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ANDRIS APFU v. SILVA et al.
C. B., Chile, 3,945.
Time, calculation of—Term of lease.
In the case of a lease for three years commencing from the 16thDecember, 1892, where the lessee had entered into possession of theland leased on that day, held, that in the calculation of the term ofthe lease that day was to be included, and that the lease terminatedon the 15th December, 1895.
rJ~'HE facts of the case appear in the judgment.
Jayawardene, for appellant.
Asserappa, for respondent.
21st September, 1896. Bonseb, C.J.—
This is an action by the plaintiff against the defendant for unlaw-fully plucking certain cocoanuts which the plaintiff allegeswere his. The Commissioner found for the plaintiff and hasgiven him Rs. 5 as damages. The defendant appeals. It seemsthat the plaintiff on the 18th August, 1892, took the lease of agarden from the owner, which lease was for a term of three yearscommencing from the ,16th day of December, 1892. The questionis, on what day did the lease expbe ? If the 16th of December isto be included the lease would expire on the night of the 15thDecember, 1895. If that day is to be excluded, the lease wouldexpire on the night of the 16th December. Now, the pluckingcomplained of took place on the 16th December, 1895. Itappears that the defendant took a lease of this garden from theowner as from the expiration of the plaintiff’s lease. As I saidbefore, it w»? on the 16th December, 1895, that the defendantplucked the nuts; so that the question whether he was justifiedor not in plucking the nuts will depend on whether the plaintiff’slease had been determined or not. Now, it appeared in evidencethat the plaintiff entered into possession of the garden on the16th December, 1892, which shows that that day ought to beincluded in the lease, and that that was the intention of the parties.That being so, at the time that the defendant plucked these nutsthe* plaintiff’s lease had expired and the defendant’s leasehad begun to run. It was not suggested that there was any customof the country which allowed the lessee, after the expirationof his lease, to pluck cocoanuts which had ripened duringhis lease. In the absence of any such custom or usage Imust hold that the right to the nuts on the trees passed to thedefendant with his lease.
The judgment is set aside and the plaintiff’s action dismissed.
ANDRIS APPU v. SILVA et al