Korossa Rubber Company V. Silva Et Al.,

Present: Wood Renton C.J. and De Sampayo J.

KOROSSA RUBBER COMPANY v. SILVA et. al.

227-D. C. Kegalla, 4,372.

    Damages by fire-Action far damages-Proof of Negligence-English law- Roman-Dutch law-Evidence Ordinance, ss. 32 and 33- Hearsay evidence-Statement by person who cannot be found-Report of Korala who was dead-" Double hearsay "-Affidavit of process server-Is it evidence to prove that witness cannot be found?

A destructive fire spread from defendants' land to plaintiffs' estate and destroyed a number of rubber trees. In an action for damages plaintiffs sought to prove that the fire was caused by the act of the defendants' kangany N, who admitted to the Arachchi and to the Korala that he set fire to a heap of rubbish or jungle near his hut on defendants' land. The Korala made a report, in which was recorded the admission. The report was written nearly one month after N made the statement. N disappeared before trial; the process server made a return to the effect that the subpoena could not be served on N. The Korala was dead before the trial.

Held, that the affidavit of the process server was legally admissible evidence quantum valeat to prove that N could not have been found; (2) that the evidence of the Arachchi that N had admitted that he had set fire to the jungle was admissible; (3) that the report of the Korala was admissible in evidence.

(a) The Korala's report must be taken to have been given "in the ordinary course of business," if not " in the discharge of professional duty. "

(b) The Korala's delay in writing his report does not affect its admissibility. Section 32 (1) of the Evidence Ordinance does not require the entry or memorandum to which it refers to be practically contemporaneous with the statement recorded.

(c) The objection that the Korala's report introduces " double hearsay " is one that goes to the weight of the evidence, not to its admissibility.

A person who introduces a dangerous element, such as fire, on his land is responsible for whatever damage he may cause to others by its spreading, whether he has taken all the obvious precautions or not.

The Roman-Dutch law, pure and simple, does not exist in this country in its entirety. It has been modified in many directions, both, expressly and by necessary implication by our statute law, and also by judicial decisions.

A villager to whom a chena was entrusted for the purpose of cutting down the jungle and clearing the land for coconut cultivation, on the condition that he should have a share of the minor products which might be raised on the land, was held not to have been an independent contractor.

THE facts are set out in the judgment of the Chief Justice.

H. J. C Pereira, for first defendant, appellant.
"
Bawa, K. C. (with him Samarawickreme and Canakeratne), for second defendant, appellant.

A. St. V. Jayawardene (with him J. W. de Silva), for plaintiffs, respondents.

Cur. adv. vult.

October 26, 1917. WOOD RENTON C. J.-

In this action the Korossa Rubber Co.. Ltd., sue the defendants for the recovery of a sum of Rs. 30,000 as damages for the destruction of a number of rubber trees on their estate, Korossa, by a fire, which they allege to have spread from the adjoining estate of Marukwatura, belonging to the defendants. The plaintiffs pleaded that the defendants had felled, and by the deliberate and negligent) act of themselves or their servants had set fire to, the "jungle on a portion of their land adjoining Korossa estate, and that the fire had spread to and damaged Korossa estate. The defendants in their answer admitted the felling of the jungle, but said that they had left a strip of land six fathoms broad between the felled jungle and the plaintiffs' estate, and that, therefore, they had not failed to take any precautionary step which was, at that stage, usual or necessary. They further pleaded that, in any event, the plaintiffs had been

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