary 
 >mns for stamps ; but lhat if he chose to trust to his own powers 
 of persuasion to obtain Ihe altendance of witnesses., he was per- 
 fectly al liberty to do so, provided their names had been in- 
 serted in the list delivered to the opposite party : But that a wit- 
 ness was not liable to an attachment for non-attendance, unless 
 he had been personally served with a subpoena. L. B. 9, 13 June 
 1835 : Id. 8, 25 Oct. 1834. So, with respect to the production 
 of documents, it is unnecessary, as regards the admissibility of 
 them as evidence, to inquire whether the production is voluntary
 
 Evidence [fitnesses; no exemptions. 127 
 
 on the part of the witness, or in obedience to the order of the 
 court : But the more regular course is to take out a subpcena 
 duces tecum ; and if a party omit to do so, he cannot insist on 
 the production, whether the object be records of a court, or 
 any other documents. L. B. 19 Nov. 1833. As to the mode of 
 compelling the production of account-books, in the possession 
 of the opposite party, and of referring to them when produced, 
 the S. C. has observed, That the usual course was, for the party 
 requiring them, to give notice to the other side to produce 
 them; that if they were not produced, secondary evidence 
 would be admitted of their contents, and the court would be 
 inclined to lean against the party refusing to produce them, or, 
 if they were absolutely necessary, might insist on their pro- 
 duction; that when they were produced, the reference to them 
 ought to be under certain restrictions, if required; that a mer- 
 chant might have good reasons for not wishing his books to 
 undergo general inspection ; and therefore it was but reason- 
 able that the reference to them should be confined to the parti- 
 cular points in contest, and should take place in court, if so re- 
 quired, and in the presence of the owner. L. B. 25, 26 Sept. 
 1835. Where a document is not produced by the adverse 
 party, in obedience to the order of court, a copy may be given 
 in evidence ; and where the party could have no reason for 
 supposing that the original would be withheld, it is no objection 
 to the production of the copy, that it was not filed with the 
 other documents ; for it is not till the original is declared not 
 to be forthcoming, that the copy becomes admissible at all. 
 L. B. 5, 6 Oct. 1835, on case No. 4099, Colombo South, referred 
 to supra, p. 82. , 
 
 From this duty of giving evidence, one of the most sacred 
 which a member of society can be called upon to perform, no 
 class of persons is exempted. Attempts have however been 
 made in Ceylon, at different times, to set up a claim of exemp- 
 tion on the part of two descriptions of persons, Moorish 
 females, and Buddhist priests. The ground on which the pri- 
 vilege has been claimed on the part of the former, is the repug- 
 nance which females of that class feel to appearing at all in 
 public, and the disgrace supposed at one time to attach to such
 
 128 f-'ridence Witnesses; no exemptions. 
 
 public appearance, which, it is even said, is contrary to the 
 Mahomedan religion. The courts, however, have never felt 
 themselves at liberty to yield to these reasons, and the privilege 
 has never been recognized. In civil cases, Moorish women 
 have sometimes, it is believed, been examined at their own 
 homes; but this must or ought to have been by consent of the 
 opposite party : And in criminal cases, such a course, even with 
 consent, could scarcely be had recourse to, consistently with 
 our mode of trial. As regards Buddhist priests, the claim of 
 exemption is founded upon an alleged tenet of their religion, 
 which prohibits a priest from giving evidence, if its effect may 
 be to subject others to punishment. This therefore is confined 
 to criminal cases; and though scarcely a criminal session passes, 
 without one or more priesls giving evidence against prisoners 
 without objection, still the claim has been made more than once 
 and overruled. But in 1835, the question w r as raised in the 
 D. C. of Amblangodde, and brought to a deliberate decision in 
 the S. C., by a priest who refused to give evidence on a prose- 
 cution for theft, and who persisted in his refusal, after having 
 been warned by the D. Judge of the necessary consequences of 
 his pertinacity. The D. C. at length imposed a fine upon him 
 of 6f., from which conviction the priest appealed to the S. C., 
 and argued before the three Judges in support of the right of 
 exemption claimed, at considerable length, and under an evi- 
 dently honest persuasion that he was doing his duty; and sup- 
 porting his arguments by some curious allegorical extracts from 
 Buddhist lore, to show that, even if his conduct had been con- 
 trary to the municipal or temporal law of Ceylon, he, as a priest, 
 was not amenable to punishment. He admitted, however, in 
 the course of his address, that he should not feel the same 
 scruples in giving exidence, if the punishment consequent on a 
 conviction would be moderate, or, as he himself exemplified 
 it, would not exceed a " a few lashes." The judgment of the 
 court, as pronounced by the Chief Justice, affirming the convic- 
 tion of the D.C., but reducing the fine to I/., was in substance as 
 follows : "The S. C. has given the fullest and gravest attention 
 to this case, and to the arguments which the defendant has now 
 adduced, in vindication of his refusal to give evidence. We are;
 
 Evidence Witnesses; no exemptions. 129 
 
 by no means disposed, even if we should be justified in so doing, 
 to treat with levity or disrespect the parables or allegories, taken 
 from books which the defendant holds sacred, by which he has 
 endeavoured to justify himself. There is, however, one doc- 
 trine, which would seem to be inculcated by some of the pas- 
 sages quoted by the defendant as authorities, which must not 
 be allowed to pass unnoticed; that is, that priests are entitled, 
 by virtue of their office, to forgiveness for offences which they 
 may commit. There is no such privileged class in this island. 
 All persons, whatever may be their station, rank, or vocation, 
 are responsible for their acts, and are alike subject to punish- 
 ment, if they violate the laws. With respect to the particular 
 offence, of which the defendant has been convicted, that of a 
 contempt of the D. C. by refusing to give evidence, this court is 
 decidedly and unanimously of opinion, that no religious scruples, 
 however sincerely and conscientiously entertained, can be re- 
 ceived as a justification of that refusal. This opinion is founded 
 on principles of paramount necessity; and, if it were neces- 
 sary to have recourse to weaker grounds, it might be justified 
 by the constant practice of Buddhist priests giving evidence in 
 criminal cases, without any scruple or hesitation on their own 
 parts, and unmarked by any act of degradation or reprobation 
 for so acting, on the part of their religious superiors. And the 
 vague manner, in which the defendant has attempted to define 
 the degree of latitude to be allowed in criminal cases, " to the 
 extent of a few lashes," furnishes one of the strongest argu- 
 ments, against admitting the right of exemption at all. For every 
 priest would be governed in this respect, by the degree of ten- 
 derness he might feel. It w r ould therefore become a mere 
 exercise of arbitrary discretion by the priest, even supposing he 
 could be certain of the extent of punishment, which his evi- 
 dence might occasion. A speech of His Excellency the Governor, 
 publicly delivered at Kandy on 13 Feb. last, has been referred 
 to, as sanctioning the claim to exemption from giving evidence, 
 which the defendant makes on the part of the priesthood. This 
 court is bound to treat with the utmost deference and respect 
 whatever comes from so high an authority; though, if the doo 
 trine inculcated, even from that quarter, were such as could 
 
 9
 
 130 Evidence // Unites; no exemptions. 
 
 not be supported in point of law, a court of justice would be 
 equally bound to declare its dissent from it. On reference, 
 however, to the address of His Excellency which has been 
 cited, it appears that the inference, to be drawn from that do- 
 rument, lias a contrary tendency to that which the defendant 
 \\ouldattributetoit. The letter of the chief priests, therein 
 recited, shows that they considered the conduct of the priests, 
 who communicated treasonable discussions to government, to 
 have been highly praiseworthy. It is true that, from the sub- 
 sequent part of the Governor's address, it would seem to have 
 been considered, " That according to the doctrines of the Budd- 
 hist religion, the sacerdotal functions of those priests would 
 have been superseded," if the persons accused had been con- 
 ucted. This would make the deprivation of the priest depend, 
 not on his giving evidence against a fellow-creature, but on that 
 evidence being believed, and tending to conviction. But how- 
 ever that maybe, no court can allow a person, whether priest 
 or layman, to excuse himself from one of the most sacred duties 
 of society, that of giving evidence, on the ground that, by so 
 doing, he would subject himself to priestly censure or depriva- 
 tion ; especially when the high priests themselves admit, that 
 i-ven voluntary denunciation is " highly praiseworthy." For it 
 must be presumed thai those authorities would not make a dis- 
 linclion between offences of different degrees: If it be praise- 
 worthy spontaneously to denounce persons for offences which, 
 if proved, would render them liable to capital punishment, it 
 rannol b^ an immoral act to impart, under the sanction and by 
 order of a cuiirl, the knowledge which a man happens to pos- 
 f an offence, the consequences of >\hich would be less rc- 
 pugnanl to the feelings of humanity. The grounds, therefore, 
 .n \\hich this court has taken upon itself to reduce the penalty 
 imposed in the present instance are, not that it by any means 
 aeaents to the claim of exemption, but that it believes the de- 
 fendant to June bc'.-'n actuated by sincere and conscientious, 
 tiiou^li mi.stakiM), scruples; and also that the point has not 
 before hern solemnly decided. But it is to be understood that, 
 un no future occasion, vill the S. C. interfere on the same 
 grounds, even in mitigation of punishment, for this species of
 
 K i- (deuce Witnesses ; payment of (c/r/7.) 131 
 
 contumacy. No. 41, Amblangodde (criminal), 10 June 1835. 
 As regards the payment of witnesses; this is provided 
 for, in civil cases, by the 23d rule, which directs, "That all 
 witnesses, whose homes shall be more than four miles from the 
 D. C., shall be entitled to receive such sums as are now allowed 
 to witnesses in the respective districts, etc., for every day 
 \\ hich they shall necessarily be absent from their homes, in obe- 
 dience to the citations : And every party, on applying for cita- 
 tions, shall either deposit in court, or give security for, such 
 sum as the secretary (who shall refer to the D. Judge, if any 
 dispute arise as to amount) shall consider necessary, with regard 
 to number and distance : which sums shall he included in the 
 taxed costs, except when the court shall consider that witnesses 
 have been summoned unnecessarily, the allowance to whom 
 .shall, in all cases, be made by the party summoning them." 
 A representation was made to the S. C. by a D. Judge, of the 
 neglect of parties to comply with this rule as regards the de- 
 posit in court, by which the hearing of cases on the day fixed 
 was often rendered impossible, and the time of the coiirt was 
 thus wasted. The S. C. informed the D. Judge, that he would 
 be perfectly justified in dismissing a case, if it appeared on the 
 day fixed for trial that the necessary deposit or security had not 
 been made by the plaintiff, or in hearing the case ex parte, if 
 this default had been made by the defendant ; that the secretary- 
 ought to refuse to issue citations, unless the deposit or security 
 were given, entering on the record his reason for such refusal, 
 which would be a ground for dismissing, or hearing ex parte > 
 as in the case of neglect altogether to summon the witnesses. 
 L. B. 23, 29 Aug. 183-1. A D. Judge inquired whether, when a 
 case was postponed under the 24th rule, in consequence of the 
 absence of a material witness from indisposition, the party re- 
 quiring such witness ought to pay the expences of the opposite 
 witnesses, as well of those residing within four miles of the 
 court, as of those living beyond that distance : The S. C. re- 
 turned for answer, That in the case proposed, the 24th. rule 
 threw the costs of the opposite witnesses on the parly, on whose 
 application the delay took place, and on whom therefore the 
 burden of unnecessary attendance ought in fairness to fall :
 
 132 Evidence ft'itncsset ; payment of (criminal] 
 
 But that if a party, in such case, were to waive his ahsent wit- 
 ness, or to propose that his evidence should be taken on another 
 day, and the witnesses who were present he examined at once, 
 such party might then be considered as relieving himself from 
 this liability ; because the case, if postponed at all, would be 
 postponed, not in consequence of the absence of the witness, 
 but of the other party refusing to go to trial, and to allow the 
 absent witness to be examined afterwards : As regarded wit- 
 nesses, however, whose homes were not more than four miles 
 from the court, they were entitled to no allowance under the 
 23d rule. L. B. 23 Nov., 2 Dec. 1833. See title Witnesses. 
 
 The payment of witnesses in criminal cases, before D. Courts, 
 has not been (at least had not been up to March 1836) very de- 
 finitively settled. For a considerable time the old practice was 
 adhered to, of not allowing batla to witnesses in criminal cases, 
 unless when summoned to attend the trial before the S. C., at a 
 place out of their own district, or at a distance above four miles 
 from their homes. L. B. 24, 29 Oct. 1S33. The subject, how- 
 ever, was subsequently brought to the consideration of the S. 
 C., and balla \\as ordered to he allowed to a witness, summoned 
 before a D. C. out of another district. This decision, it is be- 
 lieved, look place on 8 Oct. 1835. With respect to the D. 
 C. of Colombo No. 1, on a representation to the S. C. by the D. 
 Judges, of the hardship sustained by persons summoned to give 
 evidence on complaints which were either without foundation, 
 or of which the persons summoned bore no knowledge, and yet 
 were obliged to attend without batla, It was ordered lhatwhen- 
 ever the D. C. should be satisfied that the prosecution had been 
 instituted on false, frivolous, or vexatious grounds, the com- 
 plainant should he directed to pay balta to the \\itnesseson 
 both sides, and should be liable to execution on non-payment, as 
 in civil actions. L. B. 16, 19, and 24 March 1835 5 and Supp. 
 Order (Colombo) 10 April 1835. If this rule should have 
 proved beneficial in Colombo, similar orders would no doubt be 
 passed for other districts, in which the same necessity for it 
 should be shown to exist. 
 
 By the 24th rule, all witnesses arc to be examined viva roce 
 in open court, unless the w itness be unable, from age, sickness,
 
 Evidence ff/ltnesscs, on interrogatories. 133 
 
 or other insurmountable cause, to attend the court ; or unless 
 all parties consent in writing to the witness being examined on 
 interrogatories 5 or unless the witness be out of the island and its 
 dependencies, or at so great a distance, as to make the expense 
 and inconvenience of compelling his attendance disproportioned 
 to the importance of the suit : In which cases, the witness may 
 be examined on interrogatories, in the mode, and subject to 
 the conditions, prescribed by the rule. It is right to notice here 
 an omission which occurs in this 26th rule, of any express di- 
 rection, to whom the D. J. shall address his commission, for the 
 examination of witnesses in other districts. In point of prac- 
 tice, it is believed that all such commissions are directed to the 
 Judges of the districts in which the witnesses to be examined are 
 found , but the rule ought certainly to have been explicit on 
 this point. In pointing out and regretting this omission, the 
 writer cannot refrain from presenting his readers with the opi- 
 nion expressed by Mr. Cameron on this point 5 and which is 
 the more valuable, as showing the views entertained by that 
 gentleman, to whom the island of Ceylon is so deeply and last- 
 ingly indebted for its present juridical system, on the jurisdic- 
 tion of the D. Courts. " One great advantage of a uniform 
 system of local courts, subject to one appellate and controlling 
 court, is that instead of thwarting each other, and struggling to 
 encroach upon each other's jurisdiction, they can be made to 
 cooperate, whenever the ends of justice would be served by 
 their cooperation. Thus, if a cause is pending in district A, and 
 one or more of the principal witnesses are resident in district 
 B, at the other end of the island, instead of sending a commis- 
 sion to private persons to examine those witnesses, the business 
 may be delegated to the D. C. of B. The examination will then 
 be carried on by a public responsible officer, presumably bring- 
 ing to the business all the learning, and all the practical skill, 
 which is to be found in the district. Such an examination in- 
 deed would not be quite so effective as an examinetion before 
 the Judge who is to decide the cause ; but it would approach so 
 near to that point, that the convenience of witnesses might be 
 consulted with far less risk of injustice to parties, than it could 
 be, if the system of examination by private commissioners were
 
 134 Evidence Witnesses, out of Ceylon. 
 
 adopted. It is scarcely necessary to remark, that this course is 
 no violation of the system of exclusive local jurisdiction, esta- 
 blished In the Charter. The examination of witnesses, though 
 subservient to jurisdiction, is 110 part of jurisdiction. And if it 
 were, the delegation of it to private individuals would be a still 
 greater violation of the Charter, than the delegation of it to an- 
 other court." The ordinance ]Vo. 6 of 1834 prescribes the 
 course for obtaining the evidence of witnesses, residing out of 
 the island. These provisions, it will be understood, relate only 
 to civil matters. The S. C. would usually leave it to the discre- 
 tion of the D. C., to decide whether witnesses in remote dis- 
 tricts should be examined on interrogatories, or in person. Pe- 
 tition Book of 1835, p. 3. A similar discretion must also be 
 exercised, as to granting further time for tiling interrogatories, 
 where the period first allowed has proved insufficient taking 
 care that such indulgence is not abused to the injury of the op- 
 posite party. L. B. 12, 18 May 1335. And so also, as to grant- 
 ing further time for the return of the commission : Thus, a 
 commission having issued lo examine a witness at the Mau- 
 ritius, which, after an interval of ten months, was not yet re- 
 turned, the D. Judge applied for instructions to the S. C., whe- 
 ther he ought to proceed with the case, or what course lie ought 
 to pursue. On this application, the S. C. observed, That the 
 question proposed was, simply, whether a reasonable time had 
 or had not elapsed, for the return of the commission. a ques- 
 tion v.lmh might more satisfactorily be answered by the D. 
 Judge, than by the S. C. ; for though, on the naked statement 
 of dales, ten months would be ample time to have allowed of 
 tin- return, still there were many collateral circumstances, with 
 which the D. Judge would cither be acquainted, or on which 
 he had the means of obtaining information, and on which the 
 facility of getting the commission speedily executed would very 
 much depend : such as the part of the Mauritius, at which 
 the vilness resided, whether near lo or distant from Port Louis 
 or the courts. I ho nature of the evidence required, whether 
 any documents were referred lo, the length of the interroga- 
 tories, etc. : That on other points, the plaintiff ought to be able 
 to furnish information, and if he could not, or if that informa-
 
 Evidence 7f finesses incompetent; age; perjury. f3o 
 
 tion failed to satisfy the D. C. that there was good reason why 
 Ihe commission had not been returned, the case ought to pro- 
 ceed, under the proviso at (he end of the 26th rule : That it 
 might possibly be out of the plaintiff's power to give such ex- 
 planation, and it might be hard upon him to be deprived of 
 this evidence $ but if he could not afford the necessary informa- 
 tion, it could scarcely be expected that the opposite parly could 
 furnish it j and of the two evils, it was more just that the in- 
 convenience should fall on the party, at whose instance the de- 
 viation from the usual course of proceeding had been adopted, 
 than on the defendant, who complained of the delay already 
 incurred : That some limit must be put to such postponements, 
 or a mode would be held out, through which any party might 
 protract a suit indefinitely, by procuring a commission, for the 
 examination out of the island of some imaginary person : 
 That though the court, or other functionary, lowborn the com- 
 mission was directed, ought to return in such case that the 
 witness was notto be found, still, if that was not done, the incon- 
 venience ought to be borne by the party applying for the com- 
 mission, who, in making that application, must be considered 
 as impliedly engaging that it should be returned within a rea- 
 sonable time. L. B. 16, 20 Aug. 1834. Under very cogent cir- 
 cumstances, as where a witness was about to leave the island, 
 the S. C. has sanctioned the examination of such witness before 
 the trial, in a civil case. Petition Book of 1835, p. 178. There 
 seems to be less objection to this course in Ceylon, where the 
 D. Courts are constantly sitting, and can consequently lake the 
 examination of the witnesses themselves, thnn in England, where 
 witnesses, in such cases, must usually be examined on inter- 
 rogatories before commissioners. 
 
 Incompetcncy to give evidence is limited by the ordinance, 
 which, with two trifling exceptions !o be noticed in their place, 
 coincides with the 25lh rule in Ibis respect, to the folio-wing 
 causes : 
 
 1st. Inability , from want of age or understanding, locompre- 
 liend the obligation of telling the truth ; 
 
 2dly. Sentence or conviction of perjury. The ordce. varies 
 here in some degree from the rule, the words of which are "sen-
 
 136 Evidence Ff-'ilnesscs incompetent; husband or wife. 
 
 lencc or conviction of an offence uhich legally disqualifies.' 11 It 
 was thought better, however, in framing the ordce., which, it 
 vs ill he recollected, is of dale subsequent to the rules, to limit 
 the disqualification to the single offence of perjury. For though 
 In the law of England, there arc many other offences, the con- 
 viction of which renders a person incompetent to give evidence, 
 difficulties would often arise in Ceylon, in the application of the 
 rule of disability, from the term "felony," as distinguished 
 from other offences, not being known to the law of that island. 
 And as, by the English law, in all offences except perjury*, the 
 competency of the convict is restored by his undergoing his pu- 
 nishment, a mode of redintegration, which the frequency of 
 corporal punishment in Ceylon would render somewhat gro- 
 tesque, it was considered better to leave all such offences to 
 affect his credit merely, and to distinguish perjury, as the 
 only crime which should render his evidence wholly inad- 
 missible. 
 
 3dly. The standing in the relation of husband or w ife to one 
 of the litigant parties ; the general rule being, that husband and 
 wife can neither be witnesses for nor against each other. But 
 this must be taken with the exceptions, which exist to the rule 
 in the law of England : As where a wife has acted as agent for 
 her husband, by entering into contracts for him with other per- 
 sons. And in all prosecutions against the husband for personal 
 injuri^ to the wife, *he is a cprnpcferrt witness. In prosecu- 
 tions for bigamy", the woman last married is a competent wit- 
 ness against the accused, after the first marriage is proved ; but 
 this forms no exception to the general rule, because the witness 
 is not legally his wife. And where a husband is the principal 
 witness in support of a criminal prosecution, his wife is always 
 a competent witness; because the law does not recognize him 
 as a "parly,'' the Crown being the prosecutor. No other re- 
 lationship, however near in degree, is a ground of exclusion by 
 the English law, as now introduced into Ceylon, which differ^ 
 materially in this respect from thai of Holland. For by the 
 Roman Dutch law, fathers, sons, and brothers, are inadmissible 
 as witnesses for and against each other; and servants for their 
 masters, as long as they arc under the authority, and receive
 
 Evidence Witnesses incompetent; interest. 137 
 
 the wages of the latter. Voet. Lib. 22, tit. 5, par. 3, where 
 indeed it is said, that all domesticum lestimonium is objection- 
 able. A decision has just taken place in England, which shews 
 how impossible it is considered to exclude relations, however 
 near, from giving evidence, even in family matters of the most 
 delicate nature 5 and in the ecclesiastical courts, loo, whicM 
 govern their practice so much by the rules of the civil law. In 
 a suit by a wife for a divorce, on the ground of cruelly, she 
 moved to examine two minor children of the marriage, as to an 
 alleged act of violence. The husband's advocate contended 
 that the court had a dicretionary pow er of rejection ; and that 
 considering the age of the children, the eldest, being only len, 
 the lime when the alleged act w as committed, four or five years 
 since, and the cruelty of compelling children to give evidence 
 against their parents, who might hate to indict them for per- 
 jury, the court should assume the power of rejection, even if 
 such power were not expressly recognized. But the learned 
 Judge, Dr. Lushington, held that, whatever might be the evils 
 attending it, he had no discretionary power to refuse the exa- 
 mination, if the children were of an age to understand the na- 
 lure of Ihe obligation : It w as, no doubt, desirable that children 
 should not be called on lo give evidence against their parents; 
 and therefore it was matter of serious consideration for the 
 wife and her advisers, whether the necessity of the case obliged 
 her to adopt this course : But if insisted on, the court had no 
 choice, as the objection went only to the credit of the children, 
 and not to their competency. Lady Julia Lockwood v. Lock- 
 wood, Consistory Court, 8 Nov. 1838. 
 
 4lhly. The having a direct interest, that the party calling the 
 witness should succeed in the suit. The 25th rule was couched 
 in more general terms., as regards this disqualification, "di- 
 rectly interested in the event of* the suit." The alteralion w as 
 made in the ordce. lest, by a too literal application of the rule, 
 a person interested in the event of a suit should be rejected, 
 though called by the party opposed to such interest, and to 
 speak consequently against his own interesl, in which case he i 
 clearly admissible. See L. B. 5, 6 Oct. 1835, on No. 4099, Co- 
 lombo, inf. exn. of parties. The interest, to disqualify, must not
 
 138 Evidence Witnesses, credit of. 
 
 rest on the mere wishes or belief of the witness himself, though 
 the v might affect his credit very materially; hut it must be 
 some direct and certain benefit to himself by the success of the 
 party calling him, or some disadvantage to himself by the suc- 
 ces> of the opposite party, however small and inconsiderable 
 such benefit or disadvantage may be. Thus, liability to pay the 
 costs, if the party calling him fail in the action, is sufficient to 
 disqualify. So, executors and administrators should not be 
 allowed to give evidence in favour of the estate, even though 
 they have no beneficial interest as heirs or legatees, on account 
 of their ultimate liability for costs, and still more, of their claim 
 for commission: Xo. GS63, Colombo Xorth, 16 Dec. 1835; 
 supra, p. 10. If a wilne.ss have an interest inclining him to 
 each of the parties, he may give evidence for cither. There is 
 one class of persons, which forms a somewhat wide exception 
 to the rule respecting interest : Servants or agents, within 
 which latter term are comprized all who make contracts for 
 others, are admitted to prove sales, contracts, payments, or re- 
 ceipts of money, or the delivery of goods, though such witnesses 
 may have a direct interest, in (he shape of fees or commission, 
 to establish such sales, etc., or in exonerating themselves, by 
 proving such delh ery or payment. This is allowed for the con- 
 venience of trade, and the common usage of business. The 
 competency of an interested witness may be restored at any lime 
 before he is sworn, by release, payment, or any other means by 
 which his interest is extinguished. 
 
 All other objections, besides these four, shall only, in the 
 words of the ordce. and of the rule, affect the credit, but not 
 the competency of the witness. And we may venture to add, 
 as a general rule, that wbencNer a D. C. is in doubt, whether a 
 witness be or be not incompetent on any of these grounds, the 
 safer course is to admit the evidence, subject to the considera- 
 tion of credit, and to correction by the S. C., if the parly op- 
 posing the reception of such witness should appeal on that 
 ground. On questions of credit, the opinion of the assessors 
 will naturally be of groat weight with the court. (Vide supra, 
 p. 43,4.) And in deciding cases in appeal, the S. C. feels in- 
 clined, on points which depend on the credit due to witnesses,
 
 Evidence Witnesses; advocates, etc. 130 
 
 to defer to llie opinion of the court, before whom the witnesses 
 have been examined viva vocc, rather than come to a contrary 
 conclusion, on the bare perusal of the depositions. No. 374, 
 Kornegalle, 14 Dec. 1833, No. 264, Amblangodde, 13 Jan. 1836: 
 Unless when very glaring contradictions or inconsistencies oc- 
 cur, as in a case which will be mentioned under title Fraud, 
 ]\ T o. 1448, Islands. 
 
 Before quitting the subject of competency, it is necessary to 
 advert to the position of advocates and proctors, who, though 
 not to be classed among incompetent witnesses, are not allowed 
 to give evidence of any communication which may have been 
 made to them, in their professional capacity, by their clients : 
 And such is also the rule of the I\. Dutch law. Voet, Lib. 22, 
 tit. 5, par. 6. This is the privilege, not of the counsel, but of 
 the client 5 and never ceases, except by the client himself waiv- 
 ing it : It extends to all communications, whether in the pro- 
 gress of a suit or otherwise, made to the advocate or proctor in 
 his professional characler ; but otherwise, that is, if the witness 
 have not been employed, as advocate or proctor, in the particular 
 business forming the subject of inquiry, any communications, 
 even though made confidentially, are not privileged, because 
 they were not made to him as the retained counsel of the party. 
 in which character alone the obligation to secrecy exists. And 
 see No. 1652, Negombo, 6. Tan. 1836. So, he may be examined, 
 like any other witness, as to a fact which he knew before he 
 was retained ; or which has come to his knowledge, without 
 his being entrusted with it as legal adviser; or where he has 
 made himself a party to the transaction. A person, acting as 
 interpreter between the proctor and client, is under similar 
 obligations of secrecy as the proctor himself. The foregoing 
 rules, it will be observed, have reference to the professional 
 adviser being called as a witness ayainxt his client: As a general 
 rule, the advocate or proctor is admissible for his client : No. 
 14,136, Callura, 11 June 1834. In such case, he may be cross- 
 examined on those points to which he has given evidence : but 
 on all other points, in which the confidence of his client is in- 
 volved, his mouth is closed. There are some other kinds of 
 confidential communications, besides those made to legal ad-
 
 110 Evidence Witnesses ; party examined. 
 
 \ ix'i-s, which courts will not allow to be revealed. The follow- 
 ing are given as instances, and as having been decided to be 
 privileged: Oflicial communications between the governor and 
 Jaw oflicer of a colony ; orders given by the governor to a mili- 
 tary officer; correspondence between government and Us 
 agent; and the report of a military court of inquiry. 
 
 But though the professional adviser of a party cannot be 
 asked to disclose the confidential communications of his client, 
 the party himself may, in Ceylon, be made to serve as a witness 
 against himself, by means of the mutual examination, directed 
 by the 29lh and 31st rules. This is a deviation from English 
 practice, which docs not allow any party to be compelled to 
 give evidence against himself, anymore than it will permit him 
 to testify in his own favour. But the innovation, which was 
 introduced by direction of the Secretary of State, in consonance 
 with the recommendation of Mr. Cameron, is certainly calcu- 
 lated to shorten litigation, and elicit the truth 5 nor, on the 
 other hand, does it appear to have been attended with any in- 
 convenience, of which parlies can justly complain. (Vide infra, 
 title " Examination of Parties.' 1 ) And here it may be asked 
 why, if a parly can be examined against himself, the mouth of 
 his legal adviser should not also be unsealed ? Instances have 
 indeed occurred, it is believed, in which it has been proposed 
 to substilute the proctor for the client, to be examined. But, 
 in the first place, the object being to obtain the fullest admis- 
 sions on the subjects of inquiry, the best course must be to 
 apply at once to the fountain-head for information, which 
 would be more satisfactory when drawn from that source, thaH 
 when obtained at second-hand through the proctor: On the 
 principle, therefore, of obtaining the best evidence, the parly 
 is the proper person to be examined. Nor could it be expected 
 that the proctor would be so intimately acquainted w r ilh the 
 facts, however unreserved the communication to him may have 
 been, as the parly himself-, and Ihe parlial disclosures or ad- 
 missions, which the proctor might be compelled to make, unex- 
 plained and unqualified by circumstances, which could only be 
 in the knowledge of the parly himself, might operate with great 
 injustice against the cause of the client. Another objection
 
 Evidence [fitnesses; prosecutors, eic. lil 
 
 would be Ibe difficulty of enforcing the 29lh rule, as regards 
 punishment for false statements. The proctor could not be 
 made responsible for the deceit practised on him by his client 5 
 nor could such deceit be brought home to the party, \vithout 
 making the proctor a witness against his own client, who after 
 all might allege that he had been misunderstood by his proctor. 
 (Vide infra, title False Claim, p. . ' .) But a still worse conse- 
 quence to be apprehended, would be the probable destruction of 
 that full and unreserved confidence, which ought always to 
 exist between client and proctor. For though the client, if 
 acquainted with the rules of practice, would know that he was 
 himself liable to be examined as to the facts within his own 
 knowledge \ yet he might be unwilling to confide the state of 
 his affairs to another, if that oilier could be compelled to reveal 
 all that had been entrusted to him. The 8th rule, it will be ob- 
 served, is cautiously worded in this respect, even as regards 
 examination by the court; for the court is only authorized to 
 examine the proctors of the respective parties, touching any 
 material facts, which are not stated with sufficient clearness in 
 the pleadings, as far as such proctors may consider themselves at 
 liberty 1o answer the questions. 
 
 A party cannot be examined in his own favour, or in favour 
 of his co-plaintiffs or co-defendants, in civil suits. In criminal 
 prosecutions, the parly injured is a competent witness ; and 
 even in cases of forgery, which formed an exception to this 
 rule in former English practice, the parly whose name is forged 
 has always been admitted as a witness in Ceylon. The reason 
 of this distinction between civil and criminal proceedings is 
 that, in the latter, the injured person, as above observed in 
 p. 136, is not considered a parly to the proseculion, \\hich is 
 always instituted at the suit of the crown. So, an informer on 
 a penal regulation or ordinance, L. B. 21, 26 July 1834; sub- 
 ject to all the doubt as regards credit, which naturally attaches 
 to a person suing in that character. 
 
 The 26th rule directs that all witnesses shall be sworn, ac- 
 cording to the form prescribed by the rites of the religion, which 
 they respectively profess ; and that no other or extraordinary 
 Kind of oath shall be permitted, This latter prohibition, which
 
 1V2 /evidence I fitnesses, how sworn. 
 
 indeed only repeals a provision in an old regn., No. 5 of 1819, 
 \\a> introduced from a conviction that the practice of admitting, 
 on particular occasions, oaths, or rather imprecations, differing 
 from the usual appeal to the Deity, such as that sometimes re- 
 sorted to by the Cingalese, of swearing on the heads of their 
 children, would only bring into disrepute and contempt the 
 obligation of the ordinary oath, without producing any greater 
 degree of veracity in what is deposed under the sanction of ex- 
 traordinary ones. A Judge of one of the Northern districts 
 suggested to the S. C. the expediency of sending the Malabar 
 witnesses to a temple, to be sworn ; in the hope that the more 
 imposing nature of the ceremony, being one to which the Mala- 
 bars sometimes have recourse among themselves, might be more 
 efficacious in obtaining the truth. After a full consideration of 
 the question, however, by all three Judges, they directed the 
 D. Judge to be informed, That they should not feel justified in 
 sanctioning the course proposed 5 that though they were fully 
 aware of the difficulty of arriving at the truth, and though they 
 agreed that this object might sometimes be attained by the 
 method proposed, still it would often fail, as had been shown 
 by former experience; that a striking instance of such failure 
 occurred about the year 1816, ^hen the witnesses in some cri- 
 minal case of importance having been sworn in the temple of 
 Canda Swamy near Jaffna, as being reputed a temple of peculiar 
 sanctity, the whole of the \\ itnesses on one side or the other 
 were afterwards found to have perjured themselves ; and that 
 the practice was afterwards discontinued by the S. C., from con- 
 viction of its inefficacy : But that a still stronger objection than 
 the mere doubtfulues of the remedy presented itself to the 
 Judges, in the comparative discredit, which a partial adoption 
 of it would throw on all evidence, given under the sanction of 
 the ordinary oath; that a witness sworn in the usual manner 
 would naturally infer that the obligation upon himself was not 
 so binding, as on those who were sworn in the more solemn 
 form , that if introduced at all, therefore, it must be made the 
 constant and universal rule, and not in one district only, but in 
 all ; that the consequence of this would be, that each class in 
 each district must have its own peculiar form of words and
 
 Evidence ff'ilnesiCit, how sworn. 143 
 
 place of swearing, the latter part of which system would be 
 scarcely practicable in itself, to say nothing of the danger o 
 witnesses evading the oath altogether, through the connivance 
 of the priests, if it were not administered under the eye of the 
 court ; and that the best remedies against the evils complained 
 of would be found in strict interrogation, acute observation of 
 the tone and demeanour of each witness, a careful comparison 
 
 of facts and probabilities, and the examination of the parties 
 i t 
 
 themselves, both by each other and by the court. L. B. 22 Sept. 
 2 Oct. 1835. 
 
 As regards the ceremony to be used in administering the 
 oath, this must depend, as directed by the rule, on the religion 
 professed by the witness, and also, in some degree, it is to be 
 feared, as long as the distinctions of cast exist, by the rank and 
 station of the \\iluess, jf a native and not a Christian. A ques- 
 tion arose in 183-i, whether a witness of the Rhodian cast, who 
 was examined in the court of one of the southern districts, 
 ought to prostrate himself on the occasion of taking the oath, 
 which was represented to be the ceremony prescribed by custom 
 lor persons of that class. The King's Advocate, to \vhom the 
 matter was referred, and who was naturally startled at a mode 
 of taking an oath, so revolting to English customs and feelings, 
 ;indso unusual even in Ceylon, consulted the then Chief Justice 
 on the subject, \vho returned an answer to the following effect, 
 uhich is given here, not as any judicial authority, but merely 
 as his individual opinion, entitled only to weight, as it may be 
 founded on just reasoning: " Such distinctions unquestionably 
 do exist, and are observed, almost necessarily I believe, in the 
 courts. In the Northern districts, the lower casts of Malabars, 
 instead of swallowing the Ganges water, take off one of their 
 cloths and step over it, as the mode of imprecation. I never 
 heard of this ceremony of prostration, nor indeed do I ever re- 
 member a witness of the Rhodian cast being examined before 
 me. The most material question is, what mode of taking the oatli 
 does the witness consider most binding upon him? But that is 
 not the only question. Care must be takeu not to degrade the 
 usual ceremony in the opinion of the mass of the people, by 
 performing it to those whom custom, and perhaps their religion^
 
 144 Evidence ff'itnt&scs, how examined. 
 
 may have declared incapable of taking part in it. The obliga- 
 tion might be destroyed, as regards the generality, without 
 raising the persons to whom it is extended a single degree from 
 their stale of degradation. Nay, it may be doubted whether 
 the poor witness himself would comprehend the reason of the 
 substitution, or would even consider the more elevated cere- 
 mony equally binding upon him, as that to which he and his 
 kindred had been accustomed. The better course, when such 
 questions arise, would be to make inquiry, not from the priest, 
 who probably is more bigoted on the subject than any one else, 
 but from those whose rank and character would entitle them to 
 credit, and who could incur no part of the fancied degradation : 
 I mean native Christians, to whom the mode of administering 
 the oath to the lower orders would be a matter of indifference, 
 but whose experience would still enables them to give a sound 
 opinion as to custom." L. B^31 March 1834. The expression 
 of the foregoing opinions will not, it is hoped, be ascribed to 
 any partiality, on the part of the writer, to the distinctions of 
 cast. No one would feel greater satisfaction than himself at 
 their total abolition, provided such abolition were the result of 
 fair and cairn reasoning, on the awakened good sense and feeling 
 of the population; an operation which has already made some 
 progress, as regards the subject of assessors and jurors of dif- 
 ferent casts sitting togelher. Vide supra, p. 40. 
 
 The manner in which witnesses shall be examined, cross- 
 examined, and re examined, is laid down with some minuteness 
 by the 27ih rule. The main distinction between examination 
 by the party calling a witness, which is usually called examina- 
 tion in chief, and cross-examination by the opposite party, con- 
 gists in the power of putting what arc called leading questions ; 
 a power which is given to the latter, but denied to the former. 
 Leading questions are those which are shaped in such terms as 
 to show the witness the answer desired from him; and are 
 therefore not allowed to be so put by the party calling him, 
 because the witness is supposed to have already a bias in favour 
 of that party. Where, however, it appears to the court that 
 the witness's inclination is the other way, and that he is unfa- 
 Tourable to the party calling him, their relative situation being
 
 Evidence Tfitnesses, hoic examined. 145 
 
 changed, a certain latitude is allowed in examining him, as if 
 he were on his cross-examination. (Vide infra, p. 150, as to 
 the danger of indiscreet cross-examination.) AVhere an objec- 
 tion is taken to a question, whether on the examination in chief, 
 or on cross-examination, the D. C. ought not to stop the case, 
 but should proceed as directed by the 27lh rule, leaving it to 
 the objecting party to appeal, if he think proper, after the deci- 
 sion of the case. No. 705, Callura, 9 May 183;"), supra, p. 18. 
 A witness ought not to be asked questions of law, or questions 
 which can only be answered by solving legal points -, it is for 
 witnesses to stale facts, and it is the duty of the court to draw 
 its own inference of law from those facts. L. B. 24 April 1834. 
 A witness may, however, be asked his opinion on any matter, 
 with which his habits or pursuits have made him conversant; 
 as for instance, a workman, as to the goodness of work per- 
 formed , a merchant, as to the genuineness and value of arti- 
 cles sold, and the like. The ignorance of native parties, or the 
 inexperience of those who conduct their cases, will sometimes 
 require assistance from the greater degree of knowledge which 
 must be presumed to reside in the D. C., which should put 
 questions in such cases to the witnesses, tending to elucidate 
 the evidence, and to render it more complete. No. 396, Ruan- 
 welle, 15 July 1835. When it is proposed to examine a witness, 
 in order to show that he is incompetent, such examination 
 should take place when he is first called, as directed by the 25th 
 rule , but a question merely affecting his credit, as whether he 
 be on good or bad terms with either of the parlies, is properly 
 reserved for cross-examination, because such question does not 
 affect his competency, or, consequently, bisadrnissibilily. No. 
 2587, Ruanwelle, 20 Jan. 1836. There are certain questions, 
 however, which a witness cannot be compelled to answer , viz., 
 where his answer would expose him to penalty or punishment, 
 or would render him liable to a criminal charge ; though the 
 facts may of course be proved by other witnesses. Whether he 
 may refuse to answer a question degrading to his character, is 
 still an unsettled question; the belter course seems lo be to allow 
 such questions to be put, and let the witness answer if lie 
 choose so to do, but not oblige him to answer, if he object to it. 
 
 10
 
 Evidence, uf witnesses how tal.cn down. 
 
 Till about thirty years ago, it was doubled whether a witness 
 could be compelled to answer, when, by so doing, he might 
 subject himself lo a cicil action, or charge himself with a debt. 
 By aslalute passed in 1806, however, 46 Geo. III. ch. 37, it was 
 declared that a witness could not legally refuse to answer on 
 those grounds: And il may be observed that this latter ground 
 of objection would be inconsistent with our practice of mutual 
 examination of parties, the very object of which is to make a 
 parly bear witness against himself, whenever truth and good 
 faith require that he should do so (1). 
 
 As regards the receiving and taking down the evidence, it 
 m.n be staled as a general rule, that the testimony of even 
 witness must be taken from his own lips, except in the cases 
 about to be mentioned ; and that it is not suflicient to read over 
 the evidence he ma> have given in anoUicr suit, even though In 
 the same point, and between the same parties. For otherwise, 
 the opposite parly would have no opportunity of cross-examin- 
 ing the witness, which he has a right to do on a second trial, 
 though he may have already done so on the first : nor could the 
 
 (1) These very general rules and definitions will go but a short way, to- 
 wards instructing the young practitioner how to conduct, or a newly ap- 
 pointed D. Judge how to control, the examination of witnesses. Nor would 
 the learned discussions into which Mr. Phillips and other writers on this 
 important subject have entered, nor even the lucid exemplifications, with 
 \\hicli they illustrate their positions, enable their readers to attain any verj 
 great degree of proficiency, unless the study were accompanied by practical 
 observation: In like manner as grammatical learning, and the perusal of 
 authors in a foreign language, are found insufficient to enable the student to 
 speak the language, till after he has been for some time in (he habit of 
 hearing il spoken. Tor this reason, it is earnestly recommended to all those 
 who arc concerned in the administration of justice in Ceylon, and who do 
 not feel themselves beyond the necessity of any further improvement, to at- 
 tend rruiilarly and sedulously every session of the Supreme Court, which maj 
 be within their reach, and compatible with their Other avocations. More 
 knowledge of practical utility would bo gathered, by thus periodically watch- 
 ing the regular and disciplined proceeding of the high tribunal, which is to 
 set the example to all the other courts of the Island, than would be gained 
 by years of mere disputation on points, the generality of which (judging 
 from those which have been brought to the notice of the S. C., by reference 
 or appeal) have long been considered settled, and would never be even ques- 
 tioned by persons of legal habits and experience.
 
 Evidence, of leHAtste* how taken down. 
 
 court form so correct an opinion of the degree of credit due to 
 such testimony. L. B. 14, 21 ]\ov. 1834. In case of the 
 death of the witness in such case, ho\vever, his deposition may 
 be received, as \\e have seen supra, p. 11G. Former depcsilions 
 may also he received by consent of till parties, in civil cases ; or 
 may he read, in any case, for the purpose of contradicting the. 
 testimony given by the same v\ itness on the subsecpient occasion. 
 L. B. 19 May, 1835, No. 2/75, Hambanlolle. So, where the 
 claim or defence of a parly to a suit is inconsistent with the de- 
 position made by that parly on a former occasion, when called 
 as a witness, such deposition may be read in evidence against 
 him. ]Xo. 34 J, korncgalle, 20 Dec. 1834. See further on this 
 subject the exceptions mentioned to the fourth general rule, 
 supra, p. 116, 7. The mode, in which the evidence should be 
 taken down, is given at some length by a circular letter to the 
 D. Judges of 29 jNov. 183V. And as this is a subject of impor- 
 tance, it may be useful to insert here the two paragraphs which 
 relate to it : 
 
 "The S. C. is desirous of drawing the attention of the D. 
 Judges to the necessity of taking down the evidence of every 
 witness at length, in the very terms used by the witness, instead 
 of giving the general result of his testimony, ' L as corroborating 
 the evidence of preceding witnesses," which is frequently the 
 practice. This course v ould be less open to objection, if the 
 notes of the D. Judge were solely for his own use, and to assist 
 his own memory. But when a case is brought up in appeal, 
 the S. C. can only arrive at a safe conclusion upon the evi- 
 dence, by judging of the very words used by each witness. 
 Whether the statement of one witness he conoloraliveof that 
 of another, and in what degree, must be matter of opinion, un- 
 less indeed the evidence of both were to he word for word the 
 *ame, which rarely happens-, and the S. C. might entertain a 
 different opinion upon this point, from the court below.' 1 
 
 "Another recommendation, connected with the mode of re- 
 cording the evidence of witnesses, which the Judges would 
 press strongly upon the notice of the D. C., is that every depo- 
 sition be taken down in the first person; as, for instance, "I was 
 at Colombo on the 1st instant," instead of "witness was at 
 
 10.
 
 J48 Evidence tchtn dispensed n-ith. 
 
 Colombo," or, " he was at Colombo." By using Ibe third per- 
 son, a confusion often arises, from tbe impossibility of ascertain- 
 ing whether the words uttered, or the act done, were spoken or 
 committed bv the witness himself, or by some third person, of 
 \\ lioin the witness is speaking. All distinction between the per- 
 son deposing, and the person concerning whom the deposition 
 is made, is thus lost, and this to no purpose whatever. The in- 
 terpreter should never be allowed to give the translation of the 
 evidence in this way: not only because the D. Judge might in- 
 advertently adopt the same words, in reducing it to writing, but 
 also because, by so doing, the interpreter does not give a per- 
 fectly faithful version of what is said. He ought., in performing 
 his office, to put himself in the place of the witness; that is, to 
 jive the very exact words used by the witness, which he does 
 not do, if he transposes what is said in the first person, into 
 the third. 1 ' See also No. 424, Negombo (criminal), 15 Oct. 1834. 
 and No. 163, Wademorachy (criminal)., 9 Dec. 1835. 
 
 The 28lh rule provides that if the D. C. shall consider any fact 
 sufficiently proved by the evidence already adduced, it may dis- 
 pense w ith further evidence to the same point. This rule is not 
 to be carried beyond the express terms of it ; and, above all, it 
 must not be allowed to have a converse operation, that is, to 
 induce tbe D. C. to refuse to hear all the witnesses of a party, 
 because those first examined fail in establishing the points for 
 which they were called. Where cases, w hether civil or criminal, 
 have been decided, w ithout hearing all the witnesses of a party 
 against whom the decision is given, the S. C. has usually referred 
 such cases back for the rest of the witnesses to be heard ; and 
 this, however improbable it may appear that such other wit- 
 nesses should be able to carry the case any further : For other- 
 wise, the losing parly might always say that he had not had a 
 complete hearing, and that the unexamined witnesses would 
 have set his case in a totally different light. No. 3897, Jaffna, 
 17Oct. js;',:{ : N,>. .{:',(). Malura, ISSept. 1835: No. Korne- 
 galle (criminal), 11 Nov. 1835: No. Trincomalee (crimi- 
 
 nal;. 30 Dec. ls35. \or\\ill the personal appearance of the 
 witnesses. II<>\M'\CT disadvantageous, justify the court in refus- 
 ing to hear their testimony. L. B. 31 Oct. 1833. D. Judges
 
 Evidence for prisoners before commitment. 149 
 
 have sometimes been recommended not to be too hasty in dis- 
 missing actions, on the supposed authority of former decisions, 
 without being quite certain that such decisions are strictly ap- 
 plicable to the cases before them; the safer course is to hear all 
 the evidence the plaintiff may have to adduce, and then consider 
 whether it be necessary to call on the defendant to enter upon 
 his defence. L. B. 30 April, 8 May 1834. This recommenda- 
 tion is not to be considered at variance with that, conveyed by 
 the 4th paragraph of the circular letter to D. Judges of 15 April 
 1835, which relates to the decision of cases on the pleadings, 
 and by the examination of the parties; which course, when it 
 can be adopted safely, obviates the necessity of summoning any 
 witnesses at all. Where the plaintiff fails in establishing his 
 case, it is unnecessary to hear the defendant's witnesses, unless 
 sometimes, for the greater satisfaction of the court. But when 
 the plaintiff's case is proved, however clearly and even unan- 
 swerably as it may appear to the court, the defendant is always 
 entitled in his turn to have his witnesses examined ; except in- 
 deed where his answer is such as, if proved, would afford no 
 defence to the action. No. 1160, Caltura, 29 July 1835. Tide 
 infra, p. 152, 3. And where a D. Judge decided a suit, on his 
 own personal inspection of the tree which formed the subject of 
 dispute, and which was alleged to stand on government ground, 
 the S. C. intimated that such inspection was not sufficient to 
 warrant the decree, without hearing the witnesses. Petition 
 Book of 1833, p. 56. So, a fortiori, in actions for penalties or 
 forfeitures, which partake so much of the nature of criminal 
 prosecutions, the defendant's witnesses should invariably be 
 heard, even though the evidence proposed may not furnish an 
 entire answer to the action ; for it may very often show strong 
 grounds for recommending a remission of the fine, or at least 
 for not giving costs against him. No. 2547, Chilaw and Pullam, 
 3 Feb. 1836. 
 
 The question was proposed to the S. C. by a D. Judge, whether 
 it was incumbent upon him to take the evidence for the defence, 
 in cases likely to be submitted for trial before the S. C. ; and it 
 was suggested, as an evil requiring remedy, that much delay was 
 occasioned by protracted cross-examination of the witnesses for 

 
 I '.ridence Reference to other title*. 
 
 I ho prosecution. The S. C. directed an answer to be returned*, 
 That when a person was accused of any offence, though of a 
 nature which might require a trial before the S. C., he had 
 always a ri^hi to go into his defence, if he thought it advisable 
 so to do, because he might possibly succeed in showing that 
 there was no ground for sending him to trial at all, and thus 
 avoid being committed to prison, or the inconvenience of find- 
 ing bail, and ultimately the disgrace of being put upon his trial : 
 That the delay occasioned to other business by protracted 
 cross-examination was, no doubt, to be lamented, but it was an 
 inconvenience not very capable of direct and definite remedy; 
 that if there were ground for supposing the charge to be 
 false, the right of cross-examination, furnishing as it did, when 
 discreetly applied, so excellent a lest of truth, Avas loo valuable 
 a privilege to be denied to the accused : and that with respect 
 to well-founded accusations, the evil, it must be supposed, 
 would cure itself, since the party or proctor pursuing the cross- 
 examination of a witness who really spoke the truth, would 
 usually find every answer tending to conviction. L. B. 17, 21 
 Sept. 1835. Indeed it often happens that circumstances, which 
 the prosecutor would not have been permitted to inquire into 
 on the examination in chief, are brought forth by injudicious 
 cross-examination 5 and, in that case, tell with double force 
 against the accused, because given in answer to questions put 
 l>y himself, or on his behalf. The S. C. has decided that de- 
 fendants, under the Colombo police ordce. No. 3 of 1834, must 
 have an opportunity of showing that the buildings, etc., com- 
 plained of, are not encroachments. V>. 592, Colombo (cri- 
 minal), 3 .Nov. ls:J4, infra, title Police. 
 
 As to what evidence sl>;ill be considered necessary or sufficient 
 to establish a sale of land. or a marriage under regn. No. 9 of 
 IS22, or to support a prosecution for perjury or forgery, or 
 theft, see the respective titles, Land, Husband and Wife, Pro- 
 -< -ution. etc. And as to what proof is necessary of the au- 
 ihoritv of a person to certify a fact, such as the enrolment of an 
 ;innuily. sec the judgment in the case of C.ihson v. Rodney, 12 
 Nov. 1830, infra title Manlissement. How far reports and sur- 
 veys of land may be received in evidence, vide supra, title Arbi-
 
 151 
 
 (ration, p. 35. And how far the report of the superintendant 
 of police may be so received, infru title Police, L. B., 17 Aug. 
 1835. As to the admissibility of instruments, with reference to 
 the stamp regns., infra title Stamp, and supra p. 83. On a 
 prosecution for assault, insults offered to the defendant's wife 
 admitted in extenuation; infri title Prosecution. 
 See also title Witnesses. 
 
 EXAMINATION OF PARTIES. 
 
 In civil cases, advantages of, page 151. Cases in which recommended; as, 
 to lix amount of claim; or facts intended lo be relied on; or delivery of 
 goods ; declaration of party, in some cases, equivalent to former oath 152 
 et scqu. Wife, suing her husband, not exempted 151. Nor Moorish 
 women lot. But only actual parties examined 155. Soldiers, sued for 
 debts under 30/., cannot be compelled 155 Examinations to be taken 
 down by D. J. only, and why 15li >"ot on oath; punishment for false an- 
 svvers, 157. In criminal cases; Confessions; S. C. refused to direct D. 
 Judges to question prisoners, 157, 8. 
 
 THE system of subjecting parlies in civil suits to examination, 
 whether by the court, as directed by the 8th rule of sect. 1, or 
 by each other, according to rules 29, 30, and 31, has already 
 been incidentally touched upon under the head of Evidence, and 
 some others of (he preceding titles. P. 140, 146. This mode of 
 inquiry may be considered as an improvement on the practice 
 of the civil law in this respect, as being on a plan at once more 
 simple and more enlarged ; and with this important advantage, 
 that by the abolition of the oath, the fearful temptation to per- 
 jury which the civil law held out to parlies, by calling upon 
 them to swear in support of their own interests, is withdrawn : 
 \ temptation, much greater than any human being ought to be 
 subjected to, even in countries v\ here religious obligations are 
 better understood and observed than in Ceylon. The only diffi- 
 culty which the Judges felt, in bringing this change into opera- 
 tion, arose with respect to the decisory oath, which, according 
 to the civil law, any party to a suit might require to be put to 
 the adverse party. They entertained some doubts, whether an
 
 \.~>1 Examination of parlies practice recommended. 
 
 order of court, though made under the authority and sanction 
 of II. M. Charter, would be of sufficient force to contravene the 
 law of the land. And it was on this account, as well as on that 
 of one or two other innovations, which seemed to be matter of 
 law rather than of mere practice, that they recommended, as a 
 measure of precaution, the passing Ihe ordinance No. 1 of 1833. 
 As the good effects of this mode of examination were soon ap- 
 parent, by its shortening litigation in the only way by which 
 that object can safely be attained, vi/., by presenting a more 
 direct and speedy, and, at the same time, a more certain road 
 for arriving at the truth, the S. C. has lost no opportunity of 
 recommending the practice to the adoption of the D. Courts. 
 
 An action was brought for board and lodging, but the plaintiff 
 was unable to prove for how long, or on what terms. The de- 
 fendant did not deny having boarded with the plaintiff, but dis- 
 puted the amount of the demand. The D. Judge, differing 
 from his assessors as to the decision which ought to be given, 
 referred the case, in his anxiety to do justice, to the S. C., and 
 was informed in answer, that this was peculiarly a case for the 
 examination of the parties; that if the defendant, who did not 
 deny having boarded with the plaintiff, should refuse to make 
 any admission as to time and conditions, there would necessarily 
 arise a strong inference that the demand was just ; that this 
 was a case in which it was scarcely possible for the plaintiff to 
 establish his claim with all the precision of legal evidence, which 
 might be expected in mercantile dealings of a higher nature; 
 and that one of the objects of introducing the rule for the exa- 
 mination of parlies, was to supply these unavoidable defects in 
 more formal evidence. L. B. 6, 11 Dec. 1833. 
 
 So, in an action for land, where one party produced a grant 
 from government, which the oilier parly admitted to be genuine, 
 but denied that il was conclusive against him, the D. Judge in- 
 quired of the S. C., whether the claim under the grant must 
 necessarily supersede all others, and whether therefore he was 
 to consider the case as decided, without the necessity of hearing 
 evidence, as suggesled by the 4lh par. of the circular letter to 
 D. Judges of 15 April 1835. The S. C., after informing the D. 
 Judge that the grant was not necessarily conclusive (vide infra,
 
 Examination of parties in lieu of oath. 153 
 
 Utle Land), observed, lhat Ihe proper course would be to exa- 
 mine tbe party who admitted the grant to be genuine, as to the 
 grounds on which he intended to contest its eflicacy, after which 
 it would be easy to decide whether the facts alleged, supposing 
 them to be proved, would be suflicicnt to set aside the govern- 
 ment grant, as affecting the land in dispute; that this was the 
 test, by which very many actions might be disposed of, without 
 incurring the expense of going into evidence ; because, if the 
 facts stated, whether by the plaintiff or defendant, were such 
 as, if proved, would not support the action or defence, it was 
 plain that to allow such party to go into proof of those facts 
 would be a mere waste of time. L. B. 20, 23 Nov. 1 835. 
 
 In an action for goods sold and delivered, in which the 
 plaintiff applied to the D. C. for Nantissement, or provisional 
 payment, one of the grounds on which the application was re- 
 sisted was, that as the R. Dutch law required that the sales- 
 book of the plaintiff, on which document the application was 
 founded, should be supported by the oath of the merchant, the 
 plaintiff ; and as, by the new system of procedure, no oath could 
 be administered to a party in a suit, therefore the ground of 
 the application remained incomplete, and the right to Nantisse- 
 ment could not be enforced. But the S. C. overruled this ob- 
 jection, observing, That though the oath was abolished, the 
 rules of practice had substituted the examination of the party, 
 under penally if he should practise deception, and that, in the 
 opinion of the court, the declaration thus substituted would be 
 fully equivalent to the oath for the present purpose , that 
 though, as a mode of final decision by reference to the oath of 
 the opposite parly, the mere declaration could not be received 
 as the decisory oath was before its abolition (unless indeed the 
 adverse party consented to leave the point at issue to the de- 
 claration in open court of his opponent), still, on a question 
 like the present, where the object was merely to satisfy the 
 mind of the court, whether the goods were delivered or not, it 
 was difficult to imagine a case in which the examination, not 
 merely of the plaintiff, but of the defendant, and not merely b\ 
 Ihe court, but by each other, would be more likely to promote 
 the discovery of the truth 5 and that the right of Nantissement
 
 15V I'.. rumination of parties Moor women. 
 
 M-emed to go hand in hand ^ ith llic main objects which the 
 new system of judicature proposed to itself, namely, speedy de- 
 rision, and tho extracting as much as possible of the facts from 
 the lij)> of the parties themselves. Clark v. Mahamado Lebbe, 
 rolombo, "\ov. 1835. Infra, title Nantissemcnt. 
 
 In a suit by a wife against her husband for a separate main- 
 tenance, on the ground of ill-treatment and abandonment, the 
 defendant denied ill usage on his part, alleging that his wife had 
 deserted him under the influence of her relations, and offering 
 to receive her home again : And he applied for an order on her 
 to appear personally in court at the trial, for the purpose of 
 being questioned by him under the 29th rule. This application 
 being opposed on the part of the wife, the 1). C. rejected it, on 
 the ground that there appeared no necessity for putting her to 
 this inconvenience. The S. C., however, set aside this decision, 
 and ordered that the plaintiff be directed to appear in the D.'C." 
 on the day of hearing ; observing, That this was a case very fit 
 for the examination of the plaintiff, as to the ground of her 
 complaint against her husband, more especially as the defendant 
 alleged that she had been taken away from his house by her 
 relations ; that as he professed himself willing to receive her 
 back again, it might very possibly be in the power of the D. C. 
 to reconcile the parlies, and induce the plaintiff, when free 
 from the influence of perhaps bad advisers, to return to her 
 husband ; and that she would be under the protection of the 
 I), .fudge, \\lio would no doubt take care that no offensive 
 or improper questions were put to her. Xo. 955, Caltura, 
 
 1 May 1S35. 
 
 \\ c had occasion, supra, 127, 8, to observe on the reluctance 
 enured by Moorish women to be seen publicly in a court of 
 justice, and the impossibility of yielding to their scruples, as 
 regards their appearance as witnesses. The S. C. has, in like 
 manner, refused to interfere, to prevent Moor women, when 
 engaged as parlie< to a suit., from being summoned to the court, 
 for the purpose of vi\;\ voce examination, Petn. Hk. of 1835, 
 t ; le;i\ing it to the discretion of the D. C., whether such 
 attendance were ur< cssary for the purposes of justice. L. B. 28> 
 30 April 1834 : Tetn. Bk. of 1834, p. 151.
 
 Examination, only of parlies to the suit. 155 
 
 But however liberally the courts may be inclined to decide in 
 favour of this right of examination, no persons can be made 
 subject to the rule, who are not actual parlies to the suit : Thus, 
 in an action to recover a debt due b\ the defendant to a third 
 person, and assigned by that person to the plaintiff, application 
 was made by the defendant to he allowed to examine as a 
 party the assignor of the debt, as to alleged payments made to 
 him by his debtor, the defendant, before the assignment of the 
 debt to the plaintiff. The D. Judge, being doubtful as to the 
 propriety of granting this application, submitted the point l< 
 the S. C. The Judges directed an answer to be returned. That 
 it might be sufficient to say that, as the 29th rule only related 
 to actual parlies to the suit, and directed moreover that such 
 parties should be liable to mutual examination, the person in 
 question, being no party to the suit, could not be examined 
 under that rule ; but further, that there was nothing to pre- 
 vent the assignor being called and sworn as a witness, not in- 
 deed by the plaintiff, if by the terms of the assignment the as- 
 signor had an interest in supporting the debt due to him by the 
 defendant, and assigned by him to the plaintiff, but by the de- 
 fendant, if he thought proper to do so, to prove the alleged pay- 
 ments, for which purpose the assignor would be a competent 
 witness, inasmuch as such payments would be facis adverse to 
 his interest (supra, page 137)-, that to allow a person so 
 situated to be considered as a party to a suit, in order to be exa- 
 mined in that capacity, would be to put an overstrained con- 
 struction on the rule, and would render all persons, who had 
 transferred their rights to others, sellers of land for instance, 
 liable to be thus rendered constructively parties, in order to 
 admit of this partial examination, by vshich the party examining 
 would take his chance of any disclosure favourable to himself, 
 while the opposite party Mould be precluded from explaining 
 sueh disclosure by cross-examination. L. B. 5, 6 Oct. 1835. 
 No. 4099, Colombo, 30 Dec. 183;>. 
 
 As regards soldiers, we have soon, supra, p. 97, that as by 
 the terms of the Mutiny Act, they cannot be arrested, or com- 
 pelled to appear, for a debt under 30?., a plaintiff in such case 
 loses the privilege of examining the defendant, if the latter do
 
 156 Examination of parties how taken. 
 
 not appear voluntarily. This, as was remarked, is an exception 
 to the rule, arising unavoidably out of the statute, which, pro 
 tanto, supersedes the rules of practice. 
 
 The examination of parties should he taken down by the D. 
 Judge himself, and by no other hand, unless in case of absolute 
 necessity, such as the Judge being disabled from writing. A 
 I). Judge having submitted his view of this subject, as one 
 among several plans for lightening the business of his court, the 
 Judges directed the following answer to be returned : " With 
 respect to your suggestion, that the viva voce statements of par- 
 ties may be taken down by the secretary, without the inter- 
 vention or superintendence of the D. Judge, the Judges of the 
 S. C. feel compelled to express their dissent. They consider that 
 it would, in reality, make the secretary the judge of the court, 
 in a most material part of the proceeding. One of the prominent 
 objects of the new system of judicature is, to constitute the D. 
 Judge a summary and equitable arbitrator between the parties, 
 in all cases, at as early a stage of them as possible ; in order 
 dial, when practicable, a decision, satisfactory to both parties, 
 may be pronounced at once, upon their mutual statements and 
 admissions: Or, when that is impracticable, that the D. Judge 
 may at least sift out as much of the truth as possible, and at the 
 same time confine the parties to such statements as are really 
 material. These are functions, requiring more experience and 
 discrimination than can be expected, in the opinion of the 
 Judges, to be found in the secretaries of many of the D. Courts. 
 .Bat even supposing the secretaries lo be fully competent to the 
 performance of them, they are duties, which it never was in- 
 tended should be imposed upon them. The most scrupulous 
 jealousy is observable, throughout the Charier, of any exercise 
 of judicial authority, except by the 1). C. itself, including asses- 
 sors as well as judges. As regards the advantage also lo the D. 
 Judge, there can be no doubt that lie will have much greater 
 facility in directing the ulterior proceedings, and in coming to 
 a correct decision of the case, by having himself heard, in the 
 first instance, the allegations of the parlies, explained and elu- 
 cidated by his own questions. Much, therefore, as the Judges 
 lament their inability to relieve you from the pressure of busi-
 
 Examination of parlies punishment for deceit. 157 
 
 ness of which you complain, they feel compelled to urge to you 
 the necessity of still taking this branch of duty upon yourself, 
 as directed by the circular letter of 16 ulto." L. B. 1, 18 July 
 1834. See also the 10th rule of sect. 1. 
 
 It is expressly directed by the 8th, 29th and 30th rules, that 
 the examination of parlies shall, in no case, nor in any stage ol 
 a suit, be upon oath : Where, therefore, an appellant prayed 
 that the respondent might be sworn at a temple, touching the 
 matters in dispute, it is scarcely necessary to say that the S. C. 
 declared the impossibility of such a course being now per- 
 mitted. No. 25/5671, Mat ura, 15 March 1834. We have al- 
 ready seen, however (supra, p. 153), that, for certain purposes, 
 the declaration of a parly in the course of examination is equi- 
 valent to his oath under the former practice ; as in support of 
 his claim for nantissement. The 29lh rule provides for Ihe mo- 
 derate punishment of any party, who shall attempt to deceive 
 or mislead the court by his answers. And where a D. C. 
 awarded double costs against a plaintiff, who had endeavoured 
 to impose on the court by his answers, the S. C. confirmed this 
 decision, considering the double costs in the nature of a punish- 
 ment for that attempt ; though it expressed doubts whether the 
 D. C. would have been justified in imposing double costs, merely 
 because the action was unfounded, unless attempted to be sup- 
 ported by the false statements, made by the plaintiff in person 
 in court. No. 823, Waligammo, 1st July 1835 ; supra, p. 76, 7. 
 See also title False Claim. 
 
 As regards the examination of parties accused of criminal of- 
 fences, the 4th rule of Sect. 2 directs how Ihe defence of persons 
 so situated shall be taken down by the D. C.; and expressly pro- 
 hihils the taking of any confession, unless freely and voluntarily 
 given. See also supra, p. 115. In the latter end of 1S35, the 
 K. A., in the zealous but temperate discharge of his duly, 
 brought to the consideration of the S. C., the question whether 
 D. Judges ought not to examine persons charged before them 
 with criminal offences, by putting such questions as, without 
 leading a prisoner to criminate himself, might lend to throw 
 light upon Ihe subject of inquiry, and to shorten and simplify 
 lh.e mal'ers, to be ultimately proved by evidence. This appli-
 
 158 }..i<i,ninalioH of yariies criminal. 
 
 t-ation was made in consequence of one of the D. Judges Laving 
 declined to interrogate parlies so situated, on the ground that 
 he did not consider himself at liberty to do more than receive 
 the statement, spontaneously made hy the prisoner. This sug- 
 ion received from the three Judges the grave and matured 
 ronsiderulion, to \\hich it was entitled; the result of which \\n> 
 the following decision, unanimously and fully concurred in : 
 "The court considers that this is a matter, which would better 
 be left to the discretion of the D. Judges, than be made the sub- 
 ject of an express order. There can be no doubt that, accord- 
 ing to the later decisions in England, the D. Judge, acting in 
 his capacity of committing magistrate, has the power to put 
 questions to the party accused, .taking care that such questions 
 he so put as not to ensnare the prisoner, or to draw from him 
 any admission which he might not intend to make. But if an 
 order were to be made by the S. G., directing positively that 
 such interrogation should take place, it is to be feared that many 
 of the D. Judges might misconstrue the direction, and imagine 
 that it became their duly to question the prisoner, rather as 
 public prosecutors, than as nculral and impartial Judges." Cri- 
 minal Minutes, 1C Dec. 1835. 
 
 EXECUTION CIVIL . 
 
 Against properly, or person, or both ; when to issue ; practice now uni- 
 form through Ceylon, page 159 \Vritsof possession 159 Exn. for balance; 
 forms adapted to circumstances, 100 By wife against husband's property, 
 but not person, ICO In forma paupcris, without stamp, 161 Of 2 decrees, 
 first has preference, 101 Into oilier districts; 36th rule; writ transmitted 
 from 1st court, indorsed by 2d; distinction between process and exn., 162 
 In general, all property may be seized ; goods sold and delivered, though 
 not paid for; land, notwithsianding clause against alienation, 163 Lists of 
 property; no charge for 16i Claims to be proved; Reg. 13 of 1827, 164 
 Holder of land or of bill of sale, prima facie owner ; but non-production of 
 lilies, no ground to stop sale, 165 Fiscal may slay sale, to inquire into 
 security 166 But exn. may be staid by D. C. independently of rego. 166 
 Prosecution for perjury, not necessarily tostay exn. 166 Intervention ; af 
 any time before proceeds paid over, but not after ; inaccuracy in rule 3i 
 167 Payments, bow made; receipts, when taken 168 How money, levied
 
 Execution against person, or property. 159 
 
 in another D. transmitted to original court- 170 Setting aside sales in. exn.; 
 fiscal should have notice 171. 
 
 Tins is the legal term, to denote the writ \vliich a court grants 
 to a parly, to satisfy any judgment which he may have recovered 
 against the adverse party, whether by putting him in possession 
 of land, or by realizing the sum of money awarded to him, or 
 by any other mode which the terms of the judgment may render 
 necessary. The following are the points relating to execution, 
 which have been decided by the S. C. 
 
 By the 35th rule of sect. 1, if judgment be pronounced for a 
 sum certain, execution may issue, cither forthwith, or at any 
 time afterwards, against the property, moveable or immoveable, 
 or against the person, or against both, as the D. Judge shall con- 
 sider the case may require. But if no exn. be taken out within 
 twelve months after judgment, it must not issue without a pre- 
 vious rule on the opposite parly, to show any cause he may have 
 against its issuing. As the rules of practice are to govern all 
 the courts in the island, whether in the Kandyan or Maritime 
 districts, any rule or custom, which prevailed on this or any 
 other point of mere practice, must be considered as superseded. 
 And where a plaintiff, in one of the Kandyan D. C., who had 
 already obtained exn. against the property, insisted, against the 
 opinion of the D. Judge, on his right to exn. against the person 
 also of the defendant, by virtue of the alleged practice of former 
 Kandyan courts, the S. C., in answer to a petition (not a regular 
 appeal) presented by the plaintiff, observed that by the 35th 
 rule, the granting or withholding the twofold exn. was made dis- 
 cretionary, in the first instance, with the^D. J., subject of course 
 to appeal to the S. C., as to the exercise of that discretion. Pe- 
 tition Book of 1835, p. 174, L. B. 21, 25 Nov. 1835. 
 
 One of the D. Judges inquired whether the writs formerly in 
 use, to put parties in possession of land octrees, for which thej 
 had obtained judgment, could still be issued under the new sys- 
 tem 5 whether the fiscal should still be directed to report any 
 opposition to such writs to the court ; and also whether these 
 writs should be on stamp. The S. C. returned for answer, 
 That there was nothing in the new system of procedure to pre-
 
 160 ution ft;/ irife against husband. 
 
 vent writs of possession being issued as heretofore ; that no 
 special directions to the fiscal as to opposition were necessary, 
 because it \\as tlie (Inly of that officer to report such opposition 
 to the court, \\ ilhoul any instructions ; and that as these writs 
 were in (mill "writs of cxn. against property," though usually 
 called "writs of possession, 1 ' to distinguish thorn from the more 
 ordinary writs of e\n., they must he on stamps, like any other 
 Mi-its of PXII. L. B. 9, 1C July 1834. 
 
 On another occasion, a D. Judge inquired whether exn. might 
 issue for the balance of the sum decreed, part of that amount 
 having been paid, and whether the forms Nos. 19, 20, and 21 
 might be altered accordingly. The S. C. observed, That it did 
 not distinctly appear whether exn. had already issued and been 
 partly enforced; or whether, the payment having been made 
 voluntarily, in part satisfaction of the judgment, exn. was now 
 for the first time asked for, to recover the balance ; but that in 
 either case, there would seem to be no objection to exn. issuing 
 for the balance, without the necessity of a fresh suit; and that 
 the fonms in question, as well as all the other forms, were in- 
 tended for ordinary cases, but must no doubt be altered when 
 occasion required, to meet the circumstances of any particular 
 rase. L. 15. 22. 25 Jan. 1836. 
 
 A queslion of some nicety arose in a northern court; whe- 
 ther exn. could be granted against a husband, at the suit of 
 his own wife. The parties were Malabar, and the action was 
 brought by the wife, to recover the sum of 30/., being the pro- 
 fits of certain property which had been settled on the wife by 
 her parents, at her marriage. Having obtained judgment, she 
 took out exn. against her husband's property, and afterwards 
 moved for exn. against his person, on which motion the doubt 
 expressed l.\ (he I). Judge arose. The S. C. directed an an- 
 ^erto be returned. That as the law admits of absolute and 
 distinct separation of interes! and property between husband 
 and wife, the law must also provide an adequate remedy for 
 either party, \\hoseri-hfs nny be infringed by the other; 
 lhal the present action would have been more regularly rough t 
 tiy the wife's parents, or by her other relations, if the parents 
 were dead, on behalf of the wife: or at least, that it would
 
 Execution by pauper; conflicting decrees. 161 
 
 have had a less anomalous appearance, if they had been joint 
 plaintiffs, because, as Ihe properly in dispute had been be- 
 stowed upon the wife for her exclusive use and beneGt, there 
 seemed little doubt that h;r family had an interest in seeing 
 that it was preserved entire ; that even as the case stood, 
 however, exn. against the property of the husband, as defend- 
 ant, might legally issue, when that proceeding was necessary to 
 secure the w ife's separate properly ; but that as regarded exn. 
 against the person, it seemed so inconsislent with the very 
 essence of ihe marriage stale, so directly opposed to the relative 
 rights and duties of the parlies, thai the S. C. could nol give its 
 sanction to such a proceeding ; thai as Ihe law on the subject 
 of marriage among the natives, especially in the northern pro- 
 vinces, depended so much upon custom, it would be desirable 
 for D. Courts, on all questions depending on such law or 
 custom, to take the opinion of those natives, whose knowledge, 
 experience, and respectability, entitled them to the greatest 
 weight, before referring Ihe mailer lo the S. C. L. B. 21 , 28 Oct. 
 1834. Jt should be mentioned that this was the view taken 
 more particularly by the C. J. and second P. J. The senior P. J. 
 expressed himself inclined lo agree that " exn. against the 
 person of the husband could hardly be allowed;" but did not 
 feel certain on the subject, 4k inasmuch as husband and wife 
 were permitted, on valuable consideration, to contract with 
 each other." 
 
 Where a parly obtains judgment in forma paupcris. exn. 
 should be granted without stamp} because, till the exn. is pro- 
 ductive, Ihe pauper must be supposed to have no more means 
 t> pa}' the costs, than before judgment recovered. L. H. 19, 
 21 Nov. 1833. 
 
 When there have been two suits between the same parlies, 
 respecting the same object, and the decrees are conflicting with 
 oach. other, not an uncommon occurrence in Ceylon formerly, 
 especially as regards suits for land, that which is prior in 
 [i;ii;it.of date ought to have the preference as to being put in 
 'xn. : And if the parties cannot agree on the exn. of th< 1 two 
 decrees at the same lime, Ihe lirst should be carried into effect 
 in the first place, without reference to the second ; and then the 
 
 11
 
 162 Execution into other districts. 
 
 second should be enforced, as far as the exn. of the first has left 
 that practicable. L. B. 12, 17 Aug. 1835. This is given here 
 as the general and most natural course of proceeding; but cir- 
 cumstances may, no doubt, present themselves, such as fraud 
 in obtaining the first judgment, which would justify a departure 
 from it. 
 
 15 v the 36th rule of sect. 1, if it appear by the return to the 
 writ of exn., that the defendant is resident out of the district in 
 which judgment was obtained, or that he has not sufficient pro- 
 I>erty there to answer the judgment, the plaintiff may move 
 that exn. issue into any other district, and the writ shall there- 
 upon be transmitted to the Judge of such other district, who 
 shall endorse and direct it to the fiscal of his district for exn. ; 
 and, when executed and returned, shall transmit it, with the 
 sum levied, or the body of the defendant, to the court out of 
 which it issued. The course prescribed by this rule must be 
 adhered to, both as regards the transmission of the writ by the 
 original D. C., and the endorsement of it by the second D. J., 
 each of these precautions being considered necessary to guard 
 against fraud. As regards the first branch of the rule, where a 
 plaintiff, having obtained judgment in one D. C., took it to an- 
 other D. C., and obtained exn. from thence, the S. C., on the 
 point being submitted, declared that such proceeding was wholly 
 irregular ; and that it could not be supposed that the court which 
 issued the exn. would have taken upon itself so to do, if its 
 attention had been drawn to the fact, that the judgment had been 
 pronounced in another court. L. B. 7, 16 April 1834. So, with 
 respect to the second branch of the rule, the indorsement of the 
 writ of exn. by the second D. J. : It will be seen by the circular 
 letter addressed to the D.Judges and fiscals, 27 Feb. 1834, that 
 a distinction was drawn by the S. C. between process into other 
 districts, as provided for by rule 14, and execution into other 
 districts, as contemplated by rule 36. As regards process, it was 
 considered that, \\ lion the original and second district were both 
 within the same fiscal's province, there was no necessity for re- 
 turning the writ, when the defendant was not to be found in, 
 the first district, to the court out of which it issued, for trans* 
 mission to, and indorsement by, the Judge of the district ia
 
 Execution all properly liable. 
 
 which the defendant may be found, because such second district 
 was still within the scope of the fiscal's authority, that is, within 
 his province : (See also L. B. 11 Feb. 1834, to the same effect.) 
 But that, when execution was carried into a district, different 
 from that in which it was obtained, it was better that it should 
 go through the court of the district, in w hich it was to be put in 
 force; because, as there might be other writs of exn. against the 
 same person or property, such court ought not to b* left in 
 ignorance of a seizure about to be made, at the suit of a party 
 residing in a foreign district. And see L. B. 19, 27 Feb. 1834, 
 where the point arose, which gave occasion to this circular 
 letter. 
 
 With respect to what property is liable to be taken in exn., 
 it is to be observed, that the distinctions of the English law, 
 between personal and landed property, and between thosa 
 things which are tangible, and those which exist only as a right 
 in law (choses in action, as they are called in the semi-barbarous 
 French of our law terms), are not recognized by the laws in 
 force in any part of Ceylon. All property, moveable or im- 
 moveable, debts due to a defendant, even though not yet re- 
 covered from his debtors, or properly which has been decreed 
 to such defendant, are subject to be seized in exn. Tide supra, 
 p. 90. The fiscal must be careful only to take property, which 
 he has good reason to believe belongs to the person against 
 whom exn. has issued. And it is proper and usual to take the 
 personal property first, and not to seize the immoveable pro- 
 perty, unless the personal be insufficient. 
 
 We have seen that when goods are sold, and the possession of 
 them has been transferred to the purchaser, they become his 
 property, and liable to be taken in exn. for his debts, even, 
 though the price may not bave been paid. No. 1735, Kandy, 
 9 Dec. 1835. Supra, p. 91, where this case is mentioned more 
 fully. 
 
 Land, the ownership of which was disputed, having beeft 
 taken in exn., the B.C., after bearing evidence, decided that 
 it was the property of the defendant, but that it could not be. 
 sold without a special permission from government; on the- 
 ground that the original grant from govt. contained a clause, 
 
 11 .
 
 164 v Execution claims to property, how proved. 
 
 restraining the alienation or assignment of the land, without 
 such permission, until the whole should have been brought into 
 cultivation, which, by a former clause, it was stipulated should 
 be performed within three years from the date of the grant, in. 
 1820. The land was taken in exn. in 1833. The S. C. set 
 aside so much of the decree as required the permission of the 
 govt. to dispose of the property in exn., on the ground, 1st, that 
 as the condition of cultivation was to he performed within three 
 years, it might be presumed to have been fulfilled ten years 
 ago, and, in that case, there would be nothing to prevent the 
 alienation by the defendant himself, without consent; but, 2dly, 
 that, in truth, the seizure and sale in exn. constituted no 
 alienation by the defendant, but were an assignment by opera- 
 tion of law ; and that the purchaser of the land in exn. must 
 take it, subject to the same conditions, and liable to the same 
 forfeitures, as it was subject and liable to in the hands of the 
 original grantee. No. 7999, Negombo, 16 Dec. 1833. 
 
 We have seen, supra, page 79, 80, that as the 25th clause 
 of regulation No. 13 of 1827, requires the fiscal to make out 
 lists of properly seized, the party cannot make any charge 
 against his opponent for such list. L. B. 2, 18 July 1834. 
 
 The mode, in which claims to properly seized are to be brought 
 forward and decided, is provided for by the 26th and two fol- 
 lowing clauses of this regn., No. 13 of 1827, by which fiscal* are, 
 by the 35th rule, directed to govern themselves, in enforcing 
 writs of exn. The course pointed out by those clauses is, that 
 " the court shall call on the several parties to establish their 
 respective claims to such property ;" which may generally be 
 done, without putting the parties to the expense and delay of 
 fresh actions, by making the claimants intervene in the suit. 
 At all events, the claimants should be called upon to establish 
 their right in the first instance: And where a D. C " ordered 
 the plaintiff to sue the claimants," the S. C. observed, that such 
 course would defeat the object of the regn., and would furnish 
 a mode by which writs of exn., already so much protracted and 
 evaded, might be made absolutely nugatory, for if Ihc plaintiff 
 were to bring his separate action against each claimant, which 
 be would be obliged to do, according to the view taken of the
 
 Execution who deemed primd facie owner. 165 
 
 subject by the D. C., and were to obtain judgment and exn. 
 against each, a fresh set of claimants might^ be ready to inter- 
 cept those exns, and to drive the plaintiff to a new set of ac- 
 tions; a course whi h might amount to a total defeat of justice. 
 L. B. 16, 26 Sept. 1835. No. 1404, Islands, 25 Nov. 1835. 
 
 In conformity with the 26lh clause of the regn., which pro- 
 Tides that, in cases of disputed property, the person in posses- 
 sion shall be considered by the court to be, prima facie, the 
 proprietor, till the contrary be shewn, it has been decided that 
 the holder of the bill of sale shall be considered such prima facie 
 owner ; and that where land is seized by virtue of an exn. against 
 such holder, a claimant is bound to shew his title. No. 3470, 
 Panlura, 6 Feb. 1834. On the other hand, the non-production 
 of the title-deeds of the land seized is not, of itself, a ground 
 for postponing the sale of it in exn. This was the opinion of 
 the Judges, on a case in which the fiscal objected to sell the land, 
 unless the title-deeds were produced, or unless the plaintiff gave 
 security to indemnify the fiscal against any damage. The S.C. 
 observed, That, in many instances, no written titles to land 
 were in existence; that, in some cases, where they did exist, 
 the defendants themselves would probably secrete them, if by 
 that method they could defeat the sale in exn., and in others, 
 the deeds might be deposited with third parties, whom it might 
 be difficult to compel to produce them, though, in all probability, 
 they would come forward of their own accord, to put forth the 
 claims, to secure which the deposit had been made: that the 23d 
 and five following clauses of the regn. appeared to give the 
 fiscal all the security he could require, vhile the rules there laid 
 down, as to who should be considered prima facie owners, and 
 regulating the mode in which notice of the intended sale should 
 be published, and claims reported and inquired into, would make 
 it difficult for the fiscal to go wrong, or for any persons, having 
 real claims on the property seized, to remain ignorant of the 
 intended s:!e; but that, if any difficulties should arise, as from 
 the boundaries of land being too undefined to permit of the 
 proper notice being given, or in similar cases, the fiscal would 
 then report the difficulty to the 1). C., which would issue such 
 orders as might become necessary. L. B. 9, 15 Oct. 1835.
 
 166 Execution when to be stayed. 
 
 Willi respect to the stay of sale under cxn., which the fiscal 
 is directed by the 27th clause of the regn. to make, if the pro- 
 perty be claimed after seizure, unless such security of indemnity 
 be given him as he shall deem sufficient, the question was pro- 
 posed to the S. C., whether a fiscal would be justified in post- 
 poning the sale, for the purpose of giving him time to inquire 
 into the validity of the security offered. The answer returned 
 was, That the words of the regn. " such security as the fiscal 
 shall deem sufficient," necessarily implied that he should have 
 reasonable lime to satisfy himself on this point, and that there 
 was the less ground of objection to such construction, at least 
 on the part of the claimant, because such delay would operate 
 in favour of his demand that the sale should be stayed; and 
 that, on the other hand, the plaintiff could not complain of the 
 delay, since, if time were not taken to make the necessary in- 
 quiry, the fiscal would be obliged to refuse the security tendered. 
 L.B. 2 1,28 Feb. 1834. 
 
 But it is to be observed, that stay of exn. is not confined to 
 the particular class of cases, contemplated by the 27th clause of 
 the regn. Reference was made to the S. C. by a D. Judge, 
 whether an application for a stay of exn. could be entertained 
 at all by the court; whether it must not be made to the fiscal, at 
 the time of the sale, according to the 27th clause, and in no 
 other manner. The S. C. returned for answer, That it did 
 not follow, because the fiscal was directed by the Regn. to ob- 
 serve a certain course of proceeding on all claims made to 
 the properly seized by him, that the court should in no case 
 attend to an application for a stay of exn. ; that, in truth, the 
 proceedings were quite distinct, the 27th clause contemplating 
 a claim of right, made by a third person to the property seized, 
 \\hercas a stay of exn. might be moved for, without any re- 
 ference at all to the property sei/ed, or to be seized; that it 
 might be on the ground of the judgment having been obtained 
 by fraud, or for many other reasons, each of which must be 
 derided, as regarded the success of the application, on its own 
 merits. L. 15. 29, 30 Oct. 1833. It has been bolden by the 
 S. C., that the prosecution by the losing party of a witness for 
 perjury, was I necessarily a ground for staying exn. Peti-
 
 Execution right of intervention. 167 
 
 lion Book of 1835, p. 98. See Warwick v. Bruce, 4 3VI. and S., 
 140, which furnishes a direct authority for this decision. 
 
 According to the practice of the civil law, as it has always 
 been administered in the Maritime Provinces, any party has a 
 right to intervene in a suit, and to put in his claim to a share of 
 the properly taken in exn., at any lime before the proceeds 
 thereof are actually paid over to the person, at whose suit the 
 exn. is issued. And see further, p. 169. And there seems to 
 be no reason, as the S. C. expressed itself on one occasion, for 
 not observing the same practice in Ihe Kandyan Districls. 
 L. B. 11, 16 Dec. 1833. The question in lhat case arose on a 
 claim made by govt. lo property seized in exn., on which oc- 
 casion the S. G. observed that though government, generally 
 speaking, was considered to have a right of priority over all 
 other creditors, whereas private persons could only come in 
 concurrence with the parly who had obtained exn., and with 
 any other credilors, for a proportionate share of the property 
 seized, still the claim made by government must be established 
 in due course of law, before it could DC allowed ; and that the 
 plaintiff, in the original action, ought to have notice of the day 
 fixed for hearing the government claim, to give him an oppor- 
 tunity of resisting any fraudulent admissions, which the de- 
 fendant might he templed to make in favour of government, 
 for the purpose of exempting his property, situated elsewhere, 
 from such claim. The writer of Ihese notes must not quit this 
 subject, without pointing out an inaccuracy which is to be 
 found in the 32nd rule of sect. 1, and of which he is anxious 
 that the blame should rest, as it ought, entirely with himself. 
 That rule declares thai a third parly may intervene, in any 
 stage of a suit, lefore execution. But this, as we have just seen, 
 is too limited a scope for the right of intervention, according 
 to the law as il has hitherto been administered. Whether it 
 might not be beneficial so to limit this right, instead of per- 
 mitting the exercise of it at any time before Ihe proceeds of 
 exn. are actually paid over, is a question which may perhaps 
 admit of discussion. But in framing the rule in question, 
 there was no intention of deviating from the exisling practice 
 in this respect 5 and Ihe framer of them can only therefore
 
 168 Execution payment over of proceeds. 
 
 frankly admit that the deviation proceeded from inadvertence, 
 and leave it to be remedied by his learned successors, as they 
 shall think proper. Indeed, he must consider himself fortu- 
 nate, if no mistakes of a more important nature have been dis- 
 covered in his Rules of Practice, constructed, as they were, in 
 t'ie very short space of time which circumstances allowed him. 
 
 IJut where the properly h;s been so!d, and the proceeds ac- 
 tuallv paid over to the party suing out execution, it may be 
 considered as a general rule, that a claimant cannot call on 
 such party to refund. And the S. C. so decided in one case, 
 even though the claim had been made before the money was 
 actually paid over: The fiscal sold the land 1 Nov. 1831 ; on 
 8 Feb. 1832, a person claimed the proceeds of the sale by right 
 of mortgage; on 9 April following, however, the creditor was 
 paid his debt out of the proceeds : and the mortgagee brought 
 the present action against the creditor for the amount of I he 
 mortgage, which he contended was a preferable claim. The 
 D. C. dismissed the action, and the C. J., on circuit, affirmed 
 the decree of dismissal, considering that it was now too late to 
 call on the creditor to refund; thai the fault, if any, rested with 
 the fiscal, for not having reported the claim of the mortgagee 
 to the court ; and that the mortgagee must therefore pursue his 
 remedy (if entitled to any) against that officer. No. 6063, Ma- 
 tura, 19 March 1835. 
 
 The mode in which payments are to be made to the fiscal, or 
 rather into the Culchery, whether by the debtor or by pur- 
 chasers of properly sold in exn., is pointed out by the 32nd and 
 following clauses of the Regn. A question of some importance 
 was submitted to the S. C. by a 1). Judge. The fiscal had returned 
 a writ of exn. in one case, together with receipts from all the 
 parties interested, in token of their claims having been satis- 
 fied; and in another case, in which the plaintiff had become 
 the purchaser of the land, with the purchaser's receipt for the 
 amount of the sale, as so much received on account of his 
 claim. The question was, whether these receipts could be 
 received by the 1). C. in lieu of actual payment. The fiscal 
 considered that the practice, if permitted, would facilitate the 
 execution of writs, and might enable plaintiffs to defeat the
 
 Execution payments hoic to be made. 169 
 
 Machinations of Ibeir debtors, to prevent the lands being sold. 
 The S. (J., after making inquiry respecting tbe practice in Co- 
 lombo, directed the following answer to be returned: "It has 
 not been the practice in the court of Colombo, either before or 
 since the establishment of the new judicial system, to admit 
 receipts of plaintiffs, in satisfaction of the writ, except in parti- 
 cular cases. The matter, however, dees not rest on the mere 
 practice of this district. The point has before been under con- 
 sideration ; and though there would certainly be advantages 
 attending the admission of receipts, as pointed out by the fiscal, 
 there is one serious obstacle to that course, as a general rule, 
 and without the special permission of the D. C. By the civil 
 law, the right to property seized in exn. is not completely 
 vested in the creditor, till the proceeds of it are actually paid 
 over to him, by order of the court. Yide supra, p. 167. Until 
 that moment, even while the proceeds are actually in court, or 
 under its control, any third party has a right to bring forward 
 his claim upon the debtor; and if he succeed in establishing it, 
 to take in concurrence his share of the property seized. By al- 
 lowing a plaintiff to become the purchaser of such properly, in 
 satisfaction of his claim, except in special cases, and under the 
 condition about to be mentioned, the opportunity to third par- 
 ties, to bring forward their c aims, would be taken away ; and 
 the right of concurrence, which the law r gives them (whether 
 wisely or otherwise is another question) would be defeated. 
 Where, however, the plaintiff is the mortgagee of the land, or 
 of other property sold in execution, and he becomes the pur- 
 chaser, he has been allowed, on motion to the court, and by a 
 special order to that effect, to take possession of the property 
 so purchased, without actually paying the amount. And the 
 same indulgence has sometimes been allowed in other special 
 cases, where this course has appeared, under the circum- 
 stances, to be most beneficial to all parties. As, for instance, 
 where a plaintiff, being desirous of becoming the purchaser, is 
 willing to deduct a larger amount from his claim, than could be 
 expected to be realized in money by ordinary sale. These, 
 and the like cases, must be left to the discretion of the D. C. to 
 decide upon. But in all such instances, the court has re-
 
 170 /:.rcculion hoic returned from other districts. 
 
 quired a notice to be affixed in or about the court-house, for a 
 certain period, usually a fortnight, of the intention to allow of 
 this transaction, if no good cause, in the shape of adverse 
 claims or otherwise, be shewn to the contrary. And till the 
 expiration of such period, without cause shewn, the purchase 
 by the plaintiff is not considered complete. The judges, there- 
 fore, cannot recommend to the D. Courts, to allow of a greater 
 latitude in the admission of receipts, in lieu of money, than the 
 practice thus detailed would warrant." L.B. 15, 31 July 1835. 
 The question having been submitted to the S.C. how money, 
 levied in another district, ought to be transmitted to the court 
 out of which the exn. originally issued, the following answer 
 was directed to be returned, after full consideration of the 
 subject, and after inquiring from the judges of the D. Courts 
 of Colombo, from the fiscal of the Western Province, and from 
 other officers, as to the course pursued, and the reasons for it : 
 "By the 36lh rule, the judge of the second or substituted D. 
 C. is to transmit the writ, when duly executed and returned by 
 the fiscal, to the court out of which the exn. issued, together 
 with the sum levied, etc. The first question, therefore, is, 
 how the fiscal is to return the writ and sum levied, to such se- 
 cond or substituted court: This, as it appears to the S. C., 
 should be performed as in ordinary cases, where the exn. is en- 
 forced in the same district in which it has issued; that is, the 
 fiscal should pay the money into court, not literally, for the 
 court itself, as will be seen by reference to the regn., never 
 touches any money ; but into the Cutcherry, which is in truth 
 the treasury of the court : The writ is returned, strictly and 
 lileralU speaking, to the second court itself. The second ques- 
 tion is, how the subslitulcd D. J. ought to transmit the execu- 
 ted writ and the sum levied to the original court. No unneces- 
 sary delay ought to take place in the transmission 5 nor ought 
 the second court to wait for any specific motion or application 
 for that purpose. On communication with the D. Judges of 
 Colombo, it has been suggested that the practice now in use 
 should be continued; that is, that on the proceeds of the exe- 
 cution being deposited in the Cutchery , from whence all 
 monies are transferred daily to the treasury, a draft for the
 
 Execution setting aside sale, notice to fiscal. 1T1 
 
 amount so deposited be at once furnished to the D. J., who 
 would exchange it for a treasury draft, in favour of the judge of 
 the district, out of which the writ originally issued ; and the 
 latter judge, on receiving it, would endorse it over to the party 
 entitled to it. To this arrangement there appears no objection, 
 provided none be found to exist in other quarters. But in 
 whatever mode the remittance may be effected, the S. C. is de- 
 cidedly of opinion that, as a general rule, applicable to all the 
 D. C. in the island, it is far preferable that the monies levied 
 should be paid into the Cutchery, as the treasury of the court, 
 and, when necessary, be transferred from one Cutchery to an- 
 other by draft, than lhat they should pass through any other 
 channel. L.B. 2, 15 Oct. 1835. 
 
 The question was brought to the notice of the S. C. by a fis- 
 cal, whether sales in exn., once completed, ought ever to be 
 set aside, at least without notice to the fiscal, so as to give that 
 officer an opportunity of becoming a party to the suit, or of de- 
 fending his acts, or those of his officers. The fiscal "claimed 
 to be entitled to this consideration, and to lhat degree of indul- 
 gence and protection for himself and his officers, until their 
 acts were shewn to be wrong, which the consideration of the 
 difficulties he had to contend with, and of his having generally 
 no personal interest to bias his conduct, shewed to be reason- 
 able, and which was necessary to enable him effectually to exe- 
 cute his duties/' The judges of the S. C., in reply, after as- 
 suring the fiscal of their earnest desire to afford him, and every 
 other officer of the court, that protection which he had an un- 
 doubted right to claim from their tribunal, observed, That from 
 inquiry into the practice of the Western Province, it appeared 
 to have rarely, if ever, happened, lhat a fiscaFs sale had been 
 set aside in the Court of Colombo 5 but that cases might un- 
 doubtedly arise in which justice would demand that a sale, 
 though apparcntlj effected with all the formalities and prelimi- 
 nary precautions required by the regulation, should be rescind- 
 ed ; as, for instance, if it could be proved that the fiscal'* offi- 
 cer, the plaintiff, and the defendant, were all in collusion toge- 
 ther, to prevent due publicity being given of the intended auc- 
 tion, or to refuse to receive the claims which might be preferred
 
 172 Execution setting aside sale notice to fiscal. 
 
 at the moment of sale; that it was but reasonable, however, 
 that the fiscal should have judicial notice of any action, institu- 
 ted for the purpose of setting aside a sale in exn.; that among 
 other reasons, the two following appeared obviously to justify 
 the propriety of such notice ; first, that the ground for seeking 
 to annul the sale might often be some alleged irregularity in the 
 liscaPs department in conducting it, in which case he surely ought 
 to have an opportunity of defending his own conduct and that 
 of his officers ; secondly, that if the fiscal had no notice of such 
 proceeding, he would proceed to put the property up to sale 
 again, on failure of Hie first purchaser to complete his con- 
 tract; and though the loss occasioned by such resale ought to 
 fall on the person ultimately proved to be wrong, still he might 
 turn out to be insolvent, and at all evenls, much inconvenience 
 might be sustained by parlies innocent and ignorant of what 
 was going on; that under these circumstances, the S. C. 
 would feel called upon to direct notice to be given in future to 
 all the fiscals of any proceedings of this nature ; but as the 
 course to be adop'.ed on fiscal's sales was prescribed with 
 some minuteness by Regn. No. 13 of 1827, and as it was pro- 
 bable that that regulation might shortly undergo revision, il 
 might be more convenient to bring this matter to the notice of 
 the Legislative Council, wilh the view of introducing a provi- 
 sion into the new ordinance, to the effect proposed. L. B. 14 
 Nov., 11 Dec. 1835. The writer of these notes is unable to 
 say whether the measure, here anticipated, has been carried 
 into effect. But it is scarcely necessary to repeal his opinion, 
 that either by legislative or judicial authority, the notice, con- 
 templated by the letter, ought to be required. With respect to 
 the foregoing decisions on the Reg. of 1827, they can of course 
 be only applicable to any new ordinance, su far as the former 
 provisions are repealed, or as far as they may bear analogy to 
 those which may have been substituted for them. 
 
 As to setting aside an execution, improperly issued, vide Ex- 
 eculion-parate. See also title Sequestration.
 
 173 
 
 EXECUTION CRIMINAL. 
 
 Tide supra, title Appeal in criminal cases. 
 
 EXECUTION PARATE. 
 
 In what cases granlablc, page 173 Can it be recalled by D. C., if impro- 
 perly obtained? \1\ Power of D. C. to rescind or alter its judgments, in 
 general 175 Authorities in favour of it, in particular cases 175 Restitutio 
 in integrum, explanation and application of 175 Equitable jurisdiction of 
 D. C. 177 Reference by D. J. to S. C. for advice under R. 47, in accord- 
 ance with civil law 177 Supplicatio 178 As to par. exn. in particular; ar- 
 guments and authorities in favour of power of D. C. to rescind, 179 Par. 
 exn. not to be favored 179 Hardship of obliging party to wait for appeal 
 179 Question of practice, ralher than law 181 Arguments and authorities 
 i-ontra 182 Majority of S. C. in favor of this power 183. 
 
 THE principle of the process of parate execution is, that cer- 
 tain facts, which the law has declared shall render a party liable 
 to this summary course of proceeding, being established to the 
 satisfaction of the court, the previous stages of an ordinary suit 
 at law are dispensed wilh, and the creditor is at once entitled 
 to seize in execution the person or properly of his debtor, in sa- 
 tisfaction of his debt. L. B. 23 June 1834. It is called by Voet, 
 Lib. 42, lit. 1, par. 48, " execution, without the form of a judg- 
 ment-, " that is, without previous judgment, for the decis'on of 
 the court, that par. exn. shall issue, is in fact a decree or judg- 
 ment. This process, however, so different from the cautious 
 mode in which courts of justice proceed in ordinary cases, can 
 only be granted in those instances, in which the law has given 
 express authority to demand it : As, to the registrar of Ihe S. C. 
 for monies borrowed from the loan board, by regn. No. 9 of 
 1824 5 to fiscals, for the purchase money of sales in execution, 
 by regn. No. 13 of 1827; and to auctioneers, by regn. No. 12 of 
 1825, supra, p. 45. It is to be observed that, of these regula- 
 tions, that of 1824, No. 9, is Ihe only one which expressly give* 
 the process of par. exn. against the body and effects of the debtor. 
 The other two rcgs. give par. exn. in general terms. The
 
 174- Execution (parole) setting aside. 
 
 writer is unable to say whether this distinction has ever been 
 contended for in practice. fly the Roman Dutch law, par. exn. 
 was allowed for the recovery of public taxes, expences of re- 
 pairing roads, fines for neglecting such repairs, and the like. 
 Voet, ubi supra. 
 
 The only question of any importance, it is believed, which, 
 has arisen on this subject, since the establishment of the new 
 courts, is, whether a D. C. can set aside its par. exn., once issued, 
 on the ground of misstatement by the party applying for it, sup- 
 posing that such ground, if disclosed to the court in lime, would 
 have been sufficient to prevent the execution issuing. The 
 facts were these : On 18 Feb. 1834, an auctioneer made an af- 
 firmation in court, touching an auction debt, on which a writ of 
 par. exn. issued against the alleged debtor, conformably to the 
 14th clause of reg. No. 12 of 1825. About two months after- 
 wards, the deft, applied to have the par. exn. set aside, 
 on the ground that it had proceeded on a false affirmation j 
 and affidavits were produced, stating that the debt arose 
 out of a private transaction, and not out of a purchase at 
 auction, and was for a less amount than that stated in the 
 affirmation. Supposing these affidavits to be true, observed 
 the D. Judge, it was clear the par. exn. ought not to have 
 issued; but as the 31st clause of the Charter gave the S. C. 
 appellate jurisdiction, for the correction of all errors in fact and 
 in law, committed by the D. C., he doubted whether the D. C. 
 itself possessed the remedial power of setting aside its own sen- 
 tence, on which the exn. issued , and he, therefore, most pro- 
 perly referred for instructions, under the 47lh rule, to the S. C. 
 The point underwent great consideration by the Judges, the 
 majority of whom were of opinion that the D. C. did possess this 
 power of correction. But as the court was not unanimous, and 
 as the question involves the more extended one, as to the power 
 of D.Courts, generally, to amend their judgments under certain 
 circumstances, it may be useful to give a summary of the 
 authorities, which were consulted upon the question, and for 
 which the writer, who was at that period fully and rather 
 laboriously occupied by the more general business connected 
 with the new system, was chiefly indcb *d to his learned col-
 
 Execution (parate) setting aside. 175 
 
 leagues. The authorities are here given translated, for more 
 general convenience. 
 
 First, then, as regards the more extensive question, the 
 power of D. Courts to rescind, alter, or amend their judgments, 
 without reference to this process of par. exn. in particular. 
 There can be no doubt that, as a general rule, and except un- 
 der special circumstances, the civil law denies such power to 
 them. This will be found laid down by all the writers and 
 commentators : But it is equally clear, from the same authori- 
 ties, that several exceptions exist to this general rule, and that, 
 in these instances of exception , the courts do possess this 
 power, either by means of the restitutiom integrum, the putting 
 things back into their former slate, or by the supplicatio , each 
 of which remedies is founded on principles of equity, though 
 the reslitutio is by far the more extensive one. Thus Pothier 
 in Pandectas, lib. 42, tit. 1, s. 2, par. 27: "The nature of an 
 adjudged case is, that it is unalterable, even though it should 
 have been badly decided : Hence the rule of law, that a matter 
 decided shall be taken for true." But afterwards, at par. 31, 
 he adds, "The execution of a decree is usually suspended, and 
 whatever has been paid may be recovered back, if it be shewn 
 by plain proof, that the judge has been deceived by false docu- 
 ments And this is equally applicable to false evidence, 
 
 since the reason is the same." And again, in lib. 4, tit. 1, s. 
 10; "Both the prefect, and other magistrates, may restore 
 things to their former state, of their own authority, whether 
 against their own decree, or in other cases.' 1 So Cujaccius on the 
 Code, 7, tit. 49, 50; "Lastly, one decree cannot be overruled 
 by a contrary decree, unless by means of appeal, or the reslitutio 
 ad integrum" So Heineccius in his Elements, part 1, s. 462,3; 
 "It is plain that a magistrate has the power of relieving, by 
 the reslitutio in integrum, against his own decree, or that of his 
 predecessors, or of subordinate magistrates; but not against 
 lhat of higher courts: And the just and equitable causes for this 
 remedy are, 1st, fear, 2dly, fraud, 3dly, want of age," etc. So 
 Wood, in his Inslitules, p. 321, 2; "Reslitutio in integrum it 
 near of kin to an appeal, and is the reducing a thing to its first 
 tate, where an appeal has been neglected. It may be granted
 
 176 Execution (parale) gelling aside. 
 
 to minors, where Ihey have been injured by tbe decree of 
 the Judge, or any judicial act, and to all others upon any just 
 reason, absence, error, fear, fraud, etc., concerning contracts, 
 erroneous confession, proof, or in any other cases where they 
 complain of wrong or mistake." It is plain that Wood con- 
 templates, in this passage, the granting the remedy by the court 
 which has done the wrong. So Voet, Lib. 42, lit. 1, par. 27; 
 44 The effect of a decree rightly passed is, that it cannot be re- 
 voked or altered by the Judge who pronounced it, even on 
 the same day $ for he is no longer a Judge in the matter." But 
 in the next par., 28, he adds, "But if the decree should have 
 been obtained by false documents, or false evidence, it may be 
 rescinded on proof of the fraud, which, during the progress of 
 the suit, was not brought to the notice either of the opposite 
 party or of the Judge, whose good faith has thus been imposed 
 upon ; the course being to apply for reslilutio in integrum, by 
 way of complaint or accusation (not by ordinary action), so that 
 the decree, being rendered powerless by the reslilutio, may 
 thenceforth lose all the weight of a decision, and the case be in- 
 quired into afresh, as if no judgment had been pronounced. ' 
 And at the end of that par. Yoet refers the reader, as to what 
 Judge is competent for this purpose, to his admirable treatise 
 on the Rcstitulio in infcgruni, Lib. 4, tit. 1. But in giving the 
 substance of that title of Voet, as bearing on the present ques- 
 tion, it would be difficult to improve up >n the observations 
 made by Mr. J. Norris, the substance of which is accordingly 
 here presented, and which will be found well worthy of perusal 
 and reference, not only on the particular point which drew 
 them forth, but on the more general and highly interesting sub- 
 ject, the equitable jurisdiction of the D. Courts. 
 
 "The applicant in the D. C. asks for the revocation of the 
 decree on one of the enumerated grounds, that of false evidence ^ 
 and I will endeavour to shew that he has not mistaken his 
 course,in applying by way of complaint or accusation to the D.C., 
 instead of appealing to the S. C. ; and that the latter will nol 
 misdirect the D. Judge, in advising him that he may proceed to 
 examine the applicant's \\iliirsses. and on being satisfied that 
 the auctioneer's affirmation was false, may order the goods
 
 Execution (parole} selling aside. 177 
 
 seized to be restored. The total abolition of (he original juris- 
 diction, civil or equitable, of ihe S. C. (except in the instances 
 mentioned in the 49lh clause of the Charter) would have given 
 just cause of complaint, if parties had been left wholly without 
 equitable relief. But the framers of the Charter, no doubt, well 
 understood the spirit of the civil law, and were perfectly aware 
 that " among the Romans, as remarked by Blackslone, one and 
 the same magistrate was equally entrusted to pronounce the 
 rule of law, and to apply it to particular cases by the principles 
 of equity." The title of Voet de in integrum reslUutionibus, a 
 remedy which, as Yoet observes, requires no praise, since from 
 its equitable nature it is its own panegyrist, is entirely founded 
 on these principles ; and a thorough incorporation of them with 
 our English common law, with which, in fact, says the translator 
 of Yanderlinden, more of the Roman law has been incorporated 
 than the English reader may be willing to suspect or believe 
 (for whole passages are to be found inBraclon and Fleta), might 
 have rendered the separate establishment of a Court of Chancery 
 of very doubtful advantage. Cases will no doubt arise in which, 
 as in the present instance, the D. Judges will find themselves at 
 a loss, how to reconcile the strict rules of positive law with the 
 principles of natural equity ; and it is precisely on such occasions, 
 that the advice of the more experienced Judges of (he S. C., 
 under the 47lh rule, Mill be found of essential benefit in guiding 
 the decisions of the inferior courts, so as to preserve the uni- 
 formity of the law on the one hand, and prevent its too rigid 
 application on the other. And this rule is in strict accordance 
 with the ancient civil law, by which an inferior Judge was 
 accustomed to consult his superior in cases of difficulty; "as the 
 rescripts of the emperors in the code, directed to inferior Judges, 
 sufficiently prove; a practice which was afterwards disused, 
 though now revived by the canon law, and is at this day prac- 
 tised in Flanders and Germany." Wood, 321. See also to the 
 same effect, Voet, Lib. 49, lit. 1, par. 21. In his first par. of 
 this title, De reslilulionibus, Lib. 4, tit. 1, Voet describes the 
 resiitulio to be " an extraordinary remedy, by which the prailor, 
 on the strength of his office and jurisdiction, and following the 
 dictates of natural equity, places persons who have been injured 
 
 12
 
 178 Execution (parate] setting aside. 
 
 or defrauded, in their former situation, as if no injurious trans- 
 action had taken place, or at least decrees them to be saved 
 harmless." In his 2d par. he considers it to be t: plain that a 
 magistrate (and he is speaking of inferior functionaries,) had 
 the power of restoring against his own decrees." In the 3d and 
 4th par. he shews how the inferior courts had been gradually 
 stripped of this equitable jurisdiction, but in the 5th par. he 
 explains that, though the jurisdiction of restitution had been 
 arrogated to the higher courts, this usurpation remained an 
 absurd and useless form, since every such application was re- 
 ferred, as a matter of course, to the ordinary tribunals, and 
 was granted or refused according to their recommendation; 
 and he adds, that this practice was so well established, that the 
 S. C. could not legally take the inquiry into its own hands, un- 
 less the cause was of a nature exclusively falling within its own 
 jurisdiction. In the 8th par. he examines the question, whether 
 in the event of restitution being sought against a decree or sen- 
 tence, the inquiry could be committed to Ihe same Judge-, and, 
 on the principle of the Roman law. and the authority of Oddus, 
 decides that it could, though Rebuffus and others seem to have 
 been of a different opinion. And he appears to think, with 
 Christimrus and Fa her, that it would be absurd to commit the 
 examination to any other than the original Judge. (Vide infra, 
 title Fraud, as to the application of the Rcstitutio in intcgrum, as 
 a relief against injuries by ft aud."! Another method recognized 
 by the mil law, for procuring the rescission of a decree under 
 special circumstances, and within a limited time (two years) is 
 the Supplicat <n. which complaint, according to Wood, page 321, 
 inny ho made to the wine Judge, or to the superior, to revoke 
 the soph-noo. where (ho party has not appealed in time, or 
 v, here appeal is prohibited. This remedy is, in effect, embodied 
 in the Mil rule of w:t. 8: with this modification, that the ad- 
 mission of an appeal out of time is to he referred to the S. C. 
 From those authorities, then, it is abundantly evident, that the 
 civil law did permit courts to rescind their own decrees, under 
 certain circumstances. Considering the present application as 
 a bill of complaint to the V). C. in its equitable jurisdiction, a 
 jurisdiction inherent by the Roman law in every magistrate.
 
 Execution (purate} selling aside. 179 
 
 and now, in accordance with Mr. Cameron's 2d recommenda- 
 tion, restored lo the D. Courts, by the operation of the new 
 Charter, it seems clear that the D. C. may deal with it in 
 the first instance as it thinks proper, and, if necessary, rescind 
 its own decree, either party being of course at liberty to bring 
 the case ultimately before the S. C. by way of appeal." 
 
 But secondly, with reference to this proceeding of par. exn. 
 in particular : The C. J. and 2d P. J. considered, that though 
 the creditor, who took upon himself to aver the necessary facts, 
 was permitted to arrive, per sallum^ 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 olher cases; or why an execution, which had been obtained 
 without undergoing the usual ordeal of strict examination, 
 should be held more sacred, or entitled to higher privileges, 
 than one which had been regularly contested ; that as an exe- 
 cution, obtained by regular and gradual proceeding, might still 
 be challenged, not only by third parties, but by the defendant, 
 and might be " taken off'' by the court out of which it issued, 
 if it appeared to have been improperly or irregularly obtained 
 (Yanderlinden's Institutes, Lib. 3, part 1, sect. 10, p. 487); so, 
 a fortiori, such power of revision ought to exist in cases of par. 
 exn., which gave persons entitled toil so great an advantage 
 over other creditors, and in which the seizure of the person or 
 property is the initiation of the proceeding, previously to which 
 the defendant has no opportunity of contesting the claim ; 
 that otherwise, a party in a remote district might actually be 
 dragged to prison on the mere affirmation of a plaintiff, and 
 might remain there for weeks or months, since no bail could 
 be taken in execution, till a decision could be obtained from the 
 S. C., which, for that purpose, must go through a regular trial 
 of the facts ; that the object of par. exn. was to give the cre- 
 ditor, as speedily as possible, the security of his debtor's person 
 and property, and, more especially, to prevent the property from 
 being otherwise disposed of, objects which were answered by 
 the act of seizure; that the property must remain in the hands 
 of the fiscal, till any objections raised against the proceedings 
 bad been disposed of, or, if of a perishable nature, they might 
 
 12,
 
 180 Execution (parole] setting aside. 
 
 be sold for the benefit of the party ultimately entitled; that 
 no injury, therefore, and very little inconvenience, could arise 
 to the creditor from the delay, which indeed would he much 
 greater if the defendant were compelled to carry the case by 
 appeal to the S. C. ; that such appeal would undoubtedly have 
 been open to the defendant, if the I). C. had refused to rectify 
 the " error of fact" into which it had been drawn by the mis- 
 statement of the auctioneer, but that the existence of that 
 remedy, the necessity for which supposed the D. C. to persist in 
 its error, by no means prevented the D. C. from correcting such 
 error, in those instances in which it might law fully do so, by its 
 own hand; and lhat the same observation applied to the ap- 
 peal, which lay to the counsellors of Holland, against decrees of 
 par. exn.; that if this restrictive construction were put upon 
 the Charter, it might equally apply to any interlocutory order, 
 and it might be urged that the 1). C. had no power to discharge 
 a defendant who had been arrested on a false imputation of in- 
 tended flight, or even to postpone the day of hearing, after it 
 had been once fixed, since Ihe same rules must govern the mode 
 of obtaining redress from interlocutory orders, and from final 
 decrees- that even if this applicant had been forced into 
 appeal, by the declaration of the D. J., lhat Ihe step once taken 
 was irrevocable and irreparable by the I). C. itself, the S. C. 
 must, in all probability, have referred the case back to the 
 court below, for the purpose of ascertaining what the facts 
 really were,- that the useless vexation, which such a cumbrous 
 mode of proceeding would occasion, was a sufficient proof that 
 it never could have been intended by the Charter; that the 
 process of par. exn. appeared very analogous to execution sued 
 out in England under a cognovit, or a warrant of attorney to 
 confess judgment, in which cases the courts would always set 
 aside exrr.iiions unduly obtained, without driving the defendant 
 I > a writ of error or appeal ; or, if the proceeding were to be 
 referred to any class of cases pointed out by the I\. Dutch law r , 
 it would scrm to be to those provisional decrees, by which the 
 defendant is condemned at once, with the proviso, that the fact 
 of his being indebted shall still be inquired into, as where the 
 creditor holds a bond, or other instrument, which, prima facie,
 
 Execution (parate) setting aside. 181 
 
 gives a right of action against the obligor (vide infra, title Nan- 
 tissement); or it might be compared to the privileged processes 
 of execution, mentioned in the Censura Forensis (part 2, lib. 1, 
 tit. 33, s. 32 to 36), the object of which was to obtain security 
 for certain public dues, and which are mentioned in close con- 
 nexion with the provisional decrees just referred to, and with 
 par. exn., a mode of opposition being pointed out by which any 
 one unjustly or irregularly proceeded against might defeat the 
 execution ; that such right of opposition was the more neces- 
 sary in a case like the present, where the defendant had no 
 opportunity of opposing the application at the time of makingit, 
 since the regulation was imperative on the court to issue the 
 writ on the plaint (true or false) of the auctioneer, without 
 further pleading or process ; and that, independently of these 
 arguments, an express authority in favour of the power of the 
 D. C. in the case of par. exn. was to be found in the Papegaey, 
 title Par. Exn. p. 508, " Any person having par. exn. executed 
 against him, and wishing to urge payment, or anything else, may 
 come against it in opposition, and apply for a penal mandate 
 from the said court, etc. , to appear before a commissioned mem- 
 ber of the same court," etc. 5 that, moreover, the present was 
 a question of practice rather than of law, since the doubt was, 
 not as to the right of the party to redress, but as to the course 
 of proceeding, by which that redress was attainable (vide infra, 
 title Nantissement, where this distinction between law and 
 practice is discussed more fully) ; that it was very question- 
 able, whether, in matters of mere practice, Dutch rules ought 
 any longer to be held conclusive in Ceylon, for as all the courts 
 in the island were henceforth to be governed by one uniform 
 course of procedure, the inhabitants of the Kandyan districts 
 might not unnaturally ask why the practice of Holland, to which 
 country they never were subjected, and the law of which 
 country never was in force in those districts, should be forced 
 upon them, rather than that of Great Britain, of whose domi- 
 nions they now formed a part : that the S. C., therefore, called 
 upon as it was by the Charter and the King's instructions, to 
 guide the D. Courts in their proceedings, not only by the more 
 solemn mode of general rules of practice, but by giving its opi-
 
 182 Execution (f orate) telling aside. 
 
 nion and advice on any point incidentally arising, and above 
 all, enjoined as it was to see that the practice of all the courts 
 was uniform, would often be obliged, ex necessitate rei, to de- 
 clare de novo, and from its own decision independent of pre- 
 cedent, that which it considered would be best to be observed 
 as matter, not of law, but of practice ; and, therefore, that in 
 the present instance, where, in the language of the 47th rule, 
 " the form of procedure was wholly unprovided for" by the 
 regn., even supposing that the R. Dutch authorities did not 
 sanction this power of revocation in the D. C., it was perfectly 
 within the scope of authority reposed in the S. C. to direct 
 the exercise of that power, which, moreover, was supported 
 by reason and justice, as well as by analogy to similar pro- 
 ceedings. 
 
 The Senior P. J., on the ofher hand, was of opinion that the 
 D. C. had no authority, even with the sanction of the S. C., to 
 set aside the par. exn. once issued 5 that the application for 
 this process might have been met by any disproof which could 
 have been offered at the time, but that the process once de- 
 creed, the power of the D. J. was extinct, and the party ag- 
 grieved must, as in the case of any other sentence or decree, 
 have recourse by appeal to the S. C. ; and that, as a general 
 rule, the D. C. could never enter upon counter-evidence, from 
 which to annul its own decree, nor could it indeed, in anyway, 
 amend or alter a judgment once pronounced. And Mr. Serjt. 
 Rough relied on the ch il law authorities above cited, and which, 
 taken without the exceptions by which they are all qualified, 
 would certainly support this general proposition. And to shew 
 that par. exn. fell within this general rule, he quoted Van Lee- 
 win, H. 5. ch. 30, s. 5, p. 637, and Merula, ch. 100, p. 672, 3, 
 from which authorities it \\onld appear, that by the R. Dutch 
 tew, a party v, ho found himself aggrieved by a decree of par. 
 exn. for taxes and penalties, might oppose it, not before the 
 court which issued it, hut before certain commissioned coun- 
 sellor-., who constituted ;i court of appeal for that purpose, and 
 who were to enter into the legality of the \\hole case. By 
 analogy, therefore, the parh aggrieved here should appeal to 
 the S. C. No comparison could be drawn between this pro-
 
 Execution (par ale] selling aside. 183 
 
 ceeding and English cognovits, or warrants of attorney to con- 
 fess judgment, inasmuch as the R. Dutch law did not permit a 
 debtor to invest his creditor with the privilege of parate exe- 
 cution. Voet, lib. 4, tit. 1, s. 48. 
 
 The opinion of the majority of the S. C. was communicated to 
 the D. J., who accordingly received the affidavits, offered in 
 contradiction of the auctioneer's affirmation. L. B. 2, 23 June 
 1834. It has been considered right to insert the discussion of 
 this subject thus at length, both because future litigants, who 
 may wish to dispute this power of the D. C., would have a 
 right to know that they had the opinion of one of the judges of 
 the S. C. strongly in their favour, and also because it may be 
 useful in leading and directing parties in their inquiries, upon 
 subjects of a similar nature. But after all, it seems to be of 
 little importance, especially considering the easy and unre- 
 strained intercourse which daily takes place between the S. . 
 and the D. Courts, whether the latter should be allowed to cor- 
 rect their own judgments, which they themselves discover to 
 be erroneous, under the advice and direction of the S. C., and 
 subject to ultimate appeal to that tribunal, or whether an ap- 
 peal to the S. C. be declared indispensable in all cases, before 
 any such amendment can be made 5 except indeed as regards 
 time and expense, both of which considerations plead strongly 
 in favour of the former of the two courses. 
 
 Vide infra, title Judgment, where another case is mentioned, 
 in which the majority of the S. C. delivered their opinion, ge- 
 nerally, that a court of justice has the power of rectifying a 
 mistake in its own decree. 
 
 EXECUTION OF DEEDS. 
 
 A grant, or other instrument, relating to land, is not neces- 
 sarily vitiated, from the circumstance of the execution of it, by 
 all the parties and witnesses, not having taken place at one 
 and the same time. The Reg. No. 20 of 1824, (and the Ordce. 
 No. 7 of 1834) required that a deed affecting land should be 
 passed and executed, or acknowledged, etc., before a notary
 
 184 Extcutio* of deed*, etc. 
 
 and two witnesses: and no doubt each grantor must execute or 
 acknowledge it before the notary and witnesses. But there 
 seems nothing to prevent the execution or acknowledgment, 
 hv different grantors . being taken at different times and 
 places, provided always it be before a notary and two wit- 
 nesses. And the reluctance, which the females of some classes 
 have, to any thing approaching publicity, may very frequently 
 induce the notary to take the execution of female parties at 
 their own homes: But in such cases, the witnesses should sec 
 the execution passed. L. B. 24 Sept.. 3 Oct. 1834. This, it 
 is to be observed, was only the individual opinion of the chief 
 justice, to whom the question was submitted by a D. Judge. 
 Vide supra, title Evidence, p. Ill et sequ. 
 
 FALSE CLAIM. 
 
 Should D. C. fine for false action*, etc.? Recommended by Mr. Cameron : 
 S. C. hitherto dissenting, page 1M Reasons for dissent; difficulty of distin- 
 guishing between dishonesty and error 185 C.onviction without a jury 186 
 How decide whether client or proctor in fault ? 186 Are not cosls the be*t 
 check? 186 Fine pro fal*o clamore antiquated 1ST Objections do not 
 apply to fining fur false criminal complaint 1S7. 
 
 THE question, whether the courts of Ceylon should be in- 
 Tested with a power of inflicting summary punishment by fine, 
 on persons instituting actions, or scltiiis up defences, without 
 foundation, has undergone much consideration, and may even 
 yet be considered as not absolutely and finally decided. Vide 
 supra, p. 15. Mr. Cameron, in framing his plan of the pre- 
 sent charter, recommended verv stronglv that such a power 
 should be conferred and exercised. The writer of these notes 
 was compelled to dissent from this recommendation, by the fear 
 lest the exercise of such a power, though it might occasionally 
 operate beneficially in repressing M-xalious litigation, should, 
 on the other hand, have a tendency to deter honest suitors from 
 asserting their just rights. The secretary of state left the mat- 
 ter open for the consideration of the judges in Ceylon. And 
 hitherto, or at lea>t up to March 1836, ihe opinion of the S. G.
 
 False e/awi should it be punishable ? 185 
 
 was unfavourable to the authority proposed to be given. But 
 nothing that had taken place on the subject, up to that period, 
 ought to be considered as going beyond the bare expression of 
 individual opinion ; and the reasoning, on which that opinion 
 was founded, may appear inconclusive to the present or future 
 judges of the S. C. It is right to mention, too, that several of 
 the D. Judges have shewn their opinions to be in favour of the 
 practice in question : for they have, in more than one instance, 
 applied to the S. C. to know whether they were invested with 
 the power of fining for a false action, and on one occasion the 
 fine was actually imposed, though it was remitted when brought 
 to the notice of the S. C. See No. 273, Ruanwelle, 25 Nov. 1833. 
 It is matter of regret to the writer, that he has not at this mo- 
 ment before him the recommendation of Mr. Cameron on this 
 point, with his arguments in support of it, to lay before his 
 readers ; but they are no doubt within reach of, and in all pro- 
 bability familiar to, the learned Judges, who may be called upon 
 to reconsider the question. The following is the substance of 
 the answers which were directed by the C. J., after consultation 
 with his colleagues, to be returned to the several inquiries made 
 by the D. Judges on the subject. " There is no authority at 
 present vested in D. Judges, which would justify any punish- 
 ment for the mere act of bringing a false claim, or of making 
 a false defence, unless accompanied by perjury, subornation, 
 conspiracy, false answers to questions on examination, prevari- 
 cation, or by some other known and defined offence. In any 
 .of these cases, the offender would of course be proceeded 
 against in the usual way. according to the degree of the offence. 
 It is extremely difficult to draw the line, beyond which a man 
 shall not be allowed to avail himself of the right, which all per- 
 sons are supposed to enjoy, of asserting his own claims, or re- 
 sisting those of others : Different men may take different esti- 
 mates of this boundary. There are many modes of legal 
 attack and defence, which the law does not and ought not to 
 prohibit, which yet no honourable man would have recourse to. 
 It would be throwing a duty on the D. Judges, which they could 
 scarcely exercise with safety to the public, or satisfactorily to 
 themselves, to call upon them to punish a parly as acting from
 
 Fabe claim should it be punisltable? 
 
 dislvonesty, when he may possibly have only been guilty of 
 misconceiving the lalilude which the law allows him. Nor 
 should it be forgotten that a person so situated, though treated 
 and punished as a criminal, would lose his benefit, his right, of 
 trial by jury , his offence being one, not like prevarication or 
 other contempts of court, palpable and undeniable, but requir- 
 ing fair investigation, and often a great deal of evidence, irre- 
 levant to the original issue between the parties : For we must 
 remember that it is not the hollowness of the action or defence 
 itself, but the guilly knowledge of its falsehood by the party 
 setting it up, that would justify his punishment. The relation 
 of proctor and client, again, would interpose a serious obstacle 
 to this mode of restraining fictitious actions or defences : The 
 client might say, ' I was merely passive in the business , I told 
 my legal adviser what I believed to be the state of the case, and 
 left him to shape my action or defence as he might think most 
 advantageous :' The proctor would say, 'I have only done my 
 duty in making the best case for my client which his statement 
 admitted-, I believed that statement, though the witnesses have 
 certainly told a different story in court from what we expected. 1 
 (\ide supra p. 141. The position of the proctor, as here ima- 
 gined, goes on the supposition that he has exhibited nothing in 
 the shape of unfair practice, though he may have been engaged 
 in what turns out to be a dishonest action.) Either the plan 
 would be inoperative for the object proposed-, or if the D. C. 
 were to fine and imprison (for imprisonment must be made the 
 alternative of not paying the fine) to an extent sufficient to re- 
 medy the evil, in other words, whenever the court entertained 
 an unfavourable impression of the honesty of the case, the 
 cure, it may be feared, would go too far, and would often deter 
 well intentioned parties from asserting their just rights, or those 
 which they might consider just, from the fear of disgrace and 
 punishment, if they should be unsuccessful. The payment df 
 rosls, composed of court and proctor's fees on both sides, is after 
 all perhaps the best and fairest mode of obliging the losing party 
 (who, it is to be hoped, is generally the party in the wrong) to 
 make amends to the opposite party for his unjust attack or de- 
 fence; to pay a penalty for his own injustice or pertinacity, and
 
 False claim should it $e punishable ? 187 
 
 at the same time, by means of court fees, to contribute some- 
 thing towards defraying the expenses of those institutions, of 
 which he has endeavoured, though unsuccessfully, to avail him- 
 self. (Vide supra, p. 15 et seq., and 76.) The ancient prac- 
 tice in English courts, of fining pro falso clamore, has been al- 
 luded to, as showing that this mode of curbing unjust litigation 
 is not a novelty , but the disuse, into which this practice has 
 long since fallen, is not unreasonably attributed to its tendency 
 to obstruct judicial redress, in cases in which plaintiffs would be 
 justified in taking the opinion of the court, though the result 
 might bo doubtful." 
 
 But where a person brings a criminal charge without founda- 
 tion, the same objections to summary but moderate punishment 
 do not seem to exist. For as he must have given his evidence 
 in person, there is a direct attempt to impose on the court by a 
 false statement of facts, which, generally speaking, cannot be 
 excused or extenuated, either by the self delusion or by the bad 
 advice from others, which may often lead a man in civil matters 
 to institute a claim, or set up a defence, which may turn out to 
 be without any just foundation. There appears, therefore, to 
 be no objection to imposing a moderate fine, in such cases as 
 are not of suflicient importance to require a prosecution for 
 perjury or conspiracy. See No. 106, Waddemoratchy, 20 May 
 1835, criminal, mentioned more full} under "Prosecution." 
 Vide supra, p. 123, as to making prosecutors on false or fri- 
 volous grounds pay batta to the witnesses on both sides. 
 
 FALSE IMPRISONMENT. 
 
 See title Imprisonment. 
 
 FELONY. 
 
 THIS w ord is only mentioned, for the purpose of reminding 
 (hose who may consult English authors on the subject of cri- 
 minal law, that the distinction which they will there see made 
 between felonies and inferior offences, or misdemeanours, does
 
 188 Felony term not recognized in Ceylon. 
 
 not exist in Ceylon, whether as regards the nature of the 
 crimes Ihemselves, or the legal consequences of them, supra, 
 136. The chief distinction which exists in Ceylon on this sub- 
 ject, is that pointed out by the 25th clause of the charter,whicb 
 limits the jurisdiction of the D. Courts to crimes not punishable 
 with death, transportation, or banishment, imprisonment for 
 more than 12 months, whipping exceeding 100 lashes, or fine 
 exceeding 10/." Another distinction, which will be found fre- 
 quently occurring, and which is mentioned in the 10th rule of 
 sect. 2, is that between the higher offences, and breaches of 
 the peace, petty assaults, and other minor offences of the like 
 nature, being, in fact, a subdivision of those offences, which 
 fall within the jurisdiction of the D. Courts', as to which see Escape, 
 Jurisdiction, Perjury, Prosecution. 
 
 FIDEI COMMISSUM. 
 
 Meaning and operation of, page 188 How constituted, and of what? 189 
 "When and how to take effect 189 Property cannot be alienated 190 Un- 
 less by permission of owner (prohibition of alienation to be construed strictly) 
 190 Or by authority of law, if necessity or interests of parties require 
 (power of D. C. to order) 190 Or by consent of all interested 191 Pro- 
 perty, wrougfuliy alienated, may be recovered back 191,2 How fid. com. 
 put an end to 192. 
 
 As the mode of disposing of property, by means of the fidei 
 commissum, must frequently come under the consideration of 
 the courts and practitioners, in those districts of Ceylon in 
 which the Roman Dutch law prevails, it may be not altogether 
 useless to give here a very brief explanation of this species of 
 transfer, and of the leading rules, by which it should be go- 
 verned. By the term fidei commissum, then, is intended pro- 
 perty given or bequeathed by the owner to another, with a re- 
 quest, which the law of modern times considers obligatory and 
 enforces as such, to deliver it over to a certain other person or 
 persons. This species of confidential transfer to one person for 
 the benefit of another is very similar to what, in English law, 
 are emphatically called trusts. By the R. Dutch law, the person
 
 fidei commissum how constituted. 189 
 
 to whom the property is so transferred in trust (the trustee of 
 English law) is called the fiduciaries; and the person for whose 
 use and benefit it is to be held in trust (the cesluy que trust in 
 the barbarous French of old English law) is designated the fidei 
 commissarius. The term fidei commissum is as often used to 
 designate the trust on which the properly is transferred, as 
 the property itself so transferred. The following brief and fa- 
 miliar outline has been compressed chiefly from Yoet ad Pan- 
 dectas, lib. 36, lit. 1, Ad senatus-consullum Trebellianum. The 
 number of the paragraph is given for each proposition which 
 Yoet lays down, in order lo assist the reader in his more exten- 
 sive researches into that writer and his authorities: a labour 
 which Yoet never fails amply to repay. 
 
 Every description of properly, whelher moveable or immove- 
 able, may be the subject of the fidei commissum, which again 
 may be constituted either by gift inter i-ivos, or by will, like 
 any ordinary gift or bequest, by any perfon capable by law of 
 giving or bequeathing. Par. 6 to 9 of Yoet. The trust may 
 be created by express words, or may be gathered from any ex- 
 pressions in Ihe inslrument, shewing, as a necessary inference, 
 that it was the intention of the donor or testator lo creale il. 
 Par. 10. And when a lestator, having instituted several heirs, 
 directs that the share of one shall devolve on the rest, Ihey are 
 all to be considered as charged with a fid. com. in favour of 
 each other. Id. It is sufficient thai Ihc fid. com. state generally 
 the class or set of persons, in whose favour it is to operate, as 
 the next of kin of the donor or teslalor, or his relalions gene- 
 rally, or a particular family, without designating or naming 
 the individuals; but the family or class, or the persons indivi- 
 dually, must he pointed out, for without such designation, the 
 bare prohibition to alienate has not the effect of a fid. com., 
 and is indeed wholly inoperative. Par. 21, 27. The fid.com. 
 may be made lo lake effect al once, or al the expiration of a 
 given term, or on the happening of a stated contingency. Par. 
 13. If no time or contingency be prescribed in the fid. com. 
 for delivering over the property, the trustee is hound to deliver 
 it immediately. Par. 34. By the ancient law of Holland, the 
 fidei commissarius used to compel an unwilling fiduciarius to
 
 190 Fidci commistum alienation, tchm permitted. 
 
 enter upon the inheritance, in order to transfer it, according to 
 the terms of the fid. com. But in more modern times, this mode 
 of compulsion has been considered unnecessary ; and on the 
 latter person refusing or neglecting to take the trust upon him- 
 self, the former is admitted as of right. Par. 46. On delivering 
 over the property, the fiduciarius, besides the Trebellian or 
 FaJcidian portions (concerning which the distinctions and details 
 would run into greater length than would be consistent with 
 this outline, and for which, therefore, the reader is referred to 
 Voet, and other writers on the subject of fid. com.) is entitled to 
 deduct any debt due to him from the donor or testator, and 
 also any expenses incurred by him on account of the property. 
 Par. 36 and 61. 
 
 As a general rule, property given or left as fid. com. cannot 
 be alienated, par. 62, unless in cases in which such alienation 
 is permitted by the donor or testator, or by the law, or by con- 
 sent of those interested. 
 
 1st. Whether the alienation be permitted by the donor or 
 testator, must depend on the terms of the gift or devise, by 
 which the fid. com. is constituted. In many cases, the fidei 
 commissum is accompanied by an express prohibition to alienate 
 the proper! ytmt of the family, or out of I he direct line of descent 
 from the person in whose favour it is constituted. In such ease^ 
 the fid. com. is similar, in many respects, to entailed estates in 
 the English law. This prohibition may be so worded as to 
 affect the first taker only, or to be binding on each successive 
 taker, as long as any of the family remain. Par. 28. But if the 
 terms of the prohibition be doubtful, they should be construed 
 strictly, that is, in favour of the power of alienation, rather than 
 against it. and so as to be as little burthensome as possible on 
 the heir. Nor can the prohibition expressed be extended to 
 any other mode , therefore, a prohibition to sell does not pre- 
 vent the heir from disposing of the property by tcill. Par. 27, 8, 
 and 72. 
 
