045-NLR-NLR-V-25-WIJEWARDANE-v.-DON-JHON.pdf
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The following is the case referred to in the above judgment:—WIJEWARDENE v. DON JOHN.
313—D. C. Colombo, 27,445.
H. J. C. Pereira, for the appellant.
A. St. V. Jayewardene, for the respondent.
April 22, 1910. Wood Renton J.—
In this case the only question that we have to decide is whether the learnedDistrict Judge was wrong in holding that there is sufficient evidence from theconduct of the first defendant to show that, equally with the second, he wasin law and in fact in possession of the land in dispute at the date of theinstitution of the action. I have listened as carefully as possible to whatMr. H. J. C. Pereira has urged 'with a view to impeaching the decision of thelearned District Judge on this point, but I think that he was right in the con-clusion at which he arrived, and, in any event, it is impossible for us on thematerial before us to say that he was wrong. In the first place, we must takeaccount of the adverse view formed by the District Judge in regard to. the firstdefendant-appellant’s credibility. In addition to that, there are other cir-cumstances to which he alludes specifically in his judgment, and which pointto the first defendant-appellant’s connection with the land. It will be suffi-cient to refer to the lease, to the delay in its registration, to the fact thatin the deed of August 3,1896, he is named as the lessor’s agent for the purposesof receiving the rents, and, in the last place, to the first defendant-appellant’sfailure to reply to a letter written to him on June 22, 1908, by the proctor ofthe plaintiff-respondent, clearly asserting that he was then in possession ofthe land, and calling upon him to withdraw from it on pain of legal proceedings.It was held in the English case of Wiedeman v. Walpole (supra) that, in ariaction for breach of promise of marriage, the mere fact that the defendant didnot answer letters written to him by the plaintiff, in which she stated that hehad promised to marry her, was no evidence corroborating her testimony insupport of^such an alleged promise, as required by section 2 of the Statute32 and 33 Victoria, chapter 68. In that case, however, the Court had noevidence save defendant’s omission to reply to the letter, whereas here we havethe various points which I have already referred to, and which tend to bringthe first defendant-appellant into direct contact with the land in suit. It 1
1 (1910) S. C. Min., April 22, 1910.
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was pointed out, moreover, by Lord Esher, Master of the Rolls, In the case ofWiedeman v. Walpole {supra) that there were circumstances, for example, inbusiness and mercantil ©litigations, in which the Courts have taken notice that,in the ordinary course of business, if one man of business states in a letter toanother that he has agreed to do certain things, the person who receives thatletter must answer if he means to dispute the fact that he did so agree. Itappears to me that the present case fallB within the .category indicated by LordEsher in the passage, the effect of which I have just summarized. We havehere the formal letter of demand written by the plaintiff-respondent’s proctorto the first defendant-appellant, clearly stating that he was in possession ofthe land belonging to his client, and that lega proceedings would be institutedif he did not withdraw. It was a land with which the evidence shows thatthe first defendant-appellant had been in various ways^connected, and I thinkthat the learned District Judge was right in drawing, from his omission toreply, the adverse inference that the facts alleged in it were true. On thegrounds I have stated I would dismiss the appeal, with costs.
1928.
The ColomboElectricTramwaysand Lighting. Co., Ltd., v.Pereira
Grenier J.—I agree.
Appeal dismissed.
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