The Sun.
London, England, 1847-02-09 00:00:00

.ANSTRUTDEIt AND OTHERS V. AnADIN.

Mr. M. C. Hill, Mr. Bethel], and Mr. MSChristie appeared
fur the appellants; Sir Fitzroy Kelly and Mr. Lloyd appeared
for the respondent.
Mr. LLOYD applied that the case might stand over to an-
other day, in consequence of Sir Fitzroy Kelly being unable to
attend, but their Lordships refused the application.
Mr. Him stated the nature of the case. It was a petition
to her Majesty, praying for leave to appeal from a judgment
of the Supreme Court of the Island of Ceylen. By the 52d
section of the charter of Ceylon, by which legal proceedings
there are governed, parties litigant have a right de jure to
appeal to her Majesty in council, against any final order,
judgment, or sentence, that may be pronounced by the courts
in Ceylon, but not against an interlocutory order
or any order or sentence not having the effect of
a final order; and in the present instance the
order complained of was neither a final order nor
could it very well be said to have that effect ; hence the ne-
cessity of presenting the present petition under the
53d section of the charter to her Majesty for
leave to appeal under the peculiar circumstances of this case.
The plaintiffs were the administrators of the property and
effects in the island of Ceylon of the late Right Hon. Mr.
Stewart Mackenzie, who was formerly Governor of that
island. He died possessed of a large estate there, upwards of
300 acres of which were cultivated as a coffee plantation.
It was alleged by the respondent that a sale of the estate had
been made to him by the agent of the late Right Hon. Gen-
tleman, and by some means or other he got possession of it
so long ago as the year 1843. The appellants denied that
any such sale had been made, and commenced an action of
ejectment against the respondent in the early part of last
year for the purpose of recovering the possession of
the estate and obtaining damages. By the practice of that
island all original proceedings must be instituted in the pro-
vince in which the property is situated; and from every
interlocutory proceeding taken there, the parties have the
right of an appeal to the Supreme Court at Colombo. The
proceedings in the present case had therefore to be com-
menced in Kandy, and for nearly one entire year the road
between Kandy and Colombo had been traversed with ap-
peal after appeal made by the respondent until the
order now complained of had been pronounced. After the
utmost difficulty on the part of the appellants, they obtained
a judgment and verdict on the 31st of July, 1846, from the
District Court of Kandy, by which the respondent was or-
dered to deliver up possession of the estate to the appellants,
and to pay them 6,0001. as and for damages and mesne profits,
together with the costs of the suit. The respondent had
previously repeatedly moved for commissions to examine
witnesses and parties in England, all of which, with other
applications and appeals, in the shape of dilatories had
been refused. He appealed to the Supreme Court against
the final order of the 31st of July of the District Court of
Kandy, and, after having heard the case argued at great
length, the Learned Judge stated :—" I Ilen't intend giving
my opinion to-day. I feel this to be a case of nicety, and
would rather wish for time to consider it. We shall put off
the case, therefore, till Thursday, if it will not be any incon-
venience for you assessors to come here then again. lam
sorry to give you that trouble, but this is an important case,
and the position of the Court is rather difficult, being a question
not of law, but efjustice ; and there are so few rules to guide
the Court in administering justice AS Disuncr racist LAw,
that I think it better to take further time to consider it.
I shall give my opinion on Thursday." Accordingly on
Thursday the Supreme Court, deciding upon its view of
justice as contra-distinguished from law, set aside the judg-
ment and verdict of the Court below, and remanded the case
back for a new trial, requiring further evidence to be
given on both sides, and giving the respondent
liberty to amend his proceedings, which would inevitably
have the effect of causing the whole thing to be gone over
again de novo. The appellants bad been under the necessity
of sending out his (Mr. Hill's) Learned Friend, Mr.
M`Christie, to assist in the conduct of the cause in Ceylon.
That gentleman had now returned, and he had had the be•
nefit of consultations with him, and his assistance on the
present occasion ; he was able, therefore, to state with ac-
curacy the facts, for Mr. M'Christie had been present at,
and taken part in, all the preceedings which had taken
place in Ceylon. Mr. MSChristie objected to the
Judge of the Supreme Court remanding the case
i
back to the District Court, bat submitted that, if "he
did send it back, it ought not to do so except upon the
payment of the costs by the respondent, and certain other
terms being imposed. The Supreme Court, however, refused
to impose any such terms, notwithstanding the respondent
was residing in France, and out of the jurisdiction of the
Court; and without any such, back it sent it, which the ap-
pellant considered and felt to be a very great grievance.
With a view to appeal to her Majesty, Mr.
M‘Chriatie, after the judgment of the Supreme Court,
now complained of was pronounced, moved that Court for a
certified copy of its record of all the proceedings there in the
cause. That motion was granted, and that record was now
ready to be produced to their Lordships, so that every thing
that could enable the Judicial Committee to arrive at a judg-
ment upon he rights of the parties was before it, and there-
fore he (Mr. Hill) submitted that this was a case in which
the appellants ought to have leave to appeal.
Lord BROUGIIA3I observed, that his difficulty was to
know, how the Judges or the powers of the Supreme Court
of Ceylon had the ability between Tuesday and Tharsday to
prepare a code of justice as distinguished from law, by which
they could have been enabled to decide any question in this
case.— (A laugh.)
Mr. LLOYDD submitted that the appellants were not at
liberty to come to her Majesty without having first gone to
all the judges of the Supreme Court collectively, by way of
review, as provided by the Charter. He also submitted that
this not being a final order, the appellants had no right to
come here at all, and that they had not shown sufficient
pressure upon them to entitle them to call upon her Majesty
for the exercise of her prerogative in granting them such an
indulgence as they now prayed for.
Lord CAMPBELL considered that it surely must be but fair
that the appellants should have an opportunity of supporting
the judgment they had obtained from the District Court;
and it would be impossible for them to do that if liberty
were not now•given them to appeal.
The MASTER of the ROLLS said that the necessity ofhaving
gone to the Collective Court before the appelants came here
only existed in the case of a final order, which this was not
said to be.

Lord BROUGHAM called en Mr. M'Christie to state if he
thought proper, anything that might occur t• him, from his
local knowledge of the island, as he had been there.
Mr. M'CHRISTIE said the respondent had had every oppor-
tunity, on all occasions, of defending himself, that the whole
of the proceedings, as certified by the Supreme Court, were
now in London, and ready to be produced to their Lordships,
and it was a well-known fact, both between the legal ad-
visers on both sides in Ceylon, and also to the judges
there, that no decision of the courts there would be submit-
ted to by the parties in this case, without in the end coming
to their Lordships; and, therefore, it was of the utmost im-
portance that the case should now be entertained here.
Their LORDSHIPS were all clearly of opinion, that under
the circumstances of this case, the appellants ought to be
allowed to appeal, and liberty was gratated to do so ac-
cordingly.