 2dly. But in some cases, the law will authorize the fid. com. 
 to be alienated, whether the prohibition against alienation have 
 been expressly declared, or be only inferred from the fid. com. 
 itself. Thus, where, for w ant of other property, it becomes
 
 Fidei commissum alienation, when permitted. 191 
 
 necessary to dispose of the fid. com. in order to pay debts or 
 legacies of the testator, etc., or the public taxes, par. 62, 3:- 
 Or, where the property would be deteriorated by being kept, 
 id : Or, where it might be exchanged for other property, with 
 advantage to the estate, id. Other circumstances may arise, 
 which may make it necessary or beneficial to the estate, to dis- 
 pose of the property so tied up; But in all instances, applica- 
 tion should, in Ceylon, be made to the D. Courts, for authority 
 so to dispose of it. More than one application for this authority 
 were made, within the writer's recollection, to the former S. C. 
 of Ceylon, which always required strict proof of the necessity 
 of such alienation, before it would give its sanction to it. But 
 when it appeared that sucb necessity really existed, as where 
 the house which had been left in fid. com. was falling to decay, 
 and there were no funds to repair it, or, where it w as shewn 
 that a sale would be more beneficial than repairs, the requisite 
 authority was given, and the proceeds of the sale were directed 
 to be laid out in other property., for the benefit of the fidei com- 
 missarii, and subject to the directions of the fid. com. And on 
 a late occasion, when a D. Judge referred to the S. C. for in- 
 structions, whether a similar application made to the D. C. could 
 be complied with; the answer returned, as the result of mature 
 consideration by the Judges, was, That as applications of a 
 similar nature had, upon several occasions, been received and 
 decided upon by the late S. C., it was equally competent to the 
 present D. C. to entertain them: that the question, as to the 
 propriety of exercising this branch of jurisdiction, by dissolving 
 the restraint of alienation imposed by the original donor or tes- 
 tator, must depend on the degree of necessity which the appli- 
 cant might be able to establish for the alienation, and upon the 
 other circumstances which each case might present. L. B. 1, 30 
 May 1835. 
 
 3dly. The property forming the subject of the fid. com. may 
 also be alienated by the consent of all those who are interested 
 in it. Par. 62. The chief object of the D. C., in such case, 
 must be to ascertain that all interested are fully aware of the 
 nature of the application, and willing that it should be granted. 
 
 If the fiduciarius, or trustee, alienate the property w ithout
 
 192 . Fidei commissum how put an end to. 
 
 due authority, the party or parties interested may recover it 
 back, even from the purchaser, as soon as their right to it accrues, 
 whatever length of time may have elapsed since such wrongful 
 alienation ; for, as he could not assert his claim till the arrival 
 of the time, or the happening of the contingency, on which the 
 right was to accrue, no prescription would begin to run against 
 him till then. Par. 64. But, for the same reason, the purchaser 
 would not be liable for the profits received up to the time of 
 such right accruing ; for till then, they belonged, not to the 
 fidei commissarius, but to the fiduciarius or trustee -, id. 
 
 A fid. com. is put an end to by the non-performance of the 
 condition on which it was to take effect, par. 66; by the 
 death of the fid. commissarius before his interest has accrued, 
 unless the intention of the testator be otherwise expressed, or 
 unless the fid. coin, be by actm/er r/ros, in which case his con- 
 tingent interest goes to his heirs, par. 67 ; by the death of the 
 fiduciarius before the testator, unless provision be made for 
 transferring the trust in such case to another, par. 69 ; by a 
 different disposition of the property subsequent to the fid. com., 
 par. 665 by the ultimate failure of all those in whose favour 
 it was constituted, or by their renunciation of the fid. com., 
 whether express or implied, par. 65; lastly, the fid. com. 
 may be dissolved by legislative authority, on very strong 
 grounds, such as extreme indigence, etc., par. 70. 
 
 The reader will find a short but distinct history of the sys- 
 tem of fidei commissa, and of the different kinds of them, ac- 
 cording to the law of Holland, in a very learned and valuable 
 work, lately published, "Commentaries on Colonial and Fo- 
 reign Laws, by Wm. Burge, Esq., Q. C. London, 1838, vol. II, 
 ch. 2, s. 2 , a work from which the writer of these notes has 
 derived much assistance, and which could not fail to be a most 
 useful book of reference, in all colonial courts of justice. 
 
 FINES. 
 
 See titles, Assessors, Contempt, False Claim, Prosecution, 
 Renter, Stamp.
 
 Fiscal, what duties may be done by deputy. 193 
 
 As to the distinction between Fine and Confiscation, as re- 
 gards the jurisdiction of the D. Courts, see title Jurisdiction, 
 and Circular Letter to the D. Judges, 12 May 183-4. 
 
 FISCAL. 
 
 Reg. 13 of 1827; reference lo other titles, page 193 What duties may be 
 done by deputy 193 Crpy of process furnished by D. C. 194 Poundage, 
 liow levied, etc. 19i Calendar of prisoners, not to be altered after signed, 
 
 without order of S. C. 195 Bonds to fiscal require no stamp 195. 
 
 
 
 THE duties, powers, and responsibilities of this officer are 
 pointed out with some minuteness, as we have seen under title 
 Execution, by regn. No. 13 of 1827; and any ordinance, which 
 may have been substituted fcr that regn., has no doubt provided 
 ibr the same objects with all the improvements, which the ex- 
 perience of existing inconveniences must have suggested. 
 There seem to have arisen but few questions for decision, as 
 regards these various duties; and of those, most will he found 
 mentioned under the several lilies Contempt, p. 62, Execution, 
 p. 158, et sequ., Process, and Sequestration. 
 
 Doubts have sometimes been entertained, how far the powers 
 (f the fiscal might be devolved on his deputy. The following 
 questions were put to the S. C., soon after the new charter 
 came into operation: Whether the process, required by Island 
 2d rules of sect. 1 to be dircv-ted to the fiscal, might be directed 
 to his deputy, appointed by himself? Whether the returns, re- 
 quired to be made by the fiscal, might, in like manner, be made 
 by a deputy ? And whether, generally, a fiscal might delegate 
 to his deputy those acts which \u i re required to be performed 
 by himself? To these inquiries, the C. J., after consulting the 
 P. Judges, directed an answer to be returned, That as lo the 
 lirst and second questions, though there might be no positive 
 objection lo directing process to the fiscal's deputy, it appeared 
 hotter to adhere to the practice, which it was believed had al- 
 ways prevailed, of directing it to the fiscal himself, he being the 
 officer whom Ihe courts considered immediately responsible to 
 them- but that there was no objection to th? deputy fiscal, who 
 
 13
 
 19* Fiscal how poundage levied. 
 
 in most cases was the officer, by \vhom the orders of the courts 
 were really carried into execution, making his return to them . 
 that in truth, the fiscal himself would, in most cases, be 
 obliged to trust to the- information received from his deputy for 
 the correctness of his return, and it would often be exlremeK 
 inconvenient if the deputy were obliged to transmit the process 
 or o'hcr order, when served, to the fiscal, for the nominal sanc- 
 tion of being returned by him-, and that for the same reason. 
 there appeared no objection to process, etc., though directed to 
 the fiscal, being issued at once by the court to Ihe deputy, for 
 execution : That as regarded the third question, there was 
 some difficulty in giving a precise and universal answer; that 
 as a general rule, applicable to most points of duly, the depuh 
 fiscal must be considered competent to execute the functions of 
 his principal ; that to ihis rule, however, there were some ex- 
 ceptions, as, for instance, the superintending the execution of 
 criminals in capital cases, though even this might not always 
 necessarily be considered an exception, as in the case of an 
 execution taking place at a great distance from the residence of 
 the fiscal, provided there were a deputy on the spot, to whom 
 the principal could safely trust so serious and important a duty : 
 that these exceptions must therefore rest very much with the 
 discretion of the fiscal himself, reference being had to Ihe na- 
 ture of the duty to be performed, the person on whom it would 
 devolve, if the fiscal found the performance of it impracticable, 
 except at too great a sacrifice, and to the degree of incon- 
 venience which might be occasioned to the public, or to himself, 
 by a personal discharge of the duty in question. L. B. 22 Oc!., 
 iNov. 1833. 
 
 We have seen supra, p. 69, that the D. C. is to furnish the 
 fiscal with the copy of process, together with the original. 
 
 A fiscal having referred to IheS. C. for instructions, whether 
 pound n<jc ^as still to he le\ied, and iu \* hat manner, on sums 
 recovered in ci\il suits, he was referred in answer to the me- 
 morandum al the foot of the table of fees to fie levied in the D. 
 Courts, by w hicli it is provided that the poundage is to be levied 
 'at the rales specified in the rules and orders of 10 Aug. and 
 19 Oct. 1820." The fiscal was further informed that the prac-
 
 Fiscal calendar of prisoners. 195 
 
 lice observed in the D. C. of Colombo No. 1 was as follows : 
 The fiscal recovers the poundage, over and above the amount 
 directed to be levied by the writ, which amount of poundage, 
 when returned to the court, the secretary invests in the 
 purchase of a stamp, which he renders unavailable for any 
 other purpose, by writing on it in large characters the word 
 Poundage, and attaching it to the proceedings. L. B. 27 May. 
 9 June 1835. 
 
 The duties of fiscals, as regards the calendar of prisoners If, 
 be tried before the S. C., are pointed out by the .45th clause of 
 the charter. Application having, on one occasion, been made 
 to a fiscal after a criminal session had closed, and after the ca- 
 lendar had been signed by the Judge of the S. C. and by the 
 fiscal, to alter that instrument, by correcting a mistake which 
 had been made by the registrar of the S. C. in drawing up a 
 sentence, the fiscal declined making the proposed alteration : 
 and on referring the matter to the Chief Justice, before whom 
 the session had been held, received his entire concurrence in 
 the propriety of that refusal. The application had been made 
 by the registrar, in his natural anxiety that the mistake might 
 be set right : But a moment's consideration was sufficient to 
 shew that any alteration of so solemn and important an instru- 
 ment as the calendar becomes, when it contains the sentences 
 of convicted prisoners, should never be made without the ex- 
 press sanction and order of the Judge, by whom the respective 
 sentences were awarded, and by whom alone therefore, on re- 
 ference to bis notes, any mistake can safely be corrected. L. B. 
 4 Aug. 1834. 
 
 Bonds given to fiscals, under 26 and 27 clauses of reg. No. 13 
 of 1827, require no stamp. L. B. 1 1, IS Dec. 1834 5 infra, title 
 Stamp. 
 
 FORMS. 
 
 THE various forms, appended to the rules of practice, may 
 be altered by the D. Courts, to meet the circumstances of an\ 
 particular case, varying from those of ordinary occurrence. 
 L. B. 22, 25 Jan. 1836, supra, p. 160. 
 
 13.
 
 196 
 
 FRAUD. 
 
 In what it consists ; is not to be presumed: What practices permitted lo 
 buyers and sellers; page 1% Efl'ect of fraud, in annulling contracts; mode 
 of redress 197 Against whom 198 No relief, if fraud on bolh sides 198 
 Contracts can neither be enforced, nor receded from, for purposes of fraud 
 198 No Jaw can be made subservient to fraud 199 Deed obtained by fraud; 
 state of mind of the grantor; case of circumstances 200. 
 
 BY this term, in ils legal acception, is understood any deceit 
 practised to the injury of another, in any dealing, whether in the 
 sale or purchase of properly, or in any other transaction ; either 
 positively, by uttering or intimating a falsehood, or negatively, 
 by concealing or withholding the truth. It is a maxim of the law 
 of England as well as of the civil law (Voet, lib. 4, lit. 3, par. 2) 
 as indeed it is founded in natural justice, that fraud is never to 
 be presumed : It must be either apparent on the face of the 
 transaction itself, or must be proved to the satisfaction of the 
 court. Mere inadequacy of value as regards price, or of price 
 as regards value, (the contract of sale is here selected for an 
 example, as that which produces perhaps more liligalion and 
 imputations of fraud than any other) is not of ilself conclusive 
 evidence of fraud, though it would naturally s'renglhen other 
 rircumstances tending to that conclusion. Yoet indeed (ubi 
 supra, par. 1) quoting I'lpian as his authority, seems to consider 
 that in matters of buying and selling, the natural inclination of 
 I he contracting parties to overreach each other, as regards 
 price, may be classed among the doli loni, which, though not 
 absolutely approved of by the law, arc at least suffered to pass 
 v ilh impunity. This doctrine, it must be confessed, goes to 
 the very verge of \\hal is legal, and must at all evenls be taken 
 \vith Ibis qualification: thai the means of the "circumvention" 
 must neilher include the uttering a falsehood, nor the suppres- 
 sion of any truth, \\illi \\hich the other contracting party would 
 be entitled, according to the nature of the transaction and the 
 custom bearing upon it, to be made acquainted. The owner 
 has an undoubted right lo extol his properly lo the purchaser, 
 who in his turn must be at liberty lo depreciate it ; Ihe efforts
 
 Fraud, effect o/", in annulling contracts. 197 
 
 of each parly amounting in truth but to an expression of opi- 
 nion and comparison : And to this sort of contest, the doctrine 
 of Voet, it is apprehended, must be limited. 
 
 The effect of fraud, when substantiated, is to render null 
 and void, or at least voidable, all transactions of which it forms 
 a part. The civil law, indeed, distinguishes between fraud, 
 forming the very groundwork of the transaction, by which a 
 person is allured or drawn in to contract, and without which 
 he never would have had any intention of contracting at all ; 
 and fraud introduced in the course of the bargain, by which the 
 innocent party, though he enters of his own accord into the 
 contract, is deceived in the terms of it, whether as regards 
 price or value, or otherwise: Voet, Lib. 4, tit. 3, par. 3. Bui 
 this distinction has chiefly reference to the mode of redress by 
 the injured party; the first, or more premeditated kind of 
 fraud, making the contract null and void from the beginning, 
 as if it had never been entered into, and giving also a ground of 
 prosecution: the second, or incidental kind, not making the 
 contract void from the beginning, but giving only a right of 
 action, founded on the contract itself, to be relieved against the 
 fraud: Id. par. 3 and 4. Considering, however, the absence 
 of all technicality of pleading in Ceylon, and the extensive 
 powers of the D. Courts to give substantial and equitable relief 
 against all fraud, in whatever shape, or by whatever form of 
 words the relief may be prayed, it seems scarcely necessary or 
 useful to take this distinction into consideration, as regards civil 
 redress. The rule may, therefore, be safely laid down, that all 
 contracts, into which fraud is clearly shewn to have been in- 
 troduced, are, as against the party exercising the fraud, either 
 void or voidable; in the words of Yoet, "are either abso- 
 lutely null by operation of law, or may be invalidated by judicial 
 restitution," par 7: Which restitution, as applied to a contract 
 of sale, in which fraud has occurred, he describes in another 
 place, par. 4 ad finem, u to be nothing else than the correction 
 of an unfair price, fraudulently fixed, or the rescinding of the 
 purchase on account of fraud." (Vide sup. p. 175, et seq., where 
 the remedy of the reslitutio in integrum is more fully discussed.) 
 *' If, however, notwithstanding the fraud, the party on whom
 
 198 Fraud, against ichom, and by whom, relief may be had. 
 
 it has been practised be desirous to adbere to the contract, con- 
 sidering it still advantageous to him, the covenants ought un- 
 doubtedly to remain in force ; for every one may relinquish a 
 right, which has been given to him for his own benefit, and 
 which it would be unjust, therefore, to pervert, against his 
 \\ ill. to his detriment.' 1 Id. par 7. This latter principle, it may 
 he observed, has been adopted, and become a maxim, in the 
 law of England. 
 
 Taking Voet still as our guide, relief may be sought against 
 the person who committed the fraud, or against his heirs, as far 
 as tlic\ have profited by it. And even a minor is answerable 
 for fraud, if he be sufliciently advanced in age to understand 
 ilit' nature of it. Attorneys, guardians, etc., arc answerable 
 Tor frauds committed by themselves ; though their clients, wards, 
 etc., are also responsible, as far as they may have profited by 
 them. And if several jointly commit a fraud, each is severally 
 responsible, though satisfaction by one will be a release to all. 
 id. par. 9. The relief which we have here been contemplating 
 is purely of a civil nature, and exclusive of the prosecutions 
 which are often instituted on the part of the crown, for the 
 offence against the public. 
 
 This civil relief, however, supposes the fraud to be on one 
 side only, and the other contracting party to have acted in good 
 faith, in which case the law interposes to protect the innocent 
 and defrauded party. Cut where fraud appears on both sides, 
 the law will not allow either party to plead it, as a mode of an- 
 nulling a contract ; for this A^ould be to permit him to benefit by 
 his own fraudulent conduct, vhich the law, according to an- 
 other well-known maxim, never allows. Or, to adopt the view 
 again which Yoel takes of the subject, ^ fraud is, in such case, 
 counterbalanced by fraud, and the reciprocal wrong is neu- 
 tralized by mutual compensation." Id. par. 8. Xor, according 
 to the same author. ' k can a party complain of fraud, of which 
 he was cognizant; for he cannot be said to be deceived, or to 
 Miller wrong, who acts knowingly, and with his eyes open." 
 Id. ibid. 
 
 The maxim of law just alluded to, that no one can be per- 
 mitted to avail himself of his own fraud or wrong, is of very
 
 Fraud, no one allowed to profit by. 
 
 % ^<*.- > J i I.WY Bjwn e rtH hffinw St 
 
 general application, and is not confined to the case of a party 
 \\ ishing to enforce a fraudulent contract. The rule is equally 
 operative in enforcing a contract, where a parly attempts to re- 
 rede from it by means of a frandulent stipulation, whether in- 
 troduced into the agreement itself, or entered into collaterally 
 \\ith it. Thus: A woman, having executed a deed, conveying 
 certain lands in the Kandyan provinces to her hushand, whose 
 rank exempted land registered in his name from taxes and ser- 
 vices, afterwards endeavoured to set the deed aside, as not 
 hcing intended to operate as a real transfer. But it appearing 
 (hat she had declared to the revenue commissioner, at the time 
 of the transfer to her husband, " that it was final, and beyond 
 the power of her reclamation," the S. C. considered it clear that 
 if she did intend to make the reservation for which she now 
 contended, her object must have been to defraud the govern- 
 ment of the grain tax and road service, and therefore, as the 
 law would permit no one to avail himself of his own fraud, the 
 deed of transfer must be held binding upon her. No. 4707, 
 Kandy, 8 Oct. 5 Dec. 1833. This case was decided on the same 
 principle, as those which sometimes appear in courts of justice 
 at home-, where a person, for political purposes, transfers an 
 estate to another, in order to give him a colourable qualification 
 to sit in parliament, with a secret reservation that the land is to 
 be conveyed back to the owner, after serving the temporary 
 object: The law would, however, enforce the conveyance, and 
 consider it as an absolute transfer ; for if it did not, or if it 
 allowed the owner to claim the stipulated reconveyance, it 
 wouM be sanctioning a contract entered into for an illegal and 
 fraudulent purpose. 
 
 We have seen, supra, p. 9 i, that dowry property, according 
 to the law of the Malabar districts, is not liable for the husband's 
 debts. But vhere the husband had sold the dowry properly, 
 under circumstances which shewed that the wife must have 
 been cognizant of the transaction, and the wife afterwards en- 
 deavoured to rescind the sale, on the ground that she had given 
 her husband no express authority, without vhich he had no 
 right, by the Mahomedan law, to sell: The S. C. held that if 
 this were admitted as a sufficient ground for annulling the sale,
 
 200 Fraud deed obtained by, void. 
 
 it would be a gross fraud on the bona fide purchaser, a fraud in 
 which the wife would be a participator, and of which she would 
 be allowed to avail herself : a purpose to which no code of 
 laws could ever be allowed to be applied. No. 24GI, Batticaloa. 
 20 Feb. 1835. See also No. Matele, infra, title Husband 
 
 and Wife, p. 223, 4. 
 
 When any deed or other instrument is produced, which is not 
 reconcilable with the usual motives and course of human action, 
 one very material question always suggests itself, what the 
 state of mind of the person executing it was, at the time of its 
 execution. Mere easiness of nature is not, of itself, a ground 
 of relief against contracts ; but where anything like fraud ap- 
 pears in the conduct of ihe other contracting party, such pliancy 
 of disposition, as would easily be persuaded to its own prejudice, 
 must no doubt strengthen the right of its possessor to equitable 
 protection, and increase the vigilance of courts, in detecting im- 
 position. The following case may perhaps be worth perusal, 
 as shewing how necessary it is for those who claim the benefit 
 of deeds or wills, executed in their favour, to come into court 
 free from all suspicion, as to the mode in which such instruments 
 have been obtained. The question arose on a bill of sale, exe- 
 cuted by a Malabar woman in favour of the sons of her late 
 husband's second wife (she herself having been divorced from 
 the husband), in prejudice of her sister and other relations. The 
 deed was executed on 8 Oct. 1832, and she died on the 14th ot 
 the same month. The sister brought this action against the 
 two persons, in whose favour the deed was passed, to get it can- 
 celled, on the ground that it had been obtained by fraud, and 
 that no consideration had been given for it. The allegation of 
 fraud rested, in great measure, on the fact that the deceased 
 had been reported insane, for five or six months before her 
 death. The following is the judgment of the S. C. as regards 
 this point, from which the facts will appear, sufficiently to make 
 the grounds of the judgment intelligible : " With respect to the 
 state of mind of the deceased, the evidence of the witnesses is 
 conflicting, and not very satisfactory on either side. For as the 
 question of insanity, except in very decided cases, is a matter 
 of mere opinion, the naked expression of such opinion is not
 
 fraud deed obtained by, void. 201 
 
 entitled to any great weight, unless it be followed by an ex- 
 planation of those faels or circumstances, on which it is founded. 
 But the piece of evidence on this part of the case, which has 
 most weight with this court, is the report made to the late pro- 
 vincial court of Jaffna, in answer to a summons at the suit of 
 Mr. Toussaint, a creditor of the deceased, ' that she was insane/ 
 There may be but too much truth in the observation of the D. 
 Judge, as to the facility with which such reports may be obtained ; 
 and if the question now before the court was, whether this 
 woman should or should not be compelled to answer the claim 
 of her creditor, the court would look at such an excuse with 
 the greatest distrust, and would require it to be substantiated 
 by the most conclusive evidence, before it should be received 
 as such. But it must be recollected that, at the time when this 
 return was made by the fiscal, the deceased was residing at the 
 house of the first defendant himself, and under his care. It is 
 impossible, therefore, to suppose that it was made without his 
 knowledge ; and if he knew of it, he must have assented to and 
 approved of it. For otherwise, it was his duty to oppose an 
 act, by which a fraud was about to be committed on the credi- 
 tor, and, at the same lime, the privileges of a reasonable being 
 were to be withdrawn from his stepmother (if such she may be 
 called). How then can this knowledge and consent (thus neces- 
 sarily presumed) be reconciled with the assertion which the first 
 defendant now finds it necessary to make, that she had never 
 been out of her mind ? The report of her insanity was returned 
 by the fiscal on 16 Aug. 1832, and she died on 14 Oct. follow- 
 ing; and yet, the first defendant asserted and undertook to prove 
 that she never was insane in her life. It is to be regretted that 
 inquiry was not made, as to the source from which the fiscal'* 
 officer drew his information of her insanity : Hut if he did not 
 obtain it through the medium of the first defendant, nothing 
 would have been easier than for that person, who heard the 
 Stress laid upon this point when the case was first before the 
 S. C. at Jaffna, to have called upon the officer to give up his 
 authority. No such attempt having been made, common sense 
 points to the first defendant as having sanctioned, if not cre- 
 ated, this excuse for his relative's non-appearance, to admit
 
 202 
 
 or deny her bond to Mr. Toussaint. Either, therefore, the first 
 defendant knew that she was insane on iGAug., less than eight 
 weeks before she executed the deed in his favour; or else, be 
 has lent himself to a fraud, too base and wicked to entitle him 
 to credit in any other transaction in life." On the other objec- 
 tion, that of ho consideration baying ever been paid, the judg- 
 ment of the S. C. enters with some particularity ; but as that 
 part of the rase turned on the contradictions and improbabilities 
 of the evidence, without involving any question of general law, 
 it is not considered necessary to insert it here. But, on both 
 these grounds, the S. C. felt compelled to differ from the I). CL, 
 and to set aside the deed, as not having been fairly and honestly 
 obtained, and therefore void. No. 1448, Islands, 6 Sept. 1834. 
 This decision is not to be considered at variance with the ob- 
 servation made under title Evidence, sup. 138,9, that the S. C. 
 feels inclined, on points which depend on the credit due to wit- 
 nesses, to defer to the opinion of the D. C. For in the present 
 instance, the decision of tbe S. C., as regarded the insanity, 
 proceeded, not so much on disbelief of the witnesses, as on the 
 natural inference to be drawn from the facts as proved 5 and 
 on the second point, the contradictions appeared in the evi- 
 dence adduced on a second hearing, after llie original decree 
 of the I). C. had been pronounced. It sbould be observed that 
 tbe ultimate decision of the S. C. was concurred in by all the 
 Judges. 
 
 "V\e had occasion, under title Debtor and Creditor, p. 94. to 
 notice the dislinclion between fraud, properly so called, and 
 the breach of ;i posilhe l;n\ . ;i>. regards the annulment of the 
 contract, by which such positive law may have been infringed. 
 
 Me have also seen, under Administration, p. 8, that an 
 agreement to divide the estate of an intestate in any particular 
 way is void, as being either superfluous, or fraudulent. 
 
 e afco titles Debtor and Creditor, False Craim, Gaming, 
 sect! Hon. 
 
 ,, 
 
 .. ,. .. 
 
 "
 
 FRAt DS AXD PERJURIES; 
 
 ORDINANCE FOR PREVENTION OF, No. 7 of 183?. 
 
 Consolidates former regns., page 203 Uow to decide whether a case be 
 \Nilliin the ordcc. 203 By whom objection may be taken, as to land 20i As 
 to charging one with the debt of another 205 To whom was credit given? 
 20i Ordce. etc. to be construed liberally, and with reference to intention 
 205 What writing and signature sufficient on sale of land ; case stated 205 
 Principles may be applied toother subjects of ordcc. 207 Distinction be- 
 tween land itself, and mere appendages to land 207. 
 
 ;< 4*i jf,fU4' r , 
 
 THE chief object of this ordinance was to consolidate the 
 regns. already in force against Frauds and Perjuries in the 
 Maritime Provinces, 'JVo. 4 of 1817, and No, 20 of 1824; and 
 the Proclamation of 28 Oct. 1820, for the same object in the 
 Kandyan Provinces. What few decisions have taken plaee on 
 this subject, and which are about to be mentioned, arose out of 
 the regns. now repealed ; But as the provisions to which they 
 relate have been, with some exceptions, re-enacted by the 
 ordce., and as indeed cases must still be decided by the regns., 
 where the transactions to which they relate took place before 
 the passing of the ordce., those decisions could not with pro- 
 priety be omitted in this publication. It is not always a plajn 
 and easy mailer to decide, in the first place, \\helher a case.faJI 
 within the laws against frauds and perjuries (vide supra, p. 86, 
 87, 8); or, if it do, whether, in the second place, the requisites 
 of those laws have been complied with : And the numerous de- 
 risions, which appear in the English Reports on the statute 
 a-ainst Frauds, shew that (his difficulty js not conflned to colo- 
 nial judicature. The first of these questions will best be solved 
 by considering what the evil is, \\ Inch the regns.. and ordce. 
 were intended to remedy; and whether the person, endeavour- 
 ing to avail himself of these provisions, stands in the situation 
 which it was the object of the legislature to protect. For an 
 objection founded on these laws will sometimes be of no avail 
 in the mouth of the person making it, though it might have 
 been valid, if started by one in a different position. Thus, the
 
 204 Frauds, etc., ordce. against when applicable. 
 
 Kandyan Procl. above mentioned required the attestation of 
 two witnesses to any deed for the sale or tranfer of land. A 
 deed, therefore, wanting such attestation, could not be enfor- 
 ced by the purchaser against the seller } the latter person be- 
 ing the parly intended to be protected. But where a person, 
 having taken unlawful possession of land, rested his defence to 
 an action brought for the recovery of it, on the ground that the 
 deed of sale to the plaintiff from the original owner, though 
 admitted by the latter to be genuine, was defective as regarded 
 the attestation, the S. C. held that the objection must not pre- 
 vail ; that if it were admitted in favour of the defendant, am 
 person might seize land to which he had no claim, and if there 
 happened to be a technical omission in any one of the deeds, 
 by which such property might formerly have been transferred, 
 the bonA fide purchaser or holder of it would be unable to as- 
 sert his right. No. 416, Kornegalie, 23 Nov. 1833. 
 
 On the same principle, we have seen that where the pur- 
 chaser of goods agreed with the seller to pay the amount to a 
 creditor of the seller's, such agreement could not be considered 
 within the regn. or ordce., as "a contract charging the pur- 
 chaser with the debt of another," so as to make a writing ne- 
 cessary, as between buyer and seller; though the want of such 
 writing would have been a bar to an action by the creditor of 
 the seller, against the purchaser, for the amount of the debt. 
 No. 11850, Colombo, 30 April 1834; supra, p. 86,7,8. 
 
 This provision, which in our ordce. forms the first branch of 
 the 10th clause, seems to have occasioned at least as many 
 doubts, and therefore as much litigation, on the English statute 
 of frauds, as any other clause of that act. The question which 
 generally arises, in order to decide whether a case falls within 
 this provision, is this : Was the credit originally given to the 
 third person, the defendant only giving his guarantee to the 
 plaintiff for the debt? in which case a written undertaking 
 would be necessary, to make the defendant responsible. Or was 
 the original credit given to Ihe defendant, though the goods 
 were furnished, or the money advanced, etc., to the third per- 
 son? in which case the defendant is liable, though no writing 
 may have passed. Supra, p. 87, 8, and L. B. 6, 11 Dec. 1833.
 
 Frauds, e/c., ordce. against liberally construed. 205 
 
 This is a question which can only be satisfactorily solved, in 
 general, after hearing the evidence, and after calmly and ma- 
 turely considering what must have been the intention of the 
 contracting parties. And it should never be forgotten that as 
 these regns., etc., have the prevention of fraud for their object, 
 so they should receive the most liberal and equitable construc- 
 tion ; and that an overstrained and technical adherence to the 
 letter of the enactments, instead of a fulfilment of the true 
 spirit and intention of them, would lend to aggravate the very 
 evils intended to be remedied. 
 
 As to the second question, what shall be a sulTicient compli- 
 ance with the reg. or ordce., supposing the case to fall within 
 it, the same liberality of construction ought to prevail ; and in 
 deciding whether the writing and signature be sufficient, refer- 
 ence should be had rather to what must be supposed to have 
 been the real intention of the party signing, than the strict and 
 technical regularity of the writing, as a promise or agreement. 
 Thus : An action was brought in 1834, to recover possession of 
 two gardens, which the defendant alleged he had purchased of 
 the plaintiff, but which the plaintiff claimed the right of resum- 
 ing, as the contract had never been completed. It appeared 
 that on 21 March 1832, the plaintiff* addressed a letter to the 
 defendant, offering him his gardens for sale for oOOKD, which 
 sum he wished to have before the Cingalese new year (April), 
 ;ind he further requested the defendant to gel surveys prepared, 
 desiring also to know >vhcn lie should attend, for the purpose 
 of signing the title deed and receiving payment; that on 27 
 .March, the surveyor made his surveys, in which the defendant 
 was declared the purchaser, the plaintiff being present, slating 
 lhat he had sold the gardens (o the defendant, and even desiring 
 the surveyor to insert the defendant's name in the survey : 
 that shortly afterwards, the notary. l>v desire of the defendant, 
 saw the plaintiff, who told him lhat he was ready to sign tho 
 deed, on the purchase money being paid ; and thai ihe defend- 
 ant obtained possession, and laid out considerable sums in the 
 improvement of Ihe gardens, to which improvements, however, 
 the plaintiff* had made some verbal opposition. I'pon these 
 facts, the plaintiff contended that, the contract never having
 
 Fraud-it, ctc.,0rdce. against contract in writing. 
 
 been finally completed, by The payment'on the one hand, and 
 the execution of ihc deed of transfer on the other, he had a 
 right to recede from his engagement, and to be reinstated in 
 the possession of his gardens. The D. C., adopting that vievi . 
 jjave judgment in his favour. The defendant having appealed, 
 the plaintiff further insisted on Keg. No. A of 1817, which enacts 
 that " no promise, contract, etc., shall be valid for the sale or 
 purchase of landed properly, unless the same he in writing, and 
 signed by the party making the same, or by some person law- 
 fully authorised by him.'' The following is, in substance, the 
 judgment of the S. C. as far as it related to this point. 
 
 With respect to the first objection, it is to be observed that 
 the non-completion of the contract is attributable at least as 
 much to the plaintiff as to the defendant. The payment of the 
 purchase money, and the execution of the deed of transfer, 
 ought to be contemporaneous acts. (Tide supra, p. 48, 9.) Or 
 the plaintiff might have sued the defendant for the purchase 
 money at any lime, on executing the title deed. The onh 
 point, on which this court has felt any doubt, has been with 
 respect to the reg. But on consideration, the letter of the 
 plaintiff of March 1832, would seem to be a sufficient contracl 
 in \uiling, followed as that was by the survey, which was an 
 entire acceptance of the offer on the part of the defendant. 
 The stipulation, that the money should be paid before the new 
 year, implied a counter-stipulation, that the transfer should be 
 executed by that lime ; for no one can be called on to pay the 
 purchase money, until the vendor is ready to make out and give 
 a good title. But if any doubt still cxisled on this point, it 
 would be removed by the acts of survey. Those instruments, 
 prepared by direction of the plaintiff, by whose desire also the 
 plaintiff's name was inserted as the purchaser, amount, in the 
 opinion of this court, to a "contract in writing signed by a per- 
 son lawfully authorised by the parh . " In point of strict Iav> , 
 therefore, this court is of opinion that the defendant is entitled 
 to have llie contract fulfilled. Asa matter of fairness and equih , 
 there could not be a moment's doubt. It would be the height 
 of injustice to allow ;i person to go to great expense for two 
 years in the improvement of land, with only the feeble opposi-
 
 Frauds^ etc,, ordqg. against as to land. 
 
 tioii which the plaintiff appears to have made ; and Ihen to turn 
 him out, on the ground of non-complelion of Ike contract, which, 
 is attributable full as much to the seller, as the purchaser. Il 
 was accordingly decreed that the defendant should remain in , 
 possession of the gardens, and that on receiving a good tide from 
 the plaintiff, he should at the same lime pay the plaintiff the 
 sum of 37/. 10-s. (the purchase inoncy) with interest from 3Iarch 
 183-2. _\o. 109, Callura, 27 Aug. 183,4,, 
 
 There are a multitude of English decisions on this point, not 
 all of them quite consistent wilh each other. JJut they seem 
 fully to recognize the principles on which the above decision 
 proceeded: First, That where the contract rests on corres- 
 pondence between the parlies, it is sufficient if such corres- 
 pondence, upon a fair interpretation of it, imports that the 
 agreement is actually concluded, and no longer rests on bare 
 treaty and negociation. (See 2 Yesey and Beames, 341.) 
 Secondly, That a writing in the hand of the party himself, 
 amounting to an agreement to sdl or purchase, is sufficient, 
 though not literally signed by him. (See 1 Esp., 189 ^ 1 Russell 
 and Mylne, Gio : 18 Yes. Jun. 175.) It is to be observed, that 
 the foregoing case arose out of the rcg. of 1817; and that the 
 oidcc. \thich has repealed both that reg. and ISo. 20 of 1824, 
 adopts the provisions of the latter reg. as to requiring all instru- 
 ments, effecting the sale, purchase, etc. of land, to be executed 
 before a notary, and signed by two witnesses; or if there be no 
 notary in the district, to be signed by two witnesses. The 
 principles may, however, sliil be of use, as applicable to the 
 several branches of the 10th clause of the ordce. 
 
 In considering the applicability of the land clauses of Ihese 
 laws, it sometimes becomes necessary to distinguish between 
 tin; land itself, and those privileges or advantages which, though 
 derived from the land, are yet not identical with or inseparable 
 from it. Thus, where a plaintiff complained of being dis- 
 turbed in his possession of a boutique in a public bazar, which 
 he had bought by verbal sale from the defendant, and where 
 he had sold goods for three years, the D. C. dismissed the action, 
 on the ground that the sale was a fraud on the si amp reg. No. 4 
 of 1827, s. 5, which requires that every deed, etc., purporting
 
 208 Frauds, etc., ordce. against as to /and, etc. 
 
 to convoy a title to lands, etc., shall be on stamp. On appeal, 
 however, the case was referred back to be proceeded with in 
 I he D. C. The S. C. observed, that the 5th clause of that reg. 
 onlv required that conveyances of Innd should be on stamp, and 1 
 the 9th clause provided that no contracts need be reduced to 
 writing, except such as were then by law required to be in 
 writing. The question therefore was, whether this were such 
 a contract. The reg. against frauds, indeed, required that all 
 conveyances of land should be in writing. But it appeared that 
 the present transfer was not of land, but of the mere construc- 
 tion in the shape of a boutique, erected on the spot by the per- 
 mission of government, to whom the soil, it must be presumed, 
 slill belonged. If the plaintiff had endeavoured, by virtue of 
 this sale, to establish a right to the ground on which the boutique 
 stood, the objection might be fatal ; but the seller had staled 
 that he gave up the boutique to the plaintiff, on merely receiving 
 the expenses he had incurred in erecting it. If then the plaintiffs 
 rlaim did not extend to the ground, but was limited to the 
 building, and to the right to carry on trade there, like the 
 holder of a stall in a fair or market, nothing in the stamp reg. 
 would interfere with the enforcement of such claim. No. 964, 
 Jaffna, 25 July 1835. 
 
 GAMIXG. 
 
 Prevalence of, in Ceylon, page iOS Modes of repression ; security for the 
 peace, prosecution of gamin;: h-mscs. dr. 2-!K) General police ordrc. 210 
 By the civil law. money won at piny can neither be sued for, nor, if paid, be 
 recovered back, unless fraud -211 Aivl scciniiy. etc.. for payment voi I 212 
 So, as to wagers, and stake-holders 212 English la\\ 212 Distinction 
 between private and public gaming 212. 
 
 THE prevalence nf this vice anvmg the native inhabitants of 
 (>\l<m. and the crime auJ misery which are Us constant at- 
 lrndanK h;i\r occasioned the subject to be several tim'> 
 brought to the notice of the S. Court : both by D. Judges, in their 
 anxiety to know how thesi; disorders were to be repressed, and 
 by the peaceable inhabitants of country places, infested with
 
 Gaming modes of rcpres ing. 209 
 
 gaming houses. And though the answers, \thich the Judges 
 directed to be returned, were far from what they would have 
 wished them to be, being, indeed, suggestions of what the 
 law ought, to be, rather than of any existing and efficacious 
 remedy for the evil complained of, it may still be not wholly 
 useless to theD. Courts, to know the view taken of this serious 
 subject by the S. C., in the absence of any positive law to regu- 
 late it. 
 
 In Sept. 1834, a petition was presented to the Chief Justice 
 by the inhabitants of Pilliagodde and the neighbouring villages, 
 complaining of certain persons, for allowing ar.d enticing the 
 inhabitants to assemble in their houses and gardens, for the 
 purpose of gaming. The C. J. referred the petition for inquiry 
 to the D. J. of Colombo, who inquired into the matter, and find- 
 ing that the complaint was well-founded, requested instructions 
 how he 'ought to proceed. He was informed in answer, "That 
 sufficient evidence of disorderly practices by the defendants ap- 
 peared on the face of the depositions, to require thpt they should 
 be called upon to enter into their personal recognizance, in tin- 
 usual amount, with reference to their condition and circum- 
 stances, for their peaceable and orderly conduct in future ; and 
 that the police officers should be directed to keep a vigilant eye 
 upon the premises in question, and in case of any the slightest 
 breach of the peace or disturbance taking place there, to appre- 
 hend the parties concerned, and bring the;n forthwith before 
 the D. C. , that places of this description would most naturally 
 fall under suspicion, in case of robbery, as the receptacles of 
 stolen properly, since it was well known that, while the pro- 
 pensity for gaming was one of the most frequent incentives to 
 theft and robbery, the gaming house often furnished the means 
 of disposing of the plunder-, that the difficulty, if not impossi- 
 bility, of repressing the vice of gambling in private was un- 
 deniable, but that a house or other premises, publicly kept for 
 the express purpose of enticing gamblers to congregate, and of 
 furnishing them with the means of ruining themselves and their 
 families, and afterwards driving them to the commission of 
 crime, constituted a nuisance, a pest, which thejlaws of no well- 
 regulated slate would tolerate ; that, at present, there seemed 
 
 14
 
 210 Gaining modes of repressing. 
 
 to be no express law against these noxious establishments, at 
 least out of the larger towns, a defect which would probably 
 be remedied by the first ordinance, which might be passed for 
 regulating the general police of the island 5 that the sanction 
 which, to a certain degree, unfortunately, might be considered 
 as having been given to these institutions by the gaming rents, 
 while they were in existence, would naturally make the courts 
 unwilling to be extreme in their rigour towards offenders, who 
 might possibly consider the abolition of the monopoly which the 
 rents practically kept up, as a virtual permission to any person 
 to keep a gambling house who pleased ; but that the defendants 
 ought to be given to understand, and that in the most public 
 manner, that standing as they did, to say the least of it, on the 
 very utmost boundary line between what was lawful and what 
 was illegal, their conduct would be most narrowly watched, and 
 that any infraction of the public peace, which might be proved 
 against them, or be traced to them as the originators of it, would 
 be visited with much greater severity, than if committed by 
 persons, whose ordinary habits were those of honest industry." 
 Answers to the same purport w r ere sent to similar inquiries 
 from other D. Judges. L. B. 20, 29 Sept. 1S34. Id. 16, 28 Feb. 
 1835, and 26 Aug. 1 Sept. 1835. 
 
 The measure contemplated in the foregoing letter, of an ordi- 
 nance for regulating the police of the whole island, has, in all 
 probability, been before now effected. The executive govern- 
 ment, it is well known, was long anxious that such provision 
 should be made; though the difficulty of legislating on such 
 various subjects for a whole population, divided into distinct 
 nations, and varying so much in laws, customs, and habils, had 
 prevented the execution of it up to the early part of 1836. 
 
 The only case on the subject of gaming, which has occurred 
 In the courts of Ceylon, within the recollection of the writer of 
 these notes, was an action brought in the D. C. of Pantura on a 
 wager of 40RD., won by the plaintiff on a cock-fight, from four 
 defendants, one of whom was described as the renter ; which 
 it is presumed meant the tavern-renter, since the gaming rents 
 are now happily abolished. The defendants pleaded payment, 
 which was proved to the satisfaction of the D. C., and the action 
 
 H
 
 Gaming legal disabilities of gamblers. 211 
 
 was accordingly dismissed. The plaintiff appealed, on the ground 
 that the payment had not been sufficiently proved ; but the S. C., 
 as may be supposed, was not inclined to disturb the decision, 
 so that it was unnecessary to consider the question, whether 
 this action could have been maintained, supposing the fact of 
 payment had not been established. If such necessity had arisen, 
 the C. J., before whom the case was heard in appeal, w r ould 
 have felt bound to express a very strong opinion against it. 
 Upon this subject, the reader can consult Van Leewin, p. 371, 2, 
 and V r ander Linden, 311. But the authority of Voet seems to 
 be conclusive on the point, as regards those districts, at least, 
 in which the R. Dutch law prevails. In his title " Concerning 
 Gamblers," Lib. xi., tit. 5, after shewing the distinction between 
 games of skill and strength, which were allowed by the Roman 
 law, and games of chance, which were held unlawful (par. 1 
 and 2), a distinction w hich also existed in the ancient common 
 law of England, he enumerates the various penalties, to which 
 gamblers, and those who encouraged gambling, were formerly 
 subject. Among others, the house kept for public play was 
 confiscated, and the keeper of it could have no redress, civil or 
 criminal, for any robbery, assault, or other loss or injury, which 
 he might have sustained while it was so employed; par. 3. This 
 rigour, he tells us, had been softened down in more modern 
 times, though the dishonest character (for such the law de- 
 signates it) attached to gamblers and gaming-houses still re- 
 mains: So that neither money lost at play can be sued for at 
 law, nor, on the other hand,' can such money, if once paid, be 
 recovered back , because, as both parties, winner and loser, are 
 equally criminal, and as no right of action can be founded on 
 an illegal consideration, the party in possession is considered to 
 be in the preferable situation : But if it could be proved that 
 the winner was indebted for his success to foul play, whether 
 in gambling for money or anything else, the loser could scarcely 
 be denied his right to recover back his losses , for, in that case, 
 the players would not be equal in delinquency, nor ought the 
 winner, loaded with the infamy of fraud, in addition to the dis- 
 grace of gaming, to be left in a better situation than the loser, 
 "who is only open to the latter imputation 5 par. 6. As the law 
 
 14.
 
 212 Gaming legal disabilities of gamblers. 
 
 w ill sanction no obligation founded on gaming, so neither will 
 the promise to pay money lost at play derive any additional 
 force from sureties, pledges, or any other securities; which, on 
 the contrary, may be recovered back or annulled, without pay- 
 ment of the money lost. Par. 7. The same stamp of illegality, 
 which is thus aflixed to the players themselves, and the same 
 inability to sue for what is won or lost, attach also to those 
 who bet upon games of chance ; for such wagers are but another 
 kind of gaming, and rest on an equally corrupt foundation. 
 Par. 8. If the betters deposit the object of their illegal wager 
 w ith a siakeho!der,and he pays over the slake to the winner, the 
 latter is entitled to retain it, as he would have been, if he had 
 been paid by the loser ; but either parly, at any time before 
 payment, even the loser after the bet is decided, would have a 
 right to relract, and to call on the stakeholder to pay back to 
 him whatever he might have deposited, instead of paying it over 
 to the w inner. Par. 9. Such is the R. Dutch law on the subject 
 of gaming, as laid down by Voet. It would be well if the natives 
 of Ceylon were aware that, in the pursuit of their favourite vice, 
 they must expect no favour or support from the law in gaming 
 disputes, even when they have right (as between gamblers) on 
 their side. The English Acts of Parliament, passed for the 
 suppression of gaming, go further than the civil law: for no! 
 only can no money lost at play be recovered by action, but the 
 loser of any sum amounting to 10/. may recover it back from 
 the winner with costs, 12 Geo. II. c. 28; or any person losing 
 or winning 10'. at onetime, or 20/. in 2-f hours, may be fined 
 live times the amount. It may, however, be double! whether 
 any laws that could be devised would be suflicient to repress 
 gaming in i>r,'caie; at least without a degree of inquisitorial and 
 vexatious interference with domestic habits, which would be 
 wholly inconsistent with English feelings of independence and 
 mode of government. But as regards houses or other places 
 devoted to public gaming, there can be no reason why laws 
 should not hi; framed and enforced, amply suflicient for tlu> 
 suppression of ihese nuisances. The experiment is now in a 
 course of trial in the French capital, where the licenses to 
 gaming houses, which till lately disgraced the government, are
 
 Gaming laics, and execution of them. 213 
 
 entirely abolished, and all such establishments are declared to 
 be illegal. If the reformation prove incomplete, it will be owing, 
 as in London, to the defective execution of the laws, rather than 
 to the laws themselves. 
 
 GANGSABE. 
 
 See Arbitration. 
 
 GOVERNMENT. 
 
 Parties, succeeding against govt., recommended for their 
 costs. Supra, p. 74, 5. 
 
 Grant of land, not necessarily conclusive in favour of the 
 grantee, sec title Land. 
 
 Clause in grant against alienation does not prevent sale in 
 execution, supra, p. 163,4. 
 
 Distinction between claim by govt. to property seized in exe- 
 cution, and claims by private parties, supra, p. 167. 
 
 Proof necessary to shew that a person is authorised to certify 
 documents in his oflicial capacity. See judgment in Gibson v, 
 Rodney, infra, title Nantissement. 
 
 The S. Court has refused to receive a complaint by an officer 
 of government, as to his dismissal from oflice : But where a 
 complaint was preferred against a government agent, the S. C. 
 referred it to the -king's advocate. Petition Book, 1835, p. 128. 
 
 HABEAS CORPUS- 
 
 See title Imprisonment. 
 
 HEARING. 
 
 See Evidence, Practice, and other titles.
 
 214 
 
 IIUSBAXD A:\D WIFE. 
 
 Marriage, what valid between natives; Reg. 9 of 1822, page 214 Suit for 
 divorce from forced marriage 214 Objections to registration ; mode of pro- 
 ceeding 215 Bans, evidence of promise of marriage 216 Marriages, prior 
 to Reg. how proved 216 If legitimacy questioned, some proof of marriage 
 required 217 In Ccjlon, wife may possess property, contract, sue, etc. 218 
 Deeds of separation binding on both, and husband not liable for her debts 219 
 Abandonment by husband ; decree thereon 220 Among Moors ; right to 
 dowry property on separation 221 Kaycooly ; right of widow and children 
 222 Dowry not liable for husband's debts 222 Unless fraud appear: And 
 so seems the Kandyan law as to wife's property 223 Similar question in 
 Balticaloa 224 Wife's land not divested out of her, by being registered in 
 husband's name ; nor liable to be confiscated for husband's treason (Kandyan) 
 22i,5 Husband and wife, joint parties, may appear for each other 225. 
 
 THE same difficulty, which prevented the writer of these 
 notes from attempting to lay down any forms of procedure, 
 under the 5th section of the rules of practice, touching the ma- 
 trimonial jurisdiction of the D. Courts, still presents itself to 
 him, in endeavouring to discuss in any general terms, applica- 
 ble to the whole Island, the subject of Husband and Wife; 
 the variety of laws and customs, namely, by which marriages, 
 and the questions incidental to that state, must be governed in 
 Ceylon, according to the race or class, to which the parties 
 may belong. He can therefore do little more than mention 
 such cases, as appear by the records of the S. Court to have 
 been decided on this subject. 
 
 As regards the question, what shall be considered a legal 
 native marriage, the reg. No. Oof 1822 enacted that no mar- 
 riage in the Maritime Provinces, between natives, subsequent 
 t> 1 Aug. 1822, should be valid, so as to convey any right of 
 property, unless registered as therein directed ; and that, on 
 the other hand, such registry, as well as that made in former 
 registers or Thombos, if followed by cohabitation, should be 
 sufficient evidence of marriage between natives, of whatever 
 religion, sect, or cast, subject to exceptions as to affinity, etc. 
 A D. Judge applied to the S. C. for instructions, under the fol- 
 lowing circumstances : A boy and girl, Malabars, both young, 
 though their precise ages did not appear, had applied to the
 
 Husband and W r ife valid marriage; R. No.9 of 1822. 215 
 
 D. C. to procure a dissolution of their marriage, which they 
 both stated they had been compelled by their respective parents 
 to enter into, though both were equally averse to the match. 
 The marriage had been registered according to the reg., due 
 publication having been previously made, in pursuance of the 
 6th clause. The D. J. doubled whether he had authority to 
 annul marriages (vide infra, title Jurisdiction), and even if he 
 had, whether sufficient grounds appeared for the annulment in 
 ihe present case. The answer returned to this inquiry was. 
 That as regarded the reg., it would seem that the marriage of 
 these parties was not as yet complete, the registration not hav- 
 ing been followed by cohabitation, such at least being the in- 
 ference to be drawn from the libel and answer. The D. Judge 
 was therefore recommended to call the parents of the parlies 
 before him, and to take evidence, if it should be necessary, as 
 to that fact. If cohabitation had taken place, the marriage 
 would seem to be complete; If it had not, the question would 
 then arise, whether Tamul parents had the power of compel- 
 ling their children to marry, contrary to their inclinations ; a 
 power which it was impossible to suppose could exist. It 
 would be well, however, to inquire into the customary law of 
 the Northern Province, as to the extent of the parental autho- 
 rity in this respect, and also whether any cases had been de- 
 cided in the late Provincial Court, which might serve as prece- 
 dents. L. B. 6, 13 Sep. 1834. "What the result of this inquiry 
 was, had not been made known to the S. C. before the writn 
 left Ceylon. 
 
 The 9th clause of the reg. directs that any objection to the 
 registration of a marriage shall be forthwith reported to the 
 court, in order that the person objecting may be called on to 
 substantiate his objection within len days. A D. Judge in- 
 quired whether it was intended that parties should institute a 
 .civil action in the usual manner, to obtain damages, as pro- 
 vided by the 10th clause ; or whether the objeclion should be 
 .heard summarily, and without stamps, in the manner of a cri- 
 minal prosecution. On inquiry, the practice of the D. C. of 
 Colombo was stated to be, "That on the objeclion being re- 
 ported to the court, a notice issues to the opponent, or person
 
 216 Husband and Jf'ife proof of marriage. 
 
 objecting, calling on him to substantiate bis objections on a 
 day appointed : This notice issues without stamp -, but the ob- 
 jections, if reduced to writing, and all subsequent proceedings, 
 must be on slump." This, it will be observed, gives the pro- 
 ceedings the shape of a civil action, in which both the validity 
 of the objection, and the claim of the marrying parties to da- 
 mages under the lOlh clause, if the objection be found to be 
 false or frivolous, may be considered and decided. As there 
 seemed nothing unreasonable or objectionable in that course, 
 and as it was requisite that the several D. Courts should, in 
 every practicable particular, adopt uniformity of practice, it 
 was recommended to the D. Judge who made the inquiry, to 
 pursue the same mode of proceeding. L. B. 25 Sept. 1 Oct. 1834. 
 
 In an action for a breach of promise of marriage, which the 
 D. C. had dismissed, as insufficiently proved, the S. G. was in- 
 clined to hold thai the publication of bans, in pursuance of the 
 reg., both parlies being present and assenting at each of the 
 three publications, was sufficient evidence of a promise,- but as 
 the plaintiff had further e\ ulence, which her proctor had waived 
 as unnecessary, the case was referred back for the reception of 
 it, after which th;> D. C. gave judgment for the plaintiff. No. 
 J134, Caltura, 24 June, 26 Aug. 1835. 
 
 The reg., it is to be observed, has no retrospective effect; and 
 \\ith respect to onions between nalivcs, prior to August 1822, it 
 would be hopeless to expect, and cruel to require, in all cases, 
 my thing like regular and salisfactory proof of the marriage 
 ceremony having been performed. Il is not always easy to as- 
 certain, what riles and ceremonies are necessary for the validity 
 of the marriage contract, anvmg the lower classes of natives. 
 And as regards the ancient registers or Thombos, every day's 
 experience shows how little they are to be relied on in them- 
 selves, and how frequently and easily they were falsified. Ac- 
 cordingly, in a case in which it was attempted to impeach the 
 right of the occupants of certain gardens, on the ground that 
 the children of the original proprietor vere stated in the 
 Thombo evlract, several generations back, under the Dutch go- 
 vernment, to have been born out of wedlock, the S. C. refused 
 fo allow the objection ; observing that half the natives in the
 
 Husband and Wife proof of legitimacy. 217 
 
 island perhaps might be dispossessed of their property, if it 
 were necessary for them to prove a regular marriage between 
 their parents. No. 6715, Colombo, G Jan. 183G, to be mentioned 
 more fully under title Land, or Prescription. 
 
 Where, however, the legitimacy of persons now living is dis- 
 puted, and becomes a material question, they should he prepared 
 to offer some evidence, either of the actual marriage of their 
 parents, or, supposing the union to have taken place before the 
 reg. was passed, of facts, from which a marriage may be in- 
 ferred: Whichbeingdone, the law will presume legitimacy, 
 unless the contrary be shewn ; as we have seen supra, p. 109, 
 10, 120: Thus, the sons of a person who had died intestate 
 having applied for administration, and being opposed by*the 
 Msler of the deceased, on the ground that Iheir mother had not 
 been married to iheir father, the D. C. decided that it was for 
 the sister to prove the illegitimacy. 15ut the S. C., considering 
 that the burlhen of proof did not rest wholly on the sister, mo- 
 diOed this decision, and referred the case back to the D. C., 
 in order that the sons might be called upon to offer some evi- 
 dence of the marriage of their mother, or of her having been 
 treated by the father, and considered by the neighbours, as his 
 wife, according to the custom of the country, and of the class to 
 which the parties belonged. This evidence having been offered, 
 and the D. C. might safely content itself with slight evidence 
 to this point, the presumption of law would be, that the 
 sons were the issue of that lawful connexion, unless the sister 
 could offer positive evidence of their having been born out of 
 wedlock. No. 1922, Chilaw and Putlam, 3 Dec. 1834. 
 
 The marriage, however, being established, the stale of hus- 
 band and wife in Ceylon (laying out of the question marriages 
 solemnized elsewhere, each of which must be governed by the 
 law of the place where it occurred) exhibits a very different 
 view, as regards the relative rights and powers of the parties, 
 from that which the English law of marriage presents. Ac- 
 cording to the latter, husband and wife are looked upon as one 
 person 5 the very being or legal existence of the woman being 
 suspended during the marriage, or rather incorporated and con- 
 solidated with that of the husband : So that, as a general rule,
 
 218 Husband rights of Wife, independent of. 
 
 the wife can possess no property independently of her husband, 
 nor can she either contract with him, or \vith a third person, 
 without her husband, or by his consent, express or implied. 
 Whereas in Ceylon, the wife may possess property in her ow n 
 right, may contract with and sue third persons in certain in- 
 stances without her husband, may contract with and sue her 
 husband himself, and if successful, may even have execution 
 against his property, though not against his person $ supra, 
 p. 160, 1. 
 
 As regards the power of the w ife to sue third persons : A 
 married woman brought an action in the B.C. of Batticaloa, for 
 the recovery of an inheritance in her own right, without her 
 husband, who was however living with her. The D. Judge, 
 being doubtful how far this proceeding could be considered re- 
 gular, and the defendant having pleaded in bar of the action, 
 applied for instructions, whether the libel should be amended 
 by the insertion of the husband's name as joint plaintiff, or 
 whether the case might be allowed to proceed in its present 
 form. The S. Court directed an answer to be returned, That 
 the necessity of joining a husband in an action by his wife must 
 depend, to a certain degree, on the situation of the parlies, and 
 on the source from which the right of action is alleged to be 
 derived; that if, for example, a husband were out of the coun- 
 try, or had abandoned his wife, or were legally separated from 
 her, or had refused without any just ground to join in the ac- 
 tion, the wife ought not to be debarred from suing as a single 
 woman, more especially if the property sought to be recovered 
 by her, as appeared to be the case in the present instance, were 
 claimed in her own right, and not in that of her husband ; 
 that the better course, therefore, would be to call upon 
 the plaintiff to stale the circumstances, under which she was 
 living w^ith reference to her husband, and the reason why he 
 had not joined in the action, and then to call on the husband 
 cither to become a party, or to assign his reasons for refusing; 
 that the result of that inquiry would, most probably, enable 
 ihe D. Court to decide on the propriety of allowing the action to 
 proceed, at the suit of the present plaintiff alone , but thai if 
 any difficulty still remained, as to the proper course to be pur-
 
 Husband and Wife deeds of separation. 219 
 
 sued, the S. C. would most readily assist the D. Judge, with any 
 further advice which he might require. L. B. 11, 23 June 
 1834. The case not having been again referred to the S. C., 
 it is presumed that it proceeded without further difficulty. 
 
 With respect to the right of the wife to sue her husband : An 
 action was brought by a married woman against her husband, 
 for the arrears due on a bond, entered into by him on their se- 
 paration, for her maintenance. The husband demurred to the 
 action, contending that, though the bond was executed by 
 him, he could not be sued upon it by his wife. The D. C. how- 
 ever gave judgment for the plaintiff, and on appeal the S. C., 
 after consultation among the three judges, was prepared to af- 
 firm the decision, as regarded the right of action by the wife ; 
 but the matter was compromised. No. 839, Galle, 1 1 Sept. 1835. 
 
 But where a deed of separation has been entered into,. the 
 wife must consider it as binding on her, as well as on her hus- /vt,/ 
 band ; and if she exceed the allowance, she will have no right 
 to look to her husband, to make good the deficiency. A sepa- 
 ration took place in 1830, on which the husband, under the 
 sanction of the then court of Kandy, agreed to allow his wife 
 20 RD. monthly, out of a salary of 85 RD. In 1832, the wife 
 instituted a suit in the court of the judicial commissioner of 
 Kandy, for an increase of allowance, and also to compel her 
 husband to pay her debts, amounting to 250 RD. As to the 
 first demand, the court of Kandy was of opinion that the allow- . 
 ance was sufficient : As to the second, the husband agreed to 
 pay off the debts, by a further monthly instalment of 10 RD., 
 which was accordingly sanctioned by an order of court. The 
 wife appealed as to both demands, contending that 20 RD. were 
 insufficient for her monthly allowance, and that her creditors 
 would be importunate for immediate payment. The S. C. % 
 however, agreed with the D. C., that 20 RD. were as much as 
 could be reasonably awarded, with reference to the defendant's 
 salary : And as regarded the second point, the S. C. affirmed 
 the order with this modification; that the new instalment of 
 10 RD. should be paid, not to the wife, but to the secretary of 
 the D. C., or to some other person, authorized by the D. Judge 
 to receive it, and who should pay over the sums so received in
 
 220 Husband abandonment of Wife. 
 
 liquidation of Ihe wife's debts. The S. C., so far from consi- 
 dering that tho wife had any ground of appeal against Ihe deci- 
 sion of tho judicial commissioner, was very doubtful whether, 
 if the case had come before it, as a court of original jurisdiction, 
 it would have considered the defendant to be liable at all for 
 these dfb!s. It observed that, though separations between man 
 and wife were not to be encouraged by courts of justice, yet 
 when once the}- had been entered into, and had received judicial 
 sanction, they should be adhered to on the one side, as well as 
 on the other ; that when a wife received a separate main- 
 tenance, declared by a court of competent jurisdiction to be 
 sufficient for her support, an J to be fairly proportioned to her 
 husband's means, she was bound to make that allowance suffice, 
 and if she contracted debts, she, and not her husband, ought to 
 be responsible for them; that those who gave credit to a 
 woman under such circumstances knew, or ought to know, that 
 their claim against the husband was at best but a doubtful one, 
 and it was their duty to inquire of the husband whether, if they 
 trusted the wife, they might do so with his consent, and on 
 his responsibility ; and that if this were otherwise, a woman 
 might incur debts, which could only be satisfied by the consign- 
 ment of her husband to a gaol. Xo. 4569, Kandy, 7 Dec. 1833. 
 The principles here laid down are recognized, as regards the 
 non-liabilily of the husband, even in England, where the wife 
 is so much more dependent and irresponsible, than in Ceylon ; 
 and this, though there be no deed of separation. 4 Camp. 70 j 
 3 Esp. 250. 
 
 In an action by a \\ife against her husband, for having aban- 
 doned her and their children, the. defendant denied the mar- 
 riage ; but that fact being satisfactorily established, the D. C. 
 decreed in affirmation of it, and directed further, "that the 
 wife be quieted in the possession of the garden and house in 
 which she now resides, and of the field held and possessed by 
 her.'' On appeal, the S. C. affirmed the decree, as far as de- 
 claring the plaintiff to he the lawful wife of the defendant, but 
 observed, with respect to the house and land, that Ihe decree 
 seemed to go further than the e\ idence (which was very weak 
 as to the w ife's possession) or the relative situation of the par-
 
 Husband and If'ife right to dowry. 221 
 
 ties, would warrant; that the exclusive right of possession, which 
 the decree would give the j>lainlifT,of properly, too, not proved 
 to have been her's originally, seemed somewhat inconsistent 
 with the relation of husband and wife, which it was one of the 
 objects of the suit to establish, and might, as was urged by the 
 appellant, operate as a hardship upon the defendant's oilier re- 
 lations. That part of the decree was therefore thus modified : 
 The defendant should be compelled to support the plaintiff, as 
 bis wife and the mother of his children, and to allow his said 
 wife and children to reside in his house; if he refused or ne- 
 glected so to do, the D. (\, on complaint of the \\ife, would then 
 award her a reasonable proportion of the defendant's property ; 
 or, if he should again abandon his wife and children, the 
 plaintiff should, in (hat cane, he maintained in possession of the 
 estate mentioned in the decree. No. 64, Katnapccra. 3 Sept. 
 183-1. 
 
 JJel\\een Moorish parties: Husband and wife having sepa- 
 rated, the wife's father sued the husband for the dowry, which 
 he had granted to the defendant on his marriage , and he relied 
 partly on his right, as a matter of customary law, partly on an 
 alleged agreement, entered into by the defendant on the separa- 
 tion, to give up the dowry. The 1). C. dismissed the action, on 
 the ground that, whatever right the wife might have to the 
 dowry, the father had no claim upon it. On appeal, the S. V. 
 made the following order: ;t That the case be referred back !o 
 the D. (j., in order that evidence may be received on bnlh 
 sides, as to the circumstances under which the separation look 
 place, and of any agreement into which the defendant may have 
 entered, as alleged by the plaintiff. The court has consulted 
 the Moorish assessors this day in attendance, eighl in number, 
 who have given their unanimous opinion en the following 
 poinls, which may perhaps assist the D. C. in the prcscctilion ol 
 the inquiry: First, That if a wife leave her husband by her 
 own desire, and contrary to his wishes, neither she, r.or any one. 
 on her behalf, can claim any return of the dowried properly : 
 Secondly, That if the husband turn his wife out of his house, 
 or, which is the same thing, if he desert her, she, or any one 
 .duly authorized to act on her behalf, may recover back such
 
 222 JIusband and Jf'ifc right to Kaycooly. 
 
 property : Thirdly, That if they separate by mutual consent, 
 such separation should be made the subject of an agreement, 
 spccifj ing the terms on which the separation was to take effect, 
 and the proportion of property to be restored by the husband to 
 the wife. After hearing the evidence, the D. C. should record 
 its opinion, and that of Moorish assessors on the law or custom, 
 applicable to the case as it will then present itself, and the pro- 
 ceedings will then be returned to the S. C." No. 98, Mada- 
 walelenne, 9 May 1835. Up to March 1836, however, the 
 proceedings had not been returned to the S. C. 
 
 An action was brought in the D. C. of Chilaw r and Putlam, for 
 a garden, which the plaintiff alleged had been granted first to 
 his brother on his marriage, as Kaycooly, and after his death, 
 and on the marriage of his widow by the plaintiff, had been, in 
 like manner, granted to himself: And he endeavoured to esta- 
 blish his case, by proof of a verbal agreement by his father-in- 
 law to give him the garden on his marriage, and also of posses- 
 sion. The D. G. considered the evidence insufficient, and dis- 
 missed the action. On appeal, the S. C. consulted assessors at 
 Colombo, as to what would be the law or custom regulating the 
 Kaycooly under such circumstances: Whether it would go with 
 the w idow to the second husband ; or remain her separate pro- 
 perty 5 or revert back to her father, who would be empowered 
 to grant it again to the second husband? The assessors were of 
 opinion that, on the second marriage, the Kaycooly ought to be 
 secured to the child or children of the first marriage ; but that, 
 at all events, it became, on the death of the first husband, the 
 absolute properly of the w idow and such children. The decree 
 was affirmed. No. 4907, Chilaw and P. 26 June 1834. These 
 decisions, if so they may be called, are not sufficiently definite 
 or precise, to be very satisfactory as authorities. But the 
 writer is unwilling to omit a single recorded case, which goeg 
 any way, however short, towards assisting the future solution 
 of questions of a similar nature. 
 
 It has already been mentioned (p. 94) that, according to the 
 law of the Malabar districts, dowry property is not liable for 
 the husband's debts. The question arose on a prisoner for debt 
 applying to the D. C. of Jaffna, to be discharged under the in*
 
 Husband doicry property not liable for his dells. 223 
 
 solvent reg. The D. C. decreed his discharge, and the creditors 
 having appealed, the case came before the Chief Justice on cir- 
 cuit $ one of the objections to the prisoner's discharge being, that 
 he had not inserted all his property in his schedule. The C. J. 
 felt compelled to dissent from the opinion of the D.C , consider- 
 ing that one-half of the proceeds of the dowry property, to 
 \shich it was admitted the husband was entitled, ought, in jus- 
 tice, to be answerable for his debts, and to be inserted, there- 
 fore, as yearly income, in the statement of his property ; but re- 
 served the question for fuller consideration at Colombo. Having 
 accordingly referred it to assessors there, who appeared to be 
 well versed in the customary law relating to dowry, and having 
 inquired into the practice in the latter district, with reference to 
 insolvents similarly situated, the C. J. found that the decision of 
 the D. C. of Jaffna was fully warranted by long established 
 usage, and that the dowry property, and the rents and profits 
 arising from such property, had constantly been excluded from 
 the statements given in by insolvents. Without entering, there- 
 fore, into any discussion of the justice or equity of such exclu- 
 sion, the S. C. was bound to affirm the decree of the D. C., as 
 being supported by law, in the shape of constant and invariable 
 custom. No. 2089, Jaffna, 15 Oct. 1834. 
 
 But a sale by the husband of dowry property, with the 
 knowledge and assent of the wife, was considered by the S. C. 
 binding on her, because if she were allowed to disavow such 
 sale, she would be permitted to avail herself of her own fraud : 
 supra, p. 199. A question of a somewhat similar nature arose 
 in the court of Matele. A woman claimed certain property as 
 her own, which had been sequestered for the debt of one Wat- 
 tua, with whom, as she alleged, she was cohabiting. In sup- 
 port of the sequestration, it was alleged that Wattua and the 
 plaintiff were man and wife. From the evidence, the fact of 
 the actual marriage remained doubtful , but it appeared that 
 these two persons had been trading in partnership together, 
 and that the property had been mortgaged on deeds executed 
 by them jointly, though, Watlua having been declared bankrupt, 
 the dealings were afterwards carried on in the plaintiff's name 
 only, there being no doubt, however, that both were interested.
 
 224 Husband liability of Wife's properly for his debts. 
 
 The court of Matele, taking into consideration the joint mort- 
 gages, the joint trading, and the nature of the transactions in 
 which they had been engaged, was of opinion that the property 
 claimed might lawfully be disposed of, in satisfaction of Wat- 
 tua's debts : And that the fraud, in which the plaintiff had par- 
 ticipated, precluded her claim to exemption under Kandyan 
 law, according to which the property of the wife would not, 
 otherwise, have been liable for the debts of the husband. The 
 S. C., when the case came before it in appeal, ful'y concurred 
 in the view taken by the court below, observing that it was un- 
 r.ecessary to consider whether the plaintiff were really the 
 wife of Watlua, or not , for her participation in his commercial 
 speculations, and, it was to be feared, in his fraudulent evasion 
 of the payment of his just debts, were too palpable to admit of 
 a moment's doubt. No. Matele, 25 Nov. 1833. It will be 
 observed that the foregoing judgment of the Matele court lays 
 down, incidentally, the general principle, that by (he law ol 
 Kandy, the wife's property is not liable for the husband's debts. 
 
 Property having been seized to satisfy an execution issued 
 against a Conicoply in the district of BalticaloA, part of it was 
 claimed by a woman, who admitted that she v\as the wife of 
 the Conicoply, but averred that she had been separated from 
 him for three years. The D. C. dismissed her claim, on the 
 ground that the goods of the wife were liable for the husband's 
 debts. On appeal, however, the S. C., on the strength of the 
 previous decisions, which seemed to favour a contrary conclu- 
 sion, at least in other districts, referred the proceedings back to 
 the 1). ()., in order lhal it might be ascertained whether the 
 v\ if<; had actually been separated and was living apart from her 
 husband, at the time when judgment Mas recovered against 
 him-, and also whether, by the customary law, prevailing in 
 the district of Batticaloa, the property of the wife would be 
 liable for the husband's debts under such circumstances. No. 
 2912, Balticaloa, 11 Nov. 1835. The result of this inquiry 
 was probably transmitted to the S. C., after the writer left 
 Ceylon. 
 
 The following question was submitted to the S. C. by the D. 
 Judge of Badulla : Land, stated to be the inheritance of a fe-
 
 Husband and Wife may appear for each other. 225 
 
 male, but entered in the public register in the name of her 
 husband, was confiscated as his properly, on his being con- 
 victed of treason tinder the British government ; was this con- 
 fiscation legal or otherwise? According to Randyan law, the 
 D. J. added, the property of all the family Mas frequently con- 
 fiscated, if one member of it was guilty of treason. The opi- 
 nion of the S. Court was conveyed in answer to the D. J., First, 
 that the entry of the land in the register, as the property of the 
 husband, would not affect the real right to if, supposing that 
 right to l>e satisfactorily proved to reside in the wife, or in any 
 other person , unless indeed the wife, or other person, had 
 procured or assented to the registration in the name of the bus- 
 Land, for a fraudulent purpose, supra, p. 199 : Secondly, that 
 if the property really belonged to the wife, it could not be le- 
 gally included in the confiscation of the husband's property, 
 more especially as this was an act of the British government ; 
 and that even supposing the confiscation to have taken place 
 under the Kandyan government, and subject to the law or cus- 
 tom alluded to by the D. J., a court of justice would require the 
 sentence of confiscation to be clear and explicit beyond all pos- 
 sibility of doubt or ambiguity, before it would go so far as to in- 
 clude in the confiscation of the traitor's property, lands or goods 
 belonging to lu's wife or relations. L. B. 19 May, 2 June 1834. 
 The question was submitted to the S. C. by a D. Judge, whe- 
 ther, with reference to the 1st and 4th rules of sect. 1, husband 
 and wife might appear for each oilier, or one of several 
 brothers or otber relations for the rest, w here they were joint 
 parties to a suit : And whether an exception should not be in- 
 troduced into these clauses, allowing such representation, on 
 production of powers of attorney. The D. Judge was informed 
 in answer, That there appeared no necessity for any express 
 exception to the effect proposed ; that if the husband and wife 
 sued, or were sued, together, no objection ought to be made to 
 one of them appearing for both, unless the adverse party 
 claimed his right of examining both, a right which he un- 
 doubtedly possessed, and which, if insisted upon, would make 
 the attendance of both parties indispensable ; that the same 
 observation applied to brothers, or to any other sets of relations 
 
 15
 
 2*26 Husband and Jl ife may appear for each oilier. 
 
 or of parlies, subject still to the necessity of attendance by all, 
 if the adverse party or the court demanded their examination, or 
 if the court should entertain douhts, whether the party appear- 
 ing were really authorized to represent the others ; that if the 
 husband and wife, the brothers, or other relations, were not 
 joint parlies, then the one ought not to be allowed to represent 
 (he others, because, if he were, the D. C. would be thrown 
 open, as the late sitting magistrates' courts were, to any per- 
 sons, however incapable or irresponsible, whom parties might 
 elect to represent them. L. B. 12, 14 Dec. 1835. 
 
 As to the jurisdiction of the D. C. in matrimonial suits, see 
 title Jurisdiction. 
 
 And see further, as to the rights of married women, especiallj 
 Kandyan, title Land. 
 
 IDIOT. 
 
 See Lunatic. 
 
 IMPORT DUTIES. 
 
 See title Prosecution. 
 
 IMPRISONMENT. 
 
 1 .M'litMfiit, -what is ; pncjss, informal, or issued without au- 
 
 lhori:y ;: officer, etc., when liable; remedy ; by action, prosecution, habeas 
 corpus. 
 
 lilies Assessors, p. 42, Rail, Contempt, Execution, Debtor 
 and Creditor (insolvents), 91 et sequ., Jurisdiction, Prosecu- 
 tion. 
 
 A.s to solitary imprisonment, see Jurisdiction. 
 
 raise imprisonment is the legal term for any arrest, confine- 
 ment, or detention, of a person, without lawful authority; 
 whether it he a confinement, in the ordinary acceptation of the 
 word, cither in a prison, or private house, or a mere forcible
 
 Imprisonment (false] icho liable for. 227 
 
 detention in the street or any other place. And an impri- 
 sonment, originally lawful, may become illegal, either by being 
 prolonged beyond the period prescribed by the authority or- 
 dering it, or by any circumstances of cruelty or unnecessary 
 severity. 
 
 The law of England makes a distinction between process of 
 arrest, issuing from a court possessing jurisdiction in the matter, 
 but the process itself being informal ; and process issuing out 
 of a court possessing no jurisdiction : In the former case, the 
 officer, executing the merely irregular mandate, is not liable to 
 the party wrongfully imprisoned; in the latter case, he is held 
 responsible, because the proceeding emanated from one who 
 had no judicial authority at all in the matter. Without pre- 
 suming to question the wisdom of this distinction in England, 
 where the officer, serving the process, may be supposed capable 
 of understanding the limits of jurisdiction, allotted to the res- 
 pective courts, it would seem to be highly unreasonable to ex- 
 pect any such pow ers of discrimination from the Peons attached 
 to the courts of Ceylon. They must necessarily take it for 
 granted that the court has authority to issue the process, which 
 it puts into their hands to execute ; and they seem therefore to 
 stand, in this respect, on a different footing from D. Judges, 
 when called upon to co-operate with other D. Courts in the exe- 
 cution of process, as we have seen above, p. 98. Any redress 
 therefore for false imprisonment, under such circumstances, 
 should be sought for from the court, which has issued process 
 without legal authority. If indeed a peon, or any other subor- 
 dinate officer, or any private person, take upon himself to ar- 
 rest another of his own authority, without any warrant for that 
 purpose, he does so on his own responsibility, and w ill be jus- 
 tified, or the reverse, according as there shall appear to have 
 been good and legal ground for the arrest. Every one has the 
 right, and is even bound to use his utmost endeavours, to ar- 
 rest another, whom he sees committing a breach of the peace, or 
 any other offence of a higher nature. (The English distinction 
 between felony and misdemeanour is not recognized in Ceylon. 
 See title Felony.) But if the act, which formed the ground of 
 arrest, turns out to be inuocent, or if the wrong person be ar- 
 
 15.
 
 228 Imprisonment (false) remedy for. 
 
 rested, the officer or other person arresting is guilty of false 
 imprisonment. 
 
 The remedy for the person, so unjustly imprisoned, is either 
 by civil action for damages, or by prosecution at the suit of the 
 crown, or by both. See title Judgment, p. 247, 8. And the da- 
 mages or punishment to be awarded must necessarily depend 
 on what the intention of the party arresting is proved, or ma> 
 be presumed, to have been ; that is, whether he appears to have 
 acted from malice, or from interested motives, or from ignorant 
 officiousness, or from a well-meaning, but mistaken desire to 
 do his duty ; and the question of damages must also depend, in 
 great measure, on the degree of injury sustained hy the person 
 arrested. If, how ever, the person wrongfully arrested be de- 
 tained in illegal imprisonment, he has a remedy much speedier 
 than either action or prosecution, by which he can at once pro- 
 cure his enlargement, leaving the further redress, to which he 
 may he entitled, to be sought afterwards. This is by writ of 
 Habeas Corpus, which the S. Court is authorized by the 49th 
 clause of the charier to grant ; and which it never fails to issue 
 without delay, on the petition or application of any person, who 
 complainsof being illegally imprisoned. Such application may he 
 transmitted through the fiscal, or gaoler, or by any other channel, 
 and requires no formality of language, to ensure its reception, 
 and immediate consideration. The question of the alleged ille- 
 gality is thus brought at once to a decision, and the prisoner is 
 either discharged or remanded, according as the imprisonment 
 shall appear to be illegal or legal. The writer of these notes 
 finds no case on the subject of the Habeas Corpus, among tbe 
 records of the S. C., since the promulgation of the new charter. 
 
 INFANT. 
 
 See title Minority. 
 
 INFORMER. 
 
 See title Prosecution. 
 Not an incompetent witness, supra, p. 141,
 
 : 229 
 
 INHERITANCE. 
 
 See Land, and other titles. 
 
 INJUNCTION. 
 
 When may be issued by S, C.; by D. Courts as matter of ordinary juris- 
 diction; sequestration of land, or crops, in the nature of injunction; in- 
 junction against an order to remove buildings under the police ordce.; can- 
 not be granted to prohibit or stop actions, etc. 
 
 A>" injunction is an order by a court, injoining a person to 
 abstain from doing some act, alleged to be hurtful to another, till 
 the right to do it, or to prevent its being done, is finally de- 
 cided. The 49th clause of the charter authorizes the S. Court 
 'to grant and issue injunctions, to prevent any irremediable 
 mischief, which might ensue before the party making applica- 
 tion for such injunction could prevent the same, by bringing 
 an action in any District Court." A D. Judge, being applied to 
 for an injunction, to slay the saleof certain property, granted it, 
 but entertaining doubts whether he had authority so to do, in 
 other w ords, whether the clause above recited did not vest the 
 power to grant injunctions in the S. C. alone, to the exclusion 
 of the D. Courts, referred the matter to the S. C. for instruc- 
 tions. The Judges of the S. C. directed him to be informed in 
 answer, That the D. C. was perfectly justified in directing the 
 stay of sale, taking it for granted that sufficient ground was 
 shewn for that step: that so far from the 49lh clause of the 
 charter offering any impediment to the exercise of this branch of 
 jurisdiction by the D. Courts, it would appear from the terms of 
 it to be only in those cases, in which irremediable mischief 
 might be apprehended, by w ailing for the interference of the 
 courts of ordinary resort, that the S. C. would be justified in in- 
 terposing its authority, by issuing an injunction. L. B. 12, 13 
 June 1835. See also title Jurisdiction (equitable). 
 
 In another case, an action for land, the defendants moved the 
 D. C. of Ralnapoora that the land might be sequestered pend- 
 ing the action, which application was opposed by the plaintiff, 
 on the ground that such sequestration was not provided for by 
 the rules of practice. The D. Judge applied to the S. Court for
 
 230 Injunction against taking crop., pending action. 
 
 instructions how to decide the point, observing that according to 
 the rules acted upon by the former court of Ratnapoora, pre- 
 viously to the new charter, sequestration had always been 
 granted, pending an action for land, on the application of the 
 party interested. The S. Court directed an answer to be re- 
 lurned, Thai the sequestration, sought for by the defendants, 
 appeared to be of a different description, and to have a different 
 object, from that contemplated by the rules of practice ; that 
 the sequestration, provided by the 15th and following rules, was 
 for the purpose of compelling an appearance, or preventing the 
 fraudulent alienation of property, by Ihe defendant, whereas 
 that which was sought for in the present case would seem to be 
 for the purpose of preventing the plaintiff from committing some 
 fraud, of which the defendant was apprehensive-, that it by 
 no means followed, because the rules of practice did not point 
 out sequestration as a remedy in this particular instance, that 
 the D. Courts were not authorized to grant it; that the present 
 application was in truth in the nature of an injunction, to re- 
 strain the plaintiff from making away with the crop, pending 
 the action ; that (here could be no doubt that the D. Courts had 
 power to grant injunctions, under the general and comprehen- 
 sive terms, in which their civil jurisdiction is conferred by the 
 charter, the 49lh clause of that instrument being no restriction 
 of the power of (he D. Courts in this respect, but only authoriz- 
 ing Ihe S. Court to issue injunctions in particular cases of emer- 
 gency ; that the issuing sequestrations in cases like the present, 
 therefore, was a matter which must be left to the discretion of 
 the T). Courts, subject of course to appeal, in case either party 
 should be dissatisfied with the exercise of that discretion , but 
 that the S. Court came to that conclusion, from a consideration 
 of the terms of the charter and of the rules of practice, rather 
 than of the former rules acled upon in the courts of the judicial 
 agents, since it would be extremely inconvenient to have re- 
 course to two different codes of rides, for the guidance of the 
 present courts. L. K. 5, 11 Jan. 1836. On this latter point, it 
 may he obser\ed, that where am matter of practice is left un- 
 provided for by the rules of practice now in force, a D. <'. may 
 properly have recourse to those followed by former courts 5 but
 
 Injunction when graniiible, in general, 
 
 that where the practice is prescribed by the rules of 1 Oct. 1833, 
 all former rules, as has already been observed, must give way : 
 Supra, 39. 
 
 An order having issued from the I). Court, under the 39th 
 clause of the Colombo police ordinance, No. 3 of 1834, for the 
 removal of certain buildings, alleged by the Surveyor Genl. to 
 be encroachments on the street, the defendant claimed (he righf 
 of shewing by evidence, that the buildings complained of were 
 no encroachments. The S. C. decided that such opportunity 
 must, in fairness, be given ; but observed. That there was an- 
 other and much more summary remedy, of which any party 
 who really felt himself aggrieved by the notice, served upon 
 him according to the ordinance, might avail himself; by mo>- 
 ing the S. (1. for an injunction, which would be granted at 
 once, if sufficient grounds were shewn for that purpose : And 
 such inquiry would then be di reeled, as would enable the court 
 to decide whether the injunction should be dissolved, or de- 
 clared perpetual. No. 592, Colombo (criminal), 3d Nov. 1834; 
 infra, title Police. The grounds contemplated by the above 
 suggestion must, however, be shewn lobe some " irremediable 
 mischief," such as hindering the intended sale of the premises, 
 if the notice were allowed to remain affixed to them till the 
 matter was decided by the D. C.; for otherwise, the S. C. would 
 not appear to have authority, under the terms of the 49th 
 clause of the charter. 
 
 The occasions, on which injunctions may be beneficially 
 
 / 
 
 granted by D. Courts, may be defined nearly in the words of 
 that clause of the Charter, when limiting the jurisdiction of the 
 S. C. in this respect: viz., to prevent any irremediable mischief, 
 which might ensue, before the party applying could prevent the 
 same, by an action in its regular course. And the necessity of 
 preserving a crop, pending an action for the land itself, as men- 
 tioned above, furnishes a very frequent example of this class 
 of cases. That species of injunction, which is of common 
 occurrence in England, viz., to prohibit a party from com- 
 mencing or continuing an action in the ordinary courts, cannot 
 be granted under the present system of judicature in Ceylon. 
 The Supreme (Jourt is, indeed, expressly forbidden, by the
 
 232 Injunction cannot be granted) to prevent suing, etc. 
 
 proviso at the end of the 49th clause of the Charter, to grant in- 
 junctions to prevent parlies from suing, or appealing, or from 
 insisting on any ground of action, defence, or appeal. ?sor 
 can any such injunction be necessary, since a party can obtain 
 all that it would or ought to afford him, by the very extensive 
 power which he possesses of appealing, at any stage of lhecase r , 
 against any judgment or order, final or interlocutory. And in 
 case of any usurpation or encroachment on the jurisdiction of 
 one D. Court by another, the Supreme Court, if necessary, would 
 issue a writ of prohibition, by virtue of the 3Glh clause of the 
 Charter, to the D. Court which was exceeding its jurisdiction, 
 and would transfer the suit or prosecution, in which such excess 
 of jurisdiction had occurred, to the court to whose cognizance 
 it properly belonged. See title Jurisdiction, towards the end. 
 
 IXQUEST. 
 
 Should bo held immediately; if by headman, it is not a court; nor on 
 oath; but neighbours bound to attend: must be translated, before sent to 
 S. C.; and accompanied by explanations by D. J. 
 
 THIS mode of inquiry, into the cause of all violent or sudden 
 deaths, is unfortunately of too frequent occurrence in Ceylon r 
 and is, therefore, too familiar to those whose duly it is to hold? 
 them, to make any general explanations necessary, as to the 
 nature and tendency of them, The 23d rule of sect. 2, directs 
 the course (o he pursued when, owing to distance or other* 
 causes, tie D. Judge is unable to hold the inquest in person. 
 The rapidity of the work of decay in that climate would often 
 make a single day's delay, in examining a body, subversive of 
 the object of examination: the discovering the cause of the 
 death, while the traces (fit are yet fresh and uneflaced. The- 
 rule was, however, intended to be framed, so as to take from, 
 inquests, held by any other than the D. Judge, the character or 
 semblance of rurlf, the legality of which would be very ques- 
 tionable under the 4lh and 29th clauses of the Charter. But it 
 was considered, that the report of the Headman and his asses~
 
 Inquest by headman ; nature of proceedings. 233 
 
 sors, the number of whom on the inquest were purposely left 
 indefinite, in order to do away with the juridical idea of a jury, 
 would answer all the purposes of an inquest upon oath: Espe- 
 cially as persons are never tried in Ceylon on the verdict of the 
 inquest, which, in truth, is chiefly used to guide the more formal 
 investigations of the higher authorities, and to ensure the testi- 
 mony of credible witnesses, if a regular trial should become 
 necessary, as to the appearance of the body and other circum- 
 stances, as soon as possible after the death. 
 
 It will be observed that the rule, in directing that the Head- 
 man shall " inquire into the cause of the death," is silent, and 
 intentionally so, as to any oath to be administered to the per- 
 sons giving information on such inquest : And when a D. Judge 
 inquired of the S. Court, whether informations, so taken by the 
 Headman, were to be received on oath, as had been the prac- 
 tice under regn. No. 6 of 1823 ; he was informed in answer,, 
 that informations so taken must be merely in the shape of 
 declarations, and not on oath, w Inch no one but the D. Judge 
 would be legally authorized to administer. L. B. 30 Oct. 1 Nov. 
 1833. 
 
 A D. Judge applied to the S. C. for instructions how to compel 
 persons, in the neighbourhood of a place where a dead body 
 might be lying, to accompany the Headman, as directed by the 
 23d rule ; and whether the 10th and 1 lib clauses of reg. No. 6 
 of 1806 could be acted upon, in enforcing such attendance. Ha 
 w as informed in answer, That the Headman had a right, when 
 acting in the capacity of a peace-officer, in w Inch character he 
 must certainly be considered, when proceeding to execute the 
 duties imposed upon him by the 23d rule of sect. 2, to call upon 
 all persons to assist him in the execution of that office ; and that 
 if any person refused that assistance, he would be liable to 
 such moderate punishment, as the D. Court should think neces- 
 sary, so that the clauses of the reg. referred to might be consi- 
 dered as merely declaratory of the general law on this subject ; 
 but that, when once the necessity of obedience in such cases 
 should be known, few instances, it was hoped, would occur of 
 its being withheld. L. B. 19, 21 Oct. 1833. And as far as 
 has come to the knowledge of the writer, this is a difficulty
 
 234 Inquests must Ic sent translated to S. C. 
 
 which has never presented itself, at least to any extent deserving 
 of notice. 
 
 Application was made by a D. Judge to the S. C., to be per- 
 mitted to send the informations on inquests in the originals, 
 without translations, except in cases of interest or importance; 
 on the ground that the interpreter of the court, the only person 
 capable of translating, was fully occupied T\ ith other business. 
 The Judges, however, after consideration of the subject, were 
 obliged to convey their opinion to the D. Judge, that in alt 
 cases of violent or sudden deaths, the depositions should be 
 translated, previously to their transmission to the S. Court ; for 
 it may and sometimes does happen that, though the death may 
 be ascribed to mere accident, circumstances appear in the de- 
 positions, which would lead to a different conclusion, or which, 
 at least, would demand further inquiry : And the Judges were 
 the more strongly impressed with the necessity of adhering to 
 the former practice, by finding, on inquiry, that the transla- 
 tions, heretofore sent to the office of the colonial secretary, 
 were to be discontinued. Unless, therefore, the S. Court wen- 
 still furnished \vilh translated copies, the crown officers would 
 have no means of information on subjects, which it was 90 
 i-vscniially necessary for the purposes of public justice, that 
 they should be intimately acquainted with. L.B. 10, 30 Jan. 1834. 
 
 On the transmission of depositions taken on an inquest, they 
 should always be accompanied by any explanation which the 
 circumstances of the case may seem to require, and the I>. Judge 
 should also slate, whether any and what further investigation 
 has taken place. L. B. 28 April 1835. 
 
 INSOLVENT. 
 
 See title Debtor and Creditor. 
 
 ttH&> Mil >< ' 
 
 " ' mm *4wf> 
 
 INTEREST. 
 
 In what cases, and at what rate, allowed. 
 THE regulation \o. 18 of 1823 directs, That interest shall be
 
 Interest irhen, and at what rate, allowed. 235 
 
 allowed, In all cases in which it is expressly stipulated for, or 
 in which an intention that it should be paid may be inferred 
 from custom, or the usual course of dealing : On all bonds or 
 other written securities, payable on a certain day, from that 
 day, in default of payment : On all debts, from the dale of a 
 demand in writing, or, if no demand, from the commencement 
 of the suit :- 'And if no rate be specified, it shall be allowed at 
 9 per cent. 
 
 Very few decisions present themselves f n this subject, on 
 the records of the S. C. An action was brought on a bond for 
 the delivery of arrack, and payment of money, on or before 
 31 Aug. 1826 : No interest was stipulated ; but it was agreed 
 that, if the payment and delivery were not made by the day, 
 the plaintiff might recover the amount by the sale of certain 
 property, mortgaged as security. Two payments were indorsed 
 on the bond, one of which was expressed to be " for part 
 payment of principal and interest." The question before the 
 S. Court in appeal was, as to the right of the plaintiff to claim 
 interest. That court was inclined to think that, putting out of 
 the question the indorsed receipt, which was not very distinct, 
 interest would still be demandable under the 3d clause of the 
 reg., from the day on which the payment became due, since 
 the plaintiff had not availed himself of the power reserved to 
 him, of recovering the amount by sale of (lie mortgaged pro- 
 perty. The case was, however, referred back to the D. Court 
 on another ground. No. 1048, Caltura, 22 July 1835. 
 
 By bond, dated Dec. 1829. for 100RD., the obligor (or per- 
 son binding himself) mortgaged a Geld as security, which he 
 agreed to cultivate, and to pay half the produce to the obligee 
 (the person to whom he was bound) in Keu of interest, till re- 
 payment of the 100 1\D. On an action brought on the bond, 
 the defendant admitted the debt, but averred payment of the 
 produce for 1830 and 1832, and that the crops of the other 
 years had failed. These averments of the defendant were esta- 
 blished by evidence, and the D.C. gave judgment for the plaintiff 
 for the principal, without interest. The S. C., however, on 
 appeal, considered that, the original contract as to produce 
 having been put an end to, the defendant ought to pay interest
 
 236 Interest when allowed. 
 
 at 9 per cent, from the day on which the suit was instituted, 
 till final payment. No. 918, Negombo, 1st April 1835. This 
 case has already been mentioned with reference to the subject 
 of costs, supra, p. 72, 3. 
 
 INTERPRETER, TRANSLATOR, ETC 
 
 Important functions of, veil performed; but caution against over confi- 
 dence, page 236 Precautions 0:1 appointing substitutes 237 Documents not 
 to be translated by other persons, unless by consent or admission 237 If 
 disputed, translation should be referred to interpreter, 238, S His opinion 
 should not be taken on the legal effect of instruments 239 Must be sworn ; 
 otherwise, proceedings invalid 239 Fees for translations 2iO Inquests 
 translated 210. 
 
 THE important duties which these officers have to perform, 
 and the absolute necessity for their intervention, more or less,, 
 in almost every suit instituted in the courts of Ceylon, are too 
 obvious to escape notice. And it is not too much to say, that on 
 the intelligence, skill, and integrity, of the interpreters, must 
 in great measure depend, whether the laws be justly or unjustly 
 administered. As far as the experience of the writer of these 
 notes will enable him to form an opinion, he has nothing but 
 praise to bestow on the persons filling these situations, whether 
 in Colombo, or in other districts, in which the S. Court is called 
 upon to hold its sessions. His commendations, indeed, as re- 
 gards their skill as linguists, must be received with this some- 
 what material drawback ; that he is wholly unacquainted himself 
 with the native languages. But judging from the observations 
 of those who do possess that knowledge, while watching the 
 progress of criminal trials, he should say that errors in translat- 
 ing the evidence of witnesses arc rare ; and that when mistakes 
 or misapprehensions do occur, it is in giving the charge of the 
 Judge, or the address of the advocate or proctor to jurors or 
 assessors, especially if these be delivered in long sentences. He- 
 has no reason to believe that this evil prevails to any extent ^ 
 but the mere existence of the danger should make interpreters 
 extremely cautious, and should induce them to apply to the 
 speaker for explanation, whenever they feel the slightest doubt
 
 Interpreter translations of document*, elc. 237 
 
 of his true meaning, however frequent may be the interruptions 
 thus occasioned, rather than endeavour to earn a reputation for 
 quickness and fluency, at the possible expense of misinterpreta- 
 tion. The high character for respectability and integrity, 
 which these oflicers in general enjoy, is too well known to require 
 comment ; and is attested by the fact, that two out of the three 
 permanent assessors, first appointed, were chosen from among 
 the interpreters. 
 
 Such being the confidence necessarily, and it would seem de- 
 servedly, reposed in these officers, it is obvious that it is to them, 
 and them only, that the courts can look with safety for the dis- 
 charge of their important functions. And when it is proposed 
 that a person, not regularly appointed as interpreter, should act 
 in that capacity, even on a temporary occasion, great caution 
 should be observed, in ascertaining that he is duly qualified ; 
 and as a matter of precaution against future objections to the 
 decision, it would be well that the consent of the parties to his 
 acting, be taken and recorded, where distance, or other circum- 
 stances, will not permit of a regular appointment. L. B. 26 Oct. 
 6 Nov. 1835. 
 
 A representation was made to the S. Court by a D. Judge, re- 
 cently appointed to one of the Northern districts, that the 
 secretary of the court had been accustomed to draw pleadings 
 and translate documents, which ihe D. J. had put an end to, 
 considering that it could not be permitted, with justice to others, 
 who did not possess the same advantages of access to the records 
 of the court, and other privileges attached to the office of secre- 
 tary. It was also represented that translations of documents 
 were received, by whomsoever rendered, and were often either 
 wholly unintelligible, or so incorrect, that it was impossible to 
 come to a safe conclusion upon them. And the 1). J. suggested, 
 that in all cases, in which proctors were not engaged, docu- 
 ments should be translated by the interpreter, who, as well as 
 the proctors, would be answerable for any inaccuracies; some 
 of which, there was reason to believe, were committed wilfully. 
 The S. Court directed an answer to be returned, approving of 
 the discontinuance of the practice of allowing the secretary to 
 draw pleadings and translate documents, as no registrar or secre-
 
 238 InierprettriraMlation ofduwmentg. 
 
 lary of a court ought to be allowed to take any part in the pro- 
 ceedings of the litigant parties. With respect to the persons. 
 by whom translations of documents filed in a case ought to be 
 made, so as to fix upon them Hie stamp of authenticity, the S. 
 Court observed that there was no person, not even a proctor of 
 the court, to whom the Judge could safely or legally give thai 
 implicit credit, except to a sworn translator or interpreter of 
 the court ; unless indeed the party, adverse to him who pro- 
 duces the translation, admits it to be a correct one : That where 
 a translation was filed w ith the original document, the usual 
 and most convenient course was, to direct the interpreter or 
 translator to compare the two, in order to ascertain whether 
 the translation were a correct one. L. B. 25 Nov. 30 Dec. 1833* 
 Id. 20, -26 Feb. 1834. It is believed that the office of translator, 
 as distinct from that of interpreter, exists in very few, if any, 
 of the D. Courts. 
 
 A somewhat similar representation, against allowing plead- 
 ings and documents to be translated by persons wholly un- 
 authorized, and unconnected with the court, was made by 
 another D. Judge, who recommended as a remedy " that the 
 proctors should be the only persons allowed to translate plead- 
 ings, bonds, and other papers." To this representation, an 
 answer was returned by the S. Court, That lite evils complained 
 of by the D. Judge seemed to arise from two causes distinct in 
 themselves, and to require separate consideration and remedy ; 
 that the one related to the drawing of written pleadings, the 
 other to the translation of doeumenls, two objects of the greatest 
 importance, as regarded the duties respectively involved in 
 them, but the performance of which duties could not conve- 
 niently be assigned to the same class of persons. After provid- 
 ing for the restriction of drawing pleadings to the proctors (as 
 to which see title Pleading), the answer of the S. C. went on to 
 observe, That with respect to the translation of documents, 
 there would be this obvious inconvenience in confining this 
 office to the proctors, that a parly would then be bound to admit, 
 as correct, a translation furnished by the proctor of the adverse 
 parly, an admission which it would often be unreasonable to 
 j that the best course appeared to be, to allow any
 
 Interpreter not to give opinions of /cue. 239 
 
 party, or his proctor, to file the translation of any bond, deed, 
 or olher piece of documentary cudencc, subject however to be 
 challenged as incorrect by the opposite parly ; and that, in the 
 event of its accuracy being so disputed, the instrument should 
 then be referred to the interpreter of the court, who should be 
 directed to furnish a correct translation, on payment, by (he 
 parly producing it, of the fee usually paid lo translators in the 
 district, lo be recovered ultimately with olher costs in the suit. 
 L. !',. 18 Sept. 6 Oct. 1835. 
 
 But the functions of these oflicers should be confined to those 
 of interpretation and translalion, and their opinion as lo Ihe 
 legal effect of instruments should not be received, at least when 
 delivered in the character of interpreter or translalor. Thus, 
 where a D. Judge, in a case which turned on the distinclion 
 between ground-share and planting-share, recorded the opinion 
 of the interpreter on a disputed agreement, that "if the planta- 
 lion alone had been intended, the agreemenl ought and would 
 have specified the plantation.' tho S. C. observed: The opinion 
 of the interpreters is the best that can be obtained, it must be 
 presumed, as to the precise meaning of each word and expres- 
 sion ; but Ihe opinion here recorded as that of Ihe interpreter, 
 can scarceh be received, for it is not so much a matter of inter- 
 pretalion of language, as of law or custom: And if the inter- 
 preter be sufficiently acquainted with the custom to give evi- 
 dence of it, there would be no objection to his being asked, not 
 ;is int<Ti>rcler. but as iritne**, what Ihe custom of the country 
 was, with respect to the wording of deeds, in distinguishing be- 
 tween ground-share and planting-share. Colombo, No. 7991, 
 6 Jan. 1836. This distinclion. between receiving the opinion of 
 a man, sworn as a witness, or in his character of an officer of 
 Ihe court, is by no means a mere formal or technical one ; as 
 will be seen by a moment's consideration of the mode in which 
 witnesses are examined, and of Ihe responsibility under which 
 they give their evidence. . H3881 
 
 Every interpreter must be sworn to interpret faithfully, 
 either on being appointed to the office, or for the particular oc- 
 ca$ion, if lie be not the regular officer of the court. And where, 
 *m appeal from the- conviction of a D. Court for theft, it appeared
 
 240 Interpreter oath fees for translating. 
 
 that the interpretation of the evidence had not been given under 
 the sanction of an oath, the S. Court considered this a fatal ob- 
 jection, and set aside the conviction and sentence. No. 376, 
 Hambantotte (criminal), 6 May 1835. 
 
 With respect to the fees to be allowed for translating docu- 
 ments, the S. Court had occasion to state to a D. Judge, that as 
 there was no fee allowed by the table of 1 Oct. 1833 for this ser- 
 vice, the payment ought to be regulated by proclamation of 20 
 Aug. 1801; and that this had been the practice hitherto ob- 
 served in the D. C. of Colombo, by whomsoever the documents 
 were translated. L. B. 25 May 1835. 
 
 Inquests, as we have seen under that title, p. 234, must be 
 translated, previously to transmission to theS. Court. 
 
 INTERVENTION. 
 
 PARTIES may intervene in a suit at any time, even after exe- 
 cution, provided the proceeds have not been paid over to the 
 plaintiff. Sup., p. 167, where an inaccuracy is pointed out in 
 the 32d rule of sect. 1, on this subject. See also L. B. 27 Nov. 
 1834, on case No. 7728, from Amblangodde, where the S. C. 
 directed other partowners to be called on to intervene, if lho\ 
 thought proper, in preference to dismissing the action, and 
 driving the plaintiff to the necessity of instituting fresh pro- 
 ceedings. 
 
 INTESTATE. 
 
 See title Administration. 
 
 ^ _^_ * 
 
 ISSUE. 
 
 Of fact ; of law ; general, or special. 
 
 As this is a word which must frequently occur in legal pro- 
 ceedings, it may be useful to some few of those who cast their
 
 Issue of fad, or of law; general or special. 241 
 
 eyes over these notes, to observe that by the word "issue" is 
 intended the point or points, to which ihe pleadings, examina- 
 tions, and admissions of the parlies, have at length reduced the 
 questions, on Mhirh they are still at variance, and on which 
 therefore they ask the judgment of the court. And it is called 
 either an issue of fact, as, whether a person has or has not 
 signed a certain deed ; or an issue of law, as, supposing the 
 deed to have been executed, what the legal effect of it shall be, 
 (And see p. 16,7, as to the meaning of a demurrer.) The aeneral 
 issue is the term used to designate the simple, direct, contradic- 
 tion by the defendant of the fact alleged by the plaintiff; as, 
 that he never did sign the deed in question. A special issue is 
 where the defendant, without disputing the principal fact al- 
 leged by the plaintiff, (the execution of the deed, for instance,) 
 answers some matter, which still forms a defence to the action ; 
 as, payment, or some other satisfaction of the debt, for which 
 the deed was given. This, it is believed, will be a sufficient 
 explanation of the word, for all practical purposes in Ceylon, 
 where pleading is, or ought to be, so extremely plain and 
 simple. One only observation suggests itself; that the main 
 object of all pleading, that of reducing the points "in issue" to 
 the smallest number and the narrowest compass, should never be 
 lost sight of by the D. Courts ; and that in the attainment of this 
 object, the examination of parlies, both by each other and by 
 the court, will be of the greatest assistance, by clearing the way 
 of all those facts, which are either irrelevant or immaterial, or 
 which may be admitted by either side. Vide supra, 107, 8, 9. 
 See Judgment, Pleading, Practice. 
 
 JUDGMENT., DECREE, ETC. 
 
 How pronounced; dismissal, without assessors, void, page 242 Conduct of 
 parties may be animadverted upon2i2 AYIien conclusive; between same 
 parties, on same points, though erroneous 2'i3 So, though a new claim be 
 set up, if it might have been put forward on ihe first trial 2f3 But dismis- 
 sals on points of practice, or sometimes for want of evidence, not final 2i5 
 Even final judgments arc only conclusive between th? same parlies 245, 6 
 Or whose interests arc identical 2i6 Disclaimer of interest by party in 
 
 16
 
 :>2 Judgment hou- to be pronunnwil. 
 
 former suit, equivalent to a judgment against him 247 Prosecution and 
 action for the same offence 247 Judgment in one, no bar to the other; but 
 discretionary with D. C.258 Amendment of judgments; for error in com- 
 putation 2i9 Or in copying, or drawing up judgments 251 But not to sup- 
 ply omission of former court, as to costs : Will action lie for costs, so omit- 
 ted? 251, 2-Judgrnents conflicting: Into other districts 252. 
 
 THE 30th clause of the charter directs. That every final sen- 
 tence or judgment of the D. Courts, every interlocutory order, 
 having the effect of a final judgment, or of postponing the final 
 judgment, and every oilier order which may appear to the D. 
 Judge of adequate importance, shall be pronounced in open 
 court, in the presence of the assessors, who shall give their 
 opinion and vote, as directed by that clause. We have already 
 touched on the question, what orders make I he intervention of 
 assessors indispensable, supra, 42, 3, 60. And on this point, 
 the D. Judge, by the terms of the charter just cited, is to exer- 
 cise his discretion, except as regards final judgments or orders, 
 and postponements. Therefore, where a D. Judge dismissed 
 an action for libel, by simply indorsing on the defendant's an- 
 swer, that the complaint was of too frivolous a nature to be en- 
 tertained, the S. Court, on appeal, referred it back, to be pro- 
 ceeded with in regular course; observing that, independently of 
 the right of the plaintiff to have his complaint inquired into, 
 however trivial it might appear, the mere indorsemement b\ 
 the D. Judge was an absolute nullity; that no final decree 
 could be valid, unless pronounced in the presence and hearing 
 of assessors, whose names, and whose assent to or dissent from 
 the decree, should be recorded. ]\o. 7506, Kandy, 11 Nov. 1835. 
 
 The only other point, which appears to have been brought to 
 the notice of the S. C., as regards the mode of delivering judg- 
 ments, relates to the terms of censure, which the conduct of 
 litigants may call forth. An action against a Cutcherry Mod- 
 lear, who appeared by the evidence to have acted fraudulent!*. 
 was brought by appeal before the S. Court ; and a separate pe- 
 tition was presented by the defendant, complaining of the harsh 
 terms employed by the I). Judge, in recording the judgment of 
 ihe court. The S. C., after recording its own judgment on 
 the merits, supra, 89, 90, observed, with reference to this*
 
 Judgm ent when conclusive ; sam e parties. 243 
 
 petition, That it often became necessary for courts of justice to 
 comment on the conduct of parties, in terms of reprobation ; 
 that intemperate language was certainly not justifiable, but 
 that there was nothing in the judgment then before the court, 
 which exceeded what the occasion seemed to require. No. 2095, 
 Trincomalee, 2 May 1835. 
 
 As a general rule, a judgment, when pronounced and re- 
 corded, and either acquiesced in, or, if appealed against, af- 
 firmed, is forever conclusive of the facts decided, as between 
 the parlies litigating, supra, p. J 15 : And this, even though it 
 should appear to have been erroneously pronounced. Pothier 
 ad Pand : Lib. 42, tit. 1, s. 2, par. 27; supra, 175. Thus, in 
 an action for land, the plaintiff adduced strong evidence in 
 support of his claim, but the defendant produced a decree of a 
 former court in 1819, in his favour, as plaintiff, against the pre- 
 sent plaintiff, as defendant. The decree appeared manifestly 
 to have proceeded on bad grounds, and insufficient evidence ; 
 but the losing party, the present plaintiff, had never appealed 
 from it, and the defendant had been in possession of the land 
 for many years. The S. C., on the case being brought to its no- 
 tice, observed that though the decree of 1819 ought to have been 
 reversed, if it had been appealed against, it would be unjust, 
 and would establish a dangerous precedent, if the decision, so 
 long acquiesced in, were now to be impugned. No. 195, Korne- 
 galle, 13 June 1835. L. B. 3, 15 June 1825. 
 
 In another case, a D. Judge applied to the S. Court for in- 
 structions, whether a second trial between the same parties, and 
 for the same property, could be permitted under the following 
 circumstances. The plaintiff, in 1831, claimed certain land un- 
 der a deed of gift from the proprietor, his sister, but which was 
 proved to have been written after the death of the alleged 
 donor-, and a decree was accordingly passed in favour of the 
 defendant, by virtue of a deed of prior dale to that produced by 
 the plaintiff. The same plaintiff now claimed as heir at law , 
 and as having "rendered assistance" (according to Kandyau 
 law) to the proprietor up to her death. The S. C. returned the 
 following answer : " A second trial, between the same parties, 
 and for the same property, can only be permitted, where the 
 
 16.
 
 Judgment when conclusive; same issue. 
 
 point in issue is not the same, so that the plaintiff had no oppor- 
 tunity, on the former trial, of proving that which he seeks to 
 establish by a second inquiry ; or where the court is satisOed r 
 bv circumstances above suspicion, that new evidence has arisen, 
 which was not before within the plaintiff s reach. On looking 
 over the proceedings, however, it would appear that Ihe plain- 
 tiff, though not suing now in precisely the same character as be- 
 fore, advances no claim, which ought not to have been brought 
 forward for decision, on the lirst trial. He was then, as at pre- 
 sent, heir at law, though he then endeavoured to establish his 
 right in the character of donee, under a written deed. He failed 
 in that attempt, and failed too under circumstances, which con- 
 vey no impression of the justice of his case. But there seems 
 to be no reason why, on the failure to establish the deed, his 
 right as heir at law should not have been put forth and consi- 
 dered. Then the question would arise, could his naked claim 
 as heir at law, supposing it to be established, countervail the 
 right of the defendant under his deed, which has been pro- 
 nounced by the decree of 1831 to be valid, and unshaken by the 
 evidence then adduced by the plaintiff? Certainly not. AVith 
 respect to the assistance, alleged to have been rendered by the 
 plaintiff to his deceased sister, that again is a point, on which 
 he ought to have been prepared, on the first trial, to offer what- 
 ever evidence was then in existence-, especially as the supposed 
 alteration in the intentions of the deceased are alleged to have 
 taken place on the ground of assistance. Evidence was indeed 
 gone into of that assistance, and of those intentions : If better 
 and stronger evidence be in existence, why was it not then 
 produced ? If not, and if the plaintiff contends that the evi- 
 dence which was adduced was sufficient to entitle him to judg- 
 ment, why did he not appeal against the decree of 1831 ? As r 
 therefore, there is no point in favour of the plaintiff, which 
 might not and ought not to have been raised on the former trial, 
 nor any reason assigned why the evidence, which it is now r 
 proposed to adduce, might not have been brought forward on- 
 that occasion, a second trial could only Le resorted to, for the 
 purpose either of admitting evidence which ought not now to 
 be received, or of correcting the former decision on the same
 
 Judgment mere dismissal not always conclusive. 245 
 
 evidence, which it is now too late to do." L. B. 10, 20 May 
 1835. 
 
 These two decisions proceeded on the principle above laid 
 down 5 that a judgment is conclusive of the facts decided be- 
 tween the parties. But there is one class of cases, which must 
 be distinguished from flnal judgments in this respect, and which 
 indeed cannot properly be said to decide any facts at issue be- 
 tween the parties. The cases here alluded to are those which 
 are dismissed summarily, either on account of some irregularity 
 of proceeding on the part of the plain till', the penalty of which 
 is dismissal ; or from his not being prepared with sufficient evi- 
 dence to support his case, and to make it necessary to call on 
 the defendant for his defence. As regards the first of these two 
 grounds of dismissal, it would make the penally quite dispro- 
 porlioned to the fault, if the plaintiff were to be absolutely and 
 for ever precluded from reasserting his claim. The costs of the 
 action dismissed may fairly be considered a sufficient punish- 
 ment for his deviation from the rules of practice ; and in most 
 instances, therefore, a plaintiff so situated ought to be allowed 
 to bring a fresh action, on payment of all the costs of the first. 
 With respect to the second ground, the plaintiff cannot always 
 hope for the same indulgence, the granting or withholding of 
 which must depend on the causes, which may appear to have 
 left him unprovided with the necessary proof, on the first hear- 
 ing of the case. If those causes were out of his power of con- 
 trol, or even if he should have been honestly mistaken as to the 
 evidence which it was necessary for him to produce, a court 
 w ould not be too strict in the exercise of its discretionary power 
 of receiving his second action. If, on the other hand, all the 
 proof, which he proposes to bring in support of such second 
 action, were w ithin his reach on the former occasion, and above 
 .all, if any thing like bad faith appeared in his proceedings, as in 
 the case just cited, he ought to be considered as finally pre- 
 cluded from reasserting his claim. The several dismissals, or 
 nonsuits, which have been brought to the notice of the S. C., 
 especially for irregularity, will be mentioned under title 
 Practice. 
 
 A judgment, however, which has proceeded on a regular
 
 Judgment conclusive ,* interests identical. 
 
 hearing of the evidence on both sides, is only conclusive upon 
 the same subject of litigation, and between the same parties; 
 or where the interests of the parties, in the decided case, are 
 identical with those of the parties who wish to try the question 
 again. See Yoet, lib. 42, tit. 1, par. 29, and the whole of that 
 title, as to the subject of fieajtidicala, generally. An action was 
 brought for a piece of land, which had been decreed to the de- 
 fendant in a former action against another person, of which ac- 
 tion the present plaintiff admitted she was aware, but did not 
 take part in it, because the defendant had promised her a share 
 if he succeeded. The D. Judge, having referred to the S. C. 
 for instructions, whether the former decree ought to be held 
 conclusive, was informed, That as the former case was not 
 between the same parties, the decree was not conclusive in the 
 present action , that the present defendant might have had a 
 preferable claim to the defendant in the former suit, and yet 
 might possibly not have a good title, as against the present 
 plaintiff-, that the action should therefore be proceeded in r 
 and must be decided, not by the decision in the former case, 
 nor even by the evidence, as recorded, on which that decision 
 was founded, but on the testimony to be adduced on this trial ; 
 for though much of the evidence, on which the defendant re- 
 lied in the former action, would probably be again had recourse 
 to on the present occasion, it must all be delivered de novo, 
 and must not be read or referred to from the former proceed- 
 ings (vide supra, p. 146, 7), because otherwise, the present 
 plaintiff, who was not the party opposed to the present defen- 
 dant on the former occasion, would have no opportunity of 
 objecting to, or cross-examining the witnesses. L. B. H y 
 2! \ov. 1834. 
 
 Where, however, the interests of the parties, endeavouring 
 to institute fresh proceedings, are identical with those against 
 whom the former decree passed, it is the same thing, as regards 
 this question, as if the parlies were individually the same- 
 Thus, where a woman sqgd for land which had already been 
 awarded to the same defendant, by two separate decrees against 
 the son of the present plaintiff, the D Court considered these 
 decrees conclusive, and dismissed the action : And the S. Court
 
 Judgment disclaimer equivalent to. 247 
 
 affirmed the decree of dismissal, observing lhat, though the 
 plaintiff, literally speaking, vas not a party to the former suits, 
 yet her interests must be considered identical with those of her 
 son, and it was impossible to suppose that she was ignorant of 
 the suits, to which he was a parly. No. 1855, Kandy, 2 May 
 1835. So with respect to brothers, No. 6311, Ratnapoora, 
 14 Jan. 1835. 
 
 In an action for land, it appeared lhat the plaintiff had been 
 one of five defendants in a former suit, brought by the present 
 defendant for the same land : that in that suit, the plaintiff had 
 disclaimed all right to the land in question, and after a protracted 
 trial, judgment was given against the remaining defendants in 
 favour of the present defendant, then plaintiff. The present 
 plaintiff endeavoured to insist on his right to a new hearing, on 
 the grounds lhat there was no judgment recorded against him-, 
 and also, that the land was not the samo. The D. Court, how- 
 ever, the identity of the land being established, dismissed the 
 action ,- and the S. Court affirmed the decree of dismissal, con- 
 sidering that the plaintiff's disclaimer in the former action was 
 equivalent to a judgment. No. 091, Matele, 20 Feb. 1836. 
 
 While considering the effect of a former judgment between 
 the same parties, it maj be well to mention that the civil law 
 permits, in many instances, both a civil action and criminal 
 proseculion to be instituted, for one and the same offence; as 
 indeed the English law does in cases of assault, and other mis- 
 demeanours against the person. And such would also seem to 
 be the customary law of the Kand} an districts. Certain persons 
 were tried in the Seven Korles for assault and robbery, and 
 were convicted, sentenced, and punished by flogging and im- 
 prisonment. An action was afterwards brought against them, 
 for the value of the property they had stolen , on which they 
 presented a petition to the Chief Justice, w hick was referred to 
 the D. Judge, in order lhat it might be ascertained whether, 
 according to the law or custom in force in the Kandyan dis- 
 tricts, a party guilty of an offence, 4 which the person or pro- 
 perty of another is injured, be liable both to punishment for the 
 offence committed against the public, and also to damages for 
 the loss sustained by the individual. In answer to that refer-
 
 2i8 Judgment (criminal} no bar to action. 
 
 encc, the D. Judge stated that he had known several instances 
 in the Kandyan districts, in which offenders had heen proceeded 
 against both civilly and criminally, this mode of procedure 
 having heen allowed by the late judicial commissioner ; that 
 he had moreover consulted several of the most intelligent of the 
 Kandyan chiefs of the district, who slated that persons con- 
 victed of theft or robbery under the Kandyan government, were 
 both sentenced to punishment, and also obliged either to make 
 restitution of the stolen property, or to make good its value. 
 On this answer being received, the D. Judge was recommended 
 to let the civil action proceed, leaving it to the defendants to 
 appeal, if they thought proper so to do. L. B. 1, 5, 30 Aug., 
 3 Sept. 1834. 
 
 In such cases, therefore, the previous conviction on the cri- 
 minal prosecution could not be pleaded as an absolute bar to the 
 civil action-, still less could an acquittal be so pleaded, because 
 a person may be civilly responsible for an injury, though the 
 evidence is perhaps insufficient to fix the criminal offence upon 
 him: supra, p. 115, 6. It may often, however, be a proper 
 subject for the discretion of the D. Court, whether the action 
 should be entertained, or at least whether damages should be 
 awarded, afler sentence for the same offence. Thus, where a 
 woman sued her nephew for damages, for having disturbed hei 
 in the possession of a garden, and it appeared that the defendant 
 had already been lined on the criminal side of the court, on the 
 complaint of his aunt for the very same trespass ; the D. Court 
 refused to award damages, and dismissed the action. The S. 
 Court aflirmed the decree of dismissal, observing, That when a 
 parly had already been punished criminally for a wrong com- 
 mitted, it was discretionary with the court, whether it would 
 entertain a civil action for the same act, or not, and certainly 
 this did not appear to be one of those cases, w Inch w ould call 
 for the double infliction ; that it would be well, however, to 
 let the defendant understand, that if he persisted in molesting 
 his aunt by similar trespasses (some fear of which appeared to 
 to have been entertained), the punishment or damages aw arded 
 against him, on any future complaint, would be of a more 
 serious character than the fine which had been imposed upon
 
 Judgment amendment of, when allowed. 249 
 
 him. No. 1035, Galle, G May 1835. In England, when an 
 action and prosecution are instituted together for an assault, 
 it is usual for the Attorney-General to stop the prosecution, un- 
 less the complainant will discontinue his action. 
 
 Although, as we have seen, a judgment, acquiesced in or 
 affirmed, is in general conclusive between the parlies, even 
 Chough it may have proceeded on erroneous grounds, there are 
 occasions, on which the courts may he permitted to amend their 
 decisions, where such error, especially if it have been pro- 
 duced by fraud, is plainly and distinctly brought to their notice. 
 This subject has already been very fully discussed under title 
 Execution (parate), supra, 173 et sequ. Shortly after the] case 
 which occasioned that discussion had come under consideration, 
 another presented itself from the D. C. of Galle, which was re- 
 ferred to the S. C. under the following circumstances: An action, 
 pending in the late Sitting Magistrate's court, was regularly re- 
 ferred to arbitration, and an award was made, founded on the 
 admissions of the parties ; but the S. Magistrate's court entered 
 up judgment for the plaintiff, in Nov. 1832, for more than was 
 warranted by the award, that is, for one-fourth of the land in 
 dispute, instead of one-tenth, and the minor court of appeal, in 
 July 1833, affirmed the decree in general terms, without dis- 
 covering the error. The present action was brought in the D. 
 Court to enforce the decree, so erroneously given and affirmed. 
 The question was, whether that court w r ould be justified, with 
 the sanction and under the direction of the S. Court, in cor- 
 recting the original decree, by reducing it to the amount awarded 
 by the arbitrators. The following answer was returned to the 
 D. Judge: " The majority of the Judges are of opinion that 
 the error, committed in the late Sitting Magistrate's court, may 
 yet be corrected. The ground of that opinion is, that any court 
 of justice has the power of rectifying a mere mistake in its own 
 decree ; and that the D. Court, having succeeded to all the 
 powers and functions, as w ell of the S. Magistrate as of the pro- 
 vincial court, may lawfully rectify the error, which the Magis- 
 trate's court, if it were still in existence, w r ould be called upon 
 to set right. It is true that the decree was affirmed by the 
 minor court of appeal. The general terms, however, in which
 
 250 Judgment amended, for error in calculation. 
 
 that affinnatory decree was passed, shew plainly that the ques- 
 tion of the proportionate division of the land was not agitated 
 before the appellate court; and they will also prevent the de- 
 cree of affirmation from interposing any technical obstacle to 
 the proposed amendment : For when the original decree is 
 amended, by the redaction of one-fourth to one-tenth, it will 
 still be covered by the terms of the decree of the Minor Court oi 
 Appeal. In giving this opinion, however, the Judges do not 
 mean to say that the remedy proposed is dependent on the 
 general terms of the decree of the appellate court. The remedy 
 would, in their opinion, have still been attainable, even though 
 the Minor Court of Appeal had, in express terms, adopted the 
 error of the Magistrate's court, though not precisely by the 
 same route. If it had been necessary to alter the terms of the 
 decree in appeal, an application for that purpose must have been 
 made to the S. Court, which has succeeded as well to the minor 
 courts, as to the lale High Court of Appeal : And the mistake in 
 the minor appeal court being satisfactorily shewn, the S. Court 
 would not have hesitated to set it right. With respect to the 
 effect of the amendment, when made, any party to the former 
 suit, considering himself aggrieved by it, as well as any party 
 to the present suit, who may be dissatisfied with the decision oi 
 the D. Court, whether that decision be founded on the amend- 
 ment of the former decree, or not, must be at liberty to appeal." 
 L. B. 5, 23 June 1834. The following authority, which was 
 cited by the learned second P. Justice in the course of the dis- 
 cussion, seems strictly in point, admitting the question to be one 
 of law, rather than of practice ; as to which, vide supra, 181. It 
 shews that the amendment, according to the civil law, was per- 
 fectly within the power of the D. Court to make, without even 
 having recourse to the more sweeping remedy of the Restilutio 
 in inter/ruin : and seems indeed to demonstrate that the proper 
 remedy was correction, not annulment, of the decree. "]V 
 can a matter once decided be act asid-e, on the ground of er- 
 roneous computation ; for if decided cases could be tried over 
 
 again on this pretext, litigation would be endless." "If, 
 
 however, the error of calculation be contained in the decree 
 itself, it may be corrected without appeal, nor will the decision
 
 Judgment amendment refused for costs. 251 
 
 be any obstacle to such correction." Polhier ad Pand. Lib. 42, 
 title 1, s. 2, par. 29. And be supposes tbat a Judge were to 
 decide thus : "As it appears that A. owes B. 50 under one 
 head, and 25 under another, there fare I decree that A. shall pay 
 
 B. 100 :" This being a mistake in reckoning, it may be amended 
 without any necessity for appeal. 
 
 Where, in a decree of affirmation, the officers of the S. Court 
 made a mistake in the dale of the decree of the D. C. thereby 
 affirmed, the mistake, on being pointed out by the D. Judge, was 
 corrected by the S. Court. L. B. 10, 13 Sept. 1834. And on 
 another occasion, where, by the mistake of the Chief Justice, in 
 drawing up a decree in appeal, a reservation of the planter's 
 share was erroneously introduced, the error was rectified by the 
 
 C. J. himself, on its being brought to his notice by the D. Judge. 
 L. B. 21,30 March 1835. 
 
 But though the S. Court has shewn itself thus willing and 
 anxious to assist parties, where obvious injustice would have 
 been the consequence of refusing to amend the judgment , it 
 would never sanction this course, unless in the case of mere 
 verbal error, or unless a strong case of necessity were made out, 
 and still less if there appeared the remotest possibility of such 
 amendment being productive of injustice. Of the four cases of 
 amendments which have been mentioned, the first (that of the 
 para te [execution, p. 174) was for the purpose of relieving 
 against alleged fraud , the second was to correct an error of 
 computation made in drawing up the original judgment 5 the 
 two last were the setting right of mere verbal mistakes, in 
 drawing up the decrees of the S. Court in appeal. But where a 
 defendant in an action brought in a late Sitting Magistrate's 
 court and dismissed, without anything being said as to costs, 
 applied to IheD. C. to amend the decree of dismissal, by award- 
 ing costs, the S. C., on reference by the D. Judge, considered 
 that it was too late to allow the amendment sought for. " It 
 is very possible," the Judges observed, " that the omission to 
 mention the costs proceeded from inadvertence: But it is also 
 possible, that the Magistrate may have intended each party to 
 bear his own cosls. And though it would have been much 
 better that the intention of the court, whatever it was, should
 
 252 Judgment not amended by awarding costs. 
 
 have been distinctly expressed, it would be going too far now 
 to lake it for granted that, because the court was silent on the 
 subject, therefore its intention was to give the defendant his 
 costs. If the defendant had appealed against the decree as it 
 stands, which he ought to have done in due time after it was 
 pronounced, the plaintiff might have had good ground for op- 
 posing any alteration in it. So far, therefore, from the defendant 
 shewing that strong case of necessity or injustice, which would 
 alone induce the court to alter a judgment finally decided and 
 acquiesced in, it would be unjust towards the plaintiff, to supply 
 this supposed omission in the way prayed for. Whether the 
 defendant could maintain an action for the costs, is a different 
 question : That course would at least not be open to the objec- 
 tion, that the plaintiff was taken by surprise." L. B. 2, 9 Oct. 
 1835, on No. 9585, Galle, sup. 74. On this latter point, which, 
 as judgments unfortunately are often silent as to costs, is one 
 of some importance as a general rule, doubts may be enter- 
 tained. According to Yoet, lib. 42, tit. 1, par. 21, " If nothing 
 be decreed by the court as to costs, the successful parly has no 
 right of action against the loser, to recover them :" Nor, until 
 more modern limes, would he have had any right of appeal on 
 this ground : Id. Ibid. In Ceylon, the costs are a good ground 
 of appeal, and form indeed the daily subject of it. And if the 
 time for appealing be past, there seems no reason why an action 
 should not be maintainable, unless the D. Judge had been 
 changed during the interval ; in which case, the new Judge 
 would feel the same difficulty as to the intention of his prede- 
 cessor, as presented itself to the S. Court in the case from Galle 
 just mentioned, and would be obliged to decide, from the bare 
 perusal of the proceedings, and without the advantage of per- 
 sonally hearing the witnesses and parties, on which side the 
 costs ought to fall. 
 
 Where there are two conflicting judgments, it has been re- 
 commended that the first should have preference in point of 
 execution : Sup. title Execution, p. 161, 2, where the course to 
 he pursued is pointed out : And how a judgment is to be carried 
 into execution, in another district, see p. 162.
 
 253 
 
 JURISDICTION 
 
 Anxiety, in framing the charter, to prevent conflicting jurisdiction, page 
 263 Only one D. C. in each district 254 Reasons for the mode adopted, 
 in subdividing the district of Colombo 255 Civil jurisdiction of D. C.; tests 
 of; residence of defendant or cause of action ; one item of an account 257 
 Joining a fictitious defendant does not give jurisdiction 2.":8 Claims lo land 
 seized in execution should be tried in the D. where land situated 258 If D. J. 
 be a party, any adjoining D. C. is competent; division of provinces has no 
 relation to jurisdiction 259,267 S.C. refused to transfer such action, wilhout 
 strong grounds 260 Equitable jurisdiction of D. C. ; relief against fraud ; 
 discovery, by examining parties; injunctions; fitfci commissa 261 Testa- 
 mentary, and over lunatics 262 Matrimonial, judgment of S.C. in favour 
 of 262 Revenue 266 Criminal: Offences committed partly in one dis- 
 trict, partly in another, cognizable in either 266 D. C. may inflict impri- 
 sonment, whipping, and Gne, or any two of them, for the same offence; rea- 
 sons 267 Solitary imprisonment ; caution as to its exercise 270 Remanding 
 insolvents 272 When revenue cases fall within the criminal jurisdiction of 
 D. C. 272 to 280 Confiscation, in the nature of civil proceeding; fine, cri- 
 minal; B.C. may confiscate to any extent, fine only to 101. 272, 3 But confis- 
 cations must be sued for in name of K. A. 273 Distinction between 25lh and 
 28lh clauses, and 51st clause of charter 271 10th R. of sect. 2 does notpre- 
 clude K. A. from prosecuting minor offences 276 All breaches of revenue 
 laws, for which penally, fine, or punishment is awarded, to be prosecuted 
 criminally; others, civilly 276 Fine by D. C. above 101., set aside by S. C. 
 280 S. C. has no power of remission, if conviction legal 280 Jurisdiction 
 of D. Courts not conflicting, but co-operative, with each other 231 S. C. 
 refused to call on K. A. to produce a letter, reflecting on a D. Judge; rea- 
 sons 282 Cases transferred from one D. C. to another 285 S. C. refused to 
 transfer, on ground of, D. J. being a witness (the objection coming from com- 
 plainant) 286 Or of alleged partiality of interpreter 286 Transfer can only 
 be within the same circuit ; expediency of this limitation ? 287 Plaintiff 
 having made his election of D.C. cannot' transfer the case lo anolher, merely 
 because cilher has jurisdiction 288 SliH less after judgment 288 Residence 
 uf witnesses, alone, insufficient 288. 
 
 THE first observation which occurs lo one, on entering upon 
 this subject, is the anxiety shewn by the framcrs of the Charter 
 to avoid the possibility of any conflicting jurisdiction, whether 
 between the Supreme Court and the District Courts, or between 
 any two of the D. Courts : And also to prevent any of the judi- 
 cial powers of these latter courts from being delegated lo other 
 hands. As was observed by the S. Court, in answer to a sug-
 
 254 Jurisdiction one court in each district. 
 
 gestion bv a D. Judge, that the secretary should be allowed to 
 take down the statements of parties, The most scrupulous 
 jealousy is observable throughout the Charter, of any exercise 
 of the judicial functions of the D. Courts, except by those courts 
 themselves. Supra, 156. And even as regards the S. Court, 
 wherever it is invested with other powers than those incidental 
 to its criminal or appellate jurisdiction, the Charier seems to 
 guard most cautiously against those powers being exerted in any 
 instance, except in such as are expressly marked out. This is 
 particularly observable in the 49lh clause, as regards the issuing 
 of injunctions. The exclusive jurisdiction of the D. Courts, in 
 general, is declared in the most positive and prohibitory terms 
 by the 29lh clause : And it must be confessed that much uncer- 
 tainty and delay in the administration of justice are obviated, 
 and simplicity and uniformity of procedure are greatly promoted, 
 by thus limiting and defining the authority of each court, beyond 
 the possibility of misapprehension, either by the courts them- 
 selves, or by parties litigant. One or two instances will be pre- 
 sently given of the distinction between usurpation of jurisdic- 
 tion, and the co-operation of one D. Court with another, where 
 such assistance is required. Infra, 281.2. 
 
 The 20lh clause of the Charter directs, ;l That within each 
 and every district of.the island, there shall be one court, to be 
 called the District Court of such district.'' A D. Judge, finding 
 the business of his court greater than he could hope to get 
 through, suggested to the S. Court, among other methods of 
 lightening it, that his court, and that of the adjoining district, 
 should be blended together; all the civil business of the united 
 district being given to one D. Judge, all the criminal business 
 to the other. The S. Court, however, returned for answer, 
 That no discretionary power w as vested in the Judges, to make 
 or sanction the change proposed ; that on referring to the terms 
 of the Charter, it could not but be observed, how studiously it 
 was provided that there should be but one D. Court in each dis- 
 trict, which court, again, should exercise both civil and criminal 
 jurisdiction : that in the first place, therefore, the erection of 
 a second D. Court would be absolutely illegal, and its proceed- 
 ings mere nullities 5 and thai in the second place, no D. Court
 
 Jurisdiction reasons for division of Colombo. 255 
 
 could, consistently with the 24th and 25th clauses of the Charter, 
 legally refuse to exercise either branch of its jurisdiction, civil 
 or criminal, whenever called upon so to do. L. B. 1, 18 July 
 1834. 
 
 While on this branch of the subject of jurisdiction, it may be 
 well to explain the reasons, which induced the Judges of the 
 S. C. to adopt the mode in which the different districts, forming 
 the subdivisions of the entire district of Colombo, are distin- 
 guished , viz. by numbers, instead of by tin; names of the 
 places, where the courts are respectively held. There is, no 
 doubt, an apparent awkwardness in this method, which requires 
 some explanation to justify it. The question has indeed been 
 asked, and very naturally, why the "District of Colombo" 
 should not be confined to those limits, to which the jurisdiction 
 of the D. Court, sitting at Colombo, extends ; and why the other 
 portions of the entire district of Colombo (taking that term as 
 distinguished from the three circuits) should not be called by 
 the names of the principal places? As Negombo, instead of 
 Colombo No. 2. Caltura instead of Colombo No. 4, etc., as in- 
 deed they are called in familiar language. The reasons why 
 that course was not adopted iu the proclamation, subdividing 
 the island into districts, in pursuance of the 19lh clause of the 
 charter, were these : The 18th clause ordains, "That, for the 
 purposes of the administration of justice, the island of Ceylon 
 shall be divided into the district of Colombo, and three cir- 
 cuits,'' to be called and limited as therein directed. Then the 
 19th clause, and indeed the whole of the charter (especially the 
 46th, 47th, 48th, 49th, and 51st clauses) constantly speak of 
 this division of the island " into circuits, exclusive of the district 
 of Colombo;' 1 always contradistinguishing "circuit" from 
 "district of Colombo." If, therefore, the term "district of 
 Colombo," as referable to the jurisdiction of the D. Court, were 
 to be limited to the extent, over which the court, actually sitting 
 in the town of Colombo, exercises jurisdiction, some other ex- 
 pression must be adopted, to signify that circle which is ex- 
 cluded from the three circuits ; because confusion would be 
 constantly arising, if the same expression were used to signify 
 both the more extensive, and the more limited, tract of coun-
 
 256 Jurisdiction reasons for division of Colomlo. 
 
 try. But whatever might be the term substituted, it must not 
 be confined to the 18lh clause, by which the division of the 
 island into the district of Colombo and the three circuits is es- 
 tablished : The substituted term must be made to run through 
 the whole charier ; or the present term of distinction, occurring 
 in the clauses above referred to, would be without meaning, or 
 at least without its intended meaning. An alteration so exten- 
 sive, or at all events so frequently recurring through the charter, 
 as this would be, the Judges thought would be more regularly 
 made by any instrument which H. M. might be pleased to issue 
 for amending or explaining the charter, than by a proclamation 
 by the governor on the recommendation of the Judges. They 
 considered that the proviso, at the end of the ISlh clause, only 
 gave authority to alter the division laid down by that clause, 
 (the effect of such an alteration will be considered immediately) 
 but not to interfere with the distinctive terms, used throughout 
 the charter, as to what should be considered circuit, and what 
 the home district of Colombo distinguished from circuit, as re- 
 gards the jurisdiction of the S. Court. And this opinion induced 
 them to recommend the course they did, of subdividing the en- 
 tire district of Colombo into smaller districts, as regarded the 
 jurisdiction of the D. Courts ; still preserving the distinction,, 
 so studiously made by the charter, between the circuits and the 
 district of Colombo in its larger extent: and with that view 
 maintaining the word "district" both as regards the Supreme 
 Court and the District Courts, without violating the 20lh clause 
 of the charter, which directs that there shall be one D. Court 
 within each district. It is true that, under the proviso of the 
 18th clause, the judges might have recommended a change in 
 the original division of the island, by which change the "dis- 
 trict of Colombo,' 1 as opposed to circuit, might have been re- 
 duced to the limits of ihc district now designated as Colombo 
 No. 1. But it must ho recollected that, the moment (hat limi- 
 tation had taken effect, every place beyond those narrow limils, 
 though within a mile or two of Colombo, would (unless the term 
 'district of Colombo,' employed throughout the charier, as op- 
 posed to ' circuit. ' had been alterei, as above suggested) have 
 become transferred to one of the three circuits: In which
 
 Jurisdiction of D. C.; Civil; tests of. 257 
 
 the jurisdiction of the S. Court could only have been exercised, 
 towards places so situated, under the same restrictions, and at 
 the same intervals, as over places at the extremities of the island ; 
 and consequently, at a proportionally increased expenditure of 
 time and money. 
 
