wanted merely to know about the proposed dowry, which fully appeared in the marriage agreement. Neither I nor my wife at any time insisted in knowing as to what settlement your father proposed to make on you, although we were strongly urged by your own step-mother to do so. In fact we did not care to ascertain that, had we any such intention we should have ascertained about it in our letter to you. In the same manner I can refute and explain each and all the excuses you bring forward in the letter under reply. For instance, in your letter of the 4th instant you ask me to name within thirty days from that date an auspicious day to enable you to send the notice to the Registrar. I named two days viz: the 15th or the 18th. You say that the 15th was past when my letter reached your hands, but you could have very well sent the notice to the Registrar on the 18th; and this you have not done, and try to find fault with me when I had done every thing in my power to facilitate your views. I had not the least intention of tiring you to give up the marriage, although you assume that that was my intention and that of my family. It is entirely a mystery to me to find how my conduct has been represented as strange and unaccountable. I must assure you that I am perfectly willing and ready to give my daughter in marriage to you. My daughter is likewise attached towards you. With this explanation I trust that you will be convinced that we in no way intended nor do intend to evade the contract. No sooner you have the marriage registered, I shall be ready at any time to give my daughter in marriage to you. I shall therefore thank you to send me a reply to this without loss of time. Yours &c., S. NAMASIVAYAM. T. SUPPRAMANIAM, ESQ., Colombo, 6th March 1875. My dear Uncle,-In reply to your letter of the 2nd instant, I beg to say that I have well considered the whole matter and that I am still of the same opinion that I do not think the marriage will be conducive to the happiness of your daughter and myself. I regret very much that the marriage cannot now take place:-Yours &c., T. SUPPRAMANIAM, ESQ., T. SUPPRAMANIAM. Colombo, 24th March 1875. My dear Nephew, I have duly received your letter of the 6th instant, and cannot help expressing my surprise and regret at the disingenuous reply you have afforded to my letter of the 2nd instant. The question for decision is simply this are you prepared or not to abide by the engagement solemnly entered into by you? I have plainly and without any equivocation told you in my letters that for my part the contract will be faithfully fulfilled, and I shall feel obliged to you for a definite reply to the question embodied in my communication and before indicated. Neither I nor my daughter see any reason whatever for the marriage resulting in unhappiness to yourself and her. It would be advisible I think now that you should shew this letter to your father. Awaiting your reply.-I am, yours affectionately, $ NAMASIVAYAM. 1877 Nov. 23. 1877. Nov. 23. T. SUPPRAMANIAM, ESQ., Katukande, 8th May, 1875. My dear Nephew,-Referring to my letter of the 24th March last, duplicate of which please find enclosed, I have now to request of you to kindly favor me with an answer to it. As a definite reply to the enclosed letter is a matter of vital importance I shall feel extremely obliged by you answering it as early as pos sible. Awaiting your reply.-I remain, yours sincerely, S. NAMASIVAYAM. On plaintiff closing his case with the reservation above mentioned, defendant objected that plaintiff had no right to sue, and moved that the proceedings be quashed on the ground that the plaintiff had not been appointed curator ad litem over his minor daughter. It was contended for the defendant that a curatorship was not necessary, as the plaintiff in this case was not a minor; on the contrary, it was with him personally the contract was entered into, though as a trustee for a beneficiary. The learned District Judge (Berwick) ruled as follows: "The Court desires to consider carefully the wording of the deed and also the heading of the libel before applying the law to the particular case, merely noticing that it is not disposed to attach over great weight to the heading of the libel, if this can be amended at once so as to meet justice and law without inconvenience to the parties. This point will be reserved, and on the application of defendant's counsel, the further hearing will be adjourned until the decision of this point." On a subsequent day, the learned Judge held as follows :— "I have purposely delayed till now giving judgment in this case, in the hope that the parties would act upon the advice I gave at the hearing and come to a friendly settlement of their family quarrel, each party having now fully availed themselves of the opportunity of vindicating their own conduct before their friends and the public of their community. As however I understand that no arrangement has been come to, I see no advantage in delaying my decision longer. "As the whole evidence has been put before the court, on which the plaintiff founds his right to damages on behalf of his daughter for breach of the first defendant's promise to marry her, (only the assessment of the amount due having been reserved by arrangement for further evidence if necessary), and as I am pre pared without hearing the defendant in reply to give judgment against the plaintiff's right to damages, and that on the merits and apart from any legal question of his competency to sue in the present form of action, I proceed to state the grounds on which my decision on the merits proceeds. "By a deed of agreement dated 19th March 1873 executed by the plaintiff, by his daughter, then a child sixteen months under the age of puberty, that is to say (probably not more than ten and a half years old)-by the first defendant, and by his father