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1905,Present: Sir Charles Peter Layard, Chief Justice.
GORDON BROOKE v. PEERA VEDA.
B., Avisawella, 4,326.
Court of Requests?—Appeal on a matter of law—Statement of matter of lawin the petition of appeal—Ordinance No. 12 • of 1895, s. 13 (1).
Held, that in a case from a Court of Bequests where an appeal liesonly on a matter of law, under. section 13 (1) of Ordinance No. 12 of1895, such matter of law must be stated in the petition of appeal;and no matter of law, not so stated, can be argued at the hearing ofthe appeal.
fJpHE facts and arguments sufficiently appear in the judgment.
Dornhorst, K.C., for the defendant, appellant.
H. A. Jayewardene (B. Koch with him), for the plaintiff, respon-dent.
Our. adv. vult.
27th September, 1905. Layakd C.J.:—
This is an appeal from a judgment of the Commissioner of theCourt of Requests of Avisawella in which the appellant has beencondemned to pay Rs. 115 as damages sustained by the respondentin consequence of appellant’s dog rushing and knocking againstplaintiff’s bicycle, which made it swerve and strike a passengerwalking on the road, in consequence of which the cycle and its riderfell.
The ground of appeal mentioned in the petition of appeal is thatthe Commissioner, having decided that there is no proof that the dogwas vicious or that its owner knew that it was vicious, was.wrong inawarding plaintiff damages.
Appellant’s counsel very candidly admitted that he could notcontend that the judgment was wrong for the reason given in thepetition of appeal, and stated that the point of law cbntained in thepetition of appeal was one that he could not support before me.
He however addressed me on a very interesting point of law, notraised in the petition of appeal, which was a very fit question for.adjudication.
The respondent's counsel took a preliminary objection, viz., thatthe appellant’s counsel was not at liberty to argue any point of law
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not stated in the petition oi appeal. He pointed out that section 1905.-13 (1) of Ordinance No. 12 of 1895 enacts that there shall be no appeal Septembers.from any final judgment pronounced by a Commissioner of the Court Layardof Requests in any action for damages unless upon a matter of law. C-J‘
He relied also on a judgment of Justice Withers in Lienard v. AbdulRahim (1) in support of his contention that where an appeal isallowed merely on a point of law, this Court can only hear argumenton the matter of law actually stated in the petition of appeal. Onthe other hand, the appellant’s counsel very properly pointed outthat that judgment was given in respect of an appeal from a PoliceCourt, and he argues that the provisions of the law (section 340 (2) ofthe Criminal Procedure Code) under which such an appeal is pre-ferred differ from those of section 13, sub-section (1), of OrdinanceNo. 12 of 1895, which governs this appeal. It is true that sub-section(2) of section 340 specifically declares that where the appeal is on amatter of law, it shall contain a statement of the matter of law to beargued, and there is no similar provision in the section of the' Ordi-nance No. 2 of 1889 above referred to.
It appears to me, however,, that where the Legislature has pro-vided for no appeal lying unless upon a matter of law, the matter oflaw to be argued must be distinctly and succinctly stated in thepetition of appeal, otherwise it would be sufficient simply to saythat the petitioner desired to appeal upon matters of law which willbe skated by his counsel at the hearing of the appeal, and therewould be nothing on the face of the petition of appeal to show thatit came within the exception mentioned in the Ordinance. I thinkthe general principle is that when an appeal is given upon a matterof law, the matter of law to be argued must be stated in the petitionof appeal, and an appeal which does not contain a statement of thematter of law to be argued would not be receivable by the Court.
Such being the case, the Court it appears to me, can only hearargument on matters of law stated in the petition of appeal. Thefact that the Ordinance No. 15 of 1898, section 840, specially pro-vides for the appeal petition containing a statement of the matterof law, to be argued, whilst the Ordinance of 1895, which deals withthe Court of Requests, is silent, does not show that the Legislatureintended that the principle governing appeals upon matters of lawshould not be*applied tc the latter class of appeals.
Holding as I do that I can only hear arguments on the matters oflaw stated in the petition of appeal preferred under section 13, sub-section (1), of Ordinance No. 12 of 1895, I must dismiss the appealwith costs.
(1) (1899) i N. L. R. 25.
GORDON BROOKE v . PEERA VEDA