Present : Porter and Garvin JJ.
KETCHO v. WIJEWABDENE.
'364—D. C. Colombo, 3,900.
Prescription—Absence beyond the sees—Does it presuppose a formerpresence in the Island t Ordinance No. 22 of 1871, e. 14—Powerof attorney in favour of proctors—Action by proctors—Costs.
• In section 14 of the Prescription Ordinance, 1871, the expression“ absence beyond the seas ” does not presuppose a former presencein the Island.
Where proctors who held a power of attorney instituted anaction, they were held entitled to recover their costs as proctors.
fJELE plaintiff in this action, a British subject resident, in Calcutta,
sold at Calcutta to the defendant rice, salt, and long pepperfor Bs. 14,900 on December 7, 1918, drew on him a bill of exchangefor the value of the said goods, and shipped the ‘said goods to theplaintiff's agent in Colombo. The defendant failed to accept thebill and to take delivery of the said goods. The plaintiff thereuponcaused the said goods to be sold by public auction at the risk ofthe defendant. After crediting the defendant with the proceedsof sale of the said goods, the plaintiff sued the defendant in theCourt of Small Causes in Calcutta for the recovery of .Bs, 760.33being the amount of deficiency ajb such sale. On March 2,1920, the plaintiff obtained judgment by default against thedefendant for the said • sum. On July 6, 1920, the plaintiffinstituted an action in the District Court of Colombo against thedefendant on the judgment obtained by him at Calcutta. . Thisaction was on December 3, 1920, dismissed, with costs, “ withliberty to the plaintiff to bring a fresh action if. so advised. ” Theplaintiff having paid the costs, instituted the present action onFebruary 1, .1922, on the count of goods sold and delivered atCalcutta and averring jurisdiction in the District Court of Colomboon the ground of the defendant residing within that jurisdiction.The defendant, among other ‘pleas, stated that the claim of theplaintiff was prescribed in that the cause of action arose beyondthe period allowed by law. The plaintiff had by a power of attorneydated November 29, 1921, appointed “ Leslie Mack and PeterDaniel Anthonisz Mack (junior), solicitors of Colombo, jointlyand severally, as his attorney and attorneys. " The two actions in.the District Court of Colombo were filed by P. D. A. Mack & Sons,a firm of proctors, consisting of the two attorneys as proctors havingbeen authorised thereto by a proxy signed by P. D. A. Mack.
( 442 )
***** (junior), as the attorney oi the plaintiff. The defendant in hisKetcho «. answer pleaded that as the attorneys of the plaintiff were theWijewardene proctors for the plaintiff, he , was not entitled to any costs. Thefollowing is the judgment of the District Judge (A. St. V. Jaya-wardene, Esq.)
I think the issue of. prescription must also bo decided against thedefendant. Mr. Tisseveresinghe's contention is' thst section 15 of theOrdinance does not apply to this case, because the plaintiff has neverbeen in Ceylon. His argument is that the plaintiff cannot availhimself of the disability of absence beyond the seas under the circum-stances. He has not been able to produce any authority in support ofthis contention, and I do not think it is possible to uphold it withoutdoing considerable violence to the plain language t>f section 15. Thiscontention, I think, is entirely negatived by the judgment of theSupreme Court in Eranee v. Nussetwanjee.1 Ip. my opinion the plaintiffis entitled 'to claim the benefit of the disability, viz., absence beyondthe seas, and I hold that although the cause of action arose somewherein 1918, this present action is within time.
Mr. Tisseveresinghe then contends that the plaintiff is not entitledto costs, because the plaintiff appointedas hisattorneyorattorneys
Messrs. Leslie Mack & F. D. A. Mack (junior),solicitors,the proctors
in the case. These proctors, who appearin thecase fortheplaintiff,
he says, are themselves the nttomeys, and therefore no costs Bhould begiven. In the first place, the power of attorney I find has been given infavour of two persons, and the proxy is also in favour of the same twopersons, but it is signed by only one of them, Mr. P. D. A. Mack (junior),so that .1 do not think it could be said that the attorneys appointedthemselvesproctorsfor the purpose of instituting theaction. It is
signed by only one of the attorneys, as attorney, and I think that enablesthem as proctors appointed by the attorney to recover their costs.Even if it were otherwise I would apply the principle enunciated in theEnglish case of the London Scottish Benefit Society v. Cherley 3 whichlaid downtheralethat a solicitor appearing in personis entitled to
costs as if he had employed a solicitor,exceptwith regardto items
which thefactofhis acting directly renders necessary.This decision
was followed inthecase of H. Tolputt d Company, Ltd.,o. Mole,3 bnt
I would rather base my order on the ground that as the proxy issigned by one of the attorneys only, the attorneys were not oppointingthemselves proctors for the plaintiff.