 As regards the several branches of jurisdiction to be exer- 
 cised by the D. Courts, and the local limits, by which the powers 
 of each D. Court are to be regulated : Civil jurisdiction is 
 given by the 24th clause of Ihe charter to each D. Court, to 
 hear and determine all suits, etc., in which the defendants are 
 resident within that district, or in T?hich the act, matter, or 
 thing, in respect of which such suit is brought, has been done 
 within that district. It may appear scarcely necessary on this, 
 and probably on several other occasions occurring in these notes, 
 to insert the provisions of an instrument, so well known as the 
 Charter of Justice must be supposed to be in Ceylon. But so 
 many occasions have occurred, in which it has been necessary 
 for the S. C. to refer parties to this and other clauses of that 
 instrument, that the insertions may not be deemed altogether 
 superfluous. See L. B. 10, 13 Dec. 1833, and 26, 29 Aug. 1834, 
 where D. Judges were reminded, in answer to questions on the 
 subject, that the 24 th clause gave jurisdiction, cither where the 
 defendant resided, or where the act was done, within the dis- 
 trict. If the cause of action arise within the district, which in- 
 deed is tantamount to the second alternative laid down by the 
 24th clause, though in different words, the plaintiff is equally 
 entitled to sue in that district, as if the defendant were resident 
 within it. No. 2099, Jaffna, 30 April 1834. An action was 
 brought in the D. Court of Galle, for 374/., on a balance of ac- 
 counts. The defendant pleaded to the jurisdiction, on the 
 ground that he, the defendant, was resident in IMatura, and 
 that no act, etc., had been done within theD. of Galle, except 
 a payment of 300 III), by the plaintiff, at Galle, on the defen- 
 dant's order, drawn at Matura. To this the plaintiff replied, 
 that most of the transactions took place at Galle; and he moved 
 to be allowed to go into evidence in support of that allegation, 
 which the D. Court ordered accordingly, and also that the de- 
 fendant should answer to the merits of the action, and on his 
 
 17
 
 -258 Jurisdiction of D. C.; Civil ; tests of. 
 
 appealing, the S. C. affirmed the order. No. 1434, Galle, 31 
 Dec. 1834. In tbat case, part of the cause of action arose, ac- 
 cording to the defendant's own admission, in the district of 
 Galle. Independently of that admission, evidence would have 
 been necessary, to shew whether the P. Court of Galle had ju- 
 risdiction, or not. 
 
 But plaintiffs must not be allowed, in ordertosuit their own 
 convenience, or perhaps for worse purposes, to bring their ac- 
 tions under fictitious pretences, in courts to which the jurisdic- 
 tion does not fairly belong, under the 24th clause. An action 
 for land, situated in the district of A., was brought in the D. 
 Court of]}, against two defendants, the first of whom resided 
 in 1)., but disclaimed all right to or interest in the land, and the 
 second, who v\as the only real defendant, resided in A. The 
 matter being brought to the notice of the S. Court, it was or- 
 dered that the case be transferred to the D. Court of A., as being 
 the court, under the jurisdiction of which the decision of the 
 case properly fell. If it were permitted to the plaintiff, the 
 order observed, to carry on the suit in B., merely on the ground 
 of the first defendant, who had no interest in it, having been 
 joined in the action, a plaintiff might always choose the court, 
 in which he would prefer the action to be tried, by including, 
 as defendant, a person \\hollv uninterested in the matter at 
 issue. The I). Court of B. was recommended, before transfer- 
 ring the proceedings, to dismiss the action, as against the first 
 defendant, vilh costs. So. 632, Matele, 16 May 1835. This 
 decision, it w ill be observed, is not to be considered a transfer 
 of a case from one D. C. to another under the 36th clause, which 
 we shall consider presently: It was merely declaring to what 
 court jurisdiction, in the first instance, belonged. 
 
 In an action brought in the I). Court of Colombo at the suit 
 of the Loan Board, on the mortgage of land situated at Putlam, 
 s-verul claimants appeared and stopped the sale in execution, 
 and petitioned the S. C. that their claims might be heard and 
 decided at Pullam. on the ground of the expense which would 
 he occasioned l>\ the examination of their witnesses at Colombo. 
 The S. C. was inclined to accede to this petition, but the regis- 
 trar, on the part of the Loan Board, consented that the wit-
 
 Jurisdiction of.D. C.; Civil $ D. J. a party. 259 
 
 nesses should be examined on interrogatories at Putlam. Pe- 
 tition Book of 1835, p. 170. 
 
 The 24th clause provides, That no D. Court shall have ju- 
 risdiction in any suit, etc., in which the Judge is a party 5 but 
 such suit, etc., shall be cognizable in the court of ./ district, 
 immediately- adjoining. Two cases have occurred on the con- 
 struction of this proviso. One was an action, brought in the 
 D. Court of Trincomale, against a late government agent of the 
 Eastern Province, as first defendant, and the assistant asrent of 
 
 ' 
 
 Molletivoe, as second defendant, for cooly hire and wages, 
 earned in the service of government. The D. Court enter- 
 tained the action against the first defendant, for work done in 
 the district of Trincomale, but dismissed it as against the se- 
 cond 5 recommending that the action be commenced against him 
 in the D. Court of Jaffna, as being a resident in the Northern 
 Province. The second defendant held the office of D. Judge of 
 the Wanny. The plaintiffs having appealed against this dis- 
 missal, the S. C. reversed that part of the decree, and referred 
 the case back to the D. Court of Trincomale, to be there pro- 
 ceeded with, against both defendants. "A little confusion," 
 the S. Court observed, " appears to have arisen between Pro- 
 vince and District. It is the judicial division of district, and not 
 the revenue division of province, which must decide the question 
 of jurisdiction. (So, as to committing prisoners for trial before 
 the S. C., infra, 267.) The D. Court has considered that, as 
 the plaintiffs were employed in the Northern Province, and as 
 the second defendant is a resident of that province, the claim 
 against him "must be referred to the D. Court of that pro- 
 vince." But there is no such thing, properly speaking, as the 
 District Court of a province. The island is divided, by the 
 proclamation of 1 Oct. 1833, into provinces, as regards revenue 
 matters : It is divided by the charter into circuits and the dis- 
 trict of Colombo, and is again subdivided by the proclamation 
 into districts, as regards the administration of justice. The 
 questions to be asked, therefore, under the 24th clause of the 
 charter, in order to decide what court has jurisdiction, are, In 
 what district does the defendant reside ? or, In what district 
 did the cause of action arise ? The answer to the first question 
 
 17.
 
 260 Jurisdiction of D. C.; Civil, D. J. a parly. 
 
 is, The district of the Wanny. But then the second defendant, 
 it appears, is judge of that district. According to the provisa 
 of the 24th clause, therefore, the suit against him became 
 " cognizable in the court of any district, immediately adjoin- 
 ing." The district of Trincomale does immediately adjoin 
 that of the Wanny. The court of Trincomale, therefore, is 
 competent to entertain the case, as against the second defen- 
 dant $ and having been elected by the plaintiffs, as one of the 
 districts immediately adjoining, it is bound to hear and decide 
 it, unless some very strong reason should be shewn, for trans- 
 ferring it to another court. From the nature of the action, it 
 might have been presumed that the government would have in- 
 tervened, and taken the place of both the defendants. But as 
 that has not been done, the question of jurisdiction must be de- 
 cided, as regards the second defendant, with respect to w horn 
 alone this appeal has been brought, by referring to the residence 
 of that gentleman, and the districts adjoining." No. 2432, Trin- 
 comale, 6 Jan. 1836. 
 
 The other case w as an action brought against the D. Judge of 
 Manar, by one of his servants, in the D. Court of Jaffna. The 
 defendant applied to the S. Court, to transfer the case from that 
 court, either to that of Chilaw and Putlam, or to that of Anara- 
 japoora; alleging that both those courts w r ere nearer to Manar 
 than Jaffna, and that the latter court had been selected by the 
 plaintiff, for the purpose of creating inconvenience and an- 
 noyance to the defendant. The Judges of the S. C., however, 
 returned for answer, That they should not feel justified, in re- 
 moving the case from Jaffna to another district 5 that the only 
 limitation, imposed by the proviso of the 24lh clause, was that 
 the action should be brought in some district, immediately ad- 
 joining that, over which the Judge w ho is a party presides ; 
 that as there could be no doubt that the district of Jaffna ad- 
 joined that of Manar, the letter of the proviso had certainlj been 
 complied with; that if, indeed, the choice of an adjacent D. 
 Court had been made evidently with a view to produce vexa- 
 tious inconvenience, or if such choice were likely to prevent 
 justice being done between the parlies, the Judges w ould not 
 hesilate to exercise the pow cr, vested in them by the 36lh clause
 
 Jurisdiction of D. C. Equitable. 261 
 
 of the charter, and transfer the case to some other court, not- 
 withstanding the literal compliance with the terms of the 
 charter ; but that no ground appeared, in the present instance, 
 for imputing vexatious motives to the plaintiff, in his choice of 
 an adjacent court, or for apprehending " that justice would 
 not be done in the court, in which the action had been com- 
 menced;" that as regarded distance, Manar appeared nearly 
 equidistant from Jaffna and from Putlam, and much nearer to 
 Jaffna than to Chilaw, where the D. Court was held half the 
 year ; that it must not be forgotten, moreover, that Jaffna, as 
 the capital of the Northern Districts, was the place which a suitor 
 would naturally select, if he had the choice, and where he would 
 be able to obtain the best legal advice and assistance 5 for 
 which last reason, and considering that an action against a gen- 
 tleman, high in authority, ought to be conducted with as great 
 a regard to solemnity, and with as much assistance from expe- 
 rience, as could be afforded to it, the S. Court w ould by no 
 means consider it proper to remove a case from Jaffna, to a court 
 so recently instituted as that of Anarajapoora, merely because 
 the latter might be somewhat nearer to Manar; that as Jaffna, 
 therefore, even if the selection still remained to be made, would 
 be at least as proper as any other adjacent district, it would be 
 a very strong act, and one of which a plaintiff would have a 
 just right to complain, if, after he had laken the journey to 
 Jaffna, and had actually commenced his action in that district, 
 the S. Court were to compel him to retrace his steps, and to 
 travel back upwards of 100 miles, for the purpose of recom- 
 mencing proceedings. L. B. 4, 17 Aug. 1835. Vide infra, 285, 
 etc., cases which the S. C. has transferred to other D. Courts; 
 and oilier cases in which such transfer has been refused. 
 
 Equitable jurisdiction, as distinguished from civil, is not given 
 by the charter in express terms; it having been considered 
 by the framei s of that instrument, that all cases brought before 
 tiie D. Courts should be decided, as in the civil law, according 
 to the rules of equity, blended with those of strict law. See 
 what is said upon that subject by Mr. Justice Norris, supra 177, 
 8, 9; and the judgment of the S. C. on the matrimonial juris- 
 diction of D. Courts, infra, p. 262, 5. We have already seen
 
 Jurisdiction of D. C. Matrimonial. 
 
 that I). Courts possess the most extensive powers of relieving 
 against fraud, a very important branch of the jurisdiction of 
 English courts of equity ; supra, p. 197. Another very exten- 
 sive branch of that jurisdiction, the compelling parties to reveal 
 \\ liat (heir adversaries are in justice entitled to know, which is 
 done in courts of equity by means of bills of discovery, is ef- 
 fected under the present system in Ceylon by a much simpler, 
 speedier, and more effective mode, that of the examination of 
 parlies by each other and by the court-, supra, p. 151 et sequ. 
 The power of granting injunctions, also, we have seen under 
 that title, p. 229, is vested in the D. Courts, by the general and 
 comprehensive terms, in which their civil jurisdiction is con- 
 ferred by the charter-, but not for the purpose of prohibiting 
 the commencement or prosecution of any action, p. 231, 2. The 
 D. Courts have also the power, under certain circumstances, to 
 dissolve fidci comtnissa; sup., p. 190, 1. 
 
 Testamentary jurisdiction is conferred by the 27th clause, and; 
 has been considered under title Administration : Over idiots and 
 lunatics, by the 26lh clause ; and what little occurs upon that 
 subject will be given under title Lunatic. 
 
 Matrimonial jurisdiction not being conferred, in express 
 terms, on the 1). Courts, by Ihc present charter, the question, 
 whether they could legally exercise it, was raised in the D. 
 Court of Colombo in the early part of 1836; and being brought 
 by appeal into the S. Court, was there decided in the affirma- 
 tive, as far as regards the general power of the D. Courts to 
 exercise jurisdiction in matrimonial cases. The following judg- 
 ment, pronounced b\ the Chief Justice, but concurred in by 
 the whole court, gives, it is believed, the facts of the case, and 
 the arguments used against this branch of jurisdiction, suffi- 
 ciently for the purpose of intelligibility ; and may also be 
 useful, as shewing the view taken by the S. Court, of the juris- 
 diction of (he 1). Courts, in general. 
 
 " The plaintiff in this case sues before the District Court, to- 
 be divorced from his v\ife a vinculo malrimomi on the ground 
 of udullcr\. This court is anxious to separate the general 
 question of jurisdiction, from the ulterior and more delicate 
 one, whether the J). Court has the power of granting this ex-
 
 Jurisdiction of D. C. Matrimonial. 263 
 
 treme remedy, which must depend on the nation lo which these 
 parties belong, on the law which governs that nation, and on 
 many other circumstances, which can scarcely be ascertained, 
 without going, at least in part, into evidence. And as a speedy 
 decision has been asked in this case, on the ground that some 
 of the witnesses are about to leave the island, it seems expedient 
 that the evidence of those witnesses should be taken at once ; 
 leaving the question, as to the extent to which the D. Court is 
 competent to afford relief, for further and separate considera- 
 tion. The grounds, on which it has been urged that the D. 
 Couits of flevlon have no matrimonial jurisdiction at all under 
 the present Charter, are That this instrument must be pre- 
 sumed to have been framed with reference to, and on compa- 
 rison with, the former Charier of 1801 ; that if it had been in- 
 tended to confer on the 1). Courts all the different kinds of juris- 
 diction, exercised by the late Supreme Court, all and each of 
 those kinds would have been enumerated -, that though several 
 kinds are expressly enumerated, namely, civil, criminal, over 
 idiots and lunatics, testamentary, and revenue, by the 24th, 25th, 
 26th, 27lh, and 28th clauses, no mention is made, as in the 
 former Charter, of a matrimonial jurisdiction ; that this branch 
 cannot be said to be included under the general term ' civil 
 jurisdiction 1 in the 24th clause ; that it never could have been 
 intended to invest the 1). Courts of this island, some of which 
 must be considered, without disrespect, as an inferior class of 
 courts, \\i(\i such extensive powers, transcending those exer- 
 cised by every court of England, except the High Court of Par- 
 liament itself; that if such powers were vested anywhere, they 
 ought to reside in the Supreme Court ; that as the S. Court 
 does exercise original jurisdiction in criminal matters, in issuing 
 writs of Habeas Corpus, and injunctions, so there is no reason 
 why it should not exercise a matrimonial jurisdiction, unless 
 specially prohibited : that it is not so prohibited, because the 
 29lh clause only declares that the jurisdiction, before given to 
 the District Courts, shall be exclusive, and as this particular 
 jurisdiction is not before given, the Supreme Court cannot be 
 excluded from exercising it ; that the Supreme Court, and not 
 the District Courts, corresponds with the High Court of Holland,
 
 264 Jurisdiction of D. C. Matrimonial. 
 
 by which latter court this jurisdiction was exercised; that the 
 D. Courts might as well take upon themselves to exercise an 
 equitable jurisdiction, as a matrimonial one, neither being ex- 
 pressly given 5 that no appeal from the decision of cases of 
 this nature could be carried home to England, inasmuch as the 
 second condition of the 52d clause of the Charter limits such 
 appeals to decisions, involving properly to the amount of 500/. 
 or upwards; that the D. Courts would be obliged to inquire 
 into the laws of every country in the world, according to the 
 nation to which litigants might belong; and finally, that, if the 
 Supreme Court should not feel itself competent to exercise this 
 jurisdiction, the parties must resort to the courts of their own 
 country for redress. These arguments certainly seem to leave 
 nothing unsaid, which could be urged in support of this appeal. 
 The main fallacy, however, consists in supposing that the terms 
 of the 24th clause are insufficient to confer, and that they do 
 not confer, a jurisdiction in matrimonial mailers. Those terms 
 are of the most general and comprehensive nature : ' Each Dis- 
 trict Court shall be a court of civil jurisdiction, and shall have 
 cognizance of, and full power to hear and determine, all pleas, 
 suits, and actions. 1 'All suits' comprehend matrimonial suits, 
 as well as others. The word ' civil 1 is to be taken in the 24th 
 clause, as contra-distinguished from 'criminal,' which is used 
 in the following clause ; rather than to be put in opposition to 
 'matrimonial,' or any other sub-division of civil jurisdiction. 
 Then, again, somewhat too much stress hs been laid on the 
 enumeration of certain branches of jurisdiction, and on the 
 omission of that in question. The argument can scarcely be 
 said to arise at all out of the 26lh or 27th clauses; because it 
 might have been doubted whether the custody of lunatics, or 
 the power to grant probate or administration, would have fallen 
 within the words ' pleas, suits, and actions. 1 As regards the 
 28th clause, however, the argument certainly does hold to a cer- 
 tain extent : For there can be no doubt that revenue cases 
 would have been comprehended within the terms of the 24th 
 clause ; and it must be admitted therefore that, if it was consi- 
 dered expedient, as a matter of precaution, to give a revenue 
 jurisdiction by express declaration, it might have been as well,
 
 Jurisdiction of D. C. Matrimonial. 265 
 
 n conformity to the Charter of 1801, to have given it in matri- 
 monial cases also. But the argument of cjcpressio unius exclusio 
 allerius ran only prevail, where the intention of the legislature 
 is doubtful ; indeed it has been urged that it never could have 
 Deen intended to give this jurisdiction, so difficult in its exer- 
 cise, so important in its consequences, and so dangerous in its 
 abuse, to the District Courts. But it is perfectly within the 
 knowledge of this court, that it was the intention of those who 
 framed the Charter to confer the most extensive jurisdiction on 
 the D. Courts, in all but criminal matters of a grave nature, and 
 a matrimonial jurisdiction among others. With respect to the 
 Supreme Court exercising this jurisdiction, it is sufficient to say 
 that, as Ihe 24th clause does, in the opinion of this court, vest 
 it in the District Courts, it must be exercised by those courts, 
 under the terms of the 29th clause, exclusively. The power of 
 granting writs of Habeas Corpus by the S. Court is rather an 
 appendage to its criminal jurisdiction; and that of issuing in- 
 junctions is only in aid of the District Courts, in cases where 
 irremediable mischief might ensue from the delay in going to 
 the D. Courts. (Vide supra, p. 229.) Nor would the supposed 
 analogy between the Supreme Court and the High Court of 
 Holland assist the appellant : for this branch of jurisdiction, and 
 even the power of dissolving the matrimonial tie altogether, 
 would seem to have been exercised by the courts of ordinary 
 jurisdiction in Holland, subject no doubt to appeal : Voet. Lib. 
 24, tit. 2. An equitable jurisdiction undoubtedly is vested in 
 the District Courts, if the administration of the civil law, and 
 the viva voce examination of parties, as now practised, can 
 leave any necessity for their intervention, as courts of equity. 
 Vide supra, 261. And this also was the expressed intention of 
 the framers of the Charter. It might appear, at first sight, that 
 parties would be without appeal to the King in council, where 
 no value appeared, as the measure of the injury sought to be 
 redressed : But this court would certainly supply that apparent 
 omission, by considering every case of this description as above 
 the value of 500/., and truly so ; since questions of this nature 
 can scarcely be measured, as to their importance, by money to 
 any amount. It is true that the District Courts may, in the
 
 B Jurisdiction of D. C. Criminal. 
 
 exercise of this branch of jurisdiction, and in some others, be 
 obliged to inquire into the laws and customs of other countrie- 
 This is a difficult v, \\hich must be met in the best way that the 
 Knowledge of the District Judges, assisted as it will always most 
 readily he bv that of the Judges of this court, and corrected, 
 when nece.vars - by the decision of the Supreme Court in appeal, 
 will admit of." No. 11,010, Colombo, 6 Feb. 1836. 
 
 Revenue jurisdiction, as we have just had occasion to see, 
 j>. 204, is conferred on the I). Courts, with certain limitations, 
 by the 28th clause. What occurs on this branch, will be given 
 more conveniently under the remaining head of criminal juris- 
 diction. 
 
 Criminal jurisdiction is given to each of Ihe District Courts 
 by the 25th clause, "'to inquire of all crimes and offences, 
 alleged to have been committed, wholly or in part, within its 
 district; and to hear, trv, and determine, all prosecutions for 
 such crimes, etc. : Provided that this jurisdiction shall not ex- 
 tend to any crime, punishable with death, transportation, or 
 banishment, or imprisonment for more than 12 calendar months, 
 or whipping exceeding 100 lashes, or fine exceeding 10/." As 
 regards the local limits, by \shich this branch of jurisdiction 
 must be regulated, it will be observed that crimes are cognizable 
 by the court of a district, if committed wholly or in part within 
 that district: an alternative well calculated to remove doubts 
 and difficulties as to jurisdiction, as regards those crimes which 
 usually induce change of place, as cattle-stealing and similar 
 offences. Thus, a person was apprehended for cattle-stealing 
 in the district of Caltura, and taken before the court of that 
 district , hut the D. Judge, finding that the theft had been com- 
 mitted in the district of Amblangodde, transferred the prisoner 
 to that court. The latter D. Judge, doubling whether he could 
 regularly enter upon the inquiry of a case which had been begun 
 in another court, referred to the S. Court for instructions; and 
 was informed, That the investigation having been commenced 
 in one I). Court, formed no objection to its being taken up and 
 continued by another, if it appeared that the ground of prose- 
 cution arose in that, to which it was transferred; that in the 
 present instance, the prosecution might have been carried on 
 in either district, because every moment's possession of the
 
 Jurisdiction of D. C. Criminal. 267 
 
 stolen property by the thief was a fresh offence ; but that the 
 inquiry would most conveniently be carried to a conclusion in 
 \mblangodde, where the original offence was committed, and 
 where the most material witnesses must be supposed to reside. 
 L. B. 5, 8 Nov. 1834. So, escapes, as we have seen under that 
 head, supra. 104. may be tried either in the district where the 
 original act of escape occurred, or in any other, in which the 
 offender may be found. One or two mistakes have occurred, 
 in the commitment of prisoners for trial before the S. C., by not 
 adverting to the distinction, above alluded to, p. 259, between 
 the division of the island into circuits and districts, as regards 
 judicial matters, and into provinces, as regards revenue , the 
 latter division having no reference to judicial jurisdiction. 
 
 A question of very great and general importance was raised, 
 in one of the 1). Courts, on the construction of the proviso con- 
 tained in the 2,~>lh clause just recited, as affecting the criminal 
 jurisdiction of the D. Courts : Whether, under the terms of that 
 proviso, those courts were authorized to inflict at one time, and 
 for the same offence, the three punishments of imprisonment, 
 whipping, and fine, or any two of them ; or whether they were 
 limited to the selection of some one of those modes of punish- 
 ment. The S. Court, after very mature consideration, was of 
 opinion that, by the terms used in the charter, the D. Courts 
 were not prohibited from inflicting any two of these punishments, 
 or even all of them, to the extent to which each is limited, if a 
 case should ever arise, which could justify this threefold inflic- 
 tion. Hut on this latter point, the Judges suggested that a case 
 of such a nature must bo of very rare occurrence indeed. Fine 
 and imprisonment, or imprisonment and whipping, respectively, 
 might be often beneficially united; but it could seldom happen 
 that the same offender could be considered a fit object both for 
 fine and corporal punishment: still less for all three. This 
 opinion was communicated to all the D. Judges, by a circular 
 letter, 22 May 1834. Hut as the S. Court was not unanimous 
 on the point, and as the view taken by the majority was cer- 
 tainly not on the popular side, it may be right to slate the 
 grounds, on which the Chief Justice rested his opinion, and in 
 which the Second P. Justice expressed his entire concurrence.
 
 268 Jurisdiction of D. C. Criminal. 
 
 The proviso in question, from the terms of it, evidently con- 
 templated a scale, established bylaw, of crimes and punishments, 
 apportioned to each other. No such scale being in existence in 
 Ceylon (1), the limitation of the criminal jurisdiction of the D. 
 
 (i) About Icn years since, the judges of the S. Court, Sir R. Otlley and 
 Mr. Marshall, were called upon by His Excellency the late Sir Edward 
 Barnes, under the directions of the Secretary of State, to shew what the ex- 
 isting state of the criminal law was in Ceylon, and by what scale the courts 
 regulated their sentences, as regards crimes and punishments ; and also to 
 state their own views of this important subject. They accordingly addressed 
 the governor, at considerable length, on the various topics connected with 
 the criminal law of Ceylon. Among others, after enumerating and distin- 
 guishing the different gradations of punishment, usually imposed in Ceylon, 
 from simple imprisonment up to the extreme penally of death, they ob- 
 served: "But there is, properly speaking, no 'scale' by which the inflic- 
 tion is proportioned to the ofl'ence : That is, there is no such scale fixed by 
 law; though every judge, no doubt, has a standard of his own, by which he 
 graduates the punishment, according as his own ideas of the magnitude of 
 the offence, the frequency of its recurrence, and the character of the offen- 
 der, may suggest. We, for instance, have agreed upon a certain scale, ac- 
 cording to wnich, for Ihe sake of consistency, we apportion, as nearly as 
 possible, the punishments which we arc called upon to inflict, whether acting 
 conjointly or separately: And so, we presume, did our predecessors. But 
 we feel it to be our duty, most earnestly to deprecate this fluctuating slate of 
 the law, by which an offence, punished l>y the conscientious severity of one 
 judge with hard labour for fourteen years, might possibly, by Ihe equally 
 honest tenderness of another, be considered sufficiently expiated by one 
 year's imprisonment. We should wish to see the penal consequences of 
 crime as accurately defined by positive enactments as possible : Enough must 
 always be left to the discretion of the judge." After some remarks on the 
 effect of the different modes of punishment on the natives, and on their re- 
 spective tendency to repress crime, the judges submitted, for the considera- 
 tion of II. M. Government, their views of a scale of crimes and punishments, 
 in the formation of which they availed themselves largely of slat. 9 Geo. 4, 
 ch.74, by which the acts, then lately passed for the amelioration of the cri- 
 minal law of England, were in substance consolidated and applied to India. 
 If the writer of these notes were now to give his opinion on the subject of 
 the proposed scale, he would probably modify the recommendations contained 
 in the letter, especially as regards capital punishment : But his opinion, that 
 some rule of apportionment, more definite than the casual view taken of 
 each case by the presiding judge, would be desirable, still remains unchanged. 
 And it was only because he considered that the matter was in the hands of 
 H. M. Government, and that it would therefore be unbecoming in him to 
 agitate it in Ceylon, unless called upon from that high quarter so to do, that 
 he abstained from bringing it forward, while he held a seat in the Legislative 
 Council.
 
 Jurisdiction of D. C. Criminal. 
 
 Courts is rather imposed by implication, than directly expressed ; 
 but it is not the less binding on that account. If an offence be 
 not punishable with any of the degrees of severity, enumerated 
 in the proviso of the 25th clause, the B.C., putting the charter 
 out of consideration, could have no power to pass such a sen- 
 tence : If the offence be so punishable, it is placed out of the 
 reach of the D. C., by the express prohibition of the proviso. 
 And this supplies the criterion, by which to try the question, 
 whether a D. C. has exceeded its jurisdiction, and by which 
 alone the S. C. would be justified in setting aside any sentence 
 of a D. C., as going beyond its authority. The questions to be 
 asked are these Was the crime, with which the defendant was 
 charged, punishable with death, or transportation, or banish- 
 ment, or imprisonment for more than 12 calendar months, or 
 whipping exceeding 100 lashes, or fine exceeding 10/. ? Or, has 
 the D. Court imposed any one of these punishments? If both 
 these questions be answered in the negative, the D. C. seems 
 clearly to be within the limits of its jurisdiction; and the S. C. 
 would as clearly seem to be exceeding its authority, if it were 
 to interfere with any such decision on the ground of jurisdic- 
 tion. It has been contended that, after a D. C. has awarded 
 the full amount of any one of the three punishments, to which 
 a maximum is afiixed by the proviso, it would have no power to 
 award either of the other two ^ because, when either impri- 
 sonment, or whipping, or fine, to the full extent to which each 
 is limited, has been imposed, the addition of either of the other 
 two, whether in whole or in part, would make the punishment 
 more thin imprisonment for 12 months, or than whipping of 100 
 lashes, or than fine of 10/. But the words of the proviso are 
 not "crimes punishable with more than imprisonment of 12 
 months, or with more titan whipping of 100 lashes," etc. ; the 
 words are, " crimes punishable with imprisonment for more 
 than 12 months, or by whipping exceeding 100 lashes," etc. But 
 even supposing this argument to he valid, there would still be 
 nothing to prevent the D. C. from stopping short of the maxi- 
 mum of each punishment, and imposing part of all. As regards 
 the intention of those who framed the charter, it must he in- 
 ferred that it never was contemplated to limit the I). Courts to
 
 270 Jurisdiction of D. C. Criminal. 
 
 the exercise of one of these three punishments in each case , or 
 else, that such limitation would have been introduced, in ex- 
 press terms. The gentleman, who framed the present charter, 
 had made himself intimately acquainted, both by personal ob- 
 servation, and by the reports of those conversant with the sub- 
 ject, with the authority and practice of the several courts, 
 especially in their criminal jurisdiction ; he must frequently 
 have witnessed the simultaneous infliction, by the Silling Ma- 
 gistrates, of two of these punishments on the same offender, 
 and was perfectly aware of various regulations, authorizing 
 such compound punishment : He would certainly, therefore, 
 not have failed to tie down the new D. Courts, in express terms, 
 to the selection of one of these punishments, to the exclusion 
 of the olher two, if he had thought thai they ought to be so 
 restricted. As a matter of expediency, too, as far as that con- 
 sideration may be allowed, in the construction of a public in- 
 strument, there is no doubt that imprisonment and whipping, 
 or imprisonment and fine, may often be most beneficially im- 
 posed , or that many instances have occurred, of minor offences 
 too, in which any one of these punishments, singly, would not 
 have been productive of the desired effect. Again, if it had 
 been intended to prohibit the D. Courts from imposing a larger 
 measure of any two punishments, than might be considered as 
 amounting in the whole to the maximum of any one of the 
 three, a scale would have been introduced for that purpose ; as, 
 for instance, that if two-thirds of the maximum of imprison- 
 ment were awarded, it should only b? lawful to add one-third 
 of that of whipping or of fine. 
 
 The different modes of punishment, as the most effectual 
 means of repressing crime, and reforming offenders, the em- 
 ployment of criminals, while under sentence, and indeed every 
 point connected with the conduct and discipline of gaols, must 
 always be subjects of the highest interest, whether in a judicial 
 or legislative point of view. The question was proposed to the 
 S. Court, whether a D. Court would be justified in sentencing a 
 prisoner to solitary confinement. A lad of 18 had been con- 
 victed of stealing his master's watch ; and the D. Judge, not 
 intending to inflict corporal punishment upon him, thought it
 
 Jurisdiction of D. C. Criminal. 271 
 
 desirable to adopt this mode of imprisonment, in order that the 
 boy might escape the contamination, which he could scarcely 
 fail to incur, if he were associated with the usual inmates of the 
 gaol. The S. C., acting, on the principle above laid down, that 
 this mode of punishment was not one of those interdicted by 
 the charter, returned for answer, That there was nothing to 
 prevent a D. Court from sentencing a person convicted of a cri- 
 minal offence to solitary imprisonment, when satisfied from the 
 circumstances of the case, that such a sentence would have a 
 more beneficial effect, than ordinary imprisonment at hard 
 labour ; but that the term of imprisonment awarded must be 
 duly considered, with reference to the severity of confinement, 
 which, when strictly solitary, was increased in a double ratio, 
 as its duration was extended. L. B. 15, 17 Aug. 1835. This 
 latter caution should indeed never be lost sight of, in imposing 
 this species of imprisonment ; and a D. Judge would do well also 
 to inquire w hat means of separate confinement the gaol affords, 
 before he determines on it. To give full effect to this mode of 
 correction, it is not sufficient that the convict be merely cor- 
 poreally separated from his fellow-prisoners : He should be kept 
 free from the contagion of their conversation, especially if he 
 be a young offender. It is the silence, added to the solitude, 
 which has always been found to constitute the severity of the 
 punishment, as well as the means of reformation. The gaols 
 in Ceylon, it is feared, afford but scanty facility for this total 
 seclusion, without endangering the health or even life of the 
 prisoner ; which might be the case, if he were to be immured in 
 cells, such as are safely and properly used for that purpose in 
 more temperate climates. The experiment of solitary confine- 
 ment, except during the hours of labour, and accompanied by 
 absolute silence even while the convicts are at work, has been 
 tried on a very extended scale in the United Slates of America 5 
 or, to speak more correctly, is still in a course of trial, for its 
 complete success seems yetamatterof controversy. Its efficiency, 
 as regards the severity of the punishment, being indeed substi- 
 tuted for that of death, in those Slates in which capital punish- 
 ment is abolished, appears to be undisputed. But it has been 
 questioned whether the system of solitude and silence, combined,
 
 272 Jurisdiction of D. C. Confiscation and Fine. 
 
 can safely be carried to the extent, in point of duration, to which 
 it has been attempted to prolong it, for offences of the more 
 heinous description. It has been said, but this again is a dis- 
 puted point, that total alienation of mind has, in some in- 
 stances, been the consequence. Unless, however, the writer's 
 memory fails him in this respect, those instances of derange- 
 ment have occurred, at least chiefly, where the prisoners have 
 been left, for a great length of time, to the dreary tediousness 
 of silent and unoccupied solitude, unrelieved by the compara- 
 tively more endurable intervals of work, which, by those of more 
 active bodies and elastic minds, is unquestionably hailed as a re- 
 lief. Whether labour would ever be considered an alleviation 
 of imprisonment, by the indolent inhabitants of the tropics, may 
 be questioned. It may be interesting to those, whose attention 
 is directed to this subject, to know that the Academic Royale de 
 Medicine of Paris lately appointed a committee to examine into 
 the subject of mortality and insanity, arising from the peniten- 
 tiary system ; which committee has expressed itself decidedly in 
 favour of the mode of solitary confinement, used in the peniten- 
 tiary at Philadelphia, and recommended for adoption by M, 
 Christophe, inspector-general of the prisons of France. 
 
 As to the authority of D. Courts, to remand insolvents, on 
 proof of misconduct, for imprisonment, not exceeding three 
 years, notwithstanding the limitation of their criminal jurisdic- 
 tion by the 25th clause of the charter ; vide supra, 92, 3. 
 
 IVot many months after the promulgation of the charter, 
 doubts arose on the construction of the 25lh and 28th clauses, 
 the first relating to the criminal, the last to the revenue juris- 
 diction of D. Courts ; whether these courts, in the exercise of 
 the latter jurisdiction, had power of confiscation, where the 
 value of the properly to be condemned exceeded 10/. The 
 point having been maturely considered by the S. C., the Judges 
 unanimously determined, " That the U. Courts had authority, 
 under those two clauses, to confiscate property to any amount, 
 such confiscation being raihor in the nature of a civil .action, nl 
 the suit of the crown, or the informer, or both, than of a cri- 
 minal proceeding : But that. v. iih respect to lines upon offending 
 parties, this being purely a criminal proceeding, the jurisdic-
 
 Jurisdiction of D. C. Criminal] confiscation and fine. 273 
 
 tion of the D. Courts was limited to 10/." A circular Idler to 
 Hie above effect was accordingly written to all the D. Judges on 
 1-2 May 1834. 
 
 Soon afterwards, another doubt was started by a D. Judge, as 
 regarded the construction of the 4 1st clause of the charier, and 
 of the 10th rule of sect. 2, taken in conjunction with the 25th 
 and 28th clauses of the charter just referred to. The 4 1st clause 
 directs, " That all crimes and oll'ences shall be prosecuted, and 
 all fines, penalties, and forfeitures, be sued for and recovered, 
 by information, in the name of the King's advocate :" But pro- 
 vides that *' the S. C. may, by rules of court, make more con- 
 venient provision for prosecuting before D. C. breaches of the 
 peace, petty assaults, and other minor offences of the like 
 nature." The lOtli rule of sect. 2, accordingly directs that in 
 all such minor offences, the D. Judges may take the complaint 
 from the parly injured, verbally or in writing, without any libel 
 or formality of proceeding being necessary. The doubt enter- 
 tained by the D. Judge was, whether, under the 4lst clause, 
 nn-f criminal prosecution, for an offence against the revenue 
 laws, were cognizable by the D. Court, unless prosecuted by 
 information in the name of the K. A. ; even though the punish- 
 ment, which might follow a conviction, should not be beyond 
 what the court was competent to award under the 25lh clause : 
 And the ground on which the I). Judge felt Ihis doubt was, that 
 offences against lae revenue laws appeared to him to be crimes 
 of greater magnitude than "breaches of the peace, petty assaults, 
 and other minor offences,"' and therefore fell within the prin- 
 cipal enactment, and not the proviso of the 4lst clause. The 
 S. Court, on this question being submitted, after referring the 
 D. Judge to the circular letter of 12 May 1834, as regarded the 
 distinction between confiscation and fine, proceeded to discuss 
 the necessity of prosecutions, in such cases, being instituted in 
 the name of the King's advocate. They observed, That where 
 the fine, penalty, or forfeiture, sued for, did not exceed tLe 
 sum of 10J., the case might, with perfect propriety, be consi- 
 dered to fall within the term "minor offences" in the 4 1st 
 clause of the charter, and might consequently be entertained Ly 
 Vie D. Court, under the 10th rule of sect. 2, without libel, or 
 
 18
 
 274 Jurisdiction of D. C. Confiscation and 
 
 other formality of proceeding ; that an offence against the 
 revenue laws was not, necessarily, " a crime of greater magni- 
 tude lhan breaches of the peace," etc., and, indeed, if unac- 
 rompanied by force, being mere infractions of positive prohibi- 
 tions, and not acts inherently wrong in themselves, would seem 
 entitled to be considered in a still milder point of view: That, 
 on the other hand, if the amount in question did exceed 10/., the 
 prosecution should be in the name of the K. A., whether it were 
 for a fine, or for a mere confiscation of property , that the dis- 
 tinction drawn by the S. Court between confiscation and fine 
 had proceeded on the ground that confiscation of property ille- 
 gally imported, or under any similar liability to forfeiture, did 
 not fall within the term "fine," as used by the 25lh clause, or 
 " punishment," as occurring in the proviso subjoined to the 
 28th clause ; that the words of the 41st clause were much more 
 comprehensive, directing not only that all crimes and offences 
 should be prosecuted, but that all fines, penalties, and for- 
 feitures) should be sued for, in the name of the K. A. ; words 
 which could not but include confiscations, as well as fines. L. B. 
 8, 9 July 1834. 
 
 The 1). Judge, to whom this letter was addressed, not feeling 
 satisfied on the subject, and considering that if confiscation and 
 fine were both included in one class as regarded the 4 1st clause, 
 they must also be so included with reference to the 25th and 
 28th clauses, applied to the Chief Justice for further explana- 
 tion, which was readily afforded him, and with which he after- 
 wards expressed himself perfectly satisfied. As the same diffi- 
 culty may suggest itself to other D. Judges, and the same ex- 
 planation may possibly be equally satisfactory, the writer is in- 
 clined to insert the substance of it here ; and the rather, because 
 it Null give opportunities for criticizing his view of the subject, 
 and correcting it if it should be fallacious. He could not, with 
 propriety, have blended it with the letter, officially addressed 
 to the D. J., because that letter had been agreed to by the three 
 Judges, whereas he must be exclu.Mvcly responsible for the fol- 
 lowing reasoning: "The charter imposes two different and 
 distinct limitations to the jurisdiction of the D. Courts ; or, to 
 k more correctly, it imposes a limitation and a condition to
 
 Jurisdiction of D. C. Confiscation and Fine. 275 
 
 that jurisdiction. The limitation is imposed by the 25th clause, 
 which prohibits the D. Courts from taking cognizance of offences, 
 punishable with death, etc., etc., or by fine exceeding 10/. ; and 
 this limitation is expressly extended, by the 28th clause 1 , to 
 'prosecutions for any offences, committed against the revenue 
 laws.' As regards confiscation of offending property, the S. C. 
 has considered that, as this was a proceeding in rein rather than 
 in personam, it did not come within the spirit of the words 
 4 any crime punishable by fine exceeding 10/., 1 as used by the 
 25th clause, or the word ' punishment,' as occurring in the 
 proviso of the 28th clause. Confiscation is not a ' fine,' nor is 
 it necessarily a ' punishment ;' for the property condemned may 
 not belong to the person accused of the offence : Nay, the ov ner 
 of it may often be unknown : in which case, its confiscation 
 would be impossible, if it could only bo obtained by means of a 
 criminal prosecution against the person. Therefore, a D. C., 
 in condemning property above 10'., is not trying an offence, 
 ' punishable by fine exceeding 10/.' The condition, imposed by 
 the 41st clause, that all offences shall be prosecuted, and all 
 fines, penalties, and forfeitures be sued for, in the name of the 
 K. A., except as provided for by the subsequent part of the 
 clause, is perfectly distinct from the limitation of jurisdiction, 
 as to punishment, by the 25th and 28 Ih clauses. Its object is 
 wholly different, the terms used are more comprehensive, and 
 it applies to the S. Court, as well as to the D. Courts. By keep- 
 ing this distinction in view, the difficulty felt by the D. Judge 
 will, it is hoped, disappear. The words, ' fines, penalties, and 
 forfeiture*,' in the 4 1st clause, do include confiscations, as well 
 as fines: but the terms of the 25th and 28th clauses do not in- 
 clude confiscations. There is nothing to prevent confiscations 
 and fines being included under one class, as regards prosecu- 
 tions by the crown officer, and being separated and distinguished 
 from each other, as regards jurisdiction of the D. Courts. The 
 limitation of jurisdiction, and the interposition of the K. A., are 
 two objects, so essentially differing from each olher, that there 
 is no reason why the limitation and condition must be considered 
 as necessarily co-extensive -, and if any reason did exist, it has 
 not been acted upon, for different terms of definition have been 
 
 18.
 
 27G Jurisdiction of D. C. Revenue., ciril or criminal. 
 
 used, and must be interpreted accordingly. So far from there 
 being any inconsistency in this distinction, it is consonant with 
 the known object of the charter, which was to give the D. Courts 
 the most extensive and exclusive original jurisdiction, in all 
 suits of a civil nature (within which category the S. C. consi- 
 ders mere confiscation of property, sinning against the revenue 
 laws, to fall), while it limited their jurisdiction in matters purely 
 criminal." L. B. 21, 22 July 1834. Whether the opinion here 
 given be a sound one, may be matter of discussion, as the writer 
 would wish it to be, if any doubt should exist. Like many 
 other questions of construction, it is perhaps of no great im- 
 portance, which way it may be decided, so that one uniform 
 mode of proceeding be ultimately recognized and established. 
 li may be observed, however, that it would often be a serious 
 inconvenience and loss to all parties, claimants as well asscizers, 
 if the question of confiscation or release of suspected goods were 
 made to await the holding of the next criminal session of the 
 S. C., whether on circuit or at Colombo 5 which it must do, if 
 prosecuted criminally, and the value exceeded 10/. 
 
 There was one other point, arising out of the letter of the 
 D. Judge, on which the Chief Justice gave his opinion: That 
 the lOih rule of sect. 2, following the 41st clause of the charier, 
 only declares that in the prosecution of the " minor offences, 1 ' 
 a libel or oilier formality of proceeding shall not be necessary; 
 but that Ibis by no means precludes the crown officer from pro- 
 ceeding before the D. Court in the more formal manner, if he 
 should deem it expedient so to do. 
 
 The question, whether the revenue jurisdiction, in general, 
 of the D. Co-arts, should be ranged on the civil or criminal side 
 of the courts, was again brought under consideration, of the S. 
 Court by the King's advocate, on a subsequent occasion. A D. 
 Court having decided that a prosecution for a fine or penally 
 must be conducted on the criminal side, the prosecutor appealed, 
 and the S. Court affirmed the decision in the follov, ing terms. 
 "The King's advocate has raised the general and somewhat 
 important question, whether all prosecutions for penalties, un- 
 der the revenue laws of Ceylon, should not be considered 
 as civil actions, like that class of suits in England brought
 
 Jurisdiction of D. C. Revenue, civil or criminal. 277 
 
 by the informer, and usually designated ' Qui tarn actions.' 
 In England, several distinctions have been made on this 
 subject, between statutes which are purely penal, those 
 which are purely remedial, and a third class, partly penal and 
 partly remedial. On some statutes, the remedy for their in- 
 fraction is by indictment, in others by action, in some by both : 
 And many acts of parliament, indeed, prescribe a specific mode 
 of proceeding. It appears very desirable, however, that one 
 uniform course of proceeding should be laid down for the 
 guidance of the District Courts of Ceylon in this respect. And 
 in determining what that course shall be, the Supreme Court 
 must be very much governed by consideration of the charter, of 
 the practice hitherto in force, and of the consequences to par- 
 lies, which the adoption of one or the other kind of proceeding 
 would produce. The 28th clause of the charier declares that 
 "all causes affecting ihe revenue, and all prosecutions for 
 the punishment of offences against Ihe revenue laws, shall be 
 cognizable by Ihe D. Courts, in the same manner as any other 
 suits or p oseculions : " And it afterwards provides that "no 
 .such prosecution, for any offence committed against Ihe revenue 
 la\\ , shall be cognizable by the D. C., where the punishment may 
 be of greater degree or amount, than the D. Courts can award on 
 prosecutions for other offences. 1 ' This clause makes an evident 
 distinction between civil 'suits, and criminal prosecutions. In 
 the former class, would be comprized actions for non-payment 
 of instalments by renters, for the recovery of rent 'reserved on 
 land or houses, for resuming possession of land, where the con- 
 ditions of the grant have not been complied with, and for all 
 other causes of complaint, which would form the subject of 
 civil actions between private persons. The latter class would 
 seem to comprehend proceedings against all persons, accused of 
 any of those transgressions of the revenue laws, whether acts 
 of omission or commission, which those laws have declared to 
 be penal ; in other words, on which the court is to inflict "pu- 
 nishment,' 1 in whatever shape, whether as fine, either to the 
 king, or to the informer, or to both; or as imprisonment, with 
 or without hard labour; or as corporal punishment. Even 
 supposing, therefore, that prosecutions for the recovery of pe-
 
 278 Jurisdiction of D. C. Revenue, civil or criminal. 
 
 Baltics were treated as civil actions, as regards the form of pro- 
 ceeding, the D. Courts would be limited in their civil jurisdic- 
 tion, quoad this description of action, to the sum of 10/. For 
 it would be quite impossible, in the opinion of this court, to take 
 a case, in which the fine to be imposed exceeded that sum, out 
 of the proviso of the 28th clause, merely by calling the pro- 
 ceeding a civil action. The crown or the informer might call 
 the penally claimed a debt due to the crown or to the informer ; 
 but, as regards the defendant, it would be, to all intents and 
 purposes, a "punishment" for an "offence against the Revenue 
 Laws.'' The S. C. possesses no original jurisdiction in civil ac- 
 tionsat all. If, therefore, these prosecutions for offences against 
 the revenue were treated as civil proceedings, all prosecutions 
 for penalties exceeding 10/. must either be abandoned, or they 
 must drop their character of civil suits and assume that of a cri- 
 minal proceeding, in order to give jurisdiction to the S. Court ; 
 a soil of amphibious character, which ought not to be given to 
 them for mere purposes of convenience. The Ring's advocate 
 indeed h;is urged that, by the charter, revenue cases form a dis- 
 tinct class of themselves. And that is true, as regards the sub- 
 ject matter of them ; and the same may be said of Matrimonial, 
 Testamentary, or any oilier class of cases, relating to particular 
 subjects. IJut the diclinclion between civil and criminal mat- 
 ters slill remains, and is forcibly pointed out in this clause of 
 the charter, by the respective expressions "causes affecting the 
 revenue," and "prosecutions for the punishment of offences, com- 
 mitted against the revenue laws. 1 ' Again, man> of the revenue 
 enactments substitute imprisonment at hard labour, in default 
 of pacing the penally imposed. It is scarcely necessary to say 
 that this judgment could not be passed on a defendant in a civil 
 action. The King's advocate suggests that this difficulty might 
 be got over, by suing for the penalty only, and disclaiming all 
 right to demand the alternative of hard labour. 1m t the ques- 
 tion would slill remain, whether an act or omission, which a 
 regulalion declares shall be \isited, incase of non-payment of 
 the fine. In imprisonment at hard labour, be not thereby marked 
 and pointed out as a punishable offence, and not mereh as the 
 ground of a debt, accruing to the King or the informer. >Vith
 
 Jurisdiction of D. C. Revenue, civil or criminal. 279 
 
 respect to the practice heretofore observed in this respect : 
 the appellant states in his petition of appeal, that "the prac- 
 tice prescribed by regulation (No. 9 of 1825), and which was 
 acted upon for a series of years," is in favour of civil proceed- 
 ing. There certainly appears nothing; in the regulation, to 
 warrant this assumption. And as far as Ihis court has had ex- 
 perience on the subject, the practice of former Provincial and 
 Sitting Magistrates' Courts would seem to be all the other way. 
 Tn some of the courts, indeed, the judges and magistrates ap- 
 pear to have leaned too much to the criminal proceeding ; find 
 to have imagined that every case, in vhich the King appeared 
 as the complainant, must be received on the criminal side of the 
 'Court, even though the claim was purely a civil one. Then, as 
 regards the consequences to the defendant, by considering the 
 proceeding as a civil or criminal one ; there appear very strong 
 reasons for inclining the court in favour of the latter. The 
 payment of stamps, if judgment passed for the crown, would, 
 in truth, be an increase of penally. I5ut as r. gards the sum- 
 moning of witnesses, this might operate sometimes as an abso- 
 lute bar to his making his defence. For the penally sued for, 
 would often raise the case to a class, which would put the ex- 
 pense of subpoenas quite out of Ihe reach of persons, sued for 
 breaches of revenue enactments, who are frequently common 
 coolies. It may be said that such persons mighl apply to defend 
 as paupers : Uut this court does not think that their defence, to 
 a prosecution for penalties, should be made dependant on the 
 contingencies, on which alone the indulgence to sue or defend 
 as a pauper depends. As a general rule, therefore, the court 
 feels disposed to say that all infractions of the revenue laws, on 
 which penalty, fine, or other description of punishment what- 
 soever is imposed, shall be proceeded against criminally. If, 
 however, the Ring's Advocate will point out to the court 
 any specific offence or offences, with respect to which an ex- 
 ception may be made, and which may properly be treated ci- 
 villy, the court will consider Ihe distinctions so pointed out. 
 \N ith respect to those cases, in which confiscation of properly is 
 the sole object, this court has already conveyed its opinion, by 
 the circular letter to the District Judges, of the 12th of May
 
 280 Jurisdiction S. C. cannot remit, if conviction legal. 
 
 1834, that confiscation is rather in the nature of a civil action, 
 than of a criminal prosecution. And that opinion the court 
 still retains." No. 98, Colombo, 16 Dec. 1835. On the nest 
 court day, 23 Dec., No communication having been made to 
 the court by the K. A., with respect to any lino of distinction, 
 tj be drawn in revenue prosecutions, it was ordered that the 
 judgment of the court should stand, as pronounced on the 
 iGlh instant. 
 
 The penally contemplated in this judgment, and which is 
 classed \\ilh (ine, or &(\*pr punithtne&t v must not be confounded 
 with the penal sum, or -penally 1 as ill's usually caiied, inserted 
 In recognizances, which, when forfeited, are properly sued for 
 by civil aclion ; as in ibc rase of any other description of bond or 
 obligation. L. C. 12, 16 Aug. 1834. 
 
 A person having been convicted by a D. Court, of having il- 
 legally removed arrack, contrary to th-j prociamalion then hi 
 force in the Randyan Districts, the arrack was confiscated, and 
 Ihe defendant 'A as lined according to the terms of the procla- 
 mation; but the fine exceeded 10/. On appeal, the S. Coust 
 ordered that the sentence of llie D. C., as far as it related ib 
 the fine imposed on the defendant, be set aside, and that the de- 
 fendant be discharged from imprisonment, on account of the 
 said fine: And llie D. Judge was referred to ihe Circular Letter 
 of 12 May 1834, as lo the distinction between line and confis- 
 cation, supra 272, 3. In that case, the D. Judge recommended 
 the defendant to the consideration of the Supreme Court, for a 
 remission both of the (ine and confiscation, on the ground that 
 he did not appear lo hive acted wilfully in contravention of the 
 law. On that part of Ihe subject,, the S. Court observed. That 
 it W( uhl gladly listen to the suggestions of the D. Judge, in fa- 
 vour of Ihe defendant, as regarded the confiscation; but that 
 the duly of the appellate court must or ought to be limited to 
 the inquiry, whether the conviction were legal, and supported 
 by the evidence; that in llie present case, it was impossible to 
 say that the defendant had not " removed arrack from one part 
 of the Kandyan Pr<>\ inccs lo anolher. without Hie requisite li- 
 cense," or that he had nut therefore been brought within the 
 proclamation , that as the prcseculion had been instituted,
 
 Jurisdiction of D. C., co-operative with each other. 281 
 
 and pressed to a conviction, the S. Court was bound to affirm it, 
 as far as it fell within the jurisdiction of the D. Court, leaving 
 it to the defendant to apply for remission to the Governor. 
 No. 170 Kandy (criminal), 24 Sept. 1834. Similar applications, 
 it may be observed, have frequently been made to the S. Court, 
 for remission or mitigation of penalties or confiscations; the 
 answers to which have necessarily been, that if the conviction 
 be legal, such remission is entirely out of the province of the 
 S. Court, and that application can only be made to the execu- 
 tive government. The S. Couri \\ould no doubt recommend 
 a case to the favourable consideration of government, if cir- 
 cumstances appeared to call for such recommendation : But to 
 attempt to interpose judicially in such cases, by way of remis- 
 sion, would be to interfere with the rights of the crown, and 
 consequently to provoke that collision with the executive ad- 
 ministration, which the secretary of slate, in the instructions 
 accompanying the present charter ; declared himself so anxious 
 to prevent. 
 
 We have already observed on the anxiety, displayed by those- 
 who framed the charter, to prevent the possibility of any con- 
 flict of jurisdiction between the D, Courts themselves, as well 
 as between any one of these courts, and the S. Court; supra, 
 p. 253, 4. Nor have any instances occurred, within the writer's 
 knowledge, of any such usurpation or encroachment. In one 
 case, indeed, a plaintiff got judgment in one court, and took it 
 at once to another, from whence he obtained execution ; but it 
 was presumed that the circumstance of the judgment having; 
 been pronounced in another court, must, by some means, have 
 ^scaped the notice of the court, which issued the execution : 
 Supra 162. It is only necessary, therefore, to point out those 
 cases, in which I). Courts have been called upon to co-operate 
 with each other, ani which arc therefore distinguishable at a 
 glance from obtrusive or uncalled-for interference. Thus, in 
 the case arising out of the Mutiny Act, fully reported supra, 95 
 et sequ., where a warrant of arrest, issued out of the D. C. of 
 Colombo, was transmitted to the D. J. of Kandy for indorse- 
 ment and execution; and the latter court, finding that it was 
 rendered powerless, by the terms of the act. to enforce the war-
 
 282 Jurisdiction j S. C. refused to interfere icilh A'. A. 
 
 rant, ordered the defendant to be discharged ; the S. C. consi- 
 dered that it was incumbent on the D. C. of Kandy to inquire 
 into the legality of its powers, -which it was called upon to exer- 
 cise, before it ventured to do so ; and that the discharge of 
 tin 1 defendant was no interference in the jurisdiction of ano- 
 ther D. C., but merely a decision, and a correct decision, on 
 the extent of its own jurisdiction. With respect to the exami- 
 nation of witnesses in a distant district before the D. J. : As ob- 
 served by Mr. Cameron, " This course is no violation of the 
 system of exclusive local jurisdiction, established by the char- 
 ter $ it is sultiirn'ient to jurisdiction, but is no part of jurisdic- 
 tion." Supra 133, 4. And the same observation may be applied 
 to other auxiliary acts. It is scarcely necessary to observe that 
 all acts, done by one D. C. in furtherance of the proceedings of 
 another, are done not by order of the court requiring assist- 
 ance, for all the District Courts, as we have already seen, are 
 co-ordinate, and have no power to issue mandates to each 
 other 5 but as the ac!s of one independent court, in aid of ano- 
 ther independent court, in common obedience to the rules go- 
 verning the w hole machine, of which each forms a part. 
 
 The writer of these notes does not recollect any case, in 
 which the jurisdiction of the Supreme Court has come in ques- 
 tion, except incidentally, as regards the issuing of injunctions, 
 supra, 229, the power of remitting penalties, 280. or as it mav 
 impliedly be involved in the consideration of the different 
 branches of the jurisdiction of the D. Courts. The following 
 decision of the S. Court, as to the propriety of ils interference, 
 in a particular case, with the duties of the law officers of the 
 crown, and bearing also on the general question of attempts to 
 exercise jurisdiction, without the certainty of possessing legal 
 authority to support and enforce it. may not be out of place 
 here. A D. Judge, having heard by private information, that 
 a letter, accusing him of partiality, had been addressed to the 
 King's Advocate, applied to that officer for a copy of the letter. 
 The K. A. declined complying with the application, on the 
 ground that ' no one could demand the publicity or inspection 
 of a letter, addressed to him in his oflicial capacity, without 
 the written command of the governor, authorising him to pro-
 
 Jurisdiction ; S. C. refused to interfere with K. A. 283 
 
 duce it ; that if the object of the application were to institute a 
 legal proceeding, lie, the K. A., was the proper authority to 
 decide on the expediency of it ; and that if any other mode of 
 vindication were contemplated, he might, by the unnecessary 
 production of the lelter, find that he had made himself acces- 
 sory to a breach of the peace, or some more serious mischief." 
 The D. Judge then applied to the S. Court, to call on the Ring's 
 Advocate for the production of the letter, in order that, if it 
 should be found lo contain the alleged accusation, ihe judges 
 might call Ihe author of it before them, to ascertain \vhelher 
 the imputation were founded in truth, or whether it were the 
 rash and intemperate effort of a parly in a case, wantonly to 
 assail and impugn the integrity of the judge. The following is 
 Ihe substance of the answer, which Ihe S. Court directed to be 
 returned to ihe I). Judge by Ihe registrar. 
 
 " The Judges of the S. C. are anxious to assure you, that they 
 will ever be ready and willing to afford Ihe D. Judges that pro- 
 tection, which they have a right to expect from the Supreme 
 Tribunal of the Island. But in order to render such protection 
 real and efficacious, care must be taken that Ihe authority of 
 the S. C. be interposed in those cases only, in which such inter- 
 position can legally and constitutionally be exercised; in which 
 the end proposed is distinct and obvious ; and in which the 
 means to be employed are adequate for the attainment of that 
 end. Any other attempt at interference by the S. C. can only 
 have the effect of diminishing the respect due to the court itself, 
 without benefit to the person, in whose behalf the interference 
 may have been attempted. "VVilh respect lo Ihe application now 
 made by you, the Judges much regret to be obliged to state, that 
 they feel great difficulty on all those points. They very much 
 doubt, in the first place, whether they would be legally justified 
 in calling upon the King's Advocate for the production of a 
 letter, received by him in his official capacity, from a defendant 
 in a case before a I). C., or indeed from any other quarter, un- 
 less the production of such letter were necessary, in the course 
 of some judicial inquiry. H. M. Advocate would probably com- 
 ply with such requisition, as a matter of courtesy towards the 
 King's Judges : But if he w ere to refuse, it may well be ques-
 
 284 Jurisdiction:: S. C. refused to interfere with K. A. 
 
 tioncd whether the S. C. would have the right to enforce it 
 And that court would act wilh very little regard for its own 
 dignity, or the maintenance of its real authority, which should 
 ever make a demand, a compliance with which was optional 
 wilh Iho person from 'whom it was made. There may, how- 
 ever, he reasons, which would and ought to induce the K. A. 
 to withhold the letter in question. Exercising the very exten- 
 sive powers which he docs, as to public prosecutions, he may 
 probably consider a letter from a defendant in a criminal case 
 a privileged communication, to b? exhibited to no person, and 
 in no court, unless legal proceedings were to be instituted, and 
 a judicial decision given, compelling its production. That the 
 contents of a letter, addressed to the crown officer, should have 
 obtained publici'y at all, seems somewhat singular : but as the 
 purport of it has been communicated to you, the same source 
 of information, it may be presumed, will furnish you wilh the 
 means of initiating any measures which you may think it right 
 to adopt, without the intervention of the S. C., in a way so ex- 
 iraordinary and unprecedented. But supposing that the Judges 
 \\ ere to make this requisition on the R. A., and that oflicer were 
 to comply wilh it, by the production of the letter, the S. C., 1 
 am directed to stale, would still feel itself in equal difliculty 
 with respect to the end proposed, and ihe mode of attaining it. 
 The S. C. could only call the author of the letter before it, as a 
 defendant in a criminal prosecution : It could only ascertain 
 whether the supposed imputation be founded in truth, or in 
 rash and wanton aspersion, by means of a trial at the bar of the 
 court. This would be, on the first blush of the proposition, a 
 direct invasion of the discretionary authority vested by the 
 charier in the K. A., of deciding on the propriety of a prosecu- 
 tion. The S. C. must take it for granted, unless the contrary 
 be distinctly shewn, thai Ihc crown officer would, of his own 
 motion, commence a prosecution, if the case required such a 
 proceeding. If indeed a parly, more especially a gentleman 
 holding any judicial oflice. \\ere to complain to the S. C. that 
 the K. A. had refused to prosecute in a case in which public 
 justice, or the character of the complainant, demanded a prose- 
 cution, a possible but very improbable contingency, it would
 
 Jurisdiction of S. C. m transferring cases. 285 
 
 then be for the Judges to consider what steps should be taken 
 to prevent a denial of justice. Such a case, however, I am to 
 observe, is very far from being established in the present in- 
 stance. The appeal which you make to the S. C. is not, as the 
 Judges understand it, against any refusal by the R. A. to insti- 
 tute a prosecution, but against his declining to furnish you with 
 evidence, on which to found a prosecution ; or which may 
 enable you to take such stops, lo use your own expression, as 
 you may deem necessary. Whether the X. A. be justified, or 
 not, in withholding the document in question, must depend on 
 the terms of it, the circumstances under which it was received, 
 the relative situation of the writer, and on many other points, 
 on which that oflicer must be allowed to exercise his own dis- 
 
 
 
 cretion. The S. C. would he slow to condemn the reluctance 
 of the K. A. to produce a letter, which, it must be presumed, 
 was addressed to him in the confidence due to his official situa- 
 tion. 1 ' L. 13. 4, C Nov. 1835. 
 
 It still remains for us to mention those few instances, only 
 two in number, in which the S. Court has felt itself called upon 
 to exercise the power, vested in it by the 36th and 38ili clauses 
 of the charier, of ordering the transfer of suits or prosecutions 
 from one D. Court to another; as also those instances, in which 
 such transfer has been applied for, and refused. In one of the 
 first-mentioned cases, we have seen that the suit for probate of 
 a will was transfer reel, from the district in which the testator 
 w as domiciled, to that in which the executors, witnesses, and 
 heirs, resided; supra 7. The other case was a charge of rob- 
 bery, made before the D. Court of Hambantotte ; but it appear- 
 ing that the alleged offence had been committed within the dis- 
 trict of Alipoot, the D. Judge, following the test of criminal 
 jurisdiction, prescribed by the 25ih clause of the charter, 
 directed the complainant to institute proceedings in the D. C. of 
 Alipoot. A representation being made lo the S. Court on the 
 subject, and it appearing, on inquiry, that the parties accused, 
 as well as the complainant, were resident in Ilambantolte, and 
 that it would be for the convenience of all parties, that the com- 
 plaint should be inquired into in the latter district : It was ac- 
 cordingly ordered, That the case be resumed and proceeded in
 
 286 tion of S. C. in transferring cases. 
 
 In the D. C. of Hambantotle, in like manner as if the offence 
 had been alleged to have been committed within that district. 
 L.B. 7, 11 Jan. 1836. And see p. 266. See also p. 260, 1, where 
 the S. C. observed, that if the choice of the D. C. (supposing a 
 choice to exist) appeared to have been made with a view to 
 produce vexatious interference, the Judges would not hesitate 
 to exercise their power of transfer. 
 
 In the following instances, the S. Court refused to transfer 
 the cases from the D. Courts, in which they had been respec- 
 tively instituted. A clerk of the custom-house of Manar, having 
 been dismissed from his situation, was desirous of prosecuting 
 the Cangany and Peon of that establishment, for a conspiracy 
 in misrepresenting his conduct to the government agent. Having 
 instituted, or being about to institute, proceedings in the D. C. 
 of Manar, he applied to the S. Court to transfer the case to some 
 other D. Court, out of the limits of the Northern Circuit, on the 
 grounds that the D. Judge of Manar was a material witness for 
 the complainant , that the interpreter was prejudiced against 
 him ; and that the courts of all the Northern districts were in- 
 fluenced by the government agent. The S. Court returned the 
 following answer to this application : First; The circumstance 
 of the D. Judge being a material w ilness for the petitioner forms 
 no objection to his taking the preliminary informations ; since, 
 from the nature of the charge which it is proposed to establish, 
 the trial must ultimately take place before the S. Court : (It may 
 be observed here, that if a party accused w ere to complain that 
 the D. Judge w as a w itness on the part of the prosecution, to 
 prove, not merely what took place before the D. Court, but 
 facts connected with the prosecution ilself, it would be very 
 proper that the inquiry should lake place in another D. Court : 
 And in such case, the U. Judge himself, if he felt his evidence 
 to be material, might probably wish not to sit upon the case. 
 But it could scarcely be permitted to a complainant to transfer 
 the inquiry to another district, by his mere assertion, that he 
 intended to call the D. Judge as a witness.) Secondly, If the 
 interpreter of the D. Court cannot be trusted to give a fair 
 translation of the evidence, and Hie petitioner can satisfy the 
 D. Judge of that fact, another person should be appointed to
 
 Jurisdiction of S. (\ in transferring cases. 287 
 
 that oflice ; but the Supreme Court will not interfere in such 
 dismissal or appointment. Thirdly, Even if the S. Court could 
 believe that all the Northern District Courts were under the in- 
 fluence of the government agent, as alleged by the petitioner, 
 it would still he out of the power of the S.Court, to transfer the 
 case out of the limits of the Northern Circuit. L. C. and Petn. 
 Book, 10 Oct. 1835. 
 
 As regards the last of these three grounds of decision, it is to 
 be observed, that the power, conferred by the 36th and 38th 
 clauses, is " to transfer any cause or prosecution, depending in 
 any one D. Court \\ilhin any circuit, to any other D. Court 
 within the same circuit." The 46th clause gives the Supreme 
 Court the same jurisdiction within the limits of the district of 
 Colombo, as on the circuits ; which, consequently, includes 
 authority to transfer cases from one of the districts, into which 
 the entire district of Colombo, as distinguished from circuit, is 
 sub-divided (sup. 255 et seq.) to any other of such sub-divided 
 districts. But no case, it is apprehended, can be transferred 
 from one circuit to another; or from any circuit, to a district 
 not compri/ed within any of the circuits; or from any such latter 
 district, to a district within any of the circuits. The writer of 
 these notes has already had occasion (1) to express his opinion, 
 that it would be very desirable that this power of transfer should 
 be given in more unlimited terms, as regards the district, to 
 which such transfer may he made. It has more than once" hap- 
 pened that the ends of justice would have been furthered, and 
 the convenience of all parties consulted, by a transfer of pro- 
 ceedings to another court, which the S. Court has been precluded 
 from ordering, by the circumstance of the two districts, though 
 adjacent perhaps to each other, not being within the same cir- 
 cuit. There seems no reason, why the S. Court should not 
 have power to remove any suit or prosecution, when satisfied 
 that the justice of the case requires it, whether the courts, from 
 and to which such transfer would be made, were within the 
 
 (1) In the suggested amendments of the charter, which he submitted to 
 the Secretary of State in 1836; a copy of which suggestions, he transmitted to 
 the Judges of the S. C. from the Cape of Good Hope.
 
 288 Jurisdiction of S. C. -'n transferring casc.i. 
 
 same, or different circuits ;. or whether both, or one, of those 
 courts were within the district of Colombo. 
 
 In a case, in whieh Ihc cause of action arose in district A., 
 and the defendant resided in district B., so that the plaintiff 
 would have had his option of bringing it in either, the proceed- 
 ings, which had been commenced in a former Provincial Court, 
 were transferred to the D. C. of A., to which transfer the plain- 
 tiff assented, or at least expressed no dissent at the time, and 
 the case was proceeded with, one step, in thai court. After- 
 wards, however, the plaintiff applied t) have the case trans- 
 ferred to the court of B., but without shewing any special ground 
 for that application. The S. Court considered that as the 
 plaintiff had made his election, and whether that election were 
 pronounced by the original institution of the suit, or by assent- 
 ing to its transfer, made no difference in this respect, he could 
 not now be allowed to change his mind, and to remove (he case 
 to district B., without at least some stronger ground for such 
 removal, than the mere circumstance, that cither court was 
 competent to entertain it. L. B. 5, 15 June 1835. Still Jess 
 can a party be allowed to lake his chance of a favourable deci- 
 sion, and after a judgment against him, to object to (he court by 
 which it has been passed. Petition Book of 1834, p. 105. In 
 that case, it was the defendant who made this tardy objection : 
 but the principle would be the sami 1 , whether such objection 
 were attempted to be made by a plaintiff, who had selected the 
 D. C., or by a defendant, who had assented, by his silence, to 
 that selection. In one case, the S. C. considered that the resi- 
 dence of the witnesses did not form a sufficient ground, for trans- 
 ferring a case to the district in which they resided. Petition 
 Book of 1834, p. 190. And certainly such ground would not, 
 of itseif, be sufficient to satisfy the S. Court, in the terms of the 
 ,3Glh clause, * ; that there was reason to conclude that justice 
 would not probably be done in the D. C. in which the suit had 
 been commenced.' In the testamentary case above-mentioned, 
 ]). 7, the transfer was for the convenience of all parlies, and no 
 opposition was made to it : Justice, therefore, would not pro- 
 bably have been done, so effectually, in the court where the 
 testator died. And the same reasoning applies to the prosecution 
 for the robbery ; sunra 285.
 
 289 
 
 JURORS. 
 
 Europeans, how summoned Burgher lists only altered by order of S. 
 ('. How summoned from districts within the province of another Fiscal- 
 How chosen when parties disagree. 
 
 1. The trial by Jury h;>.'s now been so long in use in Ceylon, 
 having been established for nearly thirty years in the Mari- 
 time and for six years in the Kandian districts, the inhabi- 
 tants of which latter country may be said indeed to have been 
 already familiar with it, under the name of Assessors, that no 
 general observation on this subject seem necessary, unless, in- 
 deed, to bear testimony, as the writer of these notes has on 
 all occasions been anxious to do, to the conscientious, intelli- 
 gent and independent discharge of their important duties, by 
 all classes of Jurors in Ceylon. 
 
 As regards the beneficial effects of trial by Jury on the 
 native public, he could but repeat the remarks he has already 
 > offered on the subject of Assessors, Sup: p. 3S, 9. It only re- 
 , mains, therefore, to mention the few points which have been 
 brought to the notice of the S. C. on the subject of Jurors. 
 2. The course prescribed for summoning Jurors under the 
 former Charters having been found adapted for the objects in 
 view; the same couise is rihected to be followed by the 1st 
 rule laid down by the S. C. for the exercise of its criminal 
 jurisdiction on the first introduction of trial by Jury into the 
 Kandian districts. The Fiscal of the Central Province applied 
 for instructions as to the selection of European Jurors at Randy, 
 and whether Military Officers could be summoned to serve in 
 that capacity. The S. C. returned for answer, that the course 
 which had always been adopted in the Maritime districts was 
 to return to the court a list of all, being British, not being 
 Military men, resident at the place at which the sessions were 
 held. If when a trial took place requiring an English Jury thetc 
 thould not be a sufficient number, the deficiency was 
 
 ia
 
 Jurors hoix summoned. 
 
 frpm the officers quartered at the p1a?e, and if there should 
 Ptill be an insufficient number, the noncommissioned offic rs, 
 or even the privates would be resorted to, in order to make 
 out the requisite panel, as had sometimes happened at " Gal'.e 
 and at J.iffha. " L. B. 26th November, 2d December 1833. 
 The Fiscal was afterwards informed that the S. C. had in ac- 
 cordance with its usual practice abstained from directing a British 
 Jury to be summoned previously to the sessions, in order that 
 by wni'.ing till a day was fixed for trial of the only case in which 
 they would be required they might be spared any attendance 
 which was not absolutely indispensable. In answer to a ques- 
 tion by the same Fiscal, whether, as there was no case in the 
 calendar in which the defendant was a Burgher there would be 
 any necessity for summoning the Burgher Jurors, most of whom 
 were clerks in the public offices at Kandy and other Towns 
 in the Kandian districts; the S. C. observed, " That it by no 
 means followed because there was no case in the calendar, in 
 which the prosecutor or prisoner or both were of that class, 
 therefore the attendance of the Burgher Jury should be ab- 
 solutely dispensed with, that it had always been found extremely 
 convenient, where a native prosecutor and a native prisoner 
 were of different castes, to have recourse to a Burgher Jury, 
 (neutral class) most of . them being conversant with the native 
 languages, by whom justice would be belter, or at least less 
 Ruspectedly done between the parties, than if the Jury were 
 to be selected from the class either of the prosecutor or of 
 the piisomT, or indeed from any of the native castes; but 
 that as the S. C. was unwilling to cause any unnecessary 
 inconvenience, whether public or private, the Fiscal was authorized 
 to dispense with the attendance of Burgher Jurors who were not 
 resident within the Town o( Kandy or its immediate vicinity, 
 and that even with respect to those who did reside within those 
 limiis their attendance would not be insisted on, unless specially 
 called f(.r, of which due notice would be given." L. B. 24th, 
 SOth December 1833. It is to be observed that in all the 
 Jdavidme districts the Burgher classes being much, more
 
 Jurors how chosen* 291 
 
 numerous than at Kandy, a Burgher Jury is constantly in attendance 
 during ihe criminal sessions. 
 
 3. The several lists of Jurors in their respective classes 
 as approved of and established by the S. C. can only be 
 attended, whether by the additiou of new names or by 
 withdrawing any of those contained therein with the sanctioa 
 and by order of that court. And on one occasion it was de- 
 cided that a native Juror could not entitle himself to be 
 placed in the Burgher list by assuming the European dress, 
 Petiiion book or' 1833 p. 149. 
 
 4. We have already had occasion to observe on the distinc- 
 tion between the division of the Island into circuits and dis- 
 tricts, as regards the administration of justice, and into pro- 
 vinces as regards revenue matters, Sup. 239, 267. As the 
 division into circuits does not coincide with that of provinces, 
 and as the duties of Fiscal are performed by the Government 
 Agents, of whom there is one over each province it must ne- 
 cessarily happen that some districts within the respective cir- 
 cuits do not fall within the Fiscal's Jurisdiction, or of the Agent 
 acting as Fiscal for the place where the sessions of th 
 S. C. is held on circuit. Thus the Districts of Seveu 
 Korles, and that of Four Korles are within the Western Pro^ 
 vuiee, though they are comprised in the Eastern Circuits. In. 
 these and similar cases the Jurors are summoned by mandate 
 from the S. C. d.n-cted to the Fiscal of the province within 
 which each District is situated; for no other Fiscal would 
 possess ihe requisite knowledge or indeed the requisite autho- 
 rity to summon them, L. B. 23th October, 3rd November 
 1834. The names of Jurors summoned from districts so si- 
 tuated must be transmitted by the Fiscal or Deputy Fiscal 
 who summons them to the Fiscal acting at the sessions, for 
 which their presence is required, in order that the names may 
 be included in the lists returned by the latter officer to the 
 S. C. at the opening of the sessions, L. B. 20, 27, January 
 2d 1836. 
 
 5. The 3d Rule for regulating the proceedings of live S.
 
 292 Randy. 
 
 C. in its criminal jurisdiction, provides that if the Crown 
 officers and the prisoner's Counsel cannot agree upon a class 
 from which the Jury shall be chosen, the Judge will decide 
 upon such Jury, as he may think most likely to give an impar- 
 tial verdict in the case. On the occasion of the approach- 
 ing trial of certain Kaudians for high treason, this difficulty 
 of agreement occurred, as indeed in a case of that nature might - 
 naturally be expected. The S. C. before whom the matter 
 was brought at Colombo previously to the sessions being opened 
 at Kandy, intimated to the parties that, in the event of i(s be- 
 coming necessary for the Court to decide on the class from 
 which the Jury should be summoned, the first class list of 
 Colombo Native Jurors would be joined to the list of the 
 same class of Kandian Native Jurors, from which united list 
 a Jury must be struck before the Judge who was to hold 
 the sessions. Afterwards, however, a list of Jurors, partly Eu- 
 ropean, partly Native, was agreed to by the King's Advocate 
 and the Proctor for the prisoners, and an order was issued to 
 summon the persons named in that list who accordingly sat 
 together, without any difficulty or objection on their part. Cri- 
 minal minutes. Colombo 3 1st December 1834. 
 
 KANDY. 
 
 Notes of Sir J. D'Oyley and Mr. Sawers. Paragraph 1. [A] Unsettled 
 state of Kandyan Law. Par: 2. Lands and Tenures 3. Service Tenure 
 and when due 4. Rajekarea and when commuted id. No prescriptive 
 right by old law id. Different kinds of Lands, enumerated. Paragraphs 
 5 to 35. Ninde Game Tenures and services enumerated, 11, its sign. 
 Crown service abolished in 1832. Services to " Ninde " proprietors re- 
 erved, 29. Their remedy against servants refusing; two cases of eject- 
 ment similarly with Roman Dutch Law, 22. 23. Rules of inheritance to 
 Land 36. Owner of Land may dispose of it away from the heir and by 
 the old Kandian Law, according to Sir J. D'Oyley without deed, 37 Others 
 hold a deed necessary, expressing cause of dibherison and even consent by 
 the heir; cases contra 38 and 39 But such transfers to be strictly watched, 
 
 A, The reader is requested to observe that, throughout th remainder of these Noti 
 the reference, as well from the Extracts at the beginning of the several subjects as from 
 the text, will be, not the Pages, but to the number of the Paragraph. The reference! 
 to tU* Titles previous to tliU of " Kandy " will continue to be given to the Pages.
 
 Randy. 
 
 and if no reason assigned suspicion arises 40 its sign Condition of assis- 
 tance must be strictly fulfilled, 42 Its sign compensation for assistance, 
 when Deed informal, 45 Donations or bequests especially for assistance, 
 revocable at pleasure, but not absolute sales, 46 Of several transfers which 
 preferred, id Result of the dicta and decisions, 47 Estate of intestates 
 how it descends: rights of widow and how limited, 48 Late case on this 
 subject, 49 The rights with reference to issue, 50 Elow forfeited, 51 El- 
 dest son no preference, 52 Rights of daughters, unmarried or married in 
 Beena or in Deega, 53 to 61 How deega married daughters may keep 
 up her connexion with and claims on paternal property, late case on this 
 point. 57, 58 How rights of daughter forfeited, 62 They must accept 
 Husbands chosen for them, 63 Rights of grand children, greatgrandchild- 
 ren etc : 64 Of an only daughter of deceased brother or Beena married 
 sister, 65 Of issue of authorized intercourse, 66 Succession to mother's 
 Estate, 67 Chiidren of several beds, division amongst equally, 68 Rights 
 of issue of two or more brothers married jointly, 69 and sign Right of 
 son how effected by Beena marriage, 75 Only adoption, one of his 
 family, 76 or by becoming a Priest, 77 Right of children by a wife of 
 inferior caste, 78 who entitled, where no issue, 79 Sister's son or Brother's 
 daughter, 80 Is the husband heir to his wife ? 81 Mother heir to her 
 children, 82 Wife dying intestate. 83 Rights of the whole and half blood, 
 84 and sign Maternal cousins succeed before paternal, to maternal Es- 
 tate, 90 Rights of sons of several brothers to uncle's property Children, 
 of two brothers or of two sisters, nearer of kin to each other, than 
 those of a brother to those of a sister, 91 Rights of certain relations 
 when destitute, 92 to 95 Distinction between heriditary and acquired 
 property, 96 Father how far heir to Vis children 97 Rights of cousins 98 
 Father's lands to mother's family in default of Paternal relations 99 Title 
 deeds etc: follow the Land who incapable of inheriting, 101 Ru'.es of suc- 
 cession to moveable property : rights and liabilities of widow and children, 
 102, 3 and 4 of parties' brothers, sisters, and others 105 Half blood 
 postponed to whole, 106 Wile's personality how divided 107, 8 When 
 property goes to the Crown . 109 How acquired property of unmarried 
 daughter, intestate should descend, conflicting tables, 110 Rights of mo- 
 ther to children's acquired property, 111 Property of unmarried woman, 
 ]12 Of concubines, 113 Liability of personality, children and relation* 
 for deceased's debts, 114, 5, 6 of husbands and wives for each other's 
 debts, 117 How far separation puts an end to claims and liabilities 
 118 Wherr parent liable for child's debt, 119 On guardianship: what 
 relations entitled to, 120 Rights of guardians, 121 Liabilities of, 122 
 When heirs to their wards, 123 Appointment of Guardian by order, 124 of 
 adoption, rights of inheritance, 125 Must be of the same caste, 126 and 
 publicly declared, 127, 8. 9 Good consideration for a deed, irrevoca- 
 ble, 130 On deeds etc: form of imprecation, 132 Where rather records 
 of the tronsaction than actual transfers, 133 Attestation a formerly re- 
 quired, 134 Execution, signature not absolutely necessary, 135 Delivery 
 to Grantee, 136 Invalid if written by Grantee, 137 Whether attesting
 
 294 Kandy Notes of Sir J. D'Oylcy Sf Mr. Sowers. 
 
 witnesses must be present? 138 Form of bequest, when no deed, 139 On 
 debts, contracts and mortgages: borrowing with or without writing, 1 40^- 
 Security how usually given, 141 .Mortgage, different kinds in use, 142 Con- 
 sent of heirs, 143 Joint heir can only bind his share, 144 Only rightful 
 owner can mortgage, 145 When widow may mortgage, 146 Rate of in- 
 terests, when mortgage, 147 Premium sometimes exacted, 148 Loans of 
 grain, on what terms, 149 Debtors dying, heirs liable for principal; not 
 interest, 150 Mortgagee, preferred Rajtkarea, 151 Creditors power over, 
 and remedies against Debtor, by old Law, 152, 3 Priority in cases of 
 insolvency, 154 Modes of Law Extorting payment, formerly in use, 155, 
 fi On majority age of, incapacities and privilege of minors, ISff to 162 
 Extent to which these notes on Kandyan Law may ba considered as autho- 
 rity, 163 Refereace to other titles, 164. 
 
 1. If this title were to be limited to the cases arising out 
 of the Kandyan districts, and which have been decided by the 
 S. C since the promulgation of the new Charter, its contents, 
 as may be supposed, would be comprized within very narrow 
 limits, but it would be unpardonable, and almost indeed im- 
 possible for any one to touch on the laws of Kaudy, especi- 
 ally as regards land and inheritance, without bringing to the 
 notice of his reader, the memoranda, respectively made by the 
 late Sir John D'Oyley and by Mr. Sawers on these subjects, 
 and bequeathed by those gentlemen to their successors in the 
 Court of Kandy. The notes of Sir John D'Oyley touch on a 
 variety of subjects ; they give an account not only of the lands 
 and tenures of the Kandyan districts, the substance of which 
 we shall presendy avail ourselves of, but also of the consti- 
 tution, police and division of the Kingdom of Kandy, of the 
 different classes of inhabitants and their respective duties, of 
 crown and temple villages, of the mode of administering- jus- 
 tice and of the jurisdiction exercised by the great Court and 
 by the respective Headmen, of crimes and punishments and of 
 the different kinds of oaths in use in judicial proceedings. But 
 though all these subjects are historically curious and interesting, 
 and though it may sometimes be highly useful to refer to Sir 
 John D'Oyley's notes on these subjects in the course of judi- 
 cial investigation, they are not of a nature to furnish materials 
 tor a book of mere legal reference, more especially when it is
 
 Kandy Notes <j Sir J. D'Oyley Sf Mr. Sawers. 295 
 
 considered that the Kandyan institutions, as relating to most of 
 the subjects above enumerated, have been either entirely abro- 
 gated or very much modified by the British Government. The 
 following passage, under the head "institutions and customs," is 
 important, as shewing the state of the law, if indeed mere 
 traditionary custom applied or not to each cas? which presented 
 itself .according to the pleasure of the sovereign, can be called 
 by that name, belore the Kandyan Provinces became amenable to 
 British Courts of Justice : " The Kandyans have no written 
 laws, and no record whatsoever of judicial proceedings was 
 preserved in civil or criminal cases. In cases of land only 
 written decrees called " Sittv," and, if decided by oath, the two 
 * Dim Stilus," were delivered to the parly, to whom the Land 
 was adjudged, and continued as title deeds in his family. There 
 was, therefore, nothing to restrain the arbitiary will of the 
 Judge, and nothing to guic'e the opinion of the Sovereign, Judge 
 and the Chiefs, but tradition and living testimonies ; and for 
 want of written authorities the following outline of those piinci- 
 pal institutions and customs which seem to be most generally 
 acknowledged and sanctioned by precedents and existing prac- 
 tice, will, 1 fear, le imperfect and liable to many errors." 
 
 2. The doubt which Sir John D'Oyley here expresses as to 
 the accuracy of the account he is about to give must naturally 
 be entertained as regards the extracts which we are going to 
 avail ourselves of, whether from Sir John D'Oyley's notes or 
 from those of Mr. Sawers, and such must be ever the case 
 where laws rest on mere oral tradition, liable, as such tradition 
 must constantly be, both to unintentional mistakes and wilful 
 perversion. For though in every country the common or un- 
 writu-ri law, as distinguished from the written or Statute law, 
 must be founded originally on tradition, still it is impossible that 
 a country can arrive at any great degree of civilization, withr 
 out such customary law being reduced to writing, either in the 
 shape of a code bearing the stamp of Legislative authority, or 
 ot a compilation by persons whose knowledge and station im- 
 part the weight of authenticity to it, or of a series of Judicial
 
 298 Kandy Lands fy Tenures. 
 
 decisions, by which the principles of the traditionary law are 
 fecognized and established. To Sir John D'Oyley and Mr. 
 Sawers are certainly due the credit of having first attempt* 
 fed to reduce the principles of Kandyan law to some shape, 
 by the second of the three processes just referred to. And 
 imperfect and uncertain as these compilations necessarily and 
 avowedly are, they furnish a foundation upon which it may 
 reasonably be hoped will arise, by degrees, a solid and well con- 
 structed system of recorded decisions by which the law of pro- 
 perty in the Kandyan districts may be as clearly ascertained and 
 laid down as in any other part of the Island. Neither of those 
 collections of notes, it is believed, has yet been published. 
 
 3. The subject on which we shall refer most largely to the 
 notes of these two gentlemen, is that of inheritance, and first 
 as regards the right of succession to landed properly. Among 
 other sketches, Sir John D'Oyley gives a brief description of the 
 tenures by which Kandyan lands were held, and of different 
 hinds of land in those provinces, centaining definitions and ex- 
 planations which cannot fail to be highly useful in the investigation 
 and decision of cases relating to lands there situated; and though 
 the se'rvices formerly due to the Crown, in respect of the Tenure 
 of Lands, have been given up and generally abolished by Order 
 in Council of 12, April 1832, still it is often necessary for the 
 decision of questions respecting land to take into considertion the 
 tenures and conditions by which such land was originally holden, 
 and on which therefore it must be presumed to have been granted. 
 In cases of disputed po^ses-sion too, parties often rely in a great 
 measure on the performance of Government service by themselves 
 or their ancestors which cannot be duly estimated without some 
 knowledge of what the service consisted. The following then is the 
 substance of Sir John D'Oyley's notes on these subjects, where, 
 as they refer to things as they fornrxrly existed rather than as they 
 now are, the past tense is substituted for the present. 
 
 " OF LANDS AND THEIR TENURES." 
 
 4. " It is well known that Service Tenure prevailed through- 
 out the Kandynn Provinces, the possession of land was the founda-
 
 Kancty Lands fy Tenures. 29? 
 
 tion of the King's right to the services and contributions of the 
 people, and on the other hand persons not possessing lands were-, 
 in general, liable to no regular service or duties, but iu some 
 instances to light and occasional ones. Lands which, properly 
 sj caking, subjected the possessor to regular public services and 
 contributions were low paddy lands which can be cultivated every 
 year, but not [with some few exceptions] gardener high grounds. 
 Lekam Mitiye, or Registers of persons liable to regular servict 
 were kept by the Chiefs of the provinces -and- of many de- 
 partments to which they respectively belonged. He who openly 
 abandoned his land, which sometimes occurred, particularly in 
 the latter years of the late Kandyau King's reign, on account 
 of the severity of the duty^) was no longer called upon to per- 
 form service or to pay duties. Service land, thus abandoned be- 
 came, strictly speaking, the property of the Crown, and in some 
 instances the King exercised th&> right by taking the crops and 
 regranting the land. But according to more general custom, 
 the crop was appropriated or disposed of by the Chief of the 
 province, village or department, to which the land belonged, 
 or it was regranted by him to another, subject to the same ser- 
 vice, and frequently on payment of a suitable fee. Land aban- 
 doned, if reclaimed by the original proprietor, or even by his 
 heir, was usually restored on payment of a suitable fee, unless 
 it had been definitively granted to another, or possessed many 
 years by another family performing service. No person retain- 
 ing his land could without the King's permission, change his 
 service, that is abandon his proper department and service 
 and -restore to another. All lands were alienable by the pro- 
 prietor, but continued liable to the same service. Hence per- 
 sons of high, caste seldom purchased the lands of low classes, 
 especially if the service were that of any handicraft or menial. 
 All service land might descend to, or be acquired by females 
 who either paid a commutation in money, or, if required, pro- 
 vided a substitute to perform personal service. Eajekarea t which 
 may properly be interpreted, " King's duty" implies either th 
 personal service, or the dues in money or in kind, to which 
 
 20
 
 298 Kandy different species of lands. 
 
 any person or land was liable. Personal service was in very 
 many instances commuted for a money payment, which was 
 considered the legal perquisite of the Chief. 1st. Univei sally 
 in the case of the Attejjaitoo and Hc-wawasitm people and Ko* 
 
 ' 
 
 ditcwakku people of the Desawanies, the Lekam people and per- 
 sons of some other departments in the -other districts, who per- 
 formed, in rota' ion, regular Mura or duty at the house of their 
 Chief, or at other fixed stations: All absentees beyond the 
 numbtr required to attend paying a fixed Sum, called Mura ridi 
 which varied in different places and departments from one to five 
 Ridis each, for 15, 20 or 30 days' service. Sndly. In the case 
 of the same and other persons who were bound to attend ai 
 public festivals in Kandy, and who paid to their Chiefs a fixed 
 sum each for failure. Srdly. In the case of- the classes above- 
 mentioned and some others, when called on to furnish tim- 
 ber, erect buildings, or perform other public service, all 
 absentees, whether excused by favor, or disabled by sickness^ 
 or detained by urgent private concerns, paid a commutation in 
 money called " Game-hege*" The Chief being held responsible for 
 the expedition of the work assigned to bin), the King seldom 
 inquired minutely the numbers employed. And hence the reason 
 of the practice abovemeiitioned, of the Chiefs receiving crops 
 or emoluments to be derived from vacant service lands. But 
 he could only dispense with the personal service, for it was an 
 invariable rule that the Chief, enjoying the benefit of the crops, 
 fmust deliver into the Royal Store, the revenue chargeable upon 
 the land. Every field, with few exceptions, has attached to it 
 a garden and a jungle-ground called hena or chena. ~" 
 Of the different Species of Lands. 
 
 5. The Singhalese word " Gama" properly implies village, 
 but in the Kandyan Country it is also frequently applied to a 
 single estate, or a single field, the latter is often called Panguwa 
 or share. Villages properly so-called are of these following kinds: 
 
 6. Gabadagama or Royal village, may be described, gene- 
 rally, as containing Muttetlu lands, which the inhabitants cul- 
 tivated gratuitously and entirely for the benefit of the Crown,
 
 fandy Ninda Gama Tenures and Services. 295 
 
 and other lands which the inhabitants possessed in consideration 
 of their cultivating tbe+Muttettu, and rendering certain other 
 services to the Crown. * 
 
 7. WiharaGama, a village belonging to a Temple of Budhoo. 
 
 8. Dewate Gama a village belonging to a Temple of some 
 Heathen Deity. 
 
 9. Vidane Gama a village under the orders of a Vidahn, 
 and usually containing people of low caste liable to public 
 service. 
 
 10. Ninda Gama a village which, for the time being, is 
 the entire property of the grantee, or temporary Chief, when 
 definitively granted by the King with Saunas, it becomes Par- 
 veny ; it generally contained a Muttettu field which the in- 
 habitants, in consideration of their lands, cultivated gratuitously 
 for the benefit of the grantee, besides being liable to the per- 
 formance of certain other services for hire. 
 
 The following account given by Mr. Sawers as an addition to 
 the article of Ninda Gama Tenure, will most conveniently be 
 placed here. 
 
 11. The .Ninda proprietor held his Ninda Gama on con- 
 dition of furnishing a certain Quota of men in war &c. It would 
 be impossible to define all the Tenures uj;on which lands are 
 held under a Ninda proprietor, as thf se are different in every 
 village and as they r'se from that of the Oligakkaria [whose 
 condition appears to be little better than that of a slave] to that 
 of a person who merely pays homage, by appearing in parti- 
 cular seasons, or at festivals with a few beetel leaves, which 
 he presents to the Ninda proprietor. 
 
 12. The lowest are those, just mentioned, who hold their 
 portions of land for what is called Oligakkaria service, who 
 are generally Padoowas and other k w caste people liable to carry 
 the chiefs palanqueeii or any other low or menial service, 
 which 1 general custom allows him to have performed for him- 
 self or family. 
 
 13. The KVakareyaS) who possess their portions, on con- 
 dition of cultivating a certain portion of Muttettu field [04
 
 / 
 &* 
 / / 
 
 A^Atf-. 
 
 300 Kandy Ninda Gama Tenures and Services. 
 
 presently mentioned more fully] or any other defined service, 
 which may have been attached to the^service portion of laml 
 held by Nitakareya. 
 
 14. The Hewaniiehvya and Pattabandias, who are always 
 of the RattS and -village caste: their services are various ac- 
 cording to original contract, but they are seldom liable to service 
 of a mean character and especially on the Ninda Gama of Four 
 Korles. Their duties are commonly such as accompanying the 
 Ninda proprietor on a journey, carrying his Talipot, watching 
 his field, or keeping watch at his house. 
 
 15. The Wattukareyas who possess gardens, and pay a 
 certain portion of the produce yearly to the Ninda proprietor, 
 and are generally liable to be called on to assist him, being 
 paid or fed by him for their labor. 
 
 16. The Asweddummakareyas who have brought pieces of 
 waste lands into cultivation on certain conditions which are so- 
 various as not to be defined. If such a holder has paid money 
 for the Aswedduma he may emancipate himself from the con- 
 trol of the Ninda proprietor, by having his Asweddnma entered 
 in the Lckam mittya of any of the public departments, as 
 a service Pangoowa. 
 
 17. Lastly, persons who possess lands within the limits of the 
 village, subject to no service to a Ninda proprietor beyond that of 
 rendering him some slight token of homage, as Chief of the village. 
 
 18. All the above named descriptions of tenants, except the 
 last, either hold their lands in perpetuity, liable to the service 
 due to the Ninda proprietor, or they may hold at the will of 
 the Ninda proprietor only, viz : in the former class are all those 
 who held their lands before the Ninda Gama was granted to 
 the present proprietor, or who got possession of their service 
 Pangooivas from the same authority which originally granted 
 the village to the family of the present proprietor; and they 
 
 can cnly be punished for failing to perform the service due for 
 
 ~ ..... "**' 
 ticir Pangooicas. In the latter cless are those who have re- 
 
 ceived their service Pangoowas from the present proprietor, or 
 tst\ fr m k* s f am ily subsequently to the grant being made to him.
 
 Kandy remedy of Ninda Gama Proprietors. SOI 
 
 19. The Ninda proprietor had both a Civil and Criminal 
 Jurisdiction over all inferior cases which occurred among the 
 people of the village, but his jurisdiction was not well defined. 
 It seemed to depend on the situation of the proprietor at the 
 time being 1 : If he happened to be a Chief high in Office, he 
 adjudicated on all cases, short of capital crimes, and decided all 
 disputes about the heriditary right to the service Pangoowas of 
 the village, besides inflicting fines and imprisonment for the 
 neglect of services due to himself. 
 
 20. If the Ninda proprietor could not protect his NiUe- 
 kareyas jnd others from being called on by the headmen to 
 perform public service in the Rattawassan or Dissawassan or 
 if he allowed them to perform it he forfeited his own claim, 
 as Ninda proprietor, to services and dues. Latterly, therefore, he 
 
 generally- paid the tithe himself, the undertenants having in 
 some instances attempted to get rid of their vassalage, by pay- 
 ing tithe for their Pangoowas to Government. 
 
 21. Lands within the limits of Ninda villages held and doing 
 suit and service under any public department or Temple, were 
 taken out of the jurisdiction of the Ninda proprietor. The pro- 
 prietor of a Ninda village was liable to furnish a certain num- 
 ber of persons for general public services, and these services 
 his vassals were liable to perform under his order as their 
 Chief, such as service in war, according to their caste and con- 
 dition, dragging timber, making roads &c. 
 
 22. It may be well to remind the reader that by His Ma- 
 jesty's Order in Council of 12th April 1832, all services to the 
 Crown in respect of tenure or of caste or otherwise are abo- 
 lished ; with a proviso that the Order in Council is not to affect 
 the services due from the tenants of lands in Royal or Tem- 
 ple villages, or the service which tenants of lands in other vil- 
 lages in the Kandyan Provinces are bound to render to the pro- 
 prietors of such villages, as long as they continue tenants of 
 such lands. 
 
 Two cases have come before the S. C. from the District of 
 Batnapoom in which the remedy of the Ninda proprietor against
 
 303 Kandy remedy of Ninda Gama proprietors. 
 
 a tenant refusing to perform the service due from him, came in 
 question. In the first of these cases the plaintiff claimed the 
 services of the defendant in respect of two fields held by him 
 in the plaint ifPs Ninda Game, which services the plaintiff alleged 
 had always been performed till the last year, when the defendant 
 refused to perform them, in consequence of which the plaintiff 
 demanded that the defendant should restore the lands to him. 
 The defendant claimed the fields as his own Parveny property, 
 denied that the plaintiff had any claim on him for service, or 
 that he had even performed service for the fields in question, 
 though he admitted that he had done service in respect of other 
 lands, for which however he had received payment. The wit* 
 nesses for the plaintiff, and indeed those for the defendant also, 
 proved that service had been performed for the fields in question 
 by the defendant and those who had preceded him for forty 
 years. } On this evidence, the D. C. considered that the de- 
 fendant had forfeited his right to occupy the fields and decreed 
 that the plaintiff be put in possession of them. On appeal to. 
 the S. C. the following order was made. " That the case be 
 " referred back to the D. C. in order that the law or custom 
 " existing in the Kandyan districts may be enquired into and 
 " recorded, for the information of this Court, as to the course 
 " which ought to be pursued on the refusal of a person holding 
 " land as the defendant has done, subject to service to the 
 " owner of the Village to perform that service; whether the 
 " tenant must necessarily be ejected at once from the land or 
 *' whether there be not some intermediate course f proceeding, 
 " either by the imposition of a penalty or otherwise, by which 
 "the performance of the service maybe enforced, or by which 
 " the tenant may at least have an opportunity of retracting his 
 *' refusal. In the present instance the S. C. by no means con- 
 *' siders that the D. C. has come to a conclusion not warranted by 
 " the circumstances of the case. But it would be more satis- 
 " factory to know that no milder course which the customary !aw 
 *' of Kandy would sanction, had been omitted before the extreme 
 " measure of actual ejectment had been enforced. If the de-
 
 Kandy remedy ofNinda Gama proprietors. 303 
 
 " fendant persists in his contumacy, there seems to be no doubt, 
 " that this extremity must be resorted to." In answer to this 
 order of reference the D. Judge informed the S. C. that every 
 opportunity bad been offered to the defendant by means of 
 repealed remonstiancts on the {art of the Court as well as 
 of the plaintiff to change his determination, but that he still ) 
 absolutely refused to perform service. And it was also reported 
 that the penalty^ attached to such refusal by the Randyan law 
 was the resumption ef the land by the Ninda proprietor. 
 On. receiving this return, the S. C. affirmed the Decree of the 
 D. C. No. 211. Ratnapoora, 19th November, 29th December 
 1834. As to the right to these sen ices being prescribed by 
 a neglect to claim them for ten years. See title Prescription, 
 par. 10. 
 
 23. The other case presented itself to the D. C. under 
 circumstances similar to that just mentioned, and that Court, 
 after repeatedly admonishing the defendant as to the consequence 
 of a persistance in his refusal, at length decreed the possession 
 of the lands to the plaintiff, the Ninda proprietor. The Se^ 
 fendant appealed to the S. C. and on the case coming on for 
 boring, be expressed in open Court his willingness to perform 
 the required services and prayed the Court to restore him to 
 the possession of the land, on condition of his fulfilling that 
 offer. The S. C. however, observed, that it should not feel 
 itself justified in such an interference with the rights which the 
 customary law, especially recognized and preserved as that law 
 was by His Majesty's Order in Council, had vested in the 
 plaintiff, and in other Ninda Gama holders, that the de- 
 fendant had repeatedly and pertinaciously refused to perform the 
 duties, by which alone he was entitled to retain possession of 
 the land, and had set at defiance both the proprietor, to whom 
 those services were due, and the D. C. which had endeavoured 
 to reason him into the necessity of complying with what the 
 jaw required of him, that it was to the plaintiff, therefore, that 
 the defendant must address himself for restoration to the land, 
 Which he had forfeited by his own. obstinate misconduct, that if
 
 $04 Kandy different species of lands. 
 
 the plaintiff consented to restore him on his engaging to pay 
 those dues, and perform those services, which the plaintiff had 
 a right to require from his tenants, such conduct would reflect 
 great credit on the plaintiffs moderation and generosiiy, but 
 that it was an act of forbearance which no Court of Justice 
 had a right to compel a party to perform. " The decree ot 
 the D. C. was accordingly affirmed. No. 210." Ratnapoora 
 7lh February 1835. It rray be worth observing, though the 
 Roman Dutch Law forms 1:0 part of the law of Kandy, that 
 the course of ejectment pursued in these cases, is similar to that 
 which Voet describes as adopted against fefiactory vassa's by 
 the Roman feudal law, and tempered by the same spirit of 
 moderation in attending the tenant as " Locus pgenitemise," "Voet 
 Lib: 38." Digressio tie Feudis; par: 113. 
 
 We now return to Sir John D'Oyley'S description of the 
 different species of lands. 
 
 24. Yatatgame a species of village in the lower part of 
 the Four Korles, the Three Korles and part of Saffragam, 
 and sometimes bearing that name. 
 
 25. Other villages and lands, which it is unnecessary to 
 specify here, are called from the Department to which they 
 belong, as Kuruwa Gama, Muttange Gama y Attepattoo Ga~ 
 ma 8f C . 
 
 26. Keta is a Royal village, it is the same as the Muttettu. 
 
 27. Parteny land is that which is the private property of 
 an individual, properly land long possessed by his family, but 
 so called also if recently acquired in fee simple. As all lands 
 in the Kandyan country were subject to service, the distinction 
 of service Parveny is little known. 
 
 28. Muttettu lands fields sown on account of the King or 
 the proprietor, or temporary grantee or Chief of a Village 
 distinguished from the fields of the other inhabitants of the 
 village who were liable to perform services, or to render dues 
 are of two kinds; 1st Ninda Muttettu which is sown entirely 
 and gratuitously for the benefit of the proprietor, grantee, or 
 Chief, by other persons in consideration of the lands which
 
 Kandy difftrvnt species of lands. SOi 
 
 they ?:nssess 2nd!y Ande Mitttrttu vvhLh is sown by any ones, 
 without objection, on the usual condilioa of giving half the 
 crop to the nrop:ietor. 
 
 29. Ni'la Pi!iin,wa is land possessed on condition of 
 cultiva:ing the Muf.teftu or performing 1 other menial service or 
 both, for the proprietor, grantee or Chief of a vi lage: the 
 possessor of such land is called NUlakareya. In some instances 
 he is proprietor and ca:mot be displaced, so long 1 as he per~ 
 forms the service; in othus, he is a tenant at will, and re- 
 movable at pltasu: 
 
 30. A*weddinna or Dalupota, is land lately brought into 
 cultivation, as a paddy fieiH, or more recently than the original 
 field. ^ In the Royal and Vidahn villages and in some o her 
 instances, in the upper districts, the possessors of Aswedduma 
 hands performed nome Kind's service, but not so much as the 
 proprietors of original Ian !s : if brought into cultivation by a 
 stranger from the estate of another, particularly in the Dissavonies, 
 he paid by agreement a small annual sum to the proprietor, 
 and besides sssisled him in country woik and attended him on 
 journeys, receiving Victuals unless inscribed, which rarely; hap- 
 pened, in the Lekam Mittiya, he performed no public service 
 for it. If cultivated by the proprietor, who performed service 
 [for the lands originally in cultivation] he was liable to no 
 extia service for the Asweduma 
 
 31. Pidi/wd/e is Land offered by individual (o Temples, and 
 there are many of this description in all parts of the Country. 
 They are usually Aswedduma of small extent, or more rarely 
 email portions of the original srrvice land. It is held that, iii 
 the upper disiricts, they could not properly be offered without 
 the King's permission, but it was sometimes done, with leave 
 of the Chief only. In the Dissavr.nies, they are usually of Ft red 
 with the consent of the Dissave, tmt sometimes without it, if 
 of trifling extent. As neither the King's service nor his r .-venues 
 were diminished by the act [of offering], the King's sanction 
 was deemed less important. See par. 87. }C 
 
 32. "Anda land is, what is delivered by the proprietor to 
 
 21 
 / *4I
 
 306 Kandy -Rules of Inheritance to land Mr. Sauxrs' Memoranda. 
 
 another to cultivate on condition of paying the proprietor half 
 the crop as rent : this is the condition, on which feriile lands are 
 usually let. 
 
 33 Otu is of three kinds : first a portion of the crop eq"al 
 to the extent sown, or to one and half or double the extent 
 sown, in some paddy fields or chenas. It is the usual share 
 paid to the proprietor by the cultivator from fields which are 
 barren, or difficult to be protected from wild animals, parti- 
 cularly in the Seven Korles, SaflTiagam, Hewahette and some 
 chenas in Harispatton. In many royal villag s in the Seven 
 Korles lands are paying Otu to the Crown. Sndly the share 
 of l-3d paid from a field of tolerable fertility, or from a good 
 chena sown with paddy. [Srdly the share which the proprietor of 
 a chena sown by another with fine grain, cuts first from the 
 ripe crep, being one large basket full, or a man's burthen. 
 
 35. Hena or as it is commonly called Chena, is high jungle 
 pround, on which the jungle is cut and burnt for manure, after 
 
 D f v *~ 
 
 intervals of, from five to fourteen years, and the paddy called, 
 Ell wee or fine grain, or cotton or sometimes roots and other 
 vegetables are cultivated ; after two or at the most three crops, 
 it is abandoned till the jungle grows again. . 
 
 36. We are come to the *' Memoranda of the laws of 
 inheritance" ly Mr. S;-wers, whose long experience, and ex- 
 tensive acquaintance with the laws and customs of the Interior 
 of the Island, and the care which he seems to have taken in 
 procuring the btst native opinions on these subjects, and in col- 
 lecting them when they differ, give a weight and value to the 
 collection, as far as it goes, wliich no learning, merely legal, 
 and unas-sisted by local observation and practice could lay claim 
 to. That this collection, as Sir John U'Oyley observed of his 
 own sketches, sup. par. I will be (bund, " imperfect and liable to 
 many errors." it is scarcely necessary to say that more than one 
 instance indeed wi!l occur, in which the several opinions will 
 be found at variance witii each other; which will not appea^ 
 surprising, when it is recollected that these opinions were pro- 
 bably given on different cases as they arose at different times,
 
 Kandy Rules of 'Inheritance to landMr. Sawers' "Memoranda" 307 
 
 and by different Chiefs. It has, however, been considered bet- 
 ter to give the notes as nearly as possible as they stand, than 
 to attempt to reconcile or decide between conflk-ting doctrines, 
 which can only be safely and satisfactorily done by further 
 inquiry and discussion on the spot. 
 
 The first step towards rectifying the errors and supplying the 
 iin perfections of this collection is to place it before the public 
 eye for criticism and correction. It is, therefore, proposed to 
 take these " Memoranda" as the text of the Kanriyan law of 
 inheritance, interweaving: with them such decisions of the S. C. 
 pronounced up to March 1836, as shall be found to relate to the 
 several positions laid down by Mr. Sawers : no further liberties 
 will be taken with the phraseology, than sometimes to elucidate 
 what may seem to be not quite clear. We shall probably have 
 recourse to Sir John D'Oyley's notes again more than once while 
 on the law of inheritance. Each proposition will be numbered 
 for the sake of facility of reference, in the order in which the 
 propositions are arranged in Mr. Sawers'. Mr. Sawers' will be 
 somewhat altered where the respect in subjects seems to re- 
 quire the change. 
 
 37. It is stated unanimously by the Chiefs who have been 
 consulted, that a person having the absolute possession of [and 
 right to] real or personal property has the power to dispose 
 of such property unlinriitedly ; that is to say; he or she ma;, 
 dispose of it either by gift or bequest away frnm the heirs at 
 law. But to the unlimited power of disposing of landed pro- 
 perty There was this exception, that lands liable to Rajakarea 
 or any public service to the Crown or to a superior, could not./ fa. 
 be disposed of either by gift, sale or bequest, to a ff'ihare I 
 or Dewala, without the sanction of the King, or the superior,/,/ 
 
 to whom the service was due. (1 ) But some of the principal Chief's; 
 
 _^ ^ ^ _^^^^_^__^__ 
 
 (1) Tbe reader cannot fail to be struck with the analogy between this rextriction im 
 posed by the Kings of the Kandy, on the power of alienation to Buddist Temples, anil 
 
 t English Statutes of Mortmain, by which similar transfers to religious houses were 
 bibited without license from the King or from the intermediate Lords of whom the 
 ds were heM, nor is the analogy confined to tiie respective attempts to prevent 
 alienation. The same desire to evade the l.i\v,bolh on the part of the superstitious donor 
 and on that of the religious communities, is observable iu the Kandyau L:iml holders, 
 and in our Anglo Norman ancestors, Iu the Temples of Buddhn, and in ll.e Cloister.- 
 of the English CoareiiU-
 
 308 Kandy Rules of Inheritance to land Sir J. D'Oyfcy'a Notes. 
 
 who have a strong bias in favor of the Church say, that though 
 it was required to have such sanction, before lands regis'ered 
 in the Lekam Meltii/a and liable to service, were made offer- 
 ivi';-s of to Ttmples, yet it was not cusiom iry to annul them 
 when once made, and as in most instances it was only part of 
 the service Pangita which was offered, ihe services for the whole 
 Fan gii a became chargeable ou the part of it which remained 
 uuoftered; if the whole was offered, without sanction, the Temp'e 
 was obliged to perform the service or pay the dues. " On the 
 subject of this right of disherison the absolute exercise of which, 
 *s we shall presently see, forms almost to this day, a contro- 
 verted question, the following opinions of Sir John D Oyley are 
 extracted from his observations: " Oil D'eds an;l tnnsCers" D s- 
 na'ions of land are made either by oral declaration, or by writing; 
 and ora 1 gifts, if clearly nn<l satisfactorily proved, are held to 
 be of equal vaiuli.y with written. The proprietor has full power 
 to dispose of his whole landed or olher property to his adopted 
 son, or even to a stranger, in exclusion of his own children, 
 but rarely dees so, without just cause. It has been alleged, f 
 understand by some Chiefs, that a written deed is absolutely 
 necessary to give a title to the adopted son or stranger, and to 
 disinherit the legal heirs. But I conceive from the decisions 
 tvhich have taken place, establishing the validity of verbal Gifts, 
 in favor of the wife or one of the children, that this opinion 
 rather referred to the necessity of full and incontrovertible proof of 
 the fact, which after lapse of time, would otherwise be uncertain and 
 difficult, thsn to any viilue in the writing, I find it generally 
 admitted that such an oral donation to any one, proved recently 
 afu-r it took place, by respecrable and undoubted witnesses, 
 must be held va.id. The disherison of the leyal heir [unless 
 wiily r. motely connected] with the motive for such disherison, is 
 usuully, and ought, in propriety, to be specified, whether it be a 
 wr.tun or oral will; and if the lepal heir be a son or daughter, 
 or near relation, naturally dependant on the testator, the omis- 
 sion will scarcely take place, for it is held incumbent on the 
 intended heirs, nd the witnesses to suggest their situation to
 
 Kandy Ru'e of Inheritance toiand. 30$ 
 
 his notice." It is to be observed here, that Sir John D'Oyley 
 does not go the length of saying that the motive of disherison 
 must absolutely be mentioned and that the act of disherison will 
 be void, unless the motive be specified, but only that it ought 
 to be, and usually is, mentioned; the oniis>ion, therefore, though 
 it would naturally excite suspicion, and in a doubtful case, 
 would raise a presumption agai ist the act of disher.sun, would 
 not and o.jght not, to b; n?cessarily conclusive against the dis- 
 ^eiisoii, supnos : ng the act to be sa isfactorily established by other 
 evidence. See In? c j .ses on this subject in following Par. 38 to 44: 
 
 38. The principle laid down toth by Sir John D'Oyley, and 
 ly Mr. Sowers in the preceding Par. that the o-vner of landed 
 property may dispose it away from the heirs, though certainly 
 supported by the majoriiy of the decisions on this subject [Sse 
 ]Vo. 6,3-17, Kornegillo, 14. Deer, and 416, Kornegalle, 23rd 
 November 1633, where the S. C. expresses itself of that opinion] 
 w uld not appear to have been universally recognized by the 
 Kandyan authorities, many of whom have held that the heir 
 cannot be disinherited, unless for some goo:! cause, which must 
 be expressed in the deed itself; nay, some have insisted that 
 the consent of the heir to his own disherison is necessary, and 
 must even appear in the deed by which such disherison is ef- 
 fected. Tne following case will shew the opinions entertained 
 on this subject by many persons of great experience in Knndyan 
 customs, while it demonstrates the impossibility of obtaining 
 unanimous expositions of unwritten laws, r?s ing only on tra- 
 d tion, as their authority, and on custom for their enforcement.^ 8 
 
 A plaintiff claimed a fiel-1 by right of inheritance from hiiTi/^^W 
 father Walgame Mudians?. Tae defendant's answer, as farf ^. ' 
 as necessary to make the points intelligible, was that the Mudi- 
 ane had allotted half the field to his son, the plaintiff, and the 
 other half to one Meddumarale who died, but that afterwards, 
 being displeased \\ith the widow of Meddumarale he trans- 
 ferred the whole by deed to the defendant, with the sanction 
 of the plaintiff himself, that he the defendant had retained pos- 
 session of the field ever since and had rendered assistance to
 
 310 Kandy Rules of Inheritance to land. 
 
 the Mudianse, in fulfilment of the conditions of the transfer, 
 for one year, when the Mudianse , removed to the house of the 
 mother of Mcddumaralle's widow, where he died two or three days 
 afterwards, and that his death took place ten years ago. The 
 deed produced by the defendant was dated ^ and purported 
 to be on account of the Mudianse having incurred, debts which 
 the defendant was to take upon himself for assistance which the 
 defendant was to render; and of the ^hidianse^s eldest sou being- 
 consigned to the protection of the defendant. The court of Ju- 
 dicial Commissioner considered it unnecessary to go into evidence, 
 the deed appearing invalid 
 
 1st because it contained no mention of the plaintiff's consent, 
 as alleged by the defendant and without which consent so ex- 
 pressed, the plaintiff could not in the opinion of the court be 
 disinherited 
 
 2ndly because the defendant had made no allusion in his 
 answer to the payment of debts, as stipulated in the deed. The 
 court aecordingly gave 'judgment for the plaintiff as heir at 
 law, reserving the right of the defendant, to recover back any 
 expenses which he might have incurred. The defendant appealed 
 to the Governor [this was before the promulgation of the new 
 charter] by whom the case was reft rred back for reconsideration ; on 
 the grounds, 1st that the assent of the son was not necessary, 2ndly 
 that the father had not divested himself, by the first allotment, of 
 the power of otherwise disposing of the property, and Srdly that the 
 defendant's omission to mention the debts in his answer amounted 
 only to a suspicion against the deed, but was not sufficient of 
 itself to annul it. The case having been reconsidered, the As- 
 sessors deliveied the following opinions: " If a son prove un- 
 dutilul the father may give his land to a third person, in 
 consideration of assistance, but in such case, the deed must 
 specify the causes of disherison. If a son be unable to render 
 assis'.ance to his father, the gift to another person must be by 
 his consent. The present deed is not a remuneration for as- 
 sistance given or debts paid, but a stipulation for assistance 
 to be given and debts to be paid : and evidence is unneces-
 
 Kandy Rules of Inheritance tor land. 311 
 
 sary because the donor quitted the defendant's house, before 
 his death, which of itself, is sufficient to vitiate the deed of 
 gift [st-e No. 3,tJ60. Kornegalle, infra: par: 44 as to this 
 point] and therefore the defendant could only claim to be paid 
 ior his expences. The numbers of the Court concurred in this 
 view of the case, and in that slate, the proceedings were 
 brought up to the S. C., upon which had then devolved ap- 
 pellate jurisdiction all over the Island. The following order 
 was there made: That the case be refered back to the D. C. 
 to hear evidence on the following points : 1st whether the plain- 
 tiff's consent to the deed of gift were expressed by him or 
 not; 2ndly how long the defendant supported the plaintiff's 
 father, and when the latter left the defendant's house, 3rdly 
 whether the defendant paid any debts for the plaintiff's father, 
 and to what amount, and 4thly when the plaintiff's father died, 
 and how long the defendant had been in pcsse^sion. The S., 
 C. then observed, " that it could not but be somewhat startled 
 at the proposition, so broadly laid down, that the consent of 
 the son was absolutely necessary to enable his father to dispose 
 of his property (1) even though the son and heir should be so poor 
 [according to the second opinion of the Assessors] as to be 
 unable to render the required assistance, that if this were cor- 
 rect, the father might perish, because his son refus?d to sanc- 
 tion his parting with his property to enable him to procure 
 support,a position which was not only unreasonable in itself, but was 
 also [if pushed to the extreme extent insisted upon by the Asses- 
 sors] at variance with the general rules of Kandyan Law, as 
 far as the S. C. had been enabled to ascertain those rules, and 
 which would seem to be contradicted by many f the nume- 
 rous decisions of the courts in the Kandyan Districts, confirmed 
 too by the court of the Judicial Commissioner, which were then 
 lying before the Judges of the S. C. for revision [See No. 3010 
 and 5323 Kornegalle, infra par. 39] that the judgment of the 
 
 (I.) It may be observed as matter of analogy that by the common law of England, 
 m man could not give by will awy from the heirs at law without the heir* cou.ent 
 till th 33. Hen : 8. olt : 1. enabled tun* *> t do.
 
 313 
 
 Kandy Ruh -s of Inheritance io land. 
 
 Court below however went still further, and decided that the con- 
 sent of the heir, openly and expressly avowed, was not suffi- 
 cient to legalize a deed of transfer iniless such consent appeared 
 in the deed i.self, in o'.iier words, 'unless t*he heir^were a.r>arty 
 to the deed- that no law or custom, however ven&rable by age 
 could sane' ion fraud, whereas, if the defendant's statement were 
 
 true, the plaintiff's conduct la'l been fraudulent in the highest 
 degree, since if he did exj.ress 1 is assent to the transfer which 
 
 he now disputed, such assent must be presumed to have contri- 
 buted to induce the defendant lo afford that support and as* 
 si tance to the plaintiff's father, which without such assent he 
 wou'd probably have refused, but that even if the deed s ould, 
 on further evidence, turn out to be invalid as an absolute trans- 
 fer, it must at least be considered that the defendant had a 
 virtual mortgage on the land for any expeuce which he might 
 actually have been put to, for the father's support or for the pay- 
 ment of his debts, and therefore that he had a right to hold it 
 as a securuy for repayment. That in case of the deed being 
 ultimately rejected, therefore, the defendant, irs'ead of being 
 turned out ot the land and then left to his remedy at law, should 
 be fiist repaid his expences, and then be decreed to give up pos- 
 session. " On the proceedings being again returned to the S. 
 C., it appeared by the evidence that the deed had been given 
 for the considerations assigned by the defendant, that the condi- 
 tion had been fairly fulfilled, and that the defendant had been 
 many years in possession, and judgment WPS accordingly finally 
 decreed lor the defendant, No. 43SO. Kandy 9th October 1833 
 and 24lh May 1834. 
 
 39. Two cases have just been referred to, in par: 38, as 
 being at variance with the decision of the court of Kandy, as 
 regards the necessity of the heir's assent to the property being 
 disposed of to his j rejudice. In one of them the claim wag 
 for four fields which had been sold to him by one Menickra'le whose 
 wife had neglected him, and who, by that sale deprived hi* 
 wife and child of the right of succession. The case was in- 
 quired into with great care by the Court of the Judicial Agent
 
 Standy Transfers of prcperty. 313 
 
 which gave judgment for the Defendant on the strength of 
 the deeds, which were satisfactorily proved, and of long 
 possession. This judgment was confirmed by the Court 
 of (be Judicial Commissioner- at Kandy, but there cer- 
 tainly was no proof of any assent on the part of the respective 
 heirs in that case, And though the length of possession by the 
 Defendant may be supposed to have strengthened his case, 
 yet it must be recollected that in No. 4,380 from Kandy par : 
 38, one of the points urged by the Defendant in his answer, 
 was possession, i'or upwards of Ten years, which he afterwards 
 established by proof. The S. C. affirmed the decisions of the 
 Court below No. 3010 Kornegalle 9ih October 1833. In the 
 other case, also, the question was whether a deed of gift, 
 under which the Defendant claimed, and by which the Plaintiff, 
 the son and heir of the Donor, was di^nherited, had been satis- 
 factorily proved. The Court of Judicial Agent was of opinion, 
 that it had not, and accordingly decreed for the Plaintiff. The 
 Court of the Judicial Commissioner, on appeal, was of a con- 
 trary opinion, and gave judgment, for the Defendant. In this 
 case again no consent on the part of the Plaintiff, as son and 
 heir, was proved, or even asserted. The S. C., however, on the 
 case coming before it, agreed with the original Court, that the 
 Deed was not satisfactorily proved, and on that ground decreed 
 that the Plaintiff should be put in possession of the Land in 
 question No. 5323. Kornegalle 8th October 1833. 
 
 40. There can be no doubt, however, that every transfer of 
 property, by which the heirs of the Donor or Testator are to 
 . be disinherited, should be vigilently watched and strict proof 
 required of any Deed, by which such transfer deviating from 
 the usual course of natural feeling and affection is to be 
 effected. In the case just mentioned No. 5323 Kornegalle, The 
 S. C. decided against the validity of the deed, on the ground 
 of certain discrepancies and contradictions in the Evidence, which 
 were entitled to the greater weight, from the consideration that 
 the effect of the instrument was to disinherit the son, and 
 heir at law: And where such transfers purport to be in con- 
 
 22
 
 314 Kandy Transfers of property. 
 
 sideralion of assistance it is equally incumbent on the Courts,- 
 to see that the Conditions have been faithfully and strictly per- 
 formed. The following cases will shew the view taken by 
 the S. C., on this subject, when first it was called on to decide 
 on the Kandy an law of inheritance. An action was brought 
 for certain Lands claimed by the Plaintiff, as having been 
 granted to him by his uncle Kieralle in consideration of as- 
 sistance which the Plaintiff rendered to his uncle for six 
 months until his death. The Deed was disputed by the widow 
 of the deceased, on behalf of herself and her child and she 
 averred that though the plaintiff had persuaded Kieralle in his 
 illness to leave his own house and go and reside with the plain- 
 tiff, she had succeeded in bringing him back to his home where 
 he died. The plaintiff proved that he had rendered assistance 
 to his uncle, and also called several witnesses to prove the 
 execution of the deed, but not the writer of it. The assessors now 
 were of opinion that as the plaintiff had proved the deed and 
 assistance, he was entitled to judgment, and the Judicial Agent 
 being of the same opinion, a decree was passed in his favor 
 accordingly. On appeal to Kandy, the assessors in that Court 
 were of opinion that the decree should be affirmed : the Judi- 
 cial Commissioner, that it should be reversed, partly because the 
 plaintiff's deed asserted that Kieralle had no children, partly 
 tecause the plaintiff's services did not entitle him to a grant by 
 which the heir at law was disinherited. In consequence of the 
 difference of opinion, the case was referred to the S. C. where 
 the following order was made. "That the D. C. should take 
 the evidence of the alleged writer of the plaintiff's deed, and 
 erquire why he was not called as a witness. " That the S. C. 
 did not go so far as the late Judicial Commissioner, in think- 
 ing that the plaintiff's service, if really rendered, would not 
 have warranted ihe grant in kis favor; nor was it quite correct 
 that the deed alleged Kieralle to have no children, for it only 
 declared that he had neither wife nor children, to assist him 
 in his illness, that every deed, however, disinheriting the heir 
 at law ought to be proved bejoud the possibility of doubt or
 
 Kandy Transfers of property. 315 
 
 suspicion. That the not calling the witness of such deed, with- 
 out accounting for the omission, by death, or other uncon- 
 trollable circumstances, had, in itself, a suspicious appearance, 
 more especially considering that the names of witnesses were 
 often not signed by themselves, but simply introduced into the 
 body of the instrument, with their assent" [vide supra: III. 
 2. 3.] Tue onvssion to call the writer in the first instance hav- 
 ing been afterwards satisfactorily accounted for, the original de- 
 cree in favor of the plaintiff was affirmed No. 8736. Kornegalle 
 20th Nov. 6th Dec. 1833. 
 
 41. In another case in the same court, the plaintiff claimed 
 as heir at law, the defendant claimed by virtue of a deed, by 
 which the plaintiff would have been disinherited, as regarded 
 the land in dispute. The evidence as to the facts, and as the 
 proof of the defendant's deed was confinting, the assessors con- 
 sidered the plaintiff ha 1 not established his right, the Judicial 
 Agent was of a contrary opinion, and that no credit was to be 
 given to the deed of the defendant, on appeal to Kandy, the 
 assessors there agreed w'uh the Judicial Agent, and observed 
 moreover that even if the deed had been completely proved, it 
 would have been of no vaMdLy, because it assigned no reason 
 for disinheriting the heir. The Judicial Commissioner again dif- 
 fered from his assessors, and considered that the deed might be 
 maintained. The S. -C. on the cas3 being brought before it, 
 decreed that the p'aintiff be put in possession of the land claimed, 
 ac-ording to the opinion of the late Judicial Agent of Kornegalle, 
 and of the assessors of Kandy, without going *o far with the 
 assessors as to say that the deed of disherison, filed by the de- 
 fendant, was necessarily invalid, because no reason was assigned 
 for that act, still the absence of any such reason was one 
 argument against its being genuine, and must necessarily be 
 entitled to weight in a doubJul case No. 7163. Kornegalle 
 21st November 1833. 
 
 42. In another action, also in the Court of Seven Korles, 
 the plaintiff claimed certain lanl by virtue of a deed of gift 
 from one Horetella, in consideration of assistance to be ren-
 
 316 Katdy Transfers of property. 
 
 
 dered to that person, and of paying his debts. At Horutdla 
 death this claim was set up by the plaintiff and was opposed 
 by the defendant, on behalf of one of Horetella's daughter's, by 
 virtue of a deed alleged to have been executed in her favor 
 by him a few days before his death. The evidence was of 
 that description, unfortunately but too common in Ceylon, which 
 makes it difficult to say on which side fraud and perjury lie, 
 or whether both parties be not open to the imputation. The 
 nature of the evidence will however appear sufficiently to make 
 the decision intelligible from the respective judgments. The 
 Assessors in the Court of the Seven Korles were of opinion 
 that though the plaintiff had proved the execution of the deed 
 in his favor, yet there was much prevarication in his witnesses, 
 and as it by no means appeared that he had fulfilled his agree- 
 ment as to assistance, but rather the contrary they did not 
 consider he had established his claim to the land, which they, 
 therefore, were of opinion should be divided between the two 
 daughters of Horetella, for one of whom the defendant claimed. 
 The Judicial Agent concurred in this view of the case, and it 
 was so decreed accordingly. On appeal to the S. C. this de- 
 cree was affirmed in the following terms. "This Court is not 
 surprised at the impression made in the Court below, by th 
 extraordinary mariner in which the witnesses swear in this case. 
 But the ground on which the case has been decided, renders 
 the question of ftaud or prevarication of little importance. With 
 that ground, this Court fully concurs. The deed in favor of 
 the plaintiff was granted on a specific condition, not executed, 
 fa.J' p [but executory. There can be no doubt, therefore, that a failure 
 in the performance of that condition, must defeat the instru- 
 ment, it was for the plaintiff to shew a real bona fide per- 
 formance of that condition : In this, he has certainly failed. 
 It appears indeed that the deceased lived for a time in a 
 house, either belonging to the ph.intiff, or over which he ex- 
 ercised a certain deguc of control; and that the plaintiff sup- 
 plied him for a time with rice, but there was no one on the 
 part of the plaintiff to render that personal assistance and at-
 
 Kandy Transfers df property. 317 
 
 tendance to the deceased which evidently wr>s in his contem- 
 plation when he executed the deed, and which the plaintiff^ 
 own witnesses state was rendered to Horetella by his daughter. 
 It is also a strong circumslance, that the last offices were ren- 
 dered to Horetella, not by the plaintiff but by the defendant. 
 It is indeed said by the plaintiff's first witness that the deceased 
 vras removed from the plaintiff's house by the defendant, bat 
 not of his own free will. If however the plaintiff had been 
 executing 1 the stipulated condition, according to the spirit of 
 it, he would have been present and might have prevented any 
 violence being 1 offered, if any such were really offered, to the 
 inclination of the deceased. Nor has the plaintiff proved the 
 payment of any debt for Horetella, except iu a manner much 
 too loose, to entitle the evidence on that point to any weight. 
 Indeed the circumstance of the plaintiff having requested the 
 creditors to wait for payment would rather lead to a contrary 
 inference it is of great importance that the strict fulfilment of 
 those conditions which appear so frequently to form the con- 
 sideration for grants of lands in these Districts should be 
 watched with zealous vigilance, in order to prevent designing 
 persons from availing themselves of the weakness of the aged 
 or infirm persons to get possession of their little property, in 
 prejudice of the rightful heirs, nd then leaving them to pe- 
 rish in a state of destitution." No. 1622. Kornegalle 25t-h, 
 October 1833. 
 
 43. An action was brought on a Notarial deed dated 19th 
 June 1829 for land thereby assigned to the plaintiff by the 
 defendant in consideration of assistance already afforded and to 
 be rendered to the defendant as long as he lived, or, in de- 
 fault of recovering the lands, the plaintiff claimed pecuniary 
 compensation for the assistance rendered by him to the de- 
 fendant and his wife for the last seven years. The defendant 
 admitted the deed, but alleged that the plaintiff had failed to 
 render the stipulated assistance, whereupon the defendant had 
 assigned the land, by another deed, to his Grand-daughter. 
 The Court of Matelle considered it unnecessary to hear the
 
 318 Kandy Transfers of property. 
 
 evidence, because, the deed being- admitted, it was clear that 
 the land was the property of the plaintiff, and it was so de- 
 creed accordingly, provided the plaintiff continue to render 
 proper assistance. On Appeal to the Judicial Commissioner's 
 Court it was observed by that Court "That aecerding to Kan- 
 dyan law, a Donor did not lose the right of transferring his 
 land to a second Donee, if he h;id cause to be dissatisfied with 
 the assistance of the first, and the case was therefore referred 
 back to Matelle for evidence as to the assistance actually ren- 
 dered. On the part of the plaintiff, the witnesses stated that 
 the defendant transferred his land to the plaintiff, giving one of 
 his teeth as a token; that the plaintiff had provided every thing 
 necessary for six years, cultivating the land and giving the pro- 
 duce fo the defendant who however assigned the land to his 
 Grand-daughter about a year before the action brought, and 
 that tlie plaintiff came to the defendant and offered to render 
 assistance afier the first decision at Matelle, which the defendant, 
 however, rejected. The defendant's witnesses stated that the 
 plaintiff assis'ed the defendant, before the execution of the deed, 
 but not since, On this evidence the Court of the Judicial 
 Agent was still of opinion that the plaintiff was entitled to 
 Judgment. The case being again carried in Appeal to Kandy, 
 the Assessors who gave credit to the defendant's witnesses were 
 of opinion, "That as the Deed had been granted for further, 
 as well as past assistance, and as the plaintiff had not rendered 
 any assistance since the Deed was passed the grant was for- 
 feited, but that the plaintiff was entitled to compensation for 
 his former assistance." The Judicial Commissioner agreed \vith 
 his Assessors, except as to the latier part of their opinion, for 
 he considered, that as the plaintiff had forfeited the Deed through 
 neglect, he was not entitled to any compensation; The case 
 being brought beforo the S. C. the vitw taken by the 
 Judicial Commissioner w;:s confirmed, and it was decreed as to 
 the Deed granled to the plain ill' by the defendant, " It is ne- 
 cessary," the S. C. observed, that these alienations of 
 land out of the family of the Donor, in consideration of as-
 
 Kandy Transfers of property. 3 1 9 
 
 distance should be strictly watched, with respect to the due per- 
 formance of the condition, In the present instance, it appears 
 that the plaintiff brgan to relax in his attentions and assistance, 
 from the time the deed was executed. These instruments it 
 seems are always re\ocable by the Kanclyan law. [vide infra. 
 Par. 46] subject in certain cases to compensation for assistance 
 actually rendered. Now the plaintiff cultivated the defendant's 
 land for six years, and though it is said he gave the produce 
 to the defendant, it is not to be supposed that this did not go 
 towards the defendant's support. If these deeds were to be en- 
 forced in the terms of the decree in the original Court, that is, 
 provided he continues to render proper assistance to the defen- 
 dant, this latter person would be entirely at his mercy, or which 
 is nearly as bad, he would be obliged to have recourse to law 
 in every instance in which the plaintiff failed to render him ade- 
 quate support" D. Meek Jppoo vrs. dttcohcndua, Matelle 26th 
 November 1833. 
 
 44. In another case, closely resembling the foregoing, and 
 which was decided en similar grounds, the plaintiff claimed a 
 garden as having been transferred to him by the defendant's 
 wife on deed in consideration of assistance to her. The defen- 
 dant proved that the plaintiff had discontinued his assistance for 
 sometime before his wife's death, and that the defendant had 
 been obliged, in consequence to borrow paddy for his wife's 
 support. The Court of Kornegalle, accordingly, decreed for the 
 defendant, and this Decree was affirmed by the Judicial Com- 
 missioner's Court and afterwards by the S. C. No. 3,660 Kor- 
 negalle, lOih October 1833. In this case, however, some of 
 the Kanclyan Assessors were of opinion, that as the deed of 
 transfer had been duly executed, and as the plaintiff had as- 
 sisted the defendant's wife till a few days before her death, he 
 wj;s entitled ro retain the gardtn. This opinion is mentioned 
 here, as being at variance with that expressed by the Assessors, 
 also Kandyans, in No. 4,380 Sup. Par. 38 from whom he was 
 to receive assistance, two or thrte days before his death was a 
 revocation of the grant, even though he left the house, of his
 
 L^O Kandy Transfers of property. 
 
 own accord, aud without any failure of assistance, as far as ap- 
 peared. 
 
 45. On a claim of land transferred in consideration of assis- 
 tance, it appeared that the deeoj. of transfer was invalid, under 
 Proclamation of 28th October 1820, from its bearing no mark, 
 as the signature of a witness, but that the granter had lived 
 iu the house of the grantee, and harl been supported by hirrt 
 for three years, though she^ afterwards removed to the house 
 of the defendant with whom she resided for eight months till 
 her death, and to whom she made over the land in question a 
 few days before she died. Under these circumstances the Kan- 
 dyan Assessors were of opinion, that the plaintiff, though the 
 
 deed could not be supported, was entitled to compensation for 
 the assistance rendered by him, and in this opinion the S. C. 
 concurred, decreeing the land to the defendant, he indemnifying 
 the plaintiff according to the Assessment made of his claim by 
 the Assessors P. R. Ralle and Y. B. P. Mohandiram. Ma- 
 telle 17th January 1834 on circuit. 
 
