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Held, (1) that the confession made by the second accused outside Court to the District Engineer was inadmissible in evidence against first accused (section 30 of the Evidence Ordinance); (2) that as the District Engineer was a person in authority over the first accused (servant), the implied confession of the first accused was inadmissible, as he supposed by that making the settlement with the complainant as suggested by his master he would gain an advantage or avoid an evil.

JOSEPH v. PERIS et al., 232, Police Court, Panadure,
78,014

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3. Money lent on a promissory note-Action for money lent— Evidence Ordinance, 1895, s. 91–

Where money has been lent on a note, a claim for money lent can be maintained apart from the promissory note. Section 91 of the Evidence Ordinance is not a bar to such a claim.

PATHBERIYA V. KACHOHAMY, 181, Court of Requests,
Avissawella, 12,100

4. Proof of trust-Oral evidence-Is there a difference between
express and resulting trust? Ordinance No. 7 of 1840, s. 2
Criminal Procedure Code, s. 189 Time-limit on cross
examination and remarks-Right of pleader for defence to
comment on the evidence led for prosecution

5.

6. Meaning of "best evidence"

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485

487

170

456

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7.

Parties agreeing to Commissioner deciding case after
inspection of land without evidence

190

Excise

1. Tavern-keeper convicted for selling arrack after hours-Order that arrack be destroyed.

Where a tavern-keeper was convicted for selling arrack after hours in contravention of section 17 of Ordinance No. 8 of 1912, the Magistrate ordered that the arrack should be destroyed.

Held, that the order was wrong, the Supreme Court
directed the arrack to be delivered to the person who
purchased it.

ANTHONY PILLAI v. SUBRAMANIAM, 164, Police Court,
Batticaloa, 10,866

2. Contract Agreement by tavern-keeper to give Fe. 1 per
gallon to renter-Contract Supply System-Impossible to
make profit of Re. 1 if arrack was sold at the price fixed
by Government-Is contract illegal?

Execution

Executors and administrators

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286, 361

1. Executor de son tort-Person transferring all his property
to another just prior to death. Action by creditor against
donee as executor de son tort-Courts Ordinance, s. 31—
Appeal No prejudice to rights of either party.

M executed a promissory note in favour of the plaintiff in
September, 1921, and in October, 1921, conveyed the whole
of her property to defendant. M died three days later.
Plaintiff sued the defendant as executor de son tort on the note,

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3.

The District Judge gave judgment for plaintiff on the footing that defendant was an executor de son tort inasmuch as he had obtained the property an a deed of gift fraudulently as against the donor's creditor.

Held, that defendant was not an executor de son tort. The judgment was, however, affirmed under section 31 of the Courts Ordinance, as the substantial rights of either party was not prejudiced.

ENNIS J." It may be that the plaintiff should have sought first to set aside the deed to the defendant, or adopted some other procedure to realize his claim against the estate of M, but I am satisfied that any irregularities there may have been during the trial of this case have not prejudiced the substantial rights of either party, as it seems to me clear, on the admissions of the defendant and the attitude he has taken up, that the property acquired by him on D I could, by a proper procedure, have been made liable for the payment of the debt."

APPUHAMY V. BANDA, 166, Court of Requests, Kandy,
1,249

Lease by administratrix-Conveyance to heir after leaseLessee ousted by administratrix after she became functus officio-Action for damages and cancellation of lease against administratrix by lessee-Judgment for lessee-Seizure of leased property by lessee under writ for damages-Action by heir under section 247, Civil Procedure Code-Paulian action-Wrongful seizure.

The second defendant as administratrix leased a property to the first defendant in 1916, and in 1919 conveyed the leased property to plaintiff, who was an heir, and other properties to other heirs, and the administratrix became functa officio. In 1920 the second defendant ousted the first defendant from the leased property. The first defendant sued the second defendant for damages and cancellation of the lease and obtained judgment, and proceeded to seize their property. The plaintiff brought this action under section 247 of the Civil Procedure Code. The first defendant pleaded that the transfer was in fraud of creditors.

