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Present: Garvin J.
EMMANUEL v. NAMASIWAYAM.
283—G. R. Jaffna 18,428.
Prescription—Goods sold—Absence beyond the seas—Death—Period oflimitation—Ordinance No. 22 of 1876, s. 15.
Where a person in whose favour a cause of action accrued wasat the date absent from the Island and died during such absence,—
Held, that the period of limitation commenced to run against himfrom the date of his death.
PPEAL from a judgment of the Commissioner of Bequests,Jaffna.
H. V. Perera, for defendant, appellant.
Nagalingam, for plaintiff, respondent.
1 28 N. L. R. 292.
* 26 N. L. R. 205.
( -512 )
. Emmanuelv. Noma-aiwayam
April 3, 1928. Ga&vin J.— .
This was an action by the administrator o£ the, estates of twopersons of the names of Babu Lall and Mathan Lall who were at
one time carrying on a business in Ceylon. The claim is for a debtdue in respect of goods sold and delivered. Such a claim wouldordinarily be barred after the lapse of one year from the time whenit became due. The cause of action originally arose some time in theyear 1928, but the plaintiff -pleaded that by reason of a certainpayment on account made on October 4, 1924, during the absencefrom the Island of both the partners, and in consequence of a dis-ability, which—it is alleged continued up to the time of their death,the case was taken out of the Act. The learned Commissionerhas found that a payment on account was made on October 4, 1924.The effect of that payment clearly would be to take the case out ofthe Act in the sense that the original cause of action to recover theamount due for goods sold and delivered will be taken to have beensuperseded by a fresh cause of action to recover the balance due inrespect of the goods so sold, dating a6 from the date upon which thepayment on account was made. It has also been found that at thedate of this payment the business was being conducted in Ceylonby an agent, both the partners being absent beyond the seas. Byreason, therefore, of the provisions of section 15 the running of theperiod of limitation was suspended. Neither of the partnersreturned to Ceylon since, and while they were still away Babu Lalldied in India on April 11, 1925, and Mathan Lall on May 8, 1925.Now, the learned Commissioner of Bequests took the view that timedid not commence to rim until the appointment of the administrator.In this I think he is wrong. Section 15 provides that the period oflimitation shall not commence to run “ until the removal of suchdisability or the death of such person, whichever first shall happen.'"In this instance the disability of absence beyond the seas was notremoved by the return of the partners or either of them. Whathappened 41 first ” was that they both died. It seems to me,therefore, that the period of limitation in respect of this debtcommenced to run at the latest on May 8, 1925, which was the dateupon which the sole surviving partner, Mathan Lall, died. Thisaction was not instituted till February 14, 1927, when a period ofconsiderably over one year had elapsed. The claim is thereforebarred.
The judgment under appeal is set aside, and the plaintiff's actiondismissed, with costa in both Courts.