 46. The power of revoking or superseding these Gifts or be*- 
 quests by other subsequent ones is so intimately connected with 
 the original power of disposition, that it will be convenient to 
 insert in this place what is said by Sir John D'Oyley and M r. 
 Sawers respectively on this subject ; To begin then with Sir John " 
 D'Oyley ; " Transfers, the Donations or bequest of land are re- 
 vocable at pleasure during the life of the proprietor who alienates it! 
 It is held that any land proprietor, who has even ditinitively soWhis 
 land, may resume it, at any time during his life [this position we 
 
 ill presently see, is disputed by the chiefs consulted by Mr. Saw- 
 ers] " paying the amount which he received, and the value of any 
 improvement, but his heir is excluded from this liberty. The 
 reason of this custom is, respect and atlachment, which belong 
 to ancient family rank, and the importance ascribed to the pre- 
 servation, as it is called, of name and village; the name by which 
 ery person of rank is distinguished and generally known, beino- 
 t of the village, in which his ancient or principal estates are 
 Situated. ' When a land proprietor is become old and iafirm,
 
 Xnndy, revocation of Deeds. S2I 
 
 ami has no near relations, or none who look after him, it is 
 a common practice for him to transfer his lands to another, 
 frequently a relation, on condition of receiving support ar.d as- 
 sistance till death. In this case the latter sends one or more 
 servants to wait upon and administer to him, and supplies pro- 
 visions and medicines, according to his abi ity, the condition 
 of the party and the value of the land, If the owner, for so 
 he must still be called, be dissatisfied with the assistance af- 
 forded, he can at any time revoke the gift as well by virtue 
 of the rule above stated as because it m conditional, [the latter 
 ground, viz: the conditional nature of the true foundation of 
 the power of revocation"] and may mike over his property to 
 another person who thereupon reimburses the first acceptor for 
 the expences incurred by him. This change of possession is 
 not unfrequent, and there have been instances of five or six suc- 
 ce&f-ive resumptions and nexv assignments by the same capri- 
 cious proprielor. It follows that the last bequest or transfer 
 supersedes all which may Lave preceded." ! Upon this exposi- 
 tion of Sir John D'Oyley of the very important ques ion of 
 the power of revocation, we find the following- notes by Mr. 
 Sawers who appears to have consulted Assessors on the point, 
 and who modifies the proposition laid down by Sir John D'Oyley, 
 as regards absolute s des of land : a modification which good 
 sense and Jusuce must It a -I every one to concur in. ''The As- 
 sessors unanimous' y assent to the position that Transfers, Dona- 
 tions, or bequesis of land are revocable at pleasure during the 
 life time of the person w'io alienates the same, but deny that a 
 definitive 'sale of land is revocable by the seller at his pleasure: 
 For though it was not without precedent for bargains of this 
 land to be broken and annulled, even years after the sale, it 
 was neither jus'.ified by law or custom. Unconditional donations, 
 of moveable property, such as cattle, goods or mon.y, were 
 ttot revocable. For il was exceedingly comruoa for old persons,, 
 
 23
 
 322 Kandy, revocation of Deeds. 
 
 . 
 having no children (1) to lake up their residence in their old 
 
 age with relations or strangers, in whose favor they, in the 
 first instance executed a deed of gift or bequest, transferring the 
 whole of the Donor's property to the Donor, for the sake of assistance 
 and support, but it frequently happened that the Donor was a person 
 of capricious mind or violent temper, and upon any slight occasion 
 would remove to another House and execute a similar deed ; and 
 thus numerous claims to his property after his death would be 
 made upon deeds of the same import find of apparently 
 equal validity ; in such case the Judge always decided in favor 
 of the person under whose care the deceased had died ; how- 
 ever short the period might have been of his residence at that 
 house ; but any other person who had rendered the deceased 
 assistance and support for any length of time and had been 
 put to expence thereby would have a right to compensation 
 out of the deceased's property ; and even before the death 
 of the person assisted, such compensation would be demanded 
 and recovered. The person rendering the last assistance and 
 support to the deceased would have a preferable right to his 
 property to that of a person holding a deed of beqirst, whose 
 house he had quitted or whose service he had rejected, from 
 dissatisfaction with treatment he had received, but it must be 
 clearly proved that it was the intention of the deceased that 
 the person rendering him assistance in his last moments was to 
 be his heir, otherwise, the person rendering the last duties would 
 only be entitled to be rewarded for his or her services out 
 of the deceased's property while the bulk of the property would 
 go to the heirs at law. And even i the case of deceased 
 having died out of the immediate care of a person in whose 
 house he had lived, or from whom he had received assistance 
 
 were 
 that 
 
 (1) And in many instances, 88 the cases shew, where they had children, but who 
 unable and unwilling to give the requisite assistance; It would appear from the Text iu> 
 what if here laid down as the opinion of tUe Assessors, on the subject of the revoca- 
 tion of Deeds for Assistance, ha.l reference to Moveable property only, but it can scarcely 
 have been intended to be so limit? ! and the numerous Cases on this subject would suf- 
 ficiently prove that Landed property constantly forms the subject of these Conditional gift* 
 or bequeau This and sundry o'.her passages in the Memoranda of Mr. Sawers bare sag- 
 ffbted a fear that tbe Copies of (bose Memoranda are not always Correct,
 
 Kandy, revocation of Deeds. 323 
 
 and support, even to a period near that of his death, provided 
 his so dying not under the care of this person was accidental 
 and not by his having voluntarily rejected his assistance and 
 support, such Benefactor would still corne in for the property 
 before the heir at law; liable, however, to the person under 
 whose care the deceased ultimately died, for his or her trouble 
 or expence. 
 
 47. The result of the propositions laid down in Paragraphs 
 ,37 & 46 taken in conjunction with the decisions which have 
 been given above (Par. 38 et seq :) would seem to be as 
 iollows : That according to Kandyan law, the owner of Land 
 or other property is not prohibited from disposing of it to 
 any person he pleases, away, from his heirs, that the consent 
 ot the heir to such disposition is not necessary to give vali- 
 dity to it, whether the owner's reasons for so disposing of his 
 properly must necessarily be expressed seems doubtful, but as 
 it is usual not to state the reason, whether undutitful conduct 
 on the part of the heir, want of support or assistance or any 
 ether ground to such omission, must always excite suspicion, 
 and in doubtful cases must weigh very forcibly against the act 
 of alienation, that in all cas:s Deer's, di,-inheriting the heir at 
 law require to be strictly and jealously watched, and that if 
 they be not satisfactorily established, the Court will lean against 
 them in favor of the rights of the heir at law, as is the rule 
 of the law of England and of the Civil law. Sup. Par. 190, 
 that in all transfers for assistance to be rendered, the condition 
 must be shewn to have been faithfully and strictly performed, 
 in failure of which the transfer ought not to be enforced : 
 that the Donor has the right of revocation by any subsequent 
 transfer ; and even without deed, for the act of his removing 
 to another house, where the transfer was in consideration of 
 assistance, would seem to amount to a revocation ; that where 
 his intention is not clearly expressed as to revocation and other 
 disposition, the Court must decide according to the Evidence, 
 whether just ground existed for his dissatisfaction with the first 
 Donee And that where the subsequent transfer is confirmed
 
 324 Randy, rights of Ft'idows. 
 
 er the former one is revocable, the question arises ns to the 
 claim of the former Donee for remuneration, for assistance actu- 
 ally rendered by him We will now return to Mr. Sawers. 
 
 48. "When a man dies Intestate his Widow and Children are 
 his immediate heirs, but, the widow, though she had the chief 
 controul and management of the Innded estate of her deceased 
 Lusband, has only a life interest therein and at her death it is H 
 to be divided among the sons, excepting where there is a 
 daughter, or daughters married in Beena ; these or rather their 
 children have the same right to a share of their father's hind's 
 as they'; but on this subject Mr. Sowers adds under the head 
 "'widows" the widow has no right to dispose of her husband's 
 lands contrary to what the law directs although she has th* 
 usufruct of them, unless she be thereto specially authorize^ 
 by her husband as a means of securing at least the dutiful 
 obedience of his children, this is a common case, but if a 
 widow, being barren, be the hueband's paternal aunt's daughter, 
 she inherits the acquired lands, next to full brothers," AST 
 to the widow's power to mortgage the land, in certain cases, 
 
 vida infra, on the subject of the debts due and mortgage ; 
 Par. 146. 
 
 49. Soon after the Kandyr-n districts crime under the appel- 
 late jurisdiction of S. C., a case was brought up in appeal, it: 
 which this lim:!a;ion of the rights of the 1 widow to a mere life 
 interest came in question : a widow, finding herself excluded 
 a hogelher from the estate of her late husband, instituted a suit 
 against the representatives, and on their admitting her claim 
 as widow, obtained a decree llth June 1S24 by which certain 
 fields, forming about one-sixth of the estate, were awarded to 
 her in full ownership: And in this dc:rce the heir acquiesced, 
 without appeal. In May 1829, the widow, in consideration of 
 assistance, transferred these fields to one of her children by her 
 deceased husband, to the exclusion of the rest, and on her death 
 in 1833, the present action wns brought by the excluded 
 children, contrary to Kandyan law. The Court of the Judicial 
 Agent considered it unnecessary to hear evidence, and decided)
 
 ', rights of JFidcws. 325 
 
 -ase on the documents produced, viz ; the decree oflS24, 
 and the deed of 1829. The first Assessor was of opinion that 
 the widow had obtaiued an absolute right to the fielc's and 
 fould therefore dispos of them by will. The second Assessor 
 considered that supposing- the widow to have obtained an ab- 
 solute right undtr the decree, still siie ought to have shewn 
 Jn the deed of trans'er some reason for disinheriting 1 her other 
 children, or should at least have expressed her intention so to 
 do The Judicial Agent was of opinion that the meaning of 
 the decree must have be?i;, that the widow should get no more 
 thnn a life interest in the fields, which at her death ought to 
 revert to the heirs gfncra'ly, and that though a distinct share 
 had been assigned to her, it could not have been intended to 
 give her the power of alienation, as l;er husband had died 
 intestate. It was, therefore, decreed that the Notarial deed 
 should be set aside, and that the land in dispute be held by 
 all the sons in Talfoanaro, like the rest of the property. The 
 S. C, however, on the case coining before it in appeal re- 
 ferred the case back to the D. C'., to receive proof of the 
 Notarial instrument [vide Supra: Rw: 112.] of 5th May 1829 
 unless it should be admitted by the Plaintiffs, and also proof ' 
 of the assistance and support rendered by the Defendant to 
 (he mother of the. parlies, in fulfilment of the conditions of 
 that deed. There is noth rig " the judgment observed" in the 
 decree of 1824 to limit, the light of the widow to a life ir.ur- 
 est, unless, therefore, such a decree would have been ccntrary 
 to law. there is no reason to construe it in that limited sense. 
 The general rule, it is true, is that a widow has only a life 
 interest in the estate of her deceased l.usl and, but then she ?s| 
 supposed to have the chief superintendence and control of the 
 whole estate for her life. Now here she was deprived of these! 
 advantages and was obliged to sue her sons for her portion as i 
 the means of supporting herself. They admitted the justice of* 
 her claims, and accordingly, the Court awarded hrr, not a life 
 interest in the whole estate, but a part which it appears she had 
 possessed before, and that pait was decreed to her without
 
 326 Kandy, rights of 
 
 restriction or limitation. If the sons bad been dissatisfied with 
 this unqualified award they should have appealed against it; 
 Not having done so, and having admitted the justice of their 
 mother's claim it must be taken as an actual division and se- 
 paration of the shure so allotted, and therefore that she had 
 the right of disposing of it, or at least of directing to which 
 of her children it should go. For it is to be observed that 
 she does not attempt to alienate it from the family of her late 
 husband ; The answer to the objections of the second 
 Assessor is, that she does give a reason for so disinheriting 
 the other children, or rather for the preference which she gives 
 to the Defendant, by saying, in consideration of support ren- 
 dered and to be rendered &c. [as to the power of disposing pro- 
 perty, away, from the heir at law ; see the following Para- 
 graph.] If therefore the Defendant shall appear to have really 
 and bonafide fulfilled his engagement of supporting his mother, 
 he ought to be considered entitled to retain possession of the 
 land in question in pursuance of the Notarial deed, supposing 
 that instrument to be duly proved. Evidence was accordingly 
 gone into before the D. C., and the Deed and assistance being 
 both established, the S. C., on the proceedings being returned, 
 with the evidence so taken, decreed that the Defendant be 
 confirmed in the possession of the land awarded to him by 
 the deed from his mother, No- 7044, Ratnapoora 26th October 
 1833 and 23d July 1834. 
 
 50. A widow, of a husband dying childless, has the same 
 life interest, and that only, in the husband's landed property, 
 whether heriditary or acquired, as the widow of a husband having 
 issue, but if the widow be a second wife with issue, and there 
 be issue by a former wife, the widow or widows must depend 
 upon the shares of their children anrl if the share of one of the widows 
 should be insufficient for her and their support, the widow shall 
 have a temporary allowance out of the other share;," 
 
 51. "A widow loses her right and life interest in her hus- 
 biind's estate, by taking a second husband, contrary to the 
 wish of her first husband's family, or by disgraceful conduct,
 
 Kandy t rights of Children. 327 
 
 1 Such as glaring profligacy or adultery, or by squandering the 
 property of her deceased husband : any one these acts being 
 proved against her by the children would subject the widow 
 to expulsion from the house of her late husband, and deprive 
 her ofany benefit from his estate." 
 
 52. The eldest son has no right to a better share ef the 
 estate of his parents than his other brothers, and his sisters 
 having Beena husbands." 
 
 53. Daughters while they remain in their Father's house 
 have a temporary joint interest with their brothers in the landed 
 property of their pareirs, but this they lose, when given out 
 in Deega marriage by their parents, or by their brothers after the 
 death of their parents" [But not, it would seem by half brothers; 
 for in a case in which this question arose, and in which 
 the Judicial Commissioner of Kandy, doubted whether the 
 being married out in Deega would operate to the dis- 
 
 ' herison of the daughters, though he entertained no doubt that 
 * such a marriage by the whole brothers would have that ef- 
 fect; Eleven chiefs were consulted and gave their opinion that 
 the daughter did not forfeit her right of inheritance by being 
 so disposed of No. 6,754. Ratnapoora 26th October 1833, men- 
 tioned infra: par: 68, for another point; see also par: 65 as 
 to uncles giving their nieces out in Deega, "It is however, ( 
 reserved for the daughters in the event of their being divorced I 
 from their Deega husbands, or becoming widows destitute of r 
 the means of support, that they have a right to return to the 
 house of their parent's esiate. But the children, born to a Deega 
 husband, have no right of inheritance in the estate of their 
 mother's parents. This last position is to be taken as opposed 
 to the rights of sons and of Daughters married in Beena. As 
 regards collaterals and more distant relations, we shall see that 
 the children of Deega married daughters have in many cases a 
 preferable claim Indeed the exclusion of Deega married daugh- 
 ' ters themselves would seem only to have reference to sons, and 
 Btena Daughters, themselves would seem only to have reference 
 to sons and Beena daughters of the same bed, for we shall
 
 A'a/fefy, rigftts of Children. 
 
 see presently yar: 59 that Deega married daughters being tii.- 
 oiih issue of that bed have joint, if not an equal right wit!' 
 their hull 1'iotheis to their falhev'a estate, 
 
 54. If, however, a daughter, who has been given out ir. 
 Decga, should afterwards return to the house of her parents, 
 v. ith the consent of her family, and there marry a Beena II us- 
 land, the issue of this connexion will have the s-ime right of 
 inheritance in the estate of their Maternal Grand father or Grand- 
 mother, as the issue of her uterine brothers." 
 
 55. On failure of the issue of sons and of daughters, mar- 
 ried in Beena, a Decea tnairied daughter would succeed, but" 
 if she be dead her father's Brothers succeeded before her chil j , 
 dren, and again, if the brothers be dead, the Deega daughter's 
 
 raiMren succeeded before the children of her father's brothers, 
 
 ' 
 
 on this point Mr. Sawers observes there appears to be a con- 
 siderable degree of uncertainty, but the chiefs seem pretty unani- 
 mously of opinion that where two Brothers have possessed the 
 family estate undividedly the one Brother would succeed to the 
 oiher in preference to the other daughters married in Deega, 
 but where the family estate has been divided and so possessed 
 by the two Brothers, the children of a Deega married daughter 
 \\ould succeed to their maternal Grandfather before their Grand- 
 Bather's brothers; [and even in the first instance, that is, where 
 'lie brother have possessed the estate undivided!}] the children 
 of the Deega married daughter, if they become destitute but not 
 otherwise, would have a right to claim support from their Ma- 
 ternal Grandfather's esiate, though the Pareveny right to that 
 estate would be in their Grand Uncle [Maternal Grandfather's 
 Brothers.] 
 
 50. A daughter having a Beena Husband in the house of 
 her parents, her children have the same right of inheritance to 
 the estate of their mother's parents, as the children of their 
 mother's brothers, but if the children of the daughter having 
 a Bccna husband inherit any considerable landed estate from 
 their father, in that case, their share of their Mother's fami'} 
 estate would be proportionubly diminished.
 
 Kandy^Law of Inheritance. 329 
 
 57. A daughter married in Beena, quitting her parent's 
 house with htr children to go and live in Deega with her hus- 
 band, before her parent's death, forfeits thereby, for herself 
 and her children, the right to inherit any share of her parent's 
 estate [she having at the time a Brother or a Beena married 
 lister] .unless one of the children be left in her parent's house ; 
 - Cfittr of the chiefs, Mr. Sawers adds, are of opinion that the 
 daughter previously married in Beena (I) may preserve for her- 
 self and her Children her own and their claim on her parent's 
 nate, by visiting him frequently and administering to his com- 
 ' fort and especially by being present, nursing and rendering him 
 assistance in his last illness, and this would especially be the case 
 where there were two daughters and no sons, either in re-establish- 
 ing the right of one to the entire estate against the other daughter 
 married in Deega, or for half of the estate, if the other daughter 
 be married in Beena. But if there should be a son besides 
 these two daughters under the above circumstances, and he 
 living at Home; in that case the son or his heirs would ret 
 half the estate, and the other moiety would be divided between 
 the two daughters or their heirs. (2) But. should the son have 
 been living out in Beena, and the parent have been depending 
 on his daughters and their Husbands for assistance and sup- 
 port, in that case he would only be entitled to one third, and the 
 daughters or their children to one third each. 
 
 58. On this branch of the subject the followiag case from 
 Madewelletenne was decided in J834. A lather dying about 
 1814 left six pellas of land, and on his deathbed gave a Talpot 
 to his son, the Defendant, telling him to support his moiher 
 to whom he gave two other Talpots, and who took the pro- 
 
 (1) And aftertcarfs going to live with her Husband in Deega, " Sawers must have 
 intended these words to be understood, because otherwise, the rights of the Beena mar- 
 ried daughter would have remained unimpaired, and would have stood in no need of 
 this special mode of preservation. 
 
 (2) Mr. Sawers, it is pre.-nmed, means that the other moiety would be divided 
 between the two daughter*, provided both bad rendered assistance, or if one only a- 
 eisted, that the other was married in Beena ; for if one be married in Deega aid render 
 DO assistance &c. it seems clear that she could have no claim, and the estate would 
 
 in such case be divided be'.weeu the son residing hi the buut> cf his parent*, er.-i tU 
 daugh.er. 
 
 24
 
 Kandy, Law of Inheritance. 
 
 duce of one of the pellas till her death, which happened about 
 1826: from that time the Defendant, her son, took the pro- 
 duce of this pella as well as of the other five, the present ac- 
 iinn was bn.ught for a share of the land by a daughter who 
 had been married in Deega, but who it appeared had frequently 
 resided at her father's house, where several of her children were 
 born, it further appeared that she and her Children were in a 
 state of destitution. The Talpots given to the Mother were 
 not to be found ; in his answer, the Defendant stated with 
 great particularity the division made by his father of his lands, 
 alleging all those which he now possessed had been bestowed 
 on him by his father, and that his Sister, the Plaintiff, had 
 forfeited, those which had been given to her for non per- 
 formance of Government services, but of this he offered no proof: 
 The Assessors in the original Court were of opinion that the 
 Plaintiff, in consideration of his distressed circumstances, wa* 
 entitled io the Pella which -his Mother had enjoyed, the Ju- 
 dicial Agent, that she was only entitled to support for her life, 
 but on reference to the Court of the Judicial Commissioners 
 [this being before the New Charter came into operation] tha4 
 Court decreed, that she was not entitled to any thing 
 On appeal to the S. C., it was decreed that the Plaintiff be 
 put into possession of the Pella possessed by her Mother 
 till her death; The S. C. adopted the opinion of the Assessors 
 in the Court of Madewelletenne for the following reasons : " In- 
 dependently of the state of destitution in which it appears that 
 the plaintiff now is, and which of itself would entitle her to 
 some assistance from the estate of her deceased parents, it ap- 
 pears that, though she was married in Deega, she always kept 
 up a close connection with her father's house, in which indeed 
 three of her children were born, another reason is, that the 
 defendant, although he undertook to assert in his answer that 
 the plaintiff h=id received a share of the paternal lands which he 
 even specifically described, yet has not shewn that she did re- 
 ceive any part thereof; :>gain it appears that the father, on his 
 de&th bed, gave one Talpot to the defendant, and two other*
 
 , Law of Inheritance. 331 
 
 to his wife, what has become of those two latter olas does not 
 appear, but it is not improbable that one of them may have 
 been intended for the plaintiff, more especially considering- the 
 frequency of her visits to the pa'ernal residence." No. 590. 
 Madewelletenne 3d May 1834. 
 
 59. A daughter being the only child of a man's first or se-^ 
 ; cond or third marriage, will have equal rights with her brothers 
 
 of the half blood, in her father's estate, even if given out in< 
 Deen-a; This rule is qualified bv the chiefs who say that where 
 there is an only daughter, or onlj daughter of one bed, though 
 such daughters .would have absolute or parveny rights in their 
 shares, they would be entitled to shares inferior to those of 
 their half brothers; commonly, only half as much. 
 
 60. Daughters, before marriage or returning from a Deega 
 marriage, have an equal claim for maintenance from the sharey 
 of all their brothers, although of the whole or half blood, that 
 is to say, fir. m all the shares into which their parent's estate may 
 have been divided. 
 
 61. If a daughter bear children in the house of her parents, 
 without having an acknowledged husband, such children would 
 have a doubtful or weak claim to any share of their maternal 
 grand-father's property, and must depend chiefly on the good 
 will of their uncle or uncles for support, and a provision out of 
 the grand-father's estate. 
 
 62. A daughter, by conduct which brings disgrace upon her 
 family, would destroy her parveny right of inheritance in the 
 estate of her parents, but still she would have a right to sup- 
 port from the estate of her parents and could demand the same 
 at law from the brothers. 
 
 63. Daughters must accept the husband chosen for them by 
 'their parents, or in the event of the parents being dead by their 
 
 brothers, and mast go out with such husbands in Deega, but 
 "In the event of such husband turning out badly, disinhirHng 
 her children, and compelling the wife to return to her father's 
 house, the brothers are beund to make provision for their un- 
 fortunate sister and her children, out of her father's esiale. 
 
 *
 
 332 Kandy, Law of Inheritance. 
 
 64. Grand children, whether the children of a son or claxr 
 ter, have the same right of inheritance to their grand-father's 
 estate that their deceased parents would have had, if he or she 
 had survived, that is; they are entitled to his or her shares, 
 and great grand-children in like manner inherit through their 
 deceased parents. 
 
 65. The only daughter of a deceased brother or of a sister, 
 having had a Beena husband, is entitled to her parent's share 
 of the family estate, nor does she lose her -right to such,sh;ire 
 
 v t A r> '"**' *~-^z***"r '** 
 
 by being married in Deega marriage by -her^grand-fatner or 
 grand-mother, in which case she would iiave-ft-^right of inheri- 
 tance, but her being so given away by her uncles wouk! not 
 deprive her of her right of inheritance in her grand-father's 
 nr grand-mother's estate, provided she duly perform (or cause 
 to be performed) the Rajecarea : vide Supra: Para: 53 as to 
 the effect of being given out .in Deega by brothers or half 
 brothers. 
 
 66. If a daughter have unauthorized intercourse with a pa- 
 ramour in her father's house, the children of such intercourse 
 have no right of inheritance in their maternal grand-father or 
 grand-mother's property, but if the father be known, and the 
 children be acknowledged by him, they would have a claim of 
 inheritance on his parteny property, provided the paramour were 
 of -qual rank and degree with the mother. 
 
 67. The same custom regulates the succession to the mo- 
 ther's as to the father's estate, and daughters having brothers 
 have no superior rights of inheritance in their mother's landed 
 property to what they have in their father's estate, with this 
 exception, however, that when the parents have each an inde- 
 pendant Estate, the daughters, whether married in Deega or 
 otherwise, have parvc-ny rights to equal shares with her bro- 
 thers in their mother's estate. 
 
 68. It appears from Mr. Sawers's notes, to have been a dis- 
 puted question how the landed property of a person having chil- 
 dren by several wives should be divided between the children, 
 many of the chiefs gave their opinion that the property should
 
 ^ Law of Inheritance 333 
 
 be divided into two or more shares according to the number 
 of wives by whom the deceased has left children and that each: 
 family should have one share, without reference to the number 
 born of each bed, but the majority of the chiefs who were 
 consulted seemed of opinion that the property should be divided 
 equally among all the children of the different beds, share and 
 share alike, and the two following cases are given by Mr. 
 Sawers as being cited by two of the chiefs in support of the 
 latter opinion " Me tcenetce we ' Mvd ianse died intestate in the 
 Kandyan King's time, leaving two sons by his first wife, and 
 one son by his second wife, both wives being alive, but dwell- 
 ing in separate Wallavwe*. The case came before the King 
 who decided that the lands should be equally divided among 
 three brothers, share and share alike, the widows having their 
 life in'ercst reserved to them, in their respective children's 
 shares, the case was renewed under the present Government, 
 in consequence of one of the two sons of the first wife hav- 
 ing died without issue, upon which the son of the second 
 wife sued for a fresh division of their late father's property, 
 or rather that his deceased half brother's share should 
 be divided between himself and the surviving Brother. But it 
 was decided by the Rtsident and chiefs, confirmed by the Go- 
 vernor, that no fr< sh division should take place, and that the 
 ! 
 {hare of the deceased Brother should go wholly to his Brother 
 
 of the whole-bloo r l," Again," " Kolanguh pittia Moholalle left 
 by his first wife one son, by his second wife two sons, and by 
 his third wife two sons and a daughter, and when the children 
 came to contest about a division of the property, the Lands were 
 divided equally among the four sons, and the daughter was 
 left to be supported out of the share of her two uterine Bro- 
 thers. " This rule of division [jaer capita rather than her stirpes] 
 certainly seems the most consonant to natural Justice and has 
 been acted upon by the S. C ; In one case the deceased had 
 left a son and daughter by his first wife, and one daughter by 
 Uis second wife, the Court of Ratnapoora adjudged the estate to 
 b divided equally between the three children. The Court of the 
 
 . 
 O- ^u k/v^v^wtnT. L 1,0, &
 
 334 Kandy, Law of Inheritance. 
 
 Judicial Commissioner decided that half the estate should be 
 divided between the two children of the first marriage, and that 
 the other half should go to the daughter by the second mar- 
 riage. The S. C., before which the case was ultimately brougfff, 
 after adverting to the conflicting opinions entertained by the 
 chiefs on this point, decided in favor of the equal division among 
 all three children, observing that "as far as this Court had 
 been enabled to ascertain, the right of authority, founded both 
 in opinion and precedent, is in favor of division among all the 
 children of different marriages, equally ; that this practice would 
 certainly seem to be more consonant with the principles of equitable 
 distribution; that in the present case there was no reason founded 
 on Justice, why the daughter, of the second marriage should 
 enjoy a portion equal to that which was to be divided between 
 her Brothers and Sisters, and that the injustice of such distri- 
 bution become of course, stronger, when the children of one 
 bed were still more numerous as compared with the other. " No. 
 6754 Ratnapoora mentioned supra : par: 53, on another point. 
 69. Where an estate is enjoyed uridividedly by two or three 
 Brothers, having but one wife in common, on the death of one 
 of the Husbands, and the wife, or in the event of the wife being 
 divorced after the death of one of the Husbands, the children, , 
 being the issue of the joint connexion, can claim the share of 
 their deceased father, to hold it independently of their surviving 
 father or fathers. It one of the joint Husbands should quit the 
 connexion and take a wife for himself alone, and have issue 
 also by her, and he die Intestate, his share of the family pro- 
 perty would be divided between the issue of his first wife which 
 he had in joint-connexion with his brother or brothers, and 
 the issue of his sole wife, a moiety to each Nor has the bro- 
 ther who capriciously detaches himself from a joint connexion, 
 after the issue born under it, the power of depriving his first 
 family of the whole of his share of the family estate; one 
 moiety at least of his share should remain with his first family, 
 begotten under the common connexion of him and his bro- 
 thers. " Mr. Sawers adds thai" there is a difference of opiniorv
 
 Kandy y Law of Inheritance.. 835 
 
 on this point, some of the chiefs say, that the Brother detaching 1 - 
 himself from the joint connexion, undi-r any circumstances, can 
 deprive the ihsue of such connexion of any part of his proper- 
 ty^ but they admit that a man is liable to support his children 
 begotten under joint marriage, and that if the means of the fa- 
 mily be inadequate to their support he cannot deprive them of 
 the whole of his share of the iamily estate, and quit the. joint 
 t vnnexion to form a new one." 
 
 a <T 70. Where an estate is enjoyed undividedly or otherwise by 
 hree Brothers, two of whom are married to one wife, while 
 the third Brother has a separate wife, in the event of one of 
 the family or associated Brothers dying without i^sue, the other 
 Brother with whom he had the joint wife shall be his sole 
 heir, and the Brother having a separate wife shall have no 
 share of such demised brother's property of any land, /u^v^ , 
 
 71. The acquired property of one associated brother, jly ing 
 without issue, goes to the other associated brother, but the pro- 
 perty which the deceased had received from either of his pa- 
 : rents would revert to that parents and associated brothers, be- 
 ing cousins or strangers in blood to each other, are recipro- 
 cally the heirs of each other, if either die without issue, to the 
 property of all kind which the deceased may have acquired during 
 the association; but not to the property which the deceased 
 . may have received from his parents or brothers or sisters, or 
 " which le may have inherited in any way from his own family. 
 72. Should an associated husband die leaving children by a 
 former single marriage, such children would be his heirs, except 
 to the property acquired during the association, which property 
 would go to his associate. 
 
 s 73. The issue of an associated connexion inherit their fa- 
 ther's parveny estate equally with the half blood by a former 
 or subsequent marriage of their father, unless the father should, 
 in the first instance, have transferred or settled the whole or 
 any part of such properly on his first family, in which crse, 
 the second family gels the whole which the father had reserved 
 to himself of his hereditary estate. But the property acquired
 
 J36 Kandy, Law of Inheritance. 
 
 under such marriage goes to the issue of such marriage respective* " 
 ly, unless the father should have made a division of his acquired 
 property also, at the time of his separation from his first fa- 
 mily, in which case, the last family would get the whole of 
 that share of the acquired properly which the lather had re- 
 seived for himself. 
 
 74. " Uterine brothers and sisters, though born to several 
 
 > 
 
 fathers, have all equal rights of inheritance to their mother's 
 peculiar estate. 3 ' /-> ?*'* 
 
 75. " A son," detaching himself from his family and forming 
 a Beena marriage in the house of an ether, does not lose his 
 right of inheritance to the estate of his parent .% but if he 
 neglect to sue for such right in his life time his children will 
 have but a weak and doubtful claim on the estate of their 
 father's parents for their father's share, generally speaking, such 
 claims are considered to be destroyed by the neglect of the 
 father;" Mr. Sawers adds, " the chiefs are generally agreed that 
 in order to maintain the rights of children begotten in a Beena 
 marriage of the father in another's house the children must have 
 been received as heirs presumptive in the house of their grand- 
 father; that is, they must have been in the habit of visiting 
 him, of paying him respect and rendering assistance to him as 
 to their parent." 
 
 76. " The same rule above stated armlies. to a son adopted by 
 
 an uncle or aunt, or by a stranger, to inherit the property of 
 the adopting parents. The son so adopted does not thereby lose 
 his right of inheritance in the estate of his parents who begat 
 him, but a daughter BO adopted would, unless she were an only 
 child, lose her right of inheritance in her parent's estate, as 
 much as if she had been given out in Deega." To this posi- 
 tion as regards the son, Mr. Suwers adds, "But the chiefg 
 consulted are unanimously of opinion that the son so adopted 
 will lose the right of inheiitance in his natural father's estate, 
 in the proportion which the extent of the adopted father's es- 
 tate bears to what would have been his portion in his own 
 lather's estate. And if the estate, which he acquires from his 
 
 AV> wJ 4<v *Wf . K
 
 v 4t- 
 
 Kandy t La w of Inheritance. 337 
 
 s v - 
 
 adopted parents be larger than the son's porlioii ,o{ his natural 
 father's estates he will only be entitled out of the latter to 
 uch a share as would be sufficient to preserve to him the 
 name of his ancestors. 
 
 77. A son becoming a Priest thereby loses all right of 
 inheritance in the property of his parents, because to take the 
 Robe is to resign all worldly wealth, Nor shall he be res- 
 tored to his right of inheritance by throwing off the Robe af- 
 ter his father's death, unless he shall have done so at the re- 
 quest of his bi other, or by the unanimous request of his bro- 
 thers, as the case may be, in which event, he will have a right 
 to that share of his parent's property which would have fallen 
 to him, lad he never taken the Robe. But should one bro- 
 ther, without the consent of his other brothers, being laymen, 
 induce the brother, a Priest, to throw off the Robe, then that 
 broiher shall provide for the Sewralle out of his own share of 
 the property solely ; and the Sewralle shall have no right to 
 demand any portion of the shares of his other laybrothers. 
 But should a Priest be stripped of his Robes for some viola- 
 tion of the rules of his order, or should he throw it off from 
 caprice, he has, in either case, a right to subsistence from the 
 estate of his parents. In a case from Ruanwelle the plaintiff 
 claimed lands in right of his associated fathers, four in num- 
 ber, all of whom were dead; It appeared that after the death 
 of the plaintiff's mother, some of the fathers had married a se- 
 cond wife, the defendant, who had remained in possession 
 of the lands since the death of her last surviving husband, 
 that the plaintiff had become a Priest in the Maritime Pro- 
 vinces, and had been for some years absent from his own 
 country, during which period the widow had performed the 
 Rajakarea , and that he had lately returned, thrown off his 
 Priest's Robes, and instituted this claim. The second and third 
 Assessors were of opinion that the plaintiff was entitled, as heir 
 to his fathers : The D. J. and first Assessor considered that 
 the defendant ought to retain possession for her life, and that 
 at her death, the lands should go to the plaintiff, and it was 
 
 35
 
 339 Kandy, Law of Inheritance, 
 
 00 f'emed accordingly. And on Appeal to the S. C. this de- 
 was affiimed. No. 2248. Iluanwelle 27th May 1835. 
 
 78. The foregoing rules of the Law of inheritance must be 
 undt rstood to apply only in cases where the caste of the pa- 
 rents has been equal, for the children of a wife of inferior caste 
 
 it of the husband cannot inherit any part of the parveny 
 dr heridilary property of the father, that has descended to him 
 from his ancestors, as Ions: as a descendant, or one of the pure 
 blood of those ancestors, however remote, remains to inherit. 
 But the issue of the low caste wile can inherit the lands ac- 
 quired Ly their father, whether by purchase or by gift from 
 stringers; and should no provision of this kind exist for the 
 children of a low caste wife, they will, in that c; se, be entitled 
 to temporary support from their fathn's heriditary property. " 
 
 79. " Failing immediate descendants, that, is, issue of his own 
 body by a wife of his own or of higher caste, a man's next . 
 heir to his landed pjoperty [reserving the widows' life interest] 
 
 is his father, or if the father be dead, the mother, but fora 
 life interest only," [this limitation to a life interest seems, how- 
 ever, to be in contradiction to what \\iil be slated in par. M2 
 and 65, Ly uhich the mother is slated to be absolute heiress 
 at law to her chi'dien dying without issue, and to have the 
 joutr of disposal of the fathers parvtny estate, which she in- 
 thiough them] "4^on ti.e ha me conditions on which, 
 ulds her deceased h. sband's estate, \iz. in trust merely lor 
 her children [and this limitation 10 a mist, or life interest, seems to 
 apply to the father equally ;ts to the mother, in the case of ac- 
 t^uir.d property,] if the father and mother be loth dead, the 
 irotlu-r or bi others and their suns, and failing brothers and their 
 sons, the sis;er or sister's sons succeeded. " - 
 
 60. The chiefs are agreed that a sister's son had not a 
 e right to the brother's daughter, unless he has been 
 adopted Ly his uncle, and therefore that Jailing a brother's sou 
 the property should be dhided between the sister's son and 
 the brother's daughter. But should the nephew have been 
 neglected while the uncle was instrumental in procuring a Beena 
 
 '
 
 Kandy, Law of Inheritance. 339 
 
 husband for his niece and appearing- otherwise to take a paternayl 
 solicitude about his niece, in such case she would be her un- 
 cle's sole heiress rather than the nephew, being a sister's son. 
 
 81. " The htisLand is luir to his wife's landed property [but 
 see further in this par. this position controverted] which at his 
 death, goes lo his heirs; but if the wife leave a son and the 
 father marry again and have issue of the second bed, in such 
 case, on the death of the father, the son of the first bed would 
 inherit the whole of his mother's estate with a moiety of his 
 father's estate, while the children of the second bed would in- 
 herit the other moiety of tho latter estate, and in the event of 
 the son of the first bed dying without issue, the children of 
 l he second bed would only inherit from him the moiety which 
 hud descended to him of the father's estate, and his mother's 
 estate would reveit to his mother's family." "This, adds Mr. 
 S:nvers, is the opinion of Doloswclle Dhsave of Sairragam. " 
 f.<JBut the chiefs of the Udarafte are unanimously of opinion 
 that the husband is not the heir to his wife's landed parveny 
 estate which she inherited from her parents, nor to her acquired 
 landed property, that on the contrary the moment the wife di>-s 
 the husband loses all interest in her (State, which, if she has 
 left no issue, reverts to her parents or tluir heirs, and that 
 though the wife is entitled to the entire possession of her de- 
 ceased husband's estate so long ns she continues single and re- 
 mains in his house, yet the husband must quit his wife's es- 
 tfcte the moment she dies, 
 
 82. The mother is heir to her children even in the parveny 
 c 
 
 /property of her deceased husband through thsm. But if she 
 die intestate, the estate will revert to her husband's family whose 
 pavveny property it was, with this exception, that if the mother 
 has children, either by a former or subsequent husband, these 
 children being the ultimate brothers and sisters of the children, 
 through whom she inherited the estate, will inherit the same 
 from her; And children of the same mother by different fa- 
 thers are reciprocally heirs to each other, after the children of the 
 , whole blood have failed. But if the mother has beeu divorced by any
 
 S40 Kandy, Law of Inheritance. 
 
 of her husbands, the children born to other husbands cannot inherit 
 the property of the children whom she had borne to the divorcing 
 husband. 
 
 63. If a wife die Intestate, leaving: a son who inherits her 
 pro]>erty, ana that son die without issue, the father has only 
 a life interest in the properly which the son derived from or 
 inherited through his mother. And at the father's death such 
 property goes to the son's uterine brothers or sisters, if he have any,' 
 and, failing them, to the son's nearest heirs in his mother's family. 
 
 84. With respect to the father's property, the right of in- 
 heritance of the half blood is postponed to that of brothers 
 and sisters of the whole blood ; For example, A has by his 
 first wife two sons and a daughter, and by his second wife 
 two sons, and dies : On the death of one of the sons of the 
 first bed without issue no part of his property would go to the 
 children of his second bed, or half blood, But the brother and 
 rister of the whole blood would inherit the whole of the de- 
 ceased brother's properly ; On failure, however, of the bro- 
 thers and sisters of the who'e blood and their issue ; th 
 brothers and sisters of the half blood are then to inherit. 
 
 85. The following is said to be the exposition of Doloswelle 
 Dissave of Saflfragam " The right of inheritance of the uterine 
 children of the half blood is postponed to that of paternal 
 uncles and aunts and their issue, except in respect to the mo- 
 ther's jroperty. For example, Lokuralle marries Kallu and 
 has issue Tikeralle, Lokuralle dies and his widow is taken to 
 wife by Sinmalhamy and ha issue, Tikeralle dies [without issue] 
 and the property which he inherited fr,.m his father LokuraUt 
 reverts to the brothers and sisters of Lokuralle, and does not 
 go to the issue of Sirimalhamy, though they are of the half 
 blood with '/ikeralle, b<ing children of the same mother." This, 
 however, goes on the supposition that Kallu the mother is dead, 
 for as the mother is the heir of her children (par : 82.) th 
 property of Tikeralle, if his mother Kallu had survived him, 
 would have become her absolute property, and entirely at hi 
 disposal.
 
 Kandy, Law of Inheritance. 341 
 
 86. The property derived from the father goes to the half 
 brothers on the father's side, in preference to the half brothers 
 on the mother's side, for example: A has a son by his first 
 wife, and another son by his second wife, and dies, and hi 
 estate is divided, his widow marries again, bears children to 
 her second husband, and dies, her son by A's children inherit* 
 in preference to his mother's children by her second husband, 
 *' Mr. Savvers adds that Dehigame D. Nilleme, alone, holds the con- 
 trary to be law, viz : that uterine children have a preference 
 to the brothers or sisters of the half blood by the father's side, 
 though the property may have originally been the father's 
 parveny." 
 
 87. "Two half brothers associated with one wife are heirs 
 reciprocally to each other in preference to brothers of the whole 
 blood : suppose A leaves two sons by his first wife, and two 
 sons by his second wife, at his death, his property is equally 
 divided among the four sons. If a son of the first bed be- 
 comes the associated husband of the same wife with a son of 
 the second bed, these two half brothers would inherit from 
 each other, unless the association be entirely dissolved before 
 
 _ the death of either of them." 
 
 88. " Nephews and nieces of the whole blood succeeded be- 
 
 vfore the brothers of the half blood." 
 f i_- 
 
 89. " So sisters of the whole blood, though given out in 
 
 Deega, succeeded in preference to brothers of the half blood." 
 
 90. To an estate coming from the mother the maternal 
 cousin will succeed before the paternal cousin, as will appear 
 decided tn the following case of Deyakelenatoele Unanse, Vs. 
 Eoavge Nillfme. The lacts of that case ore stated to be as 
 follows : Walopola Mahatmea, having a husband in Beena had 
 three daughters, among whom her estate was divided ; the 
 eldest married Dehigame Ange mutte Nilltme, and had a son 
 who succeeded to his mother's property, but becoming a priest 
 he consequently had no issue, the Plaintiff claimed the share 
 of this son on behalf of the Temple, which claim was of course 
 set aside. The Defendant claimed as son of the third daughter,
 
 34* Kandtj, Law of Inheritance. 
 
 Mahafmra ; a third claim was set Up by a cou- 
 sin of the last proprietor, the priest, by the Father's side, 
 Dcfiisame dvgtimiVe Niltfme, and the claimant's father having 
 been brothers, and he contested that as the property had been 
 the absolute property o! his cousin, the priest, and as he 
 the claimant was the paternal cousin of that person he had a 
 preferable claim to be his heir over the Defendant who was 
 pnly maternal cousin to the Priest. But (he chiefs who sat o 
 tl e trial, as well as those subsequently consul'ed, were unani- 
 mously of opinion that as the land in dispute had come to the 
 son of Dehigame dngemvtte Nillfme, through his mother it must 
 revert to the descend;mts of the first proprietor Watopola Ma- 
 fia (me a , \iz. to the Defendant, and the issue of the second 
 and third daughter of Walc,pola Mahatmea, Sir John D'Oyly's 
 notes soy "if a man die without father or mother laud derived 
 from either reverts to their relations respectively within three 
 generations, and in failure of such it goes to the Crown." 
 
 91. Neph; ws of the whole b'con", being sons of the several 
 brothers, share alike in the tended estate of an uncle dying 
 childless without respect (o the numbers of each brother's 
 family "Thus, if one brother leave one son, and an other brother 
 three sons, the lands of the third brother dying without issue 
 would be divided into four shares, one to each of his four 
 nephews. But if one of the first mentioned brothers were still 
 alive at the death of the childless brother, such surviving bro- 
 ther would take a moiety of the childless brother's estate, and 
 the other moiety would be divided airong the children of the 
 other deceased brother. At the death however of such last 
 mirviving brothtr, if he should rot have disposed of his moiety 
 of his deceased childless brother's portion, by sale, gift, or be- 
 quest, a flesh r'i\ibion of the childless brothei's estate will take 
 place an;cng his nephews or their respective heirs, as if his 
 Irother had riot survhed him, thut is, the. nephew's side, a'l 
 share alike in the estate of their diceased childless uncle; Mr? 
 fiawers adds, " It is held that the children of brothers are the 
 nearest of kin to a man after his own children, and that the
 
 Kandv, Law of Inheritance. 
 
 children of his sisters are of the same affinity to each other 
 that the children of brothers are to each other ; and that they 
 cannot iniermany, being in fact called and considered brothers 
 and sisters ; But it is held that there is so Hi tie affinity of 
 blood between the children of a brother and those of a sister, 
 their custom makes their intermarriages the most approved 
 connexion. The son of the eldest brother has a sort of vested 
 right so l,;:\c for his wife his coi sin, the eldest daughter of 
 his fathei's eldest sis'er, and the connexions of the most respecta- 
 ble families otten run in this w;;y, from generation to genera- 
 lion." 
 
 92. If a son acquire independent property in his father's 
 Kie time and die. leaving issue, before his father, his properly 
 goes to his widow and children. But his father if destitute, 
 would be entitled to maintenance out of the estate of his de- 
 ceased son, but would have no deeper interest in it, nor could 
 he object to the widow and chi'drcn of his deceased sonseling 
 the estate, though such sa : e would destroy the means of main- 
 taining him. If the sou leave an only daughter, the Fattier 
 would have the right to possess the acquired estate of his de- 
 
 >id son, 1 ut he could not dispose of it in any way prejudicial 
 to the parvcny right of inheritance of the daughter to her 
 . father's prop' 
 
 93. If a wife and children are obliged to quit the hus- 
 band's house from the means of subsistence failing to be suffici- 
 ent for the whole family ; this does not prejudice the right of 
 
 rilance of her or her children to the proper'y of the husband. 
 
 ?94. Sisters have a right of maintenance from their parents' 
 (state in the evtrit of their bec< ming destitute by the misfortune 
 or bad conduct of their husbands. !N<>r is this -right destroyed by 
 the sale of the parental estate by the hi others, for any person 
 purchasing such an estate, without the concurrence of sisters 
 who may have such claim upon it, would be liable to the 
 sisters of the seller for the same support out of the estate as 
 their brother would have been bound to afford them, in the event 
 oi their becoming destitute, and the same obligation uou d be
 
 344 Kandy, Law of Inheritance. 
 
 upon the holder of the estate, in the event of its passing from 
 the brother's son to his uterine brother by a different father. 
 
 95. The chiefs say that it a deformed sister for whom a 
 suitable match cannot be got in Deega, get herself a suitable 
 husband to live with her in Betna; the biothers must give up 
 to her a due portion of htr parents' estate according to the 
 number of children; which portion she can dispose of as she 
 thinks fit, but should she die childless and intestate her share 
 reverts to her brothers and does not go to her husband. 
 
 96. If a person die childless, but leaving patents, brother* 
 and sisters, the property which the deceased may have re- 
 ceived from his or her parents reverts to ihem respectively [if 
 from the lather, to the lather, if from the mother to the mo- 
 ther] and his acquired property, whether land, cattle or goods, 
 also goes to his parents, but only the usufruct of it. The 
 parents cannot dispose of such acquired proptrty by sale, gift 
 or bequest, but it must devolve on the brothers and sisters, 
 who however, have only the same degree f interest in their 
 deceased brother's acquired property that they have in their 
 deceased parent's estate, ultimately it is divided equally among 
 the brothers of the whole blood of the deceased, or their sons 
 according to what would have been their father's share; failing 
 brothers' sons, it goes to sisters of the whole blood or their 
 sons, failing- them, to the brothers of the half-blood, uterine, 
 and thtir children, failing them, to the sisters of the half-blood, 
 uterine, and their children, Jailing both brothers and sisters of 
 the hall-blood uterine and their children, to brothers of the 
 half-blood by the father's side and their children, next to sisters 
 of the hall-blood, by the lather's side and their children, next 
 to the mother's sister's side, that is to say, the mother's sis- 
 ter's children [see the latter part of par. 91] failing them, to the 
 mother's brothers and their children, next to the father's bro- 
 thers, and their children, and, failing them, to the lather's 
 ulster's, and their children. 
 
 97. The father is not the heir of the property of his 
 ehildren born in Beeua marriage, which they have acquired
 
 Kandytaw of Inheritance. 34$ 
 
 through their mother; Ihe maternal uncles or next of kin on 
 the mother's side being the heir to such property, but the 
 father will succeed to such children's property otherwise ac- 
 quired. 
 
 98. When a person dies intestate, leaving no nearer rela- 
 tions than first cousins, called brothers and sisters, his or hef 
 acquired property goes in equal shares to such cousins by th 
 father's and mother's side, that is to say, to the children of th 
 father's brothers and to the children of the mother's sister or 
 sister, share and share alike. 
 
 99. If a man die leaving relations on his mother's side> 
 but none on his father's side, his father's land will pass to hia 
 mother's family, his widow, if he left one, having a Hfe interest 
 in the property. A^t^yto 
 
 100. Sannasses and title deeds of all descriptions , by tht 
 possessors of which lands are held " P-aiia condors," by which 
 the family designation or title is preserved, as also all articles 
 received as royal gifts follow the descent of the land, and are 
 considered the common property of the heir. 
 
 101. Persons incapable of inheriting are, 1st such as hav 
 
 ilted and struck or wounded their parents, Sndly such as 
 have been discarded by their parents for shameful conduct, but 
 mental or bodily infirmities do not disqualify from inheritance." 
 
 SEE ALSO, TITLE, LAND. 
 
 The following are Mr. Sawers's Memoranda of the Kandyan 
 Laws which regulate the succession to inoveable property. 
 
 102. When a man dies intestate his widow and children are 
 his immediate hfirs ; the widow having the custody and admi- 
 nistration of the property as long as she lives in her husband's 
 house, conducting herself with prudence and circumspection, and 
 doing nothing to cause shame or disgrace to the family, nor 
 squandering the property. Provided the widow thus conducts 
 herself with propriety, her children cannot call for a division of 
 the property till her death, or till she quits her deceased 
 husband's house, but the children of a former marriage of 
 the husband may claim their shares. The widow is entitled 
 
 26
 
 34 6 Kandy, Law of Inheritance. 
 
 to no more than alike share as one of the children. But she 
 is besides entitled to what was considered her own wearing- 
 apparel, jewels and ornamenls, commonly worn by herself and 
 civen to her by her husband, also to all the properly she may 
 have brought with her on her marriage, and what she may 
 have acquired herself in the shape of presents, gifts, or bequc sis, 
 or what she may have purchased with the produce of her 
 own hands, or gained by trade. Slaves and cattle are consi- 
 dered to belong to that description of moveable property of 
 which she is entitled to an equal share with her children, out 
 of lur husband's estate. The following rules, relating to the 
 widow's claim on the personal property, will more conveniently 
 find a place here though given by Mr. Sawers under the head 
 of widow." A widow, whose husband has left no issue, is 
 entitled, at her husband's death, to the whole of his movea- 
 ble property, including money, grain, goods, slaves and cattle, 
 .unless the three last mentioned have been heir looms in her 
 husband's family, that is, what he had inherited or received 
 with the landed estate of his ancestors. But all goods, slaves, 
 or cattle acquired by the husband during the coverture, by 
 purchase, or by gift from others, the widow is entitled to a 
 share of the produce of the slaves or cattle, being of the ori- 
 ginal stock of the husband's family : On leaving her hus- 
 band's house, the widow has a right to carry with her all such 
 property as she is entitled to as abovestated : But if her 
 husband's family lands have been burthened with debt, <*r 
 mortgaged by her husband's ancestors, the widow must give 
 up as much of the moveable property as will amount to half 
 the sum necessary for the disburdening or di^mortgaging the 
 landed property of the deceased husband : And if the deceased 
 hnsband had himself so burthened or mortgaged his family 
 estate then his moveable property is liable to the last article, to 
 be disposed of for the liquidation of the same, in which case, 
 the widow would get nothing, if the debt of the deceased ex- 
 ceeded the value of hto moveable properly, to which she would 
 otherwise be entitled."
 
 Kandy, Law of Inheritance. 34? 
 
 103. " At 'the death of the widow, the moveable property is 
 to be divided equally among the children, except the daughters 
 who have already received their shares on being given out in 
 marriage. 
 
 104. In the event of there being no children, the widow 
 inherits the whole of the household goods, grain in store, and 
 the cattle which have been acquired, together with the increase 
 in the husband's stock of estate, subsequent to the marriage. 
 The property, however, which the husband had inherited from 
 his parents is generally claimed by his nearest kindred, and 
 the widow has 110 share of it." 
 
 105. If a man die intestate, leaving neither widow nor chi!- 
 dren, his moveable property goes to his parents, failing them, 
 to such of his brothers and sisters as have rendered him assis- 
 tance and support on his death bed, failing them, to his next of 
 kin or those who have rendered them assistance, except in cases 
 where the property is more than amounts to a fair recompense 
 to the stranger who has rendered the deceased assistance, in 
 which case, the stranger must be satisfied with a compensation 
 out of the deceased's property, and the remainder goes to the 
 next of kin as abovementioned ; failing parents and sisters and 
 brothers, the nephews and nieces inherit according to the shares 
 to which their parents would have been entitled and in this 
 respect the children of brothers and sisters have equal rights, 
 and failing sisters and brothers and their children, the moveable 
 property of the deceased will go to the uncle and aunts or their 
 issue, on both fathers and mother's side, that is to say; one 
 half to the kindred on the father's side and one half to the kindred 
 on the mother's side, but these rules apply only to the acquired 
 property of the deceased, since whatever he received through his 
 mother will revert to the mother's family, and what came from 
 or through his father will revert to his father's family. 
 
 106. The right of inheritance of children of the half blood 
 is postponed to that of the children of the whole blood vide 
 "supra par. 84 et seq: as to the relative rights of children of 
 the half blood, as regards landed property.
 
 K*ndy,taw of Iiiheritanc*. 
 
 107. A wife dying, having a husband and children, her pe- 
 culiar property of all descriptions goes to her children and not 
 to her husband. 
 
 108. A wife dying barren or without surviving children all 
 
 > 
 the property which she received from her parents reverts to them 
 
 or to her brothers and sister, and their issue. The husband inherits 
 all the property acquired during the coverture, but the pro- 
 perty acquired under a former marriage or when single would 
 go to her nearest of kin in her own family, but, failing brothers 
 and sisters and their issue, the husband comes in before the 
 wife's uncles or aunts, and their issue. 
 
 109. The property of a deceased person goes to the crown r 
 only when no kindred can be found to inherit vide supra par. 90 
 :: the landed property goes to the crown. 
 
 110. In the following paragraph the rules of descent by which 
 the acquired property of an unmarried daughter dying intestate 
 is to be distributed are conflicting, nor is it clear to which order 
 of descent Mr. Sawcrs considers the weight of authority to in- 
 cline. The passage itself, as well as the note by which it is 
 qualified will be here given, in order that the difference may 
 be reconciled, or that it may be decided which scale of descent 
 should be adhered to, if indeed that has not already been done 
 " an unmarried daughter acquiring property and dying intestate 
 her property goes as fellows : [each successive step supposes of 
 course the previous relation or set of relations to fail.] 
 
 1st The mother. 
 
 2ndly The father. 
 
 Srdl} The brothers and sisters of the whole blood in equal 
 
 shares, if no more than one. 
 
 4thly Brothers and sisters, uterine, of the half blood. 
 5thly Brothers and sislers of the half blood father's side. 
 (Jthly Maternal uncle. 
 Tthly Maternal aunt. 
 Sthly Maternal grand-mother. 
 9thly Maternal grand-father. 
 lOtbly Paternal uncle.
 
 Kandy, Law of Inheritance 
 
 llthly Paternal aunt. 
 
 12thly Paternal grand-father, 
 
 llthly Paternal grand-mother. 
 
 I4thly Maternal uncle's sons and daughters -or grand-son* 
 
 and grand-daughters. 
 
 16thly Maternal aunt's sons and daughters, a* tr*<^h' 
 16thly Paternal uncle's sons and daughters. 
 ITthly Paternal aunt's sons and daughters. 
 Mr. Sawcrs adds in a note, that "this was the opinion of the 
 first Adigar and some others, but that certain other chiefs, whom 
 he mentions, were of opinion that brothers and sisters of th 
 whole blood would share equally their deceased brother's 
 property, and that the same should be the case with half 
 brothers and sisters' uterine and half brothers and sisters on th 
 fathers's side; that is, that the sexes related in an equal degree 
 should share equally. And that all the chiefs now concurred in 
 opinion, that the sexes should share equally up to the paternal 
 uncles and aunts. The following table is then subjoined by 
 Mr. Sawers, which, it will be observed, varies from the former 
 one, from the 5th step in the scale. 
 
 A child dying intestate, his or her acquired property goes. 
 1st To the mother, 
 2nd Father, 
 
 3rd Brothers and sisters of the whole blood, 
 4th Brothers and sisters, uterine, of the half blood, 
 5th Maternal grand- mother, 
 6th Maternal grand-father, 
 7th Maternal uncles and aunts, 
 8th Paternal grand-mother, 
 9th Paternal grand-father, 
 
 10th Half brothers and sisters, by the father's side, 
 llth Paternal uncles and aunts, 
 12th Maternal aunts children, 
 18th Maternal uncle's children, 
 14th Paternal uncle's children, 
 15th Paternal aunt's children.
 
 350 Kandy, Law of Inheritance. 
 
 *"*v C^ 
 
 111. The assessors unanimously state, that the mother is 
 
 heiress to the acquired property of her children, dying unmar- 
 ried, and without issue, and that the same is entirely at her 
 disposal: But should she die intestate, the property would go 
 to the brothers and sisters of the whole blood, equally, and, 
 failing them, to the brothers and sisters of the half blood f 
 uterine." 
 
 112. "The assessors are of opinion, that lands as well as 
 moveable property acquired by an unmarried woman, dying in- 
 testate and without issue, would follow the above rules of suc- 
 cession, but parveny property would go to the nearest male 
 relations only, of that side of the family from which she in- 
 herited. 
 
 113. Property given to a concubine, or acquired by her, if 
 she die intestate and without issue follows the same rule of in- 
 heritance as the property of an unmarried woman, but if a con- 
 cubine or a prostitute leave issue, such issue will inherit their 
 mother's property." 
 
 114. "The debts of the deceased must be paid by them 
 who inherit his or her property according to the value of their 
 respective shares. Debts of money, Paddy, or Grain, should be 
 paid by those who inherit the lands : But if the moveable pro- 
 perty of the deceased be large, in proportion to the landed pro- 
 perty, the heirs of the moveable property must pay a share 
 of the debts, in proportion to the value of such property." 
 
 115. " It is a pious duty incumbent on sons, to pay their 
 parent's debts although they may not have inherited any pro- 
 perty from them. The sons, and, failing sons, the daughters 
 could be seized as s'aves for the debt of parents, after the 
 death of the parents" Mr. Sawers adds that " it was customary" 
 in such case, for some near relation or friend to tie a piece of 
 linen rag round his neck with small copper coin in it and to 
 walk about the country till he had collected in charity a sum 
 
 ullident to release the unfortunate relative." 
 
 116. A child seized and taken as a slave for the debt of 
 a parent cwuld at any period within thirty years emancipate him
 
 Kandy, Guardianship. 351 
 
 or herself, by paying the debt, but not if the child had been given 
 voluntarily by the parent for the debt, with a written deed of 
 transfer. After thirty years the slave could not so emancipate 
 himself, and If a woman, neither she nor her children could 
 be so emancipated." 
 
 *~" 117. "If a Beena husband contract a debt without the 
 consent or knowledge of his wife, she is not liable to pay it. 
 A Deega wife is liable to pay the debts of her deceased hus- 
 band, whether she have inherited property from him or not ; 
 The husband is liable to pay such debts of his wife as she 
 has contracted for the purposes of the family; but not such 
 as have been unnecessarily contracted, and without the know- 
 ledge of the husband." 
 
 118. "When the family of a man or woman has been 
 separated and apportioned off " [that is, it is to be presumed, 
 the estate divided]" and such man or woman has contracted 
 a second marriage, the members of such separated family shall 
 neither have a right to share in the estate of their parent 
 at his or her death, nor shall they be liable for the debts of 
 their parent contracted after the separation : The issue of the 
 second marriage shall inherit the whole estate and be liable 
 for the debts : But the separation must have been complete 
 and indubitable." 
 
 ^ 119. "A Parent is not liable to pay the debt of a child, 
 unless the debt have been contracted for the benefit of hi 
 parent's family : A lather could not be seized for his son's 
 debt." 
 
 * ON GUARDIANSHIP MR. SAWERS OBSERVES : 
 
 120. " Children being minors and left orphans, provided 
 they have not been placed specially under the guardianship of 
 any one by their Parents, fall under the guardianship of their 
 maternal grandfather or grandmother, failing them to that of 
 their maternal uncles or aunts, failing them to that of their 
 paternal uncles and aunts, and failing them to that of an 
 adult brother or sister." 
 
 121. The guardian is entitled to the administration of bis
 
 Sofl Kandy, Adoption. 
 
 ward's own estate : But should the ward have no such estate, 
 the cuavdians, being of the mother's family, cannot call uport 
 the grand'ather or grandmother on the father's side, to whom 
 the father's hereditary property shall have reverted at his death, 
 to atford the means of support to their ward, but they must 
 tupport their ward in such case themselves, or give up the 
 ward te the guardianship of the grandfather or grandmother on 
 the fathers side." 
 
 122. "The chiefs know of no instance of a guardian hav- 
 ing been called to account for the produce, of his ward's estate : 
 He must account for the original property, whether in land 
 or goods ; but the guardian has the usufiuct of his ward's 
 estate, during the minority." 
 
 1 23. " The guardian is not necessarily the heir of the ward, 
 but it is very common, when a person leaves minor children; 
 to execute a deed expressed literally thus. " I give my land 
 and my child to such a person" by which deed so expressed 
 the guardian becomes the htir of the ward: And this con- 
 struction as to the right of inheritance has even been put upon 
 deeds of a more ambiguous wording, such as *' I give charge / 
 f my lends and my child to such a one." In some instances 
 there have even been decisions [declaring it is to be presumed 
 the guardian to be the heir of his ward] given by the Maha 
 A'odoctf [high Court) and confirmed by the King, upon no 
 other grounds than that of guardianship, but the chiefs say 
 that, in these cases, the child must have been taken charge 
 
 of in infancy by the guardian who must, therefore, have had 
 more the character of a parent than a guardian." " 
 
 " A. widow may appoint a guardian for her child or 
 children, with the right to inherit such children's property, io 
 the event as their dying in minority and without issue, but such 
 guardian, appointed by the mother, will not inherit the property, 
 which the ward inherits through bis or her father, which will 
 levert to the father's family." 
 
 As REGARDS THE ADOPTION OP CHILDREN. 
 
 23. A regularly adopted child, if the adopting parent has
 
 kandy, Adoption. 
 
 to issue of his or her own body, inherits (he whole estate of 
 the person adopting him or her : But if the adopting parent 
 have issue, male, or female, of his or her body, the adopted 
 child will, in tl.at case, have but an inferior portion of the 
 estate, with the issue of the parents. The chiefs are not pre- 
 pared to say positively, wkat proportion such share should bear 
 to the share of each of the real issue, but they think it should 
 be one -fourth of such share." 
 
 126. " The adopted child must be of the same cast as tht 
 adopting 1 parent, otherwise, he or she cannot inherit the heri- 
 tlitary property of the adopting parent." 
 
 J 27. " A regular adoption must be publicly declared and ac- 
 knowledged, and it must have been declared and generally 
 understood that such children are to be an heir of the adopting 
 parent's estate," vide sup: p. 117 where it is observed that! 
 the declarations of deceased persons are often very material on \ 
 questions of adoption. 
 
 128. "The fact of a child being reared in a family, even ! 
 though a near relative is not to be construed into a regular / 
 adoption, without its having been openly avowed, and clearly 
 understood that the child was adopted on purpose to inherit 
 f the property." 
 
 "~ 129. On the principle above laid down, th&t an adoption 
 should be publicly declared : when it was attempted to esta- 
 blish a deed, the proof of which was unsatisfactory, and the 
 only consideration stated for the instrument was the alleged 
 adoption of the person in whose favor it purported to have 
 been executed, of which adoption no evidence was offered, the 
 S. C. observed that the adoption, if it had really taken place, 
 would be a fact of sufficient notoriety to make it capable of 
 very easy proof, and in the absence of such proof concurred 
 with the Court below, in considering the deed not proved : 
 No. 1220 Ruanwelle, 21st October 1833 the adoption of a 
 child, supposing the fact to be proved. 
 
 130. " On the other hand it may be established to form 
 a good, and valid consideration for an absolute gift or transfer. 
 
 27
 
 354 Kandy, Adoption. 
 
 in favor of such adopted child : Thus, a Plaintiff claimed 
 certain land, by virtue of a uterine gift from his unc!e P. Ralle, 
 which was proved, but the Defendant claimed under a latter 
 deed from the same person ; Witnesses deposed that P. Ralle 
 had first adopted the Plaintiff's younger brother, who died, 
 upon which he asked the mother of the children to be allowed 
 to adopt the Plaintiff, that she at first objected to this second 
 adoption on the ground that she had already parted with one of her 
 children; and then that P. Ralle, executed the deed in favor of the 
 Plaintiff, who lived with his uncle, till his death, and remained 
 in his house till after the funeral. The Court of Kurnegalle 
 considering the deed to the plaintiff to be one of those gifts 
 which, according to Kandyan law are revocable at pleasure 
 [vide supra, par. 46, where the extent of his power of revo- 
 cation is discussed] considered that the defendant's deed being 
 of the latter date, ought to prevail. The S. C., however, on 
 appeal, took a different view of this part of the case: That 
 Court observed that if the account given by the plaintiff's wit- 
 nesses, of the adoption of the plaintiff by P. Ralle, and of 
 the circumstances under which the deed in his favor was given 
 were believed, it would appear that it was only in considera- 
 tion of this grant in favor of the plaintiff, that his mother 
 who objected to the adoption on grounds, so natural to a mo- 
 ther's objection, would give her consent to the removal of the 
 plaintiff from her house to that of P. Ralle, that if these were 
 so, a good and valid consideration had actually been given on 
 behalf of the plaintiff by his mother, and that it would be diffi- 
 cult to imagine any cause which would have justified P. Ralle 
 in revoking his first grant, except undutiful or ungrateful con- 
 duct on the part of his adopted son No. 1672. Kurnegalle 31st 
 October 1S33. 
 
 131. " On the subject of deeds and transfers" under Kan- 
 dyan law, we have already had occasion to introduce much of 
 what is given both by Sir J. D'Oyley and by Mr. Sawers, 
 when treating of the power of disposing of land and of re- 
 voking gifts or bequests of landed property. Supra, para. 37
 
 Kandy, Deeds, forms of executing, fyc. 855 
 
 to 47. The following paragraphs relate to the forms of deed 
 and to the ceremonies to be observed in unwritten transfer and 
 bequests of property" as laid down by Sir J. D'Oyley and 
 Mr. Sawers respectively. 
 
 132. " Written deeds of any kind, " Mr. Sawers observes, 
 
 " -excepting, rights to properly, were not common before the 1&} '- L 
 reign of the King Keertisee, deeds for the transfer or bequest 
 of property in parveny [perpetuity] were considered of inferior 
 validity, if they had not the imprecation, by which according 
 to an ancient form and still prevailing, superstition, a judg- 
 ment or curs^ is invoked against the person executing the deed 
 his heirs and relations, and also against all other claimants 
 who may disturb the person in whose favor the deed is exe- 
 cuted. The same imprecation was necessary to be pronounced 
 on a verbal gift, transfer, or bequest of landed property ; and 
 the same when a Ketta or Token was given. " 
 
 133. "Sir J. D'Oyley says" All deeds executed in the 
 Kandyan country [except occasionally among strangers, who 
 have adopted foreign customs] whether for the alienation of 
 land or moveable property, are net properly vouchers, b^ut mere 
 written records of the transaction ; being neither signed by the 
 parties, the writer or the witnesses. In other respects they are 
 in the nature, and bear the tenor, of regular vouchers, reciting 
 the contracting parties, the amount and object, the condition 
 of transfer, and other circumstances, and specifying the names 
 of the witnesses, and sometimes that of the writer and 
 the date. 
 
 134. "Deeds are usually attested [which we shall see did 
 not necessarily include signed,} by five witnesses, and frequently 
 by more, if the property transferred be considerable : But three 
 at the least are deemed requisite, otherwise, the deed, though 
 not at once set aside, is held questionable, and satisfactory ex- 
 planation is required why more were not called. " It is scarcely 
 
 , necessary to observe that the law, as here stated by Sir J. 
 D'Oyley is altered as regards deeds of lands passed subsequently 
 to 1st July 1835, by Ordinance No. 7 of 1834.
 
 Kandy, Deeds, forms of executing, #*. 
 
 135. "As regards the execution of deeds," Mr. Satters ob- 
 gerves " ft never was customary for the witnesses to sign the* 
 deed, it was the general practice frr the party executing it to 
 make a mark by a mere scratch or by writing one letter on 
 th leaf before it was written upon : This was commonly done 
 before the leaf was delivered to the writer by the person who 
 was to execute the deed r But its being ma ked or signed by 
 him was not considered essentially necessary to its validity, if 
 k was completed and read over to him before his death : or 
 [Mr. Sawers afterwards adds] if it were proved that it con- 
 tained the las-, verbal declaration of the person transferring or 
 bequeathing the property, such instrument would be held to be 
 valid : In short all that was necessary was, to prove the wili- 
 er intention of the disposer of the property : It was com mou 
 wuen a writer could not be projured at the moment, for the 
 ptrson making the bequest or transfer to sign or mark the 
 Ta!;:ot or O'ah, upon which the d.ed was ultimately to be 
 written." Sir J. D'Oyley says on this subject, "When * 
 man's last hour approaahes, and for want of a writer the time 
 will admit of doing no more, the dying man sometimes writes 
 ft single letter, or makes a scratch on a blank Olah, at th 
 same time verbally declaring his will : In such case the deed 
 may be written in his name immediately after his decease ; and 
 the names of those who were present at the transaction 
 being subjoined as witnesses, it is held of equal validity. " 
 
 136. Mr. Sawers continues: "The customary ceremony on 
 such occasions was for the person making the transfer or bequest 
 to deliver the Talpot, Olah, or Ketta, into the hands of the 
 person in whose favor the bequest or transfer was made, who 
 received it with reverence and respect, after which he carried k 
 round to the bystanders, and delivering the deed to each of 
 them, received it back from each in a congratulatory manner. '* 
 
 137. " It was considered sufficient to invalidate a deed, that 
 it was in the hand writing of the person in whose favor it was 
 drawn, and this was certainly a necessary precaution, where deeds 
 were executed in so loose a naauaer. "
 
 Kandy, Deeds, forms of executing, Sfc. 35f 
 
 138. It was not necessary thai all the witnesses mentioned 
 la the deed should be present, it was only necessary that they 
 should have been informed by the person executing: the deed, 
 that he had executed, or intended to execute such a dee-1, and 
 that its contents expressed his will or intention, declared at 
 the time he marked the leaf." On this point, Sir J. D'Oyley 
 says "The names of witnesses absent at the time of writing? 
 are sometimes inserted in the deed, and it is considered suffi- 
 cient, provid d the deed be read to them shortly afterwards, 
 in the presence of the parties, or of him who executes it. ** 
 We had occasion, under Title "Evidence," supra. 113, to touch 
 upon this practice, and to observe, that it is impossible that the 
 insertion of the names of persons not present at the execution, 
 can give any validity to a deed. Nor is this position inconsis- 
 tent with what has been just quoted from Sir J. D'Oyley, for 
 the reading over the deid to the witnesses, in the presence of the 
 parties, or of the person executing- it, is in fact tantamount to a fresh 
 execution, and delivering f the deed though it would no doubt 
 be better and more satisfactory that each witness should 
 sign the instrument, in order to leave less possibility of doubt 
 as to the iden;ity of it. 
 
 139. " When no deed or Ketta was given, on a bequest being 
 made, it was customary for the person making the bequest to 
 lick the right hand of the Donor, and to deliver the bequest 
 in his or her favor. -The strict observance of all such ceremo- 
 nies gave the greater validity to the & t and deed." In a case 
 from Matelle. mentioned in paragraph 43. We find the Dontr 
 of land giving one of his teeth to the Donee, as a token of 
 his intention. 
 
 The following is given by Sir J. D'Oyley, as the law and 
 custom of Kandy on the subject of debts and contracts" and 
 incidentally of mortgages. 
 
 140. "As trade was unknown to the greater part of the 
 Kandyan nation, their contracts were neither numerous nor var 
 ried, and consisted chiefly in the borrowing of money or grain 
 for present necessity, mouey to pay fees or fines to their chiefs
 
 356 Kandy, Debts, Contracts. 
 
 or by the chiefs to satisfy similar demands from the King, 
 grain for sowing and for subsistence. If the amount borrow- 
 ed were large, writings were usually executed, with mortgages 
 of lands or moveable property. If small, some article of pro- 
 perly was delivered in pawn, with or without writing, except 
 in transactions between Individuals who had such confidence in 
 each other, as to lend without either." 
 
 141. "If money be lent on personal security, or if security 
 be afterwards given, when the debtor is pressed for payment, 
 which is a more frequent practice, such security is usually to 
 be answerable for the debt first, in case the debtor die or ab- 
 scond, wilhin a fixed period, or secondly in case the debtor 
 fail to pay within a fixed period. In the first case, the se- 
 curity has only to produce the body of the debtor and deliver 
 him to the creditor at the expiration of the appointed time." 
 
 ** In the second case the creditor demands his money of the 
 surety [the time being expired] without having recourse to the 
 original debtor, or distraining his property, and the surety must 
 seek his remedy from the debtor." 
 
 142. "Money is usually borrowed on one of the following 
 conditions : First on mortgage of land, with a stipulation that 
 it shall become the absolute property of the creditor, if the 
 money be not paid within a specified period, the land being 
 possessed by the creditor, to enjoy the produce in lieu of in- 
 terest : Secondly on mortgage, generally, without the stipula- 
 tion above mentioned ; but the creditor possessing the land for 
 interest. Thirdly, on mortgage, possession being given to the 
 creditor, to enjoy not only on acconnt of interest, but on con- 
 dition, that one or more Ridies of the principal sum borrowed shall 
 be discounted [deducted from the debt] every year, till the 
 whole be paid off; the usual rate being one ridie for every 
 pela of land. Fourthly on mortgage, without delivering pos- 
 session of the land, but only of the title deed, with the stipu- 
 lation that it shall become the absolute property of the cre- 
 ditor, if the debt be not satisfied within a fixed period : Fifthly 
 on mortgage, without possession, but with a stipulation to pay
 
 Kandy, Debts, Contracts. 359 
 
 portion of the annual produce in lieu of interest. Sixthly 
 without any mortgage, but with a stipulation to pay a certain 
 quantity of paddy annually, in lieu of interest : In the two last 
 cases, it is more frequently a caution, that one or more lidies 
 of the principal be also liquidated annually." The following 
 observation by Mr. Sawers on the subject of " Mortgages" will 
 properly find their place here. 
 
 143. " In former days, the person in possession of a parveny 
 landed estate, inherited from his ancestors, and having children, 
 might not mortgage such estate without the consent of his wife, 
 if the children were minors, or of the children, if they had arrived 
 at years of discretion : But the consent of more remote heirs 
 was not necessary, to render the mortgage valid against them. 
 This custom has become obsolete and never was universally 
 acted on, but prudent persons take the precaution, both in, 
 purchasing land, and in lending money on mortgage, to have 
 the consent of the heirs, and that consent either publicly ex- 
 pressed or entered in the deed." 
 
 144. "A mortgage made by a co-heir, of more of the fa- 
 mily estate than his own portion only being liable for the 
 debt." 
 
 145. *' Any person other than the rightful owners holding 
 property, cannot sell, mortgage, or pawn such property, to the 
 prejudice of the rightful owner, that is to say, the rightful owner 
 shall be entitled to recover his property, free from all burthens, 
 which the person who wrongfully hold possession of it may 
 have attempted to impose upon it." 
 
 146. " A widow having the administration of her deceased 
 husband's estate may, during the minority of her children, 
 mortgage the landed property, if necessity require it : But thie 
 must be clearly to satisfy the necessary and urgent wants of 
 the family, otherwise the children might not be held liable to 
 pay the debt, But in all cases, where the children are as much 
 as 14 or 15 years old, their consent is necessary to render 
 such mortgage valid against them and their lands," We now 
 return to. Sir J, D'Ojley on "Debts" &c.
 
 360 Kandy,D.bti, Contracts. 
 
 147. " If no lands were delivered into the creditor's possession, 
 nor any share of produce assigned to him, payment of interest 
 in money was stipulated, according to one of the following 
 modes. First, an increase took place [usually 100 per cent 
 in Kandy, and 50 per cent, in the country] and if the principal were 
 not paid within the year no interest was charged, and though 
 payment were protracted for any indefinite term beyond the year* 
 the interest did not increase, that is, did not exceed the 100 
 or DO per cent, abovementioned ; secondly, a certain rate of 
 interest was stipulated to be paid per mensem, or per annum : 
 and whatever amount might accumulate, it admitted no limita- 
 tion. The rate of interest long sanciioned in Kandy by the 
 example of the Royal Treasury, from which it was frequently 
 lent to traders, was 20 per cent per annum ; but as no pro- 
 hibition existed, the monied men, who were few and consisted 
 chiefly of Malabars and Moormen, often exacted, three, four^ 
 six, aad latterly even eight pice a month for each P. N. Pagoda. 
 This having been brought to the Ring's notice, about ten years 
 before the establishment of the British Government, the rate 
 was limited by his order to two pice a month for each P. N; 
 Pagoda, which was then equivalent to Ten Ridies: But this re- 
 gulation is not considered to have affected the interest stipulated 
 to be paid according to the first mode: money was usually 
 borrowed under immediate pressure, and under the latter con- 
 dition by traders who were almost exclusively of the two classes 
 just mentioned." 
 
 148. "A premium or preliminary present was also sometimes 
 given for the favor of the loan, according to the necessity of 
 the borrower and rigour of the lender; It usually consisted of 
 cattle, paddy, cloths, or some gold or silver articles, and sometime* 
 stood in the place of interest, if the money were repaid within 
 a short stipulated period, but not otherwise ; This present was 
 called Mchicareme, and a similar word in the Maritime Pro- 
 vinces means earnest money paid by a purchaser of property to 
 the seller, to fix his bargain. The exorbitant rate of interest 
 [Sir J. D'Oyley adds] is at once a proof ol the scarcity of float?
 
 Kandy,15ebt*, Contracts %c. 3(51 
 
 ii:g rhoncy in the Country, of the Monopoly of trade, and of 
 the oppression and exactions to which the people were subject." 
 
 149. "It was a very general practice in (he country, to bor- 
 row Paddy or other Grain for seed, and for consumption, pay- 
 able . at the next ensuing Harvest. The established rate of in- 
 terest was 50 per cent, and the creditor often went, or sent 
 
 . his people to the fields to secure payment; If after receiving it 
 * on the spot, he re-deli\ered it to the debtor, on his entnaty, 
 and allowed a respite till the next season, the whole was con- 
 sidered as principal, and 50 per cent charged upon the whole 
 amount next year. This exaction of compound interest was 
 at one time forbidden by the King, as oppressive to the 
 poor, but of course could only be partially prevented in practice. 
 If the debts were suffered to remain outstanding, without such 
 receipt, and re-deliveiing, no more interest was charged. In 
 
 the seven Korles and Nuwere-Kalaweya, i\o interest was charged 
 
 ' 
 on Paddy, because it was an abundant article. In Dumbera no 
 
 interest is payable on money or Grain; but in these Districts, 
 it is often customary to receive a surplus of one or two La has 
 on every Pela of Grain, not on account of interest, but in order 
 to compensate for the diminution of quantity by drying. The 
 case of this exception in Dumbera is not sufficiently explained, 
 but it is said to have been established by a former King's order. 
 For loans of Paddy, also, the borrower was sometimes, but by 
 i o means universally, required to give a premium. The com- 
 mon rate was four pice per Pela, but in times of scarcity, I 
 understand, has risen to six and even eight pice for seed Paddy. 
 In countiies where it was customary to charge interest on Paddy, 
 the premium occasioned no diminution of the interest. 
 
 150. "If a debtor died, the principal was recoverable from 
 his heirs, to the extent of the assets of the deceased, but not 
 the interest, whether the loan were of money or Grain." 
 
 151. " Where land is dtliverd into the tcm;oiary possession 
 of the creditor, the mortgager still performs King's service, to 
 which the land is liable." Accordingly in cases where it is 
 matter of dispute, whether the land has been sold absolutely 
 
 28
 
 362 Kandy,Debf, Contracts $c. 
 
 or only mortgaged, we often find each party endeavouring to 
 eftablish the performance of tl-is duty bj hicnself, as a proof, 
 supicsiiig the service to have been performed by the orioina 
 owner, that the laud had only been mor gaged, or sup- 
 posing it to have been performed by the occvi] ier, that 
 there had been an al solute sale supra: par. 3 infra: title Laud, 
 
 par. 25. 
 
 152. "The creditor possessed considerable power over bis 
 debtor, but rarely exerdsed it iu a severe degree, till after 
 numerous solic italic !-.s made in M.in for the recovery of his 
 right. For it was customary to make lepeated demands to 
 allow further respite and to fix another term, accepting lauded or 
 onal security, on one of the above mentioned conditions; and 
 a new kmn was otien procured n; en mortgage, to liquidate 
 former and su alter debts." 
 
 153. " Sometimes, on complaint to a cRef, for recovery of 
 debt, the debtor would be summoned, and the claim inves- 
 tigated in regular course, and when alter admission or proof 
 of the debt, payment was directed and unreasonably delayed; 
 the chief, on application, would sometimes send officers to seize 
 the debtor's properly, and deliver to the creditor a p'edge, 
 sufficient to satisfy his demand. Public sales of property, under 
 execution lor debt, were entirely unknown." It is scarcely ne- 
 ;iry to say that any pioceediug, such as that which is des- 
 cribed in this paragraph, would now be altogether illegal and 
 oid. But it is useful to know that such a course for the 
 very of debts was formerly recognized; because cases often 
 pntent themstlvts in which the rights of the parlies may de- 
 I ii'l on such an ient awards or decisions which at the time 
 they were passed were received as binding. 
 
 154. "Suits an on creditors in cases of insolvency did' not 
 often occur, but it was held that the following simple and equit- 
 able rules [as regards the distubutior, of the property] should be 
 ol*< m-d : The mortgaged property must answer in preference 
 for the 6>bl due t the mortgager. Properly, the possession 
 of which bad ben fairly obtained, should answer for the debt
 
 Kandy, Debts, Contracts fyc. 
 
 due to the possessor. Any other property must be shared 
 by the creditors in proportion to their respective debts, 
 without preference, on the ground of priority of origin, or of 
 Decree." 
 
 155. "If the debtor had no properly, the chief sometimes de- 
 livered him to his creditor who was thereupon authorized t 
 confine him in his house, and if he could not obtain satisfaction 
 to employ him as a servant, or rather PS his slave, treating 
 him as such, and supplying him with victuals and clothing. In 
 this case an ola was frequently written, binding him to serve 
 the creditor, till payment of the debt, or sometimes, but more 
 rarely, one of his children was consigned to the service of 
 the creditor, upon the same condition, but frequently, without 
 any judicial process, especially if the debt were notorious, and 
 payment evaded, the creditor, having 1 obtained leave from his 
 chief or Provincial headman, ploughed the fields of his debtor, 
 or tied his cattle, or took possession of his cocoanut trees, or 
 Seized his Paddy on the thrashing floor. Any of which or 
 similar acts, soon compelled him to come forward and make 
 some satisfactory settlement. And if the creditor w^re a person 
 of comparative power and influence, he often adopted one of 
 those steps, by his own sole authority " [Sir J. D'Oyley does 
 not say what was the course, where the situation of the 
 parties, as regards power arid influence was reversed] '* This 
 was not held to be strictly legal, but if the demand were ad- 
 mitted, the debtor would rartly complain, and in the event of 
 his contplaining-, the justice of the claim would be a prominent 
 subject of enquiry, and unless it proved unfounded, the violent 
 seizure would pass unnoticed, or seldom be noticed beyond reproof. 
 ~~It is said that, in the distant provinces, powerful creditors have 
 ^ I sometimes seized by force a child or other member of his 
 debtor's family. This was considered altogether unjustifiable: 
 but instances were not unfrequent, especially in the Dissavouie*, 
 in which the debtor violently resorted to this mode of relief, 
 [as abovestated par. 116] with the intention that the sacrifice 
 aliould be temporary, but if the debt remained unpaid the
 
 304 K.indy, Debts, mides nf recoocriag. 
 
 lavery of the consigned person becams perpetuated (I) Bat 
 before he was reduced to this extremity, the distressed debtor 
 frequently found the means of satisfying the demand by obtain- 
 ing the money from a Wihare for charity, from a Deicale on 
 Condition of serving it, from the Royal Treasury by favor, from 
 
 compassionate chief or from substantial neighbours, by beg- 
 ging." The observation subjoined to para. 153 applies still 
 more forcibly to this. The means of extorting payment, here 
 enumerated, are happily exploded, and if now attempted to 
 be employed, would only render the credi or liable to punish- 
 ment as a criminal. But as debts or incumberances, now set 
 up may have been liquidated by one of these processes it is 
 not useless to be acquainted with them, as they formerly existed. 
 
 156. For the same reason the two following singular modes> ' 
 to which creditors could have recourse, deserve [as Sir J. 
 D'Oyley remarks] to be mentioned, 
 
 " First. Whenever the creditor met his debtor in th^e street 
 or road, he stopped him abruptly, and drawing a circular line 
 round him on the ground with a slick, or sometimes without 
 this ceremony, would sit down beside him, forbidding him, by 
 the King's authority, to move from the spqt without paying 
 the debt ; the debtor was obliged also to sit down, and, from 
 respect for the King's name, neither could stir, till some other 
 person, approaching and interfering, engaged to be answerable 
 for the debt, or for the person, in the presence of witnesses, 
 or called both parties before the proper chief, to have the case 
 investigated and si-ttled. This was called ffalekene Damanve, 
 or paying under inhibition. 
 
 (I) Few people would read of tills m >le of wringing sttisfaclion from a debtor with- 
 out thiuMeriug at the inhumanity of it, and exclaiming against the barbarism of a nation 
 bjr which it couM be endured. And yet. the idea of a .-imilar pledge or hostage may 
 be MTtaiaed mnd without any failing of honor in Sor'et e* which would be; to the last 
 d>-(re, indignant at finding tbftnsclves r'unp'ired -vtfi the Ka:i lynn trllies. At the moment 
 when tbete Boti are in preparation, an action ix brought in the tribunal de premier* 
 laitaarr of Paru, to oblige a Hotel keeper to give up the cuUdren of a foreigner, which 
 children tlit Hotel keeper contend* be has H right tj detVm as pledges for the Debt of 
 tWir fatber, wbicb the latter bad left unsatisfied. The Court, it is true, decrees the re. 
 Hhnthrf of tb ehiMrea. bat tb mere advancement of such a claim for grave considera- 
 tion Bad deeUton, and tbi too in the metropolis of a nation claiming to lead the way 
 a*d tet tbe example in Civilization aad liberal re&oemeut, ahould teach us to be tno-le- 
 rU in oaj leprvbaAw uf Kaodyau iuitit utioii*.
 
 Kandy, Majority^ Minority. 365 
 
 Secondly Having 1 fried other moderate means in vain, he 
 sent a slave, or servant, or othtr person, to live at the hnuse 
 of" the debtor to make constant demands for the debt and to 
 extort it by importunities ; and perhaps abuse ; on a sick man, 
 by way of imposing additional trouble of attendance and care, 
 The debtor upon this usually sent back the messenger, with 
 another from himself, bearing an humble entreaty for further time, 
 with assurance of payment, and sometimes obtained a respite; 
 if not, he was obliged to furnish subsistence to the intruder, 
 without charging it against the creditor ; and patiently to bear his 
 continual solicitations and insults, till he could ("appease his 
 
 ^. 
 
 creditor, or find means to satisfy his demand. Or sometimes, 
 with the same view of annoyance,. the creditor would tie up-au 
 pid, sickly, or unserviceable bullock, cow, or buffalo in the 
 garden, and deliver it in charge to the debtor, who was obliged 
 to maintain and tajce care of it, to be responsible for its tres- 
 passes, ^and to give an equivalent, perhaps a better head of 
 cattle or its value, if it were lost or died in his keeping." 
 
 As <o the attainment of majority according to Kandyan law, 
 Mr. Sawers has the following observation : 
 
 S V ' 
 
 157. "The age of Puberty is the age of manhood and dis- 
 cretion, and as a youngman is capable of marrying at the age 
 of sixteen, so he is competent to contract debts, and is answer- 
 able at law for all deeds executed and contracts entered into 
 by him, after the nd of his sixteenth year." 
 
 158. "Should a youth sell his land, his cattle, or his goods* 
 before the end of his sixteenth year, he can break the bargain 
 and resume possession on refunding the value he may have 
 received for such property." 
 
 159. The relation and heirs of a minor may interfere and 
 prevent his selling his property : But if they do not so interfere 
 at the moment, or as soon as it comes to their knowledge, they 
 have no remedy attei wards. If however it was done without 
 their knowledge, they might have their remedy, if their relative 
 died under age." 
 
 160. " The chiefs were of opinion that as by their religious
 
 3<J6 fandy t Majority, Minority. 
 
 Looks the age of wisdom was not attained till Forty, a person 
 who hnd lost his land, cattle, or property by an imprudent sale 
 or transfer, while under age, ought to have the privilege, tillhe^ 
 is forty, of red liming his property so lost." "It was explained 
 to the chiefs [Mr. Sawers adds] (hat the Proclamation of 18th 
 Septemher 1819, [establishing terms of prescription in the Kandyan 
 Provinces] admitted of this privilege, so a person disposing of his 
 or her property, would possess the privilege, until he or she 
 should have attained the age of 26 years, assuming sixteen^ 
 to be the age of majority." And now by the 10th clause of 
 the Ordinance No. 8 of 1S34, the periods of prescription laid 
 down by that Ordinance begin to run, na regards Minors, from 
 the time when the minor attains his full age." 
 
 161. "The same rule applies to females, being minors, as to 
 roaks." 
 
 162. " A minor at the age of ten years, may dispose of / 
 his or her property by will, But to make such will or bequest 
 valid, it must be proved that the minor was fully aware of the 
 import and consequence thereof, and further that there were 
 sufficient grounds for cutting off the inheritance from the heir 
 
 at law, " and vide in pa- : liile minority. 
 
 163. We have now gone through all that appears likely to 
 be of any general use, whether in Sir J. D'Oy ley's or Mr. 
 Sawer.i's Memoranda. It m-iy be well again to remind the 
 reader that the proposition on the different subjects which we 
 have been considering are not given here, nor could they ever 
 have been intended by the compilers of them, as absolute and 
 incontrovertible authorities, even in tb< se instances in which the 
 opinions of the chiefs are not expressly stated to have been at 
 variance with each other; but con.-idired as the b> st authorities 
 which these two gentlemen, with all their advantuges of situation, 
 were able to obtain ou the various points of enquiry submitted 
 by them, they may safely be consulted, unless and until they 
 are controverted. It is only by controversy, that erroneous posi- 
 tion* will b set right and doubtful points decided, and the
 
 "Land. 
 
 best way to invite controversy on such points is to give the 
 utmost possible publicity to the Notes, which at present form 
 the only ground on which discussion can be maintained. 
 
 For pints on which Kandyan law is more particularly touched 
 upon, see, titles, Administration Par: 42. Appeal Par: 27 Ar- 
 bitration (Gangsabe) Par: 33 3t>, 7; Assessors Par: 38 9 40. 
 Evidence Par: 113. Execution Par: 167, 181. Fraud Par : 
 199, 203, 4. Judgment 247, 8, Jurisdiction 280, 1, Lands Par : 
 13, 20, 21, 22. 
 
 LAND. 
 
 When neither party shews a right a decree should not give 
 title to either Paragraph 2. Tenant cannot dispute his Land- 
 lord's title. Paragraph 3. Action for ground share, defendant 
 denies Plaintiff's title, which is es'ablishcd, Decree for Land 
 itself, as well as ground share 4. Partial rights to Land ; Plan- 
 ters, whose share reserved, entitled to enter 5. Heirs contri- 
 bute to the expenses obtaining possession before receh ing their 
 shares 6 Notice to a,l claimants before adjudication 7. Division 
 of Land between litigants should not be resorted to, as a method 
 of easy decision 8. Resumption of laud by government, ho\f 
 effected and proved : abandonment of Cinnamon ground, while 
 cultivation was prohibited no dereliction rf future right: proof 
 of Government Proclamation &c. 9. Clause in grant against 
 alienation no impediment to seizure in execution 10. Observa- 
 tion on the right of resumption of land 11. On the right 
 of headmen to hoewandiram 12. On their right to l-20ihof gram 
 collected by them, under Proclamation 21st November 1818 
 [Randy] 13. Budhist priest incapable . of possessing land 14. 
 Rajekaria how far evidence of right 15. Government grant not 
 conclusive against all other claims 16. Mortgagee lias preference 
 over subsequent purchaser 17. Liability of evicted parties for 
 inesne profits 18. Certain points on the validity of the deed* 
 of land 19. Kandyan Proclamation 14th January 1626 sect: 4, 
 to be construed strictly : parties must be clearly brought within 
 it before held liable to penalties: Two cases to this effect, '2<>, 
 21 Restoration of confiscated property cannot operate on land
 
 365 Land. 
 
 granted after the confiscation^ to other parties: 22. Ordinaaji 
 
 against frauds 23. 
 
 1. Th<? majority of cases respecting- Land, which came before 
 the Court of Ceylon, are contested on the facts on-y, arrd 
 the decision of such cases, therefore, though often difficu't 
 and perplexing, from the entanglement of titles, and the 
 confused statements of witnesses, affords no instruction to 
 
 the reader, nor any guide for subsequent Judgments. Tho<?e 
 decisions which involved questions of Kandyan inheritance and 
 other matters connected wuh the laws and customs of that coun- 
 try have already been notice,! under title " Kandy," under the 
 present head will be given such other decisions as have been 
 passed by the S. C. relating- to lands. 
 
 2. In a country where so much land rs held without any 
 regular and conclusive written title, cases must necessarily often 
 arise of disputed possession, in which neither party is able to shew 
 a valid right. In such cases the D. C. should be careful to 
 shape their decrees so as not to give a tiiie to one party, merely 
 because the other has failed to establish his right. Thus, a plain- 
 tiff claimed part of a garden which she complained the defendant 
 had procured to be suivtyed. The defendant denhd the plain- 
 tiff's right, andat the trial, the exidence was equally unsatisfactory 
 on the one side as on the other. The D. C. gave "Judg- 
 ment for the defendant, the plaintiff not having proved her 
 right." On appeal, the S. C. referred the proceedings back, 
 in order that some further enquiry might be instituted, by 
 which the respective rights of the parties might be more satis- 
 factorily ascertained, "It is true," the S. C., obseivcd," that 
 the plain: iff lias failed to establish her right, but has the defen- 
 di.nt proved his right much better? The defendant may m 
 truth be considered as an actor or claimant in this c;.se, as 
 much as the plaintiff; for the act of survey is, in fact, a mode of 
 asserting a claim: And if, by surveying land, a person could 
 thus throw the burthen of proof on all other claimant*, assuming 
 to himself a primu facie title by the mere act of survey, he
 
 i/and. 369 
 
 would be gaining an unfair advantage over all the world by means 
 of his survey, which after all, maybe mere usurption: It would 
 seem from the evidence that each of these parties has had partial 
 possession : It would, therefore, be desirable to refer the matter 
 to arbitration, if the panits would be willing; but as the plain- 
 tiff sues as a pauper, care should be taken, in justice to the 
 defendant, to incur as little expense as possible." No. 520 
 Caltura, 22nd October 1834. The safest course when the plain- 
 tiff fails in his proof, and the defendant is also unsuccessful in 
 establishing Lis claim, is merely to dismiss the plaintiff's suit, 
 without decreeing any thii g in favor of the defendant. For 
 though a Judgment positively in the defendant's favor would not 
 be conclusive in point of law, against third parties [see par : 
 245] still it may give him ;n advan'.age which may assist hirn 
 in defeating those who possess preferable claims to himself, 
 See No. 6284 and 6311. Ratnapoora No. S85. Kurnegalle 
 and 661. Madewalletenne, where this course is recommended, so, 
 conversely, a plaintiff ought only to succeed by the strength 
 of his own title, and the want of evidence on the part of the 
 defendant is not sufficient to justify a dec-ree in favor of the 
 plaintiff No. 62S4, Ratnapoora, No. 168, Tenmorachy. Where 
 a party is in possession of land, and being conscious of his own 
 right, though he may be without any valid documentary title, 
 is desirous of ebcertaining and establishing such right, the pro- 
 per course for him to pursue is to sue out an edictile citation, 
 as directed by Ordinance No. 7, of 1835, vide supra: p. 100, 
 et seq. where the real object of this proceeding, and the re- 
 quisites forgiving validity to the writ of quiet possession, are shortly 
 discussed. 
 
 3. It is a well known rule of law, that a tenant of land [the 
 fact of tenancy being proved o r admitted] cannot dispute his 
 landlord's title, for this would be to contradict his own act, by 
 which he has consented to hold of the person letting. In 
 an action by a landlord against his alleged tenant, for rent 
 in arrear, it did not distinctly appear from the defendant's answer, 
 whether he admitted that he was the tenant of the plaintiff; Mr. 
 99
 
 370 Land. 
 
 Justice Norvis referred the case back to the D. C., " in order 
 th.it the dcf mlant might be called upon to amend his answer, 
 by admitting or denying, in express terms, the tenancy, as al- 
 leged in the libel : If the tenancy were admitted, the land- 
 lord's title could not be called in question, if denied, the 
 plaintiff must be allowed to adduce evidence in support of 
 his allegation, and the defendant to the contrary, and the 
 D. C. must thereupon decide." No. 11,924, Colombo 30th 
 April 1S34, see also No. 691, Colombo north 30th April 
 1834. 
 
 4. The following case may be considered as one of disputed 
 tenancy. An action was brought for the value of 30 parrahi 
 of paddy, being the ground share of a field, which the plaintiff 
 alleged he had allowed the defendant to cultivate, on condition 
 of receiving the ground share. The defendant denied the plain- 
 tiff's right altogether, or that he had received possession of the 
 field from the plaintiff, but claimed it as his own parveny pro- 
 perty. Tiie plaintiff proved his right by virtue of long pos- 
 session, which was established by the defendant's witnesses as 
 well as by his own ; and the D. C. gave judgment for the 
 plaintiff for the ground share, and also for the field itself, as 
 against the defendant. The defendant appealed, on the ground 
 that as the action was not, for the field itself, but only for the 
 ground share, the Judgment onght to have been li milted to 
 the latter point, and that if the action had been for the field, 
 the defendant could have established his right to- it. The 
 S. C. however affirmed the decree, observing that thoug-h the 
 elaim was not originally made for the field itself, but fop the 
 gtound share, still as the defendant by his answer had chal- 
 lenged the plaintiff's right to the soil and had asserted his 
 own, it became incumbent on the plaintiff to shew his right, 
 and that having done so, the D. C. was perfectly right in so 
 wording its decree as to prevent future litigation between these 
 parties: No. 241, Ratnapoora 22d December 1834. 
 
 5. The partial right to land which so frequently exists in 
 Ceylon among several parties, is necessarily productive of fre-
 
 Land. 371 
 
 quent litigation: A person had obtained Judgment in a former 
 P. C., for a garden, but reserving the right of the defendant 
 as planters, which Judgment was affirmed by the S. C. iu 
 November 1833. In November 1834 the plaintiff applied for 
 a wiit to eject the defendant from the garden, on the strength 
 of the former decree. But t! e D. C. decided that as the de- 
 fendants were, by the terms of that decree, joint owners, they 
 had a right to protect their shares, as planters, by their pr2- 
 sence, and rejected the application. The plaintiff appealed, and 
 urged that if he were allowed to go into evidence, he could 
 have shewn that there was a necessity for ejecting the defen- 
 dants, and that he should have been ready to buy up the 
 planter's share at a valuation. But the S. C. held that the 
 plaintiff must stand or fall by the decree, in which, so far, from 
 any right of ejectment being given, the right of the defendants 
 was expressly reserved. Nor could the plaintiff insist on buying 
 the planter's share, if the defendants were unwilling to part 
 with it, for this would be carrying the decree further than the 
 terms of it warranted. No. 2692, Galle, 14th May 1835. 
 
 6. When an heir was sued by co-heirs for their shares of 
 fend, and Judgment was obtained against him, it appeared that 
 the defendant had recovered the lands in quest ion from a 
 person who had got unlawful possession of them, at his own 
 expense, to which the plaintiff had contributed nothing. On the 
 case coming before the S. C. It was ordered that the decree 
 should not be carried into execution, till the plaintiffs had re- 
 paid to the defendant their proportion of the expenses which the 
 
 latter had incurred in prosecuting and defending the suits re- 
 lating to the land in question ; No. 7826 Ne^ombo 8th Oc- 
 tober 1833. 
 
 7. One of the most frequent difficulties in deciding land cases in 
 Ceylon arises out of the almost infinite claims which exist, in many 
 instances, to the same piece of land by different parties, with- 
 out any division having taken place. In order to come to 
 a satisfactory decision on ques ions affecting lands so situated, it 
 is evident that all the share holders or claimants should b
 
 372 Land. 
 
 before the Court, or should, at least, have notice of wtat is 
 going 1 on, iri order that they may come in and defend their in- 
 dividual rights. If they neglect so to do, after public notice given, 
 the Court must proceed without them. And where a D. C. 
 dismissed a suit for a garden, on the ground that it would not 
 be sale to decide the case in the absence of other part-owners, 
 the S. C. ordered the case to be restored to the list, and no- 
 tice to be published to a 1 who might be interested to appear, 
 without putting the plaintiff to the expense of a fresh action. 
 No. 7723. Amblangodde, 23d July 1834. L B. 20ih 27th 
 November 1834. 
 
 8. Where the evidence is conflicting, and nearly equally 
 balanced, so that the Court is at a loss to know to which 
 si le the weight inclines, a strong temptation arises to solve the 
 
 ulty by dividing the land i . dispute between the parties. 
 This is a course which is not to be encouraged, and above all 
 it ought not to be resorted to, as an expedient to save time, or 
 the trouble of investigation. Instances will sometimes occur 
 in which, aftir exhausting the evidence, and after taking the 
 opinion of the assessors, the mind of the Court will find 
 itself so unable to declare in favor of either side, in prefer- 
 ence to the other, that a division seems the only mode left 
 of deciding the case. Thus, in one case which ultimately 
 came before the S. C., the evidence w;is equally strong on 
 both sides; the assessors in the Court of Alipoot voted for a 
 division, those in the Court of Kandy and the Revenue Com- 
 missioner, for the plaintiff, while the Judicial Commissioner leaned 
 in favor of the defendant. Under these circumstances, the S. C. 
 considered that a division of land would be the safest mode of 
 deciding, and it was so decreed accordingly. No. 7. Alipoot, 12th 
 October 1833. And so in one or two other cases similarly 
 situated. 
 
 9. The following case may be of use, as bearing on se- 
 veral points connected with the right to land : 1st As to the 
 mode in which resumption of land by Government, on nonper- 
 formance of the conditions, should be effected, and proved.
 
 Land. 378 
 
 2ndly. Whether the abandonment of Cinnamon grounds, at 
 the time when the cultivation or destruction of that 
 p'ant was prohibited, operates as a dereliction of all fu- 
 ture runt to the land. 
 
 Srdly. What proof is necessary of Government Advertisements 
 and Proclamations, to give effect to them. A clnim was 
 made against the Government for a garden forming part 
 of the Cinnamon garden near Colombo, It appeared in 
 evidence before the D. C., that the whole of the garden 
 in dispute was formerly, in the time of Dutch Govern- 
 men', the property of Manuel De Almaeda, from whom 
 the plaintiff claimed to be 'descended ; that Cinnamon 
 grew in the larger part of the garden, at first, sponta- 
 neously, afterwards by cultivation; that certain fruit trees 
 growing in that part were cut down by order of the 
 Dutch Government, for which trees Manuel was remu- 
 nerated by the Government; that when Cinnamon was 
 cut there, he received the usual allowance, then made for 
 each pingoload, that after the trees had been cut down, and 
 the house in which Manuel lived had fallen to decay, 
 that person left the garden, giving permission to a cer- 
 tain Vidahn Aratchy to live in the smaller part, the soil 
 of which was not adapted to Cinnamon, that the Vidahn 
 Aratchy resided there till his death, and his widow af- 
 terward that in 1804 Peter De Almaeda, father of the 
 plaintiff's wife, brought an action against the Aratchy's 
 widow to recover possession of the smaller part of the 
 garden, which suit was dismissed in 1805, on the ground 
 of long possession by the widow and her deceased hus- 
 band ; that in 1815 the plaintiff purchased that part 
 from the Aratchy's representatives, and had resided there 
 ever since that from the time of the British taking pos- 
 session of the Maritime Provinces, the larger part had 
 been constantly cultivated by Government, as Cinnamon 
 garden, and that in 1833 the Ordinance was passed, 
 abolishing the right of exclusive cultivation of Cinnamon
 
 374 Land. 
 
 in the Government- The garden being advertized for sale, 
 by order of Government, the plaintiffs put forward their 
 claim, contending that their right from their ancestor 
 Manuel had never been divested out of them, though 
 (heir possession had, by force of the circumstances above- 
 stated, been for a long time interrupted: The D. C. 
 decided in favor of the plaintiffs. O:i appeal to the S. 
 C. several objections were made on the part of the Crown 
 to this claim, one of these objections, name'.y, that the 
 children of Manuel De Almaeda were stated iu the Thombo 
 to have been born out of wedlock has already been men- 
 tioned. See para. 216-7 as not having been allowed by 
 the S. C. The other objections wiM appear from the 
 following substance of the judgment, by which they were 
 overruled. 
 
 " It is admitted that the title of Manuel De Almaeda cannot 
 be disputed, but it has been asked on the pnrt of the Govern- 
 ment, why it is to be presumed that the Crown has not resumed 
 rssion on ground of neglect to cultivate, especially seeing 
 that, from the Tliombo, it would appear that the Company's 
 share has never been paid? To these questions it may be an- 
 swered that any such assignment by Manuel, or resumption by 
 Government had determined on resuming possession, on the ground 
 of noncompliance with the conditions of the original grant, such 
 resumption should have been made in a public authentic s'.iape, 
 and should have been recorded in the Couri by which it had been 
 adjudicated. The right of re-entry, on the ground of non-cultiva- 
 tion, can only be enforced by a Court of Justice, and on proof 
 ot such ni'tf.ect. But it is useless to talk of non-cultivation by 
 the owner of the soil, when such cultivation was rendered im- 
 jK.^sible by the growth of Cinnamon, in which the owner, ac- 
 cording to the law as it then existed, could not have been per- 
 mitted to engage; So with respect to the alleged non-payment 
 of the "Company's share." If that had bet-n the ground of 
 resumption, it ought to have formed the subject of regular Ju- 
 dicial proceedings. The i ay meat by the Dutch Government of
 
 Land. 875 
 
 the price of the first trees which were felled, and of the accus- 
 tomed fee on each load of Cinnamon peeled, furnishes the strongest 
 f\ideiice that Manuel De Almaecla was considered by the Go- 
 vernment at that time to be the owner of the soil, and there 
 is no proof of him or his descendants having ever been divested 
 of that ownership except the fact of his having ceased to occupy 
 the garden, after the first trees had been cut down. The pur- 
 chase of the smaller part by the plaintiffs is satisfactorily ac- 
 counted for by the Judgment in 1815, and therefore raises no 
 inference against them, as regards the rest of the garden. The 
 only question, therefore, on which any doubt could be entertained 
 in this case is whether the abandonment of the larger part by 
 Manuel and his family, amounted to that total dereliction of their 
 rights whk-h precludes them from ever reasserting them. Novf 
 upon this part of the subject it is to be observed that the aban- 
 donment could scar:ely be said to be voluntary. Manuel could 
 neither cultivate Cinnamon, nor destroy what had already been 
 brought into cultivation, wHhout infraction of the law. When, 
 therefore, the first trees were cut down, he had no longer 
 any object in remaining in the garden. Nothing was left, on 
 which he could exercise rights of ownership, except a few trees on the 
 limits of the garden the fruits of which, it would appear, he did 
 occasionally gather. Nor could he possibly have foreseen, nor 
 was there any thing to make him suppose, that the exclusive 
 right to cultivate Cinnamon would be abolished, or, consequently 
 that he could hope to derive any benificial interest from 
 the garden in future. And it is in this point of view that the 
 question may become material, as regards other land similarly 
 situated. In deciding the present case, however, this Court abstains 
 from laying down any universal or general rule. Each case must 
 be decided on its own merits. It has been said in arguments 
 before this Court, that certain advertisements and proclamation 
 have, from time to lime, been published, calling on parties 
 having claims upon land, possessed or cultivated by Government, 
 to come forward and establish them. What the effect of such 
 publications would have been, supposing any such to have bees
 
 376 Land. 
 
 proved, or offered in evidence, would defend on the terms of 
 thm, on the degree of publicity given them, and on the 
 effect they might have produced on the public in general. It 
 is sufficient t>n this occasion to say that no such documents 
 were offered in evidence on the trial. But it is now urged 
 that the Government was not in possession of them, or did not 
 know of their existence, at the time when the case was heard, 
 and it is asked that the case may be remanded for this evi- 
 dence to be now added. But following the rule, generally 
 observed, in allowing fresh evidence to be adduced, there 
 seems no reason for the indulgence, because if the existence of 
 such documents can be supposed lo be known in any quarter, 
 that knowledge would most naturaly be found in the officers 
 of Government. Ar.othei {.round which has been insisted 
 upon for the Crown is a title by prescription \ and that 
 the exceptions to the law of pres?iiption arise from perso- 
 nal disabilities only, and cm.not be raised from the nature of 
 the property [see Ordinance No. 8 of 1834 sect. 10 infra, tit. 
 Prescription.] It might be sufficient to say that nothing was 
 pleaded or argued in the Court below as to prescription. But 
 e\en if pre.-cription had been regularly ple;ided there is the 
 peculiarity attending this class of cases ; that as soon as the ground 
 becomes planUd with Cinnamon, the Crown had the right to 
 take the cultivation of it into its own hands exclusively, and 
 that the owner of the soil, as he could in no way interfere 
 with or impede that cultivation, might, at length, as in the 
 present instance, cease to dirive any advantage whatever from 
 the naked right of possession. An occupancy by the Crown, 
 under such circumstances, would be far from that species 
 ef possession which the law of prescription contemplates, and 
 which pns-.mcs a voluntary acquiescence on the part of all 
 claimed. Unless, therefore, it l.ad been shewn that public 
 notice had Wen given, for the original owners to put forth 
 their claim, and that they had neglected so to do, this Court 
 i of opinion thnt this invo'untary abandonment of land ought 
 d to preclude the proprietor from ascertaining his right, nor
 
 Land. S77 
 
 that the chaise in the cinnamon laws hns made the ground 
 available to him in any mode of cultivation which he may 
 chuse to adopt " The decree of the D. C. in favour of the 
 Plaintiffs was accordingly affirmed" No. 6715 Colombo 6th 
 July 1835. 
 
 10. \Ve have seen that a clause in a Government grant of 
 land, restraining- the alienation or assignment of it without per- 
 mission of Government, is no obstacle to the seizure and sale of 
 such land in execution: supra: 163, 4. 
 
 11. The following case involves the right of pre-emption of 
 land, as claimed in the Northern Districts, by owners of land 
 contiguous to that which is offered for sale, and though the 
 final decision cannot be here given, it may be well to mention 
 the proceedings, as far as they go, as leading the way to 
 further inquiry on the subject. The plaintiff complained that 
 the first defendant had sold to the second, one-sixth of a 
 pitce of land, of which the plaintiff, as owner of the adjoin- 
 ing land, claimed the right of pre-emption. It appeared from 
 the evidence of the Odear, that the plaintiff offered to buy 
 the piece of ground in question, but that the second defen- 
 dant offered a higher price which the first defendant accepted. 
 The D. C. gave judgment for plaintiff. On appeal to the S. C., 
 the case was referred buck, in order that further inquiry might 
 be made with respect to the prL-e offered by the plaintiff to 
 the Od t -ar, and the pri e actually paid by the second defen- 
 dant, also whether the plaimiff offered to pay whatever might 
 be offered by the second defendant, or by any other bidder, 
 and further at what period, with reference to the publication 
 by tom-tom, the offer was made by the plaintiff. Inquiry was 
 also directed to be made, from those best qualified in the 
 district to give information, as to the law or custom in the 
 northern districts of this right of pre-emption. Tiie S. C. ob- 
 served "that from the Thesavalame, as appended to Van 
 Lee wen's Commentaries: p: 763; 4. it would seem that the 
 right only existed, where the party claiming it held a mort- 
 gage, or some other claim upon the land ; but that, at all 
 
 30
 
 3TS Land. 
 
 i \enls, it seemed the height cf injustice that this right shou'rf 
 be enforced, except on payment of the highest price, which 
 any other person would offer for the land. That as the 
 right was founded on the contiguity of the land about to be 
 sold lo that already possessed ly the peison seeking to exer- 
 cise the privi'rge of pre-emption, the land must be presumed 
 to be more valuable to him than to the generality of others, 
 and he ought, consequently, to pay the b<st price which could 
 be got for it that if it were true, as stated by the Odear, 
 that the land was told to the second defendant, because he 
 offered a bttter pi ice lor it than the plaintiff, the latter might have 
 offered one-twentieth (1-26) of the ieal \alue, and still, accord- 
 ing to the decision of the D. C. would have been entitled to 
 insist ou a ransfer to himself" No. 210 Tenmorachy 5th De- 
 cember 1834. The proceedings were directed to be returned 
 to the 6. C. at Jaflna on the next circuit; and the writer of 
 these a-t8 is unable to say what was the result of the further 
 inquiry. 
 
 12. In the following case, the right of headmen to exact 
 the due called Hotwandiu.m in the Southern districts came in 
 question : And though fiom the circumstances under which the 
 case presented itself, the S. C. was not called upon to decide 
 upon that right, as a general qu slion, it may be useful to 
 ate the view taken of ihe subject as it stood. The plaintiff 
 nued the defendants, who were headmen, for the value of cer- 
 tain paddy received by them as headmen, in September 1831 
 and May 1632 under the designation of HotwanHiram, no 
 such due being reserved in the deeds by which the plaintiff 
 MA his lands; it appeared fr< m the pleadings that the plai; tiff 
 had at first refused to pay this demand, on which the defen- 
 dant complained to the Collector, Mr. Mooyaart, who ordered the 
 pJaintiff to pay. And the plaintiff stated in his replication 
 that he considered the order illegal, and that he might have 
 persisted in his refusal, but that he had paid it as a matter of 
 r uru-sy, knowing he could recover it back. It was proved] 
 it evidence tUt the Huewandiram was paid on some of th*
 
 Land 
 
 lands in the districts, and not on others. And, Mr. Mooyaart, 
 who in the meanwhile had been promoted to another office, 
 stated in evidence that he considered the demand decidedly 
 just. On this evidence, the D. C. gave judgment for the 
 Defendants. The S. C , on appeal, affirmed this judgment, but 
 with the following observations, "In recording this affirmation 
 the S. C. is anxious to have it understood that the right of 
 Headmen to levy the duty or tax tailed hoewandiram, is, on 
 the one hand, neither established, sanclioned, or recognized, nor 
 on the other hand, in any way affected thereby. This right 
 may possibly esist, but if the claim of these Defendants, to 
 retain the amount paid to them by the Plaintiff, had rested 
 solely on their right to exact it, this Court would certainly 
 have required fuller and more satisfactory evidence of the cus- 
 toms or law on which such right was founded, and of the consi- 
 deration which, it must be presumed, is received in some shape 
 or other, by thrst? who pay the tax. The present decision 
 goes entirely on the principle that when a man pays mony 
 voluntarily, and it is impossible, on the evidence now before the 
 Court, to say that the Plaintiff did it by compulsion he cannot 
 recover it back, merely on the ground that the parlies re- 
 ceiving it could not have enforced their claim in a Court of 
 Law: No. 58 Hambantotte 22d December 1834. 
 
 13. The following case in which another right claimed by 
 headmen [in the Kandyan Districts] came in question, may 
 properly find a place here. An action was brought by Govern- 
 ment against a Koralle for 62, the amount of a deficiency 
 in his accounts with the Cutcherry of Kurnegalle, and for which 
 he had given his land. The ortly question was, whether the 
 Defendant was entitled to set off against this debt, the one- 
 twentieth share of grain collected by him and which he claimed 
 under the 29th clause of the Proclamation of 21st November 
 1818. The Court of Kuraegalle was of opinion that he Was 
 not entitled to make this set off, because all the grain had not 
 yet been collected, and till it was, it would be impossible to 
 ay how much should be awarded to the Defendant. The
 
 980 Lai-d. 
 
 Judicial Commissioner and the Assessors at Kandy considered 
 that as this w.is a final settlement of accounts, the set off', 
 ought 10 be allowed. Tne case being brought before the S. C., 
 the following judgment was pronounced : " By the evidence which 
 had been transmitted by the D. C. of Kurnegalle, it appears 
 that until the whole tax of each year is collected, the Govern- 
 ment Agent does not consider himself at liberty to pay the 
 percentage, nor even then, till he receives the authority of Govern- 
 ment [The words of the 29ih clause of the Proclamation are 
 in such portion as the Beard of Commissioners shall regulate.] 
 It also appears that the claim which has been made by Govern- 
 ment, and for which the Defendant gave his Bond, does not 
 include the outstanding grain, which is, therefore, perfectly in 
 dependent of the present claim. On these grounds, this Court 
 considers that the Government was fully justified in resisting 
 ihe claim of the Defendant, as things stand at present. The 
 29th clause of the Proclamation no doubt gives the inferior 
 chiefs an absolute right to this twentieth, as compensation for 
 their services. But this right, like every other c'aim for remu- 
 neration, can only be supported by first shewing that the ser- 
 vices for which it is given have been duly and faithfully per- 
 formed ; and tViat such performance has been complete, not 
 partial or imperfect. In the present instance it is admitted by 
 the Defendant, that a considerable portion of the grain is still 
 outstanding. It may be that this deficiency in the grain has 
 arisen without any fault or negligence on his part. But on the 
 other hand it certainly is possible, as is suggested by the Agent 
 of Government, that the deficiency may be owing to the want 
 of due vigilance on the part of the Defendant, or, which is 
 still possible, though by no means to be presumed that, the 
 Defendant has received the outstanding grain or part of it and 
 neglected to account for it. All these doubts, the Government 
 [in other words, the public, whose hervant the Defendant is] 
 Laa a right to expect s>hall be cleared up, before he can claim 
 lis remuneration. The proclamation of Government, though the 
 tpore solemn way of assuring tp public servants a due remu-
 
 Land. 381 
 
 Deration for their services, when performed, does not place a 
 headman in a more favorable situation than any other servants, 
 public or private. The percentage in this case, like the wages 
 of a private clerk or servant, can only be claimed on proof 
 of performance of every part of the contract into which the 
 claimant has entered. If a clerk or domestic servant apply to 
 liis master for his year's salary or wages, such master has an 
 undoubted right to call upon the clerk to settle hfs accounts, 
 or the servant to produce the property which may have been 
 committed to his charge. And if, in either case, the clerk or 
 servant were to refuse, or wire unable to comply with such re- 
 quisiiion, he would apply in vain to a Court of law for pay- 
 ment of services so imperfectly performed. This Court cannot 
 distinguish such a case from the present one. Let the Defen- 
 dant shew performance of his part of the contract, and his 
 right to the one-twentieth, or at least to that portion of it to 
 which he may be individually entitled would be at once esta- 
 blished. But if the present claim were admitted, it would be 
 difficult to deny the right of any headmen to deduct one-twen- 
 tieth from every parrah of Paddy which he paid into the trea- 
 sury. But there is another ground, on which the Court con- 
 siders that the Government is not only justified in resisting, but 
 would scarcely have been justified in acceding to the present 
 claim, or, at least would do so, at the risk of having to pay 
 a portion of it over again to other p&rties. It is known to 
 every one conversant with those collections, that the Korale is 
 not himself entitled to the whole of the twentieth share, but that 
 part of that share goes to certain headmen, in such proporti- 
 ons as may be directed by government. In ordinary cases, no 
 doubt, the whole twentieth is paid, in the first instance, to the 
 Korale, in confidence that he will pay over to the subordi- 
 nate headmen their respective shares. But without casting 
 any reflet-lion on the Defendant, it is impossible not to 
 see that if the Government were to intrust to him, iu 
 the doubtful situation in which he now stands, as a public ser- 
 vaait, the whole of the percentage awarded by the Proi-laraa-
 
 Land. 
 
 lion to the headmen generally, it would, by that act of indis- 
 cretion, render itself liable, at least in an equitable point of 
 view, for any shares of the other headmen which they might 
 full in recovering from flic Defendant. This judgement was not 
 given till after a very full consideration of the case, arid it i* 
 pronounced with the < oncurrence of all the judges of the Court, 
 and of the assessors." The decree of the Court of Kurnegalle, 
 by which the defendant's claim of set off was rejected, was 
 accordingly affirmed. No. 1386 Kuinegalle 30th November 
 1633. 
 
 14. Budhist Pries's cannot legally possess land, except in 
 trust for some Temples, still less tan they bequeath land en- 
 trusteJ to the.n for the benefit of a temp'e, to any other per- 
 son, whether Priest or layman. And this whether the Procla- 
 mation of 18th September 1819 [Kandy] be taken into consi- 
 deration, or not, No. 5980 Ratnapoora 3rd February 1834 see 
 also No. 7090 Ratnapoora 21st December 1833. 
 
 15. The performance of Bajekarea or Government service, 
 as long as that was exacted, is often one of the points re'ied 
 upon, to shew that the party performing it had not relinquished 
 his ultimate right to the land, though he may have parted 
 temporari'y with the possession, by mortgage or otherwise ; 
 supra: title, Kandy, paragraph 3 and 151. And considerable 
 weight is usually attached to this fact by the Courts, especi- 
 ally if such performance of duty has continued uninterruptedly 
 for a length of time : One solitary act of performance would, 
 of itself, go but little way towards establishing a right. On the 
 same principle, the 6. C. has decided that the mere voluntary 
 payment of the commutation tax, by a person, though it may 
 be the means of getting the land registered in his name, will 
 not give him a title. No. 1515. Alipoot 21st October 1833. 
 
 16. The question was put to the S. C. by a D. J., whether 
 a grant by Government to one or two parties, in an action for 
 land, which the other party acknowledged to be genuine, but 
 denied to be conclusive against him, would supersede all other 
 claims, and thus_ render it unnecessary to go into evidence accord-
 
 Land. 383 
 
 ing to the 4th paragraph of the circular letter to the D. J. of 
 15th April 1635. To this question, which mny be considered 
 as partaking partly of law and partly of practice ; the S. C. 
 returned for answer " that claims on laud, founded on grants 
 by Government, were not, necessarily and without further en- 
 quiry to supersede all other claims ; that, for instance, a party 
 might acknowledge the Government grant to have been regu- 
 larly executed, but might allege that Government had been 
 deceived by the person obtaining it, and had in truth no right 
 to dispose of it; that if such allegation were proved to be well 
 founded steps would be taken to get the grant cance led as having 
 issued improvident!) 1 or under deception, L : B : 20, 23, No- 
 vember 1835. And the S. C. then recommended the exami- 
 nation of the party, in order to ascertain the grounds on which 
 he intended to contest the efficacy of the giant, as to which, 
 \ide supra : 152, 3. 
 
 17. Attempts are frequently made by persons, who have bor* 
 rcwed money on mortgage of their land, to d^eat the mort- 
 gages by sales, real or pretended, to third parties. A plaintiff 
 sued on a mortgage bond, by which the first Defendant and 
 another person, not a parly to this suit, acknowledged to owe 
 the plaintiff 7 100 for arrack delivered to them, and pro- 
 mised jointly, to p;<y within three months without interest. And 
 the first defendant went on to agree, that if the above sum were 
 not so paid, he would deliver up in mortgage a certain gar- 
 den to be held in lieu of interest until payment. The garden 
 had accordingly been delivered to the plaintiff, who had pos- 
 sessed it till interrupted in his possession by the second defen- 
 dant who claimed under a bill of sale executed to him by the 
 first defendant, but of subsequent date to the mortgage to the 
 plaintiff. The D. C. dismissed the action, on the ground that 
 the ether debtor ought to have been included in the action: But 
 the S. C. directed the case to be remanded, on the grounds 
 which will be stated under title "Pleadings" par. 3. On the 
 trial, the deeds, both of mortgage and sale, were proved to 
 have been icgu'arly executed ; and the D. C., considering that
 
 8P4 Land. 
 
 the latter instrument ouplit to be held valid, decreed for th4 
 defendants. On appal, however, this decree was set a side, 
 and the following judgment was pronounced; " Both the in- 
 
 mnients, on which the plaintiff and second defendant res- 
 k ' 1 e, tiuly rely, l.avebcen establislied: But oftluse there can be no 
 " doubt lhat the bond, by which the first defendant Muds 
 * himself to give the plaintiff possession of the land, in default 
 " <f payment, must have the preference, as being of prior 
 " date. The sale to the second defendant must be considered 
 " bubject to pnvious incumbrances, as to which it was the 
 " duty of that person to make enquiry. Indeed it is difficult 
 " to believe that he cold have been ignorant of tVie possession 
 ** and enjoyment of the profits by the plaintiff: And if he was 
 " aware of it, he must either have entered into collusion with 
 *' the first defendant, to defeat the plaintiff of his just claim, nr 
 " he mu-thave been guilty of the grossest negligence,- the conse- 
 " quenees of which ought to fall upon him and not upon the plain- 
 " tiff. It the second defemh.nt has been defrauded by the first, he 
 " must seek liis remedy against the person who has deceived hinij 
 ' and whom he trusted, and not against the plaintiff, who was no 
 " party to nor consulted about the sale, [vide supra : p. 82.] 
 " The plainliff is, therefore, entitled to retain possession of the land 
 " till payment, and he is also entitled to the. value of the fruits taken 
 " by the second defendant, and further, to costs against both de- 
 " fen'hms. for Loth are wrong-doTS as regards him." No. 3149 
 Ambfengbdde, 3rd September 1834. 
 
 18. In the foregoing c'so, the second defendant, it will be 
 
 rved, was decland liable to the plaintiff for the fruits taken 
 I y liim. And this part of the judgment proceeded on the ground 
 thiit ih. s'.nd deleni'ant had been guilty either of collusion 
 or prrss lu'gligtnce. The subject of the liability of evicted 
 parties frr pcxlm,- i ; ,l. (U ] t y them, during their usurpation, was 
 afterwards l-irn..ht to the notice of S. C. by the D. J. of 
 Ruanwella in a cnse in which a share of a parden had been 
 tinallj duietd to the plaint iff in November lb^3 and the ques- 
 tion arose in 1836 as to the plaintiff's right to compensation
 
 tbnd. 
 
 fb'r profits. The following question, \vhether the plaintiff be 
 entitled to compensation for the profits, accrued since the final 
 decision of the case, ought to depend on the exertions used by him to 
 obtain possession of the share allotted lohim, and on the resistance 
 offered by the defendant to the execution of the Decree. As a 
 general principle, the S. C. inclines to the opinion that com* 
 pensation for past produce, for intermediate or Mesne profit^ 
 (as they are technically called by the English law,) should 
 not be granted in a case of merely disputed right, which in 
 Ceylon is so lamentably frequent ; but only in those cases in. 
 which the land has been obtained by force, or been held 
 over without any colour of right. In the present instance, the 
 plaintiff's claim could, at most, be only made from the de- 
 cree of the S. C., in November 1833. As soon as that 
 decree was made known to the plaintiff, it was his duty to 
 apply for the execution of it, by allotting him his share of 
 one-eighth. Whether he duly exerted himself in this respect, 
 and whether, on the other hand, the defendant resisted or 
 defeated such attempt, which is the principal point raised by 
 the pleadings, must depend upon the evidence. The amount 
 and value of the produce can only become a material ques- 
 tion, after the previous and more important point is decided. 
 Whether the defendant be answerable at all for that produce" 
 L. B. 17th February 1836. 
 
 19. We have already taken occasion to notice, somewhat in 
 detail, what evidence should be adduced to establish a deed r other 
 written instrument, whether relating to land, or to any other 
 subject ; and whether notarial or not, supra : title Evidence, 
 pv 111. 2. 3. A case has also been stated, sup: 205. 6., 
 in which the question was considered, what writing and signa- 
 ture are sufficient to give validity to a sale of land, under 
 the Regulation or Ordinance against frauds. In that case, and 
 on another occasion, supra: 48. 9. the S. C. recommended 
 that the payment of the purchase money and the execution of 
 the deed of transfer, should be contemporaneous acts. It has 
 also been mentioned, but only as the iudividual opinion of the 
 31
 
 386 Land. 
 
 Chief Justice, that a deed &c. relating to land is not neces- 
 sarily vitiated from the circumstance of the execution of it, 
 l>y the parties and witnesses, not having; taken place at the 
 same time, supra : 183. 4. see also p. 207. 8. to shew that 
 conveyance of a mere butique, not including the land on 
 which it stands, requires no stamp. Another case will be 
 found under tit'e " Fraud," supra : 200, in which the S. C. t 
 set a-side a bill of sale of land on the ground of fraud and 
 want of consideration. 
 
 20. The two following cases arose o-zt ef the Proclamation 
 of 14th January 1826 [Kandy] the 4th clause of which enacts, 
 "That from 1st May 1626 if any person or persons shall be 
 concerned in any fictitious transfer of land to any chief or 
 headman, for the purpose of evading the payment of any tcx 
 or duty upon such land, such person shall be guilty of a 
 misdemeanour, and upon conviction thereof before any compe- 
 tent jurisdiction, the land belonging to such person, so ficti- 
 tiously transferred shall be confiscated for the use of His 
 Majesty, and the chief or headman so convicted of being 
 concerned in taking such land upon such fictitious transfer, 
 shall be liable to a fine" &c. In an action for certain 
 lands in the district of Madewaltenne, the right of the plaintiff, 
 as ngainst the other parties to the suit, was proved to the 
 satisfaction of the Court below, but it appeared that while the 
 land was in the possession of the plaintiff and his mother, 
 since deceased, the latter was prevailed upon by a headman, 
 Gabonneralle, under circumstances which will appear from the 
 judgment of the S. C., to give up the title deeds to him, in 
 order to get the lands registered in his name, and thus ex- 
 empted from the tax. On this ground, the Court considered 
 that the lands were forfeited by the terms of the proclama- 
 tion, and it was so decreed accordingly. And on appeal to 
 the Judicial Commissioner's Court at Kandy, this decree waa 
 affirmed. On appeal to the S. C., however, this decree of 
 confiscation was set aside in the following terms, " this is a 
 pi:al proclamation, and must receive tht strict cooBtruslion
 
 Land. 38T 
 
 by which all penal laws must be interpreted. Before, therefore, 
 this decree of confiscation could be allowed to operate against 
 the plaintiff, it must appear, beyond all doubt, that he himself 
 had been personally concerned in a fictitious transfer of the 
 land, for the purpose of evading the tax or duty. In the first 
 place, it by no means appears certain that the false registratiou 
 took place after 1st May 1826. The possession and cultivation 
 by Gabonneralfe are said to have commenced six or seven 
 years before the action was brought ; and he is never known 
 to have cultivated it till after the land was commuted : It is 
 just as possible, therefore, that the collusive transfer took place 
 before 1st May 1826 [in which case it would not be an 
 offence within the words of this proclamation] as afterwards. 
 In the next place, there is no evidence whatever to bring the 
 offence home to the plaintiff himself. That part of the plaintiff's 
 statement, which seems to have been considered as an admis- 
 sion on his part, only affects his mother. And even if it could 
 be lakea against himself, the whole admission must be taken 
 together ; and then it would appear that the fraudulent part of 
 the transaction took place before the 1st May 1826 and, there- 
 fore, would be out of the reach of the proclamation. Again, 
 the witnesses all fail to establish fhat positive proof of collu- 
 sion with Gabonneralle, which alone would justify the enforce- 
 ment of this severe penalty, whether against the plaintiff or 
 against his mother : The utmost that any of the witnesses 
 s'ate on this subject is that they understood that Gabonntralle 
 1 ad registered the land in his name, in order to exempt them 
 from tluiy. This mere understanding, or general rumour, \* 
 much too loose to warrant a conviction [which this in fact is] 
 ef a criminal offence. But according to the expressions used 
 by the generality of the witnesses, it by no means appears 
 certain, that even this general rumour attributed any partici- 
 pation in the fraud to the plaintiff or his mother. It is not 
 impossible that this headman, as the plaintiff slates, prevailed on 
 the plaintiff's mother to give up the deed, in order to procure 
 an exemption from the tax without that woman being at all
 
 38S Land. 
 
 ware of this illigaliiy of the transaction, or of the means by 
 which the exemption was to be effected. But even supposing 
 the fraud to be brought home to the mother, that fraud must 
 not be visited upon her son, unless it can be shewn that he 
 participated therein. And even if the decree of confiscation had 
 been made in the life time of the mother, it could not have 
 been supported, unless such a participation on the part of the 
 son had been es ablished, for the land in question never appears 
 to have been the property of the mother at all, and therefore, 
 could not have been confiscated under this proclamation, for 
 her fraud alone. On these grounds, and as this Court agrees 
 with the Court below, that the plaintiff has established his 
 right, as between himself and the other ] arties, the lands are 
 adjudged to the plaintiffs" No. 552 Madtuvelletenne 30th No- 
 vember 1533, It might have Leen sufficient, in this case, to 
 say, that the confiscation could on'y legally take place "upon 
 conviction" for which purpose a regular prosecution would 
 have been necessary. For a conviction of an offence cannot 
 take place thus incidentally, and without the party accused 
 having an opportunity of making a regular defence. But it was 
 thought better to enter into a view of the circumstances, for 
 the same reason that the case is here given at length, in 
 order that the decision of the S, C. might serve as a guide in 
 other cases bearing a similar aspect. 
 
 21. In the other case, arising out of this proclamation, cer- 
 tain land was sought to be confiscated. The defendant being 
 iu possession was charged, as headman, with having falsely 
 registered the land, while in office, with intent to evade the 
 payment of the tax Mr. Serjt. Rough, before whom this 
 cat* was heaid in appeal, held "that the penalty of con- 
 fiscation could in no view of the proceedings, be sustained : 
 supposing the charge to be founded on the latter branch of the 
 4th clause confiscation would be altogether inapplicable, for the 
 parties were distinctly marked out by the terms of the Procla- 
 mation, and the persons and penalties could not be taken in- 
 l erchaugeably. The former part of the clause contemplated a
 
 Land. ' 38$ 
 
 person [or headman] being concerned in the il'egal transfer to 
 the headman; in the present case, the defendant was the head- 
 man himself, nor could a prosecution have been sustained on. 
 the second part of this clause, without first shewing distinctly 
 than the land belonged to some other person, and that the de- 
 fendant, as headm-'n, was concerned in taking the land upon the 
 fictitious transfer. Whatever suspicion of fraudulent dealing might 
 attach to the defendant, before he could be convicted under 
 this Proclamation he must [as in all cases of penal law] be 
 clearly or unequivocally brought within the very terms of it. " 
 No. Matura 3d May 1S34. 
 
 22. In cases relating to land in the KandyanDistricts, questions 
 not unfrequently arise out of sentences of confiscation passed by t . 
 the late King of Kandy for high treason. In an action for 
 the value of a hruse, estimated at several thousand Dollars, the* 
 plaintili claimed, as widow of Ratwatte Dissawe who was ex- 
 ecuted by sentence of the late King, his property being con- 
 fiscated ; but his property had been restored, in g-eneral terms, 
 to his family, by the British Government, It appeared, however, 
 that the house in question had been granted by (he King after 
 the confiscation to Nelema, under whom, and by virtue of 
 possession, the defendant claimed ; The Court of the Judicial 
 Commissioner of Kandy considered that, as many of the late 
 King's verbal grants had been annulled, there was no reason 
 why the plaintiff' should not have a similar indulgence, and a 
 Decree was accordingly passed in her favor. But on appeal to 
 the S. C., this Decree was reversed on the following grounds. 
 "When the British Government restored the estate of the de- 
 ceased Dissawe to his family, that act of restoration could only 
 operate on properly which still belonged to the Crown, as suc- 
 cessor to the rights of the Kandyan King. But the house in 
 question was no longer at the disposal of the late King, which 
 grant, it is not disputed, was perfectly good and valid. The 
 late King had, therefore, divested himself, and consequently 
 the British Government [which succeeded only to his right] of 
 all power ever it. So that even if the Governor, as represen-
 
 390 Law. 
 
 tative of his Sovereign, had made a specific grant of this hous* 
 to the heirs of the Ditsawe, it would have been null and void, 
 inasmuch as he would have been giving away that which be- 
 longed to another. But on referring to the Speech of Sir Ro- 
 bert Brownriffg of 20th May 1816, which is alluded to in the 
 pBoceedings, it appears that His Excellency gave distinct notice, 
 that grants made by the late Government, subsequent to con- 
 fiscation, and perfected by possession on the part of the new 
 proprietors, ought to be considered as being, in almost every 
 instance, a species of impediment, fatal to revival of antecedent 
 titles, so that, even if this speech can be considered as law, 
 or as binding on Courts of Justice, it would be fatal to the pre- 
 sent claim." No. 3544, Kandy 12th October 1833. 
 
