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JANSE v. COSTA.P. C., Chilaw, 11,146.
February 2$and 23.
It is not competent for a Magistrate in a proceeding underchapter X. of the Criminal Procedure Code for the abatement of anuisance to order the complainant to pay Crown costs.
An appeal lies from an order to pay Crown costs where such orderhas been made without jurisdiction.
'J'HE facts are set forth in the judgment.
Chitty, for appellant.
Sampayo, for respondent.
Cur. ado. vult.
23rd February, 1897. Lawbie, J.—
A rule nisi was served on the respondents to show cause whythey should not remove an obstruction complained of as a publicnuisance.
The respondents showed cause and made a prima fade case thatthe land on which they had commenced operation was.the privateproperty of the first respondent.
The Police Magistrate then discharged the rule and ordered thepetitioner to pay Rs. 5 as Crown costs. Against this order thecomplainant appealed.
The 119th section of the Criminal Procedure Code providesthat if the Police Magistrate is satisfied that the order is notreasonable and proper, no further proceedings shall be taken inthe case. The Code does not seem to contemplate and to allow aMagistrate in these circumstances to make an order against whichan appeal shall lie, but as here the Police Magistrate did pronouncean order, I will not say that no appeal is competent, but I deal withit on its merits, and 1 say that 1 agree with the Magistrate that theorder to abate the so-called nuisance was not reasonable or proper.
As for the order to pay Crown costs when a Magistrate haspower to make .that order, no appeal lies ; but here I hold he hadno power to make it. Payment of Crown costs can be orderedonly in a summary case tried under chapter XIX.; the-present wasnot such a case, and I hold that as the order was ultra vires anappeal lies, and I must set aside so much of the order as subjects, the appellant to payment of Crown costs.
JANSE v. COSTA