as surety for him, it was agreed that the first defendant should marry the girl "at any time six months after she arrived at the age of puberty." The expression quoted appears to me to mean not within six months after she arrived at puberty, but at any time within a convenient and reasonable period after the expiry of six months subsequent to her having arrived at the age of puberty. The plaintiff on his part promised to bestow a dowry on the couple "either in land, money, or jewels, to the value of Rupees ten thou"sand, and such landed property to be within the gravets of Colombo." In construing this last clause, I conceive that the defendant was entitled to insist on his being informed at a reasonable time before the marriage of the specific corpora of the dowry intended to be settled, and to have fair opportunity of investigating the titles and value of any landed property which might be proposed. The parties mutually bound themselves for fulfilment of the contract in the sum of Rs. 50,000 as liquidated damages and not as penalty. "With respect to this last provision, whatever conflict of opinion or doubts may exist under the English law as to the effect of these words, our law on the subject is clear and simple. It will be found in the 12th and subsequent sections of lib. 45, tit. i of Voet's Commentaries, and it is there stated at the end of sec. 13, that under the Roman Dutch law "where an excessive amount has been fixed by the contract by way of fixed penalty, the whole sum is not to be adjudged, but the court is to mitigate it, so that it may be reduced and restricted to, as nearly as may be, the probable damages sustained by the plaintiff." It might indeed be supposed (though I think erroneously) that this is simply on all fours with the English law as to "penalty", and does not apply to what the latter law calls "liquidated damages." I do not stop here to enlarge on the application of the well-known English rule that courts of equity (and alsoi ndeed of common law, Kemble v. Farren, 6 Bing. 141) will not suffer their jurisdiction to be evaded merely by the fact that the parties have called some thing damages which is in fact a penalty. For penalty, poena in the technical language of the civil law, is not the same as it is in the technical language of the English law. The latter speaks of three things: "damages" 1877 Nov. 23. 1877. (to be assessed by a jury), "liquidated damages", (fixed by the Nov. 23. parties themselves); and "penalty" or a penal sum which equity reduces to the real damage sustained. But in the language of the civil law, we have only two things, viz., "id quod interest" which corresponds broadly with the English word damages, and poena a "penalty" which is exactly equivalent to the English term 'liquidated damages', or rather it includes both that and the English idea of a penalty. This will be sufficiently apparent on referring to the beginning of sec. 12 of Voet's Commentaries, lib. 45, tit. 1, and Pothier's treatise on Obligations, sec. 342, where he says, "elle est par conséquent compensatoire des dommages et intérêts qu'il, souffre de l'inéxecution de l'obligation principale." There is this further difference between English and civil law, that in the latter (as stated by Story in his Commentaries on Equity, sec. 1317) "penalties were treated altogether, as in reason and justice they ought to "be, as a mere security for the performance of the principal obligations." The result is, (again to quote the words of Pothier in sec. 345) that "La peine stipulée en cas d'inéxecution d'une obligation, peut, lorsqu'elle est excessive, être réduite et modérée par le juge." I have gone thus particularly into this last question as it was raised in the argument on the case and might become very material. "So much for the three principal conditions in the deed, so far as it may become necessary to decide upon these. I will not however have to apply the law laid down on the last point if I have arrived at a just conclusion on the facts." And on the facts, the learned Judge found in favour of the defendant, and entertaining that view of the case, he considered it unnecessary to decide upon the legal objection taken in limine as to plaintiff's authority to sue. Plaintiff was non-suited with costs. He appealed. Cayley, Q. A., (with him Browne and Layard) for plaintiff and appellant: The action is based on an agreement in writing. It is admitted that 1st defendant broke off the engagement, but he pleads certain excuses. As regards the preliminary objection taken in the court below, plaintiff is a party to the agreement and is a trustee for his daughter. It is therefore competent for plaintiff to himself sue. The money if recovered would be payable to him as trustee and he would have to account for it to his daughter. On this point however the District Judge has not decided. The date for the execution of the contract was "at any time six months after the said Tangamma arrives at the age of puberty and becomes marriageable." She arrived at the age of puberty in July and it was not incumbent on the plaintiff to give her in marriage till after the end of the December of that year. The 1st defendant's let ter of 27th November 1874 was therefore premature in calling for 66 Ferdinands, D. Q. A., (with him Grenier) contra where the amount of damages claimed is out of proportion to those actually sustained, Equity ought to interfere, Evan's Pothier on Oblig. p. 210, Story's Eq. Jur, sec. 1318, Morgan's Dig. p. 220,229. But an objection in limine was taken in the court below as to the plaintiff's right to sue. The learned District Judge, who reserved his judgment on that point, has gone into the merits of the case, and given his decision thereon without allowing the defendant to put forward such defences as he had. The District Judge has not decided upon 1877 Nov. 23. |