 23. As to what writing and signature shall be sufficient on 
 * sale of land, to satisfy the Ordinance against Fraud and Per- 
 juries, vide supra, p. 205 to 208. 
 
 LAW. 
 
 Different kinds of, in Ceylon: Common, or unwritten par. 1. 
 Written viz: Statutes, Regulations &c. Rules of construction: 
 remedial, liberally, penal, strictly : General words : The whole 
 to be made effective, if possible : Latter supersedes former re- 
 pealed, when revives : Declaratory and introductory par. 2. R. 
 Dutch Law in Maritime Districts, except as to Native customs, 
 S. Criminal Law 4. Royal prerogative, 5. Admiralty 6. Ig- 
 norance cannot be pleaded 7. Law and practice distinguished 
 8. Construction of 47th Rule, 9. 
 
 This title, which in its general and unlimited sense would com- 
 prehend, all that has been decided, or written on every subject 
 of Jurisprudence, is only mentioned here for the purpose of 
 enumerating, with a few observations, the different sources from 
 which are derived the Laws now in force in Ceylon, and which 
 may be classed under the six following heads. 
 
 1. The Common Law, or unwritten as distinguished from 
 the writUn Law, which latter forms the subject of positive enact- 
 ments. The unwritten Law consists of custom, handed down 
 from oae generation to another, either by oral tradition,
 
 Law, common or unwritten. 39f 
 
 by 'constant and immemorial usage, or embodied in any code or 
 other collection which, in practice, may have acquired the weight 
 of authority. For the word " unwritten, '* as, applied to thia 
 branch of the Law, is not to be taken as necessarily implying 
 that it never has been committed, wholly or in part, to writing: 
 It only means that such Law has not been written and sent 
 forth to the world by legislative authority, but that it hath sprung 
 from ancient usage confirmed by time and the tacit approbation 
 of the Legislature, a customary Law being only so long in force, 
 as it remains unrevoked or qualified by the Supreme Legisla- 
 tive power. Thus, the Laws or customs of the Kandyan dis- 
 tricts have been reduced to writing, as regards their leading print 
 ciples, by the industry and experience of gentlemen who 
 have been at the head of the Judicial establishments at Randy, 
 as we have seen under the foregoing title. But still they form 
 the common or unwritten Law of those Districts, that is, they 
 have never been reduced to writing or promulgated by Legisla- 
 tive authority. The Common or unwritten Law of England con- 
 sists partly of general customs, those, namely, which are io 
 force, generally throughout the Kingdom, and partly of particular 
 customs, or those which prevail in certain parts only. In Cey- 
 lon, the Common Law may be said to consist nearly, if not en- 
 tirely, of the latter description of custom, since, owing to the 
 various divisions, as well of the Island itself as of its Inhabitants, 
 there can exist but few customs common to all districts and to 
 all classes, throughout Ceylon. Thus the distinction between 
 Maritime and Kandyan Districts, and between Northern and Southern 
 Districts, as regards local division the absolute separation again 
 of Cingalese from Malabars, and of both those classes from the 
 Moors, as regards distinction of race, must leave it scarcely 
 possible that any customary Law, on any one subject, can govern 
 the whole public in common; On all questions, therefore, 
 arising between nations on matters of property, inheritance, mar* 
 riage, legitimacy, or any other civil rights, if there be no ex* 
 press Legislative enactments on the point in dispute, the Court 
 must decide according to the customary Law, and for that pur-
 
 S92 Law,~- common or unwritten. 
 
 pose, must inquire into the custom not only of the Districts, 
 but of the class to which the litigants belong, For as different 
 classes inhabit the same district, as for instance, Moors and Cin- 
 galese or Moors and Malabars, it would often be not sufficient 
 10 ascertain the general local Law, without seeing that it is also 
 applicable to the litigants personally. Many of these native cus- 
 toms must, no doubt, appear strange, and even absurd to Euro- 
 pean understandings, though, before coming to that conclusion, 
 the state of Society and the circumstances which may have led 
 to the usage in question ought, in fairness, to be well understood. 
 The customs of Natives, whom we are accustomed to look down 
 upon as serai-barbarous, are more frequently founded on rational 
 and even wise grounds than superficial observers would give them 
 credit for, and often, indeed, will be found to be the result of 
 necessity rather than choice. But however this may be, and 
 whatever may be the apparent absurdity of a custom in the eyes 
 of strangers, if it be proved to exist, and have not been abo* 
 Kshed by Legislative enactment, it is still the Law of the Island, 
 which every one has a right to invoke in his favor, as much as 
 if it bore the stamp and sanction of the written Law. If this 
 were otherwise, if a custom could be declared to be no longer 
 binding as Law, because a Court of Justice considered it absurd 
 or inconvenient, the common or customary Law would at once 
 cease to exist, except at the will and by the permission of the 
 Courts. In other words, each Judge would at once make the 
 Law and pronounce it, according to his own individual view of 
 the subject, which view and the Law pronounced upon it to 
 day, might be overturned to morrow by his successor in of- 
 fice, the very worst mode of Legislation and of administering Jus- 
 tice which can be devised. If a custom be bad, or no longer suited 
 to the condition of those who may be subject to it the proper 
 remedy lies through the Legislature. In the case mentioned 
 upra. 222, 3, the S. C. yielded to the force of custom, on 
 which the D. C. had decided, though it was a custom which, 
 on the face of it, had nothing in the shape of Justice or equity 
 *o recommend it. But if the S. C. had persisted iu the view
 
 , written. 
 
 it took of the case in the first instance, and had re* 
 Versed the decree of the D. C. en the ground that, as a 
 question of abstract Justice, Dowry property ought to be held 
 liable for the husband's debts, it would have been doing vi- 
 olence to what was proved to be the customary law of the 
 Malabar race, and substituting what is familiarly called Judge 
 made law in its place. 
 
 The writer of these notes has dwelt the longer oh this point, 
 because he knows, by experience, how strong the temptation 
 is to a Judge to deviate from law, founded only on custom, 
 where the application of it seems likely to operate as a hardship 
 upon one ot the parties. He is by no means certain that he 
 may never himself have yielded to the temptation, but he it 
 quite sure that if he has done so, such decision cannot have 
 rested on a sound foundation. We have seen indeed, supra, par: 
 SB that no custom can be used as a cloak to cover fraud ; 
 but this is no more than may be said of every law, written or 
 unwritten; for as it is one of the first maxims of every law, 
 that r.o fraud can be legal, we may be pretty certain that when- 
 ever an attempt appears to make the law subservient to fraud, 
 it is, rot by an application, but by perversion and distortion of the 
 law, that the proposed object is to be effected. 
 
 2. The wiitttn or enacted law, as distinguished from the 
 common or unwritten law above alluded to. This branch of 
 the law consists, in Ceylon, of such acts of the Imperial Par- 
 liament as are applicable to and in force in the Island, arid 
 of the local laws, whether under the denomination of Procla- 
 mations, Regulations or Ordinances, which have been duly 
 passed and published by the Legislative Authority of Ceylon, 
 for the time being, whether for the Maritime or Kandyan, 
 districts, or both, and which have not been repealed by sub- 
 sequent enactments. As regards acts of the Imperial Parliament, 
 it may be observed, as a general rule, that no such statute 
 applies to a colony, unless there be express words in it to shew 
 that all the colonies collectively, or the particular colony in 
 question, are included. At present, it is believed, every Act of 
 32
 
 j 9 4 Lotf, construction of Acts SfC. 
 
 Parliament affecting Ceylon is promulgated, as soon as received, 
 in the Government Gazette. With respect to the local laws in 
 Ceylon, these have lately been printed and consolidated as much 
 s possible, so as to simplify this little code to a great degree, 
 an object which ought to be one of the foremost in the con- 
 sideration of every legislature. It may be of use to insert here 
 some of the leading rules which have been laid down for the 
 construction of acts of Parliament, and which may with equal 
 propriety be observed in construing all enactments, whether 
 emanating from the Imperial or Colonial Legislature. It should 
 be borne in mind, however, that rules of construction imply that 
 the instrument to be construed is involved in some degree of 
 doubt: When the expressions are plain and unequivocal, no 
 rule of construction can be necessary, since to construe them 
 otherwise than according to their plain import would be to do 
 violence to the declared intention of the Legislature. It is one 
 of the most frequently occurring questions of construction, 
 whether doubtful words are to be taken in a liberal and more 
 enlarged sense or in the strict and more limited application of 
 them. This depends upon whether the law in question be a 
 remedial or a penal one, the principal distinction which it is 
 necessary to mention with reference to our Ordinances, or other 
 written laws. A remedial law is that which amends something 
 wrong, or supplies something defective, in the law previously 
 existing, but without imposing any specific punishment for the 
 breach of it, such for instance, were the former Regulations 
 of Prescription, and such is the present Ordinance No. 8 of 
 1834 on the same subject. A penal law is one which enforces 
 its provisions by certain punishment or penalties, to be awarded 
 agahiRt persons infringing it. Of this nature is the Arrack 
 Ordinance, No. 5 of 1834 and such indeed must be most laws 
 for the protection of the Revenue and such also we have seen 
 is the 4th clause of the Proclamation of 14th January 1826 
 <upra: title Laud par: 20 21 The rule, then, as laid down by 
 ish authorities, is, that a remedial law is to be coi strued 
 liberally ; that is, if the expreswous used be doubtful, a Court
 
 Law, construction of Acts 8fC. 395 
 
 endeavours so to interpret them, that the mischief may be cured 
 and the remedy be applied : A penal law is to be construed 
 strictly, that is, the persons on whom the punishment or penalty 
 is to be imposed must be shewn to be clearly within the very 
 words of the law, and if these words be doubtful, the Court is 
 bound to decide against the infliction of the penalty; title "Laud" 
 par. 20 21. We shall probably have occasion to mention one 
 or more instances of the application of this rule of construction 
 under title " Prosecution." Some enactments are \ artly remedial, 
 partly penal in their nature. To such laws, the above rule of con- 
 struction applies in one or other of its bearings, according as 
 the provision of the law, which the court is called ui>on to enforce, 
 is directed towards the correction or annulment of the act un- 
 lawfully done, or towards the punishment of the person charged 
 with doing it. Thus the 2 1st clause of the Colombo Police 
 Ordinance makes a person liable to punishment who receive* 
 valuable property without shewing it to the constable &c. and 
 it also enacts that the person delivering such property shall not 
 be entitled to recover it back, unless the delivery be witnessed 
 as therein directed. As regards the latter of these provisions, 
 the Ordinance is to be considered remedial and construed libe- 
 rally. As regards the former it should be considered penal, 
 and construed strictly. Another rule is that where a law speaks 
 of things or persons of a particular degree no general words will 
 extend the law to things or persons of a higher degree. Thus 
 the words " Bills of Exchange, .Promissory notes, or other 
 written securities" would not comprehend Bonds, because, these 
 are of superior rank or degree to the sur ties specified. A 
 third rule is that each part of a law should if possible, be so 
 construed, that the whole may be effective ; it is said to be 
 the duty of courts, to put such a sense upon the words of a 
 law as is agreeable to equity and reason : and that the best way 
 of expounding is to consider what answer the makers of the 
 law would probably give, if the question which has arisen were 
 proposed to them. A further general rule is that a latter law 
 annuls all former ones which are in opposition to it, whether the
 
 595 Law, Roman Dutch Law. 
 
 former law exist in the shape of cus'om, or of written law. And 
 we have already observed, par : I when speaking of native law* 
 and customs, that th<se are only in force so long as they re* 
 main unrevoked and unqualified by the Legislature. Where a 
 custom is abrogated in express terms by Legislative authority, 
 as for instance, that of carrying into effect sentences of death 
 gainst women in the KamUan districts, by drowning, which 
 was abolished by Proclamation of 23rd March 18^6, no doubl 
 or difficulty can arise on the subject. But it sometimes hap- 
 pens that a local law is pas-ed, which is found to be at variance 
 with some cus om, unknown or not adverted to at the time of 
 passing the law, and which, therefore, is not meniioned therein. 
 In such case, if the variance be so great that the two cannot 
 :,ist and have operation together, the custom or common law 
 must give way to the Ordinance &c. On the same principle the 
 S. C. had occiision to observe th.-.t when the new rules of 
 practice [which may be called the laws of procedure] conflicted 
 with former ones, the last mentioned practice must give way : 
 supra : 39. The last general rule which seems likely to be of 
 use to the readers of these notes, is that if one law be repealed, 
 by another, which is afterwards itself repealed, the former law 
 revives, unless such revival be express'y guarded against in re- 
 peal of the second law. A declaratory law is one which only 
 declares for the removal of all doubts, what the law on a par- 
 ticular subject already is, in contradiction to an introductory or 
 enacting law, which introduces some improvement, or alteration in 
 the existing law. 
 
 3. The Roman Dutch law or the laws and institutions that 
 subsided under the ancient Government of the United Pro- 
 vinces " subject to deviations and alterations made therein by 
 lawful authority, w >re declared by Proclamation of 23d Sep- 
 tember 1799, to be those by which Justice should be thence- 
 forward administered in the settlements and territories in the 
 Island of Ceylon, then under His Majesty's dominion. It it 
 obvious, therefore, that the. Roman Dutch Law is confined to 
 the Maritime Districts, and has never been i u force in tb*
 
 Law, Criminal Law. 897 
 
 Kandyan Provinces, which have only lately been annexed to 
 the Crown of England. And even as regards the Maritime 
 Districts, the Native inhabitants are so far to be excepted from 
 the operation of the Roman Dutch Law, that on questions of 
 inheritance, marriage and other subjects connected with national 
 usages, if that law be at variance with their own customs, of 
 which we have spoken under the first head, it is those cus- 
 toms, and not the law of Holland, which ought to prevail. The 
 proclamation, it is true, contains no reservation to this effect, 
 though the Charier of 1801 sect : 32, did provide that Cinga- 
 lese and Mussulman parties should be governed in their litiga* 
 tion, by their respective laws and usages, or by those of the 
 Defendant, if the parties were not both of the same race, This 
 clause was, however, only applicable to the few cases between 
 Natives, which wtre cognizable by the S. C., under that Chart 
 ter ; and that instrument was repealed by the present Charter, 
 the proviso in question became of course wholly inoperative. 
 But no doubt, it is believed, has ever been entertained, that 
 the Native inhabitants of the Maritime Provinces were entitled 
 to be governed and have always been governed in that class of 
 questions above referred to by their respective usages and cus- 
 toms, except where these have been abrogated or altered by 
 positive law, tide title " Nantissement" par: 5 where the ques-< 
 tion to what extent the Roman Dutch law was introduced 
 into the Maritime Provinces is incidentally touched upon, though 
 without reference to the exception of Native usages here mentioned. 
 
 4. Of the Criminal law of Ceylon very little presents it- 
 self in the way of observation. With the exception, indeed, of 
 those few instances, in which particular punishments or penalties 
 are awarded by Regulation or Ordinance against particular 
 offences, no law, properly so called, exists, by which the 
 punishment of offenders in Ceylon is regulated, vide supra 268 
 note. The course of proceeding is marked out by the Charter 
 and rules of practice, but the degree of punishment on con- 
 viction is left entirely to the discretion of the Judge. The 
 P. C. being limited, as we have seen, p: 266 by the 25tk
 
 898 Law, Royal Prerogative, Admiralty. 
 
 clause of the Charter, to certain degrees of punishment. Murder 
 is the only crime which is ever punished by death : but this 
 practice rests only on the concurring opinion of expediency 
 taken by successive Judges, and not on any positive law, written 
 or unwritten. 
 
 5. Another very important branch of the law in force in 
 Ceylon, though it less frequently becomes matter of Judicial 
 discussion than other branches, is that which consists of the 
 rights and powers of the Crown, comprised in the general 
 term Royal Prerogative. One of the most prominent of these 
 powers is that of legislating for all conquered or ceded Colo- 
 nies ; the exercise of which in Ceylon is exemplified by the 
 Charters of Justice by virtue of which the present ad former 
 Courts held their existence. But the prerogative is not limited 
 to that which is inherent in the Crown of Great Britain, it com- 
 prizes all those powers which were lawfully exercised by the 
 Supreme Government, existing at the time of cession, andw'.iich 
 by that act of cession devolved on the new Sovereign. Thus 
 the King succeeded, on the cession of the Maritime Provinces, 
 to all those powers and prerogatives which had been legally 
 exercised over these Provinces by the Dutch Government, and 
 in like manner, on the annexation of the Kandyan Provinces, 
 all the rights of the Kandyan Kings devolved on the Crown of 
 England as far as the same could U-gally be exercised on 
 British subjects. The Order in Council of his late Majesty dated 
 12th April 1882 recognizes the principle that the right to exact 
 service from the holders of land devolved from the Kandyan 
 Crown to that of Great Britain, while it exercises the right of 
 legislation by abolishing the system of forced labor altogether. 
 
 6. The last branch of law which it seems necessary to men- 
 tion as being in force in Ceylon, and which indeed has reference 
 chit-fly to the Court by which it is administered, is that of the 
 Admiralty, by which offences committed, and actions arising on 
 the high seas are cognizable. 
 
 7. To one or other of these different sources all laws, it is 
 believed, in force in Ceylon, may be referred. It is a maxim
 
 Law, Promulgation of. 
 
 which must be familiar to all who have frequented Courts of 
 Justice, that no one, of competent age and understanding can 
 be allowed to plead ignorance of the existing law, from what- 
 ever source derived, as a justification of the breach of it. This 
 maxim is not confined to English jurisprudence, it is one which 
 must necessarily be implied by all laws which it is seriously 
 intended to enforce. For though the plea of ignorance is on 
 which it would be impossible for the accuser, in most instances, 
 to repel, it might, if admitted at all, be urged for nearly every 
 offence known to the law. On the other hand, this necessity 
 of obliging every one, at his peril, to take notice what the law 
 is, makes it the more imperative on the executive Goveniment 
 to give publicity to every new law, and to every alteration in 
 the existing law by all the means in its power. The want of 
 such publicity, in a way which would enable all ranks and 
 descriptions of persons to inform themselves ofevery such change 
 in the law, has long been complained of in England. 
 
 8. It frequently becomes necessary to distinguish between 
 the law itself to be enforced. This distinction has already been 
 alluded to more than once p. 181 and will be found more fully 
 discussed under title " Nantissement" in the judgment on the 
 case of Clark vs. ty. Lebbe. The law can only be altered 
 by Legislative authority, the province of all judges being pro- 
 verbially to declare what the law is, but not to make the law. 
 Whereas in matters of mere practice, the judges are authorized 
 to make rules and to alter them, as they may think expedient; 
 a power which in Ceylon is conferred on the Judges of the S. C. 
 by the 51st clause of the Charter, in the most general and ex- 
 tensive terms, as regards the practice both of that Court, and 
 of the D. C. And this distinction in the mode of legislating 
 on matters of law, and on matters of practice is still more 
 pointedly marked out by the 48th clause of the Charter which 
 directs that any contradictory or inconsistant decisions on mat- 
 ters of law or evidence [evidence being a subdivision of law] 
 shall be set right by a declaratory law, to be laid before the 
 Legislative Council, whereas any such contradictions iu matters
 
 400 Law, application of D. J. to S. C. 
 
 of pleading or practice are to be rectified by general rules or 
 orders of court. It may here be observed that the Charier now 
 in force, imjwrtant as the effects of that instrument have been, 
 makes no alteration in the law of Ceylou; but only appoints the 
 courts by which the laws alread y existing shall be administered 
 nd prescribes the outline of procedure [to be filled up by the 
 rules of practice] by which that administration of the laws shall 
 be carried on. 
 
 9. The 47th rule of the first section of the rules of prac- 
 tice) by which D. J. are recommended to apply to the S. C. 
 for instructions, in cases of doubt or difficulty, is limited by the 
 terms of it to questions of practice. And though it will be 
 observed from the letter book of the S. C., that the D. J have, 
 in many instances, submitted questions riot of mere practice but 
 of law, an instance of which will be seen under title "Notary'* 
 it must not be supposed that the Judges of the S. C. are pledged 
 by the 47th rule to answer such questions. The late Mr. Serjt. 
 Rough, indeed, objected, on more than one occasion, to questions 
 of law being proposed to the S. C. except by way of regular 
 appeal certainly not from any disinclination on the part of that 
 learned pereon to afford the D. C. every proper assistance, but 
 because he considered it irregular. The writer of these notes has 
 sometimes, ol'tener perhaps than he ought to have done, given his 
 opinion on questions purely legal, when proposed to him, and the 
 opinion of Mr. Justice Norris was on one occasion declared in 
 favor of the practice, as being " in strict accordance with the 
 ancient Civil Law" supra 177. And it is believed that the 
 views of Mr. Commissioner Cameron were quite in accordance 
 with this more extended liberty of enquiry. Where indeed a civil 
 case had been already decided, and the D. J. applied to the 
 8. C. for its opinion as to the correctness of that decision, the 
 Judges declined offering that opinion, without a regular appeal, 
 for the reasons given above p. 21. It does certainly appear 
 less objectionable to advise a D J. on a point of law, still 
 undecided in the Court below, than to pronounce an opinion 
 on a case decided, and unappealed from. In the former in-
 
 Legitimacy, Libel, 401 
 
 stance the opinion may prevent not only a false step about to 
 be made, but many subsequent ones, which would have been, 
 retraced on the final reveisal, at inert-used expense and loss of 
 time. Nor could the party to whom such opr.ion or direction 
 might be unfavorable, complain, with any show of Justice, of 
 having lost an advantage which he could only have owed to 
 an error on the part of (he D. C. Whereas a decision, once 
 pronounced and recorded, becomes the property of either party 
 to whom it may appiar advantageous, unless appealed against : 
 and if not appealed against any e.xpression of dissent on the 
 part of tie S. C. would only embarass the D. J. as to thft 
 mode of rectifying his error, unless that error were such as 
 the D. C. would be justified in correcting by amendment of 
 the Juclgtr.tnt, as to which see p. 173 et seq: and p. 249. 
 
 LEGITIMACY. 
 
 See titles Husband and Wife p. 214. 5. 6. 7. Evidence p. 120. 
 LIBEL, DEFAMATION. 
 
 What conditions; verbal, wiitten or otherwise, par. 1. Re- 
 medy lor by action or prosecution, in actions, the Civil Law, 
 in prosecutions, English Law: but evidence of the truth ad- 
 niitied and on what grounds, par. 2 and 3. Legal proceedings 
 not Libels 4. But petition to the Governor falsely accus- 
 ing of fraud, i.ot pmileged 5. A fortiori, if communi- 
 cated to a third person, 6. Tests to decide whether accusation 
 be libellous: as to the limits of accusation or cei.sure, 7. Ac- 
 tions lor Libel not to be dismissed as trivial 8. Nor for ma- 
 licious prosecutions : Case on this subject : Requisites to sup- 
 port this action, 9. 10. II. Amount of injury, with reference 
 to profession or calling, 12. Palanodia or Recantaiion, instead 
 of pecuniary amends, 13. Refusal to sit at Table with another, 
 13 aiid 14. Costs, sometimes, sufficient expiation, 15. 
 
 1 . By the word Libel, taken in this sense, is intended any 
 malicious defamation, whether of the Government, a Magistrate, 
 or a private person. And this word is more properly used 
 - 33
 
 402 Libel, Remedy far. 
 
 when the defamatory matter is printed, >r written or expressed 
 K pictures, or any other similarly permanent shape: Where 
 the injury is conveyed by word of mouth, it is generally called 
 Defamation or verbal slander. The offtnce may be commuted 
 rot only against the refutation of the living, but a'so against 
 the memory of the dead : And ihe Civil Law agrees with 
 the Law of Ei g'.and on this point, Voet : Lib: 47. Tit. 10 
 par. 5. 
 
 Accordirg to Blatkstone, indeed, Libels, in their most ex- 
 tensive sense, ore taken to signify any writings &c of an im- 
 moral or illegal tendency. 
 
 2. The remedy for Slander, whether verbal or written, is 
 either by action at the suit of the party aggrieved, or by pro- 
 secution at the suit of the Crown. In the Civil actions which 
 were brought before the former S. C. on this subject the Ro- 
 man Dutch Law was adhered to, and if the wriu-r of these 
 rotes be not mistaken, tome casts will be found on record 
 decided by former Judges of the S. C., in which much learn- 
 ing will be (bund collected, but which he regrets is not in his 
 power to refer to more particularly in this place: In Criminal 
 prosecutions, the Law of England, as that was amended in 1792, 
 is so far adhered to, that it is left to the Jury to decide on 
 the tendency of the alleged Libel, cs well as on the fact of 
 publication : But the S. C. has been moreover very much in- 
 clined to the atlmihsion of evidence to prove the truth of the 
 publication in Criminal prosccutioi s as well as in Civil actions, 
 at levst as rcascrs for mitigatirig the punishment. And it has 
 dopted ti.is view, partly in conformity wi'.h the Civil Law, and 
 ps-rily fn.m rna'rgy to the practice of the Court of Queen'* 
 Btnch, which requires the party applying for an information, 
 (and it will le recollected that all prosecutions in Ceylon are 
 on Information) to swear to the falsehood of the Libel. Another 
 reason was that almost ali Libels which have been prosecuted 
 before the S. C. (at least up to a recent period) have been 
 published against Magistrates, accusing them of corruption in 
 Office : And the Court has felt very forcibly the inexpediency
 
 Libe?, Evidence of truth of. 408 
 
 (if such a reason may be allowed in Judicial proceedings) of 
 appearing to stifle any inquiry into the conduct of persons con- 
 nected with the administration of Justice, more especially con- 
 sidering how important it is to confirm the native, and in- 
 deed all descriptions of persons in the confidence and good opi- 
 nion, which it is hoped and believed, they entertain in the Ju- 
 dicial establishments, and how difficult it would be' to make 
 them understand the wisdom of the rules which declares truth 
 to be no justification of a Libel when prosecuted as a crime. 
 
 3. Every clay's experience, indeed, tends to strengthen 
 one's opinion, (hat the distinction in the Law of England on 
 this point rests on subtle refinement rather than on reason and 
 
 justice: ;s w: s observed on a late trial on an information agninst 
 the "Times" Newspaper fur a Libel on Sir .1. Conroy. "The 
 first essential of justice is the discovery of the truth, and no 
 one can feel sure t! at jus ( ice has been done by a mode of 
 presenting cognizance of the truth from the provin e of the 
 Jury." The learned Chief Jus ice of the Qjeen's Bench is 
 reported to have said on another occasion. " Tl.at when a per- 
 son engages in the peri'ous trade of Libeller, he ought to be 
 prepared at once, and at the earliest moment to justify iher 
 statements he has ventured to make. " But if \,e be not per- 
 mitted to shew the truth of his statements to the Jury, such 
 preparation is not only useless sis regards his own defence, but 
 the party complaining of the Libel receives but a very imper- 
 fect and unsubstantial \indica ion of his character at the hands 
 of the Jury, e-sen if he suceeer's in obtaii ing a verdi< t : for 
 the libeller may Mill ii sinuate, and gemrally indeed takes good 
 care to do so, that he cculd have proved the truth of all his 
 assertions if the law would have allowed of his so doing. 
 
 4. The following points have been decided by the S. C. since 
 the Charter, first, as regar Is alleged Libel-;, uttered in the course 
 of proceedings or which may be supposed to be preliminary to 
 lawful investigation: An action cannot be sustained (or libel- 
 lous matter contained in the written pleadings in a case. No. 
 743. Amblangodde lith September 1835, [on Circuit] In
 
 404 libel, privileged. 
 
 this case the language of the petition is very strong. "The 
 plaintiff is a Proctor, skilled in acts of frauds and stratn<rem, 
 and endeavouring to steal the Government Ratmaha re lands. " 
 Nor for words made use of in viva 1 vote pleading; No. 1704. 
 Tenmorachy, 6th July 1834, [on Cir uit.] Where the de- 
 fendant had said in the late Siting Magistrate's Court, that 
 the plaintiff w. s a rogue. In all these cases, the S. C. held 
 that as the allegations had b;en introduced into the proceedings 
 in the regular course of justice, they could not be considered 
 " Libellous" in the legal sense of the word. It is the duty 
 of the Court, in which scandalous matter is irrelevantly intro-i 
 duced into the pleadings to expunge it, and to animadvert uj.on 
 it, if wantonly in reduced, or even to comtr.it a party for con- 
 tempt, if he persisted in using abusive or indecent language 
 in Li's oral pleading. But if the allegations are permitted by 
 the Court to remain, it mus' be prrsvimed that the Court con-' 
 iiders them admissible, as tending 'o support the case of the 
 party using them, and it would be unjust and absurd to treat 
 thtm as libels. 
 
 5 But where a person presen'ed a petition to the Gover- 
 uor accusing an officer in the Custom House of fraud and 
 Malversation, which petition the Government directed to be 
 communicated to the party accused, il was held that an action 
 was s'.is a nable. The defendants pleaded first, that this was a 
 privileged communication, secondly that the accusations were 
 warranted l;y general reports. This latter ground of defence 
 wholly failed, and circumstances of great aggravation appearing- 
 in evidence, such as the declared animosity of the defendants 
 against the plaintiff, and their having tampered with some of the 
 witnesses, the D. C. awarded the whole of the damages asked 
 f<>r, I'lOO, nnd the S. C. refused to reduce them. With respect 
 to the first pita, the S. C. considered that as it did not ap- 
 pear that the accusation was true, or that ttye defendants could 
 have believed them true, or that any ground existed even in 
 the sliape of rumours, to justify such belief, it could not be 
 to be a privileged communication, and, therefore, entitled
 
 Libel, prinhtd. 405 
 
 to irtr'errni'y ; tha f , men-over, when a man accused another to- 
 the Government, he ought to.be prepared to prove his charge, 
 and not to take it for granted that his accusation was to be 
 beld confidential, and to remain confined to the breast of the 
 Governor. No. 12,210, Co'om' 1 o, 23d September 1834. It is 
 scarcely necessary to observe that there is nothing in this deci- 
 sion of the S. C. inconsistent with the refusal slated at length, 
 under title " Jnri>dict ; on," supra: 282. to call on the King's 
 Advocate to j.toduce a letter which he had received accusing 
 one of the District Judges of partia'ity. That refusal was no 
 decision as to the libellous tendency of the letter, which letter, 
 indeed, w.-s never before the Court, it proceeded on the 
 grounds, first, that the S. C. would have had a very doubt- 
 ful right to enforce the production of the letter; and secon-lly, 
 that even if it were produced, the S. C. could not regu'arly 
 take any proceedings upon it. In the case just mentioned, the 
 libellous ins'.rurnent was given up by the authority to which 
 it was addressed. 
 
 6. In another case, in which libellous matter was stated in 
 a petition to the Governor, and the defendant delivered the pe- 
 tition, not to the Govenior, but to a thir 1 person, the D. C. 
 awarded damage?, and the S. C. affirmed the Judgment. No. 
 9,522. Negoir.bo 5th October 1833. In this case all preten e 
 of the communica ion btiag piiu'.eged was rebutted by the cir- 
 cumstance of the peiiiio:i bei >g given by the defendant 
 himself to a person oilur than the authority to whom it was 
 addressed. 
 
 7. It can rarely be a difficult task, it may be presumed, 
 for the good j-eiise of a Court or Jury to decide whether a 
 charge or accusation, be it in the shape of a petition or under 
 any other form, be brought from a sincere and conscien Sous 
 desire to discharge a du;y, or from a wanton or malicious wish 
 to injure the person reflected u, on, under colour of doing or 
 obtaining justice. If the situation of the accuser, wi:h re- 
 ference to the party accused, or simply as a member of 
 society, be such as to call upon him to prefer the charge or
 
 406 Like?, not to be dismissed as trivial. 
 
 to justify him in so doing, if the charge turn out to be well- 
 founded, or though not absolutely proved to be true, if there 
 appear to have been a probable cause for it, and if, in bring- 
 ing forward and pursuing his charge, the accuser neither has 
 recourse to improper means of crimination, not by exaggeration, 
 or needless publicity wantonly aggravates the evil which he 
 professes an anxiety to cure ; the fair and natural presumption, 
 since it is impossible to look into men's hearts, so as to dis- 
 cover with absolute certainty their real motives, is that he wis 
 actuated by a sense of duty, and not by base or malignant mo- 
 tives. As regards the latter part of the principle above laid 
 down, the keeping within the bounds of fair and dispassionate 
 statement it is observed by the authority so often quoted in 
 these notes. " A man may be guilty of slander, not only, when 
 it oi'curs in a transaction altogether unlawful, but even when 
 he is engaged in a legal act or in the performance of a posi.ive 
 duly, if he wantonly exceeds the limits prescribed to that duty 
 and makes use of his authoiity to bring others into contempt. 
 Il is open to the Judge or Magistrate, in the administration of 
 the law and for the maintenance of his dignity, to reprimand 
 and keep in order Sailors, Advocates, Proctors and others simi- 
 larly situated, if smy thing be done amiss by them. Bui if 
 buch Judge or Magistrate s:.uld heap words of obloquy upon 
 them, if he should censure without cause or beyond wha ; the 
 occasion requires, not for the purpose of vindicating public 
 authority or of administering and correcting the offender, but in 
 order to expose the party to hatred and disgrace [though this 
 is not 10 be highly presumed] he may be held liable to an ac- 
 tion for Slander," Vuet lib: 47. tit: 10. par. 2. vide supra 
 p: 242. 3. as to the terms of censure in commenting from 
 the bench on the conduct of parties. 
 
 8 Secondly as regards libellous matter uttered, not in the 
 course, or under colour of Judicial or other lawful investigation: 
 In several instances, where acti- us have been brought for Slander, 
 D. Cs. have dismiss d them, as being of too trifling a nature 
 to justify o^cupjing the time of the Court witli the investiga-
 
 Libel, requisites to support action for. 407 
 
 tion, when such dismissal, have been appealed from, however, 
 if the words alleged lo have been uttered have appeared to be 
 clenrly shnderous and actionable, the S. C. has referred the 
 case back for regular inquiry ; observing "that every complaint 
 for which the law assigns a remedy ought to be inquired into, 
 however trivial it may app-ar; and that a plaintiff who com- 
 plains of an injury done to his character, has as much right to 
 the time of the Court as one who seeks to recover property, 
 or redress for any other species of injury." No. 7,403: Kandy 
 30lh September 1635. No. 7,506 Kandy, 11, November 1835. 
 supra 242. 
 
 9 . The following case, though the action wa's not brought, 
 strictly speaking, for a libel, yel is so nearly analogous to ac- 
 tions for that injury, that it may not improperly be placed 
 here. The action was to recover damages for a malicious pro- 
 secution, in which the defendant had sworn that the plaintiff, 
 a salt Storekeeper of Government, had removed a quantity of 
 Government salt in a bag to his own house, from a boat 
 loaded with Government salt. The plaintiff's house had teen 
 searched, by virtue of a Warrant, but no salt was found. Three 
 witnesses named by the defendant [the prosecutor in the cri- 
 minal charge] as having witnessed the removal of the salt, de- 
 nied all knowledge of it, or having ever told the defendant they 
 had seen it. The plaintiff was, of course, acquitted, and brought 
 the present action ; The D. C. however, dismissed it without 
 going into evidence, considering that the plaintiff had shown no 
 valid ground of action, that his character had in no degree 
 suffered from the charge which had been made against him, 
 that the defendant did not a; pear to have acted maliciously, in 
 making it, and that the revenue might suffer, if actions of this 
 nature were encouraged, rn r !y because prosecutors hid failed 
 to adduce conclusive tvid-.nce, so as to convict t'.ie accused. On 
 appeal the S C. referrd the case ba-k for inquiry, in the fol- 
 lowing terms. " Tuis Court is compelled to express its dissent frorn 
 the position laid down by the Ui trict Judge, that no valid caus 
 of action is assigned in the libel. It appears from the proceedings
 
 408 Libeljrrq-tisite* to xvppori prosecufidnfor. 
 
 on ihe criminal side of the Court, that (he defendant charged 
 the plain iff with having removed two parrahs and a half of 
 Government salt from a boat to his own house. It is not 
 stated whether this charge was intended to imp'y a mere in- 
 fraction of Regulation No. 2 of 1818, 14, or whether theft was 
 in the contemplation of the informant. The unqualified terms 
 of the deposition would certainly not appear as if it was in 
 tended to refer to that Regulation. And if Government salt 
 had actually been found in the plaintiffs possession, it is dif- 
 ficult to imagine how the accusation could have assumed any 
 other aspect than that of the theft. But even supposing the 
 charge had been expressly laid for some act contrary to the 
 Regulation, as for removing salt without License, it would 
 be difficult, without having heard t'ue evidence, to pronounce 
 that no damage could have been sustained by the plaintiff by 
 euch a charge even in the case of a private person, it is no 
 very agreeable thing to be subjected to have his house and 
 premises searched under a warrant issued on a charge which 
 turns out to be wholly unfounded. But the effect of an un- 
 founded prosecuiion on a man's character must often be consi- 
 dered, like a libel or any other mode of defamation, with 
 reference to the si uation in life of the person attacked. Now 
 this plaintiff described as " Store-keeper" which it is presumed 
 means, Government Salt Store-keeper, in which character an 
 ecu ation of a mere infraction of the Government Regulation 
 for the protection of salt revenue assumes a very serious com- 
 plexion, both as affecting the plaintiff's character for integrity, 
 and the propriety of allowing him to continue in hia office." 
 
 10. It may assist the D. C. in the prosecution of this 
 inquiry to state what are the requisites to enable a man to support 
 an action (or a malicious prosecution. First the charge must 
 have been false that it was the case in the present instance, 
 it clear from tht evidence attempted to be adduced in support 
 of it. Secondly there must have been want of probable cause 
 to ju-ti'y the informant in making the accusation. As far a* 
 appears as yet, this ingredient i also to be found in the present
 
 Libeh, requisite* in Actions and Prosecutions. 409 
 
 fcase. If the defendant should be able to shew that he had 
 good ground for mtiking the charge he will have an opportunity 
 of doing so in his defence. Third'y, there must have been 
 malice on the part of the iiiforman'. But on this point the 
 S. C. is again compelled to differ from the D. J in the 
 proposition that " Nothing like a malicious design to wrong 
 the plaintiff is fairly to be inferred from the proceeding." Tne 
 law implies malice, when no probable cause is shewn for the ac u- 
 sation. And this is no more than common reason would imply; 
 for what, except malice, could induce a rran to prefer a charge 
 agairst another, for which he is conscious that, no real ground 
 exists ? This question must, therefore, depend on the want or 
 existence of probable cause, as that noay appear at the trial. 
 \Vith this additional observation that the plaintiff should be 
 allowed to adduce evidence, of express malice, if he be able 
 so to do. Fourthly, the damage which the plaintiff may have 
 sustained by the false acciasation is to be considered, whether 
 suffered in person, reputation, or by pecuniary loss. In the 
 present instance, the damage is alleged by the libel to have 
 been sustained in the reputation of the plaintiff. The amount 
 of that damage will be properly for the consideration of the D. C. 
 if the other requisites be established, or rather if w'.iat already 
 aj'pears from the proceedings in the criminal prosecution be 
 not contradicted by the defendant's evidence. It is only ne- 
 cessary to say on that subject, that where a person has actually 
 been brought to trial for any offence, the conviction of which 
 would be injurious to his character, whether as a member of 
 society, or with reference to his profession, occupation or office, 
 it has never been considered sufficient repara-iou for that 
 attack on his character, that the want of evilence, in other 
 words, the want of probable cause, has rendered it unsuccess- 
 ful. 
 
 11. With respect to the consequences which may ensue to 
 
 the revenue, by actions of this iiatuie being encouraged, by 
 
 giving the plaintiffs in them any ad\amage over o.l.er sui:ors; 
 
 but on the other hand, they cannot be prohibited, if the 
 
 34
 
 4 1 Libel \ against professional persons. 
 
 law permits the injured party to seek his remedy by meant 
 of this action, whatever may be the consequence to the re- 
 unue. The protection of the revenue against fraud is surely 
 not more important than that of individuals against false and 
 niiihcious prosecutions. And there is a wide distinction be- 
 .tween a prosecutor barely failing to adduce exclusive evidence, 
 so as to convict the accused, and being unsupported and even 
 contradicted by the whole of his witnesses. For it is remark- 
 able that each of the three persons whom the informant cites 
 as witnesses of the fact, severally denies that he saw any such 
 removal, or that he ever gave such information to the prose- 
 cutor, the present defendant. F. G. Boets plaintiff vrs. 
 
 Cbilaw and Putlam llth November 1835. The result of the 
 trial of this action had not been made known to the S. C. 
 before the writer of these notes left Ceylon. 
 
 12. It was observed in the foregoing case that the effect 
 of an unfounded prosecution, or of a libel, or any other mode 
 of defamation on a man's character, must often be considered 
 with reference to the situation in life of the person attacked: 
 this proposition is. so obvious, as scarcely to require illustra- 
 tion. If a man says or writes of a Proctor that he is igno- 
 rant of law, or of a Physician that he is ignorant of medicine, 
 such assertions Lave a direct tendency to injure the Proctor or 
 Physician in their respective professions; and are indeed indi- 
 rect attacks on the moral honesty of these functionaries, since 
 it is dishonest to attempt to practice an art or science, without 
 being duly qualified so to do. But the same imputations of ignorance 
 of law or physic, made against a person who is not engaged 
 in the profession to winch the imputation refers, inflicts n 
 injury upon him, because it is not his duty to be learned in 
 that particular science. Thus an action was brought by a 
 certain Budhist priest against the High priest, for defamation, 
 but was dismissed by the D. C. on the ground that the 
 w rc!s used did not convey any imputation on his moral cha- 
 racter, and that the plaintiff must seek for any redress to 
 which he might be uitilled by Ecclesiastical means. Ou the
 
 Libel, Palinodia. 4 1 1 
 
 case coming before the S. C., on circuit at Galle, the asses- 
 sors observed that the expressions used conveyed an imputation 
 of the absence of religious feeling: one of the words employed 
 meaning " irreligious." On this statement being made the 
 Chief Justice referred the case back for inquiry, considering 
 that whatever might have been the effect of such an imputa-: 
 tion on a layman, it was impossible to accuse a priest, what- 
 ever might be his sect, of irreligion, without materially injuring 
 hi" priestly character. No. 949 Amblangodde, llth September 
 1635. 
 
 13. One of the remedies pointed out by the Civil Lnw for 
 merely verbal injury is the Palinodia, or recantation of offen- 
 sive expressions by the person who made use of them. In- 
 deed the action to obtain this discription of satisfaction is quite 
 distinct according to the Civil Liw from that in which pecu- 
 niary damages are sought to be recovered. Voet. Lib. 47 : 
 tit : 10 par: 17. Aud this author considers "the recantaton to 
 carry with it a sufficiently heavy penalty, since, as observed 
 by Seneca, no punishment can be more acutely felt than that 
 inflicted by forced repentance," some cases, it is believed, have 
 occurred in Ceylon, in which, though the action had not been 
 expressly directed towards obtaining this species of reparation, 
 the S. C. has either directed a recantation to be made, or, 
 where it has been voluntarily offered by the defendant, has 
 considered that these honorable amends have taken away any 
 claim for pecuniary ones, supposing always that no special 
 damage or loss has been sustained. And the following decision 
 proceeded on that principle. The plaintiff complained that the 
 Defendant had asked him to a marriage feast, and had after- 
 wards refused to associate or sit with him at that ceremony. 
 The Defendant answered that he had no intention of affront- 
 ing the Plaintiff, that his only object was to prevent the Plain- 
 tiff as well as others from going to the feast, and thtreby 
 swelling the expenses. The D. C. considered, from the evi- 
 dence, that there had been no intention on the part of the 
 Defendant to insult the Plaintiff, and therefore dismissed the
 
 413 Libel, P.dinodia. 
 
 action. And the S. C. on appeal affirmed that decision, ob- 
 serving " that there appeared from the evidence no wish or 
 intention to wound the plaintiff's fee'ings, but that even if 
 such an indention was perceptible the defendant's answer amount- 
 ed to a Pa'inodia, with which the plaintiff, if his object had 
 only been lo vindicate bis character, ought to have been per- 
 fectly satisfied ; :>nd that after so satisfactory an answer, it 
 would have been s arcely possible to award damages even if 
 the offence Lad been established. No. 112o Caltura 8th July 
 1835. It is proper to add, however, that the Assessors ex- 
 pressed their dissent from this judgment, considering- that de- 
 mages ought to have be n awarded. Th<? refusal to sit with 
 another at table, supposing the object had been proved to be 
 r {Tensive, is considered by the Natives, as by more refined so- 
 cieties, to be one of the bitterest, insults that can be offered by 
 a man to his eq 
 
 14. Accordingly in another case, u-h.-re the defendant had re- 
 fused to sit at a marriage feast with the plaintiff, and had risen 
 and broken up the party, declaring that he would not associate 
 with him, and in his answer justified his conduct on grounds 
 Of alleged disgrace attaching to the plaintiff's family, which, 
 however, he failed to establish, the D. C. awarded Ten (10) 
 Rixdollars damag<8, and on appeal by the defendant the S. C. 
 affirmed the Decree. In this case it will be observed the defence 
 set up, but not proved, was:n nggravalion of the original offence, 
 It also appeared that the plaintiff had not only been disgraced 
 in the opinion of the witnesses, but one of them stated that he 
 had refused to give the plaintiff his sister in marriage, in conse- 
 quence of the a'Jront. No. 2,592, Colombo North, 29th Octo- 
 ber 1834. 
 
 15. Cas?s sometimes occur, especially when the slander 
 complained of is verbal, in which the Court, after hearing ihe 
 evidence, considers the injury to be so trifling as not to call 
 for damages, but in which the intemperate or thoughtless con- 
 duct of the defendant may properly subject him to the payment 
 of the costs. Thus an action was brought for calling the
 
 i'&e/, imputing slavery. 4 IS 
 
 plaint ifPs father, sin^e deceased, " a whore's son." It appeared 
 that the Defendant held a bond of the deceased, and being angry 
 that he cou d not obtain payment, exclaimed, tearing the bond, 
 " I cannot get the nroi.ey from this "whore's son." The D. C. 
 considering that these wrrds w.'re uttered thoughtlessly in a 
 fit of vexation, and without any intention of seriously imputing 
 base birth to the plaintiff, dismissed the ac'.ion with cos s. The 
 plaintiff a j pealed to the S. C., which decided that the Defen- 
 dant ought at least to pay his own costs and modified the de- 
 cree accordingly. No. 767 Caltura, th April 1835. Perhaps 
 it would have been no more than just, if the defendant had 
 been decreed to pay the costs on both sides ; but in such case 
 it is more regular to award nominal damages, vi.le suyra p. 72. 
 In an nction for similar words of abuse, which the D. C. dismissed, 
 owing to c'oubts of the truth of the evidence, the S. C. affirm- 
 ed the difcin ssal with costs. No. 994, Caltura 22nd April 1835. 
 Another action was biought for defamation, in calling the plain- 
 tiff and family his slaves. The defendant by his answer justi- 
 fied his words as true. It appeared clearly from the evidence, 
 that the plaintiffs family were not slaves. The D. C. consider- 
 ing that no loss or injury had bftn sustained by the plaintiff, 
 awarded no damages, but in as much as the assertion of the 
 defendant had turned out to be unirue, decreed that he 
 should pay the costs on bo;h sides. The plaintiff's object 
 appeared to be only to establish his right to freedom, 
 and he did not appeal for damages. T ie defendant appealed 
 from the judgment of costs, to which he contended he was 
 not liable, since no damages were awarded. Bat the S. C. 
 affirmed the decree, observing " that if a man took upon him- 
 self to call another his slave, he did so at his own risk, and 
 if he could not prove his assertion, the least that the person 
 whose freedom w s quesiioried, had a r'ght to expect, wis 
 that he should be indemnified for the expense of publicly 
 contradicting the assertion. No. 788 Matelle 25th July 1835. 
 These three causes ought to have been mentioned under title 
 "Costs."
 
 414 
 
 LUNATIC. 
 
 Reflation No. 2 of 1829 and 3rd section of Rules, Par. 1, 
 Relations cannot sue for Lunatic, till duly appointed Guurdiau 
 Par. 2. Bare assertion insufficient to establish Lunacy Par. 3. 
 Pica of insanity by a father, to a debt incurred by his son 
 rejected, 4. Opinion of insanity should be supported and ex- 
 plained by facts 5. fr 
 
 1. The course of proceeding, for inquiry into, and deciding 
 upon the stale of mind of a supposed Idiot or Lunatic for 
 appointing guardia::s over the person and property, allowance 
 for maintenance and other purposes, is prescribed by Regula- 
 tion No. 2 of 18:29 to which the D. Cs. are referred, for their 
 guidance by the third section of the rul. s and orders of prac- 
 tice : the only provision added by that section is, the requir- 
 ing every guardian of the estate of snc'i I !ii>t or Lunatic, to 
 file half yearly accounts of his admtnis;ra ion. 
 
 2. The question was submitted to the S. C. by a District 
 Judge, whether the children of a person who was stated to be 
 insane were entitled to recover on a bond execuled in favor of 
 the alleged Lunatic. An action had been instituted on the bond, 
 and at the trial the witnesses swore to the unsound state of 
 mind of the obligee. The District Judge expressed his con- 
 viction that this person was of unsound mind, and incapable 
 of managing his affairs. The S. C. returned for answer "that 
 the best course to be adopted would be, in the first .instance, 
 to have the supposed lunatic brought, if possible, before the 
 iict Court, when from his peisonal examination, if able to 
 attend, and from the evidence of witnesses, as well those al- 
 ready examined, as any others competent to give an opinion 
 on the subject, the Court would be enabled to decide whether 
 he were really of unsound mind or not : and if the result were 
 unfavorable, a guardian must be appointed, as directed by the 
 regulation: That the relations of the alleged Lunatic were 
 not legally entitled to sue oa hU behalf without being clothed
 
 Lunatic bare assertion insufficient. 415 
 
 \vith the authority of his legal guardian ; for this would be to. 
 decide the question of Lunacy, without any inquiry specially 
 directed to that object, and without fixing on any one the 
 responsibility, so necessary to be vested somewhere, of due atten- 
 tion to the care of the Lunatic's person and of his interests. 
 That it would, therefore, be proper to suspend the decision 
 of the case till the necessary inquiry should have been instituted, 
 and consequent steps taken on the question of Lunacy. L. B. 
 24th June, 4th July 1635. 
 
 3. Another District Judge applied for instructions how to 
 proceed with respect to a peison, reported by his brother and Police 
 Viduhn to be deranged, so as to render it necessary to confine him in 
 the stocks, to prevent his doing mischief. He was stated to be worth no 
 property, but his mother was in possession of land to the amount 
 of Rds. 400 or 500 and the D. J. wished to know whether, 
 on the affidavit of the brother and the Vidahn, the supposed 
 lunatic could be committed to gaol till restored to his proper 
 senses. The D. J. was informed in answer. "That in all cases 
 of alleged dtrangement of intellect, the provisions of the Re- 
 gulation No. 2 of 1S29 should be adhered to, as nearly as the 
 circumstances of each case would admit, and his attention was 
 particularly called to the mode in which the inquiry ought to 
 be conducted, namely before the D. J., if circumstances would 
 admit of it, otherwise before Commissioners, to be appointed as 
 directed by the 5 h clause. That if the latter course were 
 adopted, the witnesses should appear before the D. C. accord- 
 ing to the present exclusive system, as regards the power of ad- 
 ministering 1 oaths, and be sworn to their respective depositions, 
 but that it would be highly dangerous to allow a man to be 
 declared insane, on the mere assertion of a relative, supported 
 only by the evidence of the Police Vidahn, that the supposed 
 Lunatic had been put in confinement. That if ultimately the 
 D. C. should feel satisfied that the person in question was out 
 of his mind, and that the violence of his conduct might en- 
 danger the public peace, and if none of his relations were able 
 and willing to take charge of his person, the D. J. would have
 
 416 Lunatic pita of insanity disallowed. 
 
 no alternative, it was feared, but to commit him to the gaol of 
 the district, thtre being no other place for the reception of 
 Lunatics. And that, under die circumstance of poverty in which 
 this person was described to be, any proceedings which might 
 be necessary to enable the D. C. to come to a conclusion, as to 
 fhe state of his mind, ought to be conducted in Formal pauperis." 
 L. B. 12th 22ud February 1836. 
 
 4. An action was brought to recover the sum of one Pound 
 lent to the first defendant, the son of the second defendant. 
 The second defendant pleaded that his son was both a minor' 
 and insane, at the time he borrowed the money. After hearing the 
 e\idence, the substance of which will appear from the Judgment 
 oflhe S. C. the D. C. decreed for the plain. iff, and this decree 
 was affirmed on appeal. The S. C. clserved "of the two ground* 
 of defence, set up by ihe second defendant, that of minority has 
 been left been wholly without proof: The D. J. records that the 
 first defendant appears about 20, but the circumstance of his 
 having been accustomed to carry on dealings in trarle, of which 
 there appears little doubt, would lake away all colour of dt ience 
 on this ground. With respect to his alleged insanity, the tvi- 
 dence is much too loose and vague, as to time, to justify the 
 conclusion that he was not in his right senses when he received 
 this money from the plaintiff. But even supposing that he had 
 been out of his mind about that time, it was the du y oi 
 father, the second defendant, and it is still his duty, to take those 
 
 steps which the law justifies and calls upon him to take; for 
 placing his son under that restraint which would prevent the 
 youngman from improvidently disposing of his property, on the 
 one hand, or on the other hand, from obtaining money from others, 
 who may not be aware of the state of his intellect." No. 1194 
 Walligammo, 13ih June 1835. 
 
 5. We have seen it observed, supra 200, 1. that as the 
 question of insanity, except in very decided cases, is a matter 
 of a mere opinion, the naked expression of such opinion is not 
 entitled to any great weight unless it be followed by an expla- 
 nation of the facts or circumstances on which it is founded.
 
 41? 
 
 MALICIOUS PROSECUTION. 
 See title Libel, paragraphs, 9. 10. and 11. and Prosecution, 
 
 MARRIAGE. 
 
 See "Husband and Wife;" and as to Beena and Deega mar- 
 riages see title " Kandy." 
 
 Marriage, breach of promise of, 
 
 Though this is a wrong which more frequently forms a subject 
 of complaint on the part of the woman, there still is nothing to 
 prevent the man from bringing ah action for this injury, if he 
 considers that he has sustained one, by breach of the engage- 
 ment entered into with him. An action of this discription was 
 brought against the first defendant, for refusing to fulfil her 
 promise of marriage, and against the second defendant, mother 
 of the first, for inciting her daughter to retract the publication 
 of the banns, and the assent of both mother and daughter were 
 proved, and there was no defence to the action, except a dis- 
 graceful one attempted by the mother and which turned out to 
 be false. The D. C. endeavoured to prevail on the first de- 
 fendant to return to her engagement, but in vain, and at length 
 considering that the plaintiff had sustained no damage, dismis- 
 sed the action, lut directed the second defendant to pay the 
 costs incurred by herself and her daughter. The S. C., on ap- 
 peal, concurred with tlie Court below in thinking that the plain- 
 tiff had not shewn any pecuniary loss, which would entitle him 
 to damages to any amount; but considering that the contract 
 had been undoubtedly entered into, and had as undoubtedly been 
 broken, at the instigation, or by the connivance of the second 
 defendant, considering also the false and disgraceful defence 
 which that person attempted to set up, it was but just that all 
 the costs of the action should fall upon her: and as there 
 would have been an inconsistency in awarding costs to the 
 plaintiff, with a decree dismissing his claim, it was ordered that 
 Judgment be entered for the plaintiff for one shilling, and that 
 the second defendant should pay the costs, as well of the 
 35
 
 4 1 s Minority, age of, in Ceylon. 
 
 B of herself and her daughter, thefirtl defendant. No. 1472, Cat- 
 tura 28th October 1835 mentioned supra 72. 
 
 Publication of banns, both parties being present an 1 assenting 
 evidence of a promise, supra 216. 
 
 Sec also No. 1134 Caltura, supra 71 as to costs. "Merits of a 
 ease." Explanation of the term p. 82. Note* 
 
 Age of majority in Ceylon. Paragraph 1. Privileges of minors, 
 immunity fro") punishment depends on unc':>rstai:d:ng, rather than 
 age, so adaiissibili y as wiini&s -sr. 2. contracts by minors void 
 except for necessaries or unless ratified after trajori y 3. Mi- 
 noriiy how prove:! 4 When it ceases, before '.he usual age. 
 Venia CEtalis, marriage, trarlbg 5 case of albged minority re- 
 ferred Ir.ck to D. C. for inquiry aS to trading 6. 
 
 1. The age at which a person ceases to bs a mir.or must 
 rary r'. Ceylon according to the I?.VF of the nation to which 
 the minor belongs. By the Roman Dutch Law, which it must 
 alv.'ays be remembered, is only in force in the JjavLhv.e Pro- 
 vinces, a person does not attain his majcrky till he has com- 
 pleted bis twenty-fifth year, a very mature age in Ceylon v/hen 
 the effect of climate upon the '.:uman frcme is taken into con- 
 sideration. As regards Natives the age of majority would be 
 found, even in the Maritime Provinces, it is apprehended, by the 
 law of their own respective tribes, vide supra, title law p ' 1 and 
 8. la the Randyau districts we have seen thai a man may con- 
 tract debts, and is answerable for his contracts, after he has completed 
 bis sixteenth year. Su^ra. title " Kandy " p:-.r. 157 to 162 where 
 a few points on the subject of minority will be found, as 
 given by Mr. Saw?rs. By the Law of Eng and, where the 
 lull age of majority is twenty-one years, there are several inter- 
 mediate periods, on obtaining which the minor becomes compe- 
 te t to do certain acts. Thus at 12, he may tale the oath 
 of allegiance, at fourteen, may agree to marriage, choose hi 
 and make his will of personal property, at seventeen,
 
 Minority, Contracts by Minon. 410 
 
 may be etecutor, and at twenty-one acquires full power of dis- 
 position of himself and his property. And a similar qualified 
 attainment of majority for many purposes may be recognized in 
 Ceylon, though the diversity of Laws and customs would make 
 it difficult to state the periods with any precision. And a very 
 valuable treatise on the Roman Dutch Law of minority is to 
 be found in " Voet : lib : tit : 4 De Minoritate 25 annis." 
 
 2. By the law of all countries, minors are much favored 
 and have many privileges, chiefly as regards their civil rights 
 ar.d liabilities. For with respect to immunity from punishment, 
 for offences committed by them, this ought to be decided, 
 not so muea with reference to the precise age of the offender, 
 as to the state of Us understanding, and the power of his mind to 
 discriminate between good and evil. For this capacity differs so 
 much in different understandings, that it is much safer and more 
 satisfactory to decide, from the circumstances under which the 
 offence was committed, and ftom the general character and 
 habits of the child, whether he or she were aware of the nature 
 end consequences of the act, than to lay down any exact age 
 at which children shall become responsible for their actions. 
 For the same reeson no precise ago can be fixed wiihin which 
 a child shall be admitted to giva evidence. The admission 
 or exclusion must depend, in each case, on the understanding 
 of the child as that shall appear to the Court on examination, 
 and of i:s capacity to distinguish between truth and falsehood, 
 and to understand the consequences of uttering what is not 
 -true. S^pra. 135. 
 
 3. As regards civil immunities, the genera! rule is that 
 contracts made by minors are void as against t'aem : that is, 
 the minor may refuse to ratify them, and may be relieved 
 against the effect of them on application to a Coart. This is 
 the general princip!e both of the English and the Civil Law. 
 But it "is not without exceptions. The reason of the rule is 
 that the minor is supposed to be deficient in the understand- 
 ing and experience necessary to enable him to take care of his 
 own interests. When, therefore, the reason . ceases, the rul
 
 420 Minority, Contracts by Minors. 
 
 ceases also. Accordingly a minor is liable to pay for food, 
 clothing, medicine, schooling, and other necessaries of life which 
 may be furnished to him ; and this whether he has entered 
 into an express contract to pay, or whether the creditor trusts 
 to the implied promise which the Law raises on such occasions 
 [infra title "Obligation."] As regards those objects which 
 come under the discription of "Necessaries" it cannot be said 
 that the purchase of them requires experience or sagacity, 
 since they are essential to the minor's existence. If the minor 
 be living with his parents, and unrler their authority, they, arid 
 not the minor, are answerable even for necessaries. WSiat things 
 are to be esconsidered necsaries, must depend on the sex, age, 
 and station in life of the minor. A claim was made in one 
 rf the Southern districts which sounds otH'.y to european ears. 
 The plaintiff sued on a contract, by which the defendant had 
 agreed to pay 30 Rixdollars, if he did not return within on.e 
 mo-.i.th a certain comb which the plaintiff had lent him. The 
 defendant alleged that being in great want of a com6, to ap- 
 pear at seme ceremony, he had entered into this improvident 
 contract, that he was a minor at the time, that he had loat 
 the comb, but was willing to pay 10 Rixdollars as the value 
 of it. The D. C. being satisfied of the defendant's minority, 
 dismissed the action. The S. C., however, on the case com- 
 ing before it on circuit, and on the assessors giving it, as 
 their opinion, that the comb was to be considered a necessary 
 appendage to a Cingalese in the defendant's station, directed 
 Judgment for the plaintiff for ten Rixdollars. No. 552 Am- 
 blangodde, 7th March 1835. And whatever be the nature of 
 the debt contracted during minority, if the minor after coming 
 of age, promise to pay it, such promise will be binding upon 
 liim. 
 
 4. Minority is proved by inspection of the alleged minor 
 himself by the Court, by the evidence of witnesses, register of 
 
 i 
 
 biith, or any other documents which may safely and legally 
 be relied upon. The mere appearance of the person, unless 
 it be so directed one way or the other as to leave no douty
 
 Minority, Venia (Etat is, -trading. 421 
 
 in the mind of the Court, oug.ht not to be taken as conclusive 
 And where a D. C. decided that a defendant was not liable, 
 as being apparently a minor " (he S. C. considered this to be 
 not sufficiently certain, and directed evidence to be gone into 
 as to that fact. No. 655, Amblangodde, 5th March 1835. 
 [circuit.] 
 
 5. Minority ceases in some instances, as regards the civil 
 disabilities of the minor, before he attains the age of minority. 
 By the Roman Dutch Law, the Venia CEtatis, or permission 
 to be considered of age, may he obtained, for which purpose 
 the applicant must prove himself, by sufficient evidence, to be 
 of good character and of those sober, prudent, and industrious 
 habils which permit the management of his affairs to be entrusted 
 to him wi'hout danger. Voet. lib. 4 tit: 4 par: 3. By the 
 more modern Lnw of Holland, marriage has the effect of con- 
 ferring on a minor the rights of majority, unless the Court, for 
 special causes, should see fit to continue the restraint of nonage 
 to the usual period. Hid: par: 6. Another mode by which 
 the effect of minority, screening the minor from his liability on 
 contracts, may be destroyed, is his having been engaged in 
 trade at the time of contracting ; the law considering, with 
 great reason, that if a man has understanding and experience 
 enough for commerce, he may 'safely be left to his own pro- 
 tection in the ordinary concerns and dealings of life. Or, as 
 Voet observes, par: 51. "The claim to relief from contracts, 
 founded on inexperience in business, appears utterly inconsistent 
 with following commerce as a vocation." 
 
 6. In an action brought against the defendant for opposing 
 a sale in execution, which the plaintiff had obtained against 
 one Sauda [a moorman] the defendant justified the opposition, 
 as Sauda's father, on the ground that his son was under age, 
 to which the plaintiff replied that Sauda was engaged in trade 
 at the time of the debt being incurred. The D. C. decided 
 that Sauda was under age, being about twenty, and dismissed 
 the suit. The S. C., however, referred the case back to the 
 D. C., in order that a full enquiry might be made into the
 
 422 Mortgage, 1 Motion. 
 
 circumstances under whbh ihe debt was originally incurred. 
 " If it could be proved that Sauda was openly engaged in 
 trade, his minority would be no justification of the opposition 
 by lii father : Or, if the debt was contracted for necessaries, 
 either himself or his father would be liable for the amount. 
 The law very properly protects minors against those who would 
 Attempt to take advantage of their inexperience, but the p'ea 
 of minority is a defence which, on the other hand, should be 
 admitted wiih some caution, lest it should be made the means 
 of defeating a creditor of a just debt, incurred by the alleged 
 minor under circumstances which ought, in justice, to preclude 
 bis sheltering under a supposed incapacity to contract. Another 
 question is, what is the age at which Moormen became liable 
 for debts. Among the Moors, as far as this Court has been 
 able to observe, very many are engaged in commerce before the 
 age of twenty." No. 584. Ne^ombo, 7th February 1835. 
 See also No. 1194. Walligammo, supra tit. "Lunacy" par. 4. 
 
 MORTGAGE. 
 
 See titles, "Kandy. " Paragraph 140 et seq: '"Land" pa- 
 ragraph 17. 
 
 MOTION. 
 
 By a supplementary rule of practice of 9th October 1934, 
 the following direction is given "with respect to applications 
 and motions:" The word "application" having been used in 
 the table of Ceurt fees, and nothing having been said of " mo- 
 tions," it has been supposed, in some of the D. Cs. either 
 that every motion must be in ihe form of a written applica- 
 tion, or that it must be preceded by an application in writing. 
 A distinction, however, must be made with reference to such 
 motions as, from their nature, necessarily require to be reduced 
 to writing, in which cases stamps are necessary; all other 
 motions may be made viva voce : and no Proctors shall be 
 allowed to charge for d, awing an application, unless when it is 
 to be reduced to writing. Certain charges for draw-
 
 j/o<i r >7i, Nantissement, 438 
 
 ing applications for documents, having, in pursuance of this 
 rule, been disallowed by the Registrar in taxing Bills of Costs, 
 transmitted from a D. C., the D. J. applied to the 8. C. fo* 
 instructions, whether the practice of filing applications in writing 
 for documents was to be discontinued. He observed that th 
 practice had leen long standing; and appeared necessary, as 
 tending to check unnecessary, and frivolous applications for do 
 cuments, the searching for which often consumed a considerable 
 portion of the time of the Officers of the Court, besides which, 
 it was usual to file the application in the 1 place of the docu* 
 tnent, as proof of the delivery of the Documeut. The S. C.* 
 in answer, referred the D. J. to the Rule of 9th Oc'ober 
 1834 and then observed." That since that Rule was passed, 
 the practice in the D. Cs. at Colombo, [and it was necessary 
 that the practice in all the D. Cs. should be as nearly as 
 possible the same,] had been, not to make applications in writing 
 nor to require them, except in some few special cases; that 
 the S. C- could not by any means concur in the neces* 
 sity of written applications on all occasions, however ancient the 
 .practice might be; that no longer time would be consumed 
 in searching for Documents, because required by vivft voce 
 motion than if sought by written application, and that it might 
 be doubted whether the requisition would be less frequent, be- 
 cause the latter mode tvas insisted on; -and th?.t with res* 
 pect to filing the application in the room of the Document re- 
 quired, and as proof of the delivery of it to the applicant, a 
 much better and more regular proof of the applications and 
 delivery would be the entry by the D. J. in the proceedings, 
 of the motion made, and of its being granted or refused, which 
 entry ought to be made of all applications, whether written- or 
 verbal." L. B. 24th April I83&. 
 
 NANTISS2MENT. 
 
 Meaning of the term : When granted, and on what Docu- 
 ments according to Voet; paragraph 1.- Three cases on this 
 subject deciding. 1st. That Kantitsttnent ffas introduced into
 
 424 Na7itisscment, Foels* exposition of. 
 
 the Maritime Provinces with the Roman Dutch Law; Sndly. 
 That it is matter of Law, rather than practice, Srdly. That 
 it is not at solute, 4thly. Nor superseded or affected by the 
 Charter of 1801, 5thly. Nor by present right of arrest and 
 sequestration; Gthly. That it tends to shorten, raiher than 
 lengthen, the ultimate issue, Tthly. That a Merchant's Book 
 is ground for it, and may be produced unstamped, Sihly. Tiiat 
 it may now be supported by declaration, instead of oath. Qthlyi 
 That the defendant's admission of liability is not indispensable, 
 lOthly. That his bare allegation of fraud is no bar, llth'y. That 
 it may be granted in progress of the suit, even after appeal, 
 and though refused before, if new ground shewn; And 12thly. 
 That being of an interlocutory nature, it should have preaudi- 
 ence of trials on the general merits: Paragraph 2 to 10. Opi- 
 nion as to granting or refusing it, mutual examination of par- 
 ties would assist the decision par. II. 
 
 1. Before entering into the cases which have been decided 
 by the S. C. on this subject, it may be useful to those readers 
 who are not versed in Roman Dutch Law, and may serve to 
 facilitate the comprehension and application of those cases, to 
 offer a translation of Voet's expostiion of this proceeding, which 
 he treats of as follows. " Of interlocutory sentences, that which 
 is in most frequent use is the decree of provisional pay- 
 ment, or Nantissement) which the plaintiff demands shall be 
 jnade to him pending the main action, if he holds in his favor 
 an admitted signature, or his Merchant's Books, or an acknow- 
 ledgement by the defendant, or some plain proof of the debt 
 of a like nature : And a brief summary of the requisites, both 
 here in Holland, and in neighbouring states, for this proceed- 
 ing, which is not mentioned in the Roman Law, though it has 
 been introduced into practice, will not be out of place here. It 
 is necessary then that the debt be unconditional and reduced to 
 certainty; and that this should appear, either by the admission 
 of the opposite party, or by some instrument, public or pri- 
 vate, acknowledged by him, or by the Merchant's Book, or by 
 other Documents of a like nature, to which a somewhat greater
 
 fcanlissemcnt. 425 
 
 authority attaches, than to mere private accounts, and which 
 should be confirmed by the oath, or death of the party. And 
 thus the defendant, after a first citation, may be decreed to 
 mute provisional payment, unless indeed he appear and shew 
 good and sufficient ground for resisting plaintiff's application: 
 As if the defendant deny altogether ihe delivery or sa'e of the 
 goods, giving Some probable reasons for the denhl. " Voet 
 Lib. 42. tit. 1. par. 6. The rest of this paragraph lays down 
 certain rules, as to the number of citations and delays iiece.i* 
 sary, which points, with us, would be regulated by the prac* 
 tice of the D. Cs. But it is well to mention that a copy of 
 the instrument, on which the plaintiff relies, ought to accompany 
 the citation : The above extract will give an idea of the nature 
 of this precautionary proceeding, sufficient to render the follow- 
 ing cases intelligible, even to those who were not previously ac- 
 quainted with the term Nantismment : The subject is treated 
 of more in detail in the ten paragraphs of Voet, following that 
 .irom which we have just quoted. 
 
 2. Two Cases present themselves to the writer of these 
 notes, in which the subject of Nantissement, came under discussi- 
 on. The first ot them occurred before the former S. C. in 1830 
 when the writer was sitting alone in that Court, he is however, 
 tempted to insert it here, as having been cited in the subse- 
 quent case, which was argued before the S. ^jpitting under 
 the new Charter. The Judgment in each case states the facts, 
 .sufficiently to make the decision intelligible. In the case, first 
 about to be mentioned, another point, foreign to the subject 
 of tfantigsenuiit, arose, viz: What proof shall be sufficient of 
 a person's authority to certify a fact, referred to under till* 
 *' Evidence, " supra. 150. 
 
 3. " This action is brought by the Attornies of E. J. Srott 
 who is the Executor of John S/ott to lecover the sum of 8U) 
 being the arre-ar-s lor 28 years of an Annuity of 30, granted 
 by the defendant to John Scott b\ dted dated 20,h Aj ril 1810 
 and executed in Eriffland. Tt:e defendant having quitted England, 
 as th plaintiffs alh-ge in their Libel, iu 1803 Irom wliica p- 
 
 36
 
 49 Nantissement. 
 
 nod no payment of the Annuity has been made. The de- 
 fendant, by his answer, avers 1st. That no memorial of the 
 Annuity deed was enrolled in Chancery within the 20 days from 
 the execution thereof, as required by statute G. III. ch. 26. 
 2ndly that the deed was obtained by fraud ; that the Grantee and 
 others falsely represented to the defendant that he should receive the 
 full consideration money of 180, whereas the defendant was 
 induced, by fraud, to return a great part of that sum, whereby 
 the deed became void. With respect to the first ground of 
 defence, I am compelled, though with some reluctance, to say 
 that the opinion which I entertained when the case was first 
 brought before S. C., and which I then intimated to the bar, 
 remains, in substance, unaltered. The statute already adverted 
 to, which is the act that must govern this case, required that 
 a Memorial of every annuity deed of a nature similar to that 
 hi question should be enrolled within 20 days after its execution, 
 on pain of nullity. The defendant avers that no Memorial has 
 been enrolled in due time, to wit, on the 9th May 1801. It 
 is for the plaintiffs, therefore, to prove the affirmative which 
 they have taken, and necessarily taken upon themselves to make. 
 Has then that affirmative been proved ? The only evidence 
 of such enrolment is the following endorsement on the deed. 
 " A Memorial of this deed was enrolled in His Majesty's high 
 Court of Chancery the 9th day of May in the year of our 
 Lord 1801 D. Drew." Who this D. Drew is, or was, by whom 
 this Memorandum purports to have been made ; whether h 
 was a person duly authorized to make such endorsement, or 
 whether this be really his signature, there is no evidence what- 
 ever to shew. If indeed, it had been proved that he was the 
 clerk of the enrolments on 9th May 1801 and that it was his 
 duty to make this endorsement on the deed, or even if the 
 certificate purporttd to have been signed by him in that charac- 
 ter, the Court would probably have felt justified, under the 
 authority which has heen cited of "Kinnersly vs- Orpe:" Doughas 
 i6, to declare this certificate sufficiently authentic. But giving 
 the fullest effect to that decision, and to the analogy which Mr.
 
 Nantissement. 427 
 
 Justice Duller draws from Statute 27. Hen: 8 ch: 16 it must 
 be recollected that the opinions both of Mr. Justice Bulleraud 
 Mr. Justice Willes were founded on the fact that " the Memo- 
 randum was the certificate of the proper officer, and not of a 
 private person, as had been contended at the bar. The signa- 
 ture itself in that case was "P. Fury, Auditor." And this 
 principle is fully recognized by Mr. Phillipps in his treatise 
 on evidence, (P. 3103d edition) provided the instrument offered in 
 evidence be authenticated by a person appointed for that purpose;" 
 "Whereas here, there is nothing but bare and gratuitous pre- 
 sumption to lead the Court to suppose that " D. Drew" was 
 more than a private unauthorized person. This defect in the 
 plaintiff's proof can only, it seems, be remedied by a com- 
 mission to examine witnesses in England, and of that commis- 
 sion the defendant, on whom it is scarcely necessary to say lies 
 the burthen of establishing the second ground of his defence, 
 can avail himsejf. 
 
 The necessity of such a commission having become apparent, 
 the plaintiff's counsel has moved that the defendant may be 
 compelled, either to pay into Court the amount claimed, or, at 
 least, to give security for the payment of it, if it should be 
 ultimately decreed to the plaintiffs. The defendant's proctor re- 
 sists this application on four grounds : 1st that the practice of 
 demanding Nantissement, or provisional payment is antiquated and 
 obsolete; 2dly that it has been superseded by the 38th clause of the 
 Charter uf 1801 which provides another mode of security, by arrest 
 of the person of the debtor, 3dly, that Nantissement can only 
 te demanded when the debtor admits his liability; and 4thly 
 that; at all events, it cannot be decreed where fraud is al- 
 leged against the claimant, as in the present instance. With 
 respect to the first and more general ground, I certainly see 
 no reason for considering the practice as obsolete. It is treated 
 of by all the Civil law writers whom I have been able to 
 consult: Vanderlinden, who published his Institutes so late as 
 1806, speaks of it as a custom frequently in use, and, con- 
 sidering the very brief and elementary nature of the work, lays
 
 42$ 
 
 down very clear and distinct rules for deciding in what cages 
 it shoud be granted. The necessity for affording, such pro- 
 visional securiiy to creditor?, suing at this distance from the 
 scene of the original transaction, apji'i^s with peculiar force; 
 and it would be easy to mention cases in which a refusal to 
 grant such precautionary relief would amount to a total denial 
 of justice. 
 
 Nor, secondly, do I consider that the 38th Section of the 
 Charter of 1801, has superseded, or in any way affected, this 
 mode of proceeding. That clause declares in what cases a War- 
 rant of Arrest may issue against a defendant, and prescribes 
 the course of proceeding on such Warrant, but it does not 
 make that process substitutionary of those which exist by the 
 Trunnion law of the Island, and which remain untouched by 
 the Char'er. Th(re are other reasons besides those which the 
 Cii rter specifies as grounds for obtaining a Warrant of Arrest, 
 tvhich may often make some measure of precaution necessary to 
 ecure a debt during the long interval which must elapse before 
 evidence can be procured from Europe: I need only give as 
 an example the possibility of the death of a defendant. It is 
 true, as has been urged, that the Charter of 1801, as it now 
 stands, allows of the arrest of any defendant, whether suspected 
 of an intention to quit the Jurisdiction, or not, on a debt which 
 is sworn to exceed 100 Rds-: but I can never admit that this 
 extensive and extraordinary jower of arrest is .uisen, to the ex- 
 clusion of the milder course of proceeding, prescribed by the 
 ordinary rules of the Civil law. And here the passage which 
 has been cited on the part of the plaintiffs, from Voet, Lib: 
 42. tit: 1, par: 12, is in point, to shew that this application 
 may be made in the progress f the suit, if the plaintiff has 
 re: son to upprelund a longer delay than at first appeared pro- 
 bable. Wh<reas the Charter of 1601, literally adhered to, 
 would seem to contemplate only an arrest, issued in the first 
 instance, in lieu of the common Citation. In answer to the 
 third ground of objection, it would be sufficient to say that, in 
 the prtbtnt instance, the defendant admitted in Court that U
 
 Nantisscmeirt. 429 
 
 believed the signature to the Deed, and to the Receipt endorsed 
 upon it, to be his. But I arn very far from agreeing that such 
 admission would be indispensable to the success of applications 
 like the present. According to Voet, par : 7, even if the de- 
 fendant positively denies his signature in open Court, the decree 
 of provi ional payment is only to be pot/poncd until the plain- 
 tiff shall prove the defendant's signature. If, therefore, that 
 fact be proved, in the first instance, by other evidence, the ad- 
 mission or denial of the defendant would be of no importance. 
 The fourth, and last objection proceeds on the fallacy of sup- 
 posing, thai a bare allegation of fraud is sufficient to bar the 
 plaintiff of his claim to this relief. On this branch of the sub- 
 ject, Vanderlinden, Book 3. par: 1. s_'ct. 12, seq : " On the 
 " part of the defendant, to prevent provision or Nantissemtnt 
 " being decreed against him in such cases, he must produce 
 " such couuterproofs as appear to the Judge to render it pro- 
 " 1 able that the plaintiff will not succeed on the merits." 
 Indeed, if this were otherwise, and a naked averment of fraud 
 were deemed a sufficient answer to the application, no European 
 credi or coul 1 ever hope to avail himself of it, unless the debtor 
 here consented to it. There is a passage in Voet, par : 9, which 
 appears t-j me :o bear closely on this objection : " Nor will 
 " the exception, that the sum me.itio'.ied in the instrument has 
 " not been paid, avail the defendant, if, by a renunciation of 
 '* that exception" and I cannot but think that, in the present 
 case, the defendants own signature to the Receipt of the con- 
 sideration in six bank notes, the number and value of each of 
 whkh are specified, is fully tantamount to the renunciation re- 
 quired by the Civil law "or by the lapse of two years, 
 *' if no renunciation have been made, the burthen of proof 
 should be thrown, not on the plaintiff, but on the defendant 
 who pleads the exception &c. " The Court is of opinion that 
 the plaintiffs are entitled to the security for which they have 
 applied : And it is, therefore, ordered that the defendant do 
 either pay the sum of 840 into Court, to abide the result of 
 this suit; or else, that he give security for such sum as
 
 Nandssement. 
 
 may ultimately be directed to be decreed lo be due, if any should 
 be so decreed." Gibson and another vs. Rodney, Colombo, 12th 
 Nov. 1830. 
 
 4. The second case on this subject arose in 1835, and 
 though brought before the S. C. in appeal from the D. C. of 
 Colombo, was argued, if the writer of these notes be not mis- 
 taken, before the three Judges, all of whom concurred in the fol- 
 lowing Judgment pronounced by the C. J. 
 
 5. " The plaintiffs in this action seek to recover the value of 
 cerlain cloths which they allege have been sold and delivered by 
 them to the defendant, the plaintiff being British merchants, the 
 defendant a Native merchant. The defendant, by his answer, 
 admits the agreement to purchase the goods in question, but 
 denies that they have ever been delivered to him. In this stage 
 of the case, (he plaintiffs apply to the D. C. for the security 
 of Nantissement, or provisional payment, and they ground this 
 application on the following entries in the sales book of the 
 house: 
 
 Colombo, 2Sth January 1835. 
 
 30th 
 
 S. M. L. Mahamado Lebbe Markair at 2 equal monthly in- 
 stalments. 
 
 Q 100 pieces checked lappets 6*. 7^d. 83 2 6 
 
 Received Mahamado Lebbe. 
 
 Z 80 pieces Book Muslin 7s. 9<i 31 
 
 Received Mahamado Lebbe. 
 
 On these entries being shewn to the defendant he admits his 
 signature to each of them, but still denies the delivery. After 
 considerable discussion in the Court below, and due considera- 
 tion of ihe arguments adduced on both sides the D C. pro- 
 nounces it* opinion that the defendant's signature, without other 
 corroborative proof, is insufficient lo warrant a compliance with 
 the plainiifTs application; more especially as the defendant de- 
 nies the delivery of the goods, and as the Rules of Practice are 
 silent U|X >n this point. Against this decision the defendant has 
 appealed; and indeed the District Judge has recorded his wish,
 
 Nantisseinent. 
 
 that a matter of so much importance should be brought to the 
 notice of the S. C. The right of the plaintiffs to demand this 
 security has been contested before this Court on three distinct 
 grounds: First, it is contended that the law or practice of 
 Naniissement never has formed part of the law of Ceylon, even 
 of the Maritime Provinces. Secondly, that if it did exist as 
 law here, as a general rule, still this would not be a case to 
 which it would be applicable. Thirdly, that even if both the 
 first points should be decided in favor of the plaintiffs, still the 
 sales lok, on which the plaintiffs rest their application, is in- 
 admissible in evidence, under the 9th clause of the Stamp Regu- 
 lation, No. 4 of 1827. With respect to the first and more 
 extensive ground of objection the question was brought before 
 the late S. C. in the year 1S30, in the foregoing case of Gib- 
 son vs. Rodney, when it was decided that the right to demand 
 this provisional security did form part of the Roman Dutch 
 Law, as administered in the Maritime Provinces of Ceylon. 
 Without repeating the grounds on which that decision was formed, 
 it is sufficient, as regards that case, to observe that the 
 Court, now sitting, coincides in the view then taken of the 
 subject: and the only anxiety felt by the C. J., by whom 
 that Judgment was pronounced, when sitting alone, has been 
 that the question should be considered entirely an open one. 
 The present case has accordingly been argued as unreser- 
 vedly as if the question were now agitated for the first 
 time; though the line of argument has differed considerably 
 from that taken in the former occasion. It has been contended, 
 on the authority of the Proclamations of the 23d of Sept. 
 1799, and the 22d January 1801, and of the first Charter of 
 1601, that the Law of Holland was only intended to remain the 
 law of the Maritime Provinces partially, as a temporary measure, 
 and subject to any alterations to be subsequently made. This 
 Court can only assent to the latter part of the proposition. The 
 Roman Dutch Law was, no doubt, introduced from the first, 
 subject to any alterations which might legally be made in it 
 by Legislative authority ; and accordingly, various alteration*
 
 492 
 
 and modifications have, from time (o time, been made fn it. 
 But, subject to these changes, there can be as little d >ubt that 
 the body of laws and institutions te which subsisted linger the 
 ancient government of the United Provinces," continued, by 
 virtue of the Proclamation of 1799, <o be the code by wlncti 
 the administration of justice was to be governed, and so conti- 
 nues up to this day, except in so far as it has been altered, by 
 legal authority (vide supra, "Law," par: 3.) Then wiih respect to 
 this particular right ofNantissewent it has been contended that as this 
 was itself a comparatively modern innovation on the Law of 
 Holland, having been introduced into the United Provinces front 
 France, it did not necessarily follow the general mass of Dutch 
 Law into these settlements ; and this posi'.i,>a is attempted lobe 
 strengthened by an argument, taken up at a later s'.age of the 
 discussion, that this i.s a right wholly unfitted for the s'ate of 
 commerce at present existi; g in this Island, and ought, therefore, 
 to be rejected, 1 as one of those deviations, evidently benefit-Sal 
 and desirable, which could seem to be contemplated by the 
 Proclamations. Leaving, for the present, the latter part oF this 
 argument, it is sufficient to observe here, that it certainly formed 
 part of the Law of Holland at the time of the cession of these 
 Settlements, and, therefore that, at whatever time it may have 
 been engrafted on the Dutch Law, it was transplanted hither, 
 together with the stock of which it had become a part. Of 
 the various authorities which have been cited, the only twa 
 which at all bear upon this point (for there does not appear 
 to be a sh.glc aullor who expresses any ('oubt of yanfissemcnf, 
 in general, firming a part of the Law of Holland) are "The 
 Dutch Consultations" and " Lybrecht on the duties of No- 
 taries." The first of these authorises speaks of " this pro- 
 " vision as having been introduced, not only against the practice^ 
 *' but also against the Common Law." This position is con- 
 troverted by some of the most eminent writers on Dutch Law, 
 and among others by Van Leeuwen in the Censura Forenbis, 
 where he shews that it rather runs with, than counter to tht 
 Common Law. But eveu supposing it to be in contravention
 
 433 
 
 tof the Common Law, the same tiring may be said of the 
 English Statute of Limitations, or of any other Law which is 
 not merely declaratory or explanatory, buf by which the ge- 
 neral Law, as it existed before its introduction, is altered and 
 controlled. The very circumstance of its in reduction <hews 
 the opinion entertained of its utility, ard that the Legislature 
 considered that the pre-existing Law n quired the alteration. 
 
 6. " The argument, however, which has been chiefly insisted 
 upon, as shewing that this provision of Nan'issfwnt does not 
 form part of the Law of Ceylon, is that it is no* a matter 
 of Law, but of mere practice: and that, as neither the Procla- 
 mation of the 22d January 1801, regulating the prac'i^e o r the 
 P. Cs., nor the Rules of practice promulgated in 18H3, for the 
 present D. Cs., take any notice of this provision, it must, be 
 considered as tacitly extinguished. It has been urged, in sup- 
 port of this argument, that Voet, (Lib: 42 tit. I) who treats 
 so largely on this subject, only cites Looks of practice in the 
 course of his discussion of it ; that the exceptions to this right 
 shew that it is matter of practice rather than of Law; that the 
 same conclusion may be drawn from the discretionary power 
 vested in the Court to grant or refuse it; and it has been 
 asked how Nanfissement differs, in respect to its nature as Law 
 or practice from Arrest or Sequestration? The answer to this 
 question will drr.w the attention at once to the true distinction 
 between Law and Practice. Nantissement differs in no way, 
 quoad the question whether it is to be deemed matter of Law 
 or of Practice, from Arrest or Sequestration, except that it is 
 not noticed in the Rules of Practice, whereas the two other 
 subjects are, and the course of proceeding therein is laid down. 
 But a matter is not necessarily a matter of practice because 
 it is treated of in books of practice, or because it is tied 
 down and limitted by certain Ruhs of Practice. The fallacy 
 in this part of the argument has arisen from confounding " Law" 
 with the course of proceeding (which is synonymous with 
 *' Practice") by which that Law is to be enforced. Suitors, 
 possess certain rights which form part of the Law : the Rules, 
 87
 
 434 Nantissement. 
 
 as to the enforcement of those rights, from the practice. Thus, 
 Aircst and Sequestration are rights to which plaintiffs are en- 
 titled; in other words they are the Law; certain Rules define 
 the cases in which, and prescribe the mode by which those 
 lights, shall be exercised : these Rules are properly termed 
 practice. (See further as to the distinction between Law and 
 practice under title " Practice." Nor are these rights less part 
 of the Law, because liable to certain exceptions, or because the 
 Courts have certain discretionary powers as to the exercise of 
 them. Then, with respect to there being no mention made of 
 this provision in the Proclamation of 1801, or in the present 
 Rules of Practice: the same observation may be made with 
 respect to Set-off or Reconvention, E'lictile Citation, Parate Ex- 
 ecution, Payment of money into Court, Security for Costs 
 and many other subject* probably. These are all rights to 
 which suitors are entitled, These are, therefore, the law of the land. 
 And yet no mention of any of these subjects is to be found 
 in the Rules of Practice. The truth is that those rules were never 
 intended to do more than provide for the every day practice 
 of the courts; leaving subjects of rarer occurrence to be either 
 provided for by future orders, if it should become necessary so 
 to do, or to be dealt with as directed by the law authorities 
 in which they are treated of, as has always been done in res- 
 pect to Set-off, Parate Execution and others. But even if the 
 law of Nantissement had been brought to the notice of those 
 who framed the present Rules of Practice, there would have 
 been an impropriety in giving it a place in rules by which aH 
 the D. Cs. of the Island were to be guided, since it may be 
 doubted whether this law does txist in the law of the Kandyan 
 Provinces. It has indeed been urged as a reason why this provision 
 cannot be granted that uniformity is to be enforced in the Courts 
 of the Is'and : but the uniformity required is in the practice, as 
 far as possible, and not in the law ; for the law does and must 
 van- in different districts and among different tribes. To give 
 any force to this argument, therefore, the right of Nantissement 
 must be shewn to be matter of mere practice, whereas this
 
 Nantissement. 435 
 
 Court is unanimously of opinion that it is law. Another argu- 
 ment has been that the use of this provision will render two 
 issues necessary, and will, therefore, make the proceedings more 
 circuitous and prolix : but it is difficult to imagine any issue 
 or fact, decided in this preliminary stage of the proceedings, which 
 would not tend to shorten and simplify the points ultimately to 
 be decided. The enquiry to be entered into, as to granting or 
 refusing this security, will not diverge from the route by which 
 the merits must finally be tried : it will pursue the same direc- 
 tion, though it will not always reach the final conclusion. Ag'ain, 
 this proceeding, it has been said, is unnecessary, inasmuch as every 
 possible remedy is already given by the right of arrest and se- 
 questration. But the first of those remedies is against the debtor 
 absconding, the second against the fraudulent alienation of his 
 property ; whereas the security of provisional payment is directed 
 against a third kind of evil or injustice, that occasioned by de- 
 lay. It is also said that with the exception of the case of Gibson 
 vs. Rodney, not a single instance has occurred in which this provi- 
 sion has been demanded in any court of justice, since the ces- 
 sion of the Island to the British. This is very possible; but if 
 the right exists, it is not the less law, because hitherto suitors 
 may not have known of its existence, or may not have thought it 
 expedient to exercise it. 
 
 7. " The second objection to this application is that, even ad- 
 mitting Nanti$sement to be the law of the Maritime Provinces, 
 generally, this is not a case which falls within the general rule. 
 It is admitted that a merchant's Day-book is one of those do- 
 cuments on which provisional payment may be demanded, but 
 then it is urged that as the Dutch Law requires that document 
 to be supported by the oath, or strengthened by the death of 
 the merchant, (Voet, ut supra, par: 6) but in the present instance 
 the merchant is still living, and as by the new system of prac- 
 tice no oath can be administered to a party in a suit, therefore 
 the grounds of the application remains incomplete, and the right to 
 Nantissement can not be enforced. But though the oath is abo- 
 lished the Rules of Practice have substituted the examination of
 
 *36 Naniitstment. 
 
 the party, under penalty if he should practice deception; and this 
 Court is of opinion that the declaration, thus substituted, would 
 be fully equivalent to the oath, for the purpose now before the 
 Court. As a mode of finally deciding: a case by reference to- 
 the oath of the opposite party, the mere declaration would not 
 be received instead of the dtcisory oath, unless, indeed, the ad- 
 verse party were to say he would be content to leave the point 
 at issue to the declaration, in open court, of his opponent. But 
 on a question like the present, where the object is merely to 
 satisfy the mind of the court, a preliminary step, whether the goods 
 were delivered or not, it is difficult to imagine a case in which 
 th*? examination, not merely of the plaintiff but of the defendant, 
 and not merely by the court but by each other, would be more 
 likely to piomole the discovery of the truth. And here the court 
 camot but observe that this right of Nantissement, so far from 
 being unfitted lor the state of commerce, or the mode of ad- 
 ministering ju-tice in these districts, seems to go hand in hand 
 with the main objects which the new system of judicature 
 proposes to itself, speedy decision, namely, and the extracting, as 
 much as possible, of the facts, from the lips of the parties 
 themselves. (Vide supra par. 153 where this part of the Judg- 
 ment has already been cited.) 
 
 8. " Lastly, it is contended that this book is inadmissible in 
 evidence at all, under the 9th clause of the Stamp Regu- 
 lation, No 4 of 1827. The first part of that clause, as far a* 
 relates to the present question, enacts. " That all contracts and 
 agreemr nts for the future purchase or sale of goods ; and all 
 " bills of parcels or other memorandum whatever of any bar- 
 gain or sale already concluded concerning any goods or other 
 " property already purchased or sold, which shall contain any 
 recital of the terms of such bargain or sale, or any mention 
 " or stipulation concerning the time or mode of paying the 
 amount due, or for the payment of any interest on the 
 amount due for the same (whenever it is intended that 
 " such bill of parcels or other memorandum shall be bind- 
 " ing on and be signed by the parties thereto, or any or
 
 Nantisstmcnt. 431 
 
 f* cither of them ") shall bear a certain stamp duty. The lat- 
 ter part of the same clause provides, "That nothing in this 
 " or any other Regulation contained shall be construed tp 
 " prevent the admission of Account Books &c., not containing 
 " such stipulations or agreements as are hereinbefore required 
 " to bear a stamp." Now the entry in the present case cer-, 
 tainly does contain " mention concerning 1 the time of payment," , 
 ;md the Court has felt some difficulty, and has entertained 
 some doubts, as to the true construction of this clauss, and 
 as to its applicability to the case under discussion. But after 
 mature consideration, the Court is of opinion that there is no- 
 thing in the 9th clause to prevent the production of the Ac- 
 count Book, for the purpose for which alone its production 
 was intended. The latter part of the clause must be taken 
 with reference to the beginning, and cannot be carried beyond 
 t!ie fair import of that part. Now the import of the first 
 part, divested of its technical garb, and put into familiar lan- 
 guage, is that Bills of parcels &c. which stipulate for the time 
 or mode of payment, or for interest, if intended to be binding 
 on the parties with respect to such stipulations must be 
 stamped ; in other words that these memoranda shall not be 
 used as cloakes to cover agreements which, if couched in the 
 usual form, could require stamps. It has not b?en said, nor 
 is there any thing to shew, that the mention of the time of 
 payment in the present instance was intended to be binding on 
 the defendant nor was the book produced with any such view. 
 This part of the entry may have be en made merely as an aid 
 to the plaintiffs memory. The 1 6th clause of the Regulation 
 has also been cited to shew that any person producing in Court, 
 whether in evidence or for any other purpose whatsoever, any 
 deed or other instrument required to bear a stamp, and not duly 
 stamped, shall be fined ; and all Courts are required to enforce the 
 penalty. But this is not " a Deed or other Instrument requiring 
 a stamp," because, as the mention of the time of payment does 
 not appear to have been intended to be binding on the par- 
 ties, the Account Book cannot be said to contain " a stipulation
 
 Nantissement. 
 
 " or agreement hereinbefore required to bear a stamp,*' an4 
 does not, therefore, fall within the exception introduced into the 
 concluding proviso of the 9th clause. For the mere purpose, 
 therefore, of shewing that such a sale took place on such a 
 day, but not for the purpose of shewing a promise to pay at a 
 certain lime, the Court is of opinion that the Account Bnok 
 was admissible evidence. And the Court has arrived at that 
 conclusion, not merely on principle, applied to the circumstances 
 of tlu's case, but on the authority of certain decisions in 
 England, finm which it appears that unstamped instruments 
 may often be admitted for collateral purposes. Thus, an un- 
 stamped agreement has been received as evidence of an ac- 
 knowledgment contained in it ; that is, it was abandoned as a 
 direct proof of agreement, and only resorted to for the colla- 
 teral purpose of shewing some acknowledgment or admission of 
 the party. (Wheldon vrs. Matthews, 2. Chitty's Rep : 345 ) 
 So an account of goods and cash furnished to the defendant, 
 and signed by him as received, was refused as evidence of the 
 actual receipt, because not stamped ; but the Court of K : B : 
 allowed it to be produced in Court to refresh the memory of 
 the witness who was also permitted to state, from the account, 
 that each item was called over to the defendant, and that the 
 defendant admitted that he had received the same. (Jacob vrs. 
 Linlsay, 1 Eart. 440 and see also title " Debtor and Creditor '* 
 p. 33, and "Stamp" par: 9 and 10.) 
 
 9. "It is, therefore, ordered that the plaintiff be called 
 upon to declare whether the goods were really delivered to 
 the defendant; that the defendant, or his Proctor, be allowed, 
 as usual, to examine the plaintiff on this point, and, in case of 
 such examination, that the defendant have notice to appear, to 
 undergo examination as to this point by the plaintiff and that 
 if the plaintiff shall declare that the goods were delivered, and 
 if after the mutual examination of the parties, supposing such 
 mutual examination to take place, the D. C. shall see no 
 reason to doubt the truth of such declaration, provisional pay- 
 ment be required," (Clark & Co. vrs. M ahamado Lebbe, 
 Colombo, November 1835.
 
 Nantisstmeiit. 43 
 
 10. In another case, which was an action on a bill of ex- 
 change to which the defendant admitted his signature, but 
 .pleaded want of consideration, the plaintiff, on the 25th Febru- 
 ary 1835, moved for provisional payment, upon which the 
 .D. C., on the 9th March, decided that the defendant ought to 
 have an opportunity of establishing any exception which he might 
 have to this motion, whether by the examination of the plain- 
 tiff or by other proofs. The case accordingly proceeded, and 
 after one or more stages, the plaintiff, on 20th May, moved for 
 an early day of hearing, or provisional payment. But the 
 D. C. saw no reason for taking the case out of its regular 
 course, and, as to the provisional payment, considered the point 
 as already decided. Against this last refusal the plaintiff appealed : 
 but it then appeared that the defendant was on the continent 
 of India, and considering how important it was that he should 
 be present on the decision of this application, the S. C. doubted 
 whether it was fair towards him to acquiesce in the refusal, 
 while he was in the Island, and then to press for conditional 
 payment when he was absent. On the assurance, however, of 
 the defendant's Proctor, that the defendant was daily expected 
 to return, it was ordered, with the consent of both parties, that 
 as soon as the defendant arrived, the earliest day, consistently 
 with the convenience of the D. C. should be appointed for 
 hearing the case : The plaintiff's right to provisional payment, 
 if circumstances should justify its being granted, not to be 
 affected by the delay. No. 6,309 Colombo, South, 27th May 
 1835. Upon this case it may be well to observe, Jirst that the 
 application for Nantisaement may undoubtedly be made at any 
 stage of the suit, even after appeal. Voet ubi supra : par: 12 : 
 Gibson vs. Rodney, supra : nor would a refusal by the Court 
 te decree it in an early stage, even though acquiesced in or 
 affirmed, debar the party from repeating his application at a 
 subsequent period, if circumstances should have so changed as 
 to give him a better right to demand it. Secondly, that the 
 D. C. scarcely appears to have adverted suffi iently to the nature 
 of the inquiry, in the case just mentioned, when it refused to
 
 440 tfantissemenl. 
 
 appoint an early day for it. The only point necessary to b* 
 ascertained, in order (o decide the question of frantixsement, was 
 that which the defendant had raised viz : Whether considera- 
 tion had been given for the bill. This, as in most questions of 
 an interlocutory nature, ought to have had precedence of ordi- 
 nary trials on the general merits. 
 
 11. The following suggestions may perhaps be of use to 
 ome of the District Judges, though it must be remembered 
 that they were only founded on the individual opinion of the 
 writer of these notes. A D. J. applied to the Chief Justice 
 in December 1833 for instructions, whether he ought to com- 
 ply with a motion to compel a defendant to pay money into 
 Court before decision. The action was on promissory notes which 
 were over due. There was a strong primd facie case against 
 the defendant and some suspicions as to his fairness, After ob- 
 serving that the rule of the civil law which gives this precauti- 
 onary remedy might be considered as still in force (as to which 
 see the preceding cases) the Chief Justice observed that the 
 motion under consideration was rather to be favored, provided 
 the plaintiff had established a good ground for it in the first 
 instance, and the defendant did not show sufficient reason against 
 it, in the second. As to the first point the promissory notes 
 are produced, the defendant's signature to them is proved and 
 the day of payment had elapsed. The second question whether 
 the defendant had any sufficient ground of objection to 
 urge against the application still remained for inquiry. 
 And here the District Judge must exercise his discretionary 
 powers. The true test would be, whether the defendant could 
 show to the satisfaction of the Court, that the plaintiff in all 
 probability, would not ultimately succeed in establishing his 
 claim. But this must not be allowed to rest on mere sug- 
 gestion. As on the one hand, the Court would not be justified 
 in listening to the plaintiff's motion, on the bare assertion of 
 the plaintiff, without the production of the promissory notes, 
 and proof of the signatures ; so on the other hand some pri- 
 Jai facie evidence should be required, eittet in Jfee shape of
 
 Nonsvit, Notary. 441 
 
 Documents or the oath of a third person, or the like ; that the 
 defendant had a real boii& fide defence : As for instance, that 
 value had not been received, or, in any other way, that the 
 plaintiffs had not fulfilled their part of the contract. For this 
 purpose, the new rule, allowing the examination of parties, both 
 by each other and by the Court, would be found of great 
 service. The defendant should be called upon at once to state 
 bis grounds for resisting the plaintiff's claim, and to show in 
 what way he proposed to support those grounds. If he refused 
 to assign any, or if, when assigned, they appeared insufficient 
 the Court might order the money to be paid in without hesi- 
 tation. The defendant should also be at liberty to put any 
 questions, relevant to the subject, to the plaintiff, as directed 
 by the 29th Rule, and any admission of the plaintiff would of 
 course have as much weight with the Court, as if the facts 
 bad been proved. This mode of proceeding, if cautiously acted 
 upon, would go a great way towards checking unfounded de- 
 fences, made merely for time. But each case must be decided 
 according to the discretion of the Court, as applied to the ques- 
 tion, whether Justice would be best served, by granting or with- 
 holding the motion. The S. C. would give any further assis- 
 tance in the way of instruction to the Judge ; or either party 
 could have an immediate appeal and decision against the inter- 
 locutory order of the D. C., L. B. 23d 24th December 1833. 
 
 NONSUIT. 
 
 See title Judgment, p : 245 and Practice, paragraph 2 to 10 
 NOTARY. 
 
 Responsibility of, strictly enforced : Drawing instrument on an 
 insufficient stamp, liable to his employer, independently of the 
 Stamp Regulation. Authority of Voet, as to the general liabi- 
 lity of Notaries. 
 
 1. The responsibility of these Officers of the public, who 
 have so much in their power, and in whom such extensive con- 
 fidence is necessarily reposed, ought to be generally understood 
 and vigilantly and scrupulously enforced, whenever by negligence 
 38
 
 44fl Notary, liability of. 
 
 or misconduct, they render themselves liable for injury or lo 
 to their employers. On this sulject only one case occurs to 
 the writer in which the S. C. has been called upon to 
 give an opinion. A person brought an action in a D. C. OQ 
 a Notarial instrument which appeared, when produced in Court, 
 to be insufficiently stamped, and was therefore inadmissible in 
 evidence under the 15th clause of the Stamp Regulation No. 4 
 of 1627. The plaintiff, in consequence, not only failed in Lis 
 action, but was fined under the 13th or 16th clause, and be- 
 ing unable to pay the fine, was committed to prison. And he 
 brought the present action against the Notary on the Regulation 
 to recover compensation for the various Damages which he had 
 thus sustained, in consequence, as he alleged, of the Notary's 
 negligence. The Notary had also been fined under the 13th 
 clause, but the fine had been remitted by an Act of Grace; 
 The D. J. doubted whether the plaintiff had any right of ac- 
 lion against the Notary on this ground; first, because he him- 
 self had been found guilty of fraud on the revenue, and therefore 
 could not sustain an action against the partner of his fraud : 
 and secondly, because the Regulation does not expressly pro- 
 vide for such remedy: For though the 13ih clause direct* 
 that " any Notary who shall be convicted of having written or at- 
 tested the execution of any such deed or instrument [unstamped 
 /or insufficiently stamped] shall incur a fine of 20 in addition 
 to any fitil responsibility to which he may be liable" the 
 D. J. considered that these words had reference to ordinary 
 gence .on the part of the Notary, and not to negligence 
 or fraud as regarded the Slump. Not feeling satisfaction on 
 the sulject, the D. J. applied to the S. C. uuder the 47th 
 rule for instructions; and was informed in answer, that although 
 the question was one of law rather than of practice, to which 
 Jatt. r suljict the 47th rule was applicable, still as no decision 
 had been made, he would readily be assisted by an opinion, 
 l > " i;i ' : '" (l !' ay might be saved to the parties. It 
 
 wns "'-"I- "That the Libel of the plaintiff 
 
 ought uot to be rejected, as affurdiug, if true, no ground of
 
 Notary, liability of 448 
 
 that the plaintiff had made a mistake in resting 1 hi* 
 action on the Regula ion, because his right against the Notary, 
 if that person had acted either fraudulently, negligently or even 
 unskilfully, existed independently of any positive law, or Re- 
 gulation. That the Regulation, it was true, enforced the pe- 
 nalty on any party executing the unstamped instrument, which 
 was necessary, it must be presumed, for the protection of the 
 Revenue ; But that unless the plaintiff could be shewn to have 
 done this knowingly, and with the deliberate intention of de- 
 frauding the Revenue, this enactment by no means fixed upo.i 
 him the brand of fraud which would incapacitate him fro ox 
 suing the person whose peculiar duty it undoubtedly was, to 
 see that all instruments prepared by him were on sufficient 
 Stamp; that the expression "in addition to any Civil respo ri- 
 sibility to which he may be liable " could only point at res- 
 ponsibility incurred by the Notary towards his employer, for a 
 breach of the Regulation itself; and roust be supposed to have 
 been inserted, in order to prevent the Notary from pleading the 
 penalty, to which he had subjected himself criminally at the 
 suit of the Crown, to any Civil action which his employer might 
 bring against him for damages, that it would have been super- 
 fluous ancl irrelevant (o have thus makuained his responsibility for 
 ordinary negligence and u;:skil fulness because as such liability cou'd 
 in no way be affe-jted by the Regulation the provision would in 
 ihat point of view have been useless ; that on this ground, there- 
 fore the Notary ought to be called upon to answer, and the 
 parties to go into evidence; but that another reason, why the 
 plaintiff should have this opportunity oF showing with whom 
 the fault really lay was, that if it should clearly and dis'.inctly 
 appear tl.at the fraud or even negligence rested wholly with the 
 Notary, it would be a good ground for applying to Govern- 
 ment for a remission of the fine imposed upon the plaintiff, ani 
 it was possible that the plaintiff might be able to prove that 
 he had actually advanced the money to the Notary for the pur- 
 'chase of the requisite Stamp. " L. B. 12. 17. December 1833. 
 2. As regards the liability of Notaries, as adverted to ia
 
 444 Nuisance, public. 
 
 the foregoing 1 case. Voet tells us that "if any of the forma- 
 lities which the law or custom require, be omitted and on that 
 account the instrument, more especially a WiH, becomes in- 
 operative, the Notary is liable to make good the damage sus- 
 tained by the injured party, since the fault lay with him, for 
 professing an art in which he was not skilled, or for exercising 
 his calling negligently." Lib. 22. tit. par. 3. 
 
 4. In Ceylon it is safer that all the Witnesses to a deed should 
 be examined, even though the instrument be Notarial: Supra 1 12. 
 
 And see title, "Land" and Sequestration." 
 
 Vide infr^L, title Obligation par. 4. Where an instrument, 
 though invalid as a mortgage, because not executed befove a 
 Notary, was still held good as a simple bond. 
 
 NUISANCE. 
 
 How to decide whether acts be nuisances, or not : public 
 private remedy, by prosecution, or Civil action. Reasons against 
 abatemeat by act of the party. 
 
 1. A nuisance is defined to be "any annoyance which oc- 
 casions hurt, inconvenience, or damage." But what shall be 
 such hurt, inconvenience, or damage, as gives the public or a 
 I livate individual a right to complain, must be decided by law, and 
 not be left to i'ue fanciful or fastidious temper of the complainant. Pu- 
 blic or common nuisances, as they are called by the English law, con- 
 sist in doing a thing to the am o} ance ofH. M. subjects generally, 
 or in neglecting to do a thing which the common good re- 
 quires," Hawkins P. C. Ch: S. 1. Thus, annoyance on public 
 roads, bridges, or rivers, by rendering them inconvenient or 
 dangerous, either positively by actual obstruction, or negatively 
 by want of reparation, when it is the duty of any particular 
 person* to keep them in repair, are public nuisances, so of- 
 fensive trades, manufactures, or practices, which are detrimental 
 to the public health, or the peace of the neighbourhood; but 
 with respect to this class of Nuisances, reference must be had 
 to the custom of the place, and the length of time which the 
 object complained of may have already existed. Gaming houses
 
 Nuisance, private. 445 
 
 [supra 209.] Brothels and all other disorderly houses are public 
 nuisances, eaves droppers; who occupy themselves with picking up 
 or hunting for ta.es of scandal and slander, for the purpose of 
 dissemination and mischief, and common scolds, which latter spe- 
 cies is supposed to belong only to the softer sex, are also held 
 to be public nuisances by the Law of England, and indeed there 
 can be no doubt of their being properly so classed in ordinary 
 language. But as Slander is punishable or actionable in itself, 
 and scolding is also an offence, when carried beyond ordinary 
 domestic limits, so as to threaten breach of the peace, it is 
 scarcely necessary to consider them under the denomination of 
 nuisances. 
 
 2. Private nuisances consist, in acts or neglect of acts by 
 which, though the community at large cannot be said to be 
 affected by them, an individual is interrupted in the legal en- 
 joyment of his dwelling or Land. As regards annoyances to 
 the person, these would more properly be classed among other 
 specific offences. Nuisances to the dwelling, according to the 
 Law of England, are by constructing another building so near 
 as to over-hang it, and to throw the water from the new roof 
 on the more ancient one, or so that the windows of the lat- 
 ter, provided they have been enjoyed for any length of time, are 
 obstructed, or by corrupting the air with noisome or unwholesome 
 smells. The suffering -a house to go to decay to the damage 
 or danger of the next house is a' so a nuisance. But the de- 
 priving a man of a mere matter of pleasure, as of a fine prospect, 
 by building a wall or the like, is held not to be a nuisance, 
 in the legal sense of the word, because it takes away nothing 
 absolutely necessary, or convenient. Nuisances to Land consist 
 in any act, tending to the injury of the cattle, trees, crops, 
 or other produce, as by erecting a manufacture, the vapour 
 and smoke of which have that effect, or if a man neglect to 
 clean a ditch which he ought to do, by which his neighbour's 
 laud is overflowed, or if he stop or divert the water which 
 ought to irrrigate his neighbour's Land, or cause it to run ia 
 too great quantities : This class of nuisances must frequently
 
 4 4 ft Nuisa nee, remedy for. 
 
 jtive rise to complaints in Ceylon, where artificial irrigation 
 is so indispensable; and the rights of the respective parties often 
 require long investigation and great patience, before they can. 
 fee satisfactorily adjusted. A case was lon;>- and keenly con- 
 tested in the D. C. of Hambantotte, No. 39, as to the custom, 
 by which the water necessary for Lands lying on different 
 levels ouorht to be regulated. Much evidence was gone into on 
 both sides, but the result was not sufficiently certain, to furnish 
 any general rule or principle for the regulation of this highly 
 important branch of rural economy. Tae stopping a private right 
 of way, which belongs to a man's lands, is a private nuisance, 
 ac a similar obstruction to a general right of way is a public 
 one. 
 
 3. The foregoing enumeration of nuisancrs, as given by the 
 English Law, will be found not inapplicable to Ceylon, nor 
 does the Civil law, it is believed, vary much from the princi- 
 ples above laid down. It must be remembered that the in- 
 jnrics which have been particularized are given as examples of 
 those which most frequently occur; not as including every pos- 
 sible case of nuisance. Oiher annoyances, falling under the 
 tame principle, must be viewed in the same light and remedied 
 in the same manner. 
 
 4. And as regards the remedy: Public nuisances must be 
 prosecuted criminally, for it would be unreasonable to subject 
 the author of the nuisance to a separate action by every mem- 
 ber of the community. But if a person can show any special 
 damage, sustained by himself individually, he may bring his 
 action, even though the n usance be a public one. With respect 
 to the "abatement" of nuisances, as it is called by English law, 
 that is the quietly removing them by any one who feels the 
 inconvenience; it is earnestly recommended that, in Ceylon, this 
 remedy be never adopted, unless in cases of the most urgent 
 necessity : Relief can always be obtaimd from the D. Cs. at 
 to small an expense of time, or from the S. C. under the 49, 
 Ciause of the Charter, in certain cases [supra ti:le Injunction, 
 p: 229.] that it is infinitely better for the party aggrieved
 
 Nuisance, remedy for. 44f 
 
 1o have recourse at once to the authority of the Law, than, by 
 taking the law into his own hands, to run the risk of personal 
 contest. Very many of the riots and disturbances which come 
 before the Courts of Ceylon arise out of attempts by parties to 
 vindicate, by their own authority, and with their own mean*, 
 their violated rights, or those which they imagine to be such. 
 And the result of such attempts frequently is that the party wh 
 complains of injury to his property is sentenced to punishment, 
 for violence done by him to his neighbour's person. The course 
 recommended to the D. Cs. to be pursued upon conviction of 
 a nuisance, when no actual mischief appears to have been 
 intended, is to order the Defendant, to remove the obstruction 
 or other nuisance; and in default of compliance, or if he should 
 afterwards repeat it, then to award fine or imprisonment against 
 Lim : And where a D. C. in a case of that nature, imposed a 
 fine in the first instance, the S. C. referred the case back for 
 reconsideration; suggesting that if the D. C. should be of 
 opinion that the order of removal would produce the desired 
 effect, the Judgment might be so modified. No. 151. Amblan- 
 godde [criminal] 2nd December 1835. And on another occasion, 
 where the Defendant appealed against a fine imposed by the 
 D. C. after an order to remove the nuisance had been issued 
 and disregarded, the S. C. observed. " That as the forbearance 
 of the D. C. in the first instance appeared to have had no ef- 
 fect on the Defendant, it had become necessary to impose something 
 more than a mere nominal fine; and that the Defendant must 
 expect that the amount would be increased on every future 
 occasion in which lie should be proved to have caused a si- 
 milar obstruction." No. 158. Amblangodde [criminal] 9ih De- 
 cember 1835." The writer is unable to say whether the ob- 
 struction was to a road or to a water course ; but there would ' 
 be no difference between the two in point of principle. It must' 
 be recollected that if it should appear that the obstruction, or 
 whatever may be the act complained of, was done with a ma- 
 licious intention of injuring a particular person or set of per- 
 sons, such act would assume a much graver character, and would
 
 448 Oath. 
 
 -come under the denomination of malicious mischief. With 
 respect to encroachments &c. under the Colombo Police Ordi- 
 nances, see title " Police ." 
 
 5. The remedy for private nuisances is by action against 
 
 the parlies occasioning them ; by which action the Plaintiff 
 
 may either seek to recover damages for any injury he may prove 
 
 he has sustained, or to obtain an order for the removal of the 
 
 puisance. By the law of England this latter remedy cannot be 
 
 obtained by ordinary action, except indeed by means of damages^ 
 
 Which would probably be increased on every fresh action, till 
 
 the Defendant should give up the contest] every continuance 
 
 of a nuisance being a fresh ground of action. 
 
 There is nothing however, to prevent the District Courts in 
 Ceylon from ordering a defendant to remove the nuisance, if 
 that should be the remedy j rayed for by the plaintiff. 
 
 OATH. 
 
 Must be in the form prescribed by law, and by due autho- 
 rity. By parties to a suit abo ished, declaration, in some cases, 
 substituted ; Fees to priests for administering. 
 
 1. It is laid down by some of the highest authorities on 
 English law, and it is a position highly proper to be observed 
 in Ceylon, 1st that all oaths must be such as are directed or 
 allowed to be administered by the law;" and 2ndly that "if 
 they are administered by any person not duly authorized so to 
 do, they are not only void, but the person administering them 
 are guilty of a high contempt, and punishable by fine and 
 imprisonment" As regards die first branch of this position, we 
 have seen under title "Evidence," par: 141 and seq : that 
 the oath to witnesses must be administered in the ordinary and 
 prescribed form : though the ceremony to be used in adminis- 
 tering it must depend on the religion, and sometimes on the 
 caste, of the witness. With respect to the 2nd part of the 
 proposition we have also had occasion to observe, title "Inquest** 
 paragraph, 233, that no one but the D. J. [the higher autho- 
 rity of the S. C. of course excepted] is legally authorised to
 
 Oath. 449 
 
 administer an oath : And the supplementary rule No. 14th 
 October 1833 by which the service of process may be certified 
 by the declaration of the serving officer, instead of his oath, was 
 passed, in order to obviate the inconvenience of making the 
 officer travel to the D. C. from a distance for the purpose of 
 being sworn. The concluding part of the position above laid 
 down follows as a matter of course, for any usurpation of Judi- 
 cial authority, by a person having no colorable trie to exercise 
 it, must tend to bring regularly constituted tribunals into con- 
 tempt, besides misleading the parties to such unlawful swearing, 
 and tempting them probably to the commission of illegal acts. 
 2. Oaths by parties to a suit are now wholly abolished, and 
 the most extensive examination of each other and of both or 
 either of them by the Court, has been substituted in their place: 
 supra 151. For some purposes the declaration of the party is 
 now considered equivalent to his oath under the former sys- 
 tem ; as on application for Nantissement, supra 153 and title 
 "Nantissement" paragraph 7. And a plaintiff, a foreigner, being 
 Unable to give security for costs, when called oh so to do, was 
 directed by the S. C, to enter into his own bond for payment, 
 instead of swearing that he would satisfy them, according to the 
 civil law practice, supra 77 8. The oath of the applicant for 
 edictile citation can now also be no longer received ; supra 103. 
 As regards fees to be paid to priests for ad minis lering oaths, 
 the S. C. has recommended, where no priest was regularly 
 attached to the D. C. for that purpose, that t he fee which had 
 heretofore been paid to him for each oath, so administered, 
 should continue to be paid till a priest should be appointed 
 L. B. 2d September 3d October 1835. It is to be observed, 
 however, that such fees ought to be charged to Government, 
 and not be borne by the parties, because the Court fees pres- 
 cribed by the table of 1st October 1833 are supposed to in- 
 clude all charges, and the Government impliedly undertakes in 
 consideration of receiving those fees, to furnish all Court Offi- 
 cers who may be necessary for the administration of Justice. 
 
 39
 
 430 
 
 OBLIGATION. 
 
 Meaning of the word more extensive in the civil, than the 
 English law, paragraph 1. Consideration essential, by whom 
 consideration, < r the want of it, must be proved, par. 2. When 
 demand of performance necessary par. 3. Instrument may be 
 good for some purposes, though invalid for others 4 and 5. 
 Must judgment on bond be limited to the penalty ? 6 Ordi- 
 nance against frauds 7. Master and servant 8. Obligations ex- 
 press or implied : If former be proved party cannot rest on 
 the latter, 9. Case to that effect, 10. But express contracts 
 must be proved, and are not to be presumed; case on that 
 point 11. Obligations arising from crimes 12. 
 
 1. In the law of Ei gland, the word, obligation is gene- 
 rally used to signify a bond, conditioned for the payment of money, 
 or performance of other acts, under a specified penalty. By the 
 civil law a much more extensive meaning is given to this word ; 
 find every right which one man possesses to call upon another 
 to do, or abstain from doing, any act, whether such right originate 
 in mere natural justice or from agreement, expressed cr implied, 
 [as to which distinction a few olservations \\ill occur presently] 
 written or verbal, or from the commission of any crime or 
 offence, by which another is injured, form the foundation of an 
 obligation. All those contracts which in the English law are 
 
 called aswmpsits by which one takes upon himself or engages 
 to \ ay, do or not to do a stipulated tiling, fall within the 
 civil law term " obligation," The subject is too extensive to 
 admit of its being discussed, however briefly or generally, in 
 these Notes: A discussion too, which the numerous treatises 
 on the subject, render the less necessary. All therefore, that it 
 is proposed to do here is, to notice such decisions as have been 
 made by the S. C. since the establishment of the new Charter, 
 on the subject of obligations. 
 
 2. Every obligation, whatever be its foundation, and whether 
 the performance of it be secured by written contract or rest on 
 legal implication for the enforcement of it, must have au ade-
 
 Obligation, consideration. 4W 
 
 quate consideration, otherwise no obligation can be said to exist. 
 Accordingly, the want of consideration is one of the most fre- 
 quent defences to actions on contracts; and even on money bonds, 
 the defendant often alleges that the consideration money was 
 never paid over to him within two years from the date of the 
 instrument, when it would seem that the obligor has the power, by 
 denying the payment, of throwing upon the obligee the proof 
 of that fact: Voet Lib 12. tit. par: 31. though, according to 
 Van Leeuwen, [if the writer's memory does not fail him, for he 
 has not that little work before him] it is incumbent on the 
 debtor, even though the two years have not expired, to prove 
 the non-payment ; After that period, however, there seems no 
 doubt that if the obligor wish to set up this defence, he must 
 be prepared to prove it: Voet par: 33. An action was brought 
 in 1835 on a bond for money lent, dated in 1828, which the 
 defendant admitted, but denied the consideration ; The plain- 
 tiff contended that after so long a period, the defendant was 
 bound to show that the money had not been paid ; and that 
 in default of such proof, payment must be presumed. The 
 D. C took the seme view of the case and gave judgment for 
 the plaintiff; and the S. C affirmed the decree No. 693, Jaffnu 
 2nd May 1S35. 
 
 3. Whether an obligation mvist be performer! without de- 
 mand or whether a demand be necessary before any cause of 
 action can exist must depend on the nature of the contract, and 
 the terms of it, if they be express. An action was brought on 
 a bond for money borrowed by the defendants wh thereby pro- 
 mised that certain title deeds, about to be executed in favor 
 of one of the defendants, should be delivered to the creditor, 
 the plaintiff, [no time being fixed] who should then receive a 
 deed of mortgage for principal and interest due on fhis and 
 other bonds, all of which should then be returned. This bond was 
 dated 5th March 1834, and the action was commenced on 20th, 
 June following. The defendants admitted the bond, but alleged 
 that the time which had elapsed, three monhts and , was not 
 sufficient for the execution of what they had agreed to per-
 
 152 Obligation, want rf formalities. 
 
 form. The D. C., however, thought otherwise, and decreed for 
 the plaintiff. On appeal, it was further contended that the 
 plaintiff had 110 right of action, without showing a denmnd of 
 performance on bis part, and a refusi! by the defendants, The 
 S. C. affirmed the decree observing "with respect to the last 
 objection, that no demand, in the opinion of the Cour*, 
 was necessary ; that the defendants had undertaken io per- 
 form certain things, which, when performed, would have 
 furnished a substitution of the instrument now in suit, that 
 it was for the defendants, therefore, to perform those engage- 
 ments, if they wished to relieve themselves from their 
 liability under the original instrument-^-With respect to f'.c 
 objection as to time, the S. C. was of opinion that three monihs 
 and a half allowed a reasonable time for the performance of what 
 was to be done ; that if, when the action was brought, the de- 
 itn !ant had averred that they were ready to give the stipulated 
 security, the D. C. might possibly have stayed the proceedings, 
 in order to give time for the execution of the mortgage bond, 
 but that it did not appear that the title deeds of the property, which 
 was to form the subject of the security, had as yet been pas- 
 sed in the name of the defendants. No. 492. Caltura 31st De- 
 cember 1834. 
 
 4. A bond or other instrument may sometimes, for want of 
 certain formalities or requisites, be declared invalid for the ob- 
 ject for which it was more txj,ressly intende !, and yet stand 
 good for other purposes. Thus in one action on bond by which 
 the defendant mortgaged certain land for a debt of his father of 
 CO Rix-dollars, which debt he promised to pay with interest, the de- 
 fendant objected among other defences, that the instrument had 
 not been executed before a Notary, and was therefore void, un- 
 der Regulation No. 20 of 1824 sect. 2. The D. C. was compelled 
 to admit the objection, but decided that the instrument was still 
 valid, as a simple money bond, and gave judgment upon it for 
 the amount accordingly. Ami the S. C. affirmed that decision; 
 No. 3640 Chilaw and Putlam, 26th June 1S34 on circuit. 
 
 5. The following case was decided on tUe same principle :
 
 Obligation judgment not limited to penalty. 
 
 An action was brought on a bond, or rather agreement, by which 
 the defendant agreed that her daughter should marry the plain- 
 tiff's SOB; and a penally was annexed of 300 Rix-dollars, if either 
 party should break the contract, which the defendant had done. 
 It appeared that the instrument bore a stamp of Is. 6d. which 
 the D. C. considered insufficient under Regulation No. 4 of 1827 
 sect. 9 and table E. and the action was accordingly dismissed. 
 On appeal the S. C. considered that this instrument fell within 
 the third exceptional the foot of the table E "Agreements and 
 contracts to marry," but that the penalty of 300 Rix-dollars by 
 which the parlies mutually bound themselves to the performance 
 of the contract was not protected by the exception, and could 
 not be recovered; that the instrument must therefore be consi- 
 dered as a naked contract, without penalty, for the intended 
 marriage : And it was referred back to the D. C. to hear evi- 
 dence on both sides, as to the execution of the contract, 
 the alleged breach of it, and any damage which the plaintiff might 
 lu'-ve sustained by the n on performance, to which amount of 
 damage the judgment must be limited, supposing it should ap- 
 pear that the defendant had broken the contract: No. 604. Trin- 
 comalie, 27th August 1834 infra; title Stamp par: 7, On the 
 inquiry so directed, the plainii ff was unable to prove any damage; 
 and the action was accordingly fully dismissed on that ground. 
 6. It has been matter of some doubt and controversy in 
 the English Law, whether judgment can be given on a bond 
 fcr a sum exceeding the penally. In Ceylon, where no tech- 
 nicality of pleading exists, there seems no good reason, why the 
 damages awarded should be so limited : For if the instrument 
 be established, it may be received merely as evidence of the 
 contract, and if the debt be shewn to exceed the penalty, there 
 is no reason for tying the plaintiff down to the amount of that 
 penalty or for considering his claim to rest on the terms of the 
 bond further than they may be necessary to shew the intention 
 of the parties. Thus an action was brought for the am-ars of a 
 bond, given by a husband for maintenance of his wile, on their 
 separation. The arrears amounted to 95 and the penalty of
 
 454 Obligation express and implied. 
 
 the bond, which might have been sued for on any failure to 
 pay the stipulated annuity, was only 30. The defendant con- 
 tended that he was only liable for the latter amount: But the 
 D. C. pave judgment for the whole arrears, and the S. C. 
 was prepared to affirm that decision, but the case was compro- 
 mised No. 893. Galle llth September 1835 on Circuit. 
 
 7. As regards the mutual performance of contracts by par- 
 lies, and as to what snail be sufficient writing and signature on 
 a contract for land to satisfy the O.-iinance against frauds, see 
 No. 109. Callura, supra 205 et s-q. 
 
 8. As to contract of hiring between master and servant and 
 the remedy given to the former by the Colombo Police Or- 
 dinance No. 3. of Ifc34, see title "Pleadings" par: 19 and 
 title Police, par. 3. 
 
 9. A distinction was men ioned in the beginning of this title 
 between express and implied obligations, the former is where a 
 special con'ract is entered in:o, whether verbally or in writing, 
 as to do certain work, or furnish certain goods at a price agreed 
 upon and fixed between the parties. The latter is where the 
 work is do;ie, the goods are sold, or any other service rendered 
 without any price or remuneration having been agreed upon ; in 
 which case the law raises and implies an obligation and under- 
 taking, on the part of the person for whom the service has been 
 rendered, that he will pay the person rendering asmuch as the 
 goods may be worth, or the woiktmm may deserve for his labor 
 &c. [we have already taken occasion to explain the meaning of 
 the quantum meruit and quantum valebat supra 57, note] And 
 this obligation the law not only implies but enforces. It some- 
 times happens that a party is unable to prove the express agree- 
 ment, which he alleges was entered into, in which case, gene- 
 rally s, taking, he may be permitted, provided the service has 
 actually been performed, to shew what that service was reasonably 
 worth, and so recover the amount on the quantum meniit, or 
 implied obligation. But if an express agreement be proved to 
 have been entered into, he cannot, on failing to shew performance 
 of it on his part, or because he may find it advantageous to
 
 Obligation, express and implied. 459' 
 
 abandon it, gi\e up such express contract and have recourse to 
 the obligation or undertaking, which the law would have im- 
 plied, in the absence of ai:y express agreement. 
 
 10. Thus an action was brought by a medical practitioner for 
 54 being for the value of medicine and attendanc-e fur- 
 uishtd to the defendant; the defence was that the plaintiff had 
 entertd into an agreement on the piinciple of " no cure no 
 pay," as it is called in familiar laiguage; that is, he was to 
 receive a handsome remuneration [no sum howcvtr being speci- 
 fied] if he succeeded in curit.'g the p'aintitf; and nothing if he 
 failed : And as it appeared that the cure had not been effected 
 the defendant contended that he was not liable for any thing 
 beyt nd a sum of about 8 which he had advanced to the de- 
 fenc'ant for the purchase of medicines. The evidence was some- 
 what conflicting as to the agreement ; but the D. C. gave 
 credit to the witnesses on the part of the defendant who proved 
 a verbal contract to the above effect and thereupon dismissed 
 the action. On appeal to the S. C., it was contended that 
 the plaintiff had a right, notwithstanding his failure in the pro- 
 mised cure, to recover a reasonable price for his medicines and 
 attendance, that as no sum was specified, to which the plain- 
 tiff would have been entitled in case ot success, there was no 
 mutuality in the contract, and the plaintiff would have been at 
 the mercy of the defendant. The S. C. after taking time for 
 consideration, affirmed the decree of the D. C. on the follow- 
 ing terms " The plaintiff rests his claim on the implied con- 
 tract, which the law considers every man to enter into with the 
 person whom he employs, to give him a fair remuneration for 
 his services. The defence set up is an express contract, by 
 which the plaintiff agreed that, if he did not effect the defen- 
 dant's cure, he should not be entitled to any thing. It is ad- 
 mitted that the plaintiff failed in curing the defendant, and the 
 only question, therefore was, whether this express agreement, 
 which must be taken as fully established by the evidence, was 
 a legal one, for if it were, there is an end of the implied con- 
 tract, on which the plaintiff has rested his cause. The law only
 
 456 Obligation, express and implied. 
 
 raises a contract by implication, wl.ere the parties have failed to state 
 thfeir agreement in express terms. The doubt which occurred 
 to this Court, when the case was argued, as to the legality of 
 this agree merit, arose out of the uncertain terms on which the 
 remuneration, in case of success, was promised. For it appears 
 that the Defendant promised the Plaintiff that "if he succeed- 
 ing in curing the Defendant, he should be handsomely paid for 
 his trouble." The Court entertained strong doubts whether, 
 oh a promise so vague and Undefined, the Plaintiff would 
 have been entitled to reco'.er any thing against the De- 
 fendant, even if he had succeeded ; at least beyond the 
 sum he had already received. And if that had been so, 
 there would, as the Plaintiff contends, have been no mu- 
 tuality and the contract must have 1 een treated as a nullity. 
 While this point was under consideration, however, a reported 
 case has presented itself, sb similar to the present one ; that 
 the Court feels bound to decide in accordance with it. The 
 case is that of Jewry vs. Busk, b Taunton 302, where the 
 Defendant wishing to let his house, told the Plaintiff, that if 
 he would take care of the house, and shetv it to persons ap- 
 plying: for it, he wou'd make the Plaintiff a handsome present. 
 " It appeared also that the Defendant had paid the Plaintiff 
 some small sums, as in the present case, amounting to 2 : 
 upon this evidence the majority of the Court of Common Pleas 
 considered that the Plaintiff was entitled to recover a reasonable 
 recompense, such as a Jury would award him. The C. J. dis- 
 sented from that view of the ca>e, which is certainly a suffi- 
 cient justification of the doubts entertained by this Court on 
 the subject: but still the decision of the Court was in favor 
 of the contract. On this authority, therefore, the Plaintiff 
 would have been entitled to remuneration if he had succeeded. 
 The difference between that case and the present is, that the 
 Plaintiff did not, as in the present instance, agree to forfeit all 
 remuneration if he failed in the desired object. That stipula- 
 tion, however, certainly cannot affect the validity of the con- 
 tact. It is a stipulation which in the liberal professions, cspe-
 
 tJbUgation, express and implied. 457 
 
 eially in that of the law, would be infinitely better avoided, 
 [vide infra title Proctor.] But if entered into, unless contrary 
 to some positive law or order, a Court of Justice is bound to 
 enforce it in the same way as if a person were to agree to 
 clear a forest, or drain or rnarsh, and to forfeit all claim for 
 remuneration, if he did not succeed. An express agreement, 
 therefore, having been proved to have been entered into by 
 these parties and that agreement containing nothing illegal to 
 invalidate it, the Plainliff must stand or fall by the terms of 
 it : And as the condition on which alone he was to be en- 
 titled to remuneration, has not been performed, it follows that 
 the Plaintiff has no claim at law against the Defendant, and 
 consequently that the action was rightly dismissed." No. 3352 
 Colombo South 2nd May 1835. 
 
 11. But in order to defeat a claim oh an implied obligation 
 for the value of ser\ices by setting up an express contract, 
 such contract must be shown, to the satisfaction of the Court, to 
 have been entered into by both parties and must not be left 
 (O mere presumption or inference. For if the law is to pre- 
 sume or imply any contract it will rather be the ordinary obligation 
 to pay a qiiantum meruit. Thus in an action also brought by 
 a Medical Practitioner to recover 17 for medicine and atten- 
 dance furnished by him to the Defendant and his family ; the 
 Defendant objected to the amount, on the ground that the 
 Plaintiff had only attended him as the substitute of his [the Plain- 
 tiff's] father who had been accustomed to attend the Defen- 
 dant's family at a fixed salary of Rds. 50 per annum. It 
 appeared, in evidence, however, that the Plaintiff 's father had 
 discontinued his attendance, that the Plaintiff had been called 
 in by the Defendant, apparently on his own account, and not 
 as a substitute for his father, and that the propriety of the 
 charges was not called in question, supposing that the Plaintiff 
 \vas entitled to shape his demand in that way. The D. C. 
 gave judgment for the Plaintiff for the amount claimed. The 
 Defendant appealed, on the grounds, First. That the Plaintiff 
 had not proved that he had rendered the special services, and, 
 
 40
 
 456 Obligation. 
 
 furnish the specific medicines, for which he claimed. Secondly 
 That it was to be presumed that the Plaintiff never expected 
 a higher remuneration than his father, and that he was not 
 entitled, therefore, to a qvantvm meruit, exceeding that amount. 
 The S. C. affirmed the decree of the D. C. as follows : "With 
 respect to the proof of the medicines and attendance furnished 
 to the Defendant, and of their value, the Plaintiff may not 
 unnaturally have inferred from the answer, that it was not 
 intended to put those facts in issue, for the defence rests on 
 a distinct ground. Taking, therefore, the fact of those services 
 having been rendered to have been virtually admitted, and it 
 having been proved that the charges are not unreasonable, the 
 only question is, whether the Plaintiff must be satisfied with 
 the same sum which it appears the Defendant had been in the 
 habit of paying the Plaintiff's father yearly. This mode of 
 remunerating medical attendants, by a stipulated annual sum is 
 v<ry common, it is believed, both in this community and all 
 over India. But before such contract can be insisted upon, it 
 must be shown to have been expressly entered into, and to have 
 been reciprocally binding upon both parties. It is not contended 
 that any such agreement was ever expressly entered into ; nor 
 indeed would it necessarily follow, that the son would agree to 
 the terms of the father. But it is quite clear that the mutu- 
 ality would have been wanting : For suppose the Plaintiff's 
 till had amounted to less than 50 Rixdollars, suppose the Plain- 
 tiff had only attended for one month, the Defendant ^requiring 
 no attendance for the remainder of the year ; it is impossible 
 to Bay that the Plaintiff could have maintained an action for 
 the whole sum of 50 Rixdollars at the expiration of the year, 
 unless he could have proved an express agreement to that effect." 
 No. 6875, Colombo South 16th December 1535. 
 
 12. Among the different rights or claims enumerated at the 
 beginning of this title, as forming the subject of obligations, 
 was mentioned that class which arises out of crimes or offences. 
 We have seen tuat both the Civil Law aud the Kandyan La*
 
 Officer of Court. 459 
 
 permit a civil action as well as a criminal prosecution to be 
 instituted for the same offence, supra 247. 8. 
 See Title Pearl Fishery. 
 
