1877. be two judgments in the same case, one by a court duly conOctober, 23. stituted, the other by an informal court? Besides, can the motion in the present case affect, so as to set aside, the judgments in the Chilaw cases?] Was there anything void or illegal in this reference, that was the simple question? Whatever the effect of the reference might be as regards third parties, the award would be a valid judgment inter partes. Grenier for respondent, took objection to the irregularity of the proceedings and relied on Bone v. Home, Ramanathan's Report, 1877, p. 45. Cayley, Q. A. in reply stated that the judgment pronounced in Bone v. Home gave no reasons. It was a simple affirmation. He read, and explained the object of, clauses 13 and 14. Cur, adv. vult. The court now held as follows ; If this arbitration is to be regarded as an arbitration in a suit, it ought to have been made in accordance with the provisions of the 12th clause of the Arbitration Ordinance, and in each of the three suits the application mentioned in that clause ought to have been made to the court. Nothing of that kind however appears to have been done, and consequently, so far as the arbitration is to be regarded as an arbitration in a suit, the award cannot be made a rule of Court. That the appellant so regards the arbitration is patent from the circumstance of his moving in this suit to have the award a rule of court in this case. And besides this, there is further difficulty. How could matters in litigation in the two other cases be settled by a rule of court in this case? For these reasons we are of opinion that the award in question cannot be made a rule of court in this case, and consequently (though not for the reasons given by the learned District Judge) that the order of the District Court, refusing to make the award a rule of court, must be affirmed. Property D. C. Colombo, 69,169. The subject matter in dispute in this case was half of a gar- . which is sub- den and seven houses, all of them subject to a valid fidei commissum. ject to a fidei The plaintiff claiming 4-12th of these premises applied for a partition or sale thereof. This application was resisted by the defendant on the ground that the property, being subject to a fidei comtitioned un- missum, the court could order neither a partition nor a sale. commissum cannot be sold or par-' The learned District Judge (Berwick) upheld this contention 1877. and recommended the plaintiff to apply to the Legislative Council October, 23. for a private act to set aside the entail. On appeal, Grenier for plaintiff and appellant contended that the words of clauses 13 and 14 of Ordinance No. 10 of 1863, were extensive in their application. The prayer in the libel was for partition or sale. There was nothing in the Ordinance inconsistent with the prayer, and he cited Misso's case. If sale may not be decreed, partition may be granted [DIAS, J.—It is very difficult to decree partition, but you can break the entail under the new Ordinance, which is retrospective.] Dornhorst for respondent was not called upon. The court held as follows :— The application for a sale is clearly inadmissable, as it is against the very nature of the trust created, which is a prohibition against alienation. With regard to the application for a division, we think it equally inadmissible, as it will interfere with the nature of the devise, which is a devise in common to certain parties and their descendants. The Ordinance No. 10 of 1863 is silent as to property held under a fiduciary trust such as the present, though it expressly mentions, in clause 12 and 13, the cases of mortgages and leases. We do not think that that Ordinance ever contemplated the case of a fidei-commissum, which will be effectually defeated if the Ordinance is held applicable to such cases, and we cannot by implication set aside the Common Law, which denies the remedy of partition to a person instituted heir under a condition, 2 Burge, 678. der the Ordi nance No. 10 of 1863. C. R. Colombo, 6322. October, 25th. years of age has a right to elect with whom she Per Curiam: The Supreme Court decided (on application on A girl of 17 a writ of habeas corpus) that the child, a girl of 16 or 17 years of age, was old enough to have right to elect with whom she should live. She has chosen to remain apart from her father. I am of opinion that the plaintiff in whose house she is stay- would live, ing has no claim against the father for maintenance. Except in and her father special cases of proved unfitness for the custody of his children, a father is not obliged to maintain, in the houses of others, children liable for her whom he desires to maintain in his own house, but who voluntarily live apart from him. Set aside and plaintiff's claim dismissed with costs. will not be maintenance if she choo ses to live apart from him. 1877. October. 25. postpone ment. C, R. Balapitiya, 25,739. Per LAWRIE, J: The Supreme Court will not readily interfere Practice as to with an order of a Commissioner refusing a postponement of a trial, and the judgment of the Supreme Court in No. 24973, forwarded by the Commissioner, approved of such an order. But there the party applied for the postponement, on the ground he had no witnesses though he had six weeks notice of trial; besides he gave a false excuse for his failure to subpoena. But the present case is different. The summons was returnable on the 6th September, on that day defendant filed answer, both parties filed list of witnesses, and the case was fixed for trial next day. The defendant had no time to subpoena witnesses, even if he had supplied stamps on the day he filed his list. He could not have had his witnesses ready, and he was thus entitled to a postponement. Every effort for the prompt despatch of business is to be commended, but it is more than prompt despatch to compel a defendant to go to trial on the day after the returnable day of the summons. Where a Bhudhist priest was preaching against Chris October, 30th. Present:-CLARENCE, A. C. J. DIAS, J. and LAWRIE, J. P. C. Kalutara, 11132. the This was an appeal against an order of the J. P. binding over defendant, a Budhist priiest, to keep the peace. Browne appeared for appellant. The following judgment of the Supreme Court sufficiently tianity, and sets out the facts of the case : in the course The evidence shews that defendant has been on more than one of his haranoccasion preaching or haranguing in the streets of Kalutara against gues made use of vio- christianity. Were that all, the Justice of the Peace would have lent and in- been wrong in binding him over to keep the peace. Under the temperate law administered in this colony, it is perfectly lawful to address an language so audience with any arguments against Christianity, and any one who as to inflame interferes with him must take the consequences. But the evidence and highly further than this and shews that defendant in the course of excite the goes Christians, his harangues made use of violent and intemperate language unheld that the necessary to any religious controversy, which we do not desire to J. P. was reproduce, but which appears to have been eminently calculated to right in inflame the audience and provoke a breach of the peace. Accordbinding over ing to the evidence, a large crowd was present, and the Christians the priest to became highly excited at defendant's language, and but for the inkeep the terference of the Police, a serious breach of the peace would in all peace. probability have taken place. 