P. C. Kurunegala, 30760. This was a charge of felling timber on crown forest, without license, in breach of cl. 2 and 5 of Ordinance No. 24 of 1848, and cl. 2 of Ordinance No. 4 of 1864. The learned Police Magistrate, on the authority of P. C. Kegalle 41512, Ramanathan, 1877, p. 69, dismissed the case. On appeal, Ferdinands, D. Q. A., appeared for appellant: The case relied upon by the magistrate (Ramanathan, 1877, p. 69) goes a greater length than others yet decided. It is also in conflict with other decisions, Grenier, 1873, p. 60, Ramanathan, 1877, p 23, Grenier, 1872, p. 13. Neither is it analagous to the present case, as in that case the land appeared to be periodically cultivated. The burden of proof was on the defendant to shew that the lands were not the property of the crown, cl. 6 of Ordinance No. 12 of 1840. Van Langenberg contra, submitted that the case in Ramanathan, 1877, p. 69 was precisely similar to the present, and cited P. C. Colombo 49586, 3 Lorenz 190, and P. C. Matara 14044, 24 July 1877. Ferdinands, D. Q. A. replied. The judgment of the court was delivered by PHEAR, C. J., as follows: It appears to me in the evidence of the witnesses adduced by the crown in this case that the acts of the defendants which are complained of substantially amounted to taking possession of, and preparing for cultivation, certain more or less forest land. Any felling or removing of timber trees which he effected was only an incident in this operation, and not a principal act of itself. I think, therefore, it cannot rightly be disjoined from the rest of the case, and made separately the subject of prosecution under the Timber Ordinance No. 24 of 1843. In other words, the case which the prosecution made against the accused was something very much worse than a mere felling and removal of timber, to which alone the Timber Ordinance applies, and which was laid in the information. It bore a substantially different character and might have formed the subject of entirely different criminal proceedings. I therefore, think the acquittal was right, This accords with a decision lately given in this court, and relied upon by the Magistrate. 1877 Nov. 23. Timber Ordinance, and its operation P. C. Kalutara, 58200. On a charge of assault on a police constable, it appeared in Assault and 1877 Nov. 23. justification. evidence that a vaccinator went into a Government School in order to speak to the teacher thereof to allow the boys to be vaccinated, leaving at the gate the constable in question to see that none of the boys found their way out of the gate. The defendant who was the monitor of the school wished to go out, but was prevented from so doing by the constable, whereupon the defendant thrust him aside, opened the gate and let himself out. The Magistrate found the defendant guilty of assault. On appeal, (Browne for appellant), the court acquitted the defendant in these terms : The evidence shows the constable was the wrong-doer. The defendant was justified in placing his hands upon him and pushing him on one side, to such an extent as was necessary to enable him, the defendant, to obtain egress from the compound, and it does not appear that he did more than was in-reason required for this purpose. Maintenance. P. C. Kegalla, 42,718. Grenier for appellant, Van Langenberg for respondent. The following authorities were cited in the argument :— The judgment of PHEAR, C. J., explains the facts of the case:— On this 14th day of May 1877. The defendant did about three months ago leave the complainant, his wife, and the child born to him without giving any kind of support, in breach 2nd clause of Ordinance No. 4 of 1841. On behalf of the defendant it is objected that this plaint is bad on two grounds, 1st that the offence is insufficiently described; 2nd, that the clauses of the ordinance of which the alleged offence is a breach is erroneously given as the 2nd clause, whereas it ought to have been the 3rd clause. Now the enactment which must govern the Court in regard to this matter is the 3rd rule of schedule A to Ordinance No. 18 of 1861. "Every such plaint shall bear date of the day and year in which it is entered and shall state the names and residence of the parties complainant and defendant, the crime or offence complained of, and the time and place of its commission, in such language, or by such description as will show that it is punishable by law, and it is within the juris diction of the Court, and every such plaint shall be, as near as is material, in the form and according to the precedents contained in the schedule of terms hereunto annexed (B). Provided that no complaint shall be held to be insufficient by reason of a departure from the strict letter of the said forms, or by reason of any defect or imperfection which does not prejudice the substantial rights of the defendants upon the merits." The form in schedule B, which would have applied to this case is: (7) Desertion of child. Leave his child without maintenance, so that it requires to be supported by others, in breach of the 3rd clause of the Ordinance No. 4 of 1841. And no doubt the plaint does exhibit a departure from the strict letter of this form. But I am satisfied that the departure, such as it is in either particular, did not prejudice the substantial rights of the defendant on the merits. He could have had no doubt whatever of the precise nature of the charge made against him, or of the enactment under which the proceedings were taken. It is further objected that on the face of the plaint it appears that the offence charged was committed at least three months before the plaint was filed, and that consequently the prosecution is barred by operation of clause 22 of the Ordinance. court. In my opinion, however, this is not so. The offence charged is in its nature a continuing offence, as has been so often held by this The mention in the plaint of the date "about three months ago", merely serves to satisfy the commencement of his continuing offence; and it seems to me that the common sense inference from the words of the plaint is that the offence was still continuing when the complaint was made on the 14th May 1877. one. The evidence given at the trial shew clearly enough that it was so. The defendant who was present never pretended that it was otherwise. Indeed the case was altogether an undefended The defendant had a fair trial, was never under any misapprehension at all as to the nature of the charge preferred against him. It would be a miscarriage of justice now, after conviction, to set aside the whole proceedings on the fictitious ground that the accused had in law been tried for the offence which was at an end and complete three months before the date of plaint, and would indeed be a magnification of the law's delays and misdeeds which are already so startling in this case. The conviction is therefore affirmed. C. R. Nawalapitiya, 10072. 