025-NLR-NLR-V-19-SUPPRAMANIA-CHETTY-et-al.-v.-THE-FISCAL,-WESTERN-PROVINCE.pdf
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Present: Ennis J. and Schneider A. J”.
SUPPRAMANIA CHETTY et al. v. THE FISCAL,WESTERN PROVINCE.
266—D. G. Colombo, 42,104.
Action against Fiscalfor negligence—Loss ofgoods seizedunder, writ—
Burden of proof—Prescription—When does cause of action arise
Civil Procedure Code, s. 362.
Underwrit issuedin execution of plaintiff’s decree for
Bs. 8,357.90 the defendant as Fiscal seized and took into hiscustody goods valued at Bs. 3,456.51, and placed guards outsidethe shop. On September 28,1914,theFiscal’s officer discovered
that some goods, valued at Bs. 1,560.75, were stolen. Plaintiffknew ofthetheft onSeptember 30. Theremainderof the goods
were sold on October 7 and realized Bs. 1,715.55.
Plaintiff instituted this action on July 2,1915, for damages,
alleging that the loss of goods was attributable to the fraud or grossnegligence orgross want of ordinarydiligence onthepartofthe
guards appointed by the Fiscal.
Held, that theaction was barredunder section 862of the Civil
Procedure Code, as it was brought nine months after the cause ofaction had arisen.
Prescriptiongenerally runs in casesof tort fromthedateofthe
tort, and notfrom the occurrence ofthe damage.Butthere isan
exception to .thiswhere the originalactitself was nowrong, and
only becomes so by reason of subsequent damage.
In actions for negligence the mere fact that . injury has beencaused is not enough to throw on the defendant the burden ofproof as to negligence, although in certain circumstances theburden inky be shifted, e.g., wherea barrel wasletfallfrom a
window on the plaintiff as he was walking on the street.
fjpHE facts are set out in the judgment of Schneider A.J.
Bawa, II. C. (with him Ratnam), for the plaintiffs, appellants.—Thelaw imposes a duty on the Fiscal to produce on the date of salethe goods seized by* him and given to his custody (Civil ProcedureCode, section 227). Plaintiff’s cause of action did not arise on theFiscal’s failure to keep the goods safe, but on the loss arising as theresult of his negligence, i.e., on October 7, 1914, when the proceedsof sale failed to satisfy plaintiff’s decree (Ram. 1877, p. 338). Theprivate right of the plaintiff infringed is the right to have the goodswhich were seized sold on the day appointed for the sale and theproceeds applied in satisfaction of his decree.
1916.
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1916. Ho action is maintainable against the Fiscal unless pecuniarySuppra- loss is suffered (L. R. 7 Q. B. 175). The Fiscal is in the same.m ania OheUy position as an English, sheriff (Ram. 1877, p. 344; D. C. Colombo,*’69,938). The goods having been lost in the custody of the Fiscal,
Province the burden of rebutting negligence is on the Fiscal (38 L. J. E&. 13).The facts prove gross negligence._
J. de Saram, for the defendant, respondent.—Section 362 ofthe Civil Procedure Code requires the plaintiff to prove affirmativelygross negligence (2 Bal. 73). Gross negligence imports more thanthe want of ordinary care (Seven 269; 6 E. <ft B. 8911). It mustamount to something approaching fraud (Beven 421.) The plaintiffhas failed to prove even want of ordinary care. The plaintiff’scause of action arose at the date of the actual breach of duty ornegligence, and not from the date of the discovery of the negligence(5 B. eft C. 2591). Plaintiff knew of the loss on September 30. Evenif the cause of action arose on that date, the action is barred. Thebreach of duty occurred when the goods were stolen. [Schneider A.J.referred to 8 8. C. 0. 153.)’ Counsel referred to Wendt 32.
Bawa, K.C., in reply, referred to 2 Browne 196.
Cur. adv. vult.
August 3, 1916. Ennis J.—
This suit was instituted on July 2, 1915, against the Fiscal of theWestern Province for damages, for an amount since reduced toBs. 1,560.75, in that certain goods seized by the Fiscal at theinstance of the plaintiffs were stolen while in the custody of theFiscal through the gross negligence of the Fiscal, whereby theplaintiff suffered loss to the amount claimed, the goods of thedebtor remaining in the hands of the Fiscal being insufficient tosatisfy the plaintiff’s decree to that extent. The plaintiff assertedthat he was not aware of the loss till the day of sale, viz., October 7,
The learned Judge has found that the plaintiff knew of theloss on September 30, 1914, and that the theft took place betweenAugust 25 and September 28, 1914. With these findings of fact Isee no reason to interfere, as there is ample evidence to support them.
The first and second appellants are the plaintiffs, substituted inthe place of the original first plaintiff, who died after the institutionof the action.k
Section 362 of the Civil Procedure Code, so far as it is materialto the present, case, provides that every person charged with theduty of executing a writ “ shall be protected thereby from civilliability for loss or damage caused by, or in the course of, orimmediately consequential upon, the execution of such process byhim, or in the case of the Fiscal by his officers, except when theloss or damage for which the claim is made is attributable to anyfraud, gross negligence, or gross irregularity of proceeding, or grosswant of ordinary diligence or abuse of authority on the part of the
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person executing such process. Provided that no action shall be 1916.
maintainable unless such action be brought within nine Ejous J..
months after the cause of action shall have arisen. ”
The learned Judge has found that no gross negligence has been maniaOhctiyproved, and that the claim is barred by prescription. The argument v-in appeal was practically confined to these points. The finding on Provincethe first point is, in my opinion, right. In actions for negligencethe mere fact that injury has been caused is not enough to throwon the defendant the burden of proof as to negligence, althoughin certain circumstances the burden may be shifted, e.g., where abarrel was let fall from a window on the plaintiff as he. waswalking in the street Byme v. Boadle1). In the present case thecircumstances are that thieves effected an entry into the lockedhouse in which the goods were kept through the roof, and thatpeople could go on the fop of the roof without being seen by any oneon the roadside. The Fiscal in the usual way caused the goods tobe locked up in the house, and placed two watchers as guards overthe premises. These circumstances are not sufficient to shift theburden of proof on to the defendant, and it was therefore’ notincumbent upon him to call the guards to rebut a presumption ofgross negligence.
In view of my opinion on this point, it is hardly necessary todiscuss the next, but as the matter was fully argued I will dealwith it.
The question is, At what point of time did the plaintiff’s causeof action arise? In D. C. Colombo, No. 69,993,2 the plaintiff suedthe Fiscal for damages for eviction from premises sold to him bythe Fiscal, who failed to give notice of a mortgage of which he wasaware at the time of sale. The plainflff was subsequently evictedat the instance of the mortgagee. The Court