3.

held that defendants were under no obligation to carry out their part of the agreement, inasmuch as the plaintiff's proctor had failed to file a memorandum of the cost of stamps, or render a bill to defendants.

Held, that plaintiff was entitled to judgment in terms of the agreement.

RAMANADEN CHETTY v. FERNANDO et al., 161, District
Court, Colombo, 15,415

PAGE

411

431

2. Security for costs in insolvency proceedings-Appeal
Where proctors who held a power of attorney instituted
an action, they were held entitled to recover their costs
as proctors

4.

441

Commission to surveyor to fix boundary-Parties ordered
to pay surveyors' fees-Fees not deposited in Court by
plaintiffs for over one year-Action dismissed-Dismissal
wrong-Partition action.

In January, 1921, the parties to a partition action were ordered to issue a joint commission to two surveyors to fix the boundary, and to report to enable the Court to do so, and it was arranged that each party should contribute towards the payment of the surveyors' fees. In January, 1922, the defendants deposited in Court their shares of the fees, and the Court ordered the plaintiffs to deposit the fees on March 17. Plaintiffs not having deposited their shares on that date, the Court dismissed the action.

There is

Held, that the order of dismissal was wrong.
nothing in the law empowering the Court to dismiss an
action for non-payment of costs.

SILVA et al. v. SILVA et al., 53, District Court,
Kalutara, 8,587

5. Appeal Security for costs Money deposited-No bond hypothecating money-Civil Procedure Code, ss. 756 and 757-Ordinance No. 42 of 1921-Power of Supreme Court to grant relief in case of defects

6. Appeal from an order as to costs from a Court of Requests

Court

Power of Court

Court of Requests

183

188

190

50, 210, 317

1. Misjoinder of causes of action-Action by usufructuary
mortgagee for damages in respect of two contiguous lots
Action against three trespassers as to one lot and against
two only as to the other lot-Civil Procedure Code, s. 805
2. Appeal Court of Requests-No prejudice to substantial
rights of parties

123

217

3.

No appeal lies from an order of the Commissioner of
Requests as to costs

190

4.

Jurisdiction-Courts of Requests Inquiry under section
327, Civil Procedure Code-Value of land over Rs. 300--
Scope of inquiry

Criminal breach of trust

502

146, 251

Criminal procedure

1. Magistrate also District Judge-Magistrate deciding to try case summarily as District Judge under section 152 (3), Criminal Procedure Code, before recording complainant's evidence as required by section 149-Criminal Procedure Code, 8. 425.

Where a Magistrate, who was also District Judge, decided to try a case summarily as District Judge under section 152 (3) of the Criminal Procedure Code before taking down the complainant's evidence as required by section 149,

Held, that the irregularity was not fatal, but that it was
one which could be cured under section 425.

ABANCHIHAMY v. PETER, 567, Police Court, Tangalla,
7,555

2. Criminal Procedure Code, ss. 152 and 149-Magistrate
also District Judge-Not complying with the provisions of
section 149-Is irregularity fatal ?

Before a Magistrate, who is also a District Judge, exercises
his powers under section 152 (3), he should comply with the
provisions of section 149. The omission to comply with pro-
visions of section 149 is not fatal, but is an irregularity
which comes within the provisions of section 425.

KALINGUHAMY v. POROLIS APPU, 236, Police Court,
Ratnapura, 20,200..

3. Criminal Procedure Code, s. 321-Accused sentenced to a
term of imprisonment-Sentence to run concurrently with
a sentence accused was undergoing in another case.

Where the Court sentenced an accused to a term of imprisonment, and directed the sentence should run concurrently with the sentence the accused was undergoing in another case.

Held, the order that the sentences were to run concurrently was not objectionable in the circumstance.

THE KING V. MENDIYA, District Court, Galle, 14,512 .. 4. Criminal Procedure Code, s. 189-Time-limit on cross examination and remarks-Right of pleader for defence to comment on evidence led for prosecution.

A Magistrate has no power to impose a time-limit either on cross examination or on the remarks of pleaders.

A pleader for the defence, when opening his case, may not only expound the evidence he proposes to lead for the defence, but may also comment on the evidence led for the prosecution.

ROWEL v. PERERA, 385, Police Court, Chilaw, 12,387.. 5. Criminal Procedure Code, s. 83-Habitual offenders-Security to be of good behaviour-Summons or warrant must contain a brief statement of information against party summoned, and state under which sub-head of section 83 he comes. Where proceedings are taken under section 83 of the Criminal Procedure Code against a person, the summons must contain a brief statement of the substance of the information on which such summons is issued. It should state specifically under which of the heads dealt with by section 83 the person summoned is understood to come--whether he is a habitual offender, notorious bad liver, dangerous character, &c.

KANAGASINGAM v. TAMBYAH, 143, Police Court, Trinco-
malee, 3,958

PAGE

15

17

120

456

474

PAGE

Crown

See CHENA.

See FOREST.

See WASTE LAND.

See CROWN GRANT.

Crown grant

Crown grant in favour of six persons-Grant silent as to what share is conveyed to whom-Presumption.

When a property is purchased by several persons, and the
deed does not specify what share is conveyed to each, the
deed itself is primâ facie evidence that they acquired title in
equal shares. This inference may be rebutted by specific
evidence as to the intention of the purchasers.

APPU et al. v. SILVA et al., 231, District Court, Galle,
18,483

Cruelty to animals-Killing wild elk in a cruel manner—
Animal"

Where a number of people chased a wild elk which had not
been previously captured, and killed it in a cruel manner—
Held, that they were not punishable under the Cruelty to
Animals Ordinance, 1907, as the wild elk was not an
"animal" within the meaning of the term in the Ordinance.

