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i. Attempt

to cheat-Attempt-Preparation-Conspiracy-
Abetment-Penal Code, ss. 109, 403, and 409.

The first accused, with the object of playing a confidence
trick on H, told him that the second accused was a very
wealthy Chetty and that he was fond of gambling, and that
a lot of money could be made by playing a game of cards
with him. He demonstrated to H that by a certain manipula-
tion of the cards as they were put back in the pack, after
they had been dealt out, on the tenth deal and subsequent
deals the dealer would get all the picture cards.
H was
asked to take Rs. 20,000. H learnt subsequently that by
extracting one card from the pack, all the picture cards would
have gone to the other player. The second accused was not
a rich man. H informed the police, and went to the place
indicated by the first accused. Before the play commenced,
the police arrived and arrested the first and second accused.
The bags brought by the second accused did not contain
money, but only pieces of paper. The two accused were
convicted with attempting to cheat H.

Held, that the acts done by the first accused amounted
only to a preparation to commit the offence of cheating,
and did not amount to an attempt to commit that offence.

The Supreme Court held that first accused had conspired with the second accused to cheat, and was guilty of abatement of cheating under sections 109 and 403 of the Penal Code.


The offence of cheating not having been committed, it seems to be impossible to deal with second accused under any section of the Penal Code."

"It is most difficult, if not impossible, to form any satisfactory and exhaustive definition which would lay down for all cases when preparation to commit an offence ends, and when an attempt to commit that offence begins. In short, the question whether any given act or series of acts amounts merely to preparation, or to an attempt which is punishable under section 490, appears to be one of fact in each case." THE KING v. SILVA et al., 22, District Court, Kurunegala, 5,295





Power of Court







31, 36, 42, 54, 56

..50, 210




Possession under an invalid lease for over ten years—Does lessee acquire a title by prescription to possess the land as lessee for the remainder of the period of lease? Principal and Agent-Power of attorney-Emphyteusis.

Defendant took on lease from the attorney of N a land for twenty years. The attorney did not sign the lease in the manner prescribed by the power of attorney, but signed

his own name, and the lease was consequently not valid. N after ten years sold the land to the plaintiff.

Held, that as the defendant had possession under the lease for over ten years, he was entitled to possess the land for the remaining period by right of prescription.

ARUNASALAM CHETTY v. BILINDA et al., 68, District
Court, Chilaw, 6,331

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2. Mortgage bond-Usufructuary mortgage as to part of the amount lent Agreement to pay interest for the balanceNo interest paid-Prescription.

Defendant granted a mortgage bond to the plaintiff for Rs. 400; for the purpose of interest the mortgage was made usufructuary one in respect of Rs. 300, and for the remaining Rs. 100 there was a promise to pay interest at 15 per cent. No interest was paid.

Held, that as the bond was one and indivisible, prescription did not run as to the Rs. 100 as long as plaintiff had possession.

ROBERT v. SILVA et al., 75, District Court, Galle, 18,949..

3. Adverse user of a path when land was being planted under an agreement by a planter-Right of way acquired as against owner and planter-Right of way acquired by a person over land of which he was co-owner.

A used a path over B's land for over ten years, when the land was being planted by C under a planting agreement with B.

Held, that A acquired a title by prescription to the right of way against both B and C.

The planter is on the land for a limited purpose, namely, the planting of the land and the possession, in fact and in law, is with the owner of the land, and, therefore, rights acquired against the land would be adverse to the owner as well as to the planter in so far as the planter's interests are concerned in the land.

Plaintiffs used a path over defendants' land for over ten years. The first plaintiff was a planter under the predecessor of defendant, and was as such a co-owner.

Held, in the circumstances, that the plaintiffs' user was adverse to defendant and his predecessor, in spite of the fact that the first plaintiff was co-owner with the defendant. APPUHAMY et al. v. APPUHAMY et al., 153, Court of Requests, Dandugamuwa, 5,420


4. Prescription-Absence beyond the seas-Does it presuppose a former presence in the Island? Ordinance No. 22 of 187', 8. 14-Power of attorney in favour of proctors-Action by proctors-Costs.

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In section 14 of the Prescription Ordinance, 1871, the expression "absence beyond the seas does not presuppose a former presence in the Island.

Where proctors who held a power of attorney instituted an action, they were held entitled to recover their costs as proctors.





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5. There is nothing to prevent a plea of prescription being set up to chena lands in proceedings under the Waste Lands Ordinance

Presumption ..

Principal and agent

1. Principal and agent-Authority of superintendent of estate to borrow money on behalf of the estate.

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The superintendent of an estate as such has no authority to borrow money on behalf of his employer, or to pledge his credit, even for the purposes of the estate, unless such authority is expressly given, or can be implied from the recognized course of dealing with third parties.

Co., LTD., 39, District Court, Colombo, 727

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2. Principal and agent-Goods delivered to another for sale outside Ceylon-Consignment of goods to foreign buyers—Undisclosed principal-Insolvency of agent-Action by assignee against principal for "short falls "-Election by foreign buyer to proceed against agent or undisclosed principalRight of principal to ask for indemnity before paying assignee in insolvency.

Defendant delivered certain quantities of rubber to one Ismail for sale in England for commission. Ismail consigned the goods to English buyers without disclosing the fact that he was acting as agent for the defendant, and drew for a very high proportion of the price expected to be realized. In several cases the amount drawn for was not realized. Ismail became insolvent, and the plaintiff was appointed assignee. He sued the defendant for the recovery of the amount not realized (short falls).