 OFFICER OF GOVERNMENT. 
 
 See Title Government. 
 
 OFFICER OF COURT. 
 
 1. We have seeivunder Title "Interpreter" par: 237. S. 
 tiiat the practice of allowing a Secretary of a D. C. to draw 
 pleadings and translate documents had been discontinued, with 
 the approval of the S. C., on the ground, that no Registrar 
 or a Secretary of a Court ought to be allowed to take any part 
 in the proceedings of litigant parties. On the same principle 
 where a Defendant had been arrested for debt and it was 
 brought to the notice of the S. C., that the same person had 
 appeared as Proctor to move for the arrest ar.d as Acting Se- 
 cretary ef the D. C. issuing the order of arrest, ths C. J. 
 directed it to be intimated to the D. J., that though it was 
 not the province of the S. C. to inquire by what authority 
 persons were appointed to act as Secretaries in the D. Cs., he 
 could not but feel strongly impressed wLh the impropriety 
 of the same person acting at the same time as Secretary 
 and Proctor; and the necessity was there r ore suggested of 
 the Gentleman in question ceasing lo exercise the functions 
 of Proctor, so long as he continued to perform the duties of 
 Secretary: L. B. 6th November 1835. 
 
 2. The reasons why the functions of Proctor should be kept 
 separate and distinct, as regards the person performing them, 
 from those of any Officer of the Court are too obvious to re- 
 quire argument. For though it is to be hoped that no person 
 who had been judged worthy of holding an Office in a Court 
 of Justice would be capable of abusing the confidence reposed 
 in him, by exercising his authority in favor of his clients, still, 
 it is quite a sufficient objection that opportunities of partiality 
 would present themselies and that suitors might think thoss
 
 460 Partnership. 
 
 opportunities had been made use of. It is true that in the 
 Courts of Westminster Hall, attornies hold, or used to hold, 
 the Offices of secondaries, and other similar ones: But these 
 instances can scarcely be quoted as precedents to be followed, 
 since the union of functions so inconsistant with each other 
 lias been a frequent source of regret, if not of complaint. 
 When it is recollected how prone the Natives of Ceylon are to 
 suspicion and distrust, it will be admitted that the objection 
 presents itself with at least equal force in that Island. 
 
 3. It has already been observed undertime " Appeal," p. 2* 
 that the D. J. and Officers of his Court, is the authority to 
 whom alone the S. C. can look for the due execution of its- 
 orders. That person and all other Officers of the Court are to 
 be kept strictly within the limits of their duty on the one hand, 
 and are to be supported in the due discharge of it on the 
 other, see title " Process," par : 4. 
 
 PAR ATE EXECUTION. 
 
 Vide supra page 173- to 183. 
 
 PARTNERSHIP. 
 
 Fact of, how tried as between the partners; as regards 
 others, Paragraph 1. case of cirsumstantial evidence of partner- 
 ship, 2. and 3. Former case 4. Husband arid wife traders, 
 wile's property liable, 5. As a defence should be pleaded 6. 
 
 1. In the only case of any inportance on this subject, 
 which seems to have come before the S. C. since the' promul- 
 gation of the new Charter, the question was, whether under 
 the circumstances which will be mentioned, and no former con- 
 tract of partnership being proved, the Defendant was to be 
 considered a partner with one Slema Lebbe, so as to be an- 
 swerable for a debt of that person. It may be useful to pre- 
 mise that the question, partner or no partner, must sometimes 
 be tried by different tests, according as the matter in dispute 
 arises between the alleged parties themselves, or between them 
 and third parties. As between themselves a communion of pro-
 
 Partnership. 46\ 
 
 fit and loss is essential to establish a partnership, and this is 
 the true criterion by which to decide whether they are part- 
 ners or not. But as regards the rest of the world, a person 
 may, and often does, render himself liable for the debts of 
 another, by holding himself out to the public as his partner, 
 though in reality no community of profit or loss may exist 
 between them. For otherwise, the person so lending his name, 
 would be obtaining for the person to whom it is lent a fictitious 
 credit and might induce others to entrust him with goods or 
 money which they would probably have denied to his own 
 unsupported application. This distinction will be found in 
 Heskcth Vs. Blanhard, 4 East, 143; and many other English 
 authorities. 
 
 2. In the case above referred to, the Plaintiff alleged that 
 he had sold cloths to the value of 3000 Rixdollars to one 
 Slema Lebbe, at Colombo, who h;,d thereupon opened a Bazar 
 at Kandy which was kept by the Defendant as his partner; that 
 in default of payment the Plaintiff had sued Slema Lebbe at 
 Colombo, and obtained Judgment arid execution against him, 
 by virtue of which he was in Gaol at Colombo ; and that he then 
 brought the present actiorl, in the Court of Kandy, against the 
 Defendant, as partner of Slema Lebbe, and also sequestered the 
 property in the Defendant's Baz r; The Defendant by his 
 answer denied that he was indebted either to the Plaintiff, or 
 to Slema Lebbe, and averred that the property which had been 
 sequestered was his own. The evidence on the part of the 
 Plaintiff was in substance as follows : That cloth had been sent 
 on a former occasion from Colombo to Kandy by S'ema Leb- 
 be who then came himself to Kandy and traded jointly with 
 the Defendant. That they occupied the same shop and transacted 
 business together, living and trading together like partners, for 
 which reasons, and because they used to say that the stock in 
 trade was joint property, the witnesses supposed them to be 
 partners, as so they were generally understood to be ; That 
 Slema Lebbe told the first witness to send the cloths in question 
 to the Defendant for sale, as his partner, not as his Agent, and
 
 462 Partnership. 
 
 that the Defendant also told the same and other witnesses, that 
 he and SU-ma Lebbe were partners in trade; that on one oc- 
 casion Slema Lebbe remained in Randy, while the Defendant 
 went to Colombo, and returned with cloths, which he took to 
 the joint Bazar, and that on other occasions, though cloths might 
 have been purchased by one separately, they still were put with 
 and sold as joint slock; that Slema Lebbe had given his sole 
 bond for the cloths in question, though when the Defendant 
 hea*d of the writ being out against Slema Lebbe, he offered to 
 pny the Plaintiff's agent 40J Rixdollars and the balance in four 
 months ; and that on another occasion, the Defendant had taken 
 upon himself a debt due from Slema Lebbe to one of the wit- 
 nesses, whether as partner or agent, the witness did not know; 
 On the p;irt of the Defendant it was proved that the Defen- 
 dant alone rented the Bazar, and paid the rent, that Slema Lebbe 
 never paid it, and that the Defendant had on other occasions 
 made purchases on his sole name and credit, and had given 
 bonds for them, without any mention of Slema Lebbe.' It fur- 
 ther appeared from the accounts and letters of these two per- 
 sons, that they had been jointly carrying on business, but whether 
 as par'ners or agents did not distinctly' appear. On this evidence 
 the Court of Kandy considered that as the Plaintiff was bound 
 to prove either that Slenvi Lebbe was the Defendant's pariner, 
 or that he possessed property in charge of the Defendant at 
 Kandy, neither of which facts had, in the opinion of the Court, 
 been established, the action must be dismissed with costs. On 
 appeal to the S. C. this Judgment was reversed on tht fol- 
 lowing grounds; 
 
 " The Judgment of the Court be!ow appears to have pro- 
 ceeded on the supposition, that a person can only be held liable 
 as a partner, on proof of a real and bonikfide partnership having 
 existed either by deed or otherwise. Tuis is not the case, If 
 any person holds himself out to the world as partner of another, 
 whether by express words, or by the general tenor of their 
 dealings, such person is equally liable for the debts of his 
 eten&ibie partner, as if a deed, of Co-partnership had been en
 
 Partnership. 468 
 
 tered into in the most regular form. And this is a question, 
 it is to be recollected, depending upon the general principles of 
 the Mercantile law, rather than upon local usage. The contract, 
 indeed, which is sought to be en forced by this action was entered into, 
 not at Kandy, but at Colombo; In this view of the Case, the 
 evidence on both sides is very strong in favor of the Defen- 
 d;-nt's liabi'iiy. It is admitted on all hands that Slema Lebbe 
 and the Defendant occupied the same shop, and retailed the 
 contents of it, as joint and partnership stock, even in those 
 instances in which the original purchases were made by one 
 of these traders separately. The Plaintiff's third witness de- 
 poses that they used to say that their stock in trade was 
 their joint property : The first witness was told by the De- 
 fendant himself that he and Slema Lebbe were partners in trade, 
 and by Slema Lebbe [whose statement is good evidence against 
 the Defendant considering how closely they were connected 
 together] that he Sit ma Lebbe had sent cloths to the Defen- 
 dant for sale, as his partner not as an agent. The Defendant 
 made the same avowal to the sixth witness who also states 
 that these persons were generally understood to be partners. 
 It may be that in the case of the purchase in question, and in 
 other similar instances, the bond was given by Slema Lebbe 
 alone for the amount of purchase. But it by no means follow* 
 that the Vendor intended thereby to look to Slema Lebbe 
 alone for payment, or that ev.n if such had been his intention, 
 he would not be entitled to pursue his remedy against the 
 Defendant, if it ultimately appeared that the latter was dis- 
 posing of the goods purchased as partnership property. The 
 offer to settle Slema Lebbe's debt with the Plaintiff and the 
 Bond granted by the Defendant to Sewani Chitiy do not 
 weigh much with this Court. These acts might be those of an 
 agent or of a friend, as well as of Partner. On the other 
 hand no weight is to be attached to the hiring of the shop, 
 and the payment, of the lent by the Defendant alone. These 
 are offices which may naturally enough be performed by one 
 partner without the intervention or any mention being made of
 
 464 Pauper Suiion. 
 
 the other, more especially when that other appears to have been 
 oflener at Colombo than at Kandy ; The accounts which have 
 been examined prove nothing, because the name of the debtor 
 does not appear. From the letters passed between the Defen- 
 dant and Slema Lebbe, a partnership is rather to be inferred 
 than otherwise. That the letters from Slema Lebbe to the De- 
 fendant, after his imprisonment, make no mention of a Partner- 
 ship will not appear extraordinary ; when it is recollected, that 
 the liability of the goods at Kandy would have been involved 
 by an admission of the partnership ; and that it is no rare 
 occurrence to see persons of the description of Slema Lebbe^ 
 prefer a temporary imprisonment to a sei/nre of their property 
 in payment of their debts." No. 6070, Kandy 23d November 
 1833. 
 
 4. A case was decided in the former S. C. about the year 
 1830 on some what similar grounds to the foregoing. The 
 circumstances are not sufficiently distinct in the recollection of 
 the writer of these notes, to enable him to state them. But 
 the question was whether a Mr. Frederick had, by his acts, 
 so held himself out to the world as the partner of one Mr. Bedier, 
 as to be liable for the debts of that person. The judgment of 
 the Court was in the affirmative ; but it was that of the C . 3. 
 sitting alone. 
 
 5. We have seen supra par i 223. 4. that by the law of 
 Kandy, when a husband and a wife have been trading together 
 in partnprship, the wife's property may be seized in satisfaction 
 of the husband's debt. 
 
 6. If it be intended to rely on the partnership as a ground 
 of defence it should be slated in the answer ; infra title "Plead- 
 ing," par : 13. 
 
 PAUPER SUITORS. 
 
 Reasons for strict performance of Condition par: 1. Plaintiff 
 concealing property not allowed to deduct the amount to which 
 tier children would ultimately be entitled 2. A party not allowed
 
 Pauper Suitors. 465 
 
 to plead the illegality of his title in order to pauperize himself 
 3. Mode by which poverty should be ascertained : D. C. not 
 to try title to land on this enquiry 4. Pauper retaining a 
 Proctor 5. Affidavit ot poverty dispensed With for a foreigner 
 9. Court generally relies on Proctor's Certificate as to cause 
 of action 7. Former decree against Plaintiff consistent with his 
 having an apparent ground of action: After dismissal fresh 
 action only allowed, as Pauper, where no negligence appears 
 8. Course H rejection under 45th Rule, how the 14 days to 
 be reckcned 9. Application to appear ss a Pauper during the 
 suit, as after Defendant committed for want of answer, 10. 
 Execution by Pauper 11. Fees ofsurv.y 12. Appeal by Pau- 
 per 13. 
 
 1. The Forty-second and four following rules of the first 
 section lay down the course to be pursued by persons claiming 
 Ihe privilege to sue or defend as Paupers, a privilege which 
 ought not to be granted unless the party shows himself to be 
 fairly entitkd to it. For though if the only consideration oft 
 this subject were the paying or with-holding from the public 
 Treasury the Court Fees payable in any particular case, Courts 
 might not be disposed to exercise great strictness in their in- 
 quiry into the circumstance of applicants, yet it must be recol- 
 lected that as the immunity from expense gives the Pauper party 
 a great advantage over his adversary, inasmuch as the former 
 has nothing whatever at stake, while the latter is saddled with 
 costs eVen if successful, it becomes a matter of mere justice, 
 that this indulgence and advantage be not awarded to the ap- 
 plicant, unless he have fully and fairly fulfilled the conditions 
 imposed upon him. These conditions are two-fold: First, that 
 he make a declaration, supported by the affidavit of two respect- 
 able persons, that he is not possessed of lands, money, goods 
 or other property above 5, as to which the opposite party is 
 allowed by the 45th Rule to offer counter proof: Secondly. 
 That a Proctor shall cenify his belief that the applicant has a 
 good ground of action or defence as the ease may be. A third 
 condition, not indeed mentioned iu the rules, but which, as in the 
 41
 
 466 faupef Suilorf. 
 
 instance of every indulgence or privilege claimed, is necessarily icf 
 plied, is that nothing like fraud or bad faith shall appear in the 
 conduct of the applicant. Applications for this privilege are too 
 frequent in the Courts of Ct-ylon, not to give rise to numerous 
 questions and decisions. The following are the principal ones 
 which had been brought to the notice of the S. C. up to March 1836. 
 2. As regards, first, the declaration and proof of poverty. A 
 Plaintiff having applied to sue for certain landed property ra 
 forma pauperis, was opposed by the Defendant who proved 
 that the Plaintiff was possessed of lands, not alluded to by the 
 Plaintiff in her declaration to the D. C., considerably above the 
 prescribed value. It appeared, however, that her children 
 would be entitled to certain shares out of these lands, the value 
 of which, if deducted, would have reduced the property below 
 5 ; and on this ground, the D. C. granted permission to the 
 Plaintiff to proceed as a Pauper. On Appeal to the S. C., 
 however, this order was set-aside. The Judgment of reversal 
 observed " Two reasons appear in the face of these proceed- 
 ings, why the indulgence sought for should be withheld, from 
 the Plaintiff : First the deduction made from the value of the lands 
 proceeds on the grounds that her children are entitled to cer- 
 tain shares of them. They will be equally entitled, it is presumed, 
 te any shares which their mother may recover in the present ac- 
 tion : Either, thetefore, they ought to be made parties 
 to the action, or, being "interested in the result, they should con- 
 tribute towards the expence of it. Every permission to sue or 
 defend as a pauper, unless the applicant shews himself strictly 
 entitled to it, is an injustice to the opposite party who has 
 to contend at a great disadvantage. But, secondly, the per- 
 mission ought never to be granted to any one who does not 
 come into Court, free from all suspicion of fraud or decep- 
 tion. Now the present plaintiff was manifestly guilty of gross 
 concealment, in the statement she made to the Court, and the 
 two De Silvas, who support the statement, have been guilty of 
 something very like perjury in so doing. For not a syllable 
 ' said about Land of any kind, in the enumeration of pro-
 
 Pauper Suitors. 461 
 
 perty which consists of a few household articles of the most 
 trifling description. The D. C. would do well to send for the 
 De Silvas, and give them a very severe admonition on their 
 rash and dishonest deposition" No. 220 Amblangodde 24th 
 September 1S34. 
 
 3. On a B udhist Priest applying for administration to the 
 estate of his predecessor, in forma pauperis, it appeared that 
 he was in possession of lands of value, title deed of which 
 stood in his name, he endeavoured to get over this difficulty, 
 by alleging that by the rules of his order, he was incapacitated 
 from holding property, that the transfer to him in his own 
 name was illegal and void, and therefore interposed no impedi- 
 ment to his appearing in Court as a pauper. The D. C. how- 
 ever, rejected his application, and the S. C. on appeal, affirmed 
 that decision, on the ground that a party must not be allowed 
 thus to avail him<elf of the illegality of his own act, assuming 
 the rights of ownership, or divesting himself of them as un- 
 lawfully obtained, as might suit his convenience. " Whether 
 the deeds in favor and in the name of applicant," the judgment 
 observed," be in contravention of the rules of poverty pres -ribed 
 by his religion is a question which cannot affect this case. If 
 the purchase were in trust for the temple, that oug'it to have 
 been inserted in the deed ; and as no such trust appears the 
 applicant must be considered as the proprietor. But even supr 
 posing him to have established the fact of poverty the S. C. 
 as we have seen under title " Administration" p. 5 doubted 
 whether that circumstance would not have been fatal to his claim 
 of administration, as being inconsistent with the necessity of his 
 finding valid security. For it would be at variance with that highly 
 solitary provision, to allow a person to administer an estate, who 
 is avowedly a pauper, and for whom therefore, especially if he 
 could not legally possess property, no solvent person would rea- 
 sonably be expected to g' l ve security" No. 32 Matura 9th 
 December 1S35. 
 
 4. As regards the mode in which the D. C. should obtain 
 necessary information, so as to satisfy themselves of the real
 
 461 Pai/per Suitor . 
 
 circumstances of the parly applying to appear as a pauper, with-* 
 ut consuming time unreasonably or unnecessarily in this preli- 
 minary inquiry. A D. J. applied to the S. C. for instruction 
 undtr the following circumstances. A defendant having opposed 
 the plaintiff's application to sue as a pauper, filed a list of 
 property as belonging to the plaintiff, who, however, denied it 
 to be his ; whereupon the Court ordered Commissioners to pro- 
 ceed (o the spol to ascertain the truth. They made their re- 
 port on oath, that the plaintiff had property, in land and rnove- 
 mbles, to the value of l& and upwards The parties then 
 wished to summon witnesses to prove their respective statements ; 
 but the D. J. observed, that if this were permitted, and the 
 defendant were obliged to prove the plaintiff's right to every 
 iiem, ihe loss of time and expense would be endless, and the 
 Court would be involved in the trial of several land cases be- 
 fore it could decide the question of pauperism, and he accord- 
 ingly inquired whether he might not safely rest on the oaths 
 of the Commissioners, and direct the plaintiff to proceed in the 
 usual couise. The D. J. was informed in answer, that unless 
 the parties had agreed to the nomination of these Commissi- 
 oners, as arbitrators [as to which see title "Arbitration" p. 34 5.] 
 the better course would be to let them be examined as wit- 
 nesses on oath, in open Court, as to the plaintiff's property 
 generally without going strictly into questions of the plaintiff's 
 title to land, or other possessions, L. B. 11. 14th February 1835. 
 And on another occasion where the D C., after inquiry at 
 some length into the plaintiff's circumstances, decided against 
 their right to sue as paupers, on which the plaintiff's appealed, 
 praying for an inquiry into the validity of their alleged title to 
 certain land; the judgment was affirmed. The plaintiff appears" 
 the S. C. observed " to have had every reasonable opportu- 
 nity of establishing their poverty, and justice to the defen- 
 dant requires that some limit should be put to the length of 
 investigation into the value of the plaintiff's property. If these 
 appeals were to be listened to, the D. C. might be required, ifl 
 every case of contested pauperism, to enter iuto any number yf
 
 Panper Suitors. 469 
 
 trials to land, before they could begin upon the question really 
 at issue between the parties" No. 1238 Negombo 25th Novem* 
 ber 1835. 
 
 5. Where a D. J. represented to the S. C., that a person, 
 who had been allowed to defend several suits in forma pauperis, 
 was said to have retained a Proctor of the S. C. on payment 
 of the usual sum as retainer, the matter was referred to the 
 Proctor for his report which was transmitted to the D. J., to 
 assist him in his decision, whether the party should be again 
 allowed to appear as pauper. L. B. 30ih July 12th August 1835. 
 
 6. A foreigner having applied to the D C. of Jaffna for leave to 
 sue as pauper, the D. J., applied to the S. C. for instruction 
 how to proceed ; the applicant being a total stranger in the 
 place, and having no acquaintance to whom he could refer with, 
 regard to his property. The S. C returned for answer, "That 
 aa the applicant was a stranger in the Is'and, it would be un- 
 reasonable to expect that he should be able to adduce affidavit* 
 of his poverty, that on this point, therefore, the D. J, was re- 
 commended to use his own discretion, with reference to the appli- 
 cant's appearance and mode of living, but that the other preli- 
 minary question, as to his cause of action would still remain to 
 be inquired into" L. B. 5. 12th August 1835. 
 
 7. Secondly, the certificate by a Proctor, that the applicant 
 has a good ground of action or defence, is a condition which the 
 litigious dispesition of the Natives renders highly and obviously 
 necessary to be enforced, and the Court would generally feel 
 bound by such certificate, though when it is unfavorahle to the 
 application, the parly applying for the privilege is rarely dis- 
 posed to acquiesce in the decision, and frequently appeals against 
 it to the S. C. On one occasion where a plaintiff appealed and 
 accused the Proctor of connivance with the defendant, the- 
 S. C. affirmed the decision, observing " that a Proctor's certificate of 
 a good ground of action was absolutely necessary under the rules of 
 practice, before the applicant could be permitted to sue as a Pauper, 
 and to insinuate that the Proctor had combined with the oppo- 
 site iarly, to prevent the plaintiff from enjoying that privilege
 
 470 Pauper Suitors. 
 
 was absurd ; since it was the interest of the Proctor to certify 
 in favor of the application. For if he succeeded in the suit 
 he would get his costs ; and if he failed, he could but lose 
 his tremble No. Wadernoratchy 7th October 1835. And on 
 appeal by a defendant against a similar decision, on the ground 
 of the Proctor's certificate being unfavorable, the S. C. gave 
 a similar decision. No. 414 Wadernoratchy, 1 7th December 1834. 
 Where a plaintiff applied to sue a pauper in the D. C. of Jaffna, 
 but it appeared from the proctor's report that the property in 
 dispute was situated at Manar, where the witnesses also were 
 resident, the D. J. of Jaffna suggested the expediency of re- 
 ferring the application to the D. C. of Manar, and the S. C. 
 expressed its concurrence in that course in order that a Proctor 
 of Manar might make the necessary inquiries to enable him to 
 certify: L. B. 16. 23, April 1833. It has been observed that 
 a plaintiff may have good ground of action, and still the defen- 
 dant may shew a good primal facie defence: Petition Book of 
 1833 p. 4. Wiien such cases present themselves, the Court 
 can only decide by the certificate of the Proctor on the appli- 
 cation to appear as a pauper, for otherwise the case must be 
 tried on the merits before the question of admissibility as a pauper 
 can be decided. 
 
 8. Where a D. C. refused an application to sue as pauper 
 on the ground that a former decree had passed against the 
 plaintiffs, which the D. J. considered decisive of their claim, 
 the S. C. affirmed that rejection on the ground that it was im- , 
 possible to say that the plaintiffs, in the teeth, of the former de- 
 cree, had an apparently good cause of action : But it observed, 
 the plaintiffs were mistaken in supposing that the rejection of 
 thrir application by the D. C. amounted to a final decree; they. 
 were siill at liberty to commence their action in the or Unary 
 way, if they thought they could shew that the former decree 
 was not conclusive against them : all that was now decided 
 was, that they must not be allowed the indulgence of suing 
 free of e* pence. No. 445 Walligamo 5th May 1835. On another 
 occasion where a pauper's action had been dismissed, the
 
 Suitor*. 
 
 ft. C. intimated an opinion that a fresh action, in forma pauperise 
 should only be allowed provided no negligence appeared on the 
 part of the pi intitf. Petition Book of 1634. p: 128. 
 
 9. As regards the course to be pursued, when an applica- 
 tion is rejected, under the 45th Rule, the S C. on one occa-ion. 
 drew the attention of a D. C. to this r>,le, observing, that the 
 intimation which the C ourt is thereby directed to make to the 
 plaintiffs "that their case will be dismissed, unless, within 14 
 days, they shall pay the costs of such proceedings as shall have 
 been already instituted" would more conveniently perhaps form 
 part of the decree, in order that parlies might be under no 
 mistake, as to the course to be pursued, after decision against 
 the application ; and the 14 days would be reckoned from the day 
 on which the affirmation of the decree was made known to the 
 applicant No. 3907 Colombo 19, November 1634. For as long* 
 as the question was in appeal, the applicant might be presumed 
 to suppose that the decision was in his favor, in which case 
 he would not be called upon to pay the costs of the former 
 proceedings L. B. 1st 8th April 1835. 
 
 10. A defendant, after commitment for default of filing his 
 answer, applied for leave to defend as a pauper, which application 
 was rejected as too late ; and he then appealed as well against 
 that rejection as against the order of commitment. The judg- 
 ment of th S. C. was, " that the interlocutory order, by which, 
 the defendant stands committed, till the answer be filed, be 
 t affirmed : But it is further ordered that the defendant's appli- 
 cation to defend as a pauper be referred and taken into consi- 
 deration in the usual manner. The defendant being already in 
 contempt for not filing his answer was properly committed ; for 
 to have allowed him to be at large till his application had been 
 decided on, would have furnished a course by which every de- 
 fendant, after exhausting the time allowed for filing his answer, 
 might still obtain further delay by pleading poverty. On the 
 other hand the S. C. does not consider that a defendant is abso- 
 lutely precluded from applying to defend as a pauper, because 
 the application has not been made in the first instance. Mistbr-
 
 Pearl fishery. 
 
 tunes might befall a party during the progress of the suit which 
 tnijrht incapacitate him from pursuing his claim or defence, though 
 he may have been in circumstances to commence it in the ordi- 
 nary way. Although, therefore, the present defendant must not 
 be allowed to screen himself by this method from the conse^- 
 quences of his contumacy, there is no reason why his applica- 
 tion should not be attended to, he remaining, meanwhile, iti 
 the situation to which he has subjected himself by his own 
 neglect. But the defendant is entitled at any time to apply to 
 the D. C. to be brought up, when convenient to the cnurl, and 
 to make his answer or defence verbally, according to the tenth 
 rule of the 1st section of the Rules of Practice, No. 6,319 Co- 
 lombo 2nd May 1835. 
 
 11. As regards execution by a pauper party see title "Costs,'* 
 p. 74 and Title "Execution" p. 161. 
 
 12. As to the fees of survey by a pauper party see title 
 11 Survey." 
 
 13. The S. C. has, on several occasions, observed that appli 
 cations to appeal in formft pauperis must be received and de- 
 ided upon in the same way as those to sue or defend. 
 
 PAWNING. 
 
 See title " Debtor and Creditor," p. 94. 5. 
 
 PAYMENT OF MONEY INTO COURT. 
 
 Either such payment, or a tender of the amount should ac 
 company the admission of a debt, in order to save the costs 
 of ulterior proceedings ; see title costs, par. 73. 
 
 PEARL FISHERY. 
 
 1 Two cases only present themselves, as having been decided 
 on this subject, and as they turned on the peculiar circumstances 
 incident to that speculation, they are placed by themselves ; in 
 preference to being classed under any more general heads. 
 
 2. An action was brought in the D. C. of Colombo, to re- 
 cover the cams of 62 and 103, under circumstances which
 
 Pearl Fisheri/. 4 73 
 
 toll appear from the following judgment of the S. C. to which 
 the case was carried up in appeal by the defendant. 
 
 " It appears that by an instrument, dated 20th November 
 1S3-2, the defendant on whom the Government had bestowed a cer- 
 tain charity or temple boat for the ensuing Pearl Fishery agreed 
 in consideration of 3000 Rupees paid to him, and which he 
 acknowledged to have received, to transfer to the plaintiff the 
 right of fishing this boat, according to the price at which Go- 
 vernment should sell its other boats, and after deducting that 
 price, to repay the balance of the 3000 Rupees, with interest 
 at 12 per cent. The price was afterwards fixed by Government 
 at 310 2 2 each boat; and five regular days fishing were 
 to be allowed. Owing, however, to the boats in question not 
 being provided with the necessary license on the first day, that 
 day's fishing was lost to the plaintiff, who accordingly seeks 
 by this action, as one ground of damage, t o recover back l-5th of 
 the price or 62 5J. And as it has not been satisfactorily 
 proved that the plaintiff received the profit of any extra day's 
 fishing, as a compensation for this loss, the S. C. concurs with 
 the Court belbw in thinking that the plaintiff is entitled to re- 
 cbver that sum back from the defendant with interest. 
 
 3. "It appears further that after the Fishery was concluded there- 
 ult having turned out les s profitable than had been anticipated, the 
 Government granted a remission to those who had purchased boats 
 from the Government^ of orte-third of the price- And the plaintiff also 
 claims the same remission, or a further return of 103 7 7 from 
 the defendant, contending that both by the terms of the agree- 
 ment, and by the custom of the Pearl Fishery, the defendant 
 was bound to imitate the Government in allowing this deduc- 
 tion. The Decree of the District Court is in favor of the 
 plaintiff upon this point also. But here the S. C. is compelled 
 to dissent, though it does so with some reluctance. For it is 
 very probable that, if the attention of the parties had been 
 drawn to the particular point, if they had contemplated the 
 remission being made by Government, the plaintiff would have 
 stipulated for a similar indulgence from the defendant. But the 
 
 42
 
 474 Pearl Fishery. 
 
 Court cannot supply this omission or introduce "by imptica'iott 
 a condition which the parties could have expressed, if they had 
 thought proper so to do. The Court must decide according- to 
 the terms of this agreement, or of any other into which the par- 
 ties may have subsequently entered and which the law would 
 recognize. The D. C. in its anxiety to do what it considered 
 would be substantial justice, construes the price at which Go- 
 vernment sold its other boats, as expressed in the agreement, 
 to signify the amount of that price, minus the subsequent re- 
 mission. But there appears to be an obvious fallacy in this 
 construction in as much as the remission made by Government 
 was purely arbitrary, both as to its being made at all, and if 
 made, as to its amount. If, indeed, Government, when fixing 
 the price, had bound iiself to remit, if the fishery should prove 
 Jess productive than was expeetad, and in proportion to such 
 diminution of profit, it might than have been said, and truly 
 said, that the price would be the sum which Government ulti- 
 mately retained, because the price would not have been fixed 
 at the time of making the contract, but would have remained 
 open and contingent, by express stipulation, upon subsequent 
 events. One test by which this question may be tried is by 
 asking whether Government would have been liable at law to 
 be compelled to make this remission? But it is not pretended 
 gny such legal liability existed. Then how can the Defendant 
 be compelled to the performance, as a duty legally incumbent 
 upon bin), of that whicti was a mere voluntary act of indulgence 
 on the part of the Government? It is possible too, that this 
 compulsory imitation of the act of Government, might work 
 real and substantial injustice to the Defendant. Many causes 
 may combine to induce the Government to grant these remis- 
 sion, which could not operate, or be expected to operate on 
 private persons. It imy be a matter of public policy, not to 
 let strangc-is leave the Fishery dissatisfied with the result of 
 th'-ir contract with Government. But this or similar motives, 
 would form no ground of claim on the part of the private 
 puichaser upon a private seller. Nor does this claim receive
 
 Pearl Fishery. 475 
 
 any additional strength from the circumstance of the boat hav- 
 ing been bestowed gratuitously on the Defendant. The boat was 
 as much his own and he had the same right to make the 
 most of it, as if he had given value for it to Government. 
 It lias been urged at the Bar, that there are several stipula- 
 tions introduced into the agreement, from which it would ap- 
 pear to have been the intention of the parties to follow the 
 course pursued by Government. But the very expression of 
 those stipulations operates, according to a well known maxim 
 of Law, as an exclusion of such as are not so expressed. 
 
 4. " With respect to subsequent promises to refund, alleged to 
 have been made by the Defendant, the evidence is much too 
 vague to support them, even supposing that sufficient considera- 
 tion existed for them. The Defendant said he would make 
 1he remission provided the Warden of the Temple assented. 
 They have bet n examined before this Court and whatever may 
 have been their former inclination towards liberality, that fee'iug 
 appears, by some means or other to have been chilled down to 
 the freezing point: For the' majority of them now refuse to 
 give their consent. 
 
 5. "The custom of the Fishery has also been relied upon, and 
 a case is stated by Comaresamy M'odliar to inve occurred in 
 which the remission was adopted by a private person, and al- 
 lowed by him to his purchaser. But in the first place it ap- 
 pears that this was a mere voluntary surrender by the seller of 
 this proportion of the price; and in the second place, even if 
 it had been decreed by a Court of Law, it would be no 
 authority in the present case, without an opportunity of com- 
 paring the contracts by which the several parties were respectively 
 bound." The decree in favor of the Plaintiff was accordingly 
 reduced to the first of the two grounds on which he claimed: 
 The costs in the D. C. reduced to the 5 th Class to be borne 
 "by the Defendant : Each party paying his own costs in ap- 
 peal : No. 1967. Colombo 15th October 1834: 
 
 6. In the other case, the Defendants had agreed to procure 
 few the Plaintiff for the Fishery of 1833, certain divers who
 
 476 Penalty Perjury. 
 
 were to be at Condatchy one month previous to the Fishery. 
 The Plaintiff had advanced 2 9. 6. to the Defendant and now 
 claimed 20 as damage for the nonfu filtnent of their contract 
 by the Defendant. It appeared that the Defendant's divers 
 did not attend precisely one month before the Fishery, but that 
 they did afterwards; that meanwhile, however the Plaintiff went 
 to Jaffna, and did iiot return to Condatchy till after the Fishery 
 had begun. The D. C. considered the Claim unjust, and dis- 
 missed it with costs; On appeal to the S. C. it was decreed 
 that the Plaintiff should recover the sum advanced by him, 
 because the Defendant had not punctually performed their part 
 of the agreement ; but on the other hand that he was not en- 
 titled to recover any loss of profit he might have sustained, 
 because he should have waited a reasonable time to see whether 
 the divers arrived in time to commence operations, though they 
 had failed on the exact day stipulated. Each party was de- 
 creed to pay his own costs No. 305. Mauar 8th July 1834, 
 on Circuit. 
 
 PENALTY. 
 
 Distinction between that which is imposed as a punishment 
 and the penal sum inserted in Bonds &c. see p : 280. 
 
 PER CENTAGE. 
 
 See Title Commission. 
 
 As to construction of the 20th Rule of Section 2. See 
 Title " Prosecution," p : 27. 
 
 PERJURY. 
 
 As to construction of the 20th Rule of Sect: 2, see Title 
 " Prosecution" paragraph 27. 
 
 PETITION. 
 
 8. C. refused to receive an anonymous one. Petitioa Book
 
 Pleadings. 477 
 
 of 1835. p: 186. see also Title "Government." 
 
 PLEADINGS. 
 
 Rules 1., 5 and 7. object of to shorten the issue and evidence 
 p: 1. & 2. Libel amended, in preference to a fresh action, 
 by adding or substituting parties 3. 4. and 5. or by adding 
 principal to claim for interest, 6. Action against several De- 
 fendants for same Land consolidated 7. parties bound by their 
 pleadings 8. Scandalous matters expunged 9. Answer should 
 disclose the real defence, special facts should not be given in 
 evidence under a General denial 10 & 11. still less if inconsistent 
 with such denial 12. Partnership should be pleaded 13. Ac- 
 lion for produce, Defendant makes no answer, and Plaintiff not 
 prepared to prove his title, referred back to enable him to do 
 so 14. In action for ground share, if Defendant disputes title 
 to Land which Plaintiff proves decree for Land itself 15. Ac- 
 tion for goods sold, defence, that they were only lent, should 
 be stated 16. Action on Mortgage, defence; an absolute sale, 
 verbal evidence of Mortgage admitted, without notice to pro- 
 duce deed, 17. Defendant cannot get Judgment without evi- 
 dence, by calling his answer a Plea or Demurrer 18. Prosecu- 
 tion on Police Ordinance for leaving service, Defendants may 
 be called on to admit or deny contract 19. Plea to Juris- 
 diction overruled; Defendant should answer to the merits 20. 
 Replication, always proper, if answer states any thing to be 
 replied to 22. Failing to reply, no ground of dismissal 23. 
 Demurrer 24. Drawing Pleadings, how limited 25. Petition 
 of appeal included in pleadings 26. Answer taken verbally 
 from Prisoner for Treason 28. 
 
 1. The first Rule of the first section directs, that the Plain- 
 tiff's Libel shall state the cause of action or complaint as 
 shortly as the nature of the case will admit and the relief or 
 remedy which he seeks. The fifth rule directs " that by the 
 answer of the Defendant all the material facts alleged in the 
 Libel, and all the written Documents therewith filed, shall be
 
 478 Pleadings. 
 
 either admitted or denied, or confessed and avoided; (I.) so 
 as to throw the utmost light possible upon the merits, and 
 to ascertain and shorten the proofs necessary to be adduced on 
 cither side." By the seventh rule " the Replication shall admit or 
 deny the material facts alleged in the answer, and any written 
 Documents therewith filed, but shall not state any new mat- 
 ter, not arising directly out of the answer." "And no further 
 Pleading is to be admitted, unless by permission, or order of 
 the Court." From these few plain and very simple rules fur 
 regulating the written Plea lings, the enforcement of precise 
 accuracy of language, which is so conspicuous in the English 
 Law, and in different degrees, in some of the countries where 
 the Civil Law prevails, is not to be expected : Nor, even ad- 
 mitting that the sa me degree of strictness would be adapted to 
 the state of Society in Ceylon, would it be possible to exact 
 it, at all events at present in many of the D. Cs; But rude 
 and in artificial as the rules above extracted would appear to 
 nn English special pleader, they would still be sufficient, if the 
 directions thereby conveyed were pursued in the fair spirit dt 
 them to prevent any very illogical results. The obvious in- 
 tention is to bring the parties to issue as speedily as possible 
 and by obliging each of them to state unreservedly the facts 
 and circumstances on which he rests his own case, and either 
 to admit or deny those alleged by his adversary, to simplify 
 and render plain, both to the litigants and to the Court, the 
 evidence requisite on either side, according to the first general 
 rule of evidence, given under that head; supra 107. 8. And 
 see title " Issue" 240. 1. The system of mutual examination 
 of parties, introduced on the suggestion of Mr. Cameron, as- 
 sists very materially in the attainment of this object, supra: 
 151. et seq : What one would wish to see as an improve- 
 ment in some of the D. Cs. is the written pleadings aiming 
 
 (1 .) At thit somewhat technical term, wl.'ch lias crept into the 5th rnlp, may not b 
 familiar to all who rf*r to tliece i,ote. it m.ty 1* wHl to observe that 8 fact alleged 
 by a party in aid to be confessed and avuide I when the opposite party admits it tobk 
 tree, but add* tome other (met, by which the effect of the first is destroyed or neutra- 
 
 luej.
 
 Pleadings. 479 
 
 more directly at the point, that is, more free from irrelevant 
 matter: The evil here pointed at, however, as well as the 
 less serious one of faultiness of language, will no doubt be 
 qured by time. 
 
 2. Simple as the rules of pleading are in Ceylon, and wide 
 as is the latitude allowed to parties in explaining their ground 
 of Complaint, or in repelling the Claims made against them, 
 questions must constantly be arising, rarely indeed on any nice 
 technicalities of construction, but as to the effect of the 
 respective allegations, as regards the evidence to be adduced, or 
 permitted to be received : and this is unavoidable. For it is 
 obvious that if a party were not held to be bound by his own 
 statements in the pleadings all pleadings would be useless as 
 serving only to mislead both the Court and the litigants. The 
 Courts, therefore, must frequently be called upon to decide on 
 this connection between the p leadings and evidence, that is, to 
 pronounce what proofs became necessary or admissible from 
 the mutual averments of the parties, as well as to decide on 
 averments of pleadings, and other points of minor importance. 
 The following are the principal decisions, it is believed, which 
 had taken place in the S. C. on the subject of pleading, up 
 to March 1836. 
 
 3. First, as regards the Libel : f he S. C. has always beea 
 anxious to spare parties, if possible, the expense and incon- 
 venience of double actions, and most of the decisions under 
 this head proceeded on that principle. Thus in the case men- 
 tioned under title " Land," supra, par: 17. on a mortgage bond, 
 by which the first Defendant and another person, not joined 
 in the action, acknowledged to owe the Plaintiff 7. 10. 0. 
 and promi-ed jointly to pay within three mouths ; and the first 
 Defendant engaged that if it should not be so paid he would 
 deliver up a Garden to be held till payment : The Plaintiff 
 averred that he had accordingly had possession of the Garden 
 till interrupted by the second Defendant, who had taken the 
 fruit under color of a bill of sale from the first Defendant, of 
 subsequent date to the bond. The Defendants pleaded thai
 
 480 Pleadings. 
 
 the other debtor ought to have been joined in the action ; ani 
 the D. C. being of the same opinion, and considering that thd 
 Libel could not be amended under the 9th Rule, after the 
 Documentary evidence and Lists of Witnesses had been filedj 
 dismissed the action : On appeal to the S. C. this decree of 
 dismissal was set aside, and the case was referred back for 
 evidence. In the first place, the S. C. considered that the ac- 
 tion was not improperly brought against the first Defendant, 
 without joining his creditor, for the stipulation out of which the 
 action arose was by the first Defendant alone. If the other 
 debtor had paid the amount, that payment might be proved, 
 but as far as the Mortgage was concerned, the first Defendant 
 had promised for himself alone, from the expiration of the 
 three months. But secondly, there would have been no ob- 
 jection to adding the other Defendant, if that had been neces- 
 sary. For it would not have been an amendment within the 
 meaning of the 9th Rule which, from the terms of it, only con- 
 templates such alterations as would not make the line of evidence 
 different. No. 3jl49. Amblangodde 22nd March 1834. Circuit. 
 Vide supra : title " Intervention," 
 
 4. In another Case, which was an action for freight, the 
 Defendant endeavoured to avail himself of the bill of lading 
 having been signed by a brother of the Plaintiff to insist that 
 the action should have been brought by that brother, and not 
 by the Plairttiff. The liability of the Defendant, however, to 
 the Plaintiff being established, the D. C. gave Judgment in his 
 favor. And on appeal the S. C. concurred in that Decree* 
 but observed that if it had been necessary, the D. C. might 
 have joined the Plaintiff's brother as a Co-Plaintiff No. 723. 
 Galle, 7th March 1835 on Circuit. 
 
 5. In an action for Land, the Defendant disclaimed all right 
 but a third party intervened in the suit and contested the claim 
 of the Plaintiff: The D. C. considered that the present action 
 must be dismissed, and that the Plaintiff must seek his remedy 
 by a fresh suit against the Intervenient. The S. C. however, 
 on appeal, saw, no necessity for obliging the Plaintiff to bring
 
 Pleadings. 481 
 
 a ire"sh action, and referred the case back to be proceeded with, 
 by substituting the Intervenient in the place of the Defendant. 
 No. 1465. Caltura, 14th October 1835. And see title. "Prac- 
 tice" paragraph 18. as to the substitutions of the Defendaut'e 
 son in the place of the father who had died. 
 
 6. In an action for the interest due on a bond, the Plain- 
 tiff, before appearance by the Defendant, moved to amend her 
 .Libel by adding the principal to her claim. The D. C. re- 
 ftised the motion on the ground, that the principal ought to 
 form the subject of a fresh action. The S. C. however, on 
 appeal, ol served that in this early stage of the case there could 
 be no ck ubt that the Plaintiff was entitled to amend her Libel, 
 
 provided the proposed amendment were such as if it had been 
 introduced in the first instance, would not have rendered the 
 Libel inadmissible, that as there was nothing to prevent a 
 Creditor from suing for his principal and interest in the same 
 action, and as it would therefore have been no objection to the 
 reception of the libel in the first instance, that it included 
 both principal and interest, so there was no reason why the 
 Plaintiff should t not be allowed to add her claim for principal 
 to that originally made for interest, without subjecting the par- 
 ties to the expen e of a double action" No. 6776 Colombo 
 J3th January 1836. This Judgment of course supposes that 
 any additional stamps, which the increased value might render 
 necessary would be supplied. 
 
 7. A Plaintiff having brought several actions respecting the 
 same land against different Defendants, whose interest were the 
 same, the D. C. directed that they should be consolidated and 
 proceed to trial together. The Plaimiff having appealed against 
 this interlocutory order on the ground that it would create a 
 difficulty as to the class and also that the revenue would suffer, 
 the S. C. affirmed it and directed that the Plaintiff should pay 
 the costs of appeal. The Court could see no reason why the 
 objection to this order of consolidation should have been made, 
 unless that the Proctor's costs would thereby be diminished. 
 The difficulty raised with respect to the class would be easily 
 
 43
 
 482 Pleadings. 
 
 got over by fixing the uniled case in that class to which th* 
 real value in dispute would shew that it ought to belong : And 
 g to loss which the revenue might sustain, that was a sub- 
 ject on which it was urnecessary for the Appellant to concern 
 himself No. 516. Amblangodde 25th November 1835. In like 
 .manner we have seen, supra 164. 5. that when claimants to 
 .property, seized in execution, are called upon to establish their 
 respective claims, in pursuance to Regulation No. 13 of 1527 
 this may be done by making them Intervenients in the original 
 suit without putting the parlies to the expense and delay of 
 fresh actions. And see No. 333 Amblangodde supra 6. 7. 
 title " Administration " as to amending the Libel. 
 
 8. The following decision proceeded on the principle above 
 alluded to, par : 2 that parties must be bound by their plead- 
 ings, and must not be permitted to shift their claim or defence 
 according as the evidence may make it convenient for them 
 so to do. The Plaintiff, on behalf of a temple over which he 
 presided in the District of Ratnapoora , sued for a field which 
 he alleged in his libel had been sold by one Samarapolle to the 
 temple 39 years ago, and had been in its possession till the 
 Defendant took the produce unlawfully. The Defendant, by 
 Jiis answer, denied the sale to and possession by the temple 
 but admitted that a proportion of the produce had been paid 
 to the temple, on account of a debt of 25 Ridies which the 
 Defendant tendered five years ago, and afterwards 30 Ridies, 
 but which offers were refused on the part of the temple 
 whereupon he had taken the produce. It appeared from the 
 evidence that the Ande share had been paid to the temple, 
 tut there was no proof of any sale, or of the temple having 
 had possession of the field, which on the contrary had been 
 possessed by the Defendant, and uninterruptedly, paying Ande. 
 The first Assessor was of opinion that if there had been any 
 sale to the temple, it would have been followed by possession, 
 and that as there was no proof of this, the Defendant was 
 entitled to Judgment : The D. J. and the two other Assessors 
 considered that the Defendant's property in the field should be-
 
 Pleadings. 483 
 
 confirmed, but that he should be decreed to continue to 
 pay Ande to the temple : And it was so decreed ac- 
 cordingly. On Appeal by the Defendant, the S. C. ob- 
 served, "That it could not entirely concur in opinion 
 either with the first Assessor, or with the rest of the Court. 
 If the Plaintiff had rested the claim of the temple to the Ande 
 share on the prescriptive right acquired by long payment, he 
 might very probably have been entitled to a continuance of that 
 payment. But he founded his libel on an alleged sale, 39 years 
 ago, and on uninterrupted possession from that time till about 
 four years ago. Now of the sale there had not been a syllable of 
 evidence offered, for the bare production of an instrument, un- 
 supported by proof, amounted to nothing at all [vide supra. 
 114.] And with respect to the possession, so far from that 
 having been proved, the Plaintiff's own witnesses, as well as 
 those of the Defendants, proved constant possession of the 
 field by Samarapolle, and the Defendant, paying Ande indeed to 
 the temple. If, therefore, the case rested solely on the libel 
 and the evidence, the opinion of the first Assessor wou'd be 
 correct, and the action ought to be dismissed. But on the 
 other hand the Defendant admitted that a debt was due to 
 the temple, and that he tendered first 25 Ridies and afterwards 
 30, both of which were refused. To the extent, therefore, of 
 this admission, but no further, the field must be held liable. 
 It was, therefore, ordered that the Defendant should pay to the 
 Plaintiff on behalf of the temple, the sum of 30 Ridies; anJ 
 that in default of such payment the field should continue to 
 pay the Ande share to the temple : That the property of the 
 field was declared to be in the Defendant ; and that after pay- 
 ment of the 30 Ridies, it should be exempted from the pay- 
 ment of the Ande share," No. 747 Ratuapoora 20th January 
 1836. 
 
 9. Scandalous or abusive matter in a libel or any other 
 pleading should be animadverted upon and expunged by the 
 Court, but as to such matter affording a ground of action, 
 iee title "L.bel," paragraph 4.
 
 494 Pleadings. 
 
 10. Secondly, as regards the Plea or Answer : It is on thfe 
 branch of pleading that the vigilance of the Courts is more 
 especially required, Jo prevent the answer being made the 
 means of concealing the truth, and of diverting the attention 
 of the Court from the real points in issue, instead of, in the 
 words of the fifth rule, " throwing the utmost light possiMe 
 upon the men's and ascertaining and shortening the proofs 
 necessary to be adduced." Thus the answer should state the 
 real ground of defence intended to be insisted upon ; and 
 a Defendant, after entering a general denial, ought not to 
 be allowed to go into evidence of special facts, which 
 the Plaintiff could not have anticipated. A Plaintiff com- 
 plained that the Defendant had cultivated her field and 
 then refused to give her the accustomed share of the produce : 
 The Defendant, by his answer, denied in the most general and 
 & solute terms all right in the Plaintiff to the field in question, 
 but at the trial went into evidence of particular facts, which, if 
 true, might have furnished a defence to this particular claim, 
 though they admitted the title of the Plaintiff. The District 
 Court gave judgment for the Plaintiff for the value of the 
 share of the produce claimed, and on appeal, the S. C. affirmed 
 the decree, observing " that if the facts, on which the Defen- 
 dant endeavoured to rest his defence, and on which he founded 
 his appeal, had been true, he ought to have set them ferth in 
 his answer, whereas by his having entered a general and ab- 
 solute denial of all right on the part of the Plaintiff, she must 
 have been left, in total ignorance of the particular grounds on 
 which the Defendant intended to rest. No. 363 Manar 18th No- 
 vember 1835. 
 
 11. On the same principle, where to an action for me- 
 dicines and attendance [mentioned supra title " Obligation" par. 
 11.] the defendant's answer rested on an alleged contract 
 by die plaintiff to attend the defendant's family at a fixed 
 yearly salary, the S. C. refused to entertain in appeal the 
 objection that the plaintiff had not proved the special services 
 for which he claimed : For the plaintiff might uot unnaturally have
 
 Pleading* 485 
 
 inferred from the answer that it was not intended to dispute 
 the value of the attendance and medicines since the defence 
 rested on a distinct ground. No. 6,875 Colombo 16ih December 
 1835. 
 
 12. An action wns brought for the value of certain cattle 
 which the Plaintiff a'leged had been seized by the Defendant, 
 on pretence that they were damajing his land, and one of which 
 had died. The Defendant denied that he ever had any of the 
 Plaintiffs cattle in his possession. From the evidence of both, 
 parties there appeared no doubt that the plaintiffs cattle had 
 broken into the Defendant's garden, and had done damage there, 
 that the Defendant had desired the Plaintiff to take them away, 
 and, on his refusal to do so, had secured them, and that one 
 of them had died, though from what cause did not distinctly 
 appear. The Assessors were of opinion that the Plaintiff had 
 proved his claim. The D. J. differed from them and decreed 
 that the Plaintiff should pay 43 Rds. to the Defendant for the 
 damage done by his cattle to the Defendant's garden; deducting 
 2 Rds as the value of the one which had died. On appeal by 
 the Plaintiff this decree was set aside. The S. C. observed, 
 "That so far from asking for compensation for damage done 
 to his garden, the De en bnt, in his answer, denied that he ever 
 had any of the Plaintiffs cattle in his possession that the Plain- 
 tiff might have been misled by the disingenuous line of de- 
 fence, and at all events could not be expected to come prepared 
 to resist this counter claim for damages; that on the other hand, 
 it appeared to have been owing to the plaintiffs negligence that 
 his cattle got into the defendant's garden, and he was not, there- 
 fore, entitled to compensation for the loss of that which died, 
 it being doubtful fiom the evidence to what cause it's death 
 was owing : ft wa j , therefore, decreed that the cattle, in their 
 present state, should be restored to the plaintiff, if that had not 
 been already done ; that each party should pay his own costs, 
 a subject on which nothing was said in the decree of the D. C.; 
 and that the right of the Defendant to bring an action for the 
 damage done to his garden be reserved to him. For though the
 
 486 Pleadings. 
 
 S. C. was unwilling to do any thing likely to encourage litiga- 
 tion, still it was necessary that the Plaintiff should have an 
 opportunity of making his defence against this claim for the 
 trespass, which as yet he had not had, but that this action 
 might be avoided, by the Plaintiff consenting to pay such mode- 
 rate sum as might be considered just and equitable." No. 2499 
 Ruanwelle 24th June 1835. 
 
 13. In an action for the balance of an account, the Defen- 
 dant having neglected to make any answer, a general denial was 
 entered: and after the Plaintiff had proved the transactions, out 
 of which arose the present claim, the Defendant attempted to 
 shew that a partnership existed between the Plaintiff and his 
 brother. The D. C. gave judgment for the Plaintiff, and the 
 Defendant appealed, on the ground that he had proved the 
 partnership, and that the action therefore should have been brought 
 in the names of both the partners. The S. C. on affirming the 
 decree, observed, " That if the Defendant had intended to rely 
 on the partnership of the Plaintiff with another person, he should 
 have pleaded the partnership, and if it existed, the partner might 
 have been joined in the action, but that it was too late to make 
 the objection at the trial, even supposing the partnership to have 
 been satisfactorily proved. No. 460 Caltura, 9th May 1835. 
 
 14. A Piaintiff claimed the value often Parrahs of Natche- 
 reen, being the produce of his Land, which he alleged had been 
 forcibly taken by the Defendants. No answer being filed a 
 general denial was entered; and on the trial, the Plaintiff not 
 being prepared to prove his title to the Land, the case was dis- 
 missed. Tne Plaintiff appealed, alleging that he did not call 
 witnesses to prove his title because the Defendant had not de- 
 nied it ; and he had only, therefore, come prepared to prove that 
 the Defendants had taken the produce. The S. C. referred the 
 case back to the D. C. "in order to give the Plaintiff an oppor- 
 tunity of establishing his title to the land, and if he succeeded 
 in that object, then to offer proof of the Defendants having 
 taken the Natchereen." The dismissal of the Plaintiff's suit 
 u the judgment observed, " was justifiable, because he certainly
 
 Pleadings. 487 
 
 Was bound, in point of law, to prove bis title to the land, be- 
 fore he could claim damages for the loss of it's produce. But 
 he may not unnaturally have imagined, more especially as he 
 does not appear to have been assisted by any legal adviser, that 
 as the defendants filed no answer to his claim for the Natche- 
 reen, they had no intention of disputing his title to the Land. 
 The case is, therefore, referred back, not from any doubt of the 
 propriety of the decision, as the case presented itself, but in 
 order to save the parties the vexation and expense of a fresh 
 action, to which the present decision would have been no bar. 
 [supra 245 and infra title " Practice" paragraph 10 as to Non- 
 suits] No. 5046 Colombo 30th April 1834. 
 
 15. We have seen under title "Land" sir ra : par. 4 that where 
 in an action for ground share, the Defendant denied the Plain- 
 tiffs right altogether, and claimed the field as his own, and on 
 the Plaintiff proving his right, the D. C. gave him judgment 
 for the field itself as well as for the ground share ; the S. C. 
 affirmed the decree to ii's full extent, on the ground that as 
 the Defendant's answer had challenged the Plaint iffs right to 
 the soil, it was incumbent on the Plaintiff to prove it, and ou 
 the D. C. so to word its decree as to prevent future litigation 
 between the parties. No. 241 Ratnaj oora 22d December 1834. 
 
 16. In an action to recover value of a Table, alleged by 
 the Plaintiff to have been sold to the Defendant, the latter 
 denied the Plaintiff's claim altogether. The Plaintiff proved the 
 delivery of the Table to the Defendant, and that it was still 
 in his possession, and there being no defence, the D. C. gave 
 judgment for the Plaintiff. The Defendant appealed, alleging 
 that the Table had rot been sold, but only lent to the Defen- 
 dant, and that if the cause of action had been truly stated in 
 the libel, the Defendant would have had the option of return- 
 ing the Table to the Plaintiff. In affirming the Decree, the S. C. 
 observed [laying out of consideration that this objection had not 
 even been made at the trial] " That in order to make this a 
 just and equitable graund of defence, the Defendant should have 
 set it forth in his answer, as that on which he intended to rely,
 
 488 Pleadings. 
 
 -accompanied with a tender of a return of the Table, instead r>f 
 which, he had contented himself with emirely denying 1 that the 
 Phiintiff had aiiy claim at all upon him" No. 5420 Kandy 27th 
 My Ib35. 
 
 17. A Plaintiff sued for the recovery of certain Land which' 
 he alleged, had been nertjragcd by his Father to the Defen- 
 dant. The ai swer of the Defendant averred an absolute sale 
 from the Plaintiff's father, by virtue of which the Defen- 
 dant had possessed for many years. At the tri;il, the 
 Plaintiff proposed to go into verbal evidence of the mort- 
 gage, to which the Defendant objected; on the ground that no 
 notice had been given to him to produce the original deed of 
 mortgage, and the D . C. considering the objection to be valid, 
 refused to hear verbal evidence of the transaction, and dismis- 
 sed the case. The Plaintiff appealed, contending that the answer 
 of the Defendant made any such no 1 ice unnecessary; and the 
 S. C. referred the case back, for the reception of the evidence, 
 observing " That as the answer was a virtual denial of any such 
 mortgage; as no such deed of mortgage couid be in existence 
 if the answer were true, it was absurd for the Defendant to 
 complain of want of notice to produce it." The evidence was 
 
 accordingly received and the mortgage was proved to the satis- 
 faction of the D- C. No. 5276. Kandy 20th June, 14th Oc- 
 tober 1835. 
 
 18. Te an action by a tithe renter against several persons 
 fbr having reaped their Crops, without paying the tithe to the 
 Plaintiff, the Defendant put in as a plea, that they had not cul- 
 tivated any Land within the limits of the Plaintiff's rent, and 
 
 therefore moved the D. C. to dismiss the action, without going 
 into evidence, the D. C. however, considered that there was as 
 yet no ground for dismissal, and ordered the parties to go into 
 evidence. The Defendant appealed, and the S. C. affirmed the 
 intenocutory order, and directed that the Defendants should 
 pay the costs of the appeal. The Defendants seem to imagine," 
 the Judgment observed, "that by calling an answer a Plea or 
 Exception, they obviate the necessity of proving the facts, on
 
 Pleadings. 4$9 
 
 which such plea [so styled] is founded. The Cultivation of Land 
 by the Defendant, within the limits of the Plaintiff's rent, is 
 one of the facts which must be established by the Plaintiff, 
 before he can recover in the action : and it will be open to the 
 Defendants to shew that the Land cultivated by them was not 
 within those limits : But this no more forms the subject of a 
 plea or exception on which the Defendants could demand the 
 dismissal of the action without evidence than would the allega- 
 tion of payment or any other grounds of defence. Strictly 
 speaking, indeed, the Defendants were bound to go to trial on 
 the general denial which their Proctors moved to have entered, 
 as appears from the pleadings, on the gth instant. The better 
 course will, perhaps, be, to let this plea stand as the Defendant's 
 answer, together with any other ground of defence which they 
 may think fit to add." No. 1872. Caltura, 25th November 1635. 
 see a similar decision, where a Defendant asked for Judgment 
 without evidence on what was entitled a Demurrer, but which 
 amounted to an answer, Tjtle " Appeal" p. 16. 7. 
 
 19. A case occurred in the D. C. of Colombo, in its Cri- 
 minal Jurisdiction, which will be mentioned more fully under 
 Title " Police" par : 3. but which will not be out of place 
 here, as regards one of the points decided by the S. C. It 
 was a prosecution under the Colombo Police Ordinance No. 8 
 of 1834. S. 17. institu'ed by a Master against certain Coolies 
 who had entered into a contract of service, receiving part of their 
 wages in advance, and had quitted his service before the con- 
 tract was fulfilled. The Defendants pleaded, generally, not 
 Guilty, and when the Case came on for trial, the prosecutor 
 considering it unnecessary for him to prove the contract came 
 prepared to prove the breach of it only, on which the D. C. 
 dismissed the complaint; on appeal by the prosecutor, the S. C. 
 referred the case back for further irqniry. The Court observed 
 " the evidence in support of the prosecution is certainly defective 
 as it stands at present, but ;is thnt defect may very probably 
 have arisen from the prost-cutor being misled by the general 
 terms of the Defendant's plea, he ought to be allowed an op- 
 
 44
 
 49d Pleadingi. 
 
 portunity of supplying it by more satisfactory evidence. He 
 may naturally have supposed, from the Defendant's pleading 
 simply "not Guilty" that they did not dispute the agreement 
 or the receipt of wages, but only intended to deny any infrac- 
 tion of the contract on their part. This proceeding, though 
 undoubtedly a Criminal prosecution in its form and in its con- 
 sequences, yet partakes very much of the nature of a Civil 
 action. It is in truth a remedy given to Masters against their 
 servants, for the breach of a purely Civil contract ; the only 
 remedy, in very many cases, which from the relative situation 
 of the parties, and from the circumstances of most servants, 
 can be made available to their employers. There would be 
 no impropriety, therefore, as it appears to this Court, in calling 
 on Defendants so situated to admit or deny the contract, which 
 they are alleged to have broken. Not compelling them to 
 answer, but giving them an opportunity of so doing if they 
 thought proper, and of offering any explanation in their power; 
 and if they declined to answer without good reason, giving 
 such weight to their silence as ought fairly to be ascribed to 
 it. This course would tend to simplify and shorten the pro- 
 ceeding, and to obtain a more certain disclosure of the truth, 
 without pressing unfairly or harshly against the Defendants, 
 tecause the Complainant would, in his turn, be obliged to 
 answer any questions, which the Defendants might wish to pro- 
 pose to him, or which their explanation might render neces- 
 sary to be j.roi-osed by the Court." No. 910, Colombo [Cri- 
 nutia 1 ] 5th August 183.) Infra title " Police," par: 3. 
 
 20. Where a Defendant pleads that the action does not 
 fall within the Jurisdiction of the D. C. in which it is brought, 
 and that plea is overruled, he should be allowed to prepare 
 Lis answer to the merits of the action, supra Title " Jurisdiction " 
 257. 8. Pleas to the Jurisdiction, obviously untenable, ani- 
 madverted upon: supra 15. 16. 
 
 21. Conviction or acquittal of a Criminal offence, not a 
 conclusive plea to a Civil action for the same act. Supra ti- 
 tle "Judgment" 247. 8.
 
 Pleadings. 494 
 
 . 22. Thirdly, as respects the Replication, very few questions 
 have been brought to the notice of the S. C. In an action 
 for the value of certain Cocoanut trees, the Defendant having 
 alleged circumstances in his answer not amounting to a mere 
 General denial the Plaintiff's Proctor moved to file a repli- 
 cation, which motion the D. C. rejected as unnecessary. On 
 appeal the S. C. set aside this order of rejection, and directed 
 that the Plaintiff be allowed to file his Replication, in conformity 
 with the rules of practice. The S C. observed " if the answer 
 of the Defendant had been such as to render a replication ab- 
 solutely unnecessary, as for instance, if a General denial had 
 been entered, this Court would have been very reluctant to re- 
 scind the order of the D. C. for the purpose of allowing a 
 replication which, in such case, could only have had for its 
 object to swell the costs: For though the 7th rule makes no 
 limitation of the right of reply, still a replication, if utterly 
 useless, might fairly be said to fall within the meaning of the 
 8th Rule which allows the D. J. to reject irrelevant allega- 
 tions. In the present case, however, there are circumstances 
 stated in the Defendant's answer, which the Plaintiff may not 
 unnaturally consider as requiring to be replied to." No. 296. 
 Pantuia, 14ih May 1834. A replication may sometime be useful 
 in sparing the unnecessary cost of proving facts stated in the 
 Defendant's answer by admitting them to be true. No. 918. 
 Negombo, supra : " Costs" 72. 3. 
 
 23. A D. J. applied to the S. C. for instructions, whether 
 the D. C. would not be justified in dismissing a suit, 
 when the Plain'iff failed to file his Replication on the day 
 appointed. To which the S. C. returned for answer. " That 
 jf the Plaintiff failed to file his replication within eight 
 days, the 7th Rule had provided the remedy, viz. that 
 the Defendant might move that a general repluation be entered; 
 that the D. C. would not be justified in dismissing the case 
 on such failure, because a plaintiff might consider a replication 
 wholly unnecessary, and besides might trust to the defendant
 
 Pleadings. 
 
 entering a general replication, if he thought such a step essen- 
 tial." L. B. 14th 16th November 1835. 
 
 24. For the meaning and use of Demurrer, and how it is 
 distinguished from an answer or other pleading, see title " Ap- 
 peal." Supra 16, 7. 
 
 25. As regards the question, who should be authorized to 
 draw pleadings: soon after the promulgation of the new Char- 
 ier, representations were ma 'e to the S. C. from several of 
 the D. Cs., of the inconvenience occasioned by the pleadings 
 being drawn by persons not admitted to practice as Proctors, 
 and over whom the Courts, therefore, had no control ; and it 
 was suggested that the riaht to draw pleadings should be limit* 
 *d to the Proctors, or, in some Courts where no Pro tors had 
 PS yet been admitted, to persons named by the D. J. This 
 suggestion was adopted in every instance, it is believed, in 
 v.'iich it was mad?. But the S. C. on issuing the necessary 
 orders, intimated to the Proctors and others, to whom the pre-- 
 \ilege was limited, "That in the exer ise of it, they should 
 recollect that it was only granted to them in the expectation 
 that they would shew themse'ves worthy of it by reducing the 
 statements of their clients, whether obtained from their own 
 mouths, or translated from narrations produced by them in the 
 native languages, into clear and concise language, omitting all 
 matter which was not strictly relevant to the subject in issue, 
 and that in the event of their not exercising the privilege to 
 the satisfaction of the D. J., and in such a way as lo shew that 
 the exclusive right was a bene.it to the public, it would be 
 withdrawn from them, and the right thrown open again. " L. 
 B. ISth September, 6th October 1835. We have seen under 
 Titles " Interpreter" 237 8 and " Officers of Court," that no 
 person holding those situations ought to be allowed to draw 
 pleadings, or to take any part in the proceedings of the liti- 
 gants. 
 
 26. A Petition of Appeal was presented to the S. C. from 
 one of the D. Cs., in which the power of drawing pleadings 
 had been restricted to the proctors; and was rejected by the
 
 Pleading,. 493 
 
 S. C., as not having been drawn up and signed by a Proctor. 
 The order of rejection observed, " That there app-ared no rea- 
 son why a dis inctiori should be made in- this respect between 
 petitions of appeal and other written pleadings, that on the 
 contrary, it was of importance that petitions of appeal should 
 be drawn up with at least as much care, and should he as 
 free from irrelevant, matter as other pleading's, that the S. C. 
 had been obliged, in two instances, to animadvert on the im- 
 proper and scandalous matter introduced into these petitions, a 
 practice which could only be effectually checked by restricting the 
 privilege ot drawing them to those who were under the control 
 of the court, and liable to animadversion if they exceeded th 
 limits of their duty that the S. C, entertained no fear of any 
 waiu of independence on the part of admitted Proctors, in 
 asserting the rights of their clients, in the strongest and most 
 forcible terms, consistent with decency, and the respect due to 
 the court, that in the present instance, the appellant had no 
 reason to com pi nn of the rejection of his petition, inasmuch as 
 it appeared that the writer of it had been warned by the D. J. 
 that he was exercising a function which did not belong to him. 
 but that the appellant shou'd not be debarred by lapse of time, 
 from now presenting a petition of appeal regularly drawn and 
 signed, if he should think fit so to do " In the matter of the 
 petition of P. S. P. Mahamadoo, of Tanionr-% now at Trinco- 
 male, 24th December 1835. And the D. Js. were informed 
 that petitions of appeal were included within the term " other 
 written pleadings," used in the order restricting the Drawing of 
 pleadings to the Proctors, and were, therefore, subject to the 
 same restr ction as other pleadings. L. B. 29th December 1835. 
 
 27. For certain points relating to the costs of drawing 
 pleadings, see title " Costs" supra 79. 
 
 28. Where an action was brought against a person in gaol, 
 on a charge of Treason, the answer was on the suggestion of 
 the D. J., and with approbation of the S. C., taken from the 
 mouth of the defendant, and certified, to the court JU B. 22, 
 87. August 1834.
 
 494 Polite. 
 
 . As to parties setting up unfounded claims or defence see 
 Title " False claim." 
 
 See also title " Stamps on Pleadings." 
 
 POLICE. 
 
 General Police Ordinance in contemplation, Rules for Police 
 Vidahns paragraph 1. Warrant to search a house s'aould always 
 be obtained, if possible par: 2. Colombo Police Ordinance No. 3 
 of 1834 clause 17. Persons engaging 1 as labourers, to build and 
 repair walls, held to be servants &c. within that clause par 3. 
 And a breach of such contract being proved, S. C. awarded more 
 than a nominal punishment : But no damages can be given to 
 the master under the Ordinance, nor can a specific performance 
 be awarded par : 4. under clause 29. owner of premises com- 
 plained of as encroachments &c. must have an opportunity of 
 shewing that they are not so, par : 5. For what purpose the 
 report, of the constable to the Superintendant of Police may 
 be produced in court par : 6. 
 
 1. It was observed under title "Gaming," supra 210 that 
 a general Police Ordinance for the whole Island of Ceylon had 
 long been in contemplation, and was, probably, by this time in 
 force, and the difficulty of legislating on this subject was also 
 hinted at. A D. J. having submitted to the S. C. certain rules 
 which he proposed to lay clown, for regulating the conduct and 
 duties of the Police Vidnhns in his District, the Judges ac- 
 quainted him, " that they did not consider it advisable to give 
 any opinion on the rules proposed, that the duties of those offi- 
 ces wire already stated, though it must be confessed in very 
 general terms, by the general Police Regulation No. 6 of 1806, 
 as well as in other Regulations passed for the establishment of 
 Police in particular places, that, moreover, there was reason to 
 believe it to be in tbe contemplation of Government to propose 
 to the Legislature an Ordinance for better regulating the Police of 
 the whole Island aud that it would, thereiore, be better, perhapg
 
 Police 499 
 
 to let the office of Police Vidahn be performed as it had hi- 
 therto been done, than to lay down general rules in any parti- 
 cular district, which it might soon be found necessary to cancel'* 
 L: B. 7. 17. August 1835. 
 
 2. A question arose in the D. C. of Matura on the right 
 of a Constable to search houses, without warrant, the Constable 
 prosecuted the occupant of a house in that town [if the writer* 
 recollection be correct, for he has only the judgment of the S C. 
 before him] for resisting him in the execution of his duty, while 
 attempting to search the house for stolen property. The D. C. 
 dismissed the complaint on the ground that the Constable was 
 not furnished with a search warrant, and on appeal by that 
 officer, the S. C. affirmed the decree of dismissal on the fol- 
 lowing grounds. "The fourth clause of Regulation No. 14 of 
 1820, on which the appellant relies, only authorizes the Consta- 
 hle to search suspected houses after sunset, leaving a party to 
 the ordinary and more constitutional mode of proceeding by war- 
 lant, if the search is to be made in the daytime. And the 16th Rule 
 of the second section of the Rules (if practice contemplate the issue of 
 search warrants on all occasions where stolen property is to be sought 
 for in a suspected house. The S. C. will not go so far as to say that 
 extreme cases of necessity may not arise, in which the Constable 
 would be justified in searching a house without wailing .r a war- 
 rant, and in the country, where the delay of resorting to the 
 D. C. would probably defeat the ends of justice, this necessity 
 is constantly occurring. But in towns like Matura where a D. J. 
 is, or ought to be, constantly resident, and accessible, such ne- 
 cessity can only, it is to be supposed, arise in rare and extra- 
 ordinary instances, forming exceptions to the general rule 
 in which the Constable or other Police Officer must act 
 on his own responsibility, and will be justified or not, accord- 
 ing as there may exist a sufficient ground for summary inter- 
 ference, arising out of the danger which would accrue of the 
 purposes of justice being defeated, by the delay necessary for 
 having recourse to the D. C. As regards the motives of the 
 appellant in the present instance, the S. C. is perfectly in ac-
 
 496 PoKci. 
 
 tordance with the Court below, in ascribing (6 hirn none bot 
 the purest intentions. And the Court is equally bound to ob- 
 serve that the opposition and resistance, if really offered to the 
 search, as described by the appellant, reffect no credit whatever 
 on those who instigated r countenanced such conduct. They 
 Would have acted much more creditably and wisely if they had 
 submitted to the Constable's authority, and had afterwards taken 
 legal proceedings against him if he had exceeded that authority. 
 There is one argument of the appellant which must not be 
 passed over in silence, the possible absence, namely of the 
 D. J. at the time when the search was about to be made, such 
 an occurrence would, no doubt, increase the necessity of acting 
 without warrant to the highest possible degree, in as much as 
 the Warrant could, in such case, only be obtained by going to 
 an adjoining district. The S. C., however, is unwilling to enter 
 into the consideration of such a conjuncture, because it can 
 scarcely contemplate the possibility of an office of such extreme im- 
 portance being left vacant for even a single day." No. 655 
 Matura, 3d June 1835. 
 
 3. The few remaining points on the subject of Police arose 
 out of the Ordinance No. 3 of 1834 for improving the Police 
 of Colombo. In the case already partially stated under title 
 "Pkading" par. 19 the Defendants had agreed to serve the 
 complainant as Miidicall builders, repairing and building up all 
 such walls as should be damaged and which the complainant 
 should require, receiving their hire according to the established 
 rate to be settled by reference to proper persons acquainted 
 with such works ; and they acknowledged to have received 1 5 
 Rixdollars in advance. The complaint was founded on the I7ih 
 clause of the Ordinance, for having quitted the service of tt*e 
 complainant, without leave or reasonable cause, before the con- 
 tract was fulfilled. Independently of the complainant not being 
 prepared to prove the contract, for which purpose and for the 
 reason already stated the proceedings were referred back for fur- 
 ther inquiry, it was objected that the Defendants did not come 
 within the reach of the 17th clause, either as regards tbc
 
 Police 497 
 
 character of "menial or domestic servants," or the breach of 
 the alleged contract. On those points, the order of the S. C. 
 referring the case hack, observed " The Court Teels bound to re- 
 cord its opinion, at this stage of the proceedings, that suppo* 
 sing 1 the Defendants to have entered into such a contract as that 
 now filed still rrore if they received in advance the sum 
 alleged, they would come within both the terms and spirit of 
 the 17th clause. The description of persons set forth by ihat 
 clause, and within which description, therefore, the Defendants 
 must be brought, before they can be rendered liable "to the 
 penalties thereby awarded it* as follows." " Any menial or do- 
 " mestic servant within the said town &c. who may be employed 
 k< in or about the house &c. grounds or gardrrs or as Palen- 
 " queen bearer or cooly, and shall willingly agree or contract 
 ." with any person to serve such person for a month, or other 
 " fixed period or in any manner whatsoever." From the mo- 
 men', then, of entering into this agreement the Defendants be- 
 comes, to all intents and purposes, " the menial or domestic 
 aervants" of the complainant " employed about the house, 
 grounds or gardens as Coolies," If the word " Menial" were 
 to be taken in its strict meaning, assigned to it by the law of 
 England viz. " a servant who lives within the household and with 
 the family of the employer, the clause would be nearly inopera- 
 ti\e; since there are few servant in the place who answer to 
 that description : But the word Cooly, which is a very general 
 term and would certainly include persons engaging to serve 
 as Mud-wall builders and repaireis, puts the case, in the opinion 
 of the Court, out of all doubt. The first condii ion of the clause, 
 then, with reference to nature of the service, being satisfied, the 
 
 remaining questions are, whether the Defendants have entered 
 into such a contract the breach of which would render them 
 liable to the penalties of the 17 clause, and if so, whether 
 they have actually been guilty of such a breach of it. On those 
 points much must depend on the evidence to be a<k'u ed, not 
 only as to the due execution of the contract, but as 10 the sums 
 
 paid, on the one hand, and the work performed on the other ; 
 
 45
 
 498 Police. 
 
 This Court will only at present observe that the written agree- 
 ment is extremely indefinite as to duration, the only limit in- 
 duced, which the terms of it points out would be, there being 
 no more Mud-walls to build up or repair. But then I he ordi- 
 nance embraces contracts entered into " for a month or other 
 fixed period, or in any manner whatsoever" whether the Defen- 
 dants be or be not entitled to be relieved from this indefinite 
 con'ract, supposing them to have entered into it, can only be 
 determined when all the circumstances attending the completion 
 of it, wholly or in part, are known. Another point, on which 
 this agreement is very indefinite, is the mode of remuneration; 
 which is to be settled "by reference to proper persons ac- 
 quainted with such works," without saying that the validity 
 of the instrument is hereby effected, it is impossible not to be 
 truck with the inexpediency of entering intc any contract for 
 services without settling the rate of remuneration beforehand,, 
 whenever that is practicable." 
 
 4. . The case accordingly underwent further inquiry in the 
 D. C. The complainant proved the execution of the contract 
 and that the Defendants had left their work, unfinished, without 
 leave or reasonable cause ; and the D. C. sentenced them to 
 pay a fine of three shillings each, or in default of payment, 
 to be imprisoned for one week. The complainant again ap- 
 pealed, and after hearing him in person in support of his appeal, 
 the S. C. affirmed the conviction, but changed the sentence by 
 raising the fine to twelve shillings on each of the Defendants, 
 and the term of imprisonment, in default of payment, to one 
 month for the reasons assigned in the following judgment. " ft 
 is rarely and with reluctance that this Court interferes with the 
 lenience of a D. C., especially for the purpose of increasing 
 the punishment awarded : But as the Court below has found 
 the Defendants guilty of having left the work unfinished which 
 they had agreed to perform, and as the former order of the 
 S. C. has already pronounced the Defendants, if they had en- 
 tered into this contract, to have brought themselves within the 17th 
 clause of the Ordiuunce, it becomes necessary to mark their conduct
 
 Police. 499 
 
 by imposing some thins: more than a mere nominal penally upon 
 them. The fine which has been imposed upon them is less than 
 what, by their own admission, they are ai this moment indebted to 
 the cnmpta.nant, as the balance of what has been advanced to 
 and not earned by them. Ii has been urged this day by the complain- 
 ant as the Ordinance imposes the forfeiture of all wages due 
 at the time ot quitting the service, besides further punishment at the 
 discretion of the Court, and as an advance of wages is generally 
 necessary with Laborers of this description, the money so ad- 
 vanced ought to be considered as " wages due" within the meaning 
 of the Ordinance, and should be forfeited accordingly. The 
 Court cannot adopt this construct ion of a penal enactment, 
 but certainly in apportioning the additional punishment directed 
 by the Ordinance it ought not to be forgotten that when 
 wages are paid in advance, the first branch of the penalty be- 
 comes nugatory and, consequently, that whatever loss the de- 
 linquent is to sustain must be imposed in the shape of the 
 additional discretionary punishment. And if in the present 
 instance, the D. C. had fined the Defendants in the full amount 
 which they hail received in advance, this Court would not 
 have felt disposed to reduce that amount ; for no excuse, 
 whatever has been established for the abandonment of the 
 unfinished work. The complainant has also urged that a fine 
 to the King is no compensation to himself, personally, for the 
 damage and inconvenience which he has sustained by the breach 
 f the Defendant's engagement ; and he has cited an expres- 
 sion in the former order of this Court that " Ibis proceeding 
 *' partakes very much of the nature of a Civil action." [Supra 
 Title "Pleading" par: 19.] But on reference to that order, it 
 will be s-.-en that the analogy there pointed out has re'ation 
 merely to the course recommended to be adopted with respect 
 to the Defendant's admission or denial of the agreement. The 
 proceeding is still declared to be, "a Criminal prosecution, in 
 its form and in its consequences." "As such, it is impossible to 
 award damages to the complainant under it. And it would be 
 equally inconsistent with the end and object of a Criminal pro-
 
 600 Police. 
 
 aecution, and with the terms of the Ordinance, to decree ft 
 specific performance of the agreement, as prayed for, by the 
 Petition of Appeal. These would form the proper objects of 
 a Civil action. But as was intimated in the former order, it 
 is because the circumstances of most servants would incapacitate 
 them from paying damages that the breach of their Civil con- 
 tracts of service are thus punis.ied criminally. In other words, 
 the fear of punishment, operaiing on the mind of the servant, 
 is given to the Master as a ] rotection against misconduct, in 
 the room of a pecuniary iiirL'mnity which, if awarded by a 
 decree, could seldom be actually recovered." No. 910. Co- 
 lombo. [Criminal] 5th August, 23d September 1835. 
 
 5. On appeal from an order of the D. C. of Colombo, 
 under the 29tii Clause of the same Ordinance, empowering the 
 Surveyor General to remove a Verandah which that Officer had 
 represented as an encroachment, the D. J. being in Court, and 
 ha\ing stated that the Defendants had no opportunity of shewing 
 that the Verandah in question was not an encroachment upon 
 the public street, as staled in the notice of the Surveyor Ge- 
 neral " It was ordered that the Defendant be at liberty to ad- 
 duce any evidence to that effect which she might think proper, 
 which evidence would be returned with the opinion of the D. 
 C. thereupon to this Court together with the rest of the pro- 
 ceedings. The terms of the 29th Clause justified the D. C. 
 in considering that it was bound to issue the order, directing 
 and empowering the removal of the nuis-mce, without hearing' 
 evidence against the application. But after mature consideration 
 of the words and of the general tenor of the Clause, this Court 
 is of opinion that the owner of the premises complained against 
 must be allowed an opportunity of shewing that they are no 
 encroachment, or nuisance in any other respect. Without such 
 opportunity, indeed, the necessity of any application at all to 
 the D. C. would not be quite obvious. It is, therefore, re- 
 commended that on all future occasions, when application is 
 made by the Surveyor General or Superintemlant of Police, for 
 the order of removal, such order be issued in the shape of a
 
 Police.. Post Office. 
 
 rule to shew cause, returnable within a reasonable time, why the 
 object of complaint sbould n it be removed in terms of the 
 Ordinance." No. 592. Colombo [Criminal] 3rd November 1834. 
 See Title " Injunction" supra 231, where this case is also 
 mentioned with reference to that remedy. And see title 
 " Prosecution" par : 5, as to the question, whether encroach- 
 ments &c. should be treated as Criminal Offences or Civil in- 
 juries, under the 24th and 25th Clauses of the Ordinance. 
 
 6. The question was proposed to the S. C. by one of the 
 D. Js. of Colombo, whether the production in Court by the 
 Superintendent of Police, of the copy of the report made to 
 that Officer by the Conslable, was illegal. The report con- 
 tains the names of persons charged with offences, and of the 
 complaint, accompanied with ih-- remarks of the Constable. The 
 S. C. observed in answer. " That the question proposed must 
 very much depend on the use intended to be made of the re- 
 port in the D. C. that it was scarcely necessary to say that 
 neither a copy nor the original report itself could be received 
 by the Court as evidence of any of the facts therein stated, as 
 the application of it to any such purpose would undoubtedly 
 be illegal , but that if it were merely used as a mode of in- 
 forming- the D. C, of those charges which it was intended to 
 preve by reerular evidence, the instrument, so far from there 
 being any thing illegal in it, appeared well calculated to pro- 
 jnote the ends of Justice, by facilitating the necessary inquiry 
 into petty offences, and by preventing the complainant, whether 
 a Police Officer or a private person, from varying the nature 
 of the Charge. " From a subsequent communication of the 
 D. J. it appeared that it was merely in the shape of this pre- 
 liminary notice or introduction of a comp'aint, that it was pro- 
 posed to make use of the report. L. B. 17. 18. 19. August 
 1835. As to the service of notice or ticket for Patrol duty, 
 see title "Process" paragraphs 4. 5. & 6. see also title "Judgment." 
 
 POST OFFICE. 
 
 Prosecution for alleged attempt to defraud, see " Prosecution.'* 
 paragraph 39.
 
 503 Practice. 
 
 POUNDAGE. 
 
 See Title "Fiscal." 194. 5. 
 
 PRACTICE, p: 459. M. S 
 
 Law and practice distinguished Par: 1. Rule 24; Cuse dis- 
 missed, if Plaintiff absent on day for hearing par : 2. so if 
 I .-tor al s nt 3. But not on other days, as on the return day of 
 t s 4. or on the day for filing answer 4. or list of wit- 
 
 or documentary evidence 5. or on adjourned day, if 
 i no notice, or insufficient notice, or incorrect notice 6. 
 i .uld a suit be dismissed because instituted in a wrong 
 
 . 7. Nor because Plaintiff declined answering ques'ions 
 fc. Dismissal for absence of Witnesses discretionary with D. C. 
 9. such dismissal or non-suit not final, unless in extreme and 
 vexatious cases 10 & li. Hearing exparte, if defendant absent, 
 notice of trial left at his last abode 12. Excuse for abs nee 
 must be proved 13. Absence of Proctor, same as that of client, 
 cos.s on postponement 14. Postponement not to be permitted 
 without good cause; payment of opposite witnesses 15 & 16. 
 Illness of witnesses if proved good ground of postponement 17. 
 Di f> ndant dying his son substituted 18. Time for filing do- 
 cuments 20. one party appearing for the rest: Consolidation of 
 actions 21. How the value of Lnnd should be ascertained in order 
 to fix the class 22. Former rules of practice when to be followed : 
 construction o - 47th Rule. 24. Reference to other Titles 25. 
 
 1. By this term, is understood the form and manner of 
 conducting and carrying on suits or prosecutions, Civil or Cri- 
 minal, through J^eir various stages, from the commencement of the 
 process to fina' Judgment and execution, according to the princi- 
 ples of Law and the Rules laid down for the practice of the Courts. 
 " Law Dictionary, title Practice." We have already had oc- 
 cas ; on more than once, to refer to the distinction between the 
 Law, pro, erly so called, by which the rights of persons and 
 of property ar;> to be governed, and Practice, or the course of 
 procedure, by which the law is to be had recourse to and ad- 
 ministered : supra titles " Execution [Parate]" 181 " Law,"
 
 Practice. 503 
 
 par: 8 and 9. and " Nantissement " par. 6. Many of the 
 decisions which have been given under the preceeding titles 
 refer to matters of praoti e, and will be referred to at the 
 c< Delusion of this head : We are now to notice such points of 
 practice as have been decided and which have not been classed 
 under any other more definite title. 
 
 2. The 24ih Rule of Sect : 1 directs that "on the day fixed 
 " for hearing, the case shall be called on in its turn : if the 
 ' Plaintiff do not appear, either in person, or by advocate or 
 " proctor, and the Defendant be ready to pr ceerl, the case 
 " shall be dismissed with costs." Thus where a Plaintiff, on 
 the day regularly fixed for hearing of his case at Jaffna, was 
 absent, giving as a reason that his presence was required at the 
 Pearl Fishery on other business of his own, and without au- 
 thorising his Proctor to proceed in his absence, the D. C. 
 dismissed the case, and the dismissal was affirmed in appeal : 
 The S. C. observed : " That according to his own statement, 
 the Plaintiff had taken upon himself to leave the District of 
 Jaffna at the time when his case was coming on for hearing, 
 not from imperative necessity, as to obey the summons of any 
 other D. C., or even in the service of Goveiiiment, but for the 
 purpose of prosecuting his own private affairs at the Pi art 
 Fishery, that a party had undoubtedly the right of making 
 his election, to which of several objects of interest he would de- 
 vote bis time and attention, but he must not be allowed to do 
 so to the prejudice of others; that when a Plaintiff instituted 
 an action, he was bound, in fairness to the Defendant, to carry 
 it forward to a conclusion, without any delay, except what 
 might arise from causts beyond his control that ignorance of 
 the practice, which the Plaintiff pleaded, was an e.scuse which 
 could rarely be admitted, but could not be listened to in the 
 prestnt instance, since it appeared that the Plaintiff had a Proc- 
 tor engaged from the commencement of the suit, who could 
 not urge such ignorance and who was perfectly competent to 
 conduct the case iu the Plaintiff's absence " No. 1503 Jaffna 
 5lh August 183d.
 
 504 Practice. 
 
 3. The S. C. has decided that the rule as to dismissing 
 or hearing exparte, is the same, whether such proceeding be 
 occasioned by the absence of the party himself or his Proctor. 
 No. 6105 Colombo 8th July 1635, No. 12241 Caltura 1st April 
 Is- 35. In the latter case, the S. C. directed that the case 
 should be restored to the list, on the payment by the Plain- 
 tiff' 's Proctor of the ciss incurred by both parties on the 
 day on which he was absent " this was a condition " the judg- 
 ment observed " which common justice required should be im- 
 posed : For no private interests ought ever to induce a Proctor 
 to quit his post, without either obtaining the consent of all 
 parties to the postponement of such cases, as might otherwise 
 come on in his absence, or else transferring his casts, with the 
 consent of his respective clients, to other hands, any excuse 
 for absence, whether of Plaintiff or Defendant, such as illness, 
 or any other unavoidable cause, should be established to the 
 satisfaction of the Court." No. 2161 Colombo 8th October 1834. 
 
 4. But such dismissal is not to take place, on the ground 
 of the Plaintiff's not appearing at other stages of the case, at 
 which his presence is not indispensibly required. Thus where 
 a Defendant not having appeared, the re urn of the process 
 was after many delays, enlarged to a day fixed, on which day 
 neither Plaintiff nor Defendant were present, and the D. C 
 struck the case out of the list, the S. C., on Appeal by the 
 Plaintiff, oidered it to be " restored and proceeded with :" 
 " The D. C.," it was observed, " appears to have been under 
 an impression that the Plaintiff, as well as the Defendant, was 
 in default, by not appearing on the last return day. On fur- 
 ther reflection, however, the Court will see that the Plaintiff'* 
 attendance was not, in reality, required upon that occasion : 
 for the Defendant had not as yet appeared, and till such 
 appearance had been enforced, the Plaintiff could take no fur- 
 ther step in the case : the Warrant of Attachment for the 
 contempt had already issued and the Plaintiff might naturally 
 and justly expect that this process would be carried into execu- 
 tion, and the Defendant be compelled to answer, after which,
 
 Practice. 505 
 
 fetid not till then, the Plaintiff's frounce would be required,'* 
 No. 261 Caltura, llth June 1834. So where cases have been 
 struck off, on the ground of the Plaintiff's absence on the day 
 fixed for filing answer, the S. C. ordered them to be resumed, 
 because tliis not being a day of hearing, there was no neces- 
 sity for the Plaintiff's appearance, or for noticing his non- 
 attendance. No. 21 Amblangodde, 22d March 1834 [Circuit] 
 No. 1859 Caltura, 28th October 1835. 
 
 5. On the same prihciple, where d case has been dismissed, 
 because the Plaintiff was absent, on the day fixed for filing the 
 list of witnesses, the S. C. has directed it td be resumed. " The 
 21st Rule of the 1st section, which regulates the mode in which 
 jist of witnesses are td be filed, does not imj ose the penalty 
 of dismissal on the Plaintiff's failure in this respect, without 
 giving him an opportunity of shewing cause against such dis- 
 missal ; for which purpose the Defendant is to move for a 
 rule according to the Form No. 15. On the day appointed 
 the Plaintiff would either come prepared with his list, or would 
 shew such cause for his omission as would satisfy the Court, 
 or else, the action would then be dismissed." No. 400 Caltura, 
 27th May 1835. No. 87 Jaffna, 2d May 1835, vide supra : 
 122. 3. where we have seen that the list of witnesses need 
 hot be delivered by the party himself or by his Proctor, so it 
 was decided on one occasion by Mr. Justice Norris, that it 
 was no ground for dismissing a suit, that the Plaintiff had not 
 Filed his documentary evidence on the day fixed for that pur- 
 pose. The writer is unable to cite the case, in which this decision 
 occurred. The penalty for such omission would be that he would not 
 be allowed to produce such evidence afterwards, unless he could 
 satisfy the Court, according to the 20th Rule, that it was not 
 in his power to produce the documents on the day fixed. 
 Another penalty lo which either party would probably subject 
 himself, by his absence on this occasion, would be thai the do- 
 cuments product d by the opposite side might be taken ae 
 admitted. So when a day was appointed by a D. C. for the 
 parties to take out their Subpoenas [an unnecessary proceeding 
 
 46
 
 606 Practice 
 
 altogether] and the case was dismissed on account of the Plain* 
 tiff's absence on that day, th^r S. C. ordered its restoration to 
 the list. No. 7934 Tenmoratchy and Pachellepalley 3d Decem- 
 ber 1834. 
 
 6. Where a case had been adjourned for hearing to another 
 day, on account of the absence of the D. J., and the Plaintiff 
 was absent on the adjourned day, but it did not appear that 
 he had notice of that day, the D. C. having dismissed the 
 action, Mr. Justice Norris, ordered it to be restored to the list. 
 And in another case, the order of dismissal was set aside, where 
 the notice was unreasonably short. It appeared that on the 10th 
 November 1834 it was ordered that blank notices should issue 
 for the appearance of the parties on the 24th, that the notice, 
 however, was not issued to the Plaintiff till the 17th and was 
 not served upon him till the 22d, "so that" as the order of 
 reversal observed, " twelvt days were allowed to elapse between 
 making the order, and serving the notice on the Plaintiff, [for 
 which delay no reason was assigned,] and only one entire day 
 was left for the Paintiff to prepare to obey the summons of 
 the Court. It really appiars extremely hard upon parties, that 
 they should be put to the expense of appealing, in consequence 
 of neglect in carrying the orders of the Court into effect. If 
 the D. C. had enquired, on the 24th November, when the 
 notice had actually been served, it could scarcely have failed to 
 tee that it was unreasonable to strike the case elf, on account 
 of ihe Plaintiff's non-attendance, on so short a noike " No. 569 
 Calmra, 20th February 1835. So where it appeared doubtful, 
 whether the Secretary had not assigned a wrong day to the 
 Plaintiff for the trial of the case, the S. C. ordered the case 
 which had been struck off, to be restored to the list, and that 
 a fixed day for hearing be appointed. " It was quite sufficient 
 to induce the S. C. to make this order, that the D. J. re- 
 ported that the Secretary might have desired the Petitioner to 
 summon his witnesses for the 10th instead of the 8th Septem- 
 ber, the day really fixed by the Court. It was true, as sug- 
 gested by the D. J., that the Plaintiff might have applied U
 
 Practice. 507 
 
 tlie Court, to know which day was the proper one, but it was 
 only natural to suppose that a suitor would receive information 
 on such points from the chief ministerial officer of the Court 
 with that degree of confidence, which the public ought to be 
 enabled to place in the Secretary of every D. C. No. 819 Four 
 Korles 24th November 1834. 
 
 7. Where it appeared that a suii had been instituted in a 
 class below that which the amount in dispute required, and the \ 4 
 D. C. dismissed it on that ground, Mr. Justice Norris ob- 
 served, "that the institution of a suit in a wrong class was 
 
 not, of itself, a sufficient ground of dismissal, but that the 
 Plaintiff ought rather to have been called upon to supply tha 
 additional stamps required, " and it was accordingly ordered that 
 the case be resumed on the Plaintiff's supplying- such stamps. 
 No. 378 Matura, 20th August 1834. 
 
 8. In an action in which certain points arose as to the 
 partnership of the parties, the D. J. after the written plead- 
 ings were concluded, put some questions to the PlahitL?, which 
 he refused to answer, upon which the D. C. dismissed the 
 action. The S. C. referred the case back for evidence, observ- 
 ing that "the questions were properly put and that the refusal 
 to answer them might probably prejudice the Plaintiff's case; 
 but that this refusal was scarcely a sufficient reason for dis- 
 missing the action without hearing the evidence. The Plaintiff, 
 perhaps, felt that he could not safely answer questions of 
 Partnership LC.W." No. 3157 Atnblangod.de, 6th March 1835, 
 [Circuit.] 
 
 9. The postponement of cases, on account of the absence of 
 witnesses, [as to which a few observations will be made pre- 
 sently] must be left, in a great measure, to the discretion of the 
 D. C. No. 2502 Uuanwelle 16th December 1835 In a cass 
 ia whiph, on the day fixed Tor hearing, the Plaintiffs witnesses 
 did not appear, and the Fiscal returned that they were not to 
 be found, the suit was dismissed, and on the Plaintiff's a; - 
 pealing, the decree of dismissal was affirmed. The S. C. was 
 even then ready to have listened to any good re: sou for the
 
 508 Practice, 
 
 non-attendance of the witnesses, though it observed, that tha 
 D. C. had no alternative, but to dismiss: But the appellant 
 did not even appear in support of his appeal. No. 12,313, 
 Colombo 30th April 1834. 
 
 10. Generally speaking, however, these < 'ismissals, for default 
 of appearance on the day of hearing, are to be considered; 
 rather in the light of mere Ifon-$uit than of absolute and 
 final decision. The word Non-suit, though peculiar to English 
 Law, is made use of here, and in some of the decisions of 
 the S. C. as conveying the iHea of temporary dismissal, rather 
 than irrevocable adjudication. For by the Law of E iglatid, a 
 Plaintiff may, after having been non-suited, bring a fresh action 
 for the same cause, on payment of the costs of the first; 
 which he cannot do after a verdict has passed ag-iiust him, 
 unless the Court set aside the verdict: So in Ceylon, the Plain- 
 tiff is not debarred by dismissal on the ground of default, 
 whether of himself or his witnesses [except in very extreme 
 cases, one of which will be mentioned presently] from insti- 
 tuting a fresh suit on p-iyment of former costs, though after a 
 final decree against him he no longer possesses that power, 
 vide supra: 115, 243. In many cases, even in which evidence 
 has been gone into, and the suit has been dismissed for want 
 of sufficient proof to support them, the S. C. has taken oc- 
 casion to olstrve, on affirming the dismissal; that the Plaintiff 
 will not be precluded from bringing a fresh action, if he should 
 come into possession of more satisfactory evidence. The re- 
 servation of the right of the Plaintiff will be found in the Judg- 
 ment of the S. C. in the following cases No. 546. Chilaw and 
 Putlam 7th October, 1835 supra: 10 1. No. 2601. Hambau- 
 totte 19th March 1835 [Circuit] No. 2027. Islands 6th May 
 1835. No. 9()4. Jaffna 27th January 1836. No. 277. Amblan- 
 godde 19th November 1834. No. 84. Caltura 22d December 
 
 1834. No. 2775. Malura [transferred to Hambantotte] June 
 
 1835. In such cases, care should be taken, as was observed, 
 under Title " Land" par : 2, so to shape the decree, as not 
 tp give a title to the Defendant, merely because the Plaintiff
 
 Practice. 509 
 
 ha* failed in establishing his case. 
 
 , 11, In one case, however, to which allusion has just been 
 made, the S. C. thought it right to declare that a decree of 
 dismissal should be final. The Plaintiff had sued his Mother 
 for certain property, in October 1833, from which time up to 
 March 1835, the Plaintiff kept the case hanging over the De- 
 fendant's head, several days having been appointed for the hear- 
 ing, and as many adjournments, made on the Plaintiff's motion, 
 on the ground of the absence of some of his witnesses: At 
 length the D. C, dismissed the suit under the 94th Rule, the 
 Plaintiff not having paid Batta to the Defendant's witnesses as 
 thereby r quired. The S. C. after asking the Plaintiff's Proctor, 
 whether he really believed that certain interrogatories which had 
 been issued might be expected to be returned, and the Proctor 
 not being able to answer that question satisfactorily, affirmed 
 the decree, and there being but too much reason to believe 
 that the action had originated in malice, ordered that it should 
 be considered final, J^Q. 12, Amblangodde 7th March 1835. 
 [on circqit.] 
 
 12. The 24th Rule after imposing this penalty of dismissal 
 on Plaintiff's non-appearance, directs that " If the Plaintiff be 
 " ready to proceed, and the Defendant do not appear, either in 
 " person or by Advocate or Proctor, the case shall be heard 
 " for the Plaintiff exparte." In an action for goods sold and 
 delivered, the Defendant admitted the purchase, but pleaded 
 payment, which the Plaintiff denied. After several adjourn- 
 ments, the ca^e was fixed for hearing, and the Defendant not 
 being to be found, the D. C. directed notice of the day ap- 
 pointed to be left at his last place of abode. On that day, the 
 Defendant did not appeal, and the case having been heard 
 exparte, when the Plaintiff proved a promise on the part of 
 the Defendant to pay if the Plaintiff would withdraw the ac- 
 tion, the D. C, gave Judgment for the Plaintiff. The Defendant 
 appealed alleging that the notice had not reached him, but the 
 S. C. affirmed the decree, observing that the D. C. being satis- 
 lied that the notice of the day of Trial had been left at the
 
 510 Practice. 
 
 Defendant's last place of abode, was perfectly right in hearing 
 the case exparte, and that if the Defendant's answer of pay- 
 ment had been true, he would have been eager to prove it. 
 No. 1497. Colombo 30th April 1834. 
 
 13. Where a Defendant and his witnesses are absent on the 
 day of hearing, he ought, if possible, to make known to the 
 Court the cause of such absence, and to establish it to the 
 satisfaction of the Court, whivh will then exercise its discretion 
 as to the sufficiency of the reason assigned ; and where after 
 a case had been heard exparte and Judgment for the Plain- 
 tiff, the Defendant appealed on the ground that he was pre- 
 vented from illness from attending, but no proof of that fact had 
 been offered to the D. C. the Judgment was affirmed. The 
 S. C. observed that if the Defendant really were ill, it was his 
 duty to have sent some person to represent and prove that cir- 
 cu;r stance be 'ore the D. C. or he might have employed 
 a Proctor to conduct his defence for him, as he h ; is since 
 done to con !uct his appeal. N\>. 2161, Co'ombo 8th Oc- 
 tober 1834. And on a similar occasion the S C. said, 
 that it could not listen to the naked assertion of the De- 
 fendant, that he was prevented by illness from attending the 
 Court, or summoning his witnesses, or even employing a Proc- 
 tor. No. 351, Jaffna 15th October 1834. And where the 
 D. C. has expressed itself dissatisfied with the reason assigned by 
 a Defendant for his absence, the S. C. has usually expressed 
 its approval of the case being heard exparte. No. 12,090 and 
 4,555. Colombo 30th April Ib34. 
 
 14. In one case the D. C. postponed the hearing of a case 
 on the ground that the Defendant's Proctor was absent, and 
 that the 24 ih Rule was silent as to that particular occurrence. 
 No necessity was shewn for the Proctor's absence, and the 
 Plaintiff who had urged that the case should proceed exparte, 
 appea'ed against the postponement, and claimed the whole of his 
 costs up 10 that day. The S. C. mod.fi^d the order of post- 
 ponement, by directing that the Defendant should pay the Plain- 
 tiff's costs, if any incurred ou the day on which the case sliould
 
 Practice. 511 
 
 have been heard. "It is true" the S. C. observed, " that the 
 24th Rule makes no provision for the absence of Proctors, 
 nor was it nec< ssary to make any such express provision : a 
 party appears either in person or by proxy : if by proxy, the 
 Proctor stands in the place of his client, and the consequences 
 of his non-appearance on the day of trial must be the same 
 as if the client himself made default. If the absence of the 
 Defendant himself be an insufficient reason to postpone the 
 trial, the absence of the Proctor cannot be considered sufficient 
 for the purpose. Every Proctor must be supposed to know 
 the day fixed for the trial of any cause in which he is engaged, 
 and if compelled to be absent, he should provide for sjUch ab- 
 sence, by procuring some other Proctor to conduct the case 
 for him. The S. C. would not lay this down as a rule ab- 
 solutely inflexible, or without allowing any discretionary power 
 to the D. C. but certainly a very strong case should be 
 established of unavoidable absence, as from illness or other 
 uncontrolable cause, before a trial is postponed on this ground, 
 without the consent of the opposite side: and when postponed 
 on such ground, it should be on payment of the costs incurred 
 by that postponement. In the present instance, the postponement 
 having already been made, nothing remains but to fix another 
 day for trial. The claim which the Plaintiff makes for the costs 
 incurred by him up to this day, cannot be admitted to that 
 extent. When a case is postponed on the application of one 
 of the parties, it is usually done on the payment of the cost* 
 of the day, but rot of any costs previously incurred. No. 
 6,105. Colombo 8th July 1835. In one or two cases, where 
 the hearing has taken place exparte, on account of the absence 
 of the De endant's Proctor, and it has appeared that there was 
 a good ground of defence, the S. C. has considered it hard 
 lhat the Defendants should suffer for the neglect of their Proc- 
 tor, and has ordered a new trial, the Proctor paying the costs 
 of the former one. And so even, where the day fixed for th 
 trial was the King's birth-day, the D. C. having found it rte- 
 eessary, from the pressure of business, to sit on that day, and
 
 &1*2 Practice. 
 
 the Defendant's Proctor having had due notice that the 
 would be called on for hearing on that day. No. 226. Wale- 
 gammo 8th July 1834 on Circuit. Ne 1,703. Islands. In 
 another case, which Will be mentioned more fully under Title 
 " Proctor" the D. C. proceeded to hear the case in the ab- 
 lence of the Defendant's Proctor, and directed him to refund 
 the sums he had received, exclusive of those for stamps. And 
 the S. G. finding on inquiry that the Proctor hud no sufficient 
 excuse to offer for his abs nice, expressed its approval of that 
 order. L. B. 13th 17th 20th and 25th October 1834. 
 
 15. The subject of adjournment of crises, which also forms 
 part of the 24th Rule, is one of great importance, not only 
 as regards the undoubted right of a party to have the hearing 
 postponed, provided he can shew good and substantial ground 
 for that step, but alsOj on the other hand, as respects the pro- 
 tection of fair litigants from the vexatious delays which, in the 
 greater number of Case-, form the sole object of the party 
 seeking the postponement. Those who were in the habit of 
 seeing the cases which used to come before the late High 
 Court of Appeal, must remember the number of adjournments 
 which usually appeared in the proceedings, from month to 
 month and from year to year, the naked order for postpone- 
 ment being usually entered in the Minutes, on account of the 
 absence of one or both of the parties or their Witnesses, but 
 without any reason assigned, much less proved for absence, and 
 often, indeed, on the bare motion of one of the parties. Th> 
 easiness on the part of the Courts, proceeding no doubt from 
 aft anxiety to accommodate, and a fear lest any party should 
 be able to say that the trial had been brought on before he 
 was completely prepared, was sadly abused by the litigants, 
 and could sjarcely fail to lessen the respect due to the Courts 
 themselves, as well as to inflict great injustice on those parties 
 who were actuated by an honest desire to bring their suits to 
 a termination. It was with a view of applying 1 some check, 
 if possible, to these almost interminable delays, that the 24th 
 Rule provides for the payment of the adverse witnesses, as the
 
 Practice, ?13 
 
 condition of postponement. It may at first sight appear hard 
 upon a party, that he should be called upon to pay for an 
 inconvenience, which may be the fault of the Fiscal or his 
 Officers. But there is good reason to believe that the absence 
 of Witnesses is more frequently occasioned by the supineness of 
 Plaintiffs, and the wilful delay of Defendants, in procuring their 
 citation to be sened, then in the Fiscal's deputies in serving 
 them. It is to be remembered that, owing to the great num- 
 ber of persons in every village, who are known by the same 
 name, the co-operation of the party with the server of the 
 writs is absolutely necessary in many casts to ensure the at- 
 tendance of the right person. And where delay is the object 
 of the party, the commonly received opinion is that he finds it 
 no difficult matter to procure the co-operation of the Officer, 
 by making a false return of the absence of the Witnesses from 
 their homes. Where the neglect is really imputable to the Fis- 
 cal, or his subordinates, a party has his remedy against him, 
 either as an officer of the Court, or by action for damages. 
 But the tvil of delay, as it formerly existed, cried so loudly 
 for remedy, that this provision against one of the most fruitful 
 sources of it was considered well worth the experiment. If the 
 result of that experiment should now be deemed unfavorable, 
 the rule should, as in other cases, be altered. 
 
 16. An action to compel the Defendant to give a receipt 
 for alleged payments made on a bond due from the Plaintiff, 
 was commenced in a former P. C. and was at length dismissed 
 for want of proof in June 1834. The S. C. on affirming the 
 decree, drew the attention of the D. C. to the preposterous 
 number of adjournments, which had been allowed on account 
 of absence of witnesses. It observed "that a case so simple and so 
 easily proved should have been dismissed on the very first, or 
 certainly on the second, default of the Plaintiff. The greater 
 number of adjournments, it is true, took place before the nevr 
 system came into operation. But even before the D. C. the 
 case was called on no less than six times, extending over a 
 period of seven mouths, before it was dismissed. The S. C. 
 
 47
 
 514 Practice. 
 
 can readily understand the unwillingness of a zealous and con^ 
 gcientious Judge (o dismiss a case, while thtre is any chance 
 of the necessary evidence being produced. But by a close 
 adherence to the rules laid down in this rtppeot, parties would 
 scon discover the inability of attempting to protract cases, while 
 a relaxation of those rules, without g-ood cause, must operate 
 not only as an encouragement to the old system of procrastina- 
 tion, but as a hardship on those parties, towards whom the 
 rules respecting default may be enforced. No. 1,897. Batticaloa 
 17th October 1834. In the foregoing case it is to be 
 observed that by keeping this action pending, the Plaintiff 
 might very probably hope to defeat or delay any action 
 which the Defendant might bring upon the bond. So where 
 a case was heard exparte, ; ml after judgment for the plain- 
 tiff, the Defendant appealed, on the ground that the hearing ought 
 to have been postponed, his witnesses being absent, but no rea- 
 son was assigned for their absence, except the Fiscal's return 
 that they were not to be found ; the S. C. affirmed the decree, 
 and expressed is apyroval of the refusal of the D. C. to post- 
 pone the hearing without a good reason assigned for the wit- 
 nesses not being forthcoming. Carr vs. Colombo 5th February 
 
 1834. 
 
 17. The foregoing observations it is scarcely necessary 
 to say, apply to those cases on'y, in wi.i -h no reason, or no 
 sufficient reason, is assigned and proved, for the absence of 
 the wilnesses. If the absence be satisfactorily accounted for, 
 8S regards <he nature of the excuse and the proof of it, it 
 would be the height of injustice to force the case to a hearing 
 on evidence which must be incomplete. Thus the illness of a 
 witness, if sntisfact< ri'y established, has always been considered a 
 ufficient ground for postponement ; and wl ere a party appealed 
 agninst a second adjournment, which had been granted on this 
 ground, the S. C. affirmed the order, observing " That this 
 was a matter which must be left to the discretion of the D. 
 C., under the conditions imposed by the 2kh Rule, and sub- 
 ject to appeal, if a party considered that the indulgence had
 
 Practice. 
 
 been unjustly granted or refused ; that in the present instance, 
 the S. C. cou'd not take upon itself to say that this second 
 postpencment was unreasonable, because it must be presumed 
 that Ihe Court believed the account given of the illness of the 
 nbsent witness, that it would have been better, however, to 
 have fixed the day for hearing peremptorily instead of declaring 
 that it shall be fixed for hearing on an early day. No. 
 2,502, Ruanwel'.e 16th December 1833. But if such ground 
 for postponement do exist, it should be put forth, and the 
 party sheuld move to have the case postponed, before the 
 hearing is entered upon : and if he omit to do so, the S. C. 
 will scarcely listen to the objeciion that all his witnesses have 
 not been heard as a ground for directing a rehearing, though 
 where a case is dismissed for wmt of evidence, such dismissal, 
 as we have seen, is not considered to bar the Plaintiff froin 
 bringing a fresh action. No. 2,354. ChilaW an 1 Pailam, 7t'a 
 October 1SS5. Supra 1601. 
 
 18. The desire felt by the S. C. to spare parties, as much 
 as possible, the delay and expense of double or circuitous acti- 
 ons, has been adverted to uri;ler tille " Pleading" par. 3. A 
 D. J. applied for instructions in a case in which on tha day 
 fixed for trial the son of the Defendant appeared and stated 
 that his father had died a few days ago ; and it appeared that 
 the son was scle heir to the father's estate. The D. J. post- 
 poned the case till he should be informed whether it would be 
 necessary for the Plaiiviff to commence a trash action; and in, 
 that case who ou^ht to pay the costs ofthe former one. The 
 answer returned was " That there appeared no necessity for 
 instituting fresh proceedings on account ofthe Defendant's death; 
 that if this fact were established to the sUisfac-tion of the D. ('. 
 the best and most simple course would be to substitute the son, 
 if he represented his d ceased father in those rights which were 
 called in question by the pr sent action, in the place of the 
 original Defendant, that it would be well to call on the Plain- 
 tiff to state whether he had any obj.-clion to offer to this course; 
 but that if he persisted ia bringing a fresh action, without good
 
 516 Practice. 
 
 cause for so doing, the costs incurred by such unnecessnry pro- 
 ceeding ought to fall upon himself" L. B. 4th 9th O -tober 
 1834, See p. 1 as to the necessity of partits taking out ad- 
 ministration, before action in those districts, into which the 
 system of Administration had only recently been introduced. The 
 case just referred to occurred in the District of Madawaltenne. 
 
 19. Where a Defendant had been committed for contempt 
 in not filing answer, we have seen that he was not permitted 
 to obtain his release, by applying to sue as a Pauper. Supra 
 title "Pauper" par : 10. No. 6,319. Colombo 2nd May 1833. 
 
 20. As regards the filing of documentary evidence. The 
 S. C. had occasion to remind the D. C. in one case that the 
 first rule of practice only requires documents to be filed with 
 the libel as are therein referred to ; and by the 20th Rule, the 
 Plaintiff is at liberty to file Documents not so referred to, on 
 the day to be fi xed for that purpose. No. 277 Amblangodde 
 19th November 1834. And where it appeared that no day 
 had been so fixed, a case was referred back by the S. C. to 
 receive certain documents tendered by the Defendant, and wkich 
 he alleged he had no opportunity of producing. No. 772. Four 
 Corles, 20th February 1836. [on circuit.] 
 
 21. We have seen supra 225, 6, that one of several joint 
 parties to a suit may appear for all, unless the attendance of 
 others be required by the other sl'e for the purpose of examina- 
 tion under the 29th 30th and 3 1st Rules. The consolidation 
 of several actions against different Defendants, having the same 
 interests respecting the same Lan 1, we have also observed, has 
 been sanctioned by a decision of the S. C. Title "Pleading" 
 Par: 7. 
 
 22. In an action for Land, the Plaintiff having estimated it 
 higher than the Defendant considered (o be its real value, th* 
 D. C. appointed Commissioners to inspect the Land, and re- 
 port its real va'ue. Against this ordir the Plaintiff, who sued 
 in fbrmfc pauper^, appealed, alleging that there was no regula- 
 tion or rule of practice, by which this course was pointed out 
 91 permitted. The S. C. affirmed the interlocutory order, ob-
 
 Practice. 517 
 
 erving " that it would be the height of injustice to allow a 
 Plaintiff to put the opposite parly to unnecessary expense for 
 the purchase of stamps, higher than the value of the property 
 really required, that this injustice would be still greater, where 
 the Plaintiff had the advantage of suing as a Pauper, for if 
 he were allowed to fix the value at his own estimate, without 
 giving the Defendant an opportunity of contesting its correct- 
 ness, he might from motives of personal ill will, put bis ad- 
 versary to the expense of stamps exceeding the value of the 
 property itself, without incurring any, the slightest expence him- 
 self : that the practice of the Courts at Colombo had always 
 been to allow these commissions, where the value fixed by the 
 Plaintift was disputed, whether as being too high or too low, 
 that it by no means followed, because this course was not ex- 
 pressly provided for by regulation, or by the rules of practice, 
 that it could not legally be adopted ; and that those rules were 
 never intended as providing every possible emergency, or 
 for every collateral step, which might become necessary in 
 the progress of the suit." [This last observation also occurs 
 in the judgment on the case of Clark vs. M- Lebbe, Supra 
 title "Nantissement."] It was ordered that in case of the Piain- 
 tiff obtaining a decree in his favor on the merits, the costs in- 
 curred by the Defendant in this appeal should be deducted out 
 of those awarded to the Plaintiff. No. 1,982. Caltura 27th 
 January 1836. See also title "Stamps in pleading*" par: 18. 
 
 23. We have befo-e had occasion to observe, p : 230 1, that 
 where any matter of praciice is left unprovided for by the rules 
 of practice now in force, recourse may properly be had te 
 those followed by former Courts, but that where the practice 
 is prescribed by the rules of 1st October 1833, all former rules, 
 conflicting with them, must give way. p: 39. Tne forms appended 
 to the rules, may be altered to meet the circumstances of any 
 particular case, supra : 16J 195. 
 
 24. As to the construction put upon the 47th Rule, and 
 the distinction between questions of Law and praciice, see title 
 **Law," par: 9. and "Proctor" par. 19.
 
 518 Prescription. 
 
 25. There is scarcely one of the titles, of which this little 
 work is composed, in which points of practice do not inciden- 
 tally occur: "Appeal:" "Assessors:" "Bail:" "Contempt:" 
 "Copies:" "Costs:" "Examina'ion," Execution," " F.ilse 
 claim:" "Fisca 1 ," "Injunction," "Issue," "Judgment:" "Motion:" 
 Oath:" "Pauper:" "Pleadings:" "Process:" "Proctor:" "Se- 
 questration" " Stamps :" par: 16 et s._>q: tender. 
 
 PRE-EMPTION. 
 
 See Tile Land par: 11. 
 
 PRESCRIPTION. 
 
 Ordinance 9. of 1834 how differs from Regulation No. 13 of 
 1822. What promise, adnrssion or act shall take a case out of 
 the Ordinance paragraphs 2 and 3. Explanation of " adverse 
 title" 4. It may be derived from or dependent on that of the 
 claimant 5. Mortgagee cannot claim by prescription against the 
 Mortgagor 6. Nor trustee against the person interested 7. Pos- 
 session must be absolute, not partial or qualified 8. And un- 
 disturbed Suit commenced bars prescription : other modes of op- 
 position 9. Services for Land lest by non-claimant 10. Title 
 by prescription not affected by informality of original possessi- 
 on 11. Silence of claimant ought not to prejudice him, as long as 
 he is unable to assert his claim 12. Suits not to be dismissed 
 as prescribed without hearing evidence. Term of prescription as 
 affecting instruments, to be decided by the tenor of the instru- 
 ment, not by its denomination 14. App'ication of clause 8. of 
 the Ordinance &c. Decrees not within the Ordinance, 15. Alie- 
 nation of entailed property; prescription does not run against the 
 heir, till his right accrues 16. Claim may be rejected on the 
 ground of long silence, though prescription not pleaded 17. 
 
 1. This word has a much more extended meaning in Ceylon 
 than in the Law of England, by which it is co;,rinel to certain 
 personal rights, claimed by virtue of immemorial usage: Whereas 
 with us in Ceylon, following the language of the Civil Law, Pres- 
 cription is used syuouymously with the English expression Li-
 
 Prescription. 519 
 
 mitaiion of actions, and is applied fo all those subjects, on 
 which the Law has laid down ceriain periods of time within 
 which actions relating to tl.ose respective subjects must be brought. 
 
 2. The Ordinance Ko. 8 of 1834 by which the previously ex- 
 isting Regulations and Kandyan Proclamation on this subject 
 are consolidated and amended, leaves the respective periods of 
 prescription as they wtre fixed by the former Regulation No. 
 13 of 1822. The principal alterations, or rather additions in- 
 troduced by the Ordinance, con- ist in explaining the term " ad- 
 verse title" in the second chaise, as regards the possession of 
 Land and in giving Piainiiffs the benefit of such Ten years 
 possession, which by the strict terms of the Regulation of 1822 
 Would have leen lin.'ited to Defendants. In applyirg the rules 
 of prescription as ictarcls boiids, bills, promises, lo>k debts &c. 
 to claims in reccnvtntion and set off, as well as to actions; 
 
 and in providii g exjrcfesly for those classes of cases, which may 
 be considered as taken out of the scope of the Ordinance. 
 
 3. Tliis latter proviso, which forms the subject of the 7th 
 clause, is of material importance in the construction of the Or- 
 dinance, and may be considered an imitation, to a certain de- 
 gree, of statute 9. Gto: 4. ch : 14. sect. 1. That statute which 
 is visually, it is believed, cal ed Lord Abingtr's act, sterns a 
 striking instance of reaction in Judicial opinion. To judge from 
 the cases on this subject in our English Reports, one should 
 infer an anxiety on the part of the courts to find some ground 
 for declaring a case out of the Statute of Limitations or at least 
 for lea\ing it to the jury to say, whether a subsequent acknow- 
 ledgment of the debt had not been made within the limited 
 period. At length it seems to have been felt that this hostility 
 to the Statute of James 1st., by which its previous in so 
 great a number of instances were neutralized, had been carried 
 too far, and accordingly the Statute 9. Geo: 4. was passed, by 
 which it is enacted, that DO acknowledgment cr promise shall 
 be sufficient to take an action of debt or simple contract out of 
 the Statute of Limitations, unless it be in writing and signed by 
 the party chargeable then. by: provided that the offer ot any
 
 320 Prescription. 
 
 payment of principal or interest shall not be taken away or less- 
 ened. The 7th Clause of the Ordinance provides that if the 
 creditors shall prove, to the satisfaction of the Court, any written 
 promise, acknowledgment or admission made, or any act done 
 by the debtor within the term prescribed for bringing the action, 
 from which the Court shall be convinced that the debt had been 
 paid or satisfied, it shall be lawful for the Court to give Judg- 
 ment for the creditor, as if the action &c. had been brought 
 within the period limited. This proviso, therefore, varies from 
 the Statute 9. Geo: 4. in two particulars. 1st. It does not re- 
 quire the written promise &c. to be actually signed, by the parly 
 making it. 2nd. It allows of any act done by the debtor, not 
 confining such acts to payment of principal or interest, to be 
 received in evidence, as the proof that the debt is still unsatis- 
 fied. It may be observed that the act was not before the Co- 
 lonial Legislature when the Ordinance was passed, or its provi^ 
 sions might perhaps have betn more closely followed. But it 
 should be recollected that there may be many acts done by the 
 debtor, besides payment of part of the principal or interest, which, 
 while they are liable to the misconception or misrepresentation 
 which may be put upon men verbal acknowledgments, are ut- 
 terly irreconcilable with the idea' of the debt having been satisfied: 
 end this observation is perhaps entitled to peculiar weight as 
 regards the Kandyan districts where debts are so often secured 
 by a partial delivery of Land to the creditor: the debtor con- 
 tinuing to perform certain acts indicative of the right of owner- 
 ship, but permitting and perhaps assisting in the cultivaiion of 
 it by the creditor, so as to shew, beyond all doubt, that the 
 incumbrance or debt still exists. 
 
 4. The expression "adverse title" in the Re-elation No 13 
 of 1622, Sections having been sometimes understood as requiring 
 the production of Title deeds, expressly contradictory of a right 
 in any other person, it was thought advisable, in adopting the 
 term in the Ordinance, to give some explanation of what the 
 law intended by a title adverse to that of the party claiming the 
 Land. And even after the Ordinance had been some time in
 
 Prescription. 
 
 operation, a D. J. observed that possession for 18 years in a De- 
 fendant, unless he could prove a bonaiide title to the Land, would 
 not be an adverse title. The S. C. on the question being brought 
 before it said that this proposition was not correct; that where 
 possession had been enjoyed for many years uninterruptedly, and 
 without contest, the title or right of possession did become in 
 fact an adverse one against all the world, because no body hav- 
 ing disputed it the Law presumed that the possessor had a 
 better right to it than any one else, even though he might Hot 
 have a single paper or document to shew in support of his 
 title; that this was the very essence of a title by prescription, 
 the 2nd Clause of the Ordinance only requiring possession for 
 ten years to have been undisturbed, uninterrupted, and "unac- 
 companied by payment of rent, or produce, performance of ser- 
 vice or duty, or by any other act, from which an acknowledge- 
 ment of a right in another might be inferred." No. 1652. 
 Negombo, 6th January 1836. see also Title " Evidence," Supra 
 120 as to the presumptions on which the Law of prescription 
 is founded. 
 
 5. The following cases, and indeed almost all which are about 
 to be mentioned on the subject of prescription, came before the S. C. 
 on the Regulation of 1822, but the points thereby decided will 
 not be found inapplicable to the Ordinance. In an action for Land 
 which the Plaintiff claimed in right of her deceased husband, 
 the Defendants pleaded possession since 1790, and also produced 
 certain deeds which it was unnecessary to consider, because 
 no sufficient proof was offered of them. The only evidence for 
 the Plaintiff was a very loose statement by one witness, of the 
 Land having been mortgaged by the Plaintiffs husband, but 
 which the witness could only have known by report. For the 
 Defendant, several witnesses proved possession by him for 25 
 or 30 years. The D. C. however, considered that this pos- 
 session by the Defendant did not give him an undisputed right 
 to the Land, and decreed in favor of the Plaintiff. The S. C. 
 on appeal, finding no evidence of the Defendant's possession 
 having ever been disturbed or disputed by the Plaintiff's late 
 
 48
 
 522 Prescription. 
 
 husband, or by herself until the institution of the present Suit, 
 reversed the decree in the following terms: "There is abso- 
 lutely nothing proved on the part of the Plaintiff by what can be 
 considered legal evidence. The Defendant, on the other hand, 
 has proved possession for considerably more than ten years: 
 And this possession must be token to be by a title adverse to 
 that of the Plaintiff within the meaning of the Regulation. 
 The meaning of that expression is, not that the title must, in 
 express terms, negative that of the claimant ; this would be im- 
 possible. All that is intended is, that the right of the pos- 
 sessor shbuld not be derived fiom that of the claimant, as in 
 the case of a tenant holding of bis Land-lord, or dependant 
 on that of the claimant, as when a person is allowed to oc- 
 cupy by permission from the real owner, or collateral to it, as 
 in the case of one or two joint tenants, jn other words the pos- 
 session must be such as is inconsistent with the probaoility of 
 any just right or title on the part of a claimant who allows 
 ten years to elapse without asserting such claim." No. 1271, 
 Chilaw 27th August 1837. 
 
 ^*^ 6. On the principle that the possession of the person claim- 
 ing by prescription must not be derived from, or dependant on 
 1/1 that of the claimant, a mortgage will convey no prescriptive 
 
 , ' ' right, as long, at least, as the power to redeem the mortgage 
 t remains in the mortgagor. A Plaintiff sued for a field which 
 he alleged had been mortgaged to the Defendant's father twenty 
 years ago, and which he was desirous of redeeming, but waich 
 redemption the Defendant refused to allow, and the Plaintiff 
 Stated other circumstances to shew that the field had been so 
 mortgaged. The Defendant in his answer, claimed by right of 
 purchase by his father. The D. C. considered that, by the 
 Plaintiff's own shewing, the Defendant had obtained a prescriptive 
 right to the field, and that it was unnecessary, therefore, to 
 hear evidence, and the action was accordingly dismissed. Oa 
 appeal to the S C. the case was referred back, in order, that 
 the evidence might be heard on both sides "If it be true, a* 
 the Plaintiff states, that the Land was merely mortgaged t
 
 Prescription. 521 
 
 the Defendant's father, the possession of that person and of 
 the Defendant, under such a temporary tsai.sfer, would give no 
 right by prescription. That right can only be acquired by an 
 occupation adverse to, or at least independant of the claimant. 
 Now supposing this to be an ordinary mortgage, the mortgagor 
 cr his son had a right at any time during the 20 years to re- 
 ume possession, on payment, of the money borrowed, such an 
 occupation, therefore, is a mere tenancy at will, which the real 
 owner of the Land may put an ead to at any time, on the 
 performance by him of a certain condition, namely, repayment 
 of the sum borrowed ; If, indeed, the mortgage bond had 
 fixed a limited period within which the Land must be re- 
 deemed, and at the expiration of which, thtrelore, the power of 
 redemption would be gone; that would furnish a substantial 
 ground of defence. But the light of prescription in the De- 
 fendant certainly does not arise, if the Plaintiff's statement be 
 correct." No. 1814. Seven Korles 25th October 1833 see also 
 No. 5401 Kandy 20th November 1833, to the same effect. 
 The Courts of Equity in England hold that Mortgages do not 
 come within the statute of Limitations. 
 
 7. On the same principle, possession of Land in trust for 
 another can give no title by prescription at least as against the 
 person for whose use the trust was created. A Plaintiff claimed 
 certain Lands alleging that they had belonged to her aunt who 
 died 20 years ago, when the Plaintiff was Eight years of age, 
 intrusting both the Plaint iff" and the Luid [for the Plaintiff's 
 use] to her Cousin, a Mohandiram, who died two years ago, 
 enjoining his wife, the Defendant, to give up the Land to the 
 Plaintiff on being repaid the expenses. The Defendant denied 
 the Plaintiffs claim, and averred a right in her late husband 
 by deed which, however, she was unable to prove. The P. C. 
 held that the Plaintiff by remaining so many years silent, sine* 
 the death of her aunt, had allowed the Defendant to acquire a 
 prescriptive title, and dismissed the action. The S. C. how- 
 ever, on appeal, referred the case back for evidence, observing 
 " That if the Plaintiff should be able to prove that the Mo-
 
 524 Prescription. 
 
 handiram had given the injunction to his wife, as stated, thert 
 would be an end of the Defendant's claim by prescription, for 
 such an injunction would go very far towards acknowledging 
 that the Mohandiram only held the land in trust for the Plaintiff." 
 The Judgment then remarked on circumstances of suspicion 
 appearing in the Defendants answer, but which do not bear on 
 the subject of prescription. No. 4901 Kandy2ud November 1833. 
 In another case also in the Kandyan district the claim was for 
 a Pangua, which the Plaintiff alleged had been entrusted by 
 his father, on his leaving his village at the time of the scarcity 
 in 1812, to Ellawitte Nilleme, and by that person to the De- 
 iendant who now refused to deliver it up. The Defendant 
 pleaded possession for 27 years. It appeared in evidence that 
 the Plaintiff was an infant at the time of his father's leaving; 
 his village in 1812, and also that money and produce had beea 
 transmitted by Ellawitte Nilleme to the Plaintiff's father during 
 his absence from the District. The Judicial Agent of Rat- 
 uapoora considered that the Defendant had acquired a title by 
 prescription, his Assessors thought that the Plaintiff was en- 
 titled to Judgment. And of this latter opinion were the Judi- 
 cial Commissioner of Kandy and his Assessors, both on the 
 ground of the Plaintiff's minority and of the money and other 
 articles rendered by the Nilleme to the Plaintiff's father. The 
 S. C. concurred with the Court of the Judicial Commissioner 
 ou both grounds, observing that these payments must be con- 
 sidered in the light of acknowledgements of the right of the 
 original owner, as much as if regular rent had been paid; that 
 the Nilleme, therefore, was only a Trustee for the Plaintiff's 
 father and that the Defendant bad no right to be considered 
 in a bettor situation than the Nilleme himself, from whom alone 
 the Defendant derived his temporary right of possession. No. 
 3609, Ratnapoora 19th December 1833. 
 
 8. The possession of the person claiming by prescription should 
 also be an absolute one, and not partial or qualified : Thus, 
 where the original owner continued to perform the Rajekarea 
 [which we have already had occasion to observe is cue mode
 
 
 
 
 
 Prescription. 
 
 f shewing that the person performing it had not parted with, 
 the legal title to the Land, supra: Title " Kandy" par: 3, and 
 Land par: 15,] and his permission was considered necessary for 
 the cultivation of the Land, the S. C. observed that these cir- 
 cumstances so qualified the actual possession of the Land, that 
 the person enjoying it could not claim, by virtue of it, a Title 
 by prescription; No. 5930, Ratnapoora, 3rd February 1834, 
 see also No. 6500 Ratnapoora 19th December 1833. 
 
 9. Again, the possession required by the Ordinance must have 
 been undisturbed and uninterrupted; because any interruption 
 would be inconsistent with the acquiescence on the part of others x . 
 which is the very soul and essence of title by prescription in 
 the possessor. Such interruption or disturbance may turn out, 
 on inquiry, to be without foundation, but at least it tends to 
 shew that the person who interposes it has not assented even 
 by silent implication, to the right of the possessor. The safest 
 and most obvious course, by which to express dissent from the 
 right of the possessor, on which, if pursued before the ten 
 years of possession are completed, will be an answer to the 
 Claim by prescription, is to institute an action for the laud, 
 the title to which is disputed. (In England it is sufficient to bar 
 the Statutes of limitations, that an action for the object in dispute 
 has been commenced before the expiration of the term prescribed) 
 Whether other protests or oppositions to the possession of land shall 
 be considered sufficient to defeat the title by possession must de- 
 pend upon the circumstances of each case : The question to 
 be asked would seem to be this, can the possession under 
 which the party claims, be considered to have been undisturbed 
 and uninterrupted by the assertion of other claims for the 
 space of 10 years ? On one occasion, the S. C. expressed its 
 opinion, that the award of a Gangsabe against the party claiming 
 by prescription was sufficient to bar that claim, although he 
 had refused obedience to the award, and had kept possession 
 of the land in spite of it. For the Gangsabe might not have 
 the power of enforcing its decrees, [supra: 37.] but the cir- 
 cumstance ought not to prejudice a claim made and established
 
 Prescription. 
 
 through that channel, as regarded an adverse claim by pre- 
 diction, No. 8450, Seven Korles 23d November 1833. In 
 another case, the question arose, whether the presenting a pe- 
 tition to the Judicial Commissioner of Randy [the usual mode 
 of commencing action in that Court] respecting the laud in dis- 
 pute, was sufficient to bar a title by prescription : The 
 Chief Justice was of opinion that it would have that effect 
 but is not sure whether the case was decided on that ground. 
 No. 5276 Randy, 14th October 1835. On one occasion, a 
 party petitioned the S. C. to be allowed to bring his action 
 notwithstanding the lapse of time, but the Court considered 
 it had no power to entertain the application- Petition Book of 
 1835 p. 189. 
 
 10. The question has more than once arisen, whether the 
 prescription for land, founded on ten years' possession, be ap- 
 plicable to services claimed by owners of villages in the Ran- 
 dyau districts and reserved to them by the Proclamation of 
 12th April 1832. In an action by a Ninda proprietor for 
 services which he claimed from the Defendant as his tenant, 
 but which the latter denied his liabilj y to perform, it appeared 
 that the services now claimed had not been performed since 
 819. The D. C., however, considered that the Plaintiff had 
 established his claim, and decreel in his favor accordingly. 
 The S. C., on Appeal, referred the proceedings back to th 
 D. C., in order that the question might be considered how far 
 the claim of the Plaintiff was barred by prescription, at least 
 as regarded these services which it appeared had not been per- 
 formed or, it might be presumed, exacted, since the institution 
 of the grain tax in 1819. The Proclamation of 18th Septem- 
 ber 1819 [establishing the periods of prescription for the 
 Kandyau Provinces] had been held by the S. C. to bar actions 
 for the enforcement of services, or to recover possession of 
 land for refusal to peiform them, where it had appeared the 
 party claiming them had allowed ten years to run, without 
 demanding the performance of them. Indeed if this Proclama- 
 tion did not apply to such, cases a tenant might be called upon
 
 Pretdiption. 52T 
 
 \t perform service to the Ninda holder though a hundred yeart 
 inight haxe elapsed, wiihout any such demand being made on 
 the tenant or Ins ancestors" No. 7190, Ratnapoora 31st De- 
 cember 1834. The writer is unable to give the result of th 
 inquiry thus directed to be instituted, as regards this particular 
 case : But he reftrs the reader to No. 493, Kandy 19th No- 
 vember 1833, and he believes that other cases may be found 
 in which the S. C. decided that actions for these services fell 
 within the term of prescription limited to actions for land. 
 
 11. Where a ptrson has gained a title by prescription, by 
 undisturbed possession for ten years, it is no objection to the 
 validity of such title, that the instrument by virtue of which he ori- 
 ginally obtained possession was insufficiently stamped, or irregu- 
 lar on any other ground. No. 1953 Islands, 22d December 
 1834. Such instrument might, in truth, be bid out of consi- 
 deration altogether, since the claim by prescription rests not on 
 written documents, but on the silence of all other claims. 
 
 12. A case has, however, been mentioned, title "Land," par. 
 9. in which silence for more than ten years was held not to 
 debar the original owner of land from asserting his claim, 
 namely : Where the land had been taken possession of by 
 Government as Cinnamon ground during the time when the 
 cultivation of that plant by private persons was prohibited 
 As the assertion of the owner's right during that period would 
 have been useless, the S. C. considered tliat his silence could 
 not be construed into that degree of acquiescence in the pos- 
 session of Government which ought to preclude him from bring- 
 jng forward his claim, when the alteration in the Cinnamon 
 Laws left the land once more open to him for cultivation. No. 
 6715 Colombo, 6th February 1836. 
 
 13. The foregoing cases arose out of claims to landed pro- 
 perty : the few which still remain to be noticed relate to the 
 other clauses of the Ordinance or, more properly speaking, of the 
 Regulation No. 13 of 1822. 
 
 14. An action was brought on an instrument dated 31st De- 
 cember 1827 by which the Defendant agreed to supply th
 
 J28 Prescripiiok. 
 
