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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.1907.
HENBY v. ALUVIHABE.
P. CM Matale, 113.
Cattle trespass—Proceeding under Ordinance No. 9 of 1876—Damages—
Right of appeal—Civil matter.
An appeal lies from an order awarding damages for cattle tree*pass under the provisions of Ordinance No. 9 of 1876. '
Queere,—Whether proceedings under Ordinance No. 9 of 1876are civil or criminal in their nature?
PPEAL from an order of the Police Magistrate awarding thecomplainant Bs. 22.50 as damages for cattle, trespass.
The facts material to the report appear in the judgment.
Wad8wortht for the defendant, appellant.
A. St. V. Jayewardene, for the complainant, respondent.
Cur. adv. vult.
November 4, 1907. Hutchinson C.J.—
This is an appeal, nominally about a sum of Bs. 10, really aboutBs. £.50, involving no question of the slightest importance orinterest, but merely 'about a trifling oversight of the Magistrate.I should like it) find that there is no right of appeal in such a case,but I am afraid I eannot. The appellant was summoned for allow-ing his cattle to trespass, and was required to show cause why heshould not pay the damages. The Magistrate after inquiry assessedthe damages at Bs. 22.50. The only point taken on behalf of theappellant was that the Magistrate had made a mistake as to theamount of damages.
The respondent objects that no appeal lies in such a case as this.The proceedings were taken under Ordinance No. 9 of 1876, whichempowers the Police Court, where animals have been seized for
trespass, to “ summarily inquire into the case andaward
such damages as shall have been proved to have been sustained,"and also a fine payable to the Crown, if the trespass was committedin the night time; and section 8 empowers the Court to awardfine Aot exceeding Bs. .5 fqr each animal, whether any damage isproved or not.••
Both the parties say that proceedings under this enactment arecivil and not criminal proceedings; and they refer me to an opinipnof Cayley C.J. to that effect reported in 8 S. C. G. 26 and to adecision, of Clarence J. in 8 S. C. C. 79. In tho later case the
12—-J. N. A 99907 <8/50)
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1907. appellant had been ordered to pay damages and had also been finedNovember*, under this same Ordinance; the Court nevertheless held that theHutchinson proceedings were civil and not criminal, and that the right of appealstill remained under the repealed Ordinance No. 11 pi 1868 andOrdinance No. 7 of 1874, which gave a right of appeal against all finaljudgments or sentences of Police Courts. 1 should have thoughtthat proceedings in which the defendant is sentenced to a finepayable to the Crown were “ criminal ” and not civil proceedings.In the present case, however, damages only were awarded; and Ifollow the above decision, and hold that the proceedings in this casewere civil.
Section 21 and 39 of Ordinance No. 1 of 1889 give to the SupremeCourt an appellate jurisdiction for the correction of all errors in factor in law committed by (amongst other Courts) any Police Court.As this is a civil matter the provisions of the Criminal ProcedureCode do not apply to it; and I do not find anything in the CivilProcedure Code or elsewhere to limit the power given to this Courtby Ordinance No. 1 of 1889. I therefore hold that a right of appealexists.
On the merits I agree with the Magistrate that he had power toaward such damages as he found to have been proved, and I see noground for interfering with his assessment. But I think that, asthe damages were caused by five animals and only four of thembelonged to the appellant he should have ordered the appellant topay only four-fifths of the damages. I therefore amend the Magis-trate’s order by substituting Bs. 18 for Bs. 22.50.
HENRY v. ALUVIHARE