Re-entry by the Government Agent on behalf of the Crown without a decree of Court renders the Crown liable to damages suffered by the conductor. ATTORNEY-GENERAL v. KUDATCHY, District Court, Galle, 6,347 Cruelty to Animal--- Ordinance No. 7 of 1862, s. 1-Ordinance No. 16 of 1865, 8. 53— Upon a charge of cruelty to animal laid under section 1 of the Ordinance No. 7 of 1862 it is competent to a Magistrate to pass a sentence of imprisonment, though only a fine is imposable under it, because the Ordinance No. 16 of 1865, section 53 (2), sanctions imprisonment for such an offence. Custom NICHOLAS APPu v. Kuruayya, Police Court, Colombo, 85,092 PAGE 235 328 Amendment of, in terms of judgment-Power of Courts to amend- Where the judgment of a Court declared the title of the plaintiff to be superior to that of the defendant and directed a declaration of title to be entered in plaintiff's favour, and the decree following thereon merely declared the plaintiff's title. but did not direct the placing of the plaintiff in possession, Held, it was open to the Court to amend the decree by inserting an order for the ejectment of the defendant and for the placing of the plaintiff in possession of the property decreed. Deed CARPEN CHETTY v. MAJIDU, District Court, Galle, 4,913 Deed inter vivos-Grant of property subject to fidei commissum-Power to fiduciary to transfer his interest by way of gift or dowry to his heir or heirs under certain restrictions Transfer by fiduciary by last will to his sons, excluding his daughter-Bequest to daughter of a share in the residuary estate-Her right to approbate or reprobate the will-Consequences of her acceptance of the share-Loss of her claim to the fidei commissum land. A L by deed inter vivos in 1872 gifted to I L certain lands subject to a fidei commissum, viz., that I L should possess it during his lifetime, and that after his death the same shall devolve on his children in equal shares, with liberty however to I L to transfer his right by way of gift or dowry to his heir or heirs," but under the same conditions as aforesaid." I L possessed the lands, and by his last will dated 29th July, 1893, bequeathed one of them to three of his sons, and the residue of the movable and immovable property to his widow, three sons, and a daughter. After I L's death the legatees, by deed of partition dated 17th November, 1893, divided among themselves the residuary estate. 145 Several years afterwards the daughter, jointly with her husband, sued her three brothers for an undivided one-fourth of the land which she alleged was bequeathed to them by the last will of I L in violation of the powers given him by A L's deed of 1872. Held, that as the plaintiff had recognized in the deed of partition the provisions of I L's last will, and acknowledged to have received in full satisfaction of her claim under the will, and as she had acquiesced for several years in the exclusive possession and enjoyment of the defendants of the land she now claimed, she could not now reprobate what she had approbated, even if I L's last will contravened the limitations contained in A L's deed of gift to him. Her duty is to elect whether she will approbate I L's will as a whole, taking the residue and relinquishing her interest in the fidei commissum land, or will approbate it as a whole, retaining this land and foregoing the benefit of the devise to her. KADIJA UMMA v. MEERA LEBBE, District Court, Colombo, PAGE 23 Discharge See CRIMINAL PROCEDURE CODE Dishonest receipt and retention— 1. Dishonestly receiving and retaining stolen property-Penal Code, 8. 394-Identity of tea stolen-Evidence of experts—Adjournment of hearing to enable complainant to make further inquiry—— Criminal Procedure Code, s. 289-Reasonable cause for adjourn 2. ment. On a charge of dishonestly receiving and retaining orange pekoe tea, stolen from the complainant, the superintendent and the teamaker of the estate where the tea was made, being experts, may be called to prove that the tea found with the accused was of their manufacture. Their opinion as to the identity of the tea should carry weight. MIDDLETON, J.