 Plaintiff with a certain quantity of Arecanuts within twenty 
 da\s from the date, which the Plaintiff complained that the 
 Defendant had failed to do. The Defendant pleaded perform- 
 ance, and also that the claim was prescribed hy the 5th clause 
 of the Regulation, not having been sued upon within six years. 
 Both parties, in their pleadings, called the instrument a Bond, 
 by which term indeed the natives usually designate every species 
 of written contract. The action not having been instituted till 
 January 1834, the D. C. considered it to be prescribed on the 
 face of the instrument, and dismissed it accordingly. On ap- 
 peal, however, the S. C. referred the case back for evidence on 
 both sides ; observing : "That suits should very rarely be dis- 
 " missed on the ground of prescription without hearing any 
 " evidence which the Plaintiff might be able to adduce to 
 " take the case out of the scope of the Regulation. As for in- 
 " stance, pnrt performance by the Defendant within the term 
 " prescribed, payment of interest, acknowledgment of the debt 
 " being still due, or any other act or expression by the De- 
 " fendant within that period, which would be but the presump- 
 ' tion of payment, on which the defence of prescription is 
 " founded." [See also No. 14,025 Galle, 2d April 1834 and 
 No. 1 Amblangodcle 22d March 1S34 on Circuit, to the same 
 purport.] The evidence was accordingly gone into on the part 
 of the Plaintiff, but it was so weak, and it was so doubtful whe- 
 ther the Witnesses were even deposing to the same instrument 
 as that filed, that the S. C. fully concurred with the D. C., in 
 considering it sufficient to tuke the case out of the Regulation : 
 And the nature of the contract which was to be performed in 
 20 days, made it very improbable that the Plaintiff would have 
 allowed six years to elapse, without suing on it. " But the 
 Instrument," observed the Judgment, " was incorrectly called, 
 a Bond, which would require ten years to bar it, under the 4th 
 clause of the Regulation, amended by No. 5 of 1825 sect, 2. 
 It was in truth, a mere agreement, and fell, therefore, within 
 the 6th Clause of the Regulation of 1822." No. 216 Calturs 
 14ih May, 22d December 1834. The S. C. has had occasion
 
 Prtscription. 
 
 IH other insfances to observe that in deciding; by what clause 
 of the Regulation or Ordinance an instrument is to be governed, 
 the Courts should consider what is the nature and effect of it^ 
 rather than the nominal designation which may be given to it, 
 whether by the pleadings, or in the body of the instrument it- 
 self, see No. 580 Amblangodde 12ih Si-ptember 1835 on Cir- 
 cuit, where a "debt Ola" was called by the parties a bond, 
 though in its tenor and effect it was a mere promissory note, 
 and therefore fell within the 5th clause of the Regulation or 
 the 4th clause of the Ordinance. And so with regard to Stamps 
 see title par. 12. 
 
 15. An action WPS brought in 1S35 on a decree ob- 
 tained in a Sitting Magistrate's Court in 1827; the Plainiiff 
 in the present action biing the administrator of the ori- 
 ginal creditor who lad ob aiued the decree. The de- 
 fendant pleaded the 8th clause of the Regulation No. 13, 
 of 1822 corresponding to the 8th clause also of the Ordinance. 
 The D. C. overruled the plea, and the S. C. affirmed that de- 
 cision : The S. C. observed, " T.iat the 8ih clause of the 
 Regulation only applied to the term of three years to which 
 actions on promises, contracts and agreements were limited by 
 the 6th clause of the Regulation, and to the term of one year, 
 to which the 7th clause limited actions for goods, shop-bills &c.; 
 and that a decree certainly rid not fall within any of those descrip- 
 tion pf claims: that judgments wtre not mentioned at all ia 
 the Regulation, nor did they fall wit'iiri the intention of it; that 
 the only term which would bar a judgment would be such a 
 lapse of time as would raise an irresistible presumption that it 
 had been satisfied ; as in England under the statute of Limita- 
 tions" No. 1U96. Caltura 6th May 1835. 
 
 16. We have seen that where the Jiducia fw or trustee of 
 jproperty in fidei Commiss:m aliena'es such property without 
 due authority, the parties interested may recover it back, 
 as soon as their right accrues, whatever length of tin* 
 may have elapsed since the wrongful alienation ; for 
 e he could not assert his claim till his right accrued, no prescrip- 
 
 40
 
 630 Prescription. 
 
 tion would begin to run against him till then. Supra ; 191. 2. 
 And the decision of the S. C. on the claim to the Cinnamon 
 garden, just mentioned par: 12, proceeded on a similar princi- 
 ple: Because until the law ceased, which forbade the cultiva- 
 tion of the ground except by government, it would have been 
 impossible, or at least useless, for the Plaintiff to have attempted 
 any assertion of his claim. 
 
 17. Though prescription be not ex pressly pleaded, the length 
 of time which may have been suffered to elapse between the 
 right of action accruing and the institution of the action, may often 
 be taken into consideration in doubtful cases, in deciding on 
 the' probability of the claim having been satisfied. No. 1118, 
 Putlam, 26lh June 1834, circuit. But if a Defendant, instead 
 of resting on the plea of prescription, onvr to prove payment, 
 the defendant ought not to be shifted to that of prescription, 
 supposing the plaintiff to have established his case. An action 
 was brought on 5th February 1S35, on an instrument called 
 by the parties a bond, but which was merely an agreement, dated 
 14th February 1S25, so than ten years, within a very few days, 
 had elapsed between the date of the instrument and the insti- 
 tution of the suit. The Defendant admitted the instrument, 
 but pleaded payment, which, however, he failed to prove. The 
 D. C. then called on the Plaintiff to prove the payment of in- 
 terest in February 1826 as endorsed on the instrument; and 
 witnesses were accordingly examined to that effect. After that 
 evidence had been received, however, the D. C. decided that 
 the claim was barred by prescription, and dismissed the action. 
 On appeal, the S. C. referred back the proceedings on the 
 following point ; "There can be no doubt that the action would 
 have have been prescribed, if the defendant had rested his de- 
 fence on the ground of prescription : for the instrument, though 
 called a bond, is in truth no more than a common agree- 
 ment. But as the Defendant did not call in aid this bar by 
 prescription, but professed to be able to prove payment, the 
 D. C. could scarcely change the ground of defence, and sub- 
 stitute the presumption of payment raised by the Regulation
 
 Priest, Principal and Surety. 531 
 
 or Ordinance, for the actual and substantial liquidation which 
 the Defendant undertook, but failed to prove. But though the 
 positive law of prescription, not having been pleaded by the 
 Defendant, cannot now be invoked to his assistance, it is still 
 a question for the D. C. whether, putting that law aside, the 
 Court may not feel convinced that this agreement has been in 
 some way satisfied. If the length of time which has been allowed 
 to elapse, without any steps being taken to enforce this agree- 
 ment, being nine years since the alleged payment of interest 
 was made, be sufficient to convince the Court that nothing 
 remained to be done or paid upon this agreement, it is still 
 open to the Court to declare that opinion, and to dismiss the ac- 
 tion, without the help of the positive law of prescription. " The 
 case was accordingly reconsidered by the I). C. which recorded 
 its opinion, partly from its disbelief of the Plaintiff's witnesses 
 as to the payment of interest; and partly from the suspicious 
 appearance of the endorsement of that alleged payment that the 
 claim had been satisfied, and that the Defendant was entitled 
 to judgment: arid the original decree of dismissal was thereupon 
 affirmed by the S. C. No. 1117 Caltura, 18th November 2nd 
 December 1835. 
 
 PRIEST [Budhist.] 
 
 Administration to, as a pauper, refused ; supra p : 5. 
 
 Not exempted from giving evidence on Criminal prosecutions, 
 upra : p: 127. to 131. 
 
 Inability of, to possess land ; see title " Randy" par. 77 and 
 title '"Land" par : 14. 
 
 Action by, for a libel, accusing him of irreligion, see till* 
 "Libel" par: 12. 
 
 See also title "Temple." 
 
 PRINCIPAL AND SURETY. 
 
 1. It is a rule which governs the respective liabilities of these 
 parties, that if the Creditor has been guilty of negligence in 
 endeavouring to obtain payment of a debt, gr tb* 'prformaact
 
 332 Principal and Surety. 
 
 ef any other contract, from his principal deb! or, or i f he tins grtew 
 time, or shewn any other indulgence, to fuch prncipul, with- 
 out first obtaining the assent of the surety, the latter i> there- 
 by discharged from his liability. For as the very essence of ft 
 surety's engagement is that he will be answerable, only in the 
 event of the j rimipal fai'ing to perform his e gagement, he ha* 
 a ri^ht to expect due diligence on the part of the creditor in- 
 compelling fulfilment by the principal. The law, therefore, con- 
 siders that any unnecess;?y delay on the part of the creditor, 
 in as much as the opportunity of recovering against the principal 
 may thereby be los ( , operates as a release of the su.ety and 
 throws the risk of ultimate failure to obtain satisfaction from 
 the principal, on the negligent or indulgent creditor. 
 
 2. But the diligence which the law thus exacts from th* 
 Creditor is to be exercised by the enforcement of those rights 
 only which the Law gives him. In the only case which appears 
 to have become before ths present S. C. on this subject, the 
 Surety required the Creditor to interpose before he had any legal 
 right so to da. An action was brought by Government against 
 the sureties of a deceased Arrack renter, for the monthly instal- 
 ment of 343_ due by the Renter on the 31st Decemhef 
 1S34. The Defendants admitted their suretyship for 1834 but 
 alleged that in December of that year, execution issued against 
 ti.eir principal, the Renter, at the suit of one Juanis, and that 
 * quantity of Arrack belonging to the Renter was seized and sold 
 for 93 ; thit they, the Defendants, had requested the Govern- 
 ment Agent to sequester this property for the arrears due to 
 Government, as having a preferable claim, but that the Agent 
 had refused ; and they, therefore claimed to be entitled to deduct the 
 sum of 93 from the amount demanded. The plaintiff replied that the 
 Arra. k w;'S seiz d on 7th November 1834, and that it was 
 rot incumbent on the Government to sequester it. The D. C. 
 decided the case on the pleadings, considering that the Govern- 
 ment was not called on to interfere with the sale, since the 
 present suit was not then instituted, nor could it then be fore- 
 sfeii that such an action would be necessary : and judgment
 
 Proceg*. 5SJ 
 
 was accordingly given for the phintifF, which was affirmed on 
 appeal. At the lime of the seizure at the suit of Jmnis, not 
 only had the Government instituted HO action, bat no debt had 
 as yet accrued to the crown. So far, therefore, from being called 
 on to interfere with that seizure, the Government would have 
 had no right or power to interpose, and could not have been 
 listened to. No. 6975, Kaudy, 29th July 1S33. 
 See Titles "Bail," and "Debtor and Creditor." 
 
 PROCESS. 
 
 Service at party's house, in his absence; on witnesses, must 
 be personal, paragra, h 1. Return should be possitiv;', par: 2. 
 How issued into other districts, 3 Officer is justified in peace- 
 ably entering a house to si>ive process; fine on Peon for so 
 entering set asi 'e 4, 5, and 6. Wuen process is to be deli~ 
 vered in Fiscal's Office, [Colombo] 7. Process on soldiers 8. 
 
 1. The following are the points which appear to have been 
 decided by the S. C. on the subject of the service and return 
 of process, up to M rch 1836. Tae Fis.nl of t'.e Northern Pro- 
 vince applied to th;; S. C. for his: ructions, whether he was jus-i- 
 fied in adopting the jraclLe < f leaving copies of process with 
 the inmates of the house, where the party to whom the 
 process was directe 1 was from home : and lie suggested that 
 it might be better, in case of such absence, that the process 
 hould be returned to the Court with a report to that effect, and 
 that the Court should then, r.s a matter of course, make th 
 order for service at the last place of abode. The Fiscal was in- 
 formed in answer, "T .at the practice iu the department of the Fiscal 
 of the Western Province was as follows : If the defendant be absent 
 from his usual place of abode, the process is s: rved on one of hi 
 relations, being an inmate of the h use, and of proper age; 
 and if no such person be in the house, then the process in 
 pasted, or otherwise fastened to the door, or other conspicuous 
 part of the house; the return is made to the Court according 
 to the fact, and this aervic* is considered sufficient. The S. C.
 
 !34 Process. 
 
 would recommend the adoption of this practice in all othtr 
 Provinces, unless any objection should present itself, of injustice 
 likely to be worked thereby, as being less circuitous than that 
 proposed. But with respect to witnesses, it was to be observed, 
 that the Courts would not grant an attachment against them 
 for non-attendance, unless the Subpoena had been served personally 
 upon them." L. B. 8th 25th October 1834 See also " Evidence" 
 125, 6. 
 
 2. The terms in which the service of any process, order, or 
 notice, is sworn to [or declared, under the Supplementary order 
 of 4th October 1833] should be positive and unequivocal; No. 569 
 Caltura 4th February 1835, for otherwise, the Court can neither 
 act upon the return, as regards the person disobeying the order, 
 nor could the officer be punished for making a false return. Any 
 circumstances, out of the ordinary course, which occur in making 
 such service, should be stated in the return. (Petition Book of 
 1835 p. 7. 
 
 3. Doubts arose on the construction of Rule 14, sect: 1 whether 
 when a defendant is not found within the district into which 
 the process was first sent, such process must, in all cases, be 
 returned to the Court out of which it issued, for transmission 
 to, and endorsement by the Judge of the District in which the De- 
 fendant may really be found. The point having been referred 
 to the S. C., the opinion of the Judges was conveyed to the 
 D. Js. and Fiscals by a circular letter, of which it may be not 
 useless to give the substance here. *' Such transmission and 
 endorsement are not necessary, if the defendant be found in 
 any district, within the same Fiscal's Province." For the return 
 contemplated by the 14th Rule is that of the Fiscal himself 
 who cannot correctly return that the Defendant " is not to be found 
 within his district," if in truth he be found within any district 
 forming part of his Province. If any Deputy Fiscal returns 
 hat the Defendant is not to be found within his district, there is 
 
 till nothing to prevent the Fiscal, as principal, from re-issuing 
 the Prociss into any other of his districts, in which he may 
 lie ii formed that the Defendant is really to be found. Thew
 
 Process. 
 
 fcbservations have no reference to the jurisdiction of the Court 
 out of which the Process issued, which must he decided hy 
 the tests prescribed by the 24th clause of the Charter. This 
 construction of the 14th Rule is not to be extended to the 36th. 
 TVhen Execution is carried into a district different from that in 
 which it was obtained, it is better that it, should go through 
 the Court of the district, in which it is to be put in fore*. 
 For as there may be other Writs of Execution against the 
 same person or property, the D. C. ought not to be left in 
 ignorance of a seizure, about to be made at the suit of a Clai- 
 mant out of a foreign district." Circular letter 27th February 
 1834. And see Letter Book llth February 1834, for the cor- 
 respondence out of which the question arose. It may further 
 be observed that the word " Province" would probably have 
 been used in the 14th Rule, instead of " District" if it had 
 been known, at the time the rules were framed, that the former 
 word would be made use of by Proclamation of 1st October 
 1833 to designate the Fiscal's limits in their full extent. L. B. 
 19. 27. February 1834, see also Title " Sequestration" para- 
 graph 3. 
 
 4. A case was brought before the S. C. in appeal, involving 
 the question, how far a Peon or other Officer is justified in 
 entering a house for the purpose of serving process: For 
 though the notice or order in question in this case does not 
 fall within the term " Process" in its more usual application, 
 the rules as regards the mode of service must be the same. 
 Certain peons were charged before the D. C. in its Criminal 
 Jurisdiction, with unlawfully and forcibly entering the house of 
 the prosecutor ; and that Court, considering that the charge was 
 established against them, in point of law, though acquitting 
 them of any Criminal intention, imposed a nominal fine upon 
 them. The prosecutor, being dissatisfied with the amount of 
 fine, appealed to the S. C. by whom the following Jndgraent 
 was given from which the facts of the case will appear. " It 
 *' is ordered that the conviction and sentence of the D. C. be 
 "set aside; that the Defendants be acquitted and discharged,
 
 538 
 
 ** and that the fine which has been imposed upon (hem be 
 '* remitted. Tliis case ha* been brought up to ti is Court by 
 ** appeal, on the part of the Prosecutor : But being before 
 " the Court, the Defendants are en'.itl vd to the benefit of any 
 ** error, whether in Law or in fact, which may app.-ar on th 
 4< face of the proceedings. The charge ;t<iainst them is of having 
 ** committed a breach of the Peace, by forcibly entering 1 the 
 *' house of the complainant, and certainly if this offence had been 
 " proved against them, if tl.ey had entered the House by 
 ** force, wittu-ut lawful authority they would, as Ptons, Officers 
 "' appointed for the maintenance of the Public Peace, have 
 *" been liable to severe censure and punish muit for such an 
 ** infraction of it. But it appears from the t\idence, from 
 " the Petition of Appeal, and from another Petition now pre- 
 " sented to the court by the complainant himself and two other 
 ** persons, that the defendants went to the housj, in their cha- 
 ** rectcr of Peons, to serve a no'ice or ti ket upon the complai- 
 " nant for Palrole duty ; that on inquiry for Lira of his wife; 
 ** they received for answer from her, that he was not at home ; 
 " that one of the defendants then opened the lower half of the 
 ** <Joor, the upper half being already op<-n, and went into the 
 ** Hall; that he then handed the notice to the wife, telling 
 ** her to gire it to her husband ; that she refused te 
 ** receive it, and told them to wait till her husba:H got up 
 " [for it appears that he was not from ho.-ne, but lying on a 
 '* cot at the time] and then come back and give it to him; 
 ** that the defendant then put the paper on the cot, and went 
 ** away. T. is is the account given by the complainant's own 
 ** servant, and may fairly be supposed, th;>r?fore, to contain all 
 " that is favonraUe to the complainant. Whoever a 'vbed the 
 " institution of t'us | rosecuron seems to have confounded the 
 " law, which is applicable to entries made, as in the present 
 ** instance, for a pur. ose law ul i'self, with th;it w'i-h is ap- 
 ** plicable to Burglary. In order to consitute that oflvnc* ac- 
 ** cordingly to the law of England, an\ slightest dtgr j e of 
 ** Tiolence, the twining a key, or lifiing a latch, or unloosing any
 
 process. 537 
 
 " fastening is sufficient ; and this, on account of the felonious inten- 
 " tion of the offender, for if no such felonious intention appeared, 
 " he would be only a trespasser, even though the breaking took 
 " place in the niht. Whereas in the execution of civil process, or 
 "serving an order or notice like that in 'question, the officer en- 
 " trusted with that duty, though he would not be justified in breaking 
 " open an outer door, is fully authorized, nay bound in the execution 
 " of his duty, to gain admittance in a peaceable manner if he can; 
 *' and having gained that admittance, would even be justified in 
 " breaking open an inner door to effect his lawful object." 
 
 5. " The defendants are stated to be Peons; a word suffici- 
 ently known in this Island, as indicative of ministerial authority 
 in the execution of writs, notices, orders or process of any descrip- 
 tion. And this Court must presume that the order or notice left 
 at the house of the prosecutor was legal and regular ; because, if 
 it had been otherwise, he might, by the production of it, have 
 shewn-its illegality. The hour at which the occurrence took place, 
 does not appear from the evidence ; but as the wife of the pro- 
 secutor told the defendants, they had better go away and return 
 in the evening, it is to be inferred that the time was sufficiently 
 early in the day for the purpose of such service. The first answer 
 which she gave was, that her hushand was not at home ; and as 
 the defendants, in the execution of their ordinary duty, had pro- 
 bably learned that when a party on whom process was to be 
 served was from home, the paper should be either delivered to 
 an inmate, or be left at the house, they very naturally considered 
 it their duty, on the refusal by the wife to receive it, to go into 
 the house, for the purpose of leaving it either with some other in- 
 mate, or in some safe and conspicuous place. If they had, in the 
 first instance, been told that the complainant was asleep, they pos- 
 sibly might have gone away and returned ; though this Court is 
 far from saying that they would have been bound so to do. The 
 complainant, in his Petition of Appeal, speaks of " the peace of his 
 house having been disturbed," and of the "daring trespass" and 
 " brutal conduct" of the defendant : but there is really nothing 
 in the evidence,^ either of the complainant's wife or of his servant, 
 
 50
 
 (38 Process. 
 
 to warrant the use of these strong expressions. If the defendants 
 were authorized to serve this order or notice at all, and it is not 
 even asserted that they were riot, they appear tohavedon e no more 
 than their duty in the mode of serving' it." 
 
 6. " The Court has entered thus fully into the grounds of ils 
 judgment in this case, because, however small the amount of fine 
 imposed [on the defendants, and however insignificant the injury 
 which the complainant fancies, or has been made to believe, he 
 has sustained, it is of the utmost importance that Peons, and all 
 other Officers entrusted with the subordinate powers of Justice or 
 Police, should be kept most strictly within the limits of their au- 
 thority, and be examplarily punished for any abuse or wanton ex- 
 cess of it; and on the other hand, that they should receive from 
 this and all other Courts of Justice that protection and support, in 
 the hontst and legal discharge of their duty, to which they are by 
 right entitled, p.nd without which the efforts of higher authorities to 
 administer justice, r.nd maintain the public tranquillity, must prove 
 abortive. For ihese reasons, ?nd to discourage such vexatious and 
 unfounded prosecutions for the future, the Chief Justice, after con- 
 sulting with the Hon'ble the Senior Puisne Justice on the subject, 
 recommends that this decision be read and explained in the District 
 Court; in as open and public a manner as possible." No. 370 
 Negombo (criminal) 6th September Ib34. 
 
 7. We have seen, supra : p. 125-6 that in the District of Colombo, 
 in consequence of the inconvenience occasioned by processes and 
 subpoenas being delivered at the Fiscai's office, without allowing 
 sufficient time for tlie service and return, a supplementary rule of 
 the 3d December 1834, directs that they shall be delivered into 
 the Fiscai's office six days (for service within the gravets,) and ten 
 days (if without) before the day of appearance. 
 
 8. As r.gards the service of the process upon Soldiers, and how 
 affected by tlic Mutiny Act, see title "Debtor and Creditor." Su- 
 pra: p. 94 et sequel. See also titles " Contempt" "Copies" p. 69; 
 "Fiscal," "Practice," "Sequestration,"
 
 539 
 PROCTOR. 
 
 Admission in Supreme Court under 17th 'clause of Charter, limited as to 
 number, paragraph 1. So in District Courts; and certificate required 
 from District Judge, 2. Proctors of all District Courts admitted in Su- 
 preme Court, on Circuit, 3. Same Proctors, when admitted in several 
 District Courts, 4. General Attorney, when allowed to appear for his 
 principal, 5. No exception as regards Government, 6. But one joint 
 party, may appear for the rest, 7. It' defendant's proctor appear, no sum- 
 mons necessary, 8. Proxy necessary to appear in appeal, but not on 
 Stamp, 9. Prosecutors allowed to appear by Proctor, 10. Absence of 
 Proctors on hearing, &c. 11. Party bound by his Proctor's acts, 12. De- 
 ial by Proctor, of a fact admitted by his client, animadverted on. 13. 
 Notice by Proctor to opposite party, to appear, not binding, 14. Admis- 
 sibility as witness, 15. Proctors should not be bail for their clients, 16. 
 Nr act as Officers of the Court, 17. Their fees ought not to depend 
 on the success of the suit, 18. Supreme Court declined to give an opi- 
 nion to a Proctor on a matter of practice, 19. 
 
 1. As regards the admission of Proctors to practise generally, 
 in the several Courts, the 17th clause of the Charter authorises 
 the Supreme Court to admit as Advocates or Proctors in that Court 
 all such persons, being of good repute, as shall, upon examination 
 by one of the Judges, appear to be of competent knowledge and 
 ability: and ia case of refusal to admit any person applying for 
 admission, the Judges shall, in open Court, assign and declare the 
 reasons of such refusal. In acting upon this clause, however, the 
 Judges have exercised a discretionary power to refuse admission, with 
 reference to the number already practising and the quantity of busi- 
 uess to employ them. For, as has been observed by the writer on 
 the occasion of the amendments which he suggested to the Charter, 
 **if the number of Proctors be disproportioned to the quantity 
 pf business, some of them must either be without practice, or 
 maty be tempted to have recourse to unworthy means of crea- 
 ting business for themselves : And even though such malpractices 
 should not be the result of the bar being overstocked, still, the 
 business not being sufficient for the adequate support of all, their 
 independence and respectability, as a body, would, to a certain 
 degree, be impaired. For it must be recollected that the pro- 
 fession is only resorted to ia Ceylon as the real meana (and if
 
 Proctor. 
 
 pursued, it must be the exclusive means) of gaining a livelihood? 
 and never, as in England, merely for the sake of honorary dis- 
 tinctions." 
 
 2. The 51st clause of the Charter authorizes the S. C. to 
 make rules and orders of Court, among other subjects, for the 
 admission of Advocates and Proctors in the D. Cs. Up to. 
 March 1836, such admission to practice in the D. Cs. was by 
 order of the S. C. The reason for the adoption of this course 
 was the apprehension, just adverted to, f the number of prac- 
 titioners being disproportioned to the business ; to which may be 
 added the necessity of regulating the admission to all the D. Cs. 
 by one uniform system, and the doubts whether the District 
 Judges would always be able to resist the importunities of ap- 
 plicants for admission. The power thus reserved to the S. C. 
 may be truly said, however, to be one of mere negative restraint, 
 and not of patronage; for no such nomination, it is believed, 
 ever took place, but upon the District Judge certifying, 1st that 
 another proctor was required in his Court, and 2nd that the 
 person applying was fit to perform the functions. And where 
 a person applied to the S. C. for admission, requesting that his 
 application might be kept secret from the District Judge, it is 
 scarcely necessary to say that the S. C. refused to take it into, 
 consideration on any such condition. -r-Petition Book of 1835, p. 
 122 and 123, so where a proctor had been struck off the list, 
 the S. C. refused to reinstate him without the recommendation 
 of the District Judge. Id. 146. 
 
 3. The 17th clause of the Charter directs that no one shall 
 be allowed to appear on behalf of a suitor in the S. C., unless 
 duly admitted and enrolled : on circuit, however, it has been 
 the custom to admit all the proctors of each of the D. Cs. 
 within the circuit, to appear for their respective clients during 
 the sessions. A difficulty arose as to the mode in which proc- 
 tors under such circumstances should be remunerated, the table 
 of fees to be taken by the proctors of the S. C. being found t 
 be too high for the circumstances of many of the provincial 
 luitors ; aud as it would have been almost impossible to fram*
 
 Proctor. fit 
 
 a scale, applicable with equal fairness to all the districts in thf 
 Island, it was recommended that the Proctors should make ai> 
 rangements with their clients as to remuneration, before engag- 
 ing in the appeal. L. B. 28th February, 9th March 1835. See 
 also L. B. 16, 20. Novr. 1835, where the S. C. took occasion 
 to observe that any remuneration stipulated for ought to be pay> 
 able at all events, and net left contingent on the success of the 
 party; a practice which ought never to be introduced. 
 
 4. In some instances a proctor has been admitted to practice 
 in more than one D. C. But this has only been done, it is 
 believed, where the districts have been adjoining, and where the 
 double admission has been recommended by both the District 
 Judges, as tending to the convenience of suitors, the distribu- 
 tion of whose property may make it necessary that they should 
 be represented in beth Couris, and who may wish to have but 
 one legal adviser. But the S. C. has not thought advisable to 
 go beyond the recommendations so made in individual instances; 
 and it has refused to throw open the practice of two D. Cs. 
 to all the Proctors of each, indiscriminately. Petition Book of 
 4835 p: 45. 
 
 5. Tne question was on two occasions submitted to the S C., 
 whether a person, holding a general power of attorney for another, 
 could appear for his principal in a D. C., in which there were 
 no admitted Proctors. In one of the cases, the attorney had 
 appeared in the sui', before the new Courts came into opera- 
 tion ; and there seemed no irregularity in allowing him to re- 
 present his principal to the termination of' the suit. Letter Book 
 7. 13. November 1833. In the second case, it did not appear 
 that the suit had been instituted before the new Charter came 
 into operation ; but it was considered that the general attorney 
 might be permitted to appear for his principal, on one condi- 
 tion : It was observed that "one of the objections to this course, 
 
 that of infringing the 1st and 4th Rules, by which none but 
 admitted proctors (over whom the Court could exercise an im- 
 mediate controul) might appear on behalf of suitors, could not 
 te said to exist in the present case ; inasmuch as there were no
 
 543 Proctor. 
 
 tegular proctors in (he Court in question. But another objec-- 
 tion arose out of the privilege of mutual examination by "the par- 
 ties, which was one of the prominent features of the new system 
 of practice; if the cause of action had arisen out of transactions 
 or dealings between the general attorney, as agen f , and the per- 
 son whom he wished to cite as defendant, this objection also 
 would vanish; because he would, in that case, be as well or 
 better able to answer the questions of the opposite party, as 
 his principal would be. If this should not be the case, the per- 
 mission to sue should only be granted to the attorney, on con- 
 dition, and with the understanding, that if the presence of his. 
 principal should be required either by the oppo-ite party, or for 
 the satisfaction of the Court, the proceedings would be suspended, 
 until he should so present himself to the Court. Letter Book 
 24. 28. May 1834. 
 
 6. Inquiry was made by another District Judge, in one of 
 the Kandyaii districts, whether an exception was made of Go- 
 vernment cases, with respect to appearance by admitted Proctors j 
 and whether the Koralle or other Head of the Korle might 
 ppear on behalf of Government. To this, an answer was returned 
 that no exception was made with respect to Government cases, 
 as to their being conducted by persons substituted for the par- 
 ties, and not duly admitted to practice as proc-tors. It was, 
 however, suggested that a person should be recommended by the 
 Government Agent, to be admitted as a proctor for that purpose, 
 and that on the District Judge forwarding that recommenda- 
 tion, such person wou'd be forthwith admitted ; this course hav~. 
 ing already been pursued in several of the Randyan Districts, 
 Letter Book, 14th 18th November 1833. 
 
 7. We have seen that one of several joint parties may 
 appear for the rest, subject to the other parties submitting to 
 examination, if that should be required by the opposite side. 
 Supra. 225, 6. 
 
 8. A District Judge inquired whether when a proctor filed 
 a proxy to defend a suit, it was necessary to issue the sum- 
 mons to the defendant to appear, H was informed, in answer
 
 Proctor. 
 
 that if the proctor for the defendant, appeared on behalf of 
 his client, the summons to the defendant himself would be 
 superfluous ; lut that if the proctor merely filed his proxy, and 
 waited for the commencement of the action, then a summons 
 should i^sue, which might be served either on the defendant or 
 on his proctor, who would be bound to appear on the day fixed, 
 in default of which he would be considered in contempt. Let? 
 ter Book llth October 1833. 
 
 9, The Supreme Court has decided that a proxy is neces- 
 sary to enable a proctor to appear before the Supreme Court, 
 though he already held one from his client to represent hirp 
 
 in the District Court. Petition Book of 1835 p. 137. But no A 
 stamp is required before the Supreme Court, the stamp on 
 which the petition of appeal is drawn being regulated by the 
 table of Court Fees, with a view to cover all Court fees, incL 
 denial to proceedings in Appeal. Letter Book, 21st July, 3d 
 August 1835. 
 
 10. A District Judge applied to the S. C. for instructions, with 
 respect to permitting proe'ors to appear insrpport of Criminal pro- 
 secutions before the D. C. "without feeling inclined to object 
 to the employment of proctors for the defence, he considered the 
 spirit of litigation so prevalent, and the disposition to turn pri- 
 vate grievances into public wrongs so strong in his district, as 
 to render the advantage of afforrling any facility to the accusing 
 party very questionable." Ttte S. C. returned for answer " Thaj 
 it would scarcely be consistent with the ginral right of all par- 
 ties to be assisted by proctors, and would certainly not be in con- 
 formity with the practice observed in other D. Cs. to debar com- 
 plainants in criminal prosecutions from this advantage ; that some 
 description of offences, indeed, such as fori ery, conspiracy, per- 
 jury, and the like, from their nature and intricacy, required the 
 aid of legal assistance, in the due prosecution of the preliminary 
 inquiry ; so that even if the general rule were admitted, tha 
 D. C. would constantly be under the necessity of making ex- 
 ceptions to it ; that the prevalence of a spirit of litigation, and
 
 544 Proctor. 
 
 of a disposition to lurn private grievances into public wrongs, was 
 iio doubt to be lamented, but if the proctors did their duty, they 
 would discourse any attempts to make the criminal juris 'ictiori 
 of the Court subservient to private interests ; that as the sx- 
 cuse of ignorance, which parties themselves so frequently claimed, 
 could not be allowed to their proctors, the D. C. would not 
 fail to animadvert on the impropriety of their undertaking to 
 conduct cases in the shape of criminal prosecutions, wlibh they 
 ought to know, and to advise their clients, would more properly 
 form the subject of civil actions; and that a refusal to allow the 
 proctor his costs in cases in which no doubt could be enter- 
 tained that they did not form the subject of criminal inquiry, 
 would soon check any inclination to give wrong advice on this 
 subject, if such inclination should unfortunately be found to exist.'* 
 L. B. 29 January, 1st February 18"6. 
 
 11. The foregoing points are all that present themselves on 
 the subject of the admission and admissibility of proctors to 
 practise. As regards the intimate connexion which necessarily 
 exis's between a proctor and his client, we have already ob- 
 served that as the proctor stands in the place of his client, the 
 consequences of the proctor's non-appearance in Court, when his 
 appearance is required, ajre the same as if the party himself, 
 when not represented by a proctor, were absent : Though, ill 
 order to prevent parties suffering from the negligence of therr 
 praetors, the S. C. has been inclined to afford them relief, when 
 that could be done without injustice, the proctors paying the 
 costs incurred through their default. Supra, title "Practice" 
 par. 3 and 14. Where a plaintiff's proctor withdrew his proxy, 
 declining any longer to act for the plaintiff, Mr. Justice Norris 
 
 decided that this was no ground for dismissing the action, at 
 
 ti 
 learn without due notice being given to the plaintiff. No. 7654 
 
 Jaffna. 
 
 12. As a general rule, and as a necessary consequence, in- 
 deed, of the relative situation of proctor and client, every party 
 is considered bound by the acts of his proctor. Thus, where 
 a plaintiff's proctor waived some of his witnesses, and the cass
 
 Proctor. 545 
 
 \vas afterwards dismissed ; the S. C. would not admit as a reason 
 for directing further inquiry, that all the plaintiff's witnesses had 
 not been heard. For it was to be presumed!' that the Proctor 
 would not have waived them, if he had " not considered their 
 evidence prejudicial, or at lenst unnecessary, to his case ; No. 
 2S5, Putlam, 26th June 1834, on circuit. And this, it will be 
 observed, is entirely different from the refusal by the D. C. to 
 hear all the witnesses of a party, the effect of which w;is con- 
 sidered under title " Evidence," p : 148. In the same case from 
 Putlam, the plaintiff endeavoured to set aside an agreement of 
 accord, satisfaction, and release, on the ground of an [alleged 
 interpolation of one of the clauses of the agreement : But it 
 appearing that the clause in question was introduced with the 
 consent of the plaintiff's proctor, that objection also was over- 
 ruled, both in the D. C. and in appeal. So in a case which 
 has been mentioned under title " Pleadings," par : 4, where the 
 deiendant's proctor admitted the amount claimed, though he 
 contended that the plaintiff was not the person entitled to sue, 
 the D. C., and the S. C., in appeal, having over-ruled the latter 
 objection, decided that the defendant was bound by his proc- 
 tor's admission, and could not now allege with any effect, that 
 the proctor was not authorized to make such admission. No. 
 723 Galle, 7ih March 1835, on circuit. 
 
 13. An admission, once made by a party, cannot afterwards 
 be retracted. A defendant, being sued on a bond, admitted 
 the instrument, and pleaded part payment, for which he offered 
 to produce receipts. At the trial, the defendant's proctor denied 
 the bond altogether. The D. C. decided en the plaintiff's prer 
 vious admission, and no proof being offered of the payments, 
 decreed in general terns for the plaintiff. The defendant Ap- 
 pealed on grounds undeserving of notice. Bat in affirming the 
 decree, the S. C. ft It compelled " to observe on the extremely 
 improper course pursued by the defendant's proctor at the trial, 
 in denying the bond which his client had previously admitted, 
 and which he alleged he had partially satisfied. In adopting this 
 contradictory liue of defence, the proctor ought to have knuwu 
 
 51
 
 646 Procter. 
 
 tbat he was lending himself to (he dishonest object of defeat* 
 ing or delaying the just and admitted claim of the plaintiff, 
 without rny chance of ultimately benefiting his client." No. 2424, 
 Batticaloa, 17th October Ib34. 
 
 14. A question of some impor'ance, as a matter of practice 
 among proctors, was submitted for the consideration of the S. C. by 
 one of the D.J. Whether it was regular or legal fora Proctor, of his 
 vm authority, and without the intervention of the D. C. or 
 any intimation to the Procter on the other side, to send notice 
 to the opposite parly to appear before the court and produce 
 documents; or whether such notice ought not to proceed from 
 the court, on regular motion for that purpose; when the court 
 would form its opinion of the sufficiency of the ground stated. 
 The right to issue such notice was supported ou the ground 
 that the practice existed, and without opp< sition, in the Co- 
 lombo Courts; that as each party had an undeniable right to 
 examine the other at any stage of a case, an applica ion to the 
 court was unnecessary, except when there was reason to suppose 
 that notice from the Proctor would not be attended to, and that 
 intimation to the opposite Proclor could scarcely be necessary, 
 since the party, whose presence was required, would never fail 
 to consult his Proctor on the subject. On the other hand, 
 the practice was opposed, on the ground, that it was an in- 
 fringement on the authority of the court, and that a p-^rty was 
 not Louiid to r.ay t-ny attention to such not.ce from a Pio'jtor. 
 After making si me ii quiry on the subject, the S. C. directed 
 the fo'owi.g answer to be returned: "It appears that it has 
 not Ucn uncommon in the D. C. of Colombo, lor Proctors to 
 send nonce to the tj r.osi'.e \ aitii?, either to give their personal 
 attendance, or to \ reduce documents in court. It would, howr 
 ever, be better, in the opinion of the Judges, that this practice 
 [considering the no ice as an order to appear] si ould be dis- 
 continued. For though the object of the PiO'jtor would no 
 doubt be to expedite the progress of the suit ; that object would 
 be accomplished with greater certainty, and with Lss risk ol 
 jftcouveuieuce, by pursuing the more regular course, o: 
 
 ' * * **
 
 Prottor. 
 
 Oon either to the opposite Proctor, or, if no Proctor were en-" 
 gaged, or if he declined to interfere, to the D. C. with greater 
 6erainty; because, as the Proctor has no authority to compel 
 the attendance of the opposite party, it would be optional with 
 such party, whether he would comply with the r-quisition, or 
 not; there would be less risk of inconvenience ; because, when 
 a party appears or produces a document by order of court, or 
 by the advice and consent of his own Proctor, it must be pre- 
 sumed that such appearance or pioduction was necessiry and 
 proper. W'lereas the opposite Proctor, with the best intentions, 
 may be mistak?n in supposing that he has a right to call upon, 
 the adverse party for the purpose proposed, at the particular 
 stage of the case in question. And though, as already observed, 
 the party so called upon might decline the summons, still he 
 would often, fro:n deference to the Proctor, or from imagining 
 that the latter really had a rig'it so to call upon him, comply 
 with it. Such attendance might turn out to be mistimed or 
 nse'efs, or, if his own Proctor were not present, the party might? 
 tnake admissions, or produce documents, to the reception of w'lich 
 his Proctor might have objected. Toe rule on this subject may 
 bri fly be stated thus: If mere notice of an intended motion 
 or st?p in the suit be necessary, such notice shou'd be served 
 by the Proctor or his clerk on the opposite Proctor, if one be 
 engaged, otherwise, on the party himself: But the order for at- 
 tendance or for any other act to be done by the opposite party, can 
 only be issued by thecourt; and if issued by the Proctor, or from 
 any other sources, is a mere nullity. The ord?r of court, how- 
 CTer, is frequently and most properly rend .-red unnecessary by the 
 opposite Pro j tor, not the client, undertaking that the thin^ re- 
 quired shall be done without a formal application to the court." 
 Letter Book 5 17 December 1835. 
 
 15. With respect to the admissibility of a Proctor to give 
 Evidence for or against his client, see Title "Evidence" p. 139. 
 
 16. On a prosecu ion for a breach of the peace, two of the Proc- 
 ters of the D. C. became sureties for the defendant The S. C. ex* 
 pressed its disapproval of "this practice; observing " that though to*
 
 549 Proctof. 
 
 Proctor was bound to exert his utmost zeal, industry, and talents, 
 in support of his client's interests, as tar as was consistent with 
 good faith and honorable feelings, s'ill he ought to do nothing 
 which in any degree identified him with his client, as regarded 
 iute-est in the suit or prosecution; bocause, the moment he 
 became so identified, he ceased to be the free and independent 
 character, which could nl-ne rsure the proper and unsuspected 
 discharge of his duty." No. 52 Caltura [Criminal] 28th October 
 1835. So where a Proctor became surety in appeal, in a civil 
 case, for his client, the S. C. expressed i's doubts of the propriety 
 ef such a course. No. 197-5-21 Matura, 20th March 1835, on 
 circuit. In England, an attorney is not admitted as boil, in civil 
 cases ; but there is an authority for his being received in that 
 capacity, in criminal cases. Douglas, 466. 
 
 17. The impropriety of a Proctor acting at the snme time 
 in that capacity, and :>s Secretary of the D. C., has been noticed 
 under Title "Officer of Court." And where one of the grounds 
 on which a defendant endeavoured, in appeal, to set aside a sale 
 in execution, was that the Plaintiffs Proctor was the person who 
 executed the sale on behalf of the Fi;-cal ; the S. C. observed 
 that, though there w;;s nothing illegal in a Proctor acting as a 
 Fiscal's Deputy, still it would be well that he should not act 
 in that double capacity, in a case in which he had been con- 
 cerned for one of the parties; No. 14. 136. Caltura, 11 June 
 1834. 
 
 18. It has already been observed under the Title "Cosls" 
 p. 10 that any agreement, by which the payment of the Proctor's 
 fees is made' to depend on the success of the suit is highly 
 reprehensible, and has never failed to be strongly animadverted 
 upon by the S. C., whenever such an arrangement has been brought 
 to its notice, see also par. 3. of this Title. It would be going 
 too far to say that such a contract is absolutely illegal ; indeed 
 there is a case, if the writer be not mistaken, in 3 Starkie, in 
 which Lord Tenterdou admitted evidence of some such agree- 
 ment: But that it is mischievous as regards the public, and 
 highly disreputable in the Proctor, there can be no doubt. Nor
 
 Proctor. 54$ 
 
 fs this to be considered as a mere fastidious nicety, bid dowa 
 by the profession in England. The commentator, to whom such 
 frequent reference has been made in th^se notes; in speaking of 
 Dutch practice in this respect, says, " every agreement between 
 Advocate and Client for a share of the object in dispute is cor- 
 rupt. For though a plaintiff arid defendant may be permitted 
 to compromise, as putting a speedier end to litigation, such 
 contracts between client and counsel have no such tendency, but 
 rather increase the disposition to chicanery and unjust conten- 
 tion; and therefore such partnerships in the hoped-for gain 
 have most properly been condemned: And Advocates are now 
 bound by a solemn ath not to engage in such compacts; and 
 they are especially prohibited in Holland from stipulating with 
 their chants, that they shall receive their fees, only in the event of 
 success." Voet, lib. 2. tit 14. par: 18. The next paragraph 
 of Voet relates to the medical profession, as to which we have 
 already seen one case, in which this point came under consi- 
 deration. Title "Obligation", par. 10. As regards costs in ge- 
 neral, see that Title p. 70 and seq. 
 
 19. A Proctor of one of the D. C., having applied to the 
 Chief Justice for instructions on a matter of practice, was in- 
 iormed "that if a judge were to comply \u'.h his request in one 
 JHstance, he could scarcely refuse to answer similar questions 
 from Proctors, on all occasions, and beside?, that an opinion, 
 so conveyed, might bring the S. C. into unseemly collision with 
 the D. C., since the latter might not consider itself bound to 
 adopt an opinion, thus extrajudicially given, not to the Court 
 itself under the 47th Rule, but to one of the practi;ioners of 
 the Court." Letter Book 13 16. June 1834. See also " Pleadings," 
 "Practice," " Motion," arid other Titles. 
 
 PROMISSORY NOTES, BILLS &c. 
 
 1. The only case which appears to have been decided on 
 this subject by the S. C. is one which, from the peculiarity 
 of its circumstances, is not likely to serve as a frequent prece-
 
 550 Promissory Notes, "Bills 8fc. 
 
 dent for other cases. It wns an action brought by the Govern* 
 ment Agent of the Central Province against the Shroff of his 
 Cutcherry, for the balance of their private accounts, which was 
 claimed by the Plaintiff, but which the Defendant alleged would 
 be found to be in his favor. After mutual examination ar k d 
 admissions made by the parlies, the only questions for the decision 
 of the D. C. were 1st as to a sum of 80 which the Defen- 
 dant alleged he had paid to the Plaintiff, but which the latter 
 said he had never received; Sridly as to whether the Defen-r 
 dant was entitled to charge commission. The decision as regards 
 this latter point will be found under Title " Commission," sujirft 
 40 and seq. 
 
 The instrument, on which the Defendant claimed credit for 
 ilSO and which he produced, was as follows. 
 ''PRIVATE ACCOUNTS." 
 
 " SHROFF; 
 
 I want eighty pounds in ten pound notes." 
 
 " 10 G. TURNOUR.'' 
 
 " Kandy 3d April 1835." 
 
 The D. C. rejected the claim of the Defendant, and the case 
 being brought in appeal before ihe S. C., and having been very 
 fully argued on both sides, the following judgment, as regards 
 the first point, was pronounced as the unanimous decision of the 
 Court. The facts of , the case will appear from the judgment itselfl 
 The only point bearing on this question, (which it seems neces- 
 sary to advert to, is the absence trom the Culcherry 01 any 
 notes ot 10 on the 3d April, and tor some months before, 
 winch circumtance was proted by the Plaintiff. 
 
 2. " The bciy of this instrument, it is admitted, is in the 
 handwriting of the Defendant, the signature, it is equally admit* 
 ten, is the real signature of the Piaintitf, who however denies 
 that he ever signed the paper for this purpose, or that he ever 
 received the amuimt. Aud he, therefore, calls upon the De- 
 fendant to prove that (act. The Defendant admus that he is 
 nnabie to prove payment, but he contends, 1st that thi instru- 
 ment is, of itself, and more especially considering the course of
 
 Promistory Notes, Bz'fts fyc. 51 
 
 dealing between Ihe parties, [by which it appears that other 
 sums of money have actually been received by the plaintiff on 
 similar documents] puma" facie evidence cf this sum having 
 been also received by the Piaintiff, and that it lay on the 
 Plaintiff, therefore, to shew that he had not received it. And 
 it is further contended, secondly, that the evidence which has bees 
 adduced by the Plaintiff does not go to that extent. The pre- 
 vious question is the one of most importance, bath as a general 
 question of Law, fas to the validity of such an instrument^, 
 and as affecting this case. Because, if the instrument be de- 
 clared insufficient for a party to recover upo, it will be unneces- 
 sary to consider, whether the evidence brought forward by the 
 Defendant be sufficient to justify the D. C. in its opinion that, 
 in point of fact, the money has never been pai^. 
 
 8. As to the legal validity, then, of this Instrument, without 
 proof of payment. The instrument in commercial u-e in England 
 to which this would most naturally be compared, though the 
 comparison is rather more fa\orable to the document before the 
 Court than its tenor strictly warrants; is a check on a Banker, 
 drawn payable to "self" or bearer; a form which is frequently 
 adopted when the customer draws upon the Banker for money 
 for his own immediate use. But allowing this comparison to 
 be justifiable by the terms of the present instrument, there is 
 this difference between the two cases ; That there is no inter- 
 mediate party between the Plaintiff and Defendant, by whom 
 any light could be expected to be thrown on the subject. The 
 transaction, if it ever took place at all, was between the Plain- 
 tiff and Defendant, and them alone. Whereas the business ot 
 a Bankinghouse. being conducted not by the Principals, but by 
 their cleiks, may be deposed to by witnesses, perfectly compe- 
 tent and disinterested. In looking through the cases, which hare 
 been^ decided iu England on the subject of Banker's checks^ 
 it is remarkable that the question whether the bare production 
 of the check by the Banker, wiih no proof of payment except 
 the signature of the customer, and the possession of the check 
 by the Banker, shall be sufficient to entitle the Banker to re?
 
 Promissory A T ofrs, Bills fyc. 
 
 the arr.ount, never appears to have arisen. Whether , 
 be accounted for by the Law being- too clear, on general pr'in* 
 fciples, to admit of a donbt, or from that extreme regularity of 
 transacting business, which would enable the Bankrr's clerk to 
 say at once, by reference to Books and private marks, whether 
 Such a draft had been paid or not, and thus prevent, the ne- 
 cessity of trusting to the bare production of the ctvrk, i 
 not necwsary to inquire. It has, however, been decided that the 
 bare production of a check, by the lender of money, is no proof 
 of the alleged borrower having rec-eived the amount ; unless 
 endorsed by the" borrower, as having been receiver! ; so, by ana- 
 logy to decisions on Bills of Exchange, to which the law of 
 Promissory Notes and Banker's checks is always referred, as de- 
 ducible from the same principles, the indorsor of a Bill of Ex- 
 change cannot recover against the acceptor, by the mere 'pro- 
 duction of the Bill, without the receipt of the endorsor, or some 
 other proof of payment. And many other decisions are to be 
 found in which the same principle is recognized. If, then, the 
 bare production of a check by a Bai.ker would not be sufficient 
 to entitle him to recover upon it, if his customer denied the 
 payment, a fortiori is the instrument before the Court insufficient 
 for that purpose, without some proof of its having been paid. 
 For, unlike the Bunker's cl.e, k in this respect, that the latter 
 instrument would se'dom, if ever, according (o t } le course o f 
 the tanking business, rtmHn in the Banker's hands, unkss it 
 had been sa'isfied, ;m d the production of which is therefore 
 strong presumption, though not conducive evidence of payment, 
 this is, ?s the D. C. has stylrd if, a mere requisition, not trans- 
 ferable, which may or may not have be n complied with, and 
 which indeed was to be complied with in a particular way viz. 
 by payment in notes of a certain amount. It is, indeed, some 
 what in the nature of a Bill of Exchange payable to the dnwer, 
 but of which tin re is no proof of acceptance or payment. And 
 though the permi ;ino s uh a requisition to re:nain in the hands 
 of the Defendant, if not complied with, would have been an 
 act of the most gross and culpable negligence, still the bare
 
 Promissory Notes fyc. 553 
 
 ssession of it cannot be said lo raise any thing like so strong 
 a presumption of payment, as that of a Banker's check which, 
 according to the course of that business, would be returned, on re- 
 fusal of payment, lo the person presenting it. Such being the 
 oj.inion of the Court is (o the legal validity of this instrument 
 it rr/ay be unnecessary to consider whether the evidence of the 
 Plaintiff be sufficient to sustain the opinion of the D. C., that 
 the amount has never betn paid; because if the Defendant could 
 not demand judgment on the instrument, without proof of pay- 
 ment, it was in truth unnecessary to call on the Plaintiff to rebut 
 the supposed presumption of payment. 
 
 4. The opinion of the Court upon this point having been 
 explained to the Assessors, two of theoi state their opinion that 
 the Defendant ought to have credit for the sum of 80, and 
 being asked whether they found that opinion on the Law of 
 the case, or on the circumstances as they appeared in evidence, they 
 answer on the latter. This makes it right that the S. C. should 
 express its concurrence in the opinion of the D. C. on the 
 evidence adduced, that this amount has never been paid. The 
 Court would gladly have avoided entering into this part of the 
 case, because whatever view is taken of the cirturrstances must 
 be a painful one. It is clear, from a single glance at the 
 proceedings, either that the Plaintiff's memory is most lamen- 
 tably defective, or that he has denied the payment most wick- 
 edly and dishonestly; or that the instrument is a forgery, that is, 
 that the" body of it has been added to a signature obtained for some 
 other purpose. But of these three alternatives the first, which 
 is that to which the Court would g'adly incline if it where tena'jle, 
 becomes almost impossible, if the circumstances under which 
 the instrument is alleged to have been executed are considered. 
 The instrument is dated the 3rd of April, and the money is stated 
 to have been paid to the plajjitiffon the same day. On the 8th of July 
 the Plaintiff disclaims in Court all knowledge or recollection of it. 
 Is it possible then, oz indeed he himself asks, that this Draft, 
 being for a much larger cum than he was accustomed to draw for, 
 ahould have been drawn and paid, and yet have entirely faded from 
 
 52
 
 554 Promissory Nctes fyc. 
 
 his memory, in the s-iort space of three months? The circumstance 
 under whic i it was drawn mu-^t have been somewhat peculiar to re- 
 quire the payment in 10 notes, and must, therefore, have impressed 
 the transaction on his recollection: and it must again have been 
 forced upon the plaintiff's notice, if it ever took place, by the 
 def ndant paying hhn, as the defendant states, only partly in notes 
 of that amount; a circumstance which it is to he presumed the 
 defendant would have observed upon and accounted for at the 
 time of paymrnt. It is in vain, therefore, to attempt to ascribe 
 this difftrence between the rarties to defective recollection : and the 
 C( :urt is, therefore, rtmpelled to make the lest election it can be- 
 tween the two painful alternatives which remain. It frequently 
 becomes the duty of Courts of Justice to dis'inguish between moral 
 conviction, arkii-g from knowledge of character, or other extrin- 
 cic causes, and that which is pr< fluced by the evidence in the 
 case. It is especially the duty of the Court to n>ake that dis- 
 tinction in ;he prtsent instance, lest it should be unduly influenced 
 by the reputa'ion for high honor which the plaintiff is so well 
 tnawn to ei joy. But the Court ccnsiders that the defendant, 
 though not so well known, stands before it without a laint upon 
 his character, ai.d is eniiiled to all the considt ration due 10 an 
 Lonest man, as far as all his former actions are concerned. For 
 thcugh he appears to have been removed from his situation of 
 Shroff, the gnund of that removal, as far as appears, may have 
 been one not at all rffec'ting his character f< r integrity. Taking the 
 parties, therefore, to Ve before the Court on a perfectly equal foot- 
 ing;, the ques'ion is whe'her fr<m the circumstances as tliey ap- 
 pear, either proved or admitted, the probability is that this draft 
 or o'.der was really dmwn by and pai I to the plaintiff, or that it 
 was not. There are two circumstances, which mainly induce this 
 Court to adopt the latter opinion. First, it appears in the highest 
 degree' im | rol able that, at the lime vtfien the defendant's conduct 
 had become subject to suspicion, either party, plaint ff or defendant, 
 would hove cont tilled himself with a document, so loose in its 
 terms, and implying such pcrfict mutual confidence, as that before 
 the Court. That these suspicions had been entertained, at least f
 
 Promissory Note* #e. 55i 
 
 Vr1y as the 3d of April, is rot mere'y stated ; it is almost evident 
 firm the circumstance that the cleftnelant was actua'ly removed 
 or suspended on the 6ih or 7th of that month. Second'y, the ab- 
 sence of any i;o'es f 10 in the Cutcheny at the time, and for 
 acme months previously, though not perhaps so absolutely con- 
 clusive ; s the District Co\irt seems to have considered it, certainly 
 adds great weight to the improbability of this payment having been 
 m.'ide. It has been argued for the defendant, that he was not 
 necessarily obliged to have recourse to the Cutcherry chest ; and 
 he has instructed his Counsel that in fact he took the notes from 
 his own house. Now as far as the Court can undersland the nature 
 of a Shroff's situation, it appears both an act of ' extraordinary 
 carelessness, as regun's his own interests, and a dereliction of duty 
 towards bis employer, 'o keep so large a sum in his own house, 
 where it would be comparatively unprotected, instead of availing 
 himself of the security afforded by the Cutcherry, a security which 
 must be supposed to form the chief object of the plaintiff, in en- 
 trusting his Sliroff vvi h his private money. For though ihe go- 
 vernment disclaims all responsibility for private property, still it 
 setms that ihe bolts and bars may be made available for private as 
 well as public money. But it seems scarcely conceivably if the 
 payment had been made in this way, that the de r endant, when exa- 
 mined with so much particularity as to the details of that payment, 
 thcu'd not have mentioned the circumstance of there being no 15 
 notes in the Cutcherry, and of his having consequently fetched the 
 amount from his own house. Then ag iin, when the evidence was given 
 at the trial as to the absence of notes of that amount, it might natu- 
 rally be expected that the defendant would have offered this expla- 
 nation, in order to shew the inconclusivenesa of the evidence; and 
 would also Lave a ked to call witnesses to shew that he was in 
 possession of notes of that value at the time in question. For 
 unless it be supposed that the defendant had kept t; is sum of 80 
 in his house, in notes of 10 and 5, during the whole peiiod in 
 which notes to that amount were not to be found in the CutcherrVj 
 he surely could* have proved the leceipt of some of them by one or 
 feore persous. This Court feels satisfied that such au explanation^,
 
 558 Promissory NolesSfc. 
 
 or such application to adduce evidence, would have been received 
 and recorded, if it had been made in the Court below ; yet it is not 
 till this day, that the paymnit seems to have been attempted to be 
 accounted for in this m inner. There are some minor circum- 
 stances, on which some stress has been laid, as tending to s lew 
 that this payment could not have been made, but which do not 
 seem to demand much consideration. The absence of Colonel 
 Lindsay at the time in question is not entitled to much weight, be- 
 cause the defendant only slates his supposition that the money might 
 have been required for the use of that gentleman ; he by no means 
 states it as a fact. So with respect to th.3 largeness of the sum, 
 and the inconvenience of notes of so high an amount for personal 
 use; these circumstances as has been previously stated, could 
 scarcely have failed to leave a strong impression on the (plaintiff's 
 memory; but it is difficult to say what degree of improbability 
 might attach to a requisition couched in those terms, if the trans- 
 actions were impeached on no other ground. Tue entry of so 
 large a sum in the Account Book, " hastily in pencil,'-' certainly 
 does appear singular and even suspicious ; but here again the Court 
 is not sufficiently informed as to the degree of accuracy and pre- 
 cision required generally by the plaintiff in the accounts kept for 
 him, to be enabled to judge how far this loose entry may be at va- 
 riance with, or consonant to, the rnude of dealing usually adopted 
 between these parties: principally, therefore, on the two grounds 
 first stated, the Court, with the exception of two of the Assessors, 
 is of opinion that this draft or order was never paid by the defen- 
 dant to the plaintiff. Consi lering, therefore, first, that the bare, 
 production of this instrument was not sufficient to entitle the de- 
 fendant to credit for the amount, without proof of payment: and, 
 Secondly, that there is no proof of that payment having taken 
 place, the decree of the District Court as regards this claim of the 
 4efendant, is affirmed." Mo. 7184, Kandy, '2d December 1835. 
 
 5. As t' demanding Nantissement on Promissory Notes, or 
 Bills of Exchange, see title " Nantissemeut," paragraphs 1Q & 11
 
 PROSECUTION. 
 
 pivil rights not to be tried in the Criminal Jurisdiction. Paragraph 2. 
 Nor prosecutions for offences, or (or the recovery of penalties in the 
 Civil, 3 & 4. Should proceedings under Colombo Police Ordinance 24 
 & 25 be Civil or Criminal ? 5. Distinction between confiscation and fine, 6. 
 Pleadings: charge should be distinctly explained : different Offences or 
 Laws not to be mixed : clause of Regulation relied on should be pointed 
 out: charge must not be shifted, to meet the evidence, 7 to 10. Plea 
 of Guilty, if qualified, must be taken altogether, 11. Defendant under 
 No. 3 of 1834 17 called on to admit or deny contract, 12. Sale of 
 Sequestered property, 13. Case referred by King's Advocate to District 
 Court for decision, presumed to be one of minor importance, 14. 
 Transfer to another District Court, 15. Defence before District Court, 
 16. Conduct of Complainants : Motive in prosecuting: Collusion for pe- 
 nalties, 17, 18. False or frivolous prosecutions, 19, Complainant's con- 
 duct received in extenuation of defendant's: Mutual security for the 
 peace, 20, 21. Nominal punishment for false imprisonment, complainant's 
 conduct being unjustifiable, 22. Compromising and withdrawing prose- 
 cutions to be allowed with caution, 23. Convictions for the theft set aside, 
 owners not appearing, 2J. Dismissal for want of evidence does not amount 
 to acquittal, 25. Convictions for higher offences set asidej 26 & 27. 
 Appeal against dismissal referred to King's Advocate, 28. Nolle proseqni 
 by King's Advocate in District Court, 29. Defendant discharged and 
 received aa a witness, 30. Security sometimes required, though specific 
 offence not proved, 31. Course of proceeding on nuisances, and similar 
 prosecutions, 32. Supreme Court generally relies on District Court as 
 to credit due to witnesses : two cases on this subject, 33. Courts cannot 
 convict on a mere local order, passed without legislative authority, 35, 
 Nor on rent conditions, whether as against renter, or third parties, 
 36. Indecent exposure of person punishable, independent of any express 
 law, 37. Persuading a girl of mature age to marry without consent of 
 parents, held not to be a criminal offence, 38. Prosecution for an al- 
 leged fraud on the Post-olfice ; several points touched upon, 39. Toll 
 RegulationjNo. 3 of 1831 questioning the demand in a 'dwubtl'ul case, not 
 "an attempt to pass" &c. within the 2d clause, 40. Toll properly 
 payable at the place, where Toll-house is erected, 41. Customs Regu- 
 lation No. 9 of 1825: Landing or shipping goods at an unlicensed place 
 makes them liable to confiscation, but does not bring parties within 
 section 63, so as to subject them to the penalties thereby imposed for 
 obstructing the officers : Such obstruction punishable at common law, 
 which, however, cannot be resorted to on a prosecution on the Hego- 
 lation : to which, the defendant has pleaded and made admissions, 42,
 
 58 Trosrcvtion. 
 
 W. fn'rniinn to land goods not an a'tempt within the 60tto and R2$ 
 : . es . 44. Delay in revenue prosecutions should be .satisfactorily ex* 
 plained: witnesses for defence to be always heard, 43. Want of re 
 ceipt or permit not, of itself, sufficient to condemn goods seized at a 
 distance of time and place from those of importation, 46. Arrack Or- 
 dinance, No. 5 of 1834: Clauses 1 and 5, License to distil in a garden 
 protects Arrack found therein, though not with the Still, 47, 48. Clause 
 II: positive proof of drawing toddy necessary; leaving the trees cou- 
 pled, and chatties in them, not sufficient, 49, 50, 51. Clause 14; Ac- 
 tual sale must be proved, intention not sufficient, 52. Clause 19; Is a 
 purchaser above two quarts, without certifica'e, liable to penalty ? At 
 all events, it must be positively proved above that quantity, 53. Clause 
 23 ; Person removing arrack not liable, because the renter exceeds his 
 authority in granting permit: otherwise, if permit itself be defective: 
 Prosecution for removal from one division to another, not supported by 
 evidence of removal from one place to another in the same division, 
 par. 54 to 61. Clause 27, Act of removal not sufficient to convict 
 as owner, 62. Clause 31, Term of imprisonment for fine unpaid under 
 1, par. 03. Cinnamon Regulation No. 5 of 1833 Clause 6; Removal 
 protected by Permit from Government Agent, of the Province, to which 
 the removal is to be made : Removal of less quantity protected by a 
 permit for larger quantly, distinction between Cinnamon and Arrack in 
 this respect, G4 and 6,1. House and Cart Tax, Ordinance No. 4 of 1834, 
 Clause 8, Cart coming into Colombo from the countiy. not a paying, 
 so as to make a license &c. necessary, 66. Penal regulations to be strictly 
 construed, 67. Reference to other TLles, 68. 
 
 1. In laying before the public the somewhat numerous deci- 
 sions, which have been pronounced by the Supreme Court on the 
 subject of prosecutions, the most convenient arrangement will be 
 to mention first those which app'y to tie cours? of mmiail pro- 
 ceedings in general ; and afterwards those by which the legality 
 of certain convictions and acquittals for particular offences was 
 examined and determined. 
 
 2. The Courts are frequently called on to prevent parties avail- 
 ing themselves of the Criminal jurisdiction for the assertion of 
 mere civil rights; an attempt, to which the exemption of criminal 
 proceedings from stamps offers no doubt a strong temptation. 
 We had occ sion under title "Pioctor" par. IU, to observe on 
 the disposition among the natives to turn private grievances int
 
 Prosecu'ion. 55 
 
 public wrongs, for the purpose of making the Criminal Juris- 
 diciii n siibservimt to their private interests; audit was suggested 
 that any disposition on the part of Proctors to encourage this per- 
 vcrsi n of authority ought to be animadverted up m and defeated. 
 In one or tw cases which have come be f i-re the Supreme Court, 
 the real ground of complaint has obviously been of a civil na- 
 ture, as, to establish the right to land or trees; but whi.-h the 
 complainant has endeavoured to veil, by an account puroly ficti- 
 tious, of violence actually committed or threatened, in orl ci r <o <jet 
 the case entertained on the criminal side of the Distri ( Court. Where 
 jiosecutiois of this na ure have been dismissed, the story of the 
 Violence being d.shelieved by the District Court, the dismissals have 
 been affirrmd in appeal without hesitation. No. 537, Amblanffod- 
 de, -21.M October 1835. No. 30, Amblangodde, 2()ih January, 1836. 
 3. On the ottur hand, if the Dis'.rict Judge feels satisfied that 
 a breach of the peace has been con mi tied, or is even to be ap- 
 prehended, he clots right to treat the case criminally, if it be 
 brought before him in that light, even though the origin-it subject 
 of dispute between the parties may have related to civil rights. 
 Thus, on a convic ion for taking by force the produce of a field 
 which In d lately been adjudged to the Complainant by a decree 
 in a civil case, the defendant appealed against the loaviction, on 
 the ground that the subject of complaint, if any existed, was a 
 civil injury, and should Lave been so treated. But the Supreme 
 Court aif.infd tie (onvictirn, observing "That there could be 
 no doubt from the evidence thfet the defendant had taken the pro- 
 duce from the field adjudged to the complainant, and that he so 
 took it by mear.s of violence and intimidation that whether his ob- 
 ject in so doing w; s to appiopriate tlv grain to bis own use, or to in- 
 jure the complainant, was of little importance on \he present en- 
 quiry ; for whether his intention wire theft or malice, the means 
 he employed for effecting his object rendered him equally liable 
 to a criminal prosecution, and that the Supreme Court could not 
 have approved of such an outrage, which, if resisted, would pro- 
 bably have led to murder, being treated as a mere civil trespass." 
 *~No. Caltura, 7th October, 1835.
 
 360 Pfosecvtitifi. 
 
 4. On the question, therefore, to which branch of jurisdiction 
 a case should be referred, the District Courts must exercise their 
 discretion, which may, in most instances, be done, after hearing 
 the respective statements of the par ies. In a case which will be 
 mentioned presently more fully, w'i'-re a civil action was brought 
 for a trespass, as being in contravention of a District order, by 
 which a penalty was imposed on trespassers, the District Court 
 convicted and fined the defendant^. Noda-na<jes, in the civil sense 
 of the word, were claimed or pr 'Ved. The Supreme Court set 
 aside the conviction as illegal; but the judgment of reversal ob- 
 served : "That if the penalty could legally have been enforce;!, 
 the course of proceeding ought to have been on the criminal 
 side of the Court, by which the defendants would not have been 
 put to the expense of stamps; that as they had beer) incurred, 
 and as it was not just that the defendants should bear any portion 
 of costs to which they had been put in defending an action, which 
 could not legally be supported, it was ordered that the plaintiff 
 should pay the costs of both defendants." No. 2578, Ruanwelle, 
 15th July 1S35. There are some olFences which, we have seen, 
 supia title "Judgment" 247-S and tit'e "Nui-anee," furnish 
 ground both for civil action and criminal prosecution. And see 
 No. 176 Caltura infra par. 37, where the indecent exposure of the 
 person is so considered. 
 
 5. The question was submitted to the Supreme Court by one 
 of the District Judges of Colombo, whether in cases of encroach- 
 ments and other infractions of the 24th and 25th clauses of the 
 Colombo Police Ordinance No. 3 of 1834 recourse should be had 
 to action or prosecution ; the latter course having been adopted, 
 in order to relieve parties from the expense of stamps. The fol- 
 lowing answer was returned by the Chief and Second Puine Jus- 
 tice, the Senior Puisne Justice being absent from Colombo : "The 
 
 con-luding terms of both the clauses in question obviously con- 
 template, either a criminal prosecution, or a civil action : but the 
 former mode of proceeding is that which is more distinctly pointed 
 out as the course to be pursued under the Ordinance. For each 
 clause directs that every person offending against its provisions,
 
 Prosecution. 561 
 
 - ' 
 
 shall, oh due conviction thereof, be punishable by fine and im- 
 prisonment. The words of reservation "over and above any civil 
 damages, to which Such persons may be liable," would seem to 
 be a precautionary clause to prevent the supposition of the civil 
 remedy being 1 taken away by the Ordinance, rather than a mode 
 of redress specifically pointed out by it. The distinction between 
 the two modes of proceeding, by which the propriety of the course 
 adopted in any case would best be triedj appears to the Judges 
 to depend on the question, whether the encroachment, or other 
 wrong complained of, be one affecting the public, or whether it 
 be an injury, alleged to have been done to the person or property 
 of one or more individuals, in the redress of which the commu- 
 nity would haVe no interes:." [Vide supra, title "Nuisance," 
 par. 4 and 3.] "In the former class of cases, a criminal prose- 
 cution under the Ordinance, in the latter a civil action, without 
 reference to the Ordinance, Would be the proper remedy." The 
 opinion thus conveyed has been formed on a very general view of 
 the subject, and chiefly with reference to the 24th and 25th clauses 
 to which the District Judge more particularly alluded : and if any 
 doubts should be entertained as to the legality of the mode of pro- 
 ceeding in any particular instance, it would be desirable that the 
 question should De brought before the full Court by appeal." 
 Letter Book 9 16 March 1835. 
 
 6. The distinction between confiscation and fine, the former 
 being properly the subject of a civil action, the latter of criminal 
 prosecutionj and the question, whether the revenue jurisdiction 
 of the District Courts should be taken to be on the civil r cri- 
 minal side of the Courts, were considered at some length under 
 title " Jurisdiction," par. 272 and sequ. We may a!so refer here 
 to what was said above p. 35-6 of the i nexpediency of referring 
 criminal prosecutions to arbitration. 
 
 7. With respect to the pleadings in criminal matters; no nicety 
 or technicality of language has ever been considered necessary, 
 any more than in civil proceedings. But thus much it is obviously 
 essential for the purposes of justice should be required , namely, 
 that the specific offence, with which it is intended to charge the 
 
 53
 
 562 Prosecution. 
 
 defendant, should be clearly and distinctly pointed out to him, and 
 that he should be called upon to plead Guilty or not Guilty to 
 that charge. And this is especially necessary, where there is more 
 than one law upon which the charge intended (/> be brought against 
 a defendant may be founded. Thus, on a prosecution against se- 
 veral defendants respecting stolen cattle, no .specific charge appeared 
 from the proceedings to have been explained to them, nor were 
 they called on to plead ; hut ultimately one of them was found 
 guilty of an infraction of certain Police Regulations for the Town 
 of Randy, and the rest were convicted of a mixed offence, partaking 
 partly of cattle-stealing, partly of the breach of Regulations No. 
 3 oi 1814 and 4 of 1815. On appeal to the Supreme Court, the 
 conviction and sentence were set aside, and the proceedings were 
 referred to the King's Advocate. The Supreme Court observed 
 on the necessity of all defendants being distinctly told the specific 
 offence with which they were charged, mid beirg called on to plead to 
 it : in the present instance, it was impossible for them to know, 
 whether they were to be charged with cattle-stealing, or with a 
 breach of local regulations; of which indeed the two above spe- 
 cified never were in force in Kandy at all. No. 415 Kandy [cri- 
 minal] 23d December 1833. See also the case from Kandy, for 
 an alleged fraud on the Post Office, infra, par. 39. 
 
 8. So, where on a prosecution for an infringement of the Salt 
 Regulations, it appeared that certain buffaloes, laden with Salt, had 
 been seized under circumstances of strong suspicion, and the drivers 
 not having been apprehended, the District Court condemned "the 
 buffaloes, and the Salt they were carrying, as confiscated ou behalf 
 oftheCiown, by virtue of the Regulations No. 21 of 1^13 and 
 No. 2 of 1818." On appeal to the Supreme Court, the proceed- 
 ings which had been begun and completed the same day, were 
 referred back to the District Court, partly on the ground that the 
 decision should have awaited the apprehension of the buffalo dri- 
 vers, against whom warrants had issued ; partly to give the 
 claimant of this property an opportunity of asserting his claim; 
 but also on account of the terms, in which the conviction was 
 framed. " These two regulations," the judgment observed "though
 
 Prosecution. 563 
 
 relating lo the same object, nre very different in their nature, in 
 their provisions, and in their effects. No. 21 of 1813 is for the 
 prevention of stealing Government salt, and declares that "all 
 cattle and carriages, employed in stealing; or carrying stolen salt, 
 shall he forfeited to H. M. use." To bring the case within this 
 Regulation, therefore, it should have heen shewn, either by posi- 
 tive proof, or on fair presumption, that the salt had been stolen; 
 and the District Court should have expressed its conviction of that 
 fact. The Regulation, No. 2 of ISIS, is for the protection of the 
 salt revenue, and directs, among other things, that salt, above one 
 parrah, removed without license, shall be forfeited. If the convic- 
 tion were under this Regulation, the buffaloes would not be liable 
 to confiscation at all. It is quite irregular to declare a conviction 
 to be founded on two distinct laws, unless their object and penal- 
 ties are identical. And this suggests another reason why the 
 enquiry would have been better postponed : for when the claimant 
 appeared, or the drivers had been taken, he or they should have 
 been told on which of the two Regulations the prosecutor intended 
 to proceed; and the defendants would then have been enabled to 
 shape their defence accordingly." No. 205, Chilaw & Putlain [cri- 
 minal] 2Sth October 1835. 
 
 9. On the same principle, the Supreme Court has decided that 
 a prosecutor on a penal Regulation or Ordinance is bound to point 
 out the particular clause on which he intends to proceed. Thus 
 OB a prosecution on the Customs Regulation, No. 9 of 1825, 
 against a person for having cloths in his possession not stamped, 
 and on which the duty had not been paid, the*f)istrict Court asked 
 the Proctor for the prosecution on which clause he intended to 
 rely : to which the Proctor replied that he was unable to say, not 
 being acquainted with the Colonial regulations ; and that he left that 
 point to the Court. The District Judge naturally felt a diffi- 
 culty upon this subject ; and observed that if the Court were com- 
 pelled to select the clause applicable to each charge which might 
 be preferred, such selection might be objected to by the prose- 
 cutor, as not coinciding with the spirit and intention of the pro- 
 secution. The Proctor, however, still declining to specify any clause
 
 664 Prosecution. 
 
 of the Regulation, the District Court at lengih dismissed Hie com- 
 plaint on that ground : and the Supreme Court affirmed the dis- 
 missal. " The District Court was perfectly right," the judgment 
 observed, "in calling on the complainant to point out the clause 
 of the Regulation, on which he asked for a conviction, not only 
 with reference to the C< urt itself, but in justice to the defendant, 
 who had a right to this information. A defendant is never allowed 
 to plead ignorance or misconception of the law in vindication of 
 his own acts ; and it would be the height of injustice to allow the 
 prosecutor tp excuse himself, on the giound of an alleged "want 
 of knowledge of the colonial regulations, and incapacity of ap- 
 plying the special clause " en which he intends to rely, from pointing 
 out to a defendant what part of the law he is accused of havirg 
 violated. Such an avowal, indeed, of "want of knowledge of the 
 colonial regulations" could never have been expected fiom a 
 Proctor, entrusted by Government with the important charge of 
 supporting and protecting the public interests before the District 
 Court. The question, whether the goods would have been liable 
 to confiscation, is or;e which could not be decided without hearing 
 the evidence, and considering how far the circumstances, under 
 which the property was found in the defendant's possession, would 
 have brought the case within the purview of the clause on which 
 the prosecution should have been declared to be founded. The 
 decree is therefore affirmed, on the ground of the plaintiff's refusal 
 to point out the clause on which he intended to rely." No. 1281 
 Trincomalie 20th February 1835. 
 
 10. So, where a Regulation points out two distinct offences, 
 and a prosecution is instituted for one of those offences, the pro- 
 secutor must not be allowed at the trial to abandon that charge, 
 and offer evidence of the other offence, even though both offences 
 are pointed out by the same clause. An information was laid 
 against persons for removing one gallon and upwards of arrack 
 from one rent division to another, contrary the 25th clause of 
 Ordinance No. 5 of 1834. No evidence was adduced of the re- 
 moval from one rent division to another ; but several witnesses 
 proved the removal, from one place to another within the same
 
 Prosecution. 564 
 
 Jfrwz'on, of arrack exceeding two quarts without permit, which is 
 also declared to be illegal by the 25th clause, and for which of- 
 fence certain penalties are imposed by the 27th clause. The ques- 
 tion was submitted to the Supreme Court by the District Judge 
 as a point of general practice, whether the defendants could legally 
 be convicted of the latter offence, which was equally prohibited 
 by the 25th clause, but which was not specifically charged in the 
 information laid against them by the prosecutor. The following 
 answer was returned by direction of the Judges : " The informa- 
 tion on any penal law should always specify the offence charged 
 against the defendant, and intended to be proved. The Courts in 
 Ceylon have riot been very rigid in requiring the use of exact 
 technical expressions, as is necessary in English practice ; but at 
 least the libel or information should point out the precise charge, 
 so that the defendant may come prepared to answer it, and may 
 rot be misled as to the nature of the defence, necessary for his 
 vindication. In the present instance, the defendants may have 
 been prepared to repel the charge actually made against them, 
 of having removed arrack from one rent division to another, but 
 they may not have thought it necessary to have ready the permit, 
 which, if produced, would have contradicted the witnesses, and 
 would have justified the removal from one place to another within 
 the same division. They may, therefore, have been taken by sur- 
 prise, in finding the accusation, founded on the second prohibi- 
 tion of the 25th clause, converted at the trial into a charge 
 founded on the first .prohibition. The two prohibitions, it is true, 
 are contained in the same clause of the same Ordinance : but 
 this juxta-position in the Ordinance produces no affinity in their 
 nature. The two offences are as separate and distinct, as if they 
 had been created by two separate Ordinances. The first consists 
 in removing arrack, above two quarts and under 15 gallons, from 
 one place to another within the same rent division, without a 
 permit from the retailer : the second consists in removing arrack 
 in any quantity under fifteen gallons, beyond the limits of the 
 division in which it is purchased, with or without permit, except 
 from the Government Agent of the Province." Letter Book 26th,
 
 566 Prosecution. 
 
 28th September 1835. See also The King vrs. Ackland, infra, 
 par. 42 & 43, where it was decided that, after defendants have 
 pleaded and made admissions to a prosecution on a Regulation, 
 they ought not to be convicted of the offence at common law, 
 the facts not bringing it, within the Regulation. Still less ought 
 a conviction to lake place incidentally in the progress of a civil 
 suit, and without the defendant having an opportunity of making 
 his defence. Supra., title "Land," par. 20, at the end. 
 
 11. As regards pleas by defendants in criminal prosecutions, 
 it is to be observed that a plea of "Guilty" must be taken al- 
 together, that is, with any terms of qualification, which the de- 
 fendant may add to the general admission of his guilt. This is 
 but common justice on all occasions, but in prosecutions on penal 
 enactments, it is peculiarly necessary : for a defendant may put 
 a wrong construction on the law ; and believing himself to have 
 been guilty of an 'infraction of it may think it best to confess 
 himself guilty, though his conduct may have been accompanied 
 by circumstances, which take the case out of the regulation: thus, 
 a woman who was prosecuted under the Salt Regulation, No. 2 
 of 1818 pleaded guilty of a breach of the 3d clause (against the 
 unauthorized manufacture of Salt) but added, "I bought the 
 Salt from unknown persons at two pice the measure." The Dis- 
 trict Court, on this admission, convicted and fined the defendant 
 under the 3d clause. But the Supreme Court held that the con- 
 viction could not be supported. For the plea must be taken 
 altogether, and the latter part of it was inconsistent with the 
 former. If the defendant could have been convicted at all on 
 this plea, it would have been on the 7th clause, for buying Salt 
 of unlicensed persons: but even that conviction could scarcely 
 have been supported without evidence, on the bare plea. For 
 a licensed person might go from door to door, selling Salt, and 
 yet be unknown to the purchaser. No. 1ST, Chavagacherry (cri- 
 minal) 5th July Ib34 on circuit. 
 
 12. We have seen under title " Pleadings," par. 19, that in 
 a prosecution for breach of a contract of service under Ordinance 
 No. 3 of 1834 s. 17; the Supreme Court expressed an opinion
 
 Prosecution. "567 
 
 that there would be no impropriety in calling on defendants, on 
 their pleading not guilty, to admit or deny the contract in ques- 
 tion. With respect to the examination of defendants in criminal 
 prosecutions in general, see title "Examination," p. 157-8. No 
 other points present themselves as having been decided on cri- 
 minal pleadings. 
 
 13. As regards the sale of property, sequestered under the 
 17th Rule of the second section, see title " Sequestration," par. 7. 
 
 14. The question was proposed to the Supreme Court by a 
 District Judge, whether a prosecution for forcible obstruction and 
 assault of Custom-house Officers, which had been remanded to 
 
 the District Court for trial and decision, ought to be proceeded 
 with in the name of the King's Advocate by information, in pur- 
 suance of the provisions of the first part of the 41st clause of 
 the Charter ; or whether the charge should be considered a mi- 
 nor offence, and be piosecuted in the way directed by the 10th 
 Rule of the 2d section. The Supreme Court returned for an- 
 swer "That as the case had been referred back for further hearino- 
 
 O 
 
 mid decision before the District Court, on the motion of the 
 King's Advocate, it must be presumed that the case was con- 
 sidered by the Crown Officer to fall within that class of offences 
 contemplated by the 10th Rule: and consequently that, unless 
 the King's Advocate should exhibit an information in his name, 
 which he had authority to do in any case under the 41st clause 
 of the Charter, it was open to the District Court to proceed in 
 the present instance, as in other cases cognizable before that 
 Court. Letter Book 30th 31st October, 19th 20th November 
 
 15. With respect to transferring a prosecution from one Dis- 
 trict to another, on the application of the complainant, see title 
 " Jurisdiction," p. 2*6. 
 
 16. We have seen under title "Evidence," p. 149, 150, that 
 every defendant in a criminal prosecution has a right to go into 
 his defence before the District Court, even in cases which might 
 require to be tried before the Supreme Court. See also No. 
 2,547, Chilaw, infra, par. 45, where it is said that a defendant's
 
 568 Prosecution. 
 
 witnesses should always be heard, though their evidence did not 
 afford a full defence. And as to filing- list of wit nesses in cri- 
 minal cases, see " Evidence," p. 121. 
 
 17. It frequently becomes necessary for the Courts to take 
 into consideration the conduct of prosecutors (or complaina?itx, 
 as they should more properly be oiled, since the Crown is in 
 truth the prosecutor) as regaids their motives i>l complaining 
 their own conduct in the transaction out of which the complaint 
 arises, and the course pursued by them in the prosecution of 
 their complaints. That a prosei-ntor cannot be refused the as- 
 sistance of a Proctor, if he wish to employ one, sec title "Proctor,'* 
 par. 10. 
 
 18. \Viih respect to motive. Jt has Ion;;- been a matter of com- 
 plaint and regret in Ceylon, that the numerous Regulations, by 
 which penalties are awarded to the informer on conviction of 
 the offences therein declared, and more espe daily those which 
 secure the payment of the informer's share of the penalty by 
 (ioverument, in cases in which the amount cannot ^roi 
 Irorn the offender, hold out a strong temptation to the insti- 
 tution both of unfounded and collusi\e prosecutions. With res- 
 pect to those which are simply unfounded, it is to be hoped 
 that they are rarely successful, because if a defendant be re- 
 ally innocent, and I e in earnest in endeavouring to establish 
 his innocence, he must generally succeed, whether the charge 
 he founded on a penal eiiactnunt or on any other law. I>ut 
 it is generally believed that many prosecutions of tin? 1;> 
 class, viz : by collusion between the informer and defendant, 
 have been instiiuttd and carried successfully through. Tims 
 A. accuses B. by a previously concerted agreement, of the 
 breach of some penal regulation, by which the penalty is se- 
 cured to the informer, in case of conviction. IJ. makes no 
 defence, or only enough to blind the Court as to the concert 
 of the parties; he i* convicted, the penalty is awarded, which 
 lie is unable to ] ay ; lie goes to prison for the period 
 
 . pointed out by the Regulation as equivalent to the amount 
 of fine, and A. receives the penalty which he divides with
 
 Pioseciitioti. 569 
 
 B. Vvho it may be supposed, c'aims a larger share, in con- 
 sideration of his imprisonment. One of the D. J. having re- 
 ferred a case of this description to the S. C., for instructions 
 how to act, he was informed, "That the best course to be 
 adopted, where the Court suspected the prosecution to be got 
 Up coilusively, for the purpose of securing and sharing the 
 penalty, would be simply to dismiss the complaint. If, how- 
 ever, it should happen in any case^ that the fact of collusion 
 did not rest upon mere suspicion, but there should be positive 
 evidence lo support such suspicion, as well as to convict the 
 defendant, the D. C. would be warranted in finding him 
 guilty, and in refusing to allow the informer his share of 
 the penalty; or where that refusal did not rest immediately 
 with the Court, in sending an intimation to the proper quarters to 
 prevent the success of the conspiracy, if possible. For the de- 
 fendant would still be guilty of the oft'ence charged, supposing 
 it to be satisfactorily proved, tl:ouh the main object was, not 
 
 the infraction of the law, but the share of the penalty. And on 
 
 
 the other hand, the defendant could not avail himself of his own 
 
 fraud, by demanding a penalty which had only been incurred 
 through his own collusion and knavery. " Letter Book 23d Au- 
 gust 10 September 1834. see also Petition Book of 1S34, p: 163, 
 its to the informer claiming his share of the penalty in a case 
 of suspected col lusion : And Petition Book of 1833 p: 56., where 
 the S. C. intimates hs opinion that the informer is not entitled 
 to his share, when the conviction is appealed from, till after the 
 final dicision of the S. C. affirming the decision. 
 
 19. With respect to prosecuti"ns instituted on false, frivolous, 
 or vexatious grounds, we have seen under title "Evidence," p: 
 132; that one of the modes by which the S. C. has endeavoured 
 to check such proceedings, as tar as the Dis;rict of Colombo is 
 concerned, is by obliging the complainant to pay batta to the 
 witnesses on both sides: Where a D. C. dismissed a complaint, as 
 wholly unfounded and malicious, and called on the complainant to 
 give security to keep the peace, the S. C. modified the decree, 
 liy directing that instead of giving security, the complainant 
 54
 
 570 Prosecution. 
 
 should be summoned before the D. C , and admonished for his 
 misconduct, and be then discharged. " Tlie more proper pu- 
 nishment for a false complaint would have been a moderate fine 
 [see title "False claim" p: 187.] For however malicious the 
 complainant's conduct may have been, there has been no breach 
 of the peace on his part, or any attempt at that species of of- 
 fence, which is usually considered to require the precaution of 
 security to keep the peace. The S. C., however, is unwilling 
 to substitute lor the order made by the Court below, a punish- 
 ment which would be more severe than that alreu-ly awarded" 
 No. 105, Wadernoiaehy 20th August 1835. 
 
 '20. The conduct of complainants in the transac-lions out of 
 which the prosecutions arise is of. en a very necessary point to 
 be considered, especially in apportioning the punishment on con- 
 viction for offences against the person : For t hough the ground 
 of prosecution is the disturbance of the public peace, and not 
 the damage sustained by the complainant, still the degree of the 
 offence may be a good deal affected bv the provocation received 
 by the defendant, a'tid by other circumstances arising out of the 
 complainant's conduct. 
 
 21. Thus, on a prosecution for an assault, the defendant ad- 
 ntiiled the fact, but offered evidence of insulting language and 
 demeanour used by the complainant towards the defendant's wife 
 when they niet at church, immediately before the commission 
 of the assault. And he also proved lo prove former iuu is 
 of a similar description, for a considerable time previously. Tne 
 D. C. having decided lhat it should be received, the complainant 
 appealed, contending that the defendant was not entitled to offer 
 proof of any former affronts. The S. C., however, affirmed the 
 interlocutory decision of the D. C., in the following terms. " With 
 lespect to the alleged insult, offered to the defendant's wife on 
 the evening in question, it is admitted on the part of the com- 
 plainant that all that took place on that occasion must be re- 
 ceived in evidence. Nor, indeed, would it be possible to eri- 
 , tertain a doubt on the subject, considering that, on the degree 
 of .provocation given to the defendant on that occasion, must very
 
 Prosecution. 571 
 
 much depend the extenuation of the offence) of which 'it would 
 appear the defendant has been guilty. And it must be recol- 
 lected that the place in which the insult is alleged to have been 
 oftlred precluded the possibility of the immediate expression of in* 
 dignation and resentment, which every man of spirit would na- 
 turally feel on such an occasion ; But funher, this Court would 
 not feel' itself justified in fettering the disc-retion of the D. G., as 
 to the reception of evidence of previous acts of the same des- 
 cription. It is said that there has been a continued series of 
 insult of this nature for the last twelve months; one isolated 
 act of aggression, committed at the distance of a year, for in- 
 stance, from the present time, ought not perhaps to be admitted : 
 but if the defendant is able to shew a continuous chain of insults, 
 offered to him through the person of his wife, it cannot be doubted 
 that this last "act of provocation must naturally have incensed 
 him to a much higher degree, than if this had been the first oc- 
 casion on which the complainant had excited his resentment. 
 The D. C. will no doubt perfectly understand that this evidence 
 can only be received in extenuation, not as a perfect justification 
 of the breach of the pub ic peace which has been committed." 
 The evidence was accordingly received ; and the previous insults 
 being proved, as alleged by the defendant, the D. C. decided 
 the case by calling on both parties to enter into security to 
 keep the peace. The complainant appealed also from this deci- 
 sion, 'on the grounds which will appear from the following judg- 
 ment of the S. C., affirming the decree. " It has been urged 
 on the part of the complainant, First, that the different station, 
 which he holds in society, from that filled by the defendant, 
 renders it more humiiiaiing to him to be compelled to enter 
 into security for his good conduct; and secondly, that the eri- 
 dence is not such as to render such a precautionary measure 
 necessary as regards the complainant, who is not proved to have 
 been guilty of any violence, or even resistance, on the evening 
 when the assault was committed upon him. The first objection, 
 however, is answered by the conduct of the complainant himself, 
 for after placing himself on an equality with the defendant, by
 
 579 Prosecution: 
 
 frequenting his house, and indulging in familiarities with the de- 
 fendant's wife, as detailed in the evidence, he has little right 
 to claim any distinction on the score of rank. With respect to 
 the second ground of objection, this Court cannot agree in thinking 
 that the evidence was insufficient to justify the measure adopted : 
 for though the complainant was the party assaulted on the 
 evening in question, it is clear, from the evidence, that he had 
 teen in the habit of gning to the defendant's house, at times 
 and under circumstances which shew plainly that he was crnsi- 
 dered a very unwelcome visitor by some of the family, especially 
 "by the the mother of the defendants wife" who states that she 
 has more than once driven him away : and it also appears that 
 the defendant himself has warned the complainant not to come to 
 his house. Under these circumstances, and considering the ill 
 blood which evidently exists between these parties, the S. C. would 
 "be taking upon itself a very heavy responsibility, in relieving 
 the complainant from the necessity of entering into recognizance, 
 and one which it could scarcely justify, if another affray were 
 to take place, in consequence of further provocation given by 
 the complainant." No. 746. Colombo, 23d February 8 April 1835. 
 22. The following case was decided on the same principle. 
 A Toll-keeper was prosecuted, with several other persons, for an 
 assault and false imprisonment. It appeared that the complainant, 
 an English gentleman, had passed the Toll-gate, and having no 
 small money and refusing to receive copper coin in change for 
 what he offered, the Toll-keeper stopped his Hackery, on which 
 the complainant, struck him with his whip, and then proceeded 
 <m his way; that the Toll~keeper then procured assistance, but 
 TIC warrant, and having, pursued the complainant, stopped him at 
 some distance from the Toll-gate, and obliged him to return to 
 Caltura. The D. C. convicted the defendants and sentenced them 
 to pay a fine of no large amount, but which the writer is un- 
 able to state with precision. On appeal by the defendant, the 
 conviction of the D. C. was affirmed; but the sentence was mo- 
 dified, by reducing the fine imposed on the defendants to one 
 shilling and the term of imprisonment in default of payment to one
 
 Prosecution; 57.3 
 
 day, for the following; reasons "The S. C. has. considered this cass. 
 with great attention, with a view, on the one hand, to the protection 
 of the Toll-keeper in the exercise of his duties and the en- 
 forcement of his just rights; and on the other hand, to the 
 protection of the public against acts of violence and oppression. 
 The ground, on which the sentence of the D. C. is now reduced 
 below even the moderate punishment imposed by that Court, 
 is that throughout the whole transaction, each party has been 
 alternately in the wreng. In the first instance the complainant 
 was !o blame, in passing the toll gate without paying the toll, 
 and again, having passed, in refusing either to give a smaller 
 coin in payment, or to receive the only species of change which 
 it appears the Toll-keeper was able to offer. For the Toll- 
 keeper was certainly not bound to wait for payment, till the 
 driver of the complainant's hakkery should return to pay him. 
 In the second instance, the first defendant, the Toll-keeper, was 
 to blame in endeavouring to stop the complainant in his progress. 
 He would have had a right to keep his gate or barrier closed, 
 and thus to have prevented the complainant from passing until 
 he had paid ; but having once passed, the law would have given 
 the Toll-keeper a full and specific remedy, if th complainant had 
 refused payment ; and there was, therefore, neither necessity nor 
 justification for that attempt at detention. But then, thirdly, 
 the degree of violence which it appears was used by the com- 
 plainant was equally unjustifiable, because it very much exceeded 
 what the nature of the restraint, endeavoured to be imposed 
 on him, required. The only resistance made by the defendant 
 to the progress of the hakkery was his going to the head of 
 the bullocks* which were drawing it; an obstacle which might 
 have been overcome by urging the animals forward, without 
 the aid of blows inflicted on the Toll-keeper. The use of the 
 whip, therefore, and still more the blow in the mouth, were 
 both unnecessary, and wholly unjustifiable. But this again, 
 though a breach of the peace, for which the complainant 
 would have been liable, either civilly or criminally, was at an 
 end when the complainant proceeded on his journey ; and the
 
 574 Prosecution. 
 
 defendants,' therefore, were not justified in ultimately "stoppin* 
 and obliging him to return to Caltura. Any person may arrest 
 another when in the actual commission of a breach of the peace, 
 from the necessity of the case, and to prevent further violence. 
 But after the act of violence has been actually committed, and 
 peace is restored, no such necessity exists, and the party seek- 
 ing redress should ar;n himself with the necessary warrant, be- 
 fore he presumes to arrest the person whom he intends to ac- 
 cuse. On this last occasion, therefore, the defendants were 
 acting illegally, and have been properly convicted. But con- 
 sidering the great piovocalion which the complainant had given t 
 by the violent assault so lately committed on the first defendant, 
 the case appears to be one which calls for the lightest punish- 
 ment." No. Caltura, 13th June 1835. 
 
 23. The conduct of complainants in the prosecution of their 
 charges often becomes the subject of suspicion and animadver- 
 sion. Unfounded prosecutions and fa'se defences being both 
 so frequent in Ceylon, Courts will naturally listen with some 
 distrust to the application, whether of complainants or defendants 
 to be allowed to compromise : and it was observed under title 
 "Arbitration" p. 36, that compromises should only take place 
 with the express sanction of the Court,, or of the Crown Officer. 
 Complainants not unfrequently ask permission to withdraw 
 their prosecutions, when they find that conviction is hopeless. 
 But these applications also should be granted with great cau- 
 tion, especially after evidence has been gone into ; because the 
 withdrawal of the prosecution is then insufficient as regards the 
 defendant, who is entitled, if the proof against him fails, to a 
 full acquittal at the hands of the Court, and ought to owe 
 nothing to the affected moderation of his accuser. A Police 
 Vidahn prosecuted a person for an assault, and obtained a 
 conviction. The defendant appealed, when contradictions appear- 
 ing in the evidence, though scarcely sufficient to justify a re- 
 versal of the conviction, the case was referred back for further 
 evidence on both sides. On the day of trial, the witnesses foe 
 the prosecution did not appear, aud the complainant begged
 
 Prosecution. 573 
 
 to be allowed to withdraw his complaint, ihis however, the 
 D. J. refused to permit, and the proceedings were returned to 
 the S. C., which agreed with the D. J. that the complainant 
 ought not, at that stage of the case, to be allowed to withdraw 
 his complaint. The only course, therefore, was to reverse the 
 conviction, which after the complainant's conduct ou the second 
 endeavour of the D. C. to get at the truth, there couid not be 
 a moment's hesitation in doing. The deiendant, if able to prove 
 his innocence, would have his remedy, either by civil or crimi- 
 nal proceeding. And the question was suggested, whether the 
 complainant could any longer be considered a fit person to be 
 continued in the Office of Police Vidahn. No. 29, Guile, 4th 
 June 1834. [criminal.] 
 
 24. In several instances, where the owners of stolen property 
 have failed to appear on the day of hairing, without very 
 satisfactory reasons for their absence, the S. C. has set aside 
 convictions for theft, as incomplete, though other witnesses at- 
 tended to prove the ownership of the goods. See case from 
 Triiicoinalie, [criminal] 24th September 1^34. 
 
 2b. When a D. C. dismisses, for want of sufficient evidence, 
 a cpmplaiut of that graver class which would require to be ulti- 
 mately tried [if at all] before the S. C., the word acquittal 
 should not be used. For in the first place, the D. C. would 
 not regularly be competent eitiier to acquit or convict for one 
 of tlu- higher oiK-nces, unless under a special order from the 
 S. C. And .sicoiidly, it sometimes happens that though a com- 
 pb'.int is dismissed in the first instance for want of sufficient 
 jTnoI, evidence is subsequently adduced, on wiuch the party 
 accused is conunilicd for trial. No. 700, Amblangodde [crimi- 
 nal] jiOih August 1834. Such supplementary evidence, however, 
 ought always to be received with considerable caution, unless 
 the absence of it on the first enquiry be satisfactorily accounted 
 for. Where the complainant proved that his witnesses were for 
 a time absent from the island; the S. C. qualified a decree of 
 dismissal of a charge of one of the minor offences, by declaring . 
 that it was only to be considered, a temporary dismissal for want
 
 576 Prosecution. 
 
 ot evidence, and not a final acquittal : for tlie complainant 
 ought to be allowed to institute proceedings aficsh, if he 
 should think proper, on the return of his witnesses. No. 41, 
 \niblangodde, 3d December 1835. 
 
 26. On the other hand, where D. C. have tried and con- 
 victed prisoners for the higher class of offences, which are con- 
 sidered cognizable only before the higher tribunal, the S. C. 
 has sometimes set aside such convictions, even though the D. C. 
 have not exceeded the limit of punishment presc.ibed by the 
 25th clause ot the Charter: as in a serious case of robbery 
 alleged to have been committed by six persons. No. 527. Ne- 
 gombo, [criminal] 23d September 1835. In that case the S. C. 
 observed that supposing the robbery to have been really committed, 
 the offence was of too serious a nature to be disposed of by 
 the D. C , especially considering how near Colombo both parlies 
 and witnesses resided. There were besides some strong impro- 
 babilities in the stoiy told by the complainant and his witnes- 
 ses, which made it desirabie, on that account, that the prisoners 
 should be tried by a jury. In this arid similar cases, the pro- 
 ceedings were referred to the King's Advocate lor his decision, 
 whether the parties accused should be committed for trial before 
 the S. C. But such reference, it is scarcely necessary to say, 
 was only made when no corporal punishment had been already 
 inflicted, 
 
 ^7. In like manner, where a case of Perjury, of a somewhat 
 complicated nature, was tried before a D. C., and the Defen- 
 dant was convicted ot thai off; nee, the S. C., on appeal, or- 
 dered " that the conviction be set asid, and the proceedings 
 be sent to the King's Advocate, in order that if further pro- 
 ceeding* should be considered desirable, they may be instituted 
 before the S. C. . There certainly appears 10 have been no 
 want of zeal or diligence on the part of the District Judge, 
 in pursuing this investigation; but this Court by no means 
 considers the present to be of that class of cases, which the 
 20th Rule of the 2d section contemplates. The deposition, re- 
 cited at the commencement of the proceedings, contains a variety
 
 - 
 
 Prosecution. 
 
 of allcgn'ions, su h as require legal habits and experience to 
 ] a charge of Perjury upon, arid still more to prosecute 
 satisfactorily to decision. Independently, however, of this case not 
 being of that simple nature, which would make it a fit sub- 
 ject of enquiry before the D. C., there is a defect in the evidence, 
 which makes it impossible to support thi* conviction. The de- 
 position by which the Perjury is alleged to have been com- 
 mitted, or rather the substance of it, is only entered in the 
 proceedings as the founda!ion of the charge. But it should 
 have been not only produced in Court from the record in the 
 Civil Suit, and have been proved to be the statement' made 
 by the Defendant on oath, but a copy of the deposition should 
 have accompanied the proceedings, before this Court could be 
 satisfied that the charge had been substantiated." No. 350 
 Pantura, 24th September 1834. 
 
 28. An appeal being instituted by a complainant against the dis- 
 missal by a D. C.of a complaint which, if not dismissed, would have 
 been sent before the S. C. for trial, the latter Court, for the reasons 
 stated in the following order, directed that the proceedings be 
 referred to the King's Advocate, in order that he may take 
 such steps in the case as he may think proper, " By entering 
 into the consideration of the propriety of the decision of the D. C. 
 in dismissing this complaint, the S. C. might find itself in this 
 situation: It might consider that there was evidence to go to a 
 jury, and might direct the parties to be bound over accordingly : 
 The Crawn Officer might take a different view of the subject, 
 and might think that no libel ought to be allowed. In that 
 case, there would either be a recorded opinion of the S. C., 
 
 rendered nugatory by the act of the King's Advocate, or which 
 
 j 
 
 would be still worse, in point of principle, that officer might 
 possibly, from deference to the opinion of the Court, or from 
 mere feelings of courtesy, give up his own opinion, and prosecute 
 against his own judgment. Another objection to this C^rt di- 
 recting a prosecution before itself, unle-s where it cannot be 
 aroided. [as where the subject of the prosecution arises before 
 the Court itself] is that such a direction must be considered as 
 55
 
 578 Prosecution, 
 
 the declaration of an opinion, that a prima facie cose, at 
 is made out for a conviction. As, therefore, the point is not 
 pressed to a decision by the Proctor for the prosecutor, a re- 
 Jercnce to the Kirg's Advocate appears to be the preferable 
 course." No. 966 Colombo 23d September 18-5. 
 
 *^9. In conformity with the view taken in the foregoing case, of 
 the controlling power vested by the charter in the Queen's 
 Advocate over all prosecutions, the S. C. r. (firmed at once a 
 decree of dismissal by a District Judge, who it appeared, had 
 acted on the authority of c letter from that officer, recom- 
 mending the dismissal : Tor th?t letter was to be considered 
 in the nature of a Nolle prosequi ; a mode of terminating cvi- 
 minal proceedings, which must be co^.side: ed as vested in the 
 Queen':- Advocate. No. Atnblangpd.de [criminal] 2-! 
 
 30. Where several defendants are included h; 
 tion, if, when the evidence in support of the p.os:cu:ion is concli'. 
 the proof appear insufficient against one or more of t':e d 
 it is a common and very proper practice to discharge them "to 
 and they then become .competent \\iiu.-sses for the other defen-.l; 
 subject of course to any dcubt which their connex.o 
 other may give rise Co. This indeed is a righ':, , it l.e 
 
 denied without great injustice, to those defend- 
 any case has been made out. For otherwise, 2 complainant mi., -'it 
 deprive the parties accused of the evidence of every witi 
 rial for th-ir defence, L such witnesses in ' 
 
 sation. And if a com, 'issatisfied 
 
 of any such defendants, h 
 
 acquittal, before their evidence is received. Anil so a'> 
 of the defendants are discharged from t'.ic prosi'.;-. '(>-, 
 : nee for ; me into. For where 
 
 ... \. B ,. 
 
 i crsi.iis 
 
 I 
 
 : It obs 
 
 to ! . 
 
 ;i.os:- [ . .i-soiis were siru: 1 /. out of th.-
 
 Prosecution. 579 
 
 '- ha\ing been discharged from prosecution on that occasion, 
 and ad mi' ted as witnesses for the principal defendant, they would 
 labor under this disadvantage, if they were now prosecuted, that 
 the testimony which they then gave might now be given in evi- 
 dence against themso'vcs and that the prosecutor should, there- 
 fore, have appealed against their being excluded from the former 
 prosecution." N:>. CaUura, 7th October 1835. [Criminal] see 
 
 r.i?o ih.3 case of a prosecution for an alleged fraud on the Post 
 Oirice at Kandy, infra par. 39. 
 
 31. A case has been mentioned above, par: 21. in winch 
 
 both complainant and defendant in a prosecution for an assault 
 
 were called upon to find security for their good behaviour. This 
 
 o(Va'!ing on a pariy to give security, may 
 
 sometimes be ben. fie felly resorted to, where the evidence is not 
 iently certain to justify a conviciion of the act of violence 
 charged against him, though his conduct shews it to be unsafe 
 to discharge him without putting some restraint on his conduct. 
 In a 'prosecution for ' an affHy and assault, where the evidence. 
 was of this description, tin D. C. sentenced the defendants to. 
 four months' hard labour, and to find securities for their good 
 behaviour for 12 mont'.s. The S. C. affirmed the latter pnrt of 
 s':nt?nee, out remitted the imprisonment, observing, "Tuat 
 o D. C. had recorded th"i t!i:-re \v;s r.oihing to shew who 
 the aggressor was, it w ,- too fur to impose ac-tual and 
 
 inevi. ishment on any of the defendants, but that as there 
 
 had cvkk-.-.tlv been a breach of the peace, and as all the de- 
 fendants were slate:! t ) be persons of bad character [this must 
 h^.ve been after conviction, see title "Evidence" p. 108] it was 
 proper that they should find security for their future good beha- 
 viour, on c'.oin;!; wh't-h they would be entitled to their discharge. 
 No. 123 [Criminal] Wadimorachy, I4tii Ociober 183i. It may 
 ibservcd here that the obliging a person, to give security to 
 the peace, who b s made use ot' threats, evincing a dis- 
 disposition to break it, is in consonance with the rules of tl^ ci- 
 vi'. law in this respect, see Voet, lib: 4 sect: %. par. 13. 
 32. Questions frequently ariss between the public auJ. indj?
 
 80 Prosecution. 
 
 viduals, which though they are rather of a civil nature, as re-; 
 gards the latter, assume the shape of criminal proceeding; in their 
 investigation, on account of the public health, or convenience 
 being interes'ed in the decision of them, see title "Nuisance,"' 
 par: 4. and 5. In such cases, the private individual complained 
 of is entitled to full hearing and consideration, before the object 
 of controversy, which he claims as a right, can be condemned- 
 as a public injury or nuisance. Thus, we have seen under title 
 "Police," paragraph 5, that a defendant under the 29thclau.se 
 of the Colombo Police Ordinance must be allowed an opportu- 
 nity of shewing that the building &c. complained of is no encroach- 
 ment. And the same course must be a Innted on prosecutions 
 for resisting or objecting to any public work, which the defendant 
 considers to be prejudicial to him, and which lie has a right to 
 oppose. Thus, the public authorli^s having ju l^-d it M >ce.ssiry 
 to open a drain or water-course, one of the persons, through 
 whose land it was proposed that it should run, objected to it 
 and stated her reasons for the objection. The Constable reported 
 that the course proposed was the proper one, and that the pub- 
 lic road would be injured, if the drain were made as suggested 
 by the opponent. The D. J. then visited the spot, and a^ree* 
 ing with the Constable in opinion, the drain was ordered to be 
 opened accordingly. The Defendant [for the case has assumed 
 the form of a prosecution] appealed against the order, and the, 
 S. C. decreed as follows : " that the case be referred back to 
 the D. C., in order that the defendant may have an opportunity 
 of adducing any evidence in her power, to shew that the water- 
 course ought not to be carried through her ground ; and any 
 counter evidence of the neighbours or others should be heard 
 on the part of the crown. Among others, the Constable should 
 be called on to repeat viva voce in Court the statement con- 
 tained in his report, in order that he may be subject to cross- 
 examination, if required. The first consideration, no doubt, is 
 the public health, and the public convenience. But the defen-. 
 dant should be allowed to give evidence, if she can, not only 
 on this point, but also as to whether the drain proposed would
 
 Prosecution. 58 1 
 
 be injurious to her land ; further, as to the period, during which 
 the water has hitherto been carried off through her ground, and 
 also whether there be any other course,equally convenient to the 
 public, without being injurious to herself. Ti;e question can only 
 be satisfactorily decided by hearing all the evidence on both 
 sides." No. 260, Negombo, lltli June IS34. 
 
 33. In cases, in which the question is one of mere fact, and 
 turns upon the credit due to the respective witnesses, the S. C. 
 has naturally leaned to the adoption of the view taken by the 
 Court below, belore wham the evideaice has been given. This 
 indeed is no more than a recognition, of the vast advantage of 
 hearing and seeing a witness give his evidence viva voce, watching 
 his demeanour and noting any hesitations or contradictions, over 
 a bare perusal of his evii 1 ; ucorded. In a case, where 
 
 the evidence of I he torn phi inn nt for an assault not only stood 
 lone, but \\:s contradicted by that of his own witnesses, but 
 yet the defendant was convicted, the procetdings were referred 
 back to the D. C., to state on what grounds the conviction, se 
 much at variance with the body of the evidence, h id proceeded. 
 The. D. J. accounted for the conviction, by stating that both him- 
 self and the jWi-si'soois had given credit to the complainant, and 
 believed that the other wi: nesses had been tampered with, or for 
 some other reason hud refused to state the truth. The convic- 
 tion was ihertupon ailinm-d; the S. C. refusing to "interfere 
 with the decision oi the Court below, .thus deliberately expressed,' 
 en a question of the credibility due to a witness, though the 
 case rested on the testimony of the complainant alone." No. 149. 
 Wadimorachy, 1 1 November. 2d December 1835. Where, how- 
 ever, a D. J., in recording his conviction of a piisoner on cir- 
 cumstantial evidence, stated that the conviction was contrary to 
 the opinion of the Assessors, and that his own judgment might 
 possibly have been influenced by knowing that the prisoner was! 
 a man of bad character, the S. C. observed, " That the circum- 
 stances of suspicion were certainly very strong, and sufficient to 
 justify the conclusion to which the D. J. had arrived: But 
 considering that the proof, was not absolutely conclusive that the 
 opinion of the Assessors was in favor of the defendant's inno-
 
 Prosecution. 
 
 _ 
 gence, and that the D. J. entertained some degree of disfrusi 
 
 of his own opinion, on acco'int of his previous knowledge of 
 defendant's character, had recorded that distrust with so much 
 humane consideration towards him, ii seemed safer to set aside 
 this conviction. No. Uituankandy, 2iHh May 1835. The 
 
 S. C, we have seen under title "Jurisdiction", 280. 1., has 
 no power to remit punishment, except by leversing or modify- 
 ing the sentence. 
 
 34. The foregoing decisions relate principally to the course 
 of proceeding on criminal prosecutions : The following cases 
 turn chiefly on the legality of the convictions or acquittals oc- 
 curring in them ; whether as regards the law o;i which the res- 
 pective prosecutions may have been founded, or the evidence on 
 which the decisions proceeded. 
 
 35. In every case in which a conviction is asked, on a criminal 
 prosecution, the D. J. should be quite certain that the act com- 
 plained of is to be viewed in the light of a criminal offence, 
 either by the General law of the Island, or by some legislative 
 provision, either pf the Imperial or the Colonial legislature, before 
 he ventures to convict; or still more', to inflict punishment on 
 $uch pouvicliqn. And if he entertains the sligh'/st doubi on the 
 subject, the means of satisfying himseir are easy and immediate, by 
 a reference to the Queen's Advocate. Proceedings were institute:! 
 in the D. C. of Ruanwelle, a^ai-.ist th owners of ceriai.i cattle, 
 which had been found trespassing on land attached to the 
 
 of that place, and the fact of the trespass being proved, 
 defendants were fined 8 R'ls., being so much for each head of 
 caitle. On appeal to the S. C., the proceedings were referred 
 back to the D. C., "in order that it might be stated by what 
 law the fine had been decreed. No evidence had been offered 
 of damage ; and it was, therefore, to be presumed that some 
 law existed, by which a specific penalty was imposed on the i/ 
 ers of cattle found ii-espussing" The D. J. returned for answer 
 "That the fine was awarded, according to a District order, v, 
 had been in existence ever since Ruanwelle had been a Mili- 
 tary post, by which a specific penalty was imposed on the
 
 Prosecution-. 583 
 
 owners of all cattle found trespassing on the Government works 
 and esplanade. And moreover that the Regulation of 1833 had 
 been acted upon by former D. J. and was still acted upon in 
 the District of Ruanwelle." On this return, the S. C. ordered 
 that the decree be set aside, and the fines thereby imposed be 
 remitted "If it were possible," the judgment observed "for this 
 Court to recognize any authority, except that of the legislature, 
 by which specific penalties could be imposed on specific offen- 
 ces, it would have been necessary to send for the District order 
 alluded to : But no such authority can be recognized as vested 
 any where, except in the legislative power of the Island. And 
 if any such law Lad emanated from that quarter, it would be 
 to be found, as rer ards Ruanwelle, among the Proclamations 
 relating to the Kandyan Provinces. No such enactment, how- 
 ever, is to be found. Ii' by "District order" be meant an 
 oidrr issuing froir; hority of the Province or Dis- 
 
 trict, whether Civil or Military, Such order can be considered of 
 no force, whatevrr, at Last in legalizing tha infliction of penal- 
 tics. As rcgaHs tLe Regulation of Goverv.ment No. 9 of 1833, 
 
 K. C. is ..> observe that any conviction under that 
 
 11 ;ulatio.i is wholly iileg'-l, except for offences committed within 
 the gravels of the towns therein enumerated. Where there iS 
 no law on the sub'ec- in force in the place in question, the owner 
 of cattle found trespassing can only be sued civilly for the dam- 
 age \vlacii may have been done, including any expense or rea- 
 sonable charge for irouble, which may be incurred in securing 
 the ani na'.s, and preventing their doing further mischief. And to 
 this demand, therefore, the {-resent action should have been limited. 
 If it be necessary to protect the public works at Ruanwelle or 
 else where by posi recourse must be hal to the proper 
 
 quarter .cr thai purpose. Another irregularity appears on the 
 fac? of tl;e present proceeding. If the penally could legally be en- 
 
 .], the co :rse of i-roceeding, according to the practice of the 
 Courts in this Island, would be on the criminal side of the Court ; 
 by which the defendant would not have been put to the expense of 
 Slants : vide su;:ra: \\ 279, As they have been incurred, and a
 
 i34 Prosecution. 
 
 it is not just that the defendants should bear any portion of costs, 
 to which they have been put in defending an action which 
 cannot legally be supported, it is further ordered that the Plaintiff 
 do pay the costs of both Defendants." No. 2378. Ruanwelle, 
 ]5th July 1S45. 
 
 36. There is one class of criminal prosecutions which must 
 not be omitted to be mentioned, as resting on no legal founda- 
 tion. It was long the practice, now ] robnbly abolished, to in- 
 troduce into the contracts [or conditions, as they are usually 
 called] between Government and the Renters of the various 
 duties or taxes, certain penalties for the breach of any of the 
 conditions; which penalti- s were to be enforced, according to 
 the terms of these instruments, not only against the Renters, 
 but against all the world. Many prosecutions, and, it is to be 
 feared, convictions also have taken phice on the penal clauses, 
 both against Renters and against third parties in former times, 
 though the S. C., as well that sitting under the present Charter 
 as that previously existing, never failed to declare its decided 
 opinion of their illegality whenever an opportunity presented 
 itself, see No. 393 Colombo, infra : par : 55. The practice had 
 grown up, and the infeiior Courts followed it, wi.hout entertain- 
 ing any doubts as to i;s being legal. As regards third parties, 
 a moment's consideration is sufficient to shew the absurdity of 
 supposing that any thing contained in these conditions can have 
 the effect of converting any act, innocent in itself, into a punish- 
 able offence, merely because it is not in accordance with the 
 rules laid down in the conditions. In the first place, as we 
 have seen in the last paragraph, no penalty can be imposed for 
 an act not in itself criminal, unless by a law duly passed by 
 legislative authority ; a character which it is impossible to as- 
 sign t these conditions : But secondly, the conditons can at 
 most only effect the two parties to them, namey the Govern- 
 ment on the one hand, and the renter on the other. The public 
 are no parties to them ; and though it has been said that they 
 are notorious in the immediate neighbourhood where they are en- 
 tered into, the law would not require or presume any one to be
 
 Prosecution. 
 
 acquainted with them, except those who actually subscribe 
 them. A renter has his remedy for an infringement of his 1 just 
 rights, as we shall see under title " Renter" par. 3 and 4. 
 But whenever he has endeavoured to enforce the penalties', 
 which the conditions professed to give, against third persons, 
 the Supreme Court has always, it is believed, refused to re- 
 cognize any such right, see No. 128 Chavagacherry 4th June 
 Ib34, infra., title " Renter" par. 3. But even as regards the 
 renter himself, there is no ground for treating him as a cri- 
 minal offender, for the mere breach of the conditions to which 
 he is a parly. Any penalty which may be inserted in the con- 
 ditions, as the consequence of the renter's breach of them, 
 should be sued for by civil action, as in the case of an ordi- 
 nary bond or obligation, [see p. 280, as to the distinction be- 
 tween a penalty of this description, and that imposed by law 
 in the shape of a fine]. On one occasion, a D. J., entertain- 
 ing doubts on the subject, very properly applied to the S. C. 
 for information " whether he should be justified in punishing 
 criminally for a breach of a renter's conditions" observing that 
 he could find no law authorizing such proceeding. The Judges, 
 as may be supposed, answered the question in the negative, 
 adding " that the conditions constituted a mere civil contract 
 between the Government and the renter, any breach of which 
 inust be sued upon by a civil action. The Judges presumed 
 that the question applied to the renter only, but added, as re- 
 garded third parties, that as they were not parties to the con- 
 tract, they could not legally be affected by it, whether civilly 
 or criminally." Letter Book 9th., 28th January 1834. 
 
 37. If no positive Law exists by which a particular act is 
 declared to be criminal, it then becomes necessary for the Court 
 to consider whether such act be an offence by the common law 
 of the Island ; that is, independently of any positive law. Thu 
 Murder, Robbery, Theft, &c. are offences which exist indepen- 
 dently of, though the prosecution of them may in some instances 
 be regulated by positive enactment. In cases of less frequent re- 
 currence, the D. J. nfust decide according to his own knowledge, 
 N
 
 688 Prosecution. 
 
 whether the act be criminal or not in itself; and if he be ifl 
 doubt, should apply for instructions to the Crown officers. The 
 following case falls within that class above referred to par : 247. 8 ', 
 and under this title par: 4. which may be made the subject either 
 of a criminal prosecution or a civil action. A defendant, having 
 been convicted by the D. C. of an indecent exposure of his per- 
 son, committed in a boat at a short distance from the shore, ap- 
 pealed against the conviction, on the ground that the action in 
 question ought to have formed the subject of civil rathar than 
 of criminal proceedings. It appeared indeed that the immediate 
 object of the defendant was to insult the complainant, the S. C., 
 however, affirmed the conviction, observing "That the D. C. had 
 made a very proper distinction between the reparation due to 
 the insulted feelings of the complainant, and the punishment for 
 the offence towards the public; that if the former had been the 
 object, a civil action would have been resorted to, but that con- 
 sidering the filthy act of the defendant in a criminal point of 
 view, the complaint was properly received as a prosecution on 
 behalf of the public, as in the case of an assault, or of any other 
 act, by which the public peace is offended, as well as an injury 
 done to the individual; that there could be no doubt that this 
 act of indecent exposure was rightly considered as a criminal of- 
 fence, without calling in the aid of any express law, for though 
 it was committed in the sea, it was done in the presence and 
 in sight of a sufficient number of persons, to make it a public 
 exposure, and as such, punishable by the common law of every 
 civilized and decent community." No. 176 Caltura, 27th Janu- 
 ary 1836. 
 
 38. A conviction took place in the D. C. of Jaffna against 
 several defendant, for having enticed a Girl away from her 
 mother's house, without the mother's consent, for the purpose 
 of marrying her to one of the defendants. It appeared that the 
 Girl was of an age considerably more advanced than that, at 
 which females are often married in the Northern districts, and 
 it was recorded by the D. C., "That no violence had been used 
 .towards the complainant's daughter, but 'that she went voiunta-
 
 Prosecution. 58? 
 
 rily, under promise f receiving some jewels." The defendants 
 having appealed, the S. C. consulted Assessors of the heathen 
 chitty cast, to which class the parties belonged ; and the Assessors, 
 who professed themselves well acquainted with the law of their 
 tribe which should govern the case, gave it as their opinion that 
 the blame must rest with the daughter, for accompanying the 
 defendants, without her mother's consent ; but that the defendants 
 had been guilty of no offence. On this opinion being given, the 
 S. C. observed " that though it felt reluctant to interfere with a 
 decision which, it was to be presumed, had proceeded on the view 
 taken by the D. C. of the customary law of the Northern dis- 
 tricts, still the opinion pronounced by the Assessors at Colombo 
 was so completely consonant to English law, and to natural jus- 
 tice, especially considering the mature age of the complainant's 
 daughter, that the Court could not hesitate to adopt it, and to set 
 aside the conviction." No. 1569. Jaffna 1st April 1835. 
 
 39. The judgment in the following case touches upon a variety 
 of points connected with criminal proceedings: the nature of a con- 
 spiracy ; the necessity of explaining the charge ; the mode in which 
 an accomplice should be received as a witness; the necessity of sup- 
 porting his evidence by other less exceptionable testimony ; inciting 
 another to an offence; the completion of an offence necessary to 
 conviction, and the evidence necessary for a conviction of fraud. 
 The defendant, holding, it is believed, the office of shroff at Kandy, 
 was convicted of "conspiracy with a certain Drum-major to de- 
 fraud the Post Office Revenue" It appeared from the evidence 
 of the Drum-major, that the defendant had asked him to get a 
 letter franked which he gave him, and which the Drum-major ac- 
 cordingly presented to the Commanding Orficer at Kandy, addressed 
 in such a manner as to induce a supposition that it was a soN 
 dier's letter. The deception, howtver was discovered, after the 
 letter was signed ; and it never was sent to iis destination. The 
 rest of the evidence as far as is necessary to state it, will appear 
 from the judgment of the S. C. The defendant appealed, and 
 the S. C., after hearing the Deputy King's Advocate in support 
 ef the conviction, was of opinion, for the following reasons, that
 
 588 Prosenilion. 
 
 it could not be supported, and it was accordingly set aside, and 
 the fine imposed on the defendant remitted. " Several objection? 
 present themselves to the validity of this conviction. Ttie finding 
 of the Assessors is, that the defendant is guilty of conspiring with 
 the Drum-major to defraud the Post Office revenue ; and this 
 finding is recognized by the judgment itself. Now the very essence 
 of the offence of conspiracy is that two persons, at least, must be 
 combined. But here, the defendant's confederate appears in the per- 
 son of the principal witness against him. There is nothing, it is true, 
 to prevent one conspirator being received as a witness against another; 
 any more than an offender of any other description, against the part- 
 ners of his guilt. But in such case, both parlies ought to be dis- 
 tinctly made acquainted with the charge, as implicating both; 
 and the person, whose evidence is sought, should he told the 
 object in receiving him as a witness, and the possible consequences 
 to himself of telling his story, as well as to his partner; vide 
 supra : par : 30. This does not appear from the proceedings to 
 have been done; nor indeed does any specific charge as to the nature 
 of the offence, appear to have been made till the judgment was 
 pronounced. It is usual in the D. Cs., after hearing the original 
 complaint, to state to the party accused, and to record in the pro- 
 ceedings, the precise offence with which he is charged. And 
 this is absolutely necessary, in order that the defendant, or his 
 legal adviser may know how to shape his defence. In the pri- 
 sent instance, the evidence necessary to repel a charge of con- 
 spiracy might have been very different from that which would be 
 necessary against an accusation of simple fraud, or an attempt or 
 an instigation to defraud. But supposing the Drum-major to have 
 been regularly received as an accomplice, giving evidence for the 
 Crown, that evidence ought to have been supported in every pos- 
 sible way by less exceptionable testimony. Yet the person, 
 whose evidence would have been most material in this case, the 
 Commanding Officer, namely, who signed the letter, was not called. 
 The evidence of that Gentleman would have been of great im- 
 portance, in shewing the degree of misrepresentation used by one 
 af the conspirators, the Drua-aaajor; more especially when tke
 
 Prosecution. 
 
 evidence given by that person on the second occasion is consi- 
 dered. For he then says that the defendant " did not ask him 
 " to get the letter franked, as a soldier's letter, but he [the 
 ** witness] could not have got it done in any other manner." 
 This indeed, coupled with his statement in answer to the defen- 
 dant's questions, that " the Shroff asked him to get the letter 
 franked" would really look as if the deception was conceived by 
 the Drum-major, and by him only. For though his previous 
 deposition is much more pointed as affecting: the defendant ; still 
 where the principal witness for a prosecution gives' two versions 
 of the same transaction, the Court is bound to adopt that which 
 is most favourable to the party accused. And if, from the tes- 
 timony of the Officer Command ing, it had appeared, as it proba- 
 bly would have done, that the letter was presented for signature 
 and signed with a number of others, without any special repre- 
 sentation as to this one in particular, the presumption would 
 have been very much strengthened, that the defendant made his 
 request for a frank in general terms, and that the request was 
 acceded to, without any thing being said as to the particular kind 
 of frank, or the mode in which it was to be obtained. And it 
 is to be observed that the evidence of Mr. Hogg is much too 
 loose to shew that the address was written at the immediate de- 
 sire of the defendant. It has been urged by the Deputy King's 
 Advocate, who admitted with great candour the difficulty he felt 
 in supporting the conviction for a conspiracy, that the defendant 
 had, at all events, been guilty of inciting the Drum-major to the 
 commission of an unlawful act. It might be sufficient to say, 
 in answer to that argument, First, that the defendant has not 
 been convicted of that offence; and secondly, that adopting the 
 last statement made by the Drum-major, and that made on his cross 
 examination by the defendant, it would appear that the defendant had 
 simply * 'asked him to get the letter franked." But this Court feels 
 bound to state that it entertains strong doubts, whether a conviction 
 could have been supported for a simple fraud, even if the defendant 
 had been shewn to have taken a prominent part in procuring the sig- 
 nature of the Commanding Officer. It ( is not usual, orjn general
 
 90 Prosecution. 
 
 desirable, to enter into matters not immediately before the C 
 for decision ; but an exception is made on the present occasion 
 io order that other more effectual measures may be resorted to, 
 if deemed advisable, to prevent the abuse of this indulgence and 
 also on account of a position laid down in the judgment, which 
 may, perhaps, be carried a little too far. The general princi- 
 ple laid down by the D. J. is perfectly well founded, on autho- 
 rity: "all deceitful practices in defrauding or endeavouring to 
 "defraud another of his known right, by means of some artful 
 "device, contrary to the plain rules of common honesty, are con- 
 demned by the common law, and punishable according to the 
 " heinousness of the offence." vide supra: title "Fraud." The 
 expression " or endeavouring to defraud" &c. must, however, 
 be taken with great qualifications. Tne general rule, indeed, is 
 that success is necessary to complete the offence, unless the means 
 used constitute an offence in themselves, as forgery for instance. 
 Thus, a man may be convicted of obtaining money or goods 
 under false pretences; but not, if he have only attempted and 
 failed. In the present instance, the attempt has been unsuccess- 
 ful, for the letter has never reached its destination. But even 
 if it had, the deception would have been rather on the Com- 
 manding O Tic er, than on the Revenue. NO loss would have been 
 proved to have been sustained by the Revenue; for it does not 
 follow that if the signature could not have been obtained the let- 
 ter would have been sent at all. Again the Regulation No. 3 
 of 18 12. not only imposes no penalty on this species of deception, 
 but does not even declare that it shall be unlawful. And the 
 8th clause of the advertisement cited by the D. C. [supposing that 
 it could be received as law] only directs that no letters from 
 Soldiers &c. shall pass free of postage, unless signed by the Com- 
 manding Officer. Ii is for those O.ficers, therefore, to whom that 
 privilege, if it may be so called, is entrusted, to icuard against 
 deception, on the part of those, to whom the indulgence is granted'* 
 No. Kai.dy 2d May 1935. 
 
 40. The Regulation No. 3 of 1831, confirming the tolls esta- 
 blished on Roads, Bridges &c,, enacts that any one who shall
 
 Prosecution. 59 1 
 
 pass, or attempt to pass over such Roads, Bridges, &c. without 
 paying the established toll, or shall aid and abet &c., or shall 
 molest or obstruct the toll collectors in the execution of their duty, 
 shall be punished by fine or imprisonment. We have already 
 mentioned under this title par: 22. a case in which the rights 
 and duties of toll collectors were incidentally touched upon ; though 
 as the principal points was the relative conduct of complainant 
 and defendant it was thought more convenient to mention it in 
 that place. The two following cases arose on prosecutions by 
 toll collectors, for alleged breaches of the Regulation, though in 
 both instances, they failed in bringing the defendants within its 
 provisions. In the first of these cases, the defendant had pass- 
 fed the toll-gate with his cart, paying full toll ; and on his return 
 the same day, the toll gatherer demanded half that amount, which 
 the defendant refused to pay, but offered to abide by a refer* 
 ence to the Assistant Agent, who was also the D. J. The refer- 
 ence was made, and the Agent gave his opinion against the 
 claim, the toll gathered however, prosecuted 'he defendant "for 
 attempting to pass without pajing the toll, <tnd on the D. C. dis- 
 missing the complaint, he applealed to the S C., alleging 
 that the opinion expressed by the Assistant Agent was not con- 
 clusive, and that though the conditions under which he held the 
 right to collect the toll did not expressly give this half toll on carts 
 returning, still he was entitled to it as matter of usage, of which 
 he could produce evidence. The decree of dismissal was how- 
 ever affirmed in the following terms :" it would have been im- 
 possible, by any evidence which could have been adduced, in 
 support this proceeding in the shape of a criminal prosecution. 
 The complainant admits that "the conditions do not lay down 
 the rule contended for, but contends that custom entitles him 
 to it" that is, to demand half the full toll on a cart returning 
 after having once passed and paid ihe full. It is much to be 
 lamented that any right to demand toll should be left to rest on 
 mere custom, and should not even have found a place in the 
 conditions or contract, entered into between Government and the 
 toll collector. But as such is the case, it would be in the highest
 
 692 frotecutio*. 
 
 degree unjust to convict a man of a criminal offence, because he 
 questioned the rii>ht of the toll collector, not altogether to any 
 toll, but as to the precise amount. Such a doubt was perfectly 
 justifiable under the circumstances, and could never be construed 
 into an "attempt to pass without paying the established loll,'* 
 within the meaning of the Regulati on. The opinion of the As- 
 sistant Agent, it is true, is not binding on the D. C: and where 
 the office of the Agent and that of D. J. are united in the same 
 person such opinion ought not to preclude the right of a party 
 to urge his claim before a D. C., any more than if those offi- 
 ces were held separately. But at least the reference to the Agent; 
 and the willingness expressed by the defendant to abide by the 
 decision made, go very far to shew that the defendant had no 
 intention to evade the payment of the toll, as soon as the proper 
 amount was duly established. The S. C. affirms the decree, 
 not in consequence of the decision of the Assistant Agent, but 
 because the complainant's own statement is subversive of all grounds 
 on which the prosecution could rest. No. Caltura [criminal] 
 
 14th October 1835. 
 
 41. In the other case on the toll Regulation, which was from 
 the same Court, aiid in which the complaint was also dismissed, 
 the facts will appear from the following judgment of the S. C., 
 affirming the dismissal. " It appears that in this case, the com- 
 plainant is authorized by his contract with Government, to levy 
 tolls at Vittnegeywatte ; but that, for certain reasons of advantage 
 to the toll collector, the toll is actually taken at Toenman Handy, 
 about two hundred fathoms distant from Vitanegeywatte. That 
 the defendant, with a log of wood in his cart, passed Vitanegey- 
 watte, but before aniving at Toen-man Handy, where the toll 
 house is placed, he discharged his load into the canal, which 
 must be situated between those two places. The complainant 
 urges that his predecessors have been in the habit of collecting 
 the toll at Toen- r man- Handy in order to prevent evasion of it; 
 and he contends that, as his contract authorizes him to levy it 
 at Vitanegcywatle, all carriages passing that spot are liable to 
 pay, and that it is of little consequence whether it be paid on
 
 Prosecution. 598 
 
 rr enact spot, or at a little distance from it. B\it by shifting 
 the place of the toll house, the public may have naturally been 
 hd to suppose that the liability to pay only arises on passing 
 the spot where it actually stands. lu the present instance, for 
 example, the defendant may have concluded that, if he stopped 
 short of the toll house, he should not be called upon to. pay, 
 euy more than a person who gees to the foot of a Bridge, without 
 passing over it. And it is very probable that, if he had been 
 aware that the toll could be demanded of him for merely pas- 
 sing Vitattegeywafte, he would have conveyed his outrigger io 
 some other way to the canal, which it is plain can be but a 
 very short distance from Vitanegeytcalte. If it be intended that 
 the toll should be taken at two different places, this should be 
 duly "established." according to the terms of the Regulation, 
 and notified to the public." No. Ca.tura, 14th Otober 1835. 
 
 42. The four following cases arose out of prosecutions in- 
 stituted on the Customs Regulation, No. 9 of 1825. That Re- 
 gulation has, perhaps, been since repealed ; but these decisions 
 may be found not inapplicable, in point of principle, to any 
 other Ordinance passed in its place. The case which is about 
 to be mentioned may appear to occupy more space than the 
 immediate object of the prosecution would seem to call for: But 
 if the decision be correct, its authority will not be lessened by 
 the trifling ^alue of the subject matter of it; if it be incor- 
 rect, it cannot be over-ruled too soon, or, for that purpose too 
 widely published. The prosecution was instituted against a 
 Merchant of Colombo aiid a native, and after some doubt whether 
 it should be tried in the Supreme or the District Court, it was 
 at length agreed that it should be argued before the former 
 Court, on the admissions of the defendants. It was accordingly 
 argued by the King's Advocate in support of the prosecution, 
 and Mr. John Staples for the Defendants ; and the Chief Justice 
 pronounced the following judgment, in which the facts, as ad- 
 mitted, are stated. 
 