1877. The Justice of the Peace, exercising the discretion vested in him under the 221st clause of the Or- October, 30. dinance No. 11 of 1868 has bound over defendant to keep the peace as a person likely to do an act which may probably occasion a breach of the peace. We see no reason why we should interfere with the exercise of the Justice of the Peace's discretion. Affirmed. D. C. Kalutara No. 8142 11038 ent indictment for guilty receipt. Indictment: Tudugalamunasinhege Don Odaris Appoo of 1. InsufficiBerowela complains that Petebendige Harmanis of Berowela on the 6th day of June in the year of our Lord 1877 at Berowela within the jurisdiction of this court did unlawfully steal take and carry away a bull bearing brand marks............and some other marks which were cancelled, of the property of him the said Tudugalamunasinhege Don Odaris Appu. And the said Tudugalimunasinhege Don Odaris Appu further complains that the said Patebendige Harmanis at the time and place aforesaid did receive and have in his possession knowing the same to be stolen a bull bearing brand-marks.........and some other marks which were cancelled, of the property of the said Tudugalamunasinhege Don Odaris Appu. And the said complainant further complains that the said Patebendige Harmanis on or about the 8th day of July 1877 at Berowela aforesaid did have in his possession, beef without being able satisfactorily to account for the same, in breach of the Ordinance No. 14 1859 cl. 23. 2. In a charge of theft, it is not material that an averment of time should be proved as laid, but where there is a variance between the dates on which the defendant is On appeal against a conviction, Browne for appellant contend- charged with ed inter alia that there was a fatal variance between the charge as stealing the laid and the evidence led, in respect of the time of the offence. In bull and the the indictment the offence under Ordinance of 1859 was said to be possession of committed on the 8th July, but the evidence of theft referred to an act on the 8th of June. The Supreme Court held as follows:Conviction set aside, and defendant acquitted on the 1st and 3rd counts. The 2nd count, which discloses no offence, is quashed. Defendant is charged with stealing the bull on the 6th of June and with the possession of the beef on the 8th of July. Following the English authorities we are prepared to hold that time is not necessarily to be proved as laid, but in the present case the variance between the dates on which the defendant is charged with the stealing and the possession of the beef renders it unjust to beef, the evidence of possession ought not to be used as evi dence on the charge of theft. 3. Before inflicting pecuniary mulets upon native 1877. October, 30. wards the defendant to use the evidence of possession as evidence on the charge of stealing. Had we affirmed the conviction, we should have reduced the villagers, the sentence by omitting the fine of Rs. 100. The Supreme Court greatest cau- thinks that the greatest caution should be exercised before inflicting tion ought to be exercised, heavy pecuniary mulcts upon native villagers, whose lands must in as their lands all probability he sold to pay large fines. are likely to be sold in payment of the fines im posed. 1. An Ordi cept as to D. C. Colombo, 1,542. The following was the reference to the District Court by the nance which Government Agent, under sec. 11 of Ordinance No. 3 of 1876 :is repealed Whereas by powers in me vested under sec. 6 of "The Land must be con- Acquisition Ordinance, 1876", I the undersigned Sir Charles Peter sidered, ex- Layard &c, upon due notice given, having proceeded on the 20th November 1876 to make inquiry under sec. 8 of the said Ordinance, in order to determine the amount of compensation which should be allowed for the undermentioned land, to wit, two allotments &c [specified], and the following circumstances have arisen, namely that I the said it had never Government Agent was unable to agree with the persons interested in the said allotments of land, as to the amount of compensation to be allow2. But where ed for the same, I do hereby, in conformity with sec. 11 of the said Ordia reference to nance, refer the matter to the determination of the District Court of the District Colombo, and I do further state for the information of the District Court was Court. trrasactions past and closed, as if existed. made by the (a) that the said land is situated at Tanque Salgado in the KotaGovernment hena Ward of the Municipality of Colombo, and is of the extent of 3 roods and 283 sq. perches or thereabout; Agent in terms of sec. 11 of the (b) the undermentioned persons or claimants are persons interest- Land Acqui- nance of 1876, and it (d) That I am willing to give as compensation to the persons interested the sum of Rs. 5,350. was found Before entering into the merits, the claimant objected (21st that the comMarch) to the jurisdiction of the Court and contended that it was pensation for the land in not competent for it to proceed, under the new Ordinance No. 3 of question had 1876, to the assessment of compensation, the compensation due been assessed for this land having been already assessed by jurymen under the on a previous provisions of the Ordinance No. 2 of 1863. It was admitted that prooccasion un- ceedings were completed under the Ordinance No. 2 of 1863 up to der the re- the steps referred to in section 4 of that Ordinance, and that governpealed Ordiment refused to take the land upon the assessment made under that Ordinance. nance No. 2 of 1863, held that it was The question having been argued on both sides, the court not compe- thought it necessary to reserve the point for consideration and di |