-Under section 289 of the Criminal Procedure Code it would not be "reasonable cause to adjourn a case whenever the prosecution desires to make further inquiry, but I think myself that there are cases in which the Magistrate might deem it expedient to grant a postponement for further inquiry, which might be deemed reasonable cause for such adjournment. The police, for instance, in making an inquiry may want to get further evidence, and I think, if the police apply for an adjournment to make further inquiry, that that would be an adjournment for a reasonable cause. Gomis v. Agoris, 2 N. L. R. 180, not followed. mulla, 11,420 Badulla-Haldum Dishonest retention of stolen property-Innocent receipt in the first MIDDLETON, J.-I cannot concur with Withers. J., in the opinion (expressed in Hanifa v. Bandirala, 3 N. L. R. 267) that the offence of dishonest retention of stolen property implies an innocent receipt in the first instance; but a dishonest retention may be complete without any guilty knowledge at the time of receipt. Where it was proved that the goods seized in possession of the accused were the property of Whiteaway, Laidlaw & Co.; that they were quite new, and were not sold to the accused; that the accused was employed in the shop of Whiteaway, Laidlaw & Co.; that he admitted that the goods came from their shop that he did not make good his statement that he had bought the goods : 116 383 there, and that he is in possession of other new goods which another shopkeeper claimed, Held, that upon these facts it was reasonable to conclude that the goods in question were stolen from Whiteaway, Laidlaw & Co.; and that the accused knew them to be stolen goods and dishonestly retained them. PERERA v. SILVA, Police Court, Colombo, 85,630 3. Dishonest retention of stolen property--Stolen bicycle found seven months afterwards in accused's house-Evidence of dishonest receiving, to show dishonesty in retention-Penal Code, s. 394. Where a bicycle, stolen seven months previous to the prose cution, was found in the bedroom of B, who, having no means of livelihood, lived with and was supported by A, his father, and B was unable to prove his statement that he had purchased it from C', Held, per MONCREIFF, J that a charge of dishonestly retaining property knowing the same to be stolen does not negative dishonest receiving and that evidence which would establish a charge of dishonest receipt may, although no charge of dishonest receiving is preferred, be used to show the dishonesty of the retention. Mahamadu v. Bandirala, 3 N.L.R. 267, questioned. COORE . ALLIS APPU, Police Court, Colombo, 85,056 District Court— Power to vacate its order of confirmation of sale Disturbing repose Disturbing repose at night --Ordinance No 16 of 1865, 8. 90—Causing another to make a noise. A lessee of a plumbago store, whose workmen disturbed the repose of the inhabitants of the neighbourhood during night by coopering barrels, is not liable under section 90 of the Ordinance No 16 of 1865 unless he was present at the place where the men were working. BELL SENANAYAKA, Municipal Council, Colombo, 6,966.. See TOM-TOM BEATING PAGE 327 274 126 380 Divorce See HUSBAND AND WIFE Donation Donation and fidei commissum inter vivos to avoid probate duty- A donation and fidei commissum inter vivos in the following terms: "I, Don Baron Lewis Gunasekara, do hereby declare to have gifted unto my hamine (wife) named Dona Madalena [here follow particulars of lands, their value being stated as Rs 1,990] on condition that the premises so gifted shall not be sold, mortgaged, gifted, or alienated to third parties hereafter, and after the death of the said hamine the said lands shall vest in my two daughters and their heirs and estates to do what they please with Requires acceptance by the fiduciary donee (the wife) to validate the gift to her, and also by the fidei commissary donees (the daughters) to validate the gift to them. It vests in the wife, not a usufruct, but a proprietas. and the wife's proprietas will become absolute at her death if the 107 daughters have not before her death, expressly accepted the donation, Their acceptance after her death will be of no avail. On the wife's proprietas so becoming absolute on her death, the lands gifted form part of her estate, which therefore, by the terms of section 547, Civil Procedure Code, requires administration to validate its devolution or the transfer of any part of it by her heirs. DE SILVA V. THOMIS APPU, District Court, Galle, 6,902 Estoppel― See ADMINISTRATION PAGE 123 353 Execution See CIVIL PROCEDURE CODE Evidence Evidence-Admission of documents tendered in evidence-Proper description of them in list annexed to the pleading-Civil Procedure Code, ss. 51, 54—Technical objections—Adjournment of case. Deeds identified, in the list of documents annexed to a plaint, by numbers and dates are receivable in evidence if duly proved and tendered. If the defendant is not prejudiced by their production at the trial, the Court should disregard purely technical objections and use the discretion given it by section 54 of the Civil Procedure Code. LAYARD, C. J.