 43. "Tiis case comes before the Court on certain admitted 
 fects on which the public prosecutor and the defendants ace 
 57
 
 594 Prosecution; 
 
 desirous of obtaining the opinion of the Court, whether th 
 facts so admitted bring the defendants under the penalty im- 
 posed by Regulation No. 9 of 1825 for the obstructions of 
 Officers of the Customs. The Libel charges the'defendants with 
 having, on the 20th September last, unlawfully landed and 
 received from the Barque Eliza Ann, then lying in the port 
 of Colombo, in an unlicensed boat belonging to the said 
 barque, six TurkeySj at a place not assigned for the landing 
 of goods : And also with having obstructed and molested certain 
 Custom House Officers in the execution of their duty, against 
 the Regulation &c. On this charge, the defendants admit 
 that six Turkeys were landed and received in the manner and 
 at the place charged; but contend that the landing was not 
 illegal, and that the obstruction offered to the Custom House 
 peons was justifiable. It appears from the statements of the 
 King's Advocate on the one side, and of the defendants counsel 
 on the other, that the defendants were charged, in the first instance, 
 with having also received on shore goods liable to duly, and with, 
 having used personal violence towards the peons. It is highly satis- 
 factory to the Court to find the first defendant anxious to repel these 
 two charges; and to hear from the King's Advocate that the 
 e\ider,ce would not be such as to justify his asking for a con- 
 viction on those grounds. Such conduct, improper as it would 
 be in an) one, would be censurable in a much higher degree in a 
 person appearing before the Court as a British Merchant. It is 
 a'dmitted, then, that the act of the defendants was limited la 
 the receiving the goods at a place not assigned, and to the or- 
 dering the boat back to the ship, against the wishes of the 
 -; but without the exercise of any force, or personal vio- 
 . It remains jfor the Court to decide whether, under these 
 fact's so admitted,, the defendants have rendered themselves lia- 
 ble to the penalty imposed by the Regulation for obstruction of 
 the officers. And if I felt any doubt on the subject, I should 
 feel it my duty to take the opinion of the learned Puisne Judges, 
 before I expressed my own. But on reference to the differed 
 clauses of ihe Ri^uhuion -which- have been cited, and more es-
 
 Prosecution. &9S 
 
 pecially to the 63rd, which has been principally relied on, as 
 applicable to this case, it appears impossible to hesitate in de* 
 daring that the defendants have not rendered themselves liable 
 to the penalties thereby imposed. The 43rd & 49th clauses 
 direct that no slap shall land or take on board goods of any 
 description, except at the places assigned for that purpose: And 
 the 46th clause requires that all goods, landed or to be ex-* 
 ported, shall go through the Custom House: But the penalty 
 for the infraction of these clauses is declared to be, not a fine, 
 en the person receiving or shipping the goods contrary to these pro- 
 visions, but confiscation of the goods, and of the ship and 
 cargo : Aud '.here can be no doubt that the articles which were 
 landed 0:1 this occasion would have been liable to confiscation. 
 The 47th clause has been alluded to, as rendering illegal the 
 landing goods in an unlicensed boat ; but that clause allows the 
 boats belonging to the ship herself, to be used for that purpose 
 at all ports of the Island. It only directs that, at the Ports of 
 Colombo, Galle, and Trincomalie, no boats, other than the ship's 
 boats, shall be used, unless duly licensed. The 63rd clause of 
 the Regulation, on which the arguments at the bar have chiefly : 
 turned, enacts, "That any person, shipping or landing any goods 
 hereby prohibited, or on which the duties shall] not have been 
 paid, or receiving the same on board or on shore, or, in either 
 situation, obstructing or molesting any Custom House Officer in 
 the execution of his duty, or bribing or attempting to bribe, 
 shall on conviction, be fined not exceeding 100 or imprisoned 
 not exceeding six months." Now in the present instance the ar- 
 ticles landed were neither " prohibited goods," nor do they fall 
 under the description of " goods on which the duties had not 
 been paid " for they were not liable to duty at all. The case 
 of landing goods, at a place not assigned for that purpose, does 
 not appear to have been in contemplation in framing this clause; 
 at all events it is not expressed, and it cannot be brought within 
 the enactment by implication. The 60th clause, indeed, directs 
 that "any articles which may be legally imported, but which 
 hall have been landed, at an unlicensed place &c., shall b.e li-
 
 596 Prosecution. 
 
 able to confiscation: And the 62d clause enacts "that ever? 
 " commander of a ship, or owner, or consignee, of goods, who, 
 " shall be proved to have been privy to any act which, by 
 " any of the forrgoing clauses, subjects goods fraudulently im- 
 *' ported or exported to confiscation, shall be subject to pay a 
 " fine equal to the value of the confiscated goods." But as 
 regards the 60th clause, this proceeding is not for the confisca-. 
 lion of the goods: And with r-spect to the (52u d cl-us?; it can 
 scarcely be said, that goods, not liable to duty, and lha impor- 
 tation of which is permitted, have been "fraudaleniiy imported,'* 
 because landed at a place not pointed ov.t for that purpose, to 
 say nothing of the incongruity of applying the term " consignee'* 
 to a person receiving tix Turkeys from a ship. Where a law im- 
 poses certain penaliies on certain acts, as being frau'luieut, a 
 Court of Justice must be satisfied, with reference to the terms 
 used Ly the law, and the applicability of those terms to the 
 subject m-lter ir. question, that fraud has been practised or in- 
 tended, before it can Impose the penalty. But though the Court 
 entertains no ,'cr.dants are not brought within 
 
 the penalties impose;! T .y the Regulation, I feel bound to declare 
 ir,y equally decided opinion tint (he Custom House peons were 
 in the execution of their duty, and therefore that any obstruction 
 .em in the performance of that duty was an offence at com- 
 mon law, and punishable as such, according to the nature of the 
 offence. I feel anxious to express n;y opinion 0:1 this point, be- 
 cause it would be in the highest degree mischievous that it should 
 go forth to the world that any public oi'iice-s, \vheth3r their func- 
 tions relate to the administration of Justice, the preservation of the 
 public peace, or the collection of the Revenue, may be molested 
 in the execution of their respective duties by any person what- 
 soever. The e:sample to the native population of any British 
 born subject, still more if he was in the rank of a gentleman, 
 above all if he also appeared in the character of a merchant, 
 being allowed to oiler real and serious obstruction to Revenue 
 officers with impunity, would be most injurious. For with what 
 justice, the native would ask, can I be punished for smuggling-
 
 Prosecution. 59? 
 
 or any similar offence, if an english gentleman is declared to ba 
 free to resort to such practices without inquiry, or punishment, 
 if he be found guilty. As far as my individual opinion is of 
 weight, I should always feel inclined to visit any person falling 
 under that description, who should be proved so to have mis- 
 conducted himself, with threefold severity. As regards the case 
 now before the Court, since both the libel of accusitinn and the 
 arguments at the bar have proceeded entirely on the Regulation 
 it might be sufficient to add that, as the defendants have not 
 been broug'U within that Regulation, no sentence can be passed 
 upon them. But I shoul ! not feel satisfied, without adding that 
 even if '-he ds'endnnts I'.nd been, or were now to be, indicted 
 for this obstruction without reference to the Regulation, the pe- 
 nally which the Court would feel called upon to impose, and 
 which iudee'l t'^e King's Advocate seems to ask for, would be 
 a v, i . .:. <nu- ; no mnr? indeed than would be sufficient to 
 enforce the opinion already expressed. It is admitted that the 
 .;i complained of was confined to ordering the boatmen 
 to retuvn to the ship against the wishes, and the remonstran- 
 ces, ii; m.iSt be presumed, of the Peons. But it is also stated 
 'o be i cniclnce before the D. C., that bad weather was to 
 
 ; ,pre'uend< -.1 :t the lime, that the boat's crew were therefore 
 mvch wanted on board the ship, and that the first defendant 
 oil' ' o !vc the peons a note to the Collector of Customs, 
 rngaging to bo responsible for any act done by himself or by 
 
 crew. Although, therefore, the peons were fully justified in 
 searching- tlio Loa;, :-nd eve; in Viaining it, if they had good 
 ground for suppcsir.rr it i.o have been engaged in illicit impor- 
 tation, arid though it was the duly of the first defendant, if time 
 a:id circumstances permitted it, to apply for an order or license 
 from the Collector, instead of taking upon himself to order the 
 boat off, still it must be confessed that the absence of all 
 fraud as regards the object in view, and of violence in the ex- 
 ecution of it, the state of the weather, and the offer of written 
 responsibility to the Collector, all of which circumstances 
 ie slated oa the one side, and either admitted or not denied
 
 Proiecution. 
 
 on the other, do reduce this offence to one of minor impor- 
 tance, except as regards the effect which such an example 
 might produce on the public mind. "The King vs. Ackland 
 and another, Colombo, 3d November 1835. In consequence of some 
 doubts which were expressed, whether the defendants ought 
 not to have been declared guilty at common law of the obstruc- 
 tion of the peons, the Chief Justice subsequently stated still 
 more in detail the grounds on which he considered such con- 
 viction, on the present prosecution, impossible. That statement 
 is recorded in the S. C. It will be sufficient on the present 
 occasion to say that the substance of it was that as the de- 
 fendants had been called upon to plead to a libel of accusation 
 founded avowedly on a Regulation, and not in any way on the 
 common law, as they had made certain admissions, leaving it to 
 the Court to say whether the facts so admitted brought them 
 within the Regulation, it would be obviously unfair to take np 
 a new ground, and to contend thai, though t..e admissions did 
 not bring them within the Regulation, they still would be 
 sufficient to convict them al common law. And that this dis- 
 tinction was founded, not on any technicality of pleading, but 
 on absolute necessity, as a measure of strict justice to the de- 
 fendants; We have seen above, par: 9, No. 1281. Trincomalie, 
 that even the particular clause in a Regulation, on which it is 
 intended io ask for a conviction, ought to be pointed out. 
 
 44. As a general rule, an offence must be completed in order 
 to render the person committing it liable to punishment. And if the 
 law declares that an attempt to do a particular act shall be punish- 
 able offence, such attempt must be proved to have been acLually made; 
 and a bare intention to commit the act caunot be construed into an 
 attempt [see pa;agru;>h 52 infra, on prosecutions on vhe An 
 Ordinance]. A prosecution was instituted in the D. C. of J. 
 on the 60 and 62 clauses of Regulation No. 9 of 1825, for 
 the confiscation of certain articles, alleged to have been a'.tem 
 to be landed from a Dhoney at an unlicensed place, namely, 
 at Colombogam, instead of at the usual place near the Custom 
 House, It appeared that the Dhoney had a-achored at Co on
 
 Prosecution. 
 
 gam, and that the defendant, the master, who was also sued for 
 the penalty imposed by the 62d clause, had expressed his in- 
 tention to land his cargo there, but that the Ferry renter 
 prevented him, as the witness staled. The renter was not called 
 as a witness. There was some conflicting evidence, as to the 
 usual place of landing, one witness stating that it was usual to 
 land at Colombogam, when arriving from Illepikarave, but not 
 when coming from Manar. The D. C. considered the evidence 
 insufficient, and dismissed the prosecution, and on Appeal, the* 
 S. C. affirmed the dismissal. For the mere intention to land 
 the goods at Colombogam was not an attempt to do so ; the 
 defendant might have thought better of it, and relinquished his 
 intention. Then the evidence was defective, from the Ferry- 
 renter not having been called, to prove what it was he pre- 
 vented ; for the defendant might have yielded to his verbal 
 representations. No. 2106, Jaffna, 3d May 1834. 
 
 45. All proceedings on Revenue Laws, whether in the shape 
 of civil actions for confiscations, or of criminal prosecutions for 
 fines or other penalties, should be instituted with as little delay 
 as circumstances will admit. An action was brought on the 
 57lh clause of this Regulation, No. 9 of 1825 to obtain the 
 confiscation of certain cloths, brought in a Dhoney from Manar 
 to Calpentyn, and not included in the Manar portclearance. 
 The answer of the defendant was not very relevant to the point 
 in issue, except as complaining that thirteen months had been 
 allowed to elapse, between the commission of the alleged offence 
 and the institution of the action ; to which the plaintiff replied 
 that he had been waiting till he could obtain the portclearance. 
 On the day of trial, the D. C., considering that the defence 
 set up would be no answer to the action; gave judgment for 
 the confiscation, without hearing the witnesses for the defence. 
 On appeal to the S. C., the proceedings were referred back, 
 in order that the defendant's witnesses might be heard. "It 
 is possib'e," the S. C., observed, "that the evidence which 
 he may have to adduce may be such as, if not furnishing an>, 
 entire answer to the .action, might shew strong grounds for re-
 
 Prosecution. 
 
 commending a remission of Ihe confiscation, or at least for not 
 giving- costs against him : In cases partaking so much of. thft 
 nature of criminal prosecutions, the defendant's witnesses should 
 always be heard. It is also to be observed that the plaintiff 
 has given in his replication a very unsatisfactory reason for the 
 delay which has occurred in bringing this action. The Dhoney 
 arrived at Calpentjn on the 29ih of September 1S34, and the 
 action was not brought till October 1835 : And the only ex- 
 cuse for this most extraordinary delay is, that the plaintiff waited 
 till he was furnished with a copy of tlie Mam>r portclearance^ 
 The S. C. can scarcely suppose that the plaintiff was serious 
 in assigning as a reason for twelve months' delay in the execu- 
 tion of his duty, the want of a document, which it must be 
 presumed might have been procured with the greatest ease in a 
 wetk. The Crown, it is true, is not bound by the ordinary 
 rules of prescription : But it is the duty of Courts of Justice 
 to inquire into any apparent neglect of duty on the part of the 
 officers of Government, by which hardship or injustice may te 
 done to those who are prosecuted for breaches of the Reve- 
 nue Laws. And both hardship and iijusico must be inflicted 
 by any unnecessary delay in the institution of such prosecution?* 
 Unless, therefore, it can be shewn that the plaintiff was pre- 
 Terited by some cause, over which he had no control, from 
 procuring the portciearance within a reasonable time, the S. C. 
 will feel it to be its duly to recommend to the Government a 
 remission of the confiscation, even if the defendant should fail 
 hi establishing a good ground of defence " No. 2547. Chilaw 
 and Putlam, 3d February 183S. The result of this inquiry 
 tfould not have been communicated to the S. C., till after the 
 writer of these notes had left Ceylon. 
 
 46. A quantity of opium was seized and condemned, aa 
 having been illegally imported, on the ground that the person, 
 in whose possession it was found, produced a receipt for the 
 import duty, in which the quantity specified differed, in point 
 of weight, from that seized : It appeared that the seizure was 
 at a considerable distance from the place of lc/J x .trt, and
 
 Prosecution. 
 
 after sometime had elapsed [the opium had been imported, it 
 is believed, at Galle, and the seizure WMS made in the district 
 of Caltura]. The S. C. held, that, under these circums am-es, 
 the want of an import receipt, or the production of an insuf- 
 ficient one, w;is not, of itself, a sufficient ground of condemna- 
 tion. " It had been proved [hy an officer of the Customs 
 examined by the S. C. to this poin ] that it was not usual to 
 affix any maik at the Custom Houses on vessels containing 
 epura, as having been regularly imported : Un'ess, therefore,- 
 the possessor of this article were constantly to keep it pro ected 
 by the rectipt or permit, it might be coi si'lered liable to 
 seizure at any time, or at any place, however remote from the 
 time and place of import. And this protection it might be im- 
 possible to continue; especially where, as in the present instance, 
 the receipt covered a variety of different articles. For as it 
 could not be expected that all these ar.iclts should for ever 
 remain in the possession of the same person, some of them 
 tnust, on a separation, be left unprotected." No. 43, Caltura 
 [civil] 17th May Ib34. 
 
 47. The following decisions on the Arrack and To'ldy Or- 
 dinance, No. 5 of Ib34 will be arranged according to the order 
 of the clauses, to which they respectively refer. One or two of 
 the judgments run to considerable length ; but it is considered 
 better to insert them entire, than, by curtailing them, to leave 
 any doubt as to the grounds on which they proceeded, or di- 
 minish the means of contesting their soundness. 
 
 48. The second clause of the Ordinance requires that a Li- 
 cense must be obtained for distillation, specifying, among other 
 particulars, the place in which the Still is to be worked ; and 
 the 5th clause authorizes the seizure of all liquor distilled without 
 such license, or deposited in any place contrary to the Ordi- 
 nance. On these clauses, the S. C. held that a license to distill 
 in a certain garden protected arratk found in a shed in thit 
 garden, though the still iiself was in ano'.hrr building within the. 
 garden. No. 206 Amblangodde, 9th December 1835. 
 
 49. The two following cases were prosecutions on the lltli 
 
 58
 
 60 1 Prosecution. 
 
 dause of the Ordinance, for drawing Toddy without the cdr- 
 tihYa'e thereby required. The question in each case was as to 
 the sufficiency of the evidence to shew that the defendant had 
 actually drawn toddy, when .unprotected by a certificate, ai;d 
 in each case, the conviction was set aside, as not being suf- 
 ficiently proved. The nature and amount of the evidence will 
 be seen from the respec ive judgments which follow : 
 , 50. " Tbe ilth clause of the Ordinance, on which (his 
 judgment is founded, enacts that "every Owner or Renter of 
 " any tree from which Toddy shall be drawn without certi- 
 " ficate, shall, on conviction, be sentenced to pay a fine (or 
 " every tree," /row which toddy shall be proved to have been so 
 ** drown." In order, therefore, to bring the defendant within 
 this clause, there should be direct and positive proof of liis 
 havii g drawn toildy. Kow, not oi.e of the witnesses swears to 
 this fact, wish that degree of certainty which is necessary be- 
 fore the defendant can be pronounced guilty of this offence. 
 .The prosecutor states, " W e discove.ed that the defendant was 
 drawing toddy from fifteen trees without certificate." The Police 
 VidahnSays, "I found that the de!enc:ant drew toddy from fifteen 
 *' trees," Lut this appears to have been mere inference from the 
 facts of the trees being coupled together, and of the chatties 
 having been left in them, and from the admission drawn from the 
 defendant by the questions which were put to him. But with res- 
 pect to the coupling and iht cLatties, these facts amount at most K> 
 a suspicion that toddy had bten, or was intended to be drawn. 
 And it must be recollected that this was on the second day of the 
 new year, and that the defendant would appear to have been draw- 
 .ing up to the end of the past year, ii must be presumed with cer- 
 tificate, or the vigilance of these persons would scarcely have 
 tailed to detect the illegality before the year had concluded. There 
 is nothitig in the Ordinance to make it illegal for a man to leave 
 his trees united, and his chatties in the trees, after his certifi- 
 cate has expired, and it, as the defendant alleges, it was his 
 intention to apply for a fresh certificate, it was perfectly natural 
 Hut he should do so, and it is remarkable that when the de-
 
 Prosecution, <M3 
 
 ffendant said in Court " I pointed out pots, but there was nothng 
 in them," he was not contradicted in that assertion. Then the 
 admission drawn from him is by no means sufficient to warrant 
 the conviction. He was ask 'd, generally, from how many trees 
 he was drawing toddy ; and he appears to have at once answered. 
 But there was nothing in the question, put in these general 
 terms, to make the defendant suppose that it referred to that 
 particular day, or to the day belere. The same answer might 
 have been given to the same question, if the defendant had COOT 
 tinued to draw toddy to the last day of 1S35, and intended 
 to renew his drawing as soon he should have provided himself 
 with a iresh certificate. ISo enquiry appears to have been made, 
 as to the fact of his having had a certificate for the ( bst year. 
 It seems clear that the defendant considered himself protected 
 up to the end of the year, Jor he says that he " removed every 
 toddy pot but three from his trees before the 1st of January." 
 This was a point on which the Court might very easily have 
 satisfied itself; and it was a materiaU point." No. 154, Caltura, 
 3d February 1836. 
 
 51. The following is the judgment pronounced in the other 
 case on the llth clause: " there is absolutely no evidence what- 
 ever iu this case to shew that the defendant has been guilty of 
 drawing toddy, in contiaveniion of the llth clause of the Ordi- 
 nance. The conviction rests on the admission of the defendant, 
 that he removed his toddy pots on the 2d of January, The 
 judgment of the D. C. would appear to consider the leaving 
 these chatties in the trees for a single hour, after the certificate 
 had expired, was a punishable offence : This is not so. The fact 
 of trees being in the condition in which trees generally are for 
 the purpose of drawing toddy, is no doubt a circumstance from 
 which it may be inferred that toddy either has been drawn, or is in- 
 tended to be drawn; but it does not form that direct or posi- 
 tive proof, without which no man can be found guilty of a cri- 
 minal offence. The defendant, it S"ems, did draw tod'ly to the 
 end of 1835; and this must be presumed to have been done 
 legally. There was nothing extraordinary, therefore, certainty
 
 604 Prosecution. 
 
 nothing 1 illegal, in his allowing the chatties !o remain in his trees 
 till it suited hi- Convenience to remove them. The S. C. can- 
 not feel the apprehension, expressed by the D. C. of the evils 
 likely to ensue from an acquittal in this case. It is a complete 
 fallacy to say that ''every man wou'd plead the same excuse, 
 for an infringement of the Ordinance." It will be quite time 
 enough to inquire in'o the sufficiency of a plea or excuse, after 
 the Ordinance has been shewn to have been infringed. Until 
 that is shewn, no excuse is necessary ; and ihe infi ingement has 
 not been sh wn in the present ins'ance. Tue operation of draw- 
 ing toddy is not oae which can be performed in a moment^ 
 or in secrecy, or without furnishiug ample opportunities for those, 
 whose duty or interest it is to detect and prosecute illegal draw- 
 ing, to obtain direct and ocular proof of the fact" No. 150 
 Cahura, 3d February 1836. 
 
 5->. The 14th clause of the Ordinance prohibits the sale, by 
 retail, ef arrack, without license, under penalty of 5. for *very 
 offence. A per on was frtund in the fort of Trincomalie carry- 
 ing about arrack in a way which could leave little doubt it 
 was his intention to sell it to any one who would purchase it: 
 But there was no proof of his having actually sold any. The 
 D. C. having convicted him under the 14th clause, and without 
 hearing his witnesses, the S. (\, on appeal referred the proceedings 
 back to the D. C. for further evidence. "The defendant is in 
 all cases entitled to have his witnesses examined, especially on 
 criminal prosecutions ; and though the points which he urges in 
 his defence, an-i which he proposes to prove, may not appear 
 strictly revelant to the offence charged, it still is better that they 
 should be heard. But there is another point, to which it is ne- 
 cessary to draw the attention of the D. C. The offence charged 
 is a violation of the 14th clause of the Ordinance, which is di- 
 rected against the retail sale of arrack, without license. Now 
 there is no proof whaiever, of the defendant having sold any 
 arrack at all. His intention probably was to do so; but the 
 actual sale must be proved, before a defendant can be convicted 
 of this offence. The S. C. concurs entirely with the sentiment* 1
 
 Prosecution. 
 
 expressed by the D. J , as to the necessity of preventing this 
 pernicious practice of selling arrack to the ships' crews, provid d 
 the prevention c;m be effected by means strictly warranted by" 
 kw. And as there seems to be no doubt, from the evidence, 
 that the defendant was really in possession of the arrack, and 
 under circumstan 'es too of great suspicion, there appears to be 
 no objection to calling upon him to shew that he was lawfully 
 possessed of it, under one of the six exceptions specified in the 
 17th clause of the Ordinance, against the unlawful possession of 
 arrack. If he cannot bring himself within one of those excep- 
 tions, the possession was i legal : but it is impossible to support 
 the conviction on the 14th clause fur illegal sale." No. 
 Trincomalie, 30th December 1835. see also No. Ratnapoora, 1st 
 Ju!y 1835, where it was held that exposing the arrack for sale, 
 tviihout any actual sale, was not sufficient to warrant a conviction. 
 53. The next case which pres tits itself is a conviction, 
 founded on the 19th clause, for having purchase 1 a quantity 
 of arrack, exceeding two qunrts, from a retailer, without the 
 certificate of sale, which that clause requires the retai'er to 
 furnish. The S. C., in setting aside this conviction, expressed 
 doubts, "whether the omission by the renter to gnnt the cer* 
 tificate, though it might subject such renter to a penalty, 
 would render the possession of arrack by the purchaser illegal. 
 Bui it became unnecessary to decide that point, because the 
 proof did no, appear sufficient to shew that the quantity found 
 in the defendnni** possi>s>ion exceeded two quar'.s. It appeared 
 that two flasks [meaning, it w ss to be presumed, two bottles] 
 were produced in Court, as found in the defendant's possession: 
 But thus would not be above the quaiui'.y allowed to be sold 
 without certificate. It was true that the retailer stated he sold 
 two bottles and four drams to the defendant ; but the four 
 drams might have been consumed before removal. This Ordi- 
 nance being one of extreme severity, Courts must be quite sa'is- 
 fied that parties were brought within the spirit as well as the 
 letter of it, before they shou'.d be convicted of having infringed 
 it." No. Four Kories 3d February 1835.
 
 Prosecution. 
 
 54. The 25!h clause of the Ordinance enacts that no arraclq 
 exceeding two quarts and uiidrr fifteen gallons, shall be re- 
 tno\ed without a permit, to be n-rmted by the licensed retailer 
 of the rent division of the dishiet in which the removal shall 
 take place, which s-iall specify date, nain?s, quantity, period, 
 and places. Tue principal decision which has occurred on this 
 subject arose out of the former Regulation, No. 22 of 1820, 
 section 11, which had for its object the enforcement of a 
 similar permit. The point, however, in that case is one which 
 may arise, and has indeed arisen, on the 25th clause of the 
 Ordinance; namely whether the party removing the arrack is 
 responsible for the fraud or negligence of the retailer, in 
 granting 1 a permit, regular on the face of it, but which it exceeded 
 the powers of the retailer to grant: An important question as re- 
 gards the public, and one which was warmly contested. The judg- 
 ment affirming the decree of dismissal, is therefore given as it was 
 pronounced, and will disc-lose the facts, as far as they are material. 
 
 55. "Tuis case has been brought in appeal before the S. C., 
 as the King's Advocate has stated, for the purpose of giving 
 him an opportunity of stating those reasons and arguments 
 which he considers ought to induce the Court to reverse the 
 decree of the Court below, and to declare the defendant guilty 
 of a breach of the llth cla ;se of Regulation No. 22 of 1820. 
 The facts of the present case are admitted to be precisely si- 
 milar to those of the former case No. 251, already decided by 
 the same D. C-, and affirmed by this Court. That is to say, 
 'the defendant was found removing arrack, exceeding two quarts, 
 in open day, and under no circumstances of concealment or 
 suspicion, which would, in themselves, imply anything like a 
 consciousness of being engaged in an unlawful act: And in 
 justification of this removal, he produces a permit, srran'ed to 
 him by the renter, from w: ose tavern he was removing the 
 arrack. But then it appears that the place, at which the arrack 
 was seized, is beyond the jurisdiction of the renter ; that is, 
 beyond the limits within which that person, by his contract 
 
 Government, is authorized to sell arrack. And this is the
 
 Prosecution. $01 
 
 ground, and the only ground, on which it is urged that a con- 
 viction in the present case ought to be pronounced. For the 
 decision of this point, it is sufficient to consider the six first 
 lines of the llth clause; and the Court is relieved from th 
 neces-ity of endeavouring, as in the former case, in which other 
 grounds of conviction were urged, to make sense and discover 
 the meaning of the bad E iglish and un ritelligible language 
 which follows. The words, then, which the Court has to con- 
 iderj are these : " No arrack exceeding two quarts &c. &c^ 
 shall be removed, except upon a permit from the Collector, or 
 other Revenue officer, or renter acting under his authority." 
 This Court concurs With the King's Advocate that the words 
 "acting under his authority" must have been intended to have 
 reference to the authority, with which such officer or renter 
 would be invested by the Collector. And if the renter has 
 taken upon himself to overstep the bounds of such delegated 
 authority, he may possibly be liable to be sued or piosecuted, 
 either under the terms of his contract, or under those of the 
 Regulation. But when it is com< ndc d that this excess of au- 
 thority, if indeed any such has been commuted, is to be visited 
 on the defendant, and that hf. is to be treated as a criminal, 
 and as having Leen guilty of a breach of the Revenue Laws, 
 because he has trusted to, and considered himself protected by 
 the act of this recognized sub-agent of Government, the Court 
 cannot too publicly express J:s decided, unequivocal, and matured 
 dissent from such a proposition. In order to convict the de- 
 fendant of this offence, the Regulation should either have ex- 
 pressed the extent of authority, with which a renter should be 
 considered clothed ; or the most clear and explicit instructions 
 should, not only have been issued from the Collector to the 
 renter but should have been promulgated to the world by some 
 authoritative instrument, and in so public a manner as to pre- 
 clude the right of any person to plead ignorance of them. If 
 this were otherwise, the Regulation, as the Court expressed it- 
 self on the former occasion, would be a mere trap to ensnare 
 the public. The Law announces that arrack aiay lawfully b*
 
 removed on a permit from . the tenter, acting under the Collec 
 tor's autioii'.y: The renter issues a permit to a person buying 
 from his tavern. What then must the legal inference be, slill 
 more the inft rtnre of an uninformed person, but that the renter^ 
 the servant of Government, [for such he is, as regards the 
 granting permits] was strictly pursuing the authori y delegated 
 to him? Even, therefore, if it had been proved that the powers 
 of the renter had been deary and explicitly defined to him 
 by instructions from the Collector, the defendant would still 
 not be brought within the terms or spirit of the penal part of 
 this clause, unless it could have been s.iewn, further, that he 
 was cognizant of such limitation of the renter's powers, and 
 must, therefore, have known that the removal (if the arracft 
 was not covered by the permit. But tlie King's Advocate has 
 frankly admitted that no instructions whatever, printed, written, 
 or even verbal, have hitherto been given to t; e renter, except 
 such as are to be inferred from the eon.lilions on which the farm 
 of the arrack has been sold to him. Ttie necessity has been 
 tut too frequently forced upon this Court, of decLring that 
 It never can and never will look u r ou those conditions 
 as any thing but a contract, and the proof of a lontractj be- 
 tween the Government and the other contracting party. But 
 even supposing the instrument to be bin ling on the whole 
 world, it would r- quire the most ingenious subtlety to discover^ 
 any passage which could be bent or twisted to the inference 
 of any such limitation of authority. The lUth condition a;>plie3 
 only to the renter, and would, therefore, on the piin<ip'e of 
 *' exprntsio unius cxclvsio dltrrhts," rather furnish an argument 
 against a conviction in the present case. The 13th and 1 4th 
 conditions, again, are confined to wholesale removals; and even with 
 respect to them, it is not declared tuat a permit from each; 
 renter, through whose limits the arrack is to pass, shall be ne- 
 cessary. Ivol oi.e of the other conditions has the remotest re- 
 ference or allusion to the removal of arrack. As far as appears, 
 therefore, the Renters have been left wholly without inst ructions of 
 *ny kind, as to the extent of their authority in granting permit*. 
 '
 
 Prosecution. 
 
 56. "But it is next unied by the King's Advocate that the 
 Hmitsition contended for is matter of general notoriety, and, there- 
 fore, that the defendant must have known that he was acting 1 
 illegally. If this ground had been intended to be relied upon^ 
 it should have been legally and regularly established as evidence. 
 It is not sufficient for the Crown Officer to state that such noto- 
 riety exists: it should be proved by respectable and disinterested 
 inhabitants of the District. But even if it had been proved in 
 the fullest manner, a Court of Justice would have been hound 
 to pause and reflect very maturely before it found the defendant 
 guilty on such a ground. That which may be considered esta- 
 blished usage in one district may be viewed in a doubtful light 
 in the adjoining one, and may, perhaps, be directly contradicted 
 by the constant practice of the next. The Renter, too, is con- 
 stantly changing: the Renter of to day may consider himself 
 restricted to licensing removal within his own limits his suc- 
 cessor of to morrow may imagine himself authorized to issue 
 permits throughout the whole Collectorship. And this absolute 
 uncertainty and absence of all fixed limitation may have led the 
 D. C. to the opinion, expressed in its first Judgment, that the 
 power of the Renter in granting Permits was coentensive with 
 that of the Collector. But even supposing that such an under- 
 standing had been proved to exist, notoriously and universally 
 throughout the Island ; this would still only amount to a noto- 
 riety of public, opinion founded on no tangible or substantial 
 ground whatever; and, as far as the evidence goes, without 
 even the verbal order of an Officer of Government to support it. 
 A penal law should have something much more distinct and 
 palpable to mark those acts the commission of which is to bring 
 the person performing them within iis penalties. 
 
 57. " It has been stated that many convictions have here- 
 tofore occurred in the Revenue Courts for this offence,* and under 
 the same circ instances. But as this is purely a question of law, it 
 is obvions that such decisions would not be entitled to any great 
 weight, unless one of them at least had been confirmed by the 
 
 late High Court of Appeal. No such confirmation appears to 
 59
 
 Prosecution. 
 
 have token place , nor indeed h;is any one such decision been 
 cited, as having occurred even in the Courts below, wi'hin the 
 recollection of the hat. li is, therefore, to be honed that the 
 King's Advocate has been misin'brmed on this point, and that 
 no such decisions have really been made. Hut admitting that a thou- 
 sand such convictions ha<i heen passed and acquiesced in, is it to 
 be presumed that this Court, when this point is for the first 
 time brought to iis notice will shrink from declaring- that every 
 one of such convictions w<re iiU-ga!, and that the view no\ 
 taken of the Regulation by the D. C., though taken for the 
 first time, is the correct one? 
 
 58. "It hp.s betn suggested by the King's Advocate that, 
 though the defendant has brought himself within the letter o r the 
 Regulation, and therefore, ough; to be convicted of a breach of 
 it, still it would be a proper case for the merci-ul interference of 
 the Governor; and he has even offered himself to recommend it in 
 light to His Excellent y. It is not very easy to reconcile 
 that suggestion with the expediency ef again pressing- this point 
 to a decision ; more especially as it is intimated that such in- 
 structions have heen given by the Officers of Government, as 
 will effectual !y prevent any doubt on the subject hereafter. But 
 as tl:e point has thus a second tmie been brought up in ap- 
 peal for Judgment, it must be decided according to what the 
 1 ourt considers to be law, without reference to possible conse- 
 quences. If the defendant had been shewn to have infringed 
 the Ri-ulation, the Court would have bten bound to impose the 
 penalty upon him, nor would it haw h;id any right, or probably 
 any wish, to ii q-'ire w. ethtr that penal, y had been enforced or 
 remitted. But Holding (he opinion which the Court does, it would 
 be a strange perversion of iis high authority, if it were to send 
 the defendant as a suppiicunt at the feet of Government for a 
 remission of punishment si worded against him for an offence of 
 which the law declares him to have been inncci nt. 
 
 59. "The Court cannot conclude its Judgment without re- 
 ferring to a c;isie, in which a defendant has betn convicted on 
 the late Cinnamon Regulation No. 5 of 1SS3> sect: 6. ancLwhich
 
 Prosecution. 611 
 
 convict-inn is about to be set aside: vide infra par. 64. Trie facts 
 of that case bear a strong : analogy to thus? now before the Court : 
 Two persons were found carrying cinnamon, exceeding ten pounds, 
 within the district of Caltura; and, on bring asked for their au- 
 thority, produced a permit, granted and sigiu-d by the Cove-ru- 
 men t Agent of the Southern Province, authorizing the first de- 
 .fendant (byname) to convey 100 Ibs. from some place in thte 
 Caltura district, to the Government store at G;ille. The D. C. 
 of Caltura considered that the Government Agent had no ricrht 
 to grant a permit for removal from beyond the boundary of his 
 Province, and the defendants were therefore convicted. With the 
 exception of the difference of rank of the Officer granting the 
 Permit, the two cases appear to be extremely similar. The 6th 
 clause of the Cinnamon Regulation directs "thai no cinnamon 
 above ten pounds weight shall be removed &c., without the writ- 
 ten permit of the Collector of the district or Province, in which 
 the place, from which the chinamen is intended to be removed, 
 shall be situate, or of any other person duly aulho/ized in that 
 bthalj" Now the Officer who granted this cinnamon permit 
 is certainly not the Government Agent "of the Province, in which 
 the place /row which &c. is situate." But is it not to be pre- 
 sumed that lie is duly aulhnrztd to grant permits beyond the 
 limits of his own Province? Does not this presumption arise 
 from the very fact of his having granted it, and from (he im- 
 probability of Lis so acting without due authority ? Or if he have 
 exceeded his powers, can it be contended that the defendant 
 should be punished, for h-iving relied on the assurance conveyed 
 to him by this Permit, that he would be safe in removing the 
 cinnamon from the Caltura district to Galle? The office pf 
 Government Ageir, the immediate organ of Government, it is true, 
 would give additional weight to the guarantee afforded by him, 
 and to the security into which the defendant must have been 
 lulled by his signature. But in point of principle, the two cases 
 are as nearly analogous as possible. In each instance, the law 
 declares that certain acts may 1 sanctioned by certain O.nceip 
 of Government, duly authorized . thereto ; in each instance, af a
 
 Prosecutian.- 
 
 Officer nf Government [f. r again the Renter must be so consi- 
 dered quoad hoc] Jias tak =n upon himself to act as if he were 
 duly authorize-!" No. 393. Colombo, 20th August 1834. 
 
 60. In the foregoing cases it will be observed that the 
 permits were not defective, on the face of them, in any of 
 those requisites which the law had declared should be essential 
 to their va 'Llity. Where, however, a defendant was convicted 
 pn the 25. h clause, on the ground that the permit omitted 
 to state either place or period, the S. C., affirmed the con- 
 viction. The Judgment observed, "This decision is in noway 
 at variance with those which have lately been pronounced 
 on the 1 1th clause of the Regulation. The ground on which 
 convictions were sought for i;i those cases was, that the renter, 
 by the terms of the permit, had exceeded the authority granted 
 to him by the Collector or Government Agent. But of that 
 authority, no definition or limitation is to be found in the 
 Regulation, or elsewhere. It appeared, indeed, by the admis- 
 sion of the King's Advocate, that no instructions had ever 
 been issued to the renters by which they themselves could 
 know the extent of their authority in this respect. In the 
 present case, the permit is defective in one of those points of 
 information which the Regulation has declared, specifically, shaft 
 be one of the requisites of the instrument. It is indeed de- 
 fective iu two of the required qualifications; for it neither 
 States the place to which the arrack is to be removed, nor the 
 period during which the permit is to be in force, either of 
 which defects would be fatal to the validity of the permit : 
 This Court is very much inclined to agree with the defendant 
 and appellant, that the omission ought to be attributed to the 
 fault of the renter, whose duty it was to insert every thing 
 that was necessary, rather than to that of the defendant. But 
 the question before the Court is, not which of these two per- 
 sons was most to blame, but whether, under the Regulation, 
 the defendant has or has not incurred the penalties of confix 
 cation and fine. And as no body can be allowed to plea* 
 ignorance of the Law, aud as this conviction is clearly sui..-
 
 Prosecution. 
 
 ported by Law, it is the duty oF this Court to affirm it. Any 
 remedy, which the appellant may have, must be sought for 
 either by mitigation from the Government, or by action against 
 the renter, if the appellant should be advised that he has 
 pood ground for such proceeding." No. 493, Colombo 17th 
 September 1884. 
 
 61. We have seen that where a prosecution was laid oh 
 tbis 25th clause, for removing one gallon and upwards of ar- 
 rack fiom one rent division to another, but the removal proved 
 was from one place to another within the same division, with- 
 out permit, the defendant could not be convicted on that pro" 
 secution ; supra: par: 10. 
 
 62. The 27th clause, after directing the confiscation of alt 
 arrack exceeding two quarts, removed without, permit correct!? 
 stating the quantity, enacts that the owner of such arrack shall 
 be liable to a fine of 30 shillings for every gallon so removed ; 
 and every other person, employed or concerned in such remo- 
 val, who shall not give up the name and abode of his employer, 
 shall pay a fine not exceeding 10 for each offence. In one 
 or two instances, persons who were found in the act of re- 
 moving arrack, without a sufficient permit were convicted on> 
 this clause, ;>nd fined as owners, without further proof of owner- 
 ship than the being found in possession of the arrack. The 
 S. C., however, considered that some further proof was neces- 
 sary to convict them as owners ; and that where no such proof 
 existed against a defendant, and he had not refused to give up- 
 the name of the person by whom he was employed, he did 
 not tall within the terms of either branch, of the 27th clause. 
 No. 882, Colombo, South, '20th May 1835, see also No. 795 
 from the same Court. 
 
 63. The 3 1st clause of the Ordinance directs that in default 
 of payment ot fines, defendants shall be liable lobe imprisoned 
 for two mouths for ev.ry pound of fine unsatisfied. A D. J. 
 inquired of the S. C. whether he should be justified in imprf- 
 *>uing a defendant for one month, till a fine of ten shilling* 
 paid, being at the rate.. of ?' two mouths for every 'pound
 
 614 Prosecution. 
 
 which shall remain unsatisfied." An answer w;;s returned 
 "That as the 31st clause did not expressly provide for the 
 duration of imprisonment, which should be considered equivar 
 lent to the fine imposed, where the fine was under l, the 
 best course appeared to be to direct simple imprisonment, 
 without hard labor, till such fine be paid, limiting however the 
 term to one month, not by direct operation of the 31st clause, 
 but by the exercise of fhe discretionary power of the D. J , 
 taking- the 3!st clause as his guide : Tnat this opinion, which, 
 was only that of the Chief Justice individually, was sent, in 
 order that the defendant might, not sustain any addition:'.! im- 
 prisonment or inconvenience by the delay ; and that the matter 
 must still therefore be considered perfectly open to appeal by 
 ither partv." L. B. 4, 5, December l&.'.-5. 
 
 64. Of the two cases which present themselves on the Gin-, 
 fiamon Regulation No. 5 of 1S33 one has already been men- 
 tioned, as bearing a stiong analogy to those which were decided 
 on the Arrack Ordinance, on the subject of the permit for 
 removal; supra: par: 59. The 6th clause of this R?gulation 
 makes it unlawful to remove Cinnamon, exceeding 10 Ibs. 
 " without the written permit of the Collector of the District 
 or Province, in which the place from which the Cinnamon is 
 intended to be removed shall be situate, or of any other per~ 
 son duly authorized in that behalf." The two defendants 
 were carrying Cinnamon, exceeding 10 Ibs , within the District 
 of Caltura, on the authority of a permit, granted and signed 
 by the Government Agent of the Southern Province, authoriz- 
 ing one of the defendant by name, to convey 100 Ibs. from 
 the Caltura District to the Government store at G.ille. The 
 defendants were convicted by the D. C. of Caltura, as not 
 being furnished with a valid permit, within the terms of the 
 6th clause. The S. C'., however, set aside the conviction, on 
 the following grounds: "The conviction in the present case 
 rests, as appears from a marginal note of the D. J., on the 
 ground " That the Government Agent of the Southern Province 
 had no right, under .the Regulation, to give a passport tor tha
 
 Prosecution. 
 
 Removal of Cinnamon from beyond the boundary of his Pro- 
 tince." If the power had been limited to the Collector, as 
 described by the clause above recited, the proposition of the 
 D. J. would have been incontrovertible ; though still it might 
 be doubted whether the defendant, having acted under authority 
 which, ostensibly, might so safely be relied upon, could fairly 
 be said to come within the spirit of this penal enactment. But 
 may not the Government Agent fall within the second class of 
 persons authorized ? May he not have been "duly authorized " 
 tb grant permits beyond the limits of his own Province? Is 
 it rot (he presumption, which the Law must necessarily raise, 
 that he has been so authorized ; and that if he had not, he 
 never would have granted the permit in the terms in which it 
 is couched ? Or, if he has exceeded his authority, can the 
 defendant be punished for having trusted to the protection held 
 out to him by the immediate officer of Government who, he 
 was bound to presume, would not exceed the limits of his 
 power ? If this were otherwise, the Regulation would in truth 
 become a snare, from which the public, wi;o have no means 
 of ascertaining what persons are or are not authorized, or to 
 what extent, would find it difficult to escape, whenever it became 
 necessary to remove Cinnamon from out District into another." 
 ]SIo. 191 Caltura, 20th August 1834. 
 
 65. Another question arose on the vnlidity of the permit 
 required by the 6tii and 7ih clauses. On a prosecution before 
 the S. C., lor removing Cinnamon with an insufficient permit, 
 the objection to that instrument appeared to be that the quan- 
 tity removed was less than the quantity specified in the per- 
 mit. The jury, under the direction of the Court, found a verdict 
 ot guilty, subject to the following objection, taken by the de- 
 fendant's proctor: "That although the quantity of Cinnamon 
 removed was less than that specified in the permit, yet the 
 requisites of the Regulation had been substantially complied 
 with, and no traud on the part of the defendant had been 
 shewn." Tne Supreme Court, having taken this objection 
 into consideration, was of opik>i that sentence ought to be
 
 Protectttttin. 
 
 arrested; and the defendant was accordingly discharged. Co- 
 lombo, fourth session of 1834, 15th November. It may be 
 useful to point out a distinction which appears between the 
 Cinnamon Regulation and the Arrack Ordinance, on the subject 
 of the quantity specified in the permit not agreeing with the 
 quan ity of the article actually removed. Tae 7th clause of 
 tbe Cinnamon Regulation, after directing that " the officer of 
 Government, thereto authorized, at any place from, through, 
 and to which Cinnamon is removed, shall ascertain whether 
 the quantity removed corresponds with the quantity in the per- 
 mit " goes on to enact more explicitly that " if it be attempted to 
 remove above 10 Ibs. without permit, or a greater quantity than the 
 quantity specified in the permit," without saying any thing about a 
 less quantity, then confiscation and fine are to tollow. Tke 27th 
 clause of the arrack Ordinance goes tan her, and enacts that 
 all arrack exceeding two quarts, remo-.ed without permit, or 
 exceeding in quantity, or Jailing short of, the number of gal* 
 Ions specified in the permit &c., shall be confiscated. It would, 
 therefore, seem that, with respect to arrack, any material diff- 
 erence as to quantity, whether an excess or a dificieuey, would 
 be latal ; but that as regards Cinnamon, the excess only would 
 be a ground of conviction, and that a permit for the larger 
 quantity, according to the case just cited, protects the removal 
 of the smaller quantity. 
 
 66. Oi:e case only occurs as having been decided on the 
 Ordinance No. 4 of 1834. The 8th clause of that Ordinance 
 enacts " That no bullock cart shall ply for hire, or for the 
 conveyance of goods, within the towns &c. of Colombo and Galle " 
 unless licensed and numbered, as therein directed. On a 
 prosecution for a breach of this clause, it appeared from the 
 informer's own statement, " that the defendant was driving a 
 <:art loaded with thiee empty casks from Kandy to Colombo," 
 and he was stopped within the gravets of Colombo, on account 
 of his cart having no number. The D.. C. convicted the de- 
 fendant, but the S. C., on appeal, set aside the conviction." 
 This was not a ."plying" withij. the. tour gravels; it ws only
 
 *617 
 
 the prosecution of a jr'urney from K mdy to Colombo. To ply 
 vithin given limits means an offer of one's services, to seek employ- 
 ment, within those limits. In the present rase, thr hiring, 
 end, therefore, tie pljing, had takrn [lace at Kndy. If this 
 conviction could be supported, no can could v*nture in'o the 
 four gravels without a number, though coming, as in this in* 
 stance, from a place where no such license was required. No. 
 1,0-23, Colombo, 23d September 1835. 
 
 67. As to the strictness of construction, to be put upon all 
 penal enactments, see title "Land," par : 20. 
 
 68, See also titles " AppeaV par: 20. 1; " Arbi'ra'ion " 
 35, 6; "Assessors," 42,3; "Bail," 54, 5; " Conttmpt ;" 
 " Copies," 65 ; " Escape ;" " Evidence ;" " Gaming ;" "Im- 
 .prisonment ;" " Jurisdiction j" " Libel;" " Nuisance ;" "Po- 
 lice;" "Stamp." 
 
 PROSECUTION MALICIOUS. 
 
 Requisites to support action for this injury: Falsehood; want 
 of probable cause ; malice, express or implied ; damage sus- 
 tained, which may be aggravated by the profession or situation 
 of life of the plaintiff. Acquittal not a sufficient reparation. 
 See title "Libel," par : 9, 10 and 11, No. Chilaw and 
 Putlam, llth November 1835 and No. 949 Amblangodde, llth 
 September 1835. 
 
 QUANTUM MERUIT QUANTUM VALEBANT. 
 
 Por explanation of these terms, see title ** Commission," par: 
 67, (note) see also title 'Obligation," par: 9, el sequ: 
 
 RAJFKARIA. 
 
 How far performance of, pi oof of right i" the person per- 
 forming it, see titles " Kandy," par: 3 and 151, "Land," 
 par: 15, and "Temple" par: 2. 
 
 Abolition of thip service, by order in Council of 1 2th April 
 1632, with certain rfstrvaiious; see title "Kiindy," par: 24. 
 Q
 
 619 
 
 RECOGNIZANCE. 
 
 Requires no stamp : Letter Book 14, 21st November 1833, 
 infra: title " Stamp," par: 24, 25 
 
 May be sued upon civilly, Letter Book, 1st, 6th, 16th Au- 
 gust 1834 : And is not to be confounded with fine or other 
 penalty in the shape of punishment : supra: par: 290. 
 
 REGISTRATION. 
 
 Of Marriages , see title " Husband and Wife," par: 21 4, 5, 6, 
 Of instruments &c., authority of persons to certify, as duly le- 
 gistt-red ; see title " Nuntissemcnt," par: 3. 
 
 RENTER. 
 
 " Conditions " not binding on third parties, as to any penalty &c. ( 
 paragraphs 1 and 2 except a party adopt and consent to be bound 
 by them, ,par: 3. Renter stands in the place of Government as to 
 the right to the dues, par: 4. No claim for Land left uncultivated, 
 par : 5. Receipts of Renter, where land is sown with different grain, 
 par : 6. Amount of crop rather for the grower to prove, than the 
 renter, par : 7. Renter held liable for damage to crop, by his not 
 coming to fix his share, par: 8. Between Government and Renter, 
 Courts cannot interfere on matters resting on indulgence par : 9 and 
 10. 
 
 1. We have already had occasion to observe that the ''Con- 
 ditions " subscribed by renters are contracts between Covtrri- 
 ment and the renters, and between them only ; and that these 
 contracts are not binding ujjon third parties, unless the latter 
 have made themselves responsible to the renters, or except in 
 so far as the rights which Government might have tnfirced 
 against the public, have been transferred, by the couuitions, 
 from the Government to the renter: see tiile "Prosecution" 
 
 par : 36 am! jar : b5, where this principle is laid down, and is 
 shewn to apply with two-fold force to the attempt to tnferce 
 by means of Criminal prosecutions, any penalties inserted in the 
 conditions, not only as against the public, but against the ren- 
 ter himself. 
 
 2. The following case is a further exemplification of this 
 
 a *
 
 Renter. 
 
 principle, as regards Civil claims, arising out of the cond.Uon, 
 Jt was an action by a paddy renter for 40 Rixdollars, v,z : - 
 as the sum regularly due from the defendant's field and the 
 other 20, as a penalty for having reaped , the field, wahou 
 due notice to the renter. It appeared that the defendant ha< 
 tendered 20 Rixdollars, but that the plaintiff refused 
 offer, on the ground that he was also entitled to the penalty. 
 The \ssessors were of opinion that the plaintiff was entit 
 to the full sum of 40 Rixdollars: The D. J. considered that 
 hi. claim should have been limited to the 20 RixdoUrs, an 
 accordingly decreed that , he defendant should pay that sum and 
 that the plaintiff should pay the costs. On appeal by the pam- 
 tiff the S. C, affirmed the decree in the following terms 
 rin'ht whatever has been shewn on the part of the plaintiff 
 Jure than 20 Rixdollars, If the claim for the double sum b 
 founded on any thing contained in the renter's conditions, this 
 Court can only repeat what it has often been compe.U 
 clare that those conditions form a mere contract between Gu- 
 v.rnment and the renter ; and are not binding on third part.es, 
 further than such parties may, by their own acts, have made 
 thel nselves responsible to Government, or to the renters As 
 therefore, the defendant has been proved to have tendered 
 that was due from him to the plaintiff, the D. J. ^ 
 . very proper discretion, in directing that the pla.nt.ff should 
 av the costs." No. 2587, Ruanwelle, 20th Jmuary 1836 
 
 3 But if a cultivator, or any other private person, adopt 
 or recognize the conditions, by any act of his, he becomes r 
 lh a pariy to them, and must be held civilly hable for any 
 Te ch of'thL. Thus a paddy renter sued for one par rah an 
 L measures of paddy, founding his claim on . no e of hand 
 dated 5th March 1SS3, by which the defendant agreed to pay 
 his t-IOth share, according to Government cond.Uon. 
 eondi.ions, as recited by the plaint^ gave the renter the ng 
 to demand the tenth at the highest rate at wh.ch paddy houl 
 ha ve been sold at the p'ace in ques.ioa, between the tune 
 vest and the timeof actual payment. The D.-C. gave jadg*
 
 620 Renter. 
 
 for the plaintiff for the tenth, at the then value of paddy jfc 
 4he district. On the plaintiff appealing, the S. C. referred the case 
 ba- k for rehearing and reconsideration, on the following points: 
 "The defendant's note or acknowledgement is dated 5th March 
 1833; so that upwards of 15 months will have elapsed since 
 that date and the final decision ; and the defendant agrees to 
 pay "accprding to Government conditions." Although, therefore, 
 this Curt does not consider that the defendant is liable to the 
 fine, which the conditions of the rent purport to impose (inas- 
 much a those conditions, of themselves, form a con true t between 
 government and the renter only, to which third persons are not 
 parties) yet he has so far adopted the terms of the condition?, 
 that he has bound himself to pay his share, or the value thereof, 
 in the manner prescribed by those conditions. If, therefore" the 
 appellant has correctly recited the conditions, as far a they re- 
 late to such pajment, he is entitled to compensation, not merely 
 according to the present value of paddy, as directed by the de- 
 cree, but at the highest rate &c., as stipulated in the conditions. 
 The question of interest [w .ich the plaintiff claimed] ought also 
 to be considered ; for though the sum in this instance may ap- 
 pear very insignificant, this decision may be of no small im- 
 portance, both to the plaintiff and to others, as a matter of prin- 
 ciple and precedent." No. 128. Chavacherry 4th June 1834. 
 
 4. The position so often laid down by the S. C., and which 
 has been several times repeated in these notes., that the condi* 
 tions are a contract between the Government and renter alone; 
 has been carried too far by one or two D. J. who have ima- 
 gined that, as the public wer.e no parties to the conditions, the 
 renters had no legal right to claim the tenth or other dues 
 sold to them by Government. The subject was brought to the 
 notice of the S. C. on the claims of certain Dry Grain renters 
 for which they brought their actions, but which claims the D. J. 
 considered illegal, as being founded only on the bond entered into 
 by the renter with the Government Agent. The Judges of the 
 fi. C. directed an answer to be returned to the following purport 
 **Ttie view taken by the D. J. of this subject goes ftlrther
 
 Renter. 6S&1 
 
 than the opinion which the S. C. has at different times expressed 
 on this jioint would warrant. It by no means follows from that 
 opinion, that "the renters solely ground their right on the bond 
 they have entered inio with the Agent of the district." The 
 true foundation of their right is the sale or transfer to them by 
 Government (if a certain proportion of produce to which the Go- 
 vernment is entitled. That sale or transfer being established, the 
 renter stands in the place of Government, and is entitled to 
 whatever proportion of the produce the Government might have 
 claimed ; and to the same redress, by action at law, indepen- 
 dently of the conditions of sale, if such proportion be withheld 
 from him. As far as regards any extraordinary mode of pro- 
 curing payment to the renter, such as would not be afforded by 
 the common course of proceeding, and especially if it be by 
 means of any penalty, to be imposed upon the grower in case of 
 pon-payment, the Judges are certainly of opinio.n that the conditions 
 of sale, being a contract between the Government and the renter 
 only, would be inoperative; though they might properly be re- 
 ceived as evidence of the bare sale or transfer of the right of 
 Government to the renter. The fallacy in the reasoning of the 
 D. J. consists in supposing that the renter must necessarily rest 
 his claim on the conditions, which he subscribes on becoming the 
 purchaser of the tax." Letter Book 30th April, 8th May 1834. 
 5. In disputes, therefore between the renters and cultivators, 
 the best course would seem to be to lay the conditions out of 
 consideration, except as establishing the fact that the renter has 
 been declared the purchaser of the rent in question; and then to 
 decide, as if the point in contest were between Government and 
 the cultivator. An action was brought by a paddy renter for 
 one fifth of the produce which ought, as he contended, to have 
 sprung from the defendant's fiel.is; but which fields, the renter 
 complained, had been either left wholly uncultivated or at least 
 had been unproductive. The D. C. dismissed the action and the 
 dismissal was affirmed by the S. C. No law or custom had 
 been cited, by which the holder of land was bound to cultivate 
 it, and as the Government could have had no right to complain,
 
 (52t Renter* 
 
 fls far as appeared,- of (his inactivity on the part of the 
 
 <dant, the renter cou!<! claim no compensation for his alleged loss,.- 
 
 No. 6026 Mitur-s 15th March 1834. [circuit.] 
 
 6. The following opinion was that of the Chief Justice alone, 
 and was given, not as a judicial decision but merely to assist the 
 D. J. in forming 1 his own conclusions. The question arose in one 
 o the Northern districts, the inhabitants of which, it appeared, 
 had been in the habit of purchasing back or redeeming from Go- 
 .yernment the tithe paddy, to which their fields were li;b!e. la 
 the case in question the defendants had done so; but instead of 
 paddy, they had sown dry grain, with a small quantity of paddy 
 mixed with it. The dry grain renter then made hit claim, and 
 the question was, whether that claim could be supported. The fol- 
 lowing answer was sent to the D. J. "The question must de- 
 pend in a great measure on the terms in which the tithe rents 
 were granted ; or, if the terms be doubtful, on the construction 
 which custom and reason would put upon them. If the renter; 
 purchase of Government the tithe of all dry grain, grown in a 
 certain season within certain limits, without reference to the par- 
 ticular lands on which it may be grown, it would seem that the 
 defendant are liable ; because the dry grain which he has reaped 
 is not less dry grain from being partially mixed with paddy. If this 
 were otherwise, a cultivator might, by thus mixing his crops, evade 
 the payment of either tithe: For he might insist on its being con-, 
 sidered a paddy crop by the dry grain renter, and a dry grain crop 
 by the paddy renter. But. if the tithe purchased by the plaintiff 
 have reference to certain lands, whether enumerated in the contract^ 
 or pointed out by custom, as dry grain lands, his demand ought 
 to be limited to such lands. Again it may be necessary to .h>-< 
 quire the extent, to which the land in question is estimated as; 
 paddy land, in the agreement entered in:o by the defendants with 
 Government for the redemption of the pa.ddy tithe. If it b^> 
 only rated for the extent actually sown with paddy, there can- 
 be little doubt of the defendants being liable to the plaintiff}* 
 because otherwise, the agreement with Government might be a 
 mere colour, by which the real object, the evasion of Uie
 
 fetter. * 2 
 
 grain tax, was concealed. If it be rated as paddy land for the 
 *hole of its extent, then the question would arise, wheth 
 cultivator, having once declared his choice of crop and sett 
 for the payment of tithe on that crop is at liberty to chang, 
 his mind, row seed of another description, and claim exempt, 
 from the tithe on the substituted crop, on the ground of hul 
 having agreed for the payment on the crop originally intended. 
 If there should be the slightest fraud imputab'.e to the cultivator, 
 in any part of the transaction, he ought not to be allowed to 
 benefit by it." Letter Book, 24th June, 3d July 1635. It will 
 be understood that this opinion was by no means intended 
 invest the condition, or contract with any further authori.y thart 
 to define the extent to which tbe right to the tax might have 
 been transferred to the renter. 
 
 7 In an action by a dry grain renter for his share, the plaintiff. 
 rio-htwas not denied, but the question was as to the amount 
 the deiendanl'a crop which was estimated higher by the plaint 
 than by the defendant. Ttte plaintiff having failed to prove 
 his estimate to be correct, the D. C. considered it unneees- 
 Barv to hear the defend,m's witnesses, and limited the decree 
 to half a parrah, being the .mount which the defendant had 
 tendered. The 8, C, however, on appeal, referred the case 
 back, in order that the defendant might be called on to go , 
 e d nee, "It is true," the Judgment observed, "the pontiff 
 h not proved the amount of the crop, as estimated by hun- 
 Llf and the D. C. did right i te out , 
 
 8bew sa.islac.orn, 0* met -an.ouut = and ,f he M - . 
 do , lhe nce of ,he phlmar. fi t .n. , > * SMfc 
 
 do , lhe .vence 
 
 J. no reason ,o aiAeliove Mm, ou.h. to preva.1 No I 
 "la, 2d My I8. This case s a.so mcu.-oned .Uon.j 
 under, title "Evidence ".I**: 1W.
 
 \ft2i Renter. 
 
 8. It someiimes becomes necessary (o protect cultiratore 
 and others from the over exercise of the authority, which 
 renters are apt to fancy themselves invested with, when enfor- 
 cing the rights which the Governir.erit has temporarily transferred 
 to them. The "Government renter," indeed, seems to be often 
 mentioned among the natives as a public officer, rather than a 
 .mere farmer of taxes or cluti<s: An action was brought by a 
 grower of tobacco against the renter of the tobacco duty, for 
 damage sustained by the plaintiff, in consequence of the renter 
 neglecting to come and receive his share of the crop. It ap- 
 peared that the plaintiff had invited the defendant to come and 
 inspect the crop, and receive hi share, which the defendant, 
 after some dispute as to the proportion to which he was entitled, 
 promised to do. He never came, however, and the crop re- 
 mained in consequence on the ground for a year, by which it 
 was seriously damaged. The D. C. was of opinion that the 
 plaintiff should not have kept his crop so long, but ought to 
 have sold it before witnesses, and accordingly dismissed the 
 action. The S. C., however, considering the authority with 
 which the opinion of the naiives invests the renters, and the 
 fear which they consequently entertain of appearing to act ia 
 defiance of that authority ; and considerisg also the promise 
 made by the defendant to come and settle with the plaintiff 
 which may naturally have induced the plaintiff to dela^ carrying 
 his crop, directed Judgment to be entered for the plaintiff, lor 
 the amount of the loss proved to have been sustained in the, 
 value, deducting the share to which the defendant was entitled 
 as renter. No. 10,440, Negombo, 4th October 1833. 
 
 9. As between the Renter and Government it may b 
 obstrved, that the only safe rule of proceeding for Courts of 
 Justice is to deal wi.h all cases alike, whether between private 
 persons, or between Government on the one side, and any indi- 
 vidual on the other. A Court has no more power to devialt 
 from the rules of law, on account of the supposed hardship of 
 a particular case, than it has fo stnin them for the purposes 
 of oppression.. As regards the object ia view there would Ue,
 
 Renter. 62* 
 
 It is (rue, all the difference between the cases supposed, which 
 exists between white and black; but the illesa'ily is the same. 
 An action was brought by Government for arrears due by the 
 defendant, as renter of the privilege of sifting the sand for pearls, 
 for the year 1831. It appeared that the defendant did not 
 avail himself of his privilege for the month of December of 
 that year; and both the D. J. and his assessors considered that 
 he was entitled to a remission of his rent for that month: And 
 it was so decreed accordingly. The C. J., however, before 
 whom the case was heard in appeal on circuit, was of opinion, 
 " That this remission was not justified, either on principle, or 
 by the conditions ; that if this had been a case between two 
 private persons, it would have been no ground for ques- 
 tioning the right of the seller of the privilege to recover the 
 price, that the purchaser had not thought it expedient to exer- 
 cise the right, [for there was not a hint of the defendant having 
 been prevented from the exercise of his privilege during the 
 month in question], and therefore, that the defendant must 
 seek any relief, to which he considered himself entitled, from 
 the Government with which he had contracted," No. 41, Manar, 
 8th July 1834, on circuit. 
 
 10. We have already had occasion to observe, under title 
 'Jurisdiction," p: 2SO, 1, that the S. C. cannot interfere with 
 legal convictions, by way of remission, though it might sometimes 
 recommend cases to the favorable consideration of Government: 
 And so with respect to civil actions. Thus, where a ferry 
 renter* being sued for two instalments of his rent, claimed ex- 
 emptions on various grounds ; viz : diminution in the number 
 of passengers, heavy rains, and the Collector having been in the 
 habit of crossing the ferry with his people without paying ; the 
 S. C. considered that all these matters were for the considera- 
 tion of Government, to which quarter the defendant was accor- 
 dingly referred. No. 66, Manar, 3 1st May 1834, see also to the 
 same point, No. 115, Manar, which was an action against a 
 salt renter. 
 
 V. 61
 
 626 
 
 RES-JUDICATA. 
 
 See titles "Evidence," p: 115, "Judgment" p: 243 et 
 sequ : 
 
 RESTITUTION INTEGRUM. 
 
 See titles " Kxecuiiuu " (parate) : " Fraud," p : 197, 8, 
 ; Judgment," p: 250. 
 
 REVENUE LAWS. 
 
 See titles "Jurisdiction," p: 266, 272, et sequ: "Prose- 
 cution ; " " Renter." 
 
 SECURITY. 
 
 See title " Bail ; " and as to Security by Executors and 
 Administrators, see " Administration," p : 5 et sequ : 
 
 SEQUESTRATION. 
 
 When it issues : Rule 1 5 and following ones : May issue independent- 
 ly of rules, paragraph 1. But not necessary for going to trial ex- 
 parte, par: 2. Nor where defendant in prison on criminal charge, id. 
 Cannot issue into another district, to compel appearance: But 
 it seems it might to prevent fraud &c. par : 8. Sequestration 
 of property sold under erroneous decree ; query ? par : 4. At 
 the suit of Government, set aside under circumstances of negligence 
 and long delay par: 5. Property to be sequestered should be pointed 
 out or specified ; but proof not required, par : 6. Property of crimi- 
 nals absconding, sequestered under R. 17 of sect. 2, how to be dis- 
 posed of 7. Reference to other titles, 8. 
 
 1. The 15th and four following- Rules of the first section 
 provide for the issuing process of sequestration for the purpose 
 of compelling appearance, or preventing the fraudulent alienation 
 of property : But the power of D. C. to issue sequestratiou 
 is not confined to these two cases ; for we have seen under title 
 " Injunction " p : 230, that sequestration of U nd, pending action, 
 was sanctioned by the S. C., having indeed the effect of an in- 
 junction to res:rain the plaintiff from making away wiih the crop 
 before the case was decided.
 
 o r_ . 
 
 Sequestration. 627 
 
 2. In a case in which the pWlmps of the parlies were 
 completed, and which was ripe for tii>l, a D. C., on the ground 
 of numerous defaults made by the defen hint as to filing his 
 list of witnesses, granted a sequestration against his properly, 
 and ordered him to find security for his appear.-nce. The S. C., 
 on appeal, directed the sequestration to be taken off, withou 
 requiring security from the defendant. "Process of sequestra- 
 tion " it is observed; "was not necessary in this instance, 
 either under the Rules of Practice, or independently of them. 
 It could not issue under the 15th Rule, because the defendant 
 had already appeared, and answered : Nor could it issue under 
 the 19th Rule, because no proof was offered, as required by 
 that rule, that the defendant was fraudulently alienating his 
 property. But neither does there appear to have been any ne- 
 cessity for instituting this proceeding, or for the continuance of 
 the sequestration at present. The par-ies having arrived at issue, 
 that is, ha\iug terminated their pleadings, it was and is open 
 for the plaintiff to proceed to trial exparte ; and after the nu- 
 merous defaults made by the defendant, the D. C. would be 
 perfectly justified in proceeding to hear the case with the least 
 possible delay, giving notice of the different steps taken [Rule 21] 
 by personal service on the defendant, it he be to be found, or else 
 by leaving the notices at his last place of abode" No. 11909, 
 Ruanwtle, 2d December 1835. Where actions were brought 
 against certain persons, who were in prison, under a charge of 
 treason, the S. C. had occasion to observe, "That it would 
 be hard upon the defendants to issue sequestration against their 
 property under the loth Rule, as applied for by the plaintiff. 
 Indeed the Fiscai's return was, not that the defendants had not 
 been found ; it was only that they had been arrested by war- 
 rant of the Governor &e. Letter Book 22d ; 27th August 1834. 
 3. Process of sequestration having issued from the D. C. of 
 JafTra, for the seizure of a defendant's properly in the district 
 of Gallp, the D. J. of Galle inquired of the S. C. whether he 
 could regularly enforce the writ of sequestration which had been 
 so transmitted to him, under the 15th Rule. The D. J. had
 
 628 Sequestration. 
 
 endorsed the writ for execution by the Southern Fiscal in order 
 to avoid any loss being sustained by the delay, till his owr) 
 doubts were cleared up. The S. C. returned for answer, "That 
 the doubts entertained by the D. J. were perfectly well founded ; 
 that the 15th Rule of the first section limited the sequestration to 
 property within the district of the Fiscal to whom it was directed, 
 which, of itself, would be a sufficient reason, why this species 
 of process could not be carried into another district [or at all 
 events into the Province of another Fiscal, see title "Process," 
 par : 3] ; but that other reasons would suggest themselves, 
 arising out of the subsequent Rules of section 1 ; because the 
 subsequent proceedings, such as calling on the defendant by 
 Proclamation to appear, the dissolution of the sequestration in 
 case of his appearance, the entertaining the claims of third 
 parties, and the staying the original proceedings pending such 
 claims, would all be very difficult of execution, in a district 
 foreign to that in which the action was brought. That execution 
 might indeed issue into other districts, by the express provision 
 of the 36th Rule, but the same objections did not present 
 themselves in that stage of the proceedings." And in answer 
 to a further question, whether the D. C. ofGalle, having endorsed 
 the sequestration as the authority for the Fiscal to act upon, 
 would now be justified in ordering it to be dissolved; or whether 
 the writ should be returned to the Court out of which it origi-? 
 nally issued for an order dissolving it ; the S. C. expressed its 
 opinion; "That the sequestration should be at once taken off, 
 by order of the D. J. of Galle : For as the rules of prac- 
 tice did not authorize the issuing of this process into the dis- 
 trict of Galle, no time ought to be lost in placing matters in 
 the same situation in which they were before it issued. And 
 as the D. C. of Jaffna had no power to direct the sequestra- 
 tion to be put in force out of its own district, so any order from 
 that Court to dissolve the sequestration would be equally nuga- 
 tory." Letter Book 13, 16, 19. and 23d June 1834. It may 
 be well to observe upon this case, that the question, as put by 
 the D. J. of Galle, referred' to sequestration under the 15th
 
 Sequestration. 62ft 
 
 Rule, to compel appearance. If the object of the plaintiff were 
 to prevent the property being fraudulently made away with, 
 as would appear from the terms of the writ issued from the 
 D. C. of Jaffna to have been the case, there would seem to 
 have been no objection to the plaintiff obtaining a sequestration 
 or injunction independently of the rules of practice, as suggested 
 in the first paragraph, and under title "Injunction," p: 230. 
 The more regular course, by which to obtain this latter pre- 
 cautionary assisiance, wuld perhaps be by application to the 
 Court of the district in which the property is situated, sup- 
 ported by the plaintiff's affirmation, or an affidavit by a third 
 parly as to the circumstances, and a certificate from the D. C. 
 in which the action is brought, that the measure is called for 
 by the justice of the case. 
 
 4. Where property had been sold in execution under a de- 
 cree erroneously drawn up, and the D. J., in his anxiety to do 
 substantial justice, ordered the property to be sequestered, and 
 applied to the S. C. for instructions as to the mode of recti- 
 fying the error; the Judges observed that this act of seques- 
 tration was scarcely perhaps within the scope of authority of 
 the D. C. : But as the defendant was let in to appeal [as 
 to which see title "Appeal" p: 24] there seemed to be uo 
 objection to the st quest rat ion being continued, under the 7th 
 Rule of section 8, till the final decision by the S. C. ; Let- 
 ter Book, 9. 28th September 1S35. 
 
 5. The Regulation, No. 7, of 1809, prescribed a summary 
 course of proceeding by seques 1 ration for the recovery of debts 
 due to the Crown. A case came before the S. C. in appeal 
 from the district of Batticaloa, under the following circumstan- 
 ces. On 28th November 1 8, ; 8 certain property of one Cadera- 
 men Minny, an arrack renter, was sequestered in the late Pro- 
 vincial Court, at the suit of Government, and among orher 
 things a bazar or shop. On 9th November 1831 Cadiramen 
 Minny being dead, administralion of his estate was granted, 
 and on 24th August 1832, the administrator sold the shop to 
 the plaintiff by a notarial deed of sale. On 30th August 1832,
 
 630 Sequestration. 
 
 (no steps, as far as appeared, having been taken in the Govern-, 
 ment suit since the sequestration in November 18*23) publication 
 was made of the intended sale of the deceased's property to 
 satisfy the claim of the Crown. Th plaintiff opposed the sale 
 of the shop in ques'ion, as having become the purchaser on a 
 bona fide sale. The Government, as defendant, contended that 
 the fact of the sequestration was well known; that the adminis- 
 trator had no right to transfer property under sequestration ; 
 and it wast also imputed to him that he had sold the shop to 
 the plaintiff, in combination with him, for one thi:d of what 
 it was valued at in the Fiscal's books. The D. C. being of 
 opinion that the administrator had no power to sell the property, 
 dismissed the plaintiff's claim. The plaintiff appealed, stating, 
 among other grounds, that the very Notary, who prepared the deed 
 of sale to him, was head clerk of the Cutcherry, aud had been se- 
 cretary of the late Provincial Court, that he, of all persons, there- 
 fore, ought to have known of the sequestration, if it had been mat- 
 ter of such notoriety ; that if the shop had been really and effec- 
 tually sequestered, the keys and thle-deeds would have heen seized, 
 whereas they had been transferred to him, the plaintiff, at the 
 time of the sale ; that the value of the property was much les- 
 sened by remaining so long unoccupied, which might account 
 for the difference between the Fiscal's books and the price paid. 
 The S. C. considered that some explanation was necessary, as 
 to the time which had been allowed to elapse, as to the mu- 
 niments of the property having been allowed to remain with the 
 original debtor ; and also as to the ollicer of the Court and of 
 the Government having passed this very property in his cha- 
 racter of Notary. Tue proceedings were accordingly referred 
 back to the D. C. : And the explanation given on these points 
 not being satisfactory, the S. C. reversed the decree, and gave 
 Judgment for the plaintiff. It considered ih'tt the long delay 
 which had been allowed to elaj se, without taking any step to 
 prosecute the claim of the Crown, and the circumstances of 
 negligence which characterized the original sequestration, might 
 have misled the plaintiff, and induced him to believe, either
 
 Sequestration. 631 
 
 (hat the propfrty had never been sequestered, or that the se- 
 questration had bien abandomd ; more especially Inking into 
 account the opportunities of knowledge which the Notary pos- 
 sessed, and the reliance which the plaintiff must be presumed 
 to have reposed in that officer. No, 2696, Batiicaloa, 20th Fe- 
 bruary, 2d May 1835. 
 
 6. Wi;h respect to the information which the party obtain- 
 ing sequestration ought to give to the Fiscal of the persons 
 in whose possession property is to be found : A Fiscal applied for 
 instructions to the S. C., whether he could be called upon to serve 
 a notice of sequestration on a third party, on the mere assertion 
 of the plaintiff that such third party possessed property belong- 
 ing to the defendant, without either pointing out the property, 
 or producing any proof to that effect. The S. C. returned lor 
 answer : " That the plaintiff should point out, or at least spe- 
 cify the property which he alleged to be in the possession of 
 third parties, belonging to the defendant ; that this appeared to be 
 necessary, both to enable the Fiscal to give proper notice to 
 the party in possession, and also to make his return to the 
 Mandate, as required ; that with respect to proof of property 
 belonging to the defendant, this could scarcely be in all cases 
 expected, and, if required, might defeat the object of this pre- 
 cautionary process of sequestration; for if the ownership were 
 disputed, the person in possession would demand to offer coun- 
 ter proof, and thus a preliminary trial would become necessary, 
 to establish to whom the property really belonged ; that a plain- 
 tiff, in pointing out property, as belonging to defendant, did so 
 at his own peril and on his own responsibility, as under writs 
 of execution." [vide supra 73] Letter Book 3, 5, December 1835. 
 7. Applicati -n was made to the S. C. on two occasions by 
 IX J., for instructions as to the disposal of property belong- 
 ing to criminals who had fled from justice, and which property 
 had been sequestered under the 17th Rule of section 2. There- 
 suit of the answers returned on those two occasions was " That 
 there was nothing in the 17th Rule, which would authorize the 
 sale of the property sequestered; that such property was only
 
 Sequestration. 
 
 to be safely kept linlil the parly absconding should surrender 
 himself, or be apprehended ; the sequestration being intended ad 
 a mode of inducing the offender to give himself up to justice, 
 rather than as a punishment for the act of absconding; that 
 neither would the S. C. feel authorized ^to make a specific order 
 as to the disposal of property so sequestered ; that if however, 
 the prolonged absence of the party accused should make it necessary 
 to dispose of the property, on account of the expense of the de* 
 tention, or for other reasons, applicaliun should be made on the 
 subject to Government from which quarter, rather than from the 
 S, C., would more properly come the necessary instructions for 
 proceeding against the proptrty : And in one of the cases, the 
 Government having declined giving any instructions, and there 
 appearing a necessity for the speedy disposal of the property 
 [consisting of an Elephant] the S. C. recommended the D. J. 
 to "give notice in the Gazette that such an animal was in his 
 possession, describing it, stating the mode in which it came into 
 his possession, and calling on any person having claims upon 
 it to come forward ; otherwise, that it would be sold, after a 
 period to be stated in the notice, to defray the expenses which 
 had been incurred" Letter Book 30th March, 7th April, and 2, 5, 
 September 1835. 
 
 8. See also titles "Administrators," p: 10 -"Costs," p: 73. 
 Debtor and "Creditor," p: 90. 
 
 SERVANTS. 
 
 See titles Pleading, par. 19. Police par. 3. 
 
 SHIPPING. 
 
 The only case which appears as having been decided on this 
 extensive subject by the S. C. has already been shortly mentioned 
 under title " Debtor and Creditor," p : 95. It was an action 
 brought in the D. C. of Galle, by the Master of the Brig Tanze, to 
 compel two of his crew to return to the vessel : It appeared that 
 the men had been hired at Bombay, for a voyage to Madras 
 arid Calcutta, The Brig, being dismasted, put into Galle, where
 
 Sequestration. 
 
 the defendants, who had received two months' w<Jges in advance, 
 'quitted the vessel, the two months being expired, and refused 
 to return to her. No wiitten agreement had been entered into 
 between the Master and his crew, though the defendants admitted 
 they had verbally agreed for the whole voyage; and the D C., 
 considering that it had ho power to compel the men to return, 
 dismissed the action. The plaintiff having appealed, the S. C. 
 affirmed the decree of dismissal as follows: "The contract en- 
 iered into by the defendants is not absolutely, and to all intents 
 and purposes, v. id, on account of its not having been reduced 
 to writing; though, by the English Acts of Parliament, the 
 Master might be liable to a penaltj for not having reduced it 
 to writing. By that contract, the defendants, according to their 
 own admission, agreed for the whole voyage from Bombay to 
 Madras or Calcutta; and this the law considers to include de- 
 tention for necessary repairs. In refusing to remain with the 
 vessel during such detention, and to proceed with her afterwards, 
 the defendants are therefore guilty of a breach of the engage- 
 ment, for which they would be liable in damages for any loss 
 really sustained by the Master in consequence of their desertion. 
 But the object of the present action appears to have been to 
 compel the defendants, by the authority of the Court, to return 
 to the vessel. This object might have been obtained, if the 
 Master had complied with the Act of Parliament which permits the 
 exercise of such authority, by having had his contract with his 
 men reduced to writing, Not having done so, he can on'y avail 
 
 himself of the ordinary remedy which the law affords him, 
 
 that of an action for damages." Brig Tanze, Galle, 31 De- 
 cember 1834. 
 
 SHROFF. 
 
 See titles "Commission," " Promissory Notes." 
 
 SOLDIER. 
 
 Cannot be airested for a debt under 30, see title " Debtor 
 and Creditor," p: 95. et sequ: 
 62
 
 STAMPS. 
 
 Regulation No. 4. of 18'27, sale of Boutique without the ground, noi 
 within the oth clause Paragraph 1. Deed of Land not invalidated by 
 witnesses stating casually that the Land was worth more at the date of 
 the deed, 13 years ago, than the stamp would cover, par : 2. If the ori- 
 ginal instrument be admitted in evidence without stamp, no stamped 
 copy can be necessary [Cadofam.] par: 3. Cadotam containing reci- 
 procal contracts, with a stamp sufficient to cover one but not both 
 amounts, received in evidence of that one, par: 4. Regulation does 
 not require contracts to be reduced to writing, par : 5. Amount of 
 stamp to be decided by the substantial effect of instrument, par: 6 
 and 12. Marriage contracts need no stamp, but penalty void par: 7. 
 Receipt for goods, not within clause 10. of Regulation. If receipt 
 for money unstamped, other evidence of payment may be given, par : 
 8 and 11. Unstamped papers received in evidence for collateral pur- 
 poses, par: 9. Late English decision on that subject, par: 10. Con- 
 victions on Stamp Regulation : For taking unstamped receipt for goods, 
 set aside par: 11. \vhat is a " bond of indemnity" par: 12. Con- 
 viction on 5th clause set aside, no fraud appearing; par: 13. So 
 where the error arose from mistranslation of stamp-table, par: 14. 
 Conviction for unstamped agreement, no defence, that witnesses had 
 not signed, par : 15. Stamps on legal proceedings: Government suits 
 governed by Table of 1st October 1833, par: 16. Temples not ex- 
 empted from stamps, par: 17. Suits for land, how classed, par: 18. 
 Copy of will should be on stamp: But not oath by sureties par: 
 19. Nor pauper execution, nor proxy for Supreme Court ; nor bonds 
 to Fiscals ; nor any criminal proceedings 20, & sequ : But appeals 
 from interlocutory orders require stamp, 26. 
 
 1. Jri arranging the various decisions whi^h had occurred 
 upon this subject up to March 1836, those which relate to in- 
 struments requiring stamps under the Stamp Regulations will 
 be first presented ; and afterwards, those points which ' have ari- 
 sen on the subject of stamps on legal proceedings. The Regu- 
 lation, on w'uich all or nearly all the questions relating to in- 
 struments have arisen, is No. 4 of 1S27. The 5th clause of that 
 Regulation reiaus to conveyances of immoveable property. We 
 li:i\e setn, when discus ing the Ordinance against frauds, supra : 
 i>(.'7. K that a verbal sale of a boutique, not including the ground 
 on \\hich it s'ood, \\as ntiihcr void by that Ordinance, which 
 01.. y nquirtd conveyances of land itself to be in writiug, nor by
 
 Stamps. 
 
 Stamp Regulation, which only required that such oo> 
 ances should be on stamp ; whereas the present transfer WAS 
 of land, but of a mere boutique erected on land belonging to 
 Government: And besides, the 9th clause provided that no con. 
 tracts need be reduced to writing except such as were then, by 
 law, required to be in writing. No. 964, Jaffna 25th July 1835. 
 supra 207. 8. 
 
 In an action for certain lands in one of the Northern dis- 
 tricts, the defendants claimed partly by prescription, and partly 
 in virtue of written documents, one of which was a dowry deed, 
 executed in favor of one of the defendants on 13th May 1831 . 
 The witnesses slated that the lands enumerated ia this deed 
 would have been worth, at the time it was passed, upwards of 
 Hix-Ioilars. No value was mentioned in the deed itself. The 
 District Judge, Ui OI1 that evidence, was of opinion that under 
 Emulation No. 2 of 1817, by which this instrument was to 
 be governed, a stamp of at least ten Rixdollars was necessary, 
 being at the rate of five per cent ; and that as the dowry 
 not bear a stamp of that value, it must be set 
 aside as invalid. Judgment was accordingly given for the 
 plaintiff, for the lands enumerated in U,e dowry deed, 
 the assessors dissenting. On appeal to the S. C., the 
 decree was varied, and judgment entered for the defendants for 
 the lands in the dowry, as well as for the rest. The S. C. 
 observed, " that the objection taken by the District Judge, as 
 to the insufficiency of stamp on the dowry instrument, is sclrc, !y 
 warranted by the evidence. The witnesses speak in very general 
 terms of the value which they think would have been put upon 
 the lands thirteen years ago: And it is a subject on which, 
 they may possibly have formed an erroneous opinion. They were 
 not called for the purpose of giving evidence on that point, 
 and their attention, therefore, in all probability, had not been 
 previously drawn to it. Then the defendants, who could not 
 anticipate this objection, had no opportunity of adducing counter 
 evidence as to the value, No. 1953, Islands 22nd December 
 1834 see also No. sJUQ. Jaffita, infra, par: 13. But even if
 
 Stamps. 
 
 the objection as to stamp bad been fatal this would not haT 
 affected the title by prescription, which the defendants established j 
 see title "Prescription," par: 11. 
 
 3. The 6th clause of the Regulation relates to conveyances 
 of moveable property, and the 9th to contracls of sales, or 
 for the payment of money &c, The two following cases re- 
 late to the stamping of Cadotams or marriage contracls, in the 
 Northern districts; but the principles, on which they were de- 
 cided, may be applied to any other instruments on which si- 
 milar questions may arise. In the case about to be mentioned, 
 the point decided may be stated shortly to be, that where an instru- 
 ment, from the peculiar circumstances under which it is executed 
 and enregistered, is admitted in evidence without a stamp, it is 
 unnecessary to produce a stamped copy of such instrument. The 
 plaint i IF, having recovered judgment in a former action against 
 his debtor who had absconded, su d the father-in-law of his 
 debtor, for the caycooly due from him to his son-in-law, which 
 he considered as a debt due to that person, and therefore, answer- 
 able for the debt due to himself, the plaintiff. The only ques- 
 tion in the case, necessary to be considered here, was to whether 
 the fadotam, by which the caycooly was secured to the defen- 
 dant's son-in-law, was sufficiently proved, with reference to the 
 stamp Regulation. The original Cadotam was produced in a 
 public book kept by the Government Agent, in which the originals 
 of all these instruments are kept without being stamped. But 
 a moor priest who produced an unstamped copy, stated that 
 the original Cadotam book was considered merely an agreement 
 for each marriage, and that though all the property intended 
 to be given was entered therein, still, before that agreement 
 could take effect, a copy should be made on stamp. Some of the 
 witnesses stated that a copy had been taken on stamp, though 
 they could not say the amount, but this copy was in the 
 possession of the defendant or his son-in-law, and was not pro- 
 duced. On this evidence, the D. C , though it felt satisfied that 
 the caycooly in question had been granted by the original 
 Cadotajn, still considered that as the copy produced was . not
 
 tamped, and as moormen were not exempted from the opera, 
 lion of the Reflation, Ihe plaintiff was not entitled to recover; 
 and .he action was accordingly dismissed. The S. C., however, 
 both the Chief Justice on circuit, and the three judges at Colombo, 
 were of opinion that the Cadolttm was sufficiently proved. 
 U true," the final judgment observed, "there is nothing m the 
 6 ,amp H^taltoo which exempts moors from the payment ol 
 toies: Bu, this is no, a question of persona! hab.l.t, 
 or elnption, but whether a particu.ar instrument which has beea 
 produced in evince, *, an origina. C.***. do or do not 
 luire a stamp- I. appears that it has been the custom ,o 
 Jer the C themselves, the origin., in a pub.c , to 
 kept by the Government Agent lor that purpose; and that t 
 emeries toe never been n,a<le on stamps. As regards the or,- 
 g i,,al entry, therefore, it ,vould be impossible to declare a stamp 
 be necelsary, without inval.dating the whole Reg,stry of these 
 
 ;* 
 
 aoam a hare a g reement for the marriage, and that Uto. 
 tna t agreement cat, be carried in,o effect, a copy must be taU 
 
 sl amp: On what principle the pries, founds b. law doe, 
 ^appear. But the recognition of such a doctrine would he 
 1 rte of a weil Know,, and essentially use.u. rule of e,,deuce ; 
 ha I C,,P, shaU never be received in evidence, where the or, 
 ^. can be procured; supra; HI. In the present mstance, 
 L original . produced in evidence, and the copy wa., co,,, 
 pared with it i,- Court; a most superfluous operation, seeu.g th, 
 ,he original was so much better authority than the copy. Wh 
 ^er therefore, the custom may be as to taking cop.es, and 
 however necessary parties may find it ,. do so in certain cases, 
 i, is sufficient ,o say that the priest was on th,s ' 
 token in his law.. In the present case, besides, .ndependently of
 
 (588 Stamp*. 
 
 the general view which the S. C. entertains On the subject, it 
 would be peculiarly unjust to allow this objection to prevail 
 against the plaintiff. For the defendants in these two actions, the 
 originally contracting parties, are both interested in annulling this 
 contract; and they may not improbably have destroyed the true 
 copy, which the witnesses state was on a stamp, though they 
 cannot fix the amount." Judgement was accordingly entered for 
 the plaintiff No. 6M93. Jaffna, 9th July 1834, [circuit] and 2d 
 May 1835. [at Co'.om bo.] 
 
 4. In the other case relating to the stamping: of Cftdotams, 
 the action was rrought on an instrument of this description 
 dated 19th March 1823, to recover the coycnoly and the joys, 
 thereby secured to the plaintiff by the defendant, on the occa- 
 sion of the plaintiff's marriage with the defendant's niece. The 
 caycooly was es imated in the Cadotam at 150 Rix'iollars, and 
 the joys at a like sum. But the instrument also contained a 
 stipulation for the Maegiir, which was estimated at 1,125 Rix- 
 dollars. The Magsur would appear to be the sum stipulated to 
 be paid to the wife by her husband; whereas the caycooly is the 
 sum to be paid to the husband by the wife's relations, [see the 
 little compendium of Moorish Laws, appended to Van Leeuen, 
 p: 784, 5.] It was objected on the part of the defendant that 
 the stamp, though it would have been high enough for the 
 300 Rixdollars, the value of the caycooly and joys, was in- 
 sufficient to cover the whole value of Magur, caycooly 
 and jo}S, which amounted together to 1,423 Rixdollars; and 
 the late Provincial Court of Jaffna, considering the objec- 
 tion to be fatal, dismissed the action. But on the case coining 
 before the present S. C., this decree of dismissal was set aside, 
 on the following grounds: "The instrument on which this ac- 
 tion is brought has a two-fold opera! ion. On the one hand it 
 is obligatory on the wife's relations towards the husband as re- 
 gards the caycooly and joys ; and on the other it is bind- 
 ing on the husband towards his wife for the Magyar : But it 
 is only in the f< rmer of these characters, that it is now sought 
 to be put in force. The value, therefore, which is to form the
 
 Stamps. 639 
 
 criterion of the stamp duty, is 300 Rixdollars. Where an in- 
 strument has a twofold aspect, ; nd the stairp affixed to it is only 
 sufficient <o protect one of the ohjeds which it contemplates, 
 Courts of Justice have frequently permitted such instruments to 
 stand good for so much as is protected by the stamp, putting 
 the remainder out of consideration [see Powell vrs. Edmunds, 12 
 East, 6.] whatever, therefore, might be the decision upon hs 
 objection, if the action were for the Maggitr, it ought not to 
 be of any fcvce in the present suit ; since it is agreed on all 
 sides that the stamp is sufficient to cover the airount of the 
 Caycooly and joys." No. 6,814, Jaffna, 9. December 1633. 
 
 5. An action was brought to recover back money, advanced by 
 the plaintiff to the defendant, on a verbal contract by which the de- 
 fendant had agreed to deliver certain rafters to the plaintiff, but 
 which he had failed to fulfil. Tiie D. C., howexer, dismissed 
 the action, without going into evidence, on the ground that no 
 stamped contract had been entered into between the parlies, as 
 required by the 9th clause of Regulation No. 4 of 1827. Oa 
 appeal, it was ordered that the case be referred back to the D. C. 
 for hearing and decision, on the evidence which mig t be ad- 
 duced "The D. C. seems to have proceeded on the supposition, 
 that the 9th clause made it incumbent on parties to have all 
 contracts reduced to writing, in order that ail might be compelled 
 to pay the samp duty: whereas that very clause contains a 
 proviso,, as a measure of greater caution, which explains that 
 it shall not be necessary, in order to the legal validity of any 
 contract &c., that it should be reduced to writing farther than 
 is made necessary by other laws and regulaiions ; but only that, 
 if reduced to writing, such written contracts &c. shall be stamp- 
 ed," " No. 4*9, C havacherry, 23. September 1^35. 
 
 6. In considering the amount of stamp necessary in any par- 
 ticular case, the instrument should be consider* rl with leference 
 to its subs ance ;md effect, and must not be assigned to a class 
 to which it does not properly belong, from the mere occurrence 
 of a particular word in it, which would seem to give it a dif- 
 ferent character, see No. 192 Chavacherry, infra : par : 12,
 
 640 Stamps. 
 
 7. We have seen under tiMe "Obligation'* par: 5 that ad 
 agreement between parents for the marriage of their children, 
 to which a penalty was annexed, was considered by the S. C. 
 as falling within the third exception at the foot of table E, re- 
 ferred to in the 9th clause of the Regulation " Agreements and 
 Contracts to marry." The judgment observed " That though that 
 exception was probably worded with reference to the parsies them- 1 
 selves contracting marriage, it must be extended to parents and 
 guardians in those districts in which marriage contracts are always 
 entered into betw<en the parents, on account of the tender age 
 at which the children are betrothed to each other; otherwise, the. 
 exception would have scarcely any operation in those districts ; 
 but that the penalty of 300 Rixdollars, by which the parlies 
 had mutually bound themselves to the performance of this con- 
 tract, could not be considered protected by this exception ; that 
 if parties introduced a penal clause into such contracts, they must 
 use the stamp necessary for such obligations; and as the stamp 
 in the present instance [Is. 6d.] was insufficient to cover ati 
 obligation to this amount, the penalty couUi not be recovered, and 
 the instruments must therefore be considered as a contract, with- 
 out penalty, for the marriage of the children of the respective par- 
 ties," No. 604, Trincomalie 27th August 1834. The result of tht 
 case may be seen supra : ^ Obligation" paragraph 5. 
 
 8. The 10th clause of the Regulation relates to receipts &c., thfe 
 words of the clause are "Releases, Receipts &c. for money ; there- 
 fore a receipt for goods does not fall within it. No. 94. Cha- 
 vacherry, infra paragraph 11. It may be well to observe here, 
 that where a receipt for money is inadmissible in evidence for 
 want of a proper siamp, there is nothing to prevent the party 
 from proving payment by other evidence; and so it was decided 
 by Mr. Justice Norris on one occasion. And on the same prin- 
 ciple it has been decided that if a bill of exchange given for 
 a debt, be inadmissible for want of a stamp, the creditor may 
 still prove his original debt. Brown vrs. Watts, 1. Tauuton, 353. 
 
 9. With respect to the admissibility for collateral purposes 
 of documents insufficiently stamped, we have seen under title
 
 Stamps. 641 
 
 ** Debtor and Creditor," p : 83, that a paper writing, acknow- 
 ledging a balance to have been due at the time it was written, 
 was admissible for the collateral purpose of shewing what that 
 balance was, though it could not have been received in evidence, 
 if it had been attempted to enforce it as a promissory note: 
 And so a letter, which it was not intended to enforce as an 
 agreement, but as evidence that certain freight, to which the let- 
 ter alluded, had been earned : No. 4,099, Colombo, 30th De- 
 cember 1835. So an entry in a sales book, though containing 
 " mention concerning the time of payment," has been received 
 in evidence, unstamped, notwithstanding the 9th clause of the 
 Regulation ; the object in producing it not being to enforce the 
 payment at the time specified, or to prove a promise to pay, 
 but merely to shew that such a sale took place on such a day 
 Clark vs. M. Lebbe, Colombo, Novr, 1835; supra title ** Nan- 
 tissement," paragraph 8, where this point is discussed at some 
 length. 
 
 10. The following case was decided very lately in West- 
 minster Hali, and though it is not strictly analogous to the two 
 cases just mentioned, the writer is tempted to insert it, as illus- 
 trative, by its hi-h authority, of the same principle. In an ac- 
 tion tried at the Maidslone Summer Assize of 1838. on an J. O. U. 
 for 500, Mr. Justice Paterson allowed the defendant to give 
 in evidence an agreement, though not stamped, for the purpose 
 of shewing that the note had been given on an illegal consi- 
 deration ; viz : to induce the defendant to abandon a prosecution 
 for bribery at a late election, such being the tenor of the agree- 
 ment, on which the note had been given. The Plaintiff was ac- 
 cordingly nonsuited, and on a motion for a new trial in last Mi- 
 chaelmas term, the Court of Exchequer held that the agreement 
 was properly received in evidence. Lord Abinger observed " That 
 the object of the Stamp Acts, in declaring that unstamped instru- 
 ments should not be received in eviden e, was to prevent parties 
 taking advantage of documents which ought to be stamped, but 
 were not; but that the Acts were not intended to apply to an 
 agreement Void in law upon the face of it, and the production of 
 63
 
 6 4 2 Stamps. 
 
 which was intended to prevent its being carried into effect. Support* 
 an agreement entered into to commit a burglary, with covenants as 
 to the division of the spoil ; could it be said that, if parties were on 
 their trial, such agreement could not be given in evidence 
 against them, because it. was not stamped? On the same principle, 
 therefore, the agreement had been properly received in the present 
 case to shew that the promissory note had been given on an 
 illegal consideration. " Goppock \s. Power, Exchequer Mich: 
 Term 1838. The distinction between this case and those just 
 referred to, of the paper admitting the balance and the sales 
 book, is, that in the latter cases the documents were received 
 to support the transactions of which they formed parts, whereas 
 in the case from the Exchequer, the agreement was received 
 for the purpose of destroying the transaction to which it had 
 given rise: But the principle appears the same in all three 5 
 viz ; that neither of the three instrument was offered in evi- 
 dence in the character, or for the object, in and tor which- 
 alone the respective stamp laws had declared them inadmissible; 
 but for distinct and collateral objects. 
 
 11. The following decisions of the S. C. were upon con* 
 victions of the parties under the penal clauses either of No. 4, 
 of 1827 or of former Regulations, for pioduciug instruments not 
 stamped, or insufficiently stamped. In an action against a de* 
 fendur.it, for not delivering certain Palmyrah rafters which he 
 had agreed to furnish to the plaintiff, the defendant alleged- 
 payment; and in support of that allegation he produced an 
 unstamped receipt for the rafters, purporting to have been granted- 
 by a servant of the plaintiff. There appeared strong reasons for 
 believing that this receipt was a forgery, and that the defendant 
 had attempted to suborn witnesses to support it. The D. C., 
 accordingly, gave Judgment for the Plaintiff, and also condemned. 
 the defendant to pay a tine of 100 Rds. under the 17ih clause. 
 of Regulation No. 7, of 18^3, [the receipt being dated prior 
 to the operation of the Regulation of 1827] for a breach of the 
 10th clause. On appeal, the S. C. affirmed the decree in favoc 
 of the plaintiff, and. directed inquiry to be instituted as to tUe
 
 Stamps. 
 
 fernery and subornation; but set aside the conviction of 1' 
 defendant for the supposed breach of the stamp Re ; 
 No. 7 of 1823. That Regulation, as well as the n- 
 one, No. 4 of 1827, made it penal to accept reeci 
 without stamp, but not receipts for other thini,.-. 
 Chavacherry, 23d July 1834. 
 
 12. It has already been observed in the course o 
 notes, that in considering and deciding to what class or descrip- 
 tion an instrument belongs, regard 1 must be had to its substan- 
 tial object and effect, rather than to any accidental word, or 
 expressions which may occur in them, supra: par: 6, or even- 
 to the denomination which the parties themselves may give to it: 
 And this, whether with reference to the Ordinance again-t frauds, 
 the stamp Regulations, or to any other subject. See title " Pre- 
 scription " par : 14. As regards stamps, indeed, it is very 
 nectssary to bear this caution in mind; for it is almost the 
 universal custom among the natives, to call the most simple 
 instruments, as notes of hand or common agreements, by the 
 designation of bond. But it would be hard to make them pay 
 so high a penalty for their ignorance of our legal or commer- 
 cial terms as the difference in the rate of stamps btween table 
 B. and table C. appended to Regulation No. 4 of 1827, still 
 more, to visit such mistakes with the fines imposed as punish- 
 inems on wilful evasions of the law. A plaintiff sued on a 
 bond by which the defendant, who had cohabited with the 
 plaintiff, but had several times left him, bound herself as prin-. 
 cipal, and her mother and brother as sureties, in the sum of 
 50 Rds. [3 15] to be paid to the plaintiff in case of her 
 again leaving him, which it seemed she had done. The instru- 
 ment was on a stamp of 6d. From the evidence of the plain- 
 tiff, it appeared that the parties had been married according to 
 the Malabar custom, though no registry had taken place. The 
 D. C. considered that if the parties had been married, the con- 
 tract was a nullity, and therefore dismissed the action. But, 
 further, the word " indemnity " appearing in the bond, the D. C., 
 considered that it fell within the last proviso, of the 6th clause
 
 64 4 Stamps. 
 
 of Regulation No. 4 of 1827, and that it required, as a " bondt 
 of indemnity," a stamp of 7s. 6d. And the plaintiff and the 
 writer were each sentenced to pay a fine of 3. The D. J , 
 indeed, seemed to view this supposed mistake as to the stamp 
 in a very serious light, for he observed, in his judgment that 
 this fraud on the revenue, as hft considered it " shewed the 
 guilt of the plaintiff" as regarded the merits of the case. The 
 plaintiff having appealed, the S. C. affirmed the dismissal, on the 
 ground that, supposing the parties not to be married, [on which 
 supposition the instrument itself was founded] the consideration 
 was one which the law could not admit. But it set aside the 
 conviction of the plaintiff and the writer, observing that the 
 fallacy consisted in considering the instrument to be a " bond of 
 indemnity," merely because the word indemnity had been intro- 
 duced into it : Whereas the substance and effect of the in- 
 strument shewed it to be a common penal bond ; the stamp for 
 which, under table B. was properly taken at 6^., the penalty 
 being above 2 10 and not above 5 No. 192, Chavacherry, 7th 
 July 1834, on [circuit.] It may be useful to observe here that a bond 
 of indemnity is an undertaking, by which one engages to save ano- 
 ther harmless against the consequences of certain acts, usually done 
 at the request of, or as a favor to, the person so undertaking. 
 As for instance, in consideration of A. taking into his employ- 
 ment a relation of B., B. enters into a bond to indemnify A., 
 against any loss he may sustain by the negligence or other 
 misconduct of B's. relation. On such occasions, and in bonds 
 for the performance of trusts &c., as the value cannot be esti- 
 ti mated till the damage, for which indemnity is asked, or which 
 has been sustained, the stamp is not regulated by an advalo- 
 jem table, but a fixed stamp is required for all instruments of 
 that description. 
 
 13. An information was exhibited against a person on clauses 
 b and 13 of Regulation No. 4 of 1827 for having executed a 
 djowry deed to his daughter of land, as worth 44, whereas it 
 was worth more, and therefore required a stamp above 2. 
 It appeared in evidence that the defendant had given 44, for
 
 JStanips. 
 
 the land in 1815 ; but that since then, the value had increased 
 to above the value of 45. To what amount the value had 
 risen, the writer's notes do not enable him to say.] The D. C. 
 sentenced the defendant to a fine of 10 under the 13ih clause. 
 On the case coming; before the S. C. on circuit, this conviction 
 was set aside. It was considered that, whatever might be the 
 fate of the instrument itself, if the Court were called on to det 
 cicle upon its validity, the defendant might naturally have sup- 
 posed that the sum which he had paid for the land wa* the pro- 
 per criterion of its value, and might be taken as the amount 
 of "the bona fide consideration," upon which the ad valorem 
 duty is directed by the 5th clause to be levied. No. 206, 
 Jafrha, 5th July 1834, on circuit, vide supra: par: 2. 
 
 14. A Notary was prosecuted on the 13th clause of Regu- 
 lation No. 4 of 1827, before the S. C. at Matura, for having 
 written and attested an instrument for the conveyance of immove- 
 able property on an insufficient stamp. The value of the property 
 was 6, which under the table annexed to Regulation No. 2 of 
 1S30, [reducing the duty required by No. 4 of 1827 from 5 
 lo 2vV per cent] should have been on a stamp of 3s. ; but the 
 instrument was one of 2s. only. It appeared, however, that 
 in the Cingalese translation of this table, the word "to" had 
 been substituted for the words " and under " in the second 
 and all the subsequent lines. The Judges, therefore, considered 
 "that this word might have led parlies to suppose that the 
 higher sum was included in each line, and was covered by the 
 stamp required for that line, instead of being excluded from it, 
 as the English table unequivocally directs by the term " and 
 under." And this construction was rendered more probable 
 by another substitution, of the word " from " for " on " irt 
 the first line of the table : The latter word would includcj 
 the former would rather imply exclusion, and consequently, 
 that the lower sum in each line was intended to be included 
 in, and covered by the duty of, the proceeding line. It was, 
 therefore, considered impossible to convict the defendant on an 
 instrument which, if the translation of the table had been *
 
 646 Stamps. 
 
 correct version of the original, would have been sufficiently 
 stamped, No. 6, Matura, 30th September 183.~>. Notice having 
 been immediately sent by the S. C. to Ciovernment of this 
 mistranslation, the error has no doubt been long since rectified ; 
 but as other cases may arise similarly circumstanced, it has not 
 been considered ri^ht to omit the decision. As to the liability 
 of Notaries to their employers, independently of the regulation, 
 for using improper stamps, see title "Notary." 
 
 15. A defendant who had been convicted of executing a 
 common agreement insufficiently stamped, appealed against the 
 conviction, on the ground that the witnesses had not signed the 
 instrument. . But the S. C. could not allow the objection; for 
 the signature of witnesses was not necessary to the validity of 
 the instrument, which was complete, and might have been re- 
 covered upon, without such signature. No. 65, Putlam, 26th 
 June 1834. 
 
 16. We now come to the subject of stamps on legal pro- 
 ceedings on which the following are the principal points which 
 have been decided by the S. C. The question was proposed 
 to the S. C by a Government Agent, whether in Government 
 cases, the Table of Fees, formerly levied by virtue of Regulation 
 No. 7 of 1809, should still be observed: He was induced to 
 ask this question, from observing the heavy expense entailed in 
 
 Revenue suits over other cases ; not only from the fees being 
 higher, but because a stamped citation was considered necessary 
 to each defendant." The S. C. returned for answer: "That 
 no exception existed, with respect to the application of the table 
 of . lees of 1st October 1833, to Government cases, or to those 
 of any other class j that the forms, prescribed by the Regu- 
 lation No. 7 of 1809, migiit be adhered to, but any table of 
 tees, which might have been promulgated by virtue of tliat Re- 
 gulation, was virtually superseded by the establishment of that 
 which was now declared to be in force in all the D. C. of tu 
 Island." Letter Book 31st July, llth August 1835. 
 
 17. The exemption from stamps on legal proceedings, claimed 
 by Priests suing or defending on behalf of temples in the
 
 Stttmps. <54f 
 
 Kandyan districts, has been detided by the 'S. C. ho' longer to 1 
 exist. "For the Proclamation of the 25th Marjh 1834, by the 
 2d clause of which this exemption was granted to the temples, 
 was virtually repealed, at least as regards the six first clauses, 
 b,y the 56th clause of the Charter, and by the order of the 
 S. C. of 1st October 1833; establishing the table of stamps: 
 And as no exception was made in that order or table in favor 
 of temples, or of those appearing in support of temple rights, 
 this immunity from stamps ought not to be any longer allowed.'* 
 No. 747, Ratnapoora, 21st January 1836, LeUer Book, 21, 26, 
 November 1S33. 
 
 18. With respect to the class in which suits for Land / 73fy o 
 should be brought, it was attempted to assist the D. J. and prac- 
 
 tioners by a few suggestions, conveyed in a circular letter of 
 29ih November 1834, to which the reader re referred, ft will 
 be observed that, by the 4th paragraph of the letter relating 
 to that subject, if an action be brought as for produce only, 
 when it is manifest that the title to the land itself is in dis- 
 pute, the case is to be dismissed, or the plaintiff is to be 
 allowed to supply the deficiency of stamps, according as the' 
 D. C. feels satisfied that the wrong selection of class was 
 made fraudulently, or from misconception. The S. C. has, 
 however, in one or two instances allowed plaintiffs to proceed, 
 on furnishing the additional stamps, even though the opinion of 
 the D. C. has been unfavorably expressed towards them ; cir- 
 cumstances appearing in the cases, which made it probable that 
 the plaintiffs had acted from misconception. No. 1'28, Galle, 
 7th March 1835, circuit. No. 2394, Colombo, North, 22d 
 April 1835. We have seen under title " Practice," par. 22, 
 that where a plaintiff had estimated the land for which he 
 sued higher than the defendant considered to be its real value, 
 the S. C. affirmed an order, by which Commissioners were 
 appointed to inspect the land and report its real value, No. 1982, 
 Caltura, 27th January 1836. 
 
 ^19. A District Judge enquired of the S. C., whether the 
 copy of a Will, attached to the probate, required a stamp:
 
 648 Stamps. 
 
 He was informed in answer " That there seemed no reasort 
 for exempting copies of Wills from the stamp duty, and cer- 
 tainly there was no express exemption in their favor ; that the 
 practice in the former S. C. and P. C. always was to levy 
 fees, or require stamps, for copies of Wills, like all other Office 
 copies, and that such still continued to be the practice in the 
 D. C. of Colomlo. " The question was asked at the same 
 time, whether the oath by the sureties on administration, as 
 required by the 4th rule of section 4, ought to bear the usual 
 affidavit stamp. To this, an answer was returned in the nega- 
 tive : " For the rule required the sureties to be examined and 
 Sworn in open Court, which did not fall within the meaning of 
 an affidavit." Letter B< ok, 26th August, 1st September 1834. 
 
 20. No stamp is necessary for an execution, obtained in forma 
 pauperis: supra : p : 161. 
 
 21. Nor for a proxy to enable a Proctor to appear before 
 the S. C., supra : title " Proclor," par : 9. 
 
 22. Nor for bonds, given to the Fiscal under the 26ih and 
 27th clauses of Regulation No. 13 of 1827; for they fall 
 within the provision of the 6th clause of No. 4 of 1827. This 
 was the view taken of the question by the S. C., on the terms 
 of the Regulation ; and such had been the practice in Colombo, 
 Letter Book 11, 18th December 1834. 
 
 23. Nor for depositions; Letter Book 12, 16th December 
 1833. 
 
 24. Nor for recognizances, Letter Book 14, 21st November 
 1833. 
 
 25. Nor for any Criminal proceedings. Ibid: Ibid: And 
 see title " Prosecution " par : 35, at the end. 
 
 26. But stamps are necessary on appeals from interlocutory 
 orders, as well as from final decrees. No. 130, Pantura, 13th 
 August 1834. 
 
 As to Edictal Citations being stamped, see that title, supra: p: 103. 
 
 SUBPCENA. 
 See title "Evidence," p: 125, 6, 7.
 
 649 
 
 SURVEYS. 
 
 For what purpose they may be received in evidence ; see 
 
 "Arbitration," p: 35. 
 
 Art of survey, a mode of asserting a claim, see tit.e 
 
 paragraph '2. 
 
 A difficulty arose in the D. C. of Colombo, on the followmg 
 point. A survev having been ordered in an action concerning 
 Wl the Surveyor was ready to produce his report, but the 
 defendant, who appeared in forma pauperfs, stated that he had 
 means ol paving his proportion of the fees of survey, and the pla 
 tiff objected to pavinsmore than his own share. The D. J., being 
 at a loss how to proceed, applied to the S. C. for instructions. 
 The Judges recommended that one or more Surveyors should be 
 arpoinlecfbv the two D. C. of Colombo, trith the understanding 
 that where one or more parties to a suit were paupers, no fee for 
 survey should be demanded from such pauper, unless he were 
 innately successful, or unless his Costs were awarded to him by tl 
 Court, No. 11,929, Colombo North. Letter Book, 4, 9. Apnl 1 
 
 TAX ON CARTS. 
 
 See title " Prrsecution," par: 66. 
 
 Voluntary payment of commutation tax will not give title to land; 
 see tiile " Land," par : 15. Evasion of Land tax, see title "Land," 
 par: 20. 21. 
 
 TEMPLE. 
 
 A Priest cannot possess property except in trust for a a temple: Case on 
 ' this subject, paragraph!, and 2.-But not allowed to plead the , 
 litv of deeds passed in his own name, in order to obtain admin.stration 
 as' a pauper, par 3,-Reference to cases on the distinction between S. 
 and Shnoroo Paratparara par: 4.-Case on conflicting cla.ms to tV 
 office of Caporale : Conditional appointment revoked by a subsequent one, 
 condition not being performed, par: 5. and e.-Celebration of religfou. 
 rites at a new Temple, by which a portion of the offerings drawn from 
 n ancient one, is not an injury for which an action can be sustamed, 
 par : 7. and 8.-Teraple oaths O.-Temples Hot exempted from stamps, 10. 
 1. It seems to be one of the tenets of the Buddhist religion 
 that a man, on becoming a Priest, resigns all worldly wealth ; 
 64
 
 650 Tttnp'ts. 
 
 and no longer possesses the right or power of holding nrofrr'y, 
 whether moveable or ifr,mo\ cable, except in irusl for his tem- 
 ple, if he be in charge of o;:e. vide supra titles " Kaudy," par: 
 77. and "Land" pur : 14. This nuire abnegation of earihly 
 possessions, however, seems not less diUicult to be pui in prac- 
 tice in Cey'on than els< where. And accordingly the < ourls 
 furnish numerous instances of Priesis laying claims to property 
 in their own right, or ai lea:-t with a very slender colouring- of 
 any title, on the part of temples, to veil their own chums. 
 
 2. A priest brought an action for tuo paddy ground^, as hav- 
 ing been dedicated to ElL-wc,!- Viharc' by Sellegoeldi- tlnnanse, 
 before hib death. The defendant denied that Sellegodde had any 
 right to dispose of the tit-Ids; alleging' tlat they were hi, the 
 defendant's parveny proper: y ; that he had permitted S,-l'cgodi!e 
 to enjoy the profits of them in consideration of medical ai-', 
 and during- the defendant's pleasure, but no further; that the 
 defendant had always performed the Rnj;.k.iria for them, v. .licli 
 would not have been the case, if he had transferred them abso- 
 lutely to Selleg-odde [as to which see lilies " Kundy," paragraph- 
 3, and 151. ai.d "Land." par: Hv] and moreover, that the 
 alleged dedication by Sellegodde would have been void, because 
 prohibited by Proclamation of 18ih September Ibi9. Tne plain- 
 tiff', by his replication, undertook to ( rove ihat tt>e lauds wire 
 the actual property of Si'iKgodde Unnanse, and had been trans- 
 ferred to him by the defendant's fa>::er and another person by 
 deeds: lie amounted for lue ddendant's perfi rniance of the 
 Rajakaria by the ignorance of Seilegodde, in not g-ftiing- the fields 
 registered for exemption : and with rtspcci U> (tie Proclamaiion, 
 he contended that the j)roliibi-ion, as t) deriica.iow to temples, 
 only relerrcd to lands of laymen, ai.d did not extend to those 
 o! Pru-sts. It appeare.: from i!\e evidence thai Sel.cgodde UiinaiiSe 
 had received the jrodme of the fields lor 35 or 4U years; but 
 that they formed part of the defendant's pan^na, and that the cul- 
 tivation had taken place by permission of the defendant, who v. ;> 
 considered the pa, veny owner. The Court of the Judicial Agent 
 was of opinion that the possession of Sellegodde Unnause had been
 
 Trmp'es. 651 
 
 fuily proved, so as to give him a title by proscription; and 
 consequently that he had a right to transfer the land to whom- 
 j-oever lie pi- as?d. Judgment \va given for the plaintiff, which 
 was alh'rmed by the Court of the Judicial Commissioner. On 
 appeal to the Governor, which devolved on the S. C., hy ope- 
 ration of the ut'W Charter, this decree was reversed on the following 
 
 8-1 
 
 'rounds: Several objections present U ernselves to the validity 
 of this decision. First, no proof whatever was o He-red ol' the ex- 
 ecution of the Deed of Transfer from Sellegodde Unnarise to the 
 i!r'. This omission may, however, have proceeded on the 
 !<upj osition that ihe defendant, hy his answer, did not intend to 
 ute the execution of that instrument, hut on'y the right of 
 SelNgodde to make such a transfer. [s?e title "Pleadings," par: 
 14. to this point.] Hut the ciilhctilty, which the Court feels in 
 afrirming the plaintiff's claim, proceeds upon much wider grounds 
 For, secondly, the possession of Sellegodde appears, from the 
 evidence of nearly all the witnesses, to have been but a quali- 
 fied one. The defendant continued to perform the Raj.ikuria, 
 and his pern-lesion, it seems, was considered necessary for the cul- 
 ti\alinn of ihe laud. This, therefore, was not such a possession 
 as would have given Scrlleuoclde Unnanse a prescriptive right, even 
 if he had been a per-on who could have availed himself of such 
 prescription: [see lille "Prescription," par: 8.] but thirdly, everi 
 if the defend jnt or his father Jiad parted with the ahso'ute pos- 
 session of the land, the Unnanse would have been incapable, on 
 account of his Priesthood, of possessing the land unless in trust 
 f<T some temple. Now it appears by one of the plaintiff's own 
 vvi nesses that Sellegodde Unnanse had no Wihare. There wai 
 nothing, therefore, to prevent the defendant from resuming pos- 
 session of this lairl, even in the life time of Sellegodde Unnanse. 
 Fourthly, still less hud this Priest ihe slightest shadow of right 
 to bequeath the land to any other person, whether Priest or 
 Layman. The Court thinks it unnecessary to take any notice of 
 the Proclamation of 18 1 9, though that would have furnished a- 
 nother ohjection to the transfer from Sellegodde Unnanse to the 
 plaintiff. The distinction which the plaintiff endeavours to draw
 
 652 Temples. 
 
 between the lands of Laymen and those of Priests, [supposing 1 
 that Prie>sts could have any such possession of lands, as would 
 authorize them to make a legal transfer of them to others.] 
 is not to be found in the Proclamation. No. 59SO, Rat-napnora, 
 3d February 1S34. 
 
 3. Jn the case mentioned under title " Administration" n : 5, 
 a Priest, seeking to obtain administration to the estate of his pre- 
 decessor, mfbrinft pauperis, endeavoured to get rid of the objec- 
 tion arising out of certain title dee 's for land standing in his own 
 name, by urging that the possession of any property, except in 
 trust for a temple, was illegal; and therefore that, the deeds 
 fhould be considered as nullities. The S. C., however, was of 
 opinion that the Priest could not be allowed thus to avail him- 
 self of the illegality of bis own act, and to accept deeds one day 
 in his own name, and io repudiate them the next as illegal, 
 according to the convenience of the moment. But the Court 
 also considered, with reference to the necessity for all adminis- 
 trators to give security for the due execution of their office, that 
 nothing could be more at variance with the spirit of that highly 
 salutary provision, than to allow a person to administer an estate, 
 who was avowedly a pauper, and for whom, therefore, especially 
 if he could not legally possess property, no solvent person could 
 reasonably be expected to give security. No. 32 Matura, 9th De-? 
 cember 1835. 
 
 4. Soon after the establishment of the present S. C., several 
 cases came before it from the Kandyan Courts, especially from 
 that of the seven korles, which had excited considerable interest, 
 and in the investigation of which no pains had ben spared, on 
 the part of the kandyan tribunals and authorities. Few of these 
 cases, hpwever, afford any materials for these notes; having for 
 the most part, been decided on facts, rather than on questions 
 of law, involving general principles. There is one case, however, 
 to which it may be useful to refer upon the question of the 
 right of succession to Wihares. Among the proceedings will 
 be found a diligent and patient discussion of the difference be- 
 tween the Kisy* Paramparave, or the descent of by pupils,
 
 Tcmpla. 65S 
 
 and the SiwcorooParamparave, or tie ordaining and endowment 
 by the original proprietor of one of his lay relations, who 
 his turn ordains another relation and so on. This is the 1. 
 distinction between the Sisya and the Siwooroo but the subjec 
 is treated at some length by the Priests and Chiefs who were 
 consulted; the explanation given by the Priests of ihe Ma'wattc 
 -\Vihare appearing to be considered by the Kamlyan authon 
 more correct than that of the Jsgire Priests. No. 36f>, Seven 
 Korles, Erimimie Unanse vs. Siuabowe and Parakumbere Unnanses, 
 finally decided by the S. C. 21st October 1833. see also the case 
 of Wewe<>edere Unnanse vrs. Kittigamme Unnanse, Seven Rorles. 
 5 An action was brought in the District Court of Caltura, 
 by which the plaintiff claimed to be Caporale of Ugabbodde, 
 Wihare, by a deed of promise, dated 17th August 1825, from the 
 plantilF's uncle, the late Caporale; the substance of which deed 
 will aopear from the Judgment. And the plaintiff slated that he 
 had allowed the defendant to perform the duties, on the express 
 agreement of his, the defendants paying the plaintiff a share of 
 the dues. The defendant claimed this office, as grandson of the 
 late Caporale, by a daughter, and in virtue of a deed from his 
 Grand-laUuT by deed of 1st October 1829. when that person was 
 his deathbed. From the evidence, as far as that bears on the points 
 decided, it appeared that the defendant had done the duties of Capo- 
 rale tor several years before his grand-father's death, and ever since ; 
 that he save part of the produce of the temple to the plaintiff, who 
 had also repaired the building ; and that the plaintiff had never qua- 
 lified himself to act as Caporale. The deed in favor of the 
 defendant was precise and unqualified; and made no ment 
 either of the plaintiff, or of ihe promissory deed in his favor. 
 The D. C. decreed for the plaintiff; -and on appeal to the S. C., 
 it was argued in support of the decree, that the gift to the 
 plaintiff was a donatio i"ter vivos, and irrevocable [Voet Lib. 
 39. tit. 5. par: 4.] That the defendant, being descended from 
 the Caporale, through a female, was incapable of holding the 
 office, though he could perform the duties of it; and that he 
 was a mere sen-ant of the plaintiff, to whom he was bound
 
 654 Terr pie*. 
 
 to pay over the dues. For the defendant, it was contended (hut 
 the deed in favor of the plaintiff was no absolute transfer, but 
 a mere will, revocable at pleasure; that the condition of it was 
 that the plaintiff should perform the duties, which he h;id ncv r 
 qualified himself to execute; that it was probable on this account 
 that the < aporale, when near his death, executed the deed in 
 favor of the defendant, and that the defendant did not cl'.mn 
 the temple as his property, but on'y the ri^ht to succeed to the 
 o'Jicp. It was ordered by the S C. that the decree of the D. C. 
 be set aside, and that the defendant be confirmed in the o'rice 
 of Caporale to the temple in cues: ion. under the deed of the 
 late Franciscoe Alvis, dated the 1st of October 1S29, on the fol- 
 lowing grounds. 
 
 6. "The D C. expressed no doubt of the genuineness of the 
 deed in the defendant's favor; but considers thai it is insufficient ;o 
 invalidate that of the i7ih of August ib35, in favor of the palaintiff, 
 inasmuch as the donor reserved to himself no power of revocation in 
 the instrument last mentioned. But when the terms o' that deed, 
 ami the relative situation of the parties, come to be considered, no 
 snch express reservation appears to be necessary. Acooidiiig to 
 the translation tiled by the plaintiff, Francisco Caporale " allows 
 the plaintiff the temple at I . and does thereby authorize 
 
 Viim to officiate in the temple which he, Francisco, had built, when 
 he, Francisco, shoul d be unable to attend to it, or after his death, 
 taking charge of the said temple, together with things required 
 for the office of Caporatc." This, then is no transfer of the pro- 
 perty of the temple ; it merely authorizes the plaintiff to officiate 
 and take charge of the temple, as Francisco's deputy, in case of his 
 illness, or as his successor in case of his death. But to the enjoy- 
 ment of the privileges hereby conierred, one condition must be con- 
 sidered as annexed, because it was essentially necessary to such en- 
 joyment; namely, that the plaintiff should qualify himself to per- 
 form the duiies of his office. This condition remains unperformed to 
 the present moment; for the plaintiff, it apprears, has never qualified 
 him self to act as a Caporale. And this may very naturally 
 account for the execu'ion of the deed of 1520, in favor of the
 
 Temples. 633 
 
 ('efrndant ; more especially when it ia considered that Francisco 
 l;r.d at that time been ass'stcrl in the performance of his temple 
 duties by the defendant for several years, that he had brought 
 him up ;;nd educated him, and that he confided to the defen- 
 <hnt, 1 y th;it very instrument, the charv of providing; for the 
 \vir!ow o!' the donor. Even if the died of 1S25 were to be 
 considered, as has been contended, as a donatio entir vivos, by 
 
 h the jToperty in the temple itself was Conveyed, the non- 
 fn'frfnent of this necessarily implied condition would have fur- 
 
 id the dc-nor with a sufficient ground of revocation, as ap- 
 ] aus by the siutLority of thf author cited on th.e part of the 
 
 ::iiff. \_a\ Another ground, on which the defendant's rig-ht is 
 (ii<;.niecl, is that he is descended from a female branch of the 
 family, and, therefore, according to th? opinion of some of the 
 v,. in* sts, is incapable of succeeding to this office. The evidence 
 on this ptiini of customary law is somewhat contradictory; but 
 even givit!"' it fu 1 forte, tl cannot avail the plaintiff. The de- 
 fendant dis;-.vous, by thf mouth of his Proctor, any claim 
 to the temple itself, as his ] roptrty. He only asserts his rig-ht 
 to l.e continued in the free and unqualified exercise ot the func- 
 tions ot Caporale.. That there is nothing in his descent which 
 disqualified :,im !ium ptrlorming those functions is proved, first. 
 1\ the liu-t of Fraiicibto Caporalle having inducted him into 
 the office, and di jailed him to act for himself; but secondly by 
 the suit uncut of the plaintiff himself : for the plaintiff alleges 
 that, not being- hiaiself qualified to act as Caporale, he had agreed 
 wall li-.e defendant, thai the laiter should do the duties, account- 
 ing io the |>tiin:itf lor (art of the profits. After malang that 
 averlinen:, the plaiuiiiF never can be permitted to argue that the 
 . iidiint vas legally disqualified from performing those rites r 
 which the- paiuaif asserts lie had himself employed him to perform. 
 Tue only remaining question is, whether the agreement, so de- 
 
 [a] Voet in Pandetas, Lib. 39 tit. 5 par. 22. Among the causes for re- 
 voking a D^nudo iuierviros is the following: " Si do^ata/ius non pariterij 
 vomliltoiiibus dutiatiom udjectis." - If tlie Dunee shaii not iiave coaipiied with 
 tlie couditiunu annexed to the donation."
 
 6i6 Temples. 
 
 dared upon by the plaintiff, have been satisfactorily proved. 
 Court is of opinion that it has not ; the terms in which it is 
 S|:chen of by the witnesses are much too loose and vague to 
 support a contract of such a nature. The pay men's made by 
 the defendant to the plaintiff certainly favor the supposition that 
 such an agreement had been in contemplation, but they are not 
 sufficient f themselves to e-tab!ish it. Those payments may 
 have been made under a doubt on the port of the defendant, 
 hew far he might be able to establish his right in opposition. to 
 the former deed granted to the plaintiff. Taking, however, into 
 consideration those payments, and certain other points, as well 
 as the deed of 1S25, in favor of the plaintiff, the case appears 
 to have been one sufficiently doubtful, lo jusiify the plaintiff in 
 trying; the question; and it is, therefore further decreed that 
 each party do pay his own costs. No. 540, Caltura, llth Fe- 
 
 iy 1535. 
 7. The only remaining; case on the subject of temples is one 
 
 ir.g lo a moorish mosque, the facts of which will appear 
 from the following; lucid and excellent judgment, delivered by 
 Mr. Justice Xoiris, " The plaintiffs in this case are the priests 
 and officials of a certain moorish mosque, situated at Marandalm 
 in the village of Barberyn ; and they serk to recover from the 
 defendants, who are the priests of tiie Molliamulle mosque 
 in the same village, one thousand rixdnllars damages, alleged 
 It) have been sustained by them, the plaintiff-, in consequence of the 
 c'eluidanls having, for the last throe years, celebrated at the 
 Molliamulle mosque the religious festivals of Nombo Perenal 
 and Hadjee Ptnnal ; the right to celebrate wl.ic.h the plain- 
 tiff claim as caclusirdy appertaining, frosn time immemo- 
 rial, to their own mosque at Marendahn. The decree of the 
 Court below [although' it gave no damages] declared the ex- 
 
 -ive right of cele! ration to be ves.ed in the Marandahn 
 
 niosque. Had the question simply relattd to the plaintiff's 
 
 bt to celebiate these festivals at their own mosque, withouf 
 
 estation or interruption, there could have been no room for 
 
 V, upon the subject ; for the evidence is abundantly suffi- 
 f
 
 Temples. 657 
 
 cienl to shew that, from time immemorial, the Marendahn 
 mosque has' enjoyed this privilege; and we are hound by law 
 to protect all cU-.sses of the people, in the free and undisturbed 
 exercise of their religious rites and ceremonies. Again had the 
 inquiry been of a purely ecclesiastical nature; as, for example, 
 whether these festivals could, consistently with the Mahometan 
 religion ami the precepts of the Koran, be celebrated in more 
 than one consecrated mosque of ihe same village, and whether 
 the favored mosque at Barbery n was not that of the plaintiffs; 
 the evidence might, perhaps, be considered sufficient [supposing 
 it were the business, but it certainly is not, of this or of any 
 Court of Justice to decide such matters] to warrant a decision 
 of the former question in the negative, and of the latter in the 
 affirmative. T he-be, however, are questions which we are neither 
 tailed upon, nor will consent, to decide. It is very possible 
 that the Mahometan worship may huve been scandalized, and 
 the religious veneration due to the ancient mosque of Maren- 
 dahn abated, by the irregular j:r;ictic-is and arrogant assumption 
 of the Priests cfT.ciatir.g at the rival mosque of Molliamulle. 
 But the Law does not recognize these as cuil injurie-s for which 
 compensation can be claimed in a Court of Justice. Tnese 
 are matters purely ecclesiastical ; jind a remedy for the abuses 
 complained of, it obtainable at all, must be s< ught for in eccle- 
 siastical censure or penance. But the quesiion, which we are 
 called upon to decide is very different from either of the foregoing-. 
 The plaintiff* do not complain of disturbance in the cclebra ion 
 of their religious rites at their own mosque; ror do they seek 
 redrss for the insult offered to Mahometan worship, by the 
 celebration at an unaccustomed place of rites peculiar to the 
 mosque of Marendahn j they are actuated hy no apparent zeal 
 for the lie.nor of their religion, or the peculiar sanctity of their 
 mosque. Their claim is of a pecuniary and personal descrip- 
 tion ; being lor specific damages, which they profess to have 
 sustained tor the last two or three years, by the diversion from- 
 their own mosque to that of Molliamulle of certain offerings, 
 made by devotees, during the celebration of the above mentioned 
 65
 
 658 Temples. 
 
 festivals ; which cfferings they claim as their exclusive right, 
 by virtue of the alleged exclusive privilege attached to their 
 irosque, as regards these festivals. The religious privilege, as I 
 have already observed, is a question for the decision of the 
 Priests or spiritual guardians of the Mahometan religion : the 
 civil right is the sole question with which we are concerned, 
 ?nd this, I apprehend, may he settled in very few words. 
 
 8. " Where there is no legal remedy, the law presumes that 
 there can be no legal right ; the one being, in contemplation 
 of Law, an inseparable adjunct to the other. Now I should be 
 glad to know by what form ci Law the plaintiffs in this instance 
 would enforce their alleced right <o the voluntary offering of 
 the devotees? Volutary, ex vitermini, all offerings must neces-i 
 sarily be considered to be ; and if voluntary, of course not re- 
 coverable by any compulsory process, whether legal or other- 
 wise. The assumed right, therefore, admitting of no legal remedy, 
 in case of its being refused or withheld, is in truth, no right 
 at all ; and if it be no right, the present action which seeks 
 compensation for the disturbance or abstraction of that supposed 
 right, of course falls to the ground. To decide otherwise 
 would, in truth, be to incur a fearful responsibility, and indirectly 
 to commir, under colour of Law, the very offence or injury 
 which we are now asked, and which we are bound by our oaths, 
 to prevent ; that of interference with the people, in the free and 
 peaceable exercise of their religious rites and ceremonies. For 
 no right can be dearer than that of religious devotees, to make 
 their free will offerings, at whatever church, temple, or mosque 
 they please ; and if, in preferring one mosque to another, they 
 act contrary to their religion, it is for their Priests and spiri- 
 tual pastors, not for a Court of Law, to enlighten their con- 
 sciences, and correct their practice. The case of Tithes in 
 England, to which the present claim has been compared, is 
 entirely different . Tithes are not voluntary offerings, but a legal 
 provision for the clergy, which cannot legally be withheld, are 
 recoverable by the aid of the civil powor, and constitute, there- 
 fore, in every sense of the word a civil right, terms wholly
 
 Tender, - Tkombo, fyc. 659 
 
 inapplicable, as already shewn, to mere voluntary offerings." 
 The decree of the D. C., by which the plainlifFs claim had 
 been allowed, was, therefore, reversed with costs. No. 12,348, 
 Caltura, 20th June 1835. 
 
 9. Oaths to witnesses are no longer administered at temples ; 
 see title "Evidence'* p. 141, 2, and title "Oath." 
 
 10. Temple rights can. no longer be sued, for without stamps: 
 see title "Stamps." par: 17. 
 
 TENDER. 
 
 When a debt is admitted, the amount should either be ten* 
 dered, or paid into Court, in order to save the costs of ulterior 
 proceedings : see title " costs," par : 73. 
 
 THOMBO. 
 
 See title " Husband and Wife," p. 216. 
 
 TOLL-COLLECTOR. 
 
 Rights and duties of; see title "Prosecution;" paragraphs 24 
 40, and 41. 
 
 TRANSLATION. 
 See title "Interpreter." 
 
 TREASON. 
 
 Property belonging to the wife or relations, held not to be 
 included in a sentence of confiscation; see title " Husband and 
 Wife," par: 224, 5. 
 
 Defendant in a civil action being in prison, on a charge of 
 treason ; answer taken from him verbally : title " Pleadings," 
 par : 28. And " Sequestration ought not to issue against his 
 property, as for want of appearance under such circumstances, 
 tee title " Sequestration," par : 2. 
 
 WITNESSES. 
 
 See title evidence, more especially from p : 121 to 148. The 
 writer observes that this tide of "Witnesses" is referred to at
 
 660 tFitnesses. 
 
 p: 132, but he finds nothing in his notes, to add to what has 
 betn given under evidence. He rimy, however, take this oppor- 
 tunity of observing, \\iih reference to tiie % ^9ih Rule of the first 
 section, thai the concurrence oi :\M> ASMS^UTS, with the D. J., 
 in the belief of a party's inun in to deceive by his answers 
 on examination, was iiitrodin er! in accordance With th practice 
 of the S. C., which has bu ,1 accu.->toied, in deciding on the 
 prevarication of a witness, to al-i>c: I .o U.<.> Jmy as to their 
 belief of such \\iaues' ilitf-niion : and alnj, that the conclud- 
 ing provision of the 29,h Hue w.is iruii'v intended to guard 
 ajiuHist the supposition, that the examination of a party to a 
 particular fact would preclude the adverse | arty from calling- 
 witntsscs to the same fact ; an exclusion Vv'.iich prevailed under 
 the former system, founded on the prai-ti.-e of the Civil Law, 
 by which the oalh of the party was decisive of the question 
 put to him. 
 
 Attachment ou^ht not to be granted against a witness for 
 non-ait. ; ndaee, unless a Snbj rena has been served upon hi.W 
 personally. Letter Bock, 8, 25th October Ib34, supra r U-" 
 u Process," par: I. 
 
 END OF THK N
 
 LIST of TITLE., under which the foregoing notes ire arranged ; 
 many of them, it >ill be observed, are only inserted in the notes for 
 the purpose of refeting to other TITLES, where the subj cts in ques- 
 tion r ned. 
 
 ACTION. 
 
 FORMS. 
 
 - 1STRATJON 
 
 FRAUD. 
 
 AGREEMENT. 
 
 C\n 
 
 , VyRDINANCE AGAINSTj 
 
 oMENT. 
 
 GAMING. 
 
 APPEAL. 
 
 APPEARANCE. 
 APPRAISERS. 
 
 GANGSABE. 
 GOVERNMENT. 
 
 ARBITRATION* 
 
 HABEAS CORPUS. 
 
 ARRACK. 
 
 HEARING. 
 
 ARRJEST. 
 
 HUSBAND & WIFE. 
 
 ASSESSORS. 
 ATTACHMENT* 
 ATTORNEY. 
 AUCTIONEER. 
 
 IDIOT. 
 IMPORT DUTIES. 
 IMPRISONMENT. 
 INFANT. 
 
 BAIL. 
 
 INFORMER. 
 
 BOND. 
 
 INHERITANCE* 
 
 COMMISSION. 
 CONDITIONS. 
 CONTEMPT. 
 COPIES. 
 
 INJUNCTION. 
 INQUEST. 
 INSOLVENT. 
 ^INTEREST. 
 
 COSTS. 
 
 INTERPRETER. 
 
 CUSTOMS-DUTIES. 
 
 INTERVENTION* 
 
 liTESTATE. 
 
 DEBTOR & CREDITOR. 
 
 IsiUE. 
 
 DECRI:E. 
 DEPOSITIONS. 
 DoNATIO INTER VIVOS. 
 DOWRY. 
 
 Jt'lGMENT. 
 
 JURISDICTION. 
 JURRS. 
 
 EDICTAL CITATION. 
 
 KANIY. 
 
 ESCAPE. 
 
 LAND. ' 
 
 EVIDENCE. 
 
 LAW. 
 
 EXAMINATION OF PARTIES. 
 
 LEGITISACY. 
 
 EXECUTION. 
 
 LIBEL [PLEADING.] 
 
 
 PT\-, . , .n 1 ," kT "1 
 
 
 
 
 LOAN BOXRD. 
 
 
 Tl 
 
 1 LUNATIC. 
 
 
 FALSE CLAIM. 
 
 MALICIOUS PROSECUTION. . 
 
 !,,,,, 
 
 M 
 
 FELONY. 
 
 M ARRIAGE. 
 
 
 FIDEI COMMISSIO. 
 
 MERITS. 
 
 FINES. 
 
 MINORITY. 
 
 FISCAL, 
 
 MORTGAGE.
 
 LIST OF TITLES Continued 
 
 MOTION. ie> 
 M^TIJNY ACT. 
 
 NANTISSEMENT. 
 
 NOTARY. 
 NUISANCE. 
 
 OATH. 
 
 OBLIGATION. 
 
 OFFICER, GOVERNMENT, 
 
 , OF COURT. 
 
 PARATE EXECUTION. 
 
 PARTNERSHIP. 
 
 PAUPER SUITORS. 
 
 PAWNING. 
 
 PAYMENT INTO COURT, 
 
 PEARL FISHERY. 
 
 PENALTY. v 
 
 PERCENTAGE. 
 
 PERJURY. 
 
 PETITION. 
 
 PLEADINGS. 
 
 POLICE. 
 
 POST OFFICE. 
 
 POUNDAGE. 
 
 PRACTICE. . 
 
 PREEMPTION. 
 
 PRESCRIPTION. 
 
 PRIEST [BUDHIST.] 
 
 PRINCIPAL & SURETY, 
 
 PROCESS. 
 
 PROCTOR. 
 
 PROMISSOR' NOTES, 
 
 PROSECUTE- 
 
 , MALICIOUS, 
 
 QUANTUM MERUIT. 
 
 RAJEKA&IA. 
 
 RECOG^ZANCE. 
 
 REGIS-CATION. 
 
 RESJIDICATA. 
 RES*TUTIO IN INTEGRVM, 
 REVENUE LAWS. 
 
 SE<CRITY. 
 SEQUESTRATION. 
 S/RVANTS. 
 SHIPPING. 
 SHROFF. 
 
 3OLDIER. 
 
 STAMPS. 
 
 SUBPOENA, 
 
 SURVEYS. 
 
 TAX. 
 
 TEMPLE. 
 
 TENDER. 
 
 THOMBO. 
 
 TOLL-COLLECTOR, 
 
 TRANSLATION. 
 
 TREASON. 
 
 WITNESSES.