1877 proof is meagre, and before the question of compensation can be November, 2 decided, the case must be more fully investigated. The judgment of the District Judge is affirmed, but in respect it does not deal with the defendants claim of compensation, the case is sent back for a judgment on that point. No costs in appeal. Revocability of donations. D. C. Kalutara, 30479. The facts of this case sufficiently appear in the argument Dornhorst for appellant submitted that the deed of gift was mortis causa, and not inter vivos, and therefore revocable. The words of the deed clearly bore out this contention: "I Guneratne Terunanse &c., being very old and infirm &c.", words which shewed that, at the date of the execution, death was contemplated. If however it be held that these words were in themselves insufficient to make the deed a donatio mortis causa, the words following in the body of the deed, "I the said &c., shall possess the same until my death, and after my death the said pupil shall possess the same &c.," made it a testamentary disposition, and as such it was revocable. Viewed therefore as a donatio mortis causa or as a last will, the plaintiff was entitled to the prayer of his libel. But even assuming that the deed in question was a gift inter vivos, the plaintiff was entitled to revoke it, in that it had been proved that the donee did not comply with some of the conditions imposed on and accepted by him, but that he had on one occasion used violence towards the donor. Voet (32.5.22) enumerates the exceptions to the general rule of law that donations inter vivos are irrevocable; causæ vero sunt si donatarius donatori manus impias intulerit, aut atrocem injuriam aut ingentem jactura molem aut vitæ ejus insidias struxerit aut denique non paruerit conditionibus donatori adjectis. The evidence in the case further shewed that the donor had no right to gift, he being a mere trustee and having no absolute right of property. The gift on that ground too was bad and should be set aside. Browne for respondent argued contra. Cur. adv. vult. The court affirmed the judgment of the court below as follows: We agree with the District Judge that this is not a donatio mortis causa. It is true that a donatio mortis causa may be given quum quis nulla præsentis periculi metu conterritus sed sola cogitatione mortalitatis donat (Dig. xxxix. 6. 2), provided there be actual expression of the donor's mood-"expressa scilicet non in mente retenta" (ibidem); but that of itself is not enough, nor as pointed out in the judgment of this court in D. C. Matara, No. 26320 (2 Grenier 142) is it enough that in addition the donee's possession is to be postponed till after the donor's death. It is further required "ut et redhibendi conditio adjiciatur operte aut certe ex formulae conceptione insit donatione" (Voet xxxix. 5. 4). This deed recites that the donor was very old and infirm, and it postpones the defendant's possession till after plaintiff's death; but we do not find in it any direct or plainly implied reservation of a right to resume the gift. The gift therefore, in our opinion, is not revocable, as donatio mortis causa. a It may however still be revocable as a simple donation inter vivos, for some of the causes described in Cod. viii, 55. 10. 22. One of these causes is the breach by the donee of a condition of the donor's quiet enjoyment during his life; and the case reported in Vanderstraaten p. 145 is an authority that the aid of the courts may be invoked for a revocation. We cannot say that the evidence in this case satisfies us that the defendant has taken possession of the property in question. Nor does the evidence satisfy us that defendant has done any of the other things which would entitle plaintiff to a revocation of the gift, although it does satisfy us of one thing, viz., that the plaintiff desires to avoid the deed, because, as he says, the Dayakas complained of it as ultra vires. 1877 Nov. 2. November, 6th. Present-CLARENCE, A. C. J., DIAS, J. and LAWRIE, J. D. C. Kalutara, 30371. Grenier for appellant. The Supreme Court reduced the sentence of hard labour in- Contempt flicted by the court below, to one of twenty days simple imprison- for prevariment in these terms : The Supreme Court has often pointed out that mere falsehood uttered by a witness is not of itself punishable as prevarication. The witness who commits perjury renders himself liable to be indicted and punished with the pains and penalties of perjury. But after carefully considering what the District Judge has recorded in this case, we see no reason to doubt that the witness has been guilty of prevarication, by giving in the witness box shuffling and evasive cation. 1877. Nov. 6. come extin answers. He denied repeatedly all knowledge of what he and his brother claimed in a C. R. case, and afterwards confessed to remembering. It would be unreasonable to expect a District Judge to take down every single word uttered by a shuffling witness. We must trust something to the discretion of the District Judge, in the absence of indication that his discretion has been, so to speak, indiscreet. There is quite enough recorded in the present case to induce us to believe that the District Judge, who had the witness before him, and could observe his demeanour, has rightly held that the witness prevaricated. But the District Judge was quite wrong in inflicting hard labour. D. C. Kandy, 62,711. 1. A mort- Slema Lebbe executed a bond in 1866 in favour of Ponnappa gage debt Chetty, mortgaging a certain land. In 1873 the mortgagor gifted does not be- to his wife the land so mortgaged. In September 1874, the mortgagee recovered judgment on the bond against the administrator of guished by the debtor, subsequently to which, in the November of the same the mortgagor acquiring year, Mr. Holloway purchased the land in question from the widow the mortga- of Slema Lebbe, and while the property was under seizure by gor's interest virtue of the judgment aforesaid, he obtained an assignment of it in the mort- in his favour, and now, as substituted plaintiff, sought to revive gaged pro- judgment. perty. The defendant resisted the rule served on him, on the ground 2. Where the that the claim was extinguished by way of merger arising from the mortgagee fact of Mr. Holloway becoming purchaser of both the judgment. so buys up and the mortgage. the interest of the mort The learned District Judge upheld this contention and disgagor, he will charged the rule. not be preOn appeal, Van Langenberg for appellant (Holloway), contendvented cateris paribus ed that there was nothing to prevent appellant from recovering the from reamount of the judgment debt from the general estate of the mortcovering the gagor, if there were sufficient assets in the hands of the administradebt from tor. The creditor need not in the first instance discuss the specithe general ally mortgaged property, Voet ad Pandectas, 20, 1, 15. estate of the Ferdinands, D. Q. A., contra, cited, Pothier on Obligations, mortgagor. 