Where a claim had been pending thirty years, and Ancient suit. some of the parties (but it did not appear which of them) were dead, there having been a plaintiff, defendant, and claimant in the case, the S. C. ordered the writ to re-issue upon proper application, when the claimant, or any one interested, could make a fresh claim, which could be adjudicated in the usual way, the fiscal reporting as to the person in possession. (5579, D. C. Jaffna, 20 Feb. 1862.)

Another exceptional proceeding is the allowance or order of the Supreme Court for a re-hearing, or new trial. A re-hearing, or further hearing, so far differs from a new trial, that, in the former case, the S. C. generally orders certain additional witnesses to be heard, or former witnesses to be re-heard on certain points; whereas a new trial implies, in all cases (except where the parties agree to admit the evidence taken on the former trial by mutual consent), that the whole of the evidence should be taken afresh. (26428, D. C. Kandy,

Coll. 24 Sept. 1858; Austin, 187.)

See post, p. 420.

New trial and re-hearing.

A new trial may be ordered upon so many grounds that it is impossible to lay down exact principles; but new trials have been granted in the following cases :A decree will be set aside, and the case remanded for new trial, where the defendant has not received notice. proper notice of trial.

In one case, the S. C. allowed a re-hearing, on payment of costs of appeal and the costs of the witnesses

Allowed, for

want of

On account of ignorance.

For new evidence.

Where witnesses are not fully

discredited.

on the day of trial, where the plaintiff erred only through ignorance, and contested his claim against primá facie fraudulent parties. (14326, D. C. Colombo, 16 Jan. 1839; Morg. D. 257.)

On the discovery of new evidence since judgment, parties will be allowed to adduce such evidence on the payment of the costs of the day and appeal, though it cannot be called for by the court mero motu. (28616, D. C. Matura, 4 Dec. 1862: 5916, D. C. Ratnapoora, 19 Feb. 1850.) And in a case of prescription, the court went further, and allowed re-hearing on payment of all costs, to enable the plaintiff to produce evidence of a promise ousting prescription, although he must have known of the promise before. But there is nothing to show, in that case, that the defendant pleaded prescription, the objection appearing to have been taken by the court below, so that the plaintiff was not bound to be ready with such a piece of evidence. (2728, D. C. Galle, 23 Feb. 1837; Morg. D. 137.) Again, a re-hearing will be allowed where a material witness, as, for example, a surveyor, is unable to attend the court below on the day of trial, on that point being satisfactorily proved, and on payment of the costs of the day and appeal for the indulgence. (11195, D. C. Jaffna, 4 Dec. 1862.)

A re-hearing will be granted where witnesses are not fully discredited. The Supreme Court is, in general, very unwilling to over-rule the finding of the court

below on questions of fact; but where the D. J. does not say that the witnesses for the plaintiff have given their evidence in such a manner as to disentitle them to credit, and a case is made out for a plaintiff which would warrant a verdict for him, in the absence of contradiction from the other side-in such a case, the S. C. will order a re-hearing. (19857, D. C. Galle, 5 Nov. 1861.)

decision.

Where a decision in a case has not been given for Delayed several months, and the court below has not expressed a strong opinion of the strength of the plaintiff's evidence, it is considered more satisfactory to have his case reheard. (864, C. R. Chavagachery, 27 Feb. 1862.)

refused.

The Supreme Court has repeatedly refused to grant New trial a new trial where a party has evidence ready but does not produce it, relying on the weakness of the other side. Parties, when they go to trial, ought to call all their witnesses, and give all their evidence, pro and contra, unless they are stopped by the court. (30099, D. C. Colombo, 18 Dec. 1862: 17678, P. C. Kaigalle, 6 Nov. 1862.)

Similarly, a new trial will be refused where the nonproduction of the necessary evidence arises from the negligence of the party who ought to produce it; as if, for example, he neglected to file certain necessary proceedings, or to produce further evidence in support of his case. (665, D. C. Negombo, 13 Feb. 1837; Morg. D. 135.)

New trial by acquiescence.

The naked assertion, in a petition of appeal, that the witnesses have sworn falsely, is no ground for a new trial. (4489, D. C. Kandy, 18 Nov. 1833: Austin, 21.)

Where a party has admitted an instrument at a trial, he cannot be allowed, after the decision of the case, to retract such admission as a mode of obtaining a new trial, unless it can be shown that he had been imposed upon a supposition which would be negatived if the admission had been made in open court. (5080, D. C. Kandy, 2 Nov. 1833; Austin, 22.)

If, after evidence and judgment, the plaintiff moves the D. C. that the case be heard de novo, and the defendant acquiesces in that motion, and on the day of trial both parties appear, and evidence is adduced and judgment is given afresh; that is a new trial, and the first judgment is over-ruled. (1126, D. C. Kandy, 16 Dec. 1844.)

421

CHAPTER X.

DISTRICT COURTS.

REMEDIES OTHER THAN BY LIBEL AND SUIT.

REMEDIES may be divided into remedies by1. A mere personal act.

2. By the act of the parties.

3. By the mere operation of law.

There are two modes in which private wrongs are Remedy by

mere personal

prevented by a mere personal act; namely, defence, act. and stoppage in transitu.

1. The defence, by force, of oneself, or the mutual Defence. and reciprocal defence of such as stand in the relation of husband and wife, parent and child, master and servant, is a preventive course which the law allows; and the breach of the peace which results is chargeable upon him who began the affray. But care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender