MUTTUSAMY PILLAI v. PONNEN KANKANI.

MUTTUSAMY PILLAI v. PONNEN KANKANI.

 D. C., Kandy, 8,064.

Practice-Conduct of trial - Tender of evidence-Judge's refusal to admit it- Necessity for recording refusal and reasons therefor-When such refusal is good ground for granting a re-hearing of case.

A party accepting a Judge's ruling or opinion as regards the relevancy of evidence which he proposes to offer, without making any effort to produce it, takes the risk upon himself of losing the case for want of such evidence.

If a Court refuses to take any evidence tendered, counsel should not submit to such refusal, but should either call the witnesses, propose the questions to be put to them, and have the reasons for the Judge's refusal recorded, or should ask him to record that he would not entertain any evidence on the point in question.

THIS was an action by the payee against one of two makers of  a joint and several promissory note.

The defendant pleaded payment and satisfaction by payment to the superintendent of Templestowe estate, in consideration of whose advances to the defendant on the security of the plaintiff the note in suit was made. Issue being joined, the defendant led evidence in support of his plea and closed his case. There­upon the proceedings recorded showed that plaintiff was called and his case closed. The District Judge upheld the plea of payment and dismissed plaintiff's action.

Plaintiff appealed. In his petition of appeal he stated the plaintiff's counsel "offered to prove" that the note in question was given for a debt due by the defendant alone, and that the note had no connection with the other maker's advance account on Templestowe, which did not commence till almost a year after the date of the making of the note ; and the appellant complained that the District Judge refused to admit such evidence on the ground of irrelevancy. These allegations in the petition of appeal were supported by an affidavit, and the District Judge admitted their correctness.

Dornhorst, for appellant, argued on the merits and pressed for a re-hearing of the case in the Court below.

Wendt, for defendant.

Cur. adv. vult.

19th March, 1895. Withers, J.

[After dealing with the merits of the case, said :]

Mr. Dornhorst invited our attention to his application for leave to his client to call rebutting evidence and to prove that the pay­ment deposed to by Allagan was for an estate matter between himself and the deceased Welayan, and had nothing to do with the note sued on

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