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'■ MARKAR v. HASSErt.
D. C., Colombo, 7,780.
Goods," meaning of, as used in s. 9 of Ordinance No. 22 of 1871-r-Sale ofmovable property—Prescription—Ordinance No. 22 of 1871,ss. 8 and 9—Practice relating to motions in Court.
The-word" goods” in section 9 of Ordinance No. 22 of 1871mean«“ movable property ” ; and so an action for the recovery of thebalance purchase money of a steam launch (not registered as aBritish ship under the Merchant Shpiping Act) sold and deliveredcannot be maintained, unless brought within one year of such saleand delivery.
Observations by Bonser, G.J., against the practice of filingmotion papers in oases in order to move the Court to do certainacts which it is required by the Code to do without being so moved.
rpnE facts of the case appear sufficiently in the judgment ofBonser, C.J.
Domhorst and Jayeioardene, for appellant.
Sampayo and Bawa, for respondent.
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24th November, 1896. Bonskb, C.J.—■
This is an aotion actio venditi and the simple question involvedin this appeal is whether this action to recover the balance of thepurchase money of a steam launoh which was sold and delivered
by the plaintiff to the defendant is an action “ for or in respect of .“ any goods sold and delivered.”
November 13arid 24.
It was contended by the plaintiff that a steam launch is not“ goods,” but that that expression must be restricted to thingswhich are commonly the subject of sale in shops and markets.
It is much to be regretted that the local Legislature should usewords which recall the anomalies of the English law respectingthe sale of goods, $nd are unsuited to the scientific precision ofthe civil law. But I am of opinion that “ goods ” in section 9 ofOrdinance No. 22 of 1871 means “movable property,” whichlatter is the expression used in Ordinance No. 7 of 1840, in theplace of the expression “ goods, wares, and merchandise ” of thecorresponding English Statute of Frauds. It may be that “ goods ”would not include a British ship, the property in which cannot betransferred by mere sale and delivery, but it is unnecessary todecide this, for in the present case there is no proof that this launchis a British ship. The .Master Attendant, with whom this launchis said to have been registered, is not the Registrar of BritishShips. That being so this action is not maintainable, for it wasnot brought within one year after the debt became due.
There is no necessary inconsistency between sections 8 and 9of the Ordinance. An action “ for or in respect of goods sold ”and “delivered” may be, as in the present case, an action “ upon“ an unwritten contract.’’ '
I read section 8-as providing that the period of prescriptionapplying to the actio venditi in general is to be three years; andsection 9 as providingthat in the particular case of a sale of movableswhere there has been a delivery to the buyer of the thing sold theperiod is to be reduced to one year.
It was suggested that the action might have been brought inanother form, which would not render it obnoxious to section 9.
But in this connection it is curious to note that in the old Prescrip*,tion Ordinance, No. 8 of 1834,'the phrase was an “ action for goods“ sold and delivered.”
It would seem as though the words' “ or in respect of ” werespecially inserted in the present Ordinance for the purpose ofanticipating and negativing any sdch suggestion.
The appeal will be allowed and the action dismissed withcosts.
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Novernber 13and Z4.
Bostsbb, fc. J.
I regret to have again to call attention to the way in which thebusiness of the District Court.of Colombo is earned on.. On pages29, 30, 31, 32, and . 33 of the record are five motion papers, thefirst of which—a motion that a summons be ordered to issue iorservice on the defendant-r-was unnecessary, and.the other four'are not only unnecessary, but ridiculous.. They are motions thatthe case be fixed for ex parte hearing, although the summons hadnot been served on the defendant. If these practices are continuedthis Court will have to take serious notice.of thematter.
No costs of these motions are to be allowed on taxation, eitherbetween party and party or proctor and client.
The District Judge held that a steamer, though only a small one,and mostly used for harbour work, which had been registered bythe Master Attendant as a registered slup, could not be treated as“ goods,” and that section 11 of Ordinance.No. 22 of 1871 was the.section which applied, and he ordered the case to be tried on themerits,
The register referred to was of boats licensed to ply in theharbour.
This steamer was not registered as a British ship under theMerchant Shipping Act.
The fact that the steamer had been sold by plaintiff to defendantwas admitted ; I presume it was a sale attended with the forma-lities (if any) required for the legal transfer of a vessel of thiskind.
The 9th section of our local Ordinance is, “ no action shall be“ maintainable for or in respect of any goods sold and delivered.”
In my opinion the 9th section includes actions for the price olall movables except money, bonds, &c., sold and capable of physicaldelivery and actually delivered. The section applied to thesale of such movables;.. whether the sale has been effectedby word, or by letter or other writing, for the'' question how asale can legally be effected is separate from the 'question withinwhat time must an action for the price of a movable- sold anddelivered be brought.
The plaintiff put his claim as one for the price of a steamer“ sold and delivered,” and-as"%e action was not brought within ayear of the sale and delivery the 9th section applies, and the order' appealed against must be- set .aside, and the action dismissed-withcosts.
MARKAR v. HASSEN