1922. Present: Schneider J. PONNU v. SINNATAMBI et al. 333-P. C. Trincomalee, 353. Theft-Removal of cattle from pasture ground for enforcing money due for grazing-" Dishonestly"— The accused who were renters of a grazing ground removed some goats belonging to the complainant from whom money was due for animals tied in the pasture ground, in the mistaken belief that they had the right to do so, to enforce payment. Held, that accused were not guilty of theft. THE facts appear from the judgment. J. S. Jayawardene, for the appellants. July 14, 1922. SCHNEIDER J.— The three accused appellants were convicted of the theft of three goats and four kids, and sentenced each to pay a fine of Rs. 15. They appeal with the leave of the Magistrate. There is no reason given why he granted leave, but it seems to me that the appellants are entitled to succeed. The evidence of the complainant is that she owed the renters, by which term I presume she means the accused, certain monies payable for grazing her cattle, and that when she had tied these animals on the grazing ground the accused came there openly and removed the animals. One of her witnesses states that one of the accused mentioned to him that he was removing the animals because the complainant had made default in payment of her rent. Accordingly, the facts put before the Magistrate in support of the prosecution fail to prove a charge of theft, because it is an essential element of the offence that the taking should be done dishonestly (section 366), "Dishonestly," is defined as doing an act with the intention of causing wrongful loss to one person and wrongful gain to another. It cannot be said that the act of the accused in removing the animals was to cause wrongful loss to the complainant, because, from the facts put before the Magistrate, the inference is obvious that the removal was due to a mistaken idea of their right to enforce payment. I would therefore set aside the conviction of all the accused, and acquit them. Set aside. Kandyan law-Intestate succession-Person dying leaving children by two or more beds. IN Where a person dies intestate, leaving issue by two or more beds, the estate is divided among children per stirpes and not per capita. N this case the plaintiff sued the defendant for possession of the western half share of the field called Uduporowekumbura of 5 lahas in paddy sowing extent by inheritance through his fullbrother Puncha. The defendants filed answer stating that the second defendant as a half-sister of the plaintiff was entitled to half of the field. At the trial the plaintiff admitted that the second defendant was the daughter of his mother Kirie by her second husband. On this admission the learned Commissioner of Requests declared the second defendant entitled to half the share of Kirie's estate. The plaintiff appealed. H. V. Perera, for appellant. R. C. Fonseka, for respondent. August 21, 1922. BERTRAM C.J. There is no doubt that both in the answer and in the issues, the law on this matter had been misconceived, but the learned Judge has correctly apprehended it. It has been settled by a decision of this Court in Siriya v. Kalua1 that where a person dies intestate, leaving issue by two or more beds, the estate is divided among the children per stirpes and not per capita. That is recognized as settled law in Modder's Kandyan Law, paragraph 268, page 504. Mr. H. V. Perera asks me to refer this mattter again for a Full Court, as the Court in 1889 was not unanimous. I do not feel justified in doing so. The law has been so accepted since the year 1857, and I agree with the observations of Burnside C.J., that there should be a fixed rule rather than one varied from time to time. Mr. Perera suggests there may be some ambiguity, and asks me to declare that his client is at least entitled to an undivided half of the land in question. That, however, was not contested, and I think the learned Judge's judgment and his decree admit of no ambiguity. The appeal must therefore be dismissed, with costs. Appeal dismissed. 1 P. C. Kayts, 10,902. Application for enhancing maintenance-Has Magistrate to consider whether the position of wife was worse since last order ?