( 249 )
VAN HAGT v. FERNANDO.P. C., KcUna/pura, 12,325.
Sale of arrack in tavern contrary to terms of license—Liability of licenseetherefor—Ordinance No. 13 of 1891, s. 9, subsection 3.
The licensee of a tavern is liable if any arraok is sold in it, eitherby those employed by him or those to whom he has sub-sold thetavern, at a greater or less price than the lioense directs.
rpHE accused, the licensee of -a tavern,, was charged with and. ■ convicted of having “ caused or permitted ” to he sold in histavern on his account arrack contrary to the tenor of the licensein his favour, in breach of sub-section 3 of section 9 of OrdinanceNo. 13 of 1891, The evidence showed that the accused had sold,his rights under this license to one Pedro Peris, and that arrackwas sold in the tavern by a servant of Pedro Peris contrary tothe terms of the license.
In appeal, Domharst and Jayeioardene, for appellant; Wendtand Seneviratne, for respondent.
20th October, 1896. Lawbie, J.—
I am of opinion that the licensee of a tavern is liable if anyarraok be sold within that tavern at a greater or less price thanthe license directs. He is responsible if. those whom he employs,or those on whom he devolves the duty or profit of selling arrackin the tavern, infringe and disregard the plain directions of thelicense.
In the Matter of May Olive Daisy Fernando, a Minor.
D. C., Colombo, 144.
Jurisdiction.—Appointment of curator to estate of minor not domiciled inthe Colony—Ordinance No. 1 of 1889, 8. 71—Civil Procedure Code,chapter XL.
A District Court has no jurisdiction to appoint a curator of theestate of a minor who is not domiciled in this Colony or residentwithin it.
'J'HJS facts of the case appear in the judgment.
Van Langenberg, for appellant.
29th October, 1896. Bonseb, C.J. >—
This is an application by the mother of a minor to have a curatorof the minor’s property appointed by the District Court of Colombo.
October 6and 20,
( £60. )
It appears that the infant is entitled under the vnjf of her greatgrandfather to an aliquot, share of the net rents and profitsof some real property in Colombo. The father was at the timeof his death domiciled' in England, and was carrying on busi-.ness as a chemist in London, fie married an English lady, andwhether or not his original domicile was Ceylon, there is no doubtthat it was English at the time of his death. The domicile ofthe child is also English.
We are asked to make an order under section 71 of OrdinanceNo. 1 of 1889, which provides that “ every district court shall have“ the care and custody of the persons and estates of all idiots“ and lunatics and others of insane and non-sane mind resident“ within its district, with full power to appoint guardians and“ curators of all such persons and their estates, and to make order“ for the maintenance of such persons and the proper manage-“ ment of their estates,” and so on, and then it goes on to say,
“ also in like manner, and with the same powers, the cafe of the“ persons of minors and wards, and the charge of their property“ within its district shall be subject to the jurisdiction of the“ district court.”
It appears that in the Charter of 1833, which first establishedDistrict Courts, no provision was made for minors.
The first legislative enactment which referred to them was theOrdinance No. 11. of 1868, of which Ordinance this Ordinance(No. 1 of 1889) is a reproduction.
It was argued that the words “ within its district ” must referto the word “ property,” which immediately precedes them, andnot to the words “ minors and wards.” .
It was argued that whenever property belonging to a minor wasfound within the jurisdiction of a District Court that DistrictCourt has power to appoint a curator of it. But it seems to me verydoubtful whether that is the true construction of that Action.When we look to the Civil Procedure Code, which was enactedfor the purpose of giving effect -to the jurisdiction created byOrdinance No. 1 of 1889, we find that in chapter XL., which dealswith these applications, it is assumed throughout that the minoris to be resident within the district of the Court to which the appli-cation is made. It would seem, therefore, that the Legislaturehas itself interpreted section 71 in a sense adverse to thecontention of Mr. Van Langenberg. That being so, I am of opinionthat the District Court of Coldmbo had not jurisdiction to appointa curator of the estate of the minor who was not domiciled inthiB Colony or resident within it.
It may be thatit is unfortunate that the District Court has notthis power, but the District Court is a creature of statute and hasno power other than that which the statute gives.
With regard to the merits, I am not satisfied that if the Courthad jurisdiction this was a case in which the Court ought to haveexercised its power.
Lawbie, J., agreed.
VAN HAGT v. FERNANDO