INSPECTOR, SOCIETY FOR THE PREVENTION OF
CRUELTY TO ANIMALS, NAWALAPITIYA, v. PUNCHI-
RALA, et al., Police Court, Gampola, 4,579

Damages

1. Silt carried along drains in defendant's land into a water channel in plaintiff's field-Blocking of channel--Overflowing of silt rendering field useless-Action for damages-Was it plaintiff's duty to keep channel clear?

A large quantity of silt was carried along the drains in
the defendant's land which he had cleared and planted with
rubber into a water channel in the plaintiff's field; the
channel was blocked and eventually breached, and the silt
overflowed into the field and rendered it unfit for cultivation

as a field. Plaintiff sued defendant for damages. The
District Judge held that the plaintiff should have kept the
channel clear as it was in his field, and that as he had failed to
do so, he was not entitled to damages.

Held, that defendant was liable in damages.

SIADORIS v. SILVA, 250, District Court, Galle, 17,584

2. Riparian owners-Right to dam up stream--Damage to owner of land higher up.

A proprietor of a land adjoining a stream or water-course
is not justified in doing anything to dam up the stream in
such a way as to cause an accumulation of water injurious
to the land of a proprietor higher up the stream.

APPUHAMY et al. v. SINGHо et al., 326, District Court,
Chilaw, 6,582

428

112

202

197

460

3. Lease of ground share of plumbago lands-Is delivery of possession necessary?-Vacant possession-Is there a difference between lease and sale-Lease of a chose in action-Lease of rents of tenements-Lease of taxes and tolls-Actio conducti when damages may be recovered from lessor for not delivering possession--Remission of rent or damages

4.

Seizure of boats by Fiscal-Boats leaky-Action for
damages against Fiscal

..

5. Bond by a minor along with her father as surety to go through a course at the Training College and serve for five years as a teacher-Is bond valid ?—Penalty-Liquidated damages

See also CONTRACT

Decree

Deed

PAGE

42

313

281

..78, 152

180, 210, 279

453

Administration of justice should be free from suspicion-Proctor advising one party hearing case as District Judge Magistrate also District Judge-Magistrate deciding to try case summarily as District Judge under section 152 (3), Criminal Procedure Code, before recording complainant's evidence as required by section 149-Criminal Procedure Code, s. 425

Donation

1. Donation in contemplation of marriage-Right to recover present when marriage falls through.

Plaintiff under the belief that defendant was employed as a clerk consented to defendant marrying his daughter, and agreed to give a dowry of Rs. 1,000. On the day notice of marriage was given, plaintiff gave defendant Rs. 500 out of the dowry. The proposed marriage was broken off, as the defendant was not employed.

Held, that plaintiff was entitled to recover the money given to defendant.

"A donation made in contemplation of marriage must be returned in case the marriage does not take place."

JOHN SINNO v. WEERAWARDANE et al., 197, District
Court, Kalutara, 10,103

2. Property gifted by parents to child subject to the life interest
of both Death of mother-Is father entitled to life interest
over the entire property?

Where a property was gifted by a father and mother to their child subject to the life interest of both donors." Held, that the death of the mother a half share of the property became the absolute property of the donee, and that the surviving parent was not entitled to take the life interest of the half share.

FERNANDO et al. v. FERNANDO, 239, District Court,
Negombo, 14,501

..

90

248

377

15

277

138

Estate duty-Deductions for assessing duty-Are foreign debts to be deducted?--Opinion of Commissioner of Stamps final as deductions of debts-" Property "-What forms the estate of the deceased ?-Procedure under the Ordinance indicated. The term "debts and incumbrances " in section 17 (1) (b) of the Estate Duty Ordinance, 1919, refers to such debts and incumbrances as have been incurred or created within the Island. For the purpose of payment of estate duty, debts incurred or payable out of the Island are not to be deducted from the estate.

The procedure under the Estate Duty Ordinance indicated. "The opinion of the Commissioner appears to conclude the question as to what are the debts of incumbrances which must be deducted."

MURUGAPPA CHETTY v. THE COMMISSIONER OF STAMPS,
99, District Court (Inty.), Chilaw, 1,326

Evidence

1.

Evidence given by an accused which implicates a co-accused
-Is evidence to be taken into account against the latter ?
Evidence Ordinance, ss. 30 and 120.

Evidence given by an accused person on his own behalf
which implicates a co-accused person can be taken into
account as against the latter.

Where in a criminal trial two co-accused persons elect not to give evidence, but are content to rely either upon their statements in the Police Court or upon statements in the dock, the jury should be warned, where such a statement by one prisoner inculpates the other, that it should not be taken into account against him.

Where sworn evidence is in fact given by a co-accused, the
proper direction to give to the jury in such cases is that
they should be very careful in acting upon such evidence, in
view of the temptation which always assails a prisoner to
exculpate himself by inculpating another, yet, that subject
to such warning, they must weigh and consider evidence
so given against another prisoner.

REX v. UKKU BANDA et al., 3, Police Court, Kegalla,
33,011

2. Statement by one accused implicating the other accused made outside Court-Inadmissible as against other accused— Agreement by accused to pay compensation on the suggestion of the master of the accused-Implied confession-Is confession admissible against accused?

The complainant charged the two accused with theft of certain articles. The conviction of the first accused was based on two circumstances: (1) The second accused made a statement to the District Engineer implicating the first accused; (2) the first accused on the suggestion of the District Engineer offered to pay Rs. 45 to the complainant as compensation.

311

231

327