—Change in husband's circumstances. In considering an application by a wife for an order for enhancing maintenance, the Court may act on proof that the husband's circumstances have improved, and is not bound to consider the circumstances of the wife. THE facts appear from the judgment. Arulanandan, for defendant, petitioner. B. F. de Silva, for respondent. September 20, 1922. ENNIS J. This is an appeal from an order enhancing maintenance. Under section 10 of the Maintenance Ordinance, maintenance may be enhanced on proof that the husband's circumstances have improved, or on proof that the wife's circumstances have become worse. In this case there was an admission and evidence by the husband that his circumstances has considerably improved. The learned Judge thereupon refused to hear any more evidence. It has been suggested by counsel for appellant that the respondent was not allowed to prove his case. The counsel for appellant was not able to tell me what the respondent's case was which he wished to prove by further evidence. He suggests that it was to show that the wife was in no worse position than she was when the order for maintenance was made. Assuming that he had called evidence to prove this, it would not have made the order of the learned Magistrate wrong, because the Court can act on finding that the husband's circumstances have improved, and was not bound to consider the circumstances of the wife. I accordingly refuse the application, with costs. Refused. Present: Porter J. LAXANA v. MUHANDIRAMA. 330-P. C. Matale, 18,186. Criminal breach of trust-Mere deficiency of goods entrusted to servant. Mere deficiency in the quantity of the goods entrusted to a servant is not of itself sufficient proof of criminal breach of trust. The appellant was convicted in the Police Court at Matale on June 19, 1922, under section 391 of the Ceylon Penal Code, and sentenced to two months' rigorous imprisonment. I do not think that there is sufficient evidence on which the conviction can be upheld. The accused was a club peon, and in his position as such he was entrusted with certain empty soda water bottles. On stock being taken there was found to be a deficiency of thirty-six dozen bottles. Koch v. Nicholas Pulle1 lays it down that mere deficiency in the quantity of the goods entrusted to a servant is not of itself sufficient proof of criminal breach of trust. In this case there is no other evidence. It is true that the accused alleged that he despatched two dozen of the empty bottles by rail to the soda manufacturers. He has pointed out a railway porter (one Perera), to whom he says he gave the bottles. That porter Perera has not been called, but the Station Master says that the books show that Perera was not on duty on the day on which the accused alleges he despatched the empty bottles. The accused is a young man who has been employed as peon to the club for the last two years, and has hitherto borne a good character. The evidence, to my mind, is not sufficient on which to convict. I would, therefore, allow this appeal, and quash the conviction. Appeal allowed. 1 (1898) 3 N. L. R. 198. 1922. 1922. Present: De Sampayo and Porter JJ. NAGALINGAM et al. v. CHITTAMPALAM et al. 58-D. C. (Inty.) Jaffna, 10,298. Assignment of decree-Order of statement-Application by assignee to be substituted plaintiffs and to have order of abatement set asideCivil Procedure Code, s. 404. The decree in this case was assigned to the appellants after an order of abatement was made. They moved to be substituted plaintiffs and to have the order of abatement set aside. Held, that they had no status to make the application. THE facts appear from the judgment. E. W. Jayawardene, for the appellants. July 21, 1922. DE SAMPAYO J.— This is a somewhat peculiar case. In the action No. 9,104 of the District Court of Jaffna, the plaintiff sued the second defendant on a promissory note and obtained judgment. In execution of the decree, he seized a number of lands which were claimed by the first defendant upon a transfer made in his favour by the second defendant. The claim was upheld. Consequently the plaintiff brought this action, which was instituted so long ago as February, 1915, to have it declared that the deed executed by the second defendant in favour of the first defendant was in fraud of creditors, and to have it set aside. Sometime afterwards the plaintiff assigned the decree in the previous action to the present appellants, and they came into the present case and asked to be substituted as plaintiffs in place of the original plaintiff, and also to have an order of abatement entered by the Court set aside. The order of abatement was made in these circumstances. On April 23, 1915, the Court ordered this case to be put by in order to enable the plaintiff to seize and realize, if possible, some other property of the second defendant as judgment-debtor in the previous case. But later the Court ordered the action to abate, as no steps had been taken for over a year. The only question, so far as I am concerned, on this appeal, is whether the appellants can bring themselves under any provisions of the Code entitling them to be substituted as plaintiffs in this case, and to have the order of abatement set aside. Mr. Jayawardene, for the appellants, refers us to section 404 of the |