Held, If the defendant pays the amount now claimed to the plaintiff, it will not reach the English buyers. The English buyers will only recover a dividend, and they can come upon the defendant for the balance, and he may thus be compelled to pay that amount. Clearly, such a result would not be just."

It is open to the English buyers to elect to proceed either against Ismail or against the defendant, and so discharge the party not proceeded against There is only one conclusive form of election, and that is the recovery of judgment against one of the persons liable. Apart from such a judgment, the question whether an election has taken place is a question of fact . . The fact that the English buyers have entered proofs in the insolvency proceedings does not of itself constitute an election; but taken in conjunction with other circumstances may lead to such an inference. But in order that such an election may take place, the English buyers must be aware of the alternative they had of proceeding against Ismail or the defendant.


At common law, money due under a contract of indemnity could not be recovered until the debt in respect of which it was due had actually been paid. But equity allowed an order directing a fund to be set apart in advance."

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RAMANATHAN v. EBRAHIM LEBBE, 46, District Court,

Colombo, 1,175

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1, 112




Goods ordered from abroad by a firm of importers for com-
mission-Failure of person ordering to accept delivery-
Action for damage-Must action be instituted by foreign
shipper?-Repudiation of contract-Is the other party
bound to take steps to minimize damages ?

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4. Action against agents of an estate for money advanced to superintendent Motion to add proprietors as added defendants-Civil Procedure Code, 88. 14 and 1 -Numerous proprietors out of the Island-Service of summonsApplication by plaintiff to appoint some one proprietor to defend the action on behalf of all-Names of several proprietors unknown

5. Principal and agent Power of attorney-Emphyteusis









1. Warrant of attorney to confess judgment giving to a firm of proctors One proctor confessing judgment after the death of partner.

Where a power is conferred upon two agents, it is pre-
sumed to be conferred upon them jointly, and an act by one
purporting to be an execution of that power is not a good
execution. If the two agents are partners, and one partner
purports to exercise the power singly as the survivor of the
two, his act is none the less invalid. At the death of one
of the two agents, it terminates the authority of the other.
A warrant of attorney to confess judgment issued to two
proctors practising in partnership was held not to give the
survivor the power to confess judgment after the death
of the other partner.

GARVIN v. ABEYAWARDENE, 18, District Court (Inty.),
Matara, 421

2. Administration of justice should be free from suspicion—
Proctor advising one party hearing case as District Judge
3. Restitutio in integrum-Settlement-Proctor acting con-
trary to instructions-Relief given by Supreme Court
direct without sending case to District Judge for investi-
gation into allegations in application

4. Prescription—Absence beyond the seas-Does it suppose a
former presence in the Island ?-Ordinance No. 22 of 1871,
8. 14—Power of attorney in favour of proctors—Action by

Promissory note






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1. Money lent on promissory note-Action for money lent 2. Money Lending Ordinance, 1918, 88. 10 and 13Promissory note given as security for future payment— Contributions to a cheetu club-Fictitious entry in margin 244

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1. 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.


D mortgaged a half share of a land to defendant.
the property was seized in execution, the plaintiffs (who were
children of D) claimed it, asserting that the will of D's
father had created a fidei commissum, by which, on the
death of D, it devolved upon the survivors. The defendant
urged that as the probate was not registered, the registered
mortgage took priority.

Held, that the mortgage gained priority by registration.
If the defendant. asserts title independently of the will,
the mortgagor had title only to what she inherited from her
father by intestate succession.

ELLAPATA et al. v. FERNANDO, 109, District Court,
Ratnapura, 3,721

Registration-Wrong folio-Side entry referring to wrong


The deed relied on by plaintiff dated May 14, 1905, was registered on October 27, 1920, in A/45, folio 236, which was connected by a reference to A/2, folio 358, which was the right folio. The deed relied on by defendant dated November 3, 1919, was registered on November 21, 1919, in A/96, folio 100. There was an entry in red ink at the top of the folio for a similar land, see A/45/236, and in A/45/236 there was an entry for a similar land, see A/96/100.”

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Held, that defendants' deed was duly registered.

"These references establish a connection between the
volumes and folios in which the two competing deeds are
registered sufficient to facilitate reference to all existing
alienations affecting the land."

MUDALIHAMY v. BANDA et al., 225, District Court,
Kegalla, 5,790


3. Registration-Right folio-Entry in folio "for similar land, see A 51/126."

The foundation of defendant's deed D 1 was D. This latter deed (D) was registered in A vol. 24, folio 108. An entry at the foot of the folio stated that the registration was carried over to A 51/126, from which again, by a similar entry, it was carried over to A 141/312. On the last folio there was no entry indicating any carrying forward. D1 was registered in A 130/87, as D 2, which was mortgage a granted by the transferor in D 1, was registered there; this mortgage was discharged at the execution of D 1. On A 130/87, the words "brought forward from were crossed over, and in red ink there were inserted the words "for the same land see A 101/114," and another entry for a similar land see A 51/126." On A 101/114 was registered a mortgage of the land, and against it in the "remarks" column were the words see A 24/108, where the title deed has been registered." At the bottom of the folio it was stated "for the same land see A 130/87 and 101/114.”


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Held, that D I was registered in the right folio.

APPUHAMY v. WIRASINGHE, 272, District Court,
Tangalla, 1,880




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