053-NLR-NLR-V-08-BAUMGARTNER-v.-VAN-ROOYEN.pdf
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BAUMGARTNER v. VAN ROOYEND. G.t Galle, 181 (special)
Surveyor appointed by Court—'* Aggrieved person 11—Duties of surveyor—Procedure—Ordinance No. 15 of 1889, s. 8, s.-s. 1.
A surveyor appointed by the Commissioner of Requests in apending case having made two inconsistent plans of the same ' land,one ■ of them being prepared entirely in accordance with the instruc-tions of, one of the parties to the suit, the Commissioner proceededagainst him under section 8, sub-section 1, of Ordinance No. 15. of1889, on the ground that he was incapable of discharging his dutieswith advantage to the public.
Held, that the Commissioner was an “ aggrieved person ” withinthe meaning of section 8 of the Ordinance, and that he was entitledto proceed under that section against the surveyor.
Held, also, that the procedure need not be by petition.
A ' surveyor appointed by Court becomes an officer of court, and itis his duty to hold the scales equally between the litigants.
facts are set out in the judgment.
A. St. F. Jayewardene, for appellant.
Fan Langenberg} A. S. Gfor respondent.
Wooo Renton, J.—
In the present case Mr. Jayewardene has urged on. behalf of hisclient all that could possibly be said, but it seems to me that theorder of the District Judge was right and must be affirmed. Pro-ceedings were taken against Mr. Van Rooyen tender section 8,
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1905.
November 8.
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sub-section 1 of Ordinance No. 15 of 1889. There is no contest as to loo'i.the facts. In a case pending before the Court of Bequests Mr. Van November 8Booyen was appointed to make a survey of certain lands in dispute.
He prepared in fact two plans. In the plan dated July, 1901, he Renton, 3.showed the disputed portion outside lot 1 of plan No. 518, and inthe other plan he showed the disputed portion inside the same lot.
Mr. Van Booyen admits that he made this startling change solelyat the instance of the plaintiff, on whose application he had beenappointed to make the second survey. It was suggested by Mr. Jaye-wardene that perhaps he may have been under' the impressionthat since he was appointed at the instance of one party he wasentitled to give effect to the view of that party as to the properstarting point from which to, make his plan. It appears to me thatthis suggestion is Inadmissible. Mr. Van Booyen was an experiencedsurveyor, and he must have known that from the moment of hisappointment he became an officer of the Court, and that his dutywas to hold the scales equally between both litigants. If there areno legal objections to the decision of the District Judge, it seems tome to be absolutely correct on the facts. A surveyor for the Courtwho is capable of so surrendering his judgment as to act on therepresentations of one party alone is in my view “ incapable ofdischarging his duties with advantage to the public. ” But Mr.
■ Jayewardene has raised on behalf of his client two points of law. Inthe first place, he says the Commissioner of Bequests was not an
aggrieved person ” within the meaning of section 8 of OrdinanceNo. 15 of 1889. There are a great number of statutes in which thewords “ aggrieved person ” occur, and each of these must be con-sidered and construed on its own merits.
For this reason I do not think that the English Trade Markdecisions, which have been cited to us, and which will be found-summed up in Mr. Kerly’s book on Trade Marks (pp. 265, 271),apply. But it is clear that the English Courts, even in these de-cisions, have considered that the object of the Legislature in makinguse of the words “ aggrieved person ” was to exclude commoninformers and other persons who had no locus standi. I hold that thesame reasoning applies to the construction of the Ordinance beforeus in the present case. The Commissioner of Bequests was an“ aggrieved person. ” He had made an order within his jurisdictionwhich had been disobeyed, and he was entitled to prefer a complaintbefore the tribunal which the Colonial Legislature' has indicated,namely, the District Court. In the second place, Mr. Jayewardene-contended, that even if the Commissioner of Bequests was an aggriev-ed person, he ovjght to have proceeded by petition. This objection
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1905.
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WoodBenton. J.
was not taken in the Court below, and even if it had been so takenI think it would have, been untenable. No form of petition isprescribed by the Ordinance. The whole scheme of the Ordinanceis that the procedure should be summary, and I think that theDistrict Judge could competently act upon any statement which wasin the nature of a request that he should deal with the facts. TheDistrict Judge’s decision is sound! and it must be upheld.
Obenier, A.P.J., agreed.
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