Held, that second defendant was not sued as administratrix and could not have been so sued, as she was functa officio.

(2) That the seizure was illegal, and that the transfer was not in fraud of creditors.

"Upon the judgment recovered in that action against a person guilty of a personal tort, it was illegal to seize property vested in other persons who are not parties to the action, simply on the ground that at some previous time the judgment-debtor had been the administratrix of the property which was vested in the person now claiming it."

PETER et al. v. CAROLIS et al., 491, District Court,
Galle, 18,808

Lease by heir who was administrator in his capacity as heir—
Right of creditor to seize and sell property.

Where a person who was heir and administrator leased a property in his capacity as heir of the deceased person to a third party

Held, that the lease was subject to the administrator's right to sell for the purpose of the estate, and consequently

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that a creditor of the estate may seize and sell the same
in execution.

CRACKLAW v. UKKURALA, 110, District Court, Kegalla,
5,895

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4. Last will creating fidei commissum-Probate not registered -Mortgage by daughter of testator-Registration of mortgage-Priority of mortgage in respect of intestate share of the mortgagor

Executor de son tort

False information

Fidei commissum1. Fidei

commissum-Deed of gift-Prohibition against alienation-Property to go after death of donees to their children, grandchildren, or their lawful heirs-Right of widow of a donee to claim benefit under the deed.

A deed of gift after prohibiting the immediate donees (his three children) from alienating the property provided that after their death it should devolve on their children, grandchildren, or their lawful heirs.

Held, that the deed created a fidei commis. um, and that the
addition of the words or their lawful heirs " did not mako
the class of persons to be benefited obscure. The first
object of the donor's munificence were the children and
grandchildren. A widow of one of the donees was held not
to be a beneficiary as long as there were descendants.

THE GOVERNMENT AGENT, CENTRAL PROVINCE, v.
SILVA et al., 19, District Court (Inty.), Kandy, 300

2. Fidei commissum-Last will-Devise of residue to six
children-Provision that sale or mortgage should be effected
only amongst the heirs of the estate.

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66

A testator by his last will gave the residue of his estate to his six children, and directed that whenever it was required to subject the properties to any debt,mortgage, sale, gift, or any other alienation," the same should be done and effected only amongst the heirs of the estate, and should not be done and effected amongst outsiders."

Held, that the will did not create a fidei commissum in
favour of the family.

HETTIARATCHI v. SURIARATCHI et al., 327, District
Court, Galle, 17,353

3. Fidei commissum-Gift-Prohibition against alienation—
After death of donee land to pass to donee's heirs, executors,
administrators, and assigns—Class to be benefited.
A deed of gift provided as follows :—

It is hereby ordained that when F takes possession of the
said share, he shall not sell, mortgage, donate, &c., and
if he does any such act, the same shall be void. Neverthe-
less, if it is found necessary for him to sell only the said
share of the house, we do hereby give him the right to sell
the same to one of his brothers

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"The right, title, and interest of us, the said donors, shall vest in the donee F to be possessed by him, subject to the life interest of us, the two donors, and after his death to be possessed by his heirs, executors, administrators, and assigns for ever, or to do whatever else they like, for which full authority is hereby assigned."

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Held, that the deed did not create a fidei commissum.

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'Where the language used indicates as clearly as it does in this case that it was a matter of no importance or concern to the donor to whom the property passed on the demise of Fit is not possible to ascribe to him an intention to benefit a particular class by reading into the language used by him words which he has not used and which he probably never intended to use."

BOTEJU et al. v. FERNANDO et al., 227, District Court,
Negombo, 15,153

Fidei commissum-Usufruct-Property left to wife subject to condition that she shall not sell, &c., but only hold and possess the same-Civil Procedure Code, s. 218-Seizure of interests of fidei commissarius.

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The words of a last will were as follows : I give and devise all my immovable property unto my wife, subject, however, to the condition that she shall not sell, mortgage, or encumber, or in any wise alienate the same, but that she shall only hold and possess the same during her lifetime, and after her death the same shall devolve in equal shares on my two children, H and S."

Held, that the will created a fidei commissum, and not a mere usufruct in favour of the testator's wife, and that during her lifetime the interests of H cannot be seized in execution.

GUNAWARDENE v. VISVANATHAN, 102, District Court,
Galle, 19,023

Fidei commissum--Donees to sell, mortgage, donate, or
exchange amongst themselves only-Fidei commissum
conditionale-Pre-emption Sale by fiduciarius-Is sale

invalid ?

A deed of gift gave the property to seven persons subject to the following conditions:

(A) The donees are authorized to sell, mortgage, donate, or exchange amongst themselves, and shall not do so between any others, and they are at liberty to lease over the said property to any one they choose at any period."

(B) "Therefore, the said seven donees, their heirs, executors, administrators, and assigns are empowered by these presents to possess the said subject to the above conditions, for ever, and deal with it according to pleasure."

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Held, that the deed did not create a fidei commissum.

Passage (A) confers upon the donees a right to sell, mortgage, or exchange among themselves, and forbids their dealing with the property in any one of those ways with others than the donees. The effect of those words is to give the donees right of pre-emption, but the words do not create a fidei commissum.

Where a fiduciarius by deed purports to transfer absolute dominium the transfer is not invalid, but it operates only to the extent of passing such interest as he is entitled to.

RODRIGO et al, v. PERERA, 298, District Court, Chilaw,

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6.

7.

.

Fidei commissum-Last will-Devise to children and their
heirs Prohibition against alienation-Permission granted
to one heir to give the property to another heir-Division
of property among co-heirs by auction-Purchase of one
property by one heir-Conveyance in his favour by all the
other co-heirs—Is property subject to fidei commissum ?

By a last will made in 1859 the testatrix gave her property
to her four children, subject to the following condition :
"I do hereby direct that my said heirs and their heirs and
executors should possess for ever all the immovable
property, and that they are prohibited from selling, giving
in gift, mortgaging, renting out, or giving otherwise any
of these property to any other persons, and they are at
liberty to give them in any way they choose to their
co-heirs or their descending heirs or executors according to
their own pleasure, or upon a proper valuation thereof."
The children made a distribution of the property among
themselves by holding an auction among themselves. The
field in question was purchased by a son (Niculas), and
a deed was executed in his favour by all the other interested
parties.

Held (a) that the will created a fidei commissum in favour
of the children and descendants of the devisees; and (b)
that the deed in favour of Niculas was subject to the
conditions stated in the will, and that it was not one given in
pursuance of the liberty contained in the concluding part
of the above-quoted clause.

APPUHAMY v. JAYASOORIYA, 319, District Court, Galle,
17,972

Last will creating fidei commissum-Probate not registered
Mortgage by daughter of testator-Registration of
mortgage-Priority of mortgage in respect of intestate share
of the mortgagor

Fiscal

1. Bond in favour of Fiscal Assignment by Deputy Fiscal.
A Deputy Fiscal can assign a bond given in favour of the
Fiscal.

CHINNIAH V. AHAMADULEVVAI, 124, District Court,
Batticaloa, 5,288

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

The Fiscal seized certain boats belonging to plaintiff under a writ. The boats were old and leaky, and could not be kept afloat, except by intermittent baling. The crew who used to do this left the boat when the boats were seized. The Fiscal informed the plaintiff that the men had left the boats.

Held, that it was not the duty of the Fiscal to engage
a crew for the purpose of preserving the boats.

HAMEED V. THE FISCAL, WESTERN PROVINCE, 65,
District Court, Colombo, 1,105

3. Semble, a person holding a deputation from a Fiscal may
conduct a sale in execution where the mortgage decree
directs that the sale should be by the Fiscal-as what was
meant was that the sale should be a Fiscal's sale in the
ordinary sense of the word, and not that the sale should be
by the Fiscal in person

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