Let judgment be entered for1 the plaintiff as prayed for with costs.
The defendant appealed from this judgment.
Ti88everasinghe (with him Weeraainghe), for defendant, appellant.—In this case the goods were sold on December 7, 1918, and theaction was brought on February 1, 1922. The case for the plaintiffis that he always was and still is “ absent beyond the seas. ” Theplaintiff cannot avail himself of this plea. He has always been aresident of Calcutta, has never been in the Island, and cannottherefore be said to be “ absent beyond the seas. ”44 Absence "
1 (1008) 11 N. L. B. 94.* 1$ Q. B. D. 372.
» ( 191J) 1 K. B. D. 87.
( 448 )
connotes previous presence. It has been held by the AmericanCourts that a citizen of another State who has never been in theCommonwealth is not a person “ beyond the seas” without anyof tiie United States, and therefore is not within the saving clauseof the Statute (Angetl on Limitations, p. 809). The decisions of theTCngliah Courts, of which Townsend v. Deacon 1 is typical, are againstappellant’s contention. But the clause of the English Statute, 81James /. c. 26, s. 17, on which they are based has the words " bebeyond the seas. ” Whereas our seetion has “ absence beyond theseat. ”
Under 4 <& 5 Anne c. 10, a. 19, there is a provision preventingtime running in oases where defendant is ** beyond the seas. ’*There is no similar provision in our Ordinance. . If defendant had,therefore, a cause of action' over a counter claim against the plaintiff,time will begin to run against him, even if plaintiff is beyond theseas during the whole time of limitation. No doubt the ” disabilityof absence beyond the seas ” has been abolished in England by theMercantile Law Amendment Act, 19 & 80 Vic. c. 97, s. 10, but a one*sided disability still remains in Ceylon. Such a clause, therefore,"in Ceylon should be construed most strictly against the personclaiming it. It has been held that the appointment of an attorneyby an absent principal does not deprive the principal of availinghimself of this saving clause. But our Courts have not gone tothe extent of holding that the institution of an action by theplaintiff through his attorney does not deprive him of the benefit.Time will commence to run against the plaintiff at least from thedate of the institution of the first action by him, viz., on July 6,1920. The present action has even then become prescribed. Thesaving clause applies only in a case where the plaintiff will bewholly deprived of his remedy if he had not the benefit of theclause. It imposes no disability oh him. He could bring the actioneven while under disability. If he did, then it is clear that atleast from that date he had either renounced the benefit or theclause had ceased to operate in his favour.
Oarvin (with him Canakeratne), for respondent.
There is no difference in substance between the English Statuteand ours, and the decisions of the English Courts are decisive. TheSupreme Court has followed the English law on the subject inEranee v. Nusserwanjee (supra).
March 7j 1928. Porter J.—
This is an appeal from a judgment of the learned District Judjgeof Colombo. He deals fully with all the facts, and I agree fullywith hie finding of law. It has been argued before us, -as it was
1 (1849) 3 Ex. Ch. 706.
( 444 )
before him, that “ absence beyond the seas ” in section 14 ofOrdinance No. 22 of 1871 presupposes a former presence in thisColony. No authority has been .adduced in favour of this, of whatappears to me to be a startling proposition. The second questionraised by the appellant was that this matter was res judicata byreason of a former action brought in Colombo. It appears, however,that in that case the decree specially allowed the bringing of thisaction. The third point is that as the proctors in this case hadheld the powers of attorney from the plaintiff, that they were notentitled to recover their costs. With that also I cannot agree.
I think this appeal should be dismissed, with costs.
Garvin J.—I agree.f
KETCHO v. WIJEWARDENE