1877 Nov. 23. The Supreme Court set aside the judgment of the court below Lien for reand sent the case back for trial, in these terms :- The table being the admitted property of the plaintiff, the pairs made. 1877 Nov. 23. commissioner should have determined the question in respect of the defendant's claim for repairs. If the table had been repaired, and the plaintiff was bound to pay Rs. 2.50 for such repairs, the defendant had right to retain it till that was paid. As regards the defendant's claim to Rs. 4.50 as an old balance, that claim does not give him a right of lien. The judgment of the commissioner leaves open and undecided the very questions which he is called upon to decide in this case. All costs to abide the result. Breach of D. C. Colombo, 68034. The plaintiff (Namasivayam) "for and on behalf of his daugh promise of ter Tangamma, a minor," averred in his libel that under a deed of marriage, and agreement No. 7308, dated 12th March 1873, (filed and pleaded) claim for it was agreed by and between the plaintiff jointly with his daughliquidated damages. ter Tangamma of the first part, and the first defendant (Supramanian) of the second part, and the second defendant (Tambyah) of the 3rd part inter alia as follows :-that at any time six months after the said Tangamma should arrive at the age of puberty and become marriageable, the first defendant should marry her, and in case of the first defendant failing or declining to do so, he should pay the sum of Rs. 50,000 as liquidated damages (and not as penalty) to the plaintiff for the benefit of the said Tangamma, and by the said agreement the second defendant, renouncing the beneficium ordinis seu et excussionis, did also engage and bind himself as a surety for the first defendant for the true performance of all the conditions and agreements on his part and for the payment of the said damage. The libel further set forth that the said Tangamma attained the age of puberty and became marriageable on or about the 5th July 1874, and that the said plaintiff and Tangamma were always ready and willing on their part to fulfil the said agreement by Tangamma marrying the first defendant, and that all conditions were fulfilled, all things happened, and all times elapsed necessary to entitle the plaintiff and his daughter to the performance by the defendants as principal and surety, of the agreement on their part, yet that the first defendant had wholly failed and refused to fulfil the agreement; whereby an action had accrued to the plaintiff to recover, for and on behalf of his daughter Tangamma, from the defendants the sum stated of Rs. 50,000 as liquidated damages for the breach of agreement : The prayer of the libel was that the defendants be decreed to pay that sum and costs to the plaintiff, for and on behalf of his daughter. The defendants in their answer admitted the agreement, but denied that the plaintiff and his daughter were ready and willing to fulfil their part, or that the first defendant wholly failed and refused to fulfil the agreement, or that the plaintiff's daughter sustained any damage whatever by reason of the first defendant's alleged refusal, or that the defendants were liable in the damages claimed. The first defendant further said in answer that the plaintiff's daughter arrived at the age of puberty and became marriageable in the month of July 1874, but the fact was deceitfully concealed from the said defendant by the plaintiff, and upon the defendant discovering it, he was ready and willing to carry out his engagement within the stipulated time, and did on the 27th day of November 1874, and within the six months provided by the said agreement, request the plaintiff to appoint a day for the marriage without further loss of time. That the plaintiff failed to comply with the said request, when the said defendant caused a demand to the same effect to be made by his proctor on the 24th of December, and thereafter deputed a priest, according to custom, to wait on the plaintiff to have a day fixed for the marriage and the nature of the dowry promised by the plaintiff ascertained, but the plaintiff evaded seeing the said priest. The first defendant then appointed a day in January and again in February for the marriage, but the plaintiff and his daughter upon various false pretexts refused to agree to the said days, and so delayed and harassed the first defendant, that the said defendant on the 24th of February last intimated to the plaintiff by letter, his reasons at length for declining to keep on the engagement or marry the plaintiff's daughter; and the first defendant said that firstly by reason of the plaintiff's neglect and refusal to fulfil the agreement within the six months, and next by reason of the deceit and evasions practised on the first defendant as detailed in the said letter, the defendant was not bound to carry out the said agreement nor liable in damages as claimed. The defendants further averred in answer that the marriage was conditional on the plaintiff giving and bestowing on his daughter and the first defendant, a dowry in money, lands or jewels, of the value of ten thousand rupees; but the plaintiff although requested to specify the nature of the dowry and to make a settlement thereof preparatory to marriage, neglected and refused so to do, and the defendant was not bound to contract the said carriage without the said settlement; and the defendant prayed that the plaintiff's case be dismissed with costs. The replication of the plaintiff, replying to the first paragraph of the defendants' answer denied the truth of the statements therein contained save as to the admissions therein contained, and joined issue with the defendants thereupon. In reply to second paragraph of the answer, plaintiff admitting that his daughter arrived at puberty in the month of July 1874 denied that the fact was 1877. Nov. 23. |