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**resent: Middleton J.NORTHWAY v- NAATCHIA.368—G. R. GaUe, 10,782.
Court ofRequests—Appealon lata,andonfactsincasesotherthan land
cases—Appellant -should not wait till leave to appeal on facts beallowed to appeal on the law■—Ordinance No. 12 of 1895, s. 13 (1).A party desiring toappealbothonthelawandthe factsin a
Courtof Bequests case otherthanalandcasemustfilehisappeal
on the law within' the appealable time..
Ifsubsequently hisapplication forleavetoappealonthefacta
bo granted by the Supreme Court, both the appeals may be arguedtogether.
rjl HE facts appear in the judgment.
A. St. V. Jayewardene, for the defendant, appellant, argued onthe facts, and then urged that even on the facts as found by theCommissioner the defendant was not liable to pay damages.
W. Jayewardene, for the plaintiff, respondent.—No question ot.law can be urged at this stage. The appellant did not appeal onany point of law within the appealable time. He applied for leaveto appeal on the facts, and he obtained leave. He must now confinehis appeal to questions of fact; if he wished to raise any question<of law he should have appealed at once, and should not have waitedto appeal on the law till he obtained leave to appeal on the facts.See Wettachi v. Alwis.1
The question of law now raised was not raised at the trial. Noissue was framed on the point. The question could not, therefore, beiraised now. Counsel cited Fernando v. Soysa,2 Attorney-General v.Smith,3 * * Moung v. Mali* Punchanun Roy v. Toyluckho,s AhmedeeJBegum v. Dabee Persand,* Davies v. Baur.7
A. St. V. Jayewardene, for the appellant.—All the facts necessary,to raise this question of law are on the record. The Appeal Court■would under the circumstances decide the question of law raised..See The Tasmania,8 Madho Pershad v- Gajadhar.*
1(1900) 4 N: L. R. 126.
2 (1896) 2 N. L. R. 40, at page 43.
■3 (1905) 8 N. L. R. 229, at page 241.
* 10 Cal. 777.
• L. R. 11 I.
s 14 W. R. 466.
* 18 W. R. 289.
2 Bal., sup., 16.
L. R. 15 Appeal Cases 225.A. 186.
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When leave to appeal is necessary, it would be convenient to ****■embody in one appeal petition both the points of law and facts. NorthwayIf two appeals have to be filed it would be inconvenient; security v. Naatchu*will have to be given twice. The Civil Procedure Code does notcontemplate two different appeal petitions.
Cut. adv. vult.
October 26, 1911. Middleton J.—
This was an action for damages against the defendant as the ownerof a dog for unpsetting the plaintiff’s motor bicycle. The answerdenied the ownership of the dog, or that the dog chased after orran against the bicycle of the plaintiff. There was no plea denyingthe liability, even if the ownership of the dog was proved to bein the defendant. In my opinion paragraph 5 of the plaint, takenin connection with paragraph 2 of the answer, raises no such denial,but merely amounts to a denial that damages should be assessed atBs, 100.
The issues settled were: (1) Is defendant the owner of the dog in.question? (2) damages. The damages were agreed on at Rs. 75.
The plaintiff appeared by proctor, and the defendant by advocate-and proctor— a fact I emphasize—and the Commissioner of Bequestsfound in tbs affirmative on the facts against the defendant, and gave-judgment for Bs. 75 accordingly.
The defendant did not appeal on the question of law which she-now raises, and that. question was not even raised incidentally atthe trial. The defendant, however, sought and obtained leave toappeal on the facts from this Court, and has now embodied in herpetition of appeal the question of law whether she is liable fordamages, even if she is proved to have owned the dog.
After hearing the appellant on the facts, I see no reason for holdingthat the Commissioner’s decision on them is wrong. The Commis-sioner is an experienced Magistrate, and heard the evidence on both=sides, and I am not prepared to say that he drew wrong inferences,,or that the facts on which he based his inferences were not proved,,or that the evidence was inconclusive.
The appellant’s counsel then raised the .question of law, and,quoting The Tasmania,1 argued that the plaint disclosed no causeof action, and that he was entitled to maintain this position uponthe appeal as now entered by leave, and contended that if the-contrary were held, the' obligation would be to file two petitions ofappeal, and consequently double securities for costs.
Counsel for the respondent objected that -no appeal on the lavrcould now be argued, first, because no appeal had been entered on.the question of law within the appealable time; and secondlyrbecause neither the pleadings nor the issues agreed on raised anydefence in law.
1 L. R. 15 Appeal Cases 225.
( «a )In my experience of appeals in Court of Bequests cases to thisCourt, which was confirmed by Mr. van Langenberg in the capacityof amicus ounce, it has been the invariable practice since 1.895 incases other than land cases to enter an appeal on the law if such wasthought sustainable within the appealable time, and if it was foundnecessary or deemed expedient subsequently to apply for leave toappeal on the facts, when, if the latter application was granted, thetwo questions were treated as consolidated in one appeal, and wereargued together before this Court. The hardship of two appeals insuch cases, if hardship there be, which I take leave to doubt, is onethat hitherto has never been complained of or given rise to anyobjection. On the other hand, if the contention of the learnedcounsel for the appellant is to prevail, there would be no need toenter any appeal on the law at all, but simply to obtain leave toappeal on the facts, when any question of law that ingenuity coulddevise might be raised, and the provisions of section 13 (1) of Ordi-nance No. 12 of 1895 and section 831 of the Civil Procedure Coderegulating the admissibility of such appeals entirely ignored. Icannot think this was the intention of the Legislature, and itcertainly has not been the practice since 1895, and I decline to acc'edeto the argument of doubtful hardship supporting it.
As to the second objection, by section 809 (IA of the Civil ProcedureCode the defendant has to state his defence in his written, answer.The defence stated here was that the dog was not the defendant'sdog. No defence in law was raised on the issue nor at the trialorally by counsel for the defence, but the case went for trial on theassumption that, the defendant was liable if the dog were proved tobe her dog. I think it is too late now to raise a question of law, andI base my opinion on the decision in The Tasmania (ubi supra),which has been relied on by counsel for the appellant. The factsbearing on this new contention are not all before the Court, as theymight have been if it had been raised on the trial. The defendantwas apparently willing to admit liability if the plaintiff proved thatthe dog was hers. On the plaint as it now stands also it is arguablethat, according to Grotius, book 3, chapter 48, section 10, andVoet 9, 1, 6, the owner of the dog is liable for the damages caused''by it.- See also the observations of Lord Villiers in Graham v.Vilgoer.1
I think the appeal should be dismissed, as the appellant has failedto establish that the decision on the facts was wrong; and, in my■opinion, on the pleadings and issues as agreed on by her legal advisersand on the objections raised by counsel for the respondent she hasino right to appeal on the law now.
1 Buchanan 1878, 126.
NORTHWAY v. NAATCHIA