-In my opinion, if a plaintiff intends to rely on a document in support of his title to property, which he is not bound to set out in his plaint, he should give due notice of it to defendant by succinctly stating the names of the parties, the date and nature of the instrument so relied on, in the list attached to his plaint. Where a plaintiff endeavours to read and tender in evidence a document not properly described in such list, and objection is taken to its admission by the opposite party, and where the Judge considers that he is prevented from receiving material or available evidence by reason of the technical objection taken to its reception, it is his obvious duty to remove the technical objection out of the way by even, if necessary, granting an adjournment as a matter of cause, without being asked for it, to enable the defendant to examine the document which the plaintiff desires to read in evidence. FERNANDO v. FERNANDO, District Court, Negombo, 4,143 Fish- Fish-Ordinance No. 15 of 1862, s. 1 (8)-Exposing for sale pearl oysters in public market-Allowing such sale. Pearl oysters are "fish" under section 1, sub-section 8, of Ordinance No. 15 of 1862. In a charge of " allowing " pearl oysters to be exposed for sale.Held, that a person can be said to allow a thing to be done only where he has control over the acts of the person who does it, and where he can at his will prevent the thing being done. Where the lessee of a Municipal fish market permitted a person to bring within its precincts pearl oysters and expose them for sale there, though they were giving out a noxious smell, and refused to stop the sale at the request of the Municipal Inspector, and where at the trial the accused did not choose to explain his conduct by entering the witness-box,- Held, that there was sufficient evidence to show that the accused CASIE CHITTY v. MENDIS, Municipal Council, Colombo, PAGE 131 Fixtures Sale of land and building-Conveyance without express words as to fixtures-Agreement between agent of the Crown (the purchaser) and the owner of the premises-Conduct of such agent after conclusion of sale. Fixtures are articles which by being affixed or let into the ground or annexed or attached to a building, acquire the character of immovables. Counters, cooking ranges, water tanks, electric bells, batteries and indicators, baths, lavatory furniture, inquiry office, &c., fixed by bolts, screws, and other ways, are fixtures which, in the absence of a special agreement, pass with the building. Where a "land and building were put up for sale and purchased by the Crown through its agent, who some days after the sale was alleged by the owner of the land and building to have agreed with him to take over certain fixtures therein at a valuation on behalf of the Crown, Held, that even if such an agreement were entered into, the Crown could not be made liable to pay for what was already its own. BRODIE . ATTORNEY-GENERAL, District Court, Colombo, 81 Forgery Indictment-Four counts of forgery at same time and placeCriminal Procedure Code, 88. 179 and 180 (1)-Offences charged not shown to be parts of same transaction-Misjoinder of charges-False entry of clerk in book kept by himself Absence of evidence that entry was false-Penal Code, s. 453-“ By the authority of a person" -Power of Supreme Court to amend indictment, alter verdict, and to alter conviction-Criminal Procedure Code, ss. 171, 172, 355. Where an indictment alleged more than three offences, but did not show on the face of it that they all formed one single continuous transaction, Held, that it was not open to the prosecution to prove that they were all committed in one and the same transaction. Where an indictment alleged forgery, but did not allege that the false document was made with the intention of making it to be believed that it was made by, or by the authority of, another,Held, that such indictment was bad. Where, upon a charge of forgery, the evidence led disclosed that the entries were false, but did not show any intention on the part |