425 and 426 to shew that the debt was extinguished by confusion of two opposite characters, as creditor and debtor, in Mr. Holloway. The Supreme Court set aside the order of the court below, and made the rule absolute with costs, in these terms - There is no suggestion of the existence of any unsecured creditor of Slema Lebbe's, for whose payment the assets of Slema Lebbe's estate will be insufficient if this mortgage debt is paid out of Slema Lebbe's general estate. Nor can we see that under the Roman Dutch Law, the debt has become extinguished by the mortgagee's acquisition of the mortgagor's interest in the mortgaged property. For these reasons, the order appealed against will be set aside, and rule to revive judgment made absolute with costs. 1877 Nov. 6. D. C. Kalutara, 29975. The following judgment of the learned District Judge (Lee) The crown is sets out the facts of the case : "The petitioner became the purchaser from the crown, under the conditions of sale filed in evidence, of the right to the crown's share of the crop due from the land mentioned in the libel. The cultivators (defendants) having refused to pay the share which the crown sold (i. e. half the crop), the plaintiff comes into court against them to recover that share, and against the crown to warrant the sale, and in failure to pay to the plaintiff the difference between half and one-tenth of the crop. "As against the cultivators, the plaintiff has failed entirely. It was incumbent on him to prove as against them that the share of crop due is half, and that, he has failed to prove. "As against the crown, the case is different. The two judgments of the Supreme Court (C. R. Kalutara 29900 and D. C. Galle 26570) do not touch the question at issue. Both those cases arise out of the sale of crown lands, and as to those sales, it was held on the authority of the English law that there was no warranty implied, as between the crown and the purchaser. The law in the present circumstances is to be found in Voet, tit. 39, lib. 4, sec. 7. In answer to the question "An publicani possint petere remissionem vectigalium ob insolitam sterilitatem et unde illo provenire possit? an et id quod interest si ipsis non præstentur conditiones promissæ ? Voet says Illud locationi vectigalium cum locationibus privatis commune est quod ob insolitam sterilitatem.........natam, jure publicani desiderare possint pensiones promissæ remissionem.........Longeque magis remittenda ex parte pensio si...... non præstentur publicano, conditiones illæ quæ locatione adjectæ sunt et ob id minus ex conductione redactam sit......... Quin imo si non præstentur conditiones nominatim insertæ ac promissæ conductoribus tempore conductionis, publicanos in id quanti sua interest, agere posse, secundum jus commune in omnibus illis receptum qui conventa non implent, extra dubium est..' Clearly therefore if the "conditiones nominatim insertæ ac promissa" have not been observed, the crown is liable in damages. not bound by law to warrant and defend its sales. "On reference to the conditions of sale, it will be seen that by the first article the renter is entitled to collect the share of the party, amounting to one-tenth, one-twelfth, one quarter, or one-half to which the government is by law or custom entitled, of the abovementioned harvest of the fields specified in list herewith annexed.' The list hereto annexed is the wattooroo of which copy has been produced and in which these lands are entered as liable to give a tax to the crown of one-half of the crop. "It was incumbent on the crown to defend the right which is sold, and as the crown has not thought fit to do so after notice, I must declare the crown liable to pay to the plaintiff the damages sustained. "There is no evidence before me upon which I can assess damages and the case must come before me again on that point if the parties cannot agree upon the amount. "As regards the 1, 2, 3, 4, 5 and 6th defendants, the plaintiffs will be declared non-suited with costs. As regards 7th defendant, I decree that having failed to warrant and defend to the plaintiffs the sale of half the crop, the 7th defendant is liable to pay to the plaintiffs the difference between one-tenth and one-half of the crop, and any profit which the plaintiffs may prove that they had legitimate reason to expect. The 7th defendant must pay plaintiff's cost." On appeal, Cayley, Q. A. for the crown (7th defendant): The crown is not liable to warrant and defend, D. C. Galle 23119, 2nd July 1868, Vanderstraaten's Rep. p. 16, which is the leading case on the subject. In the court below, the case was not presented, as held erroneously by the District Judge, as a matter of vectigal. The suit was not for a remission of vectigal. So far as the crown is concerned, the plaintiff's case ought to be dismissed. Grenier, contra: the crown is liable in damages Voet, 39, 4, 7. The prayer in the libel is virtually a prayer for damages, as the prayer is in the alternative to warrant or to pay damages. The answer of the crown was insufficient as it merely denied its liability to warrant. Cayley, Q. A. (in reply) contended that the passage cited from Voet was no authority on the point before the court. The conductores, farmers, were very different from the publicani, who were a class of sub-renters. As he understood the passage, it referred to quite a different state of things the section was read and commented upon.] Browne appeared for the first six defendants and respondents. The Supreme Court set aside the decree of the court below and dismissed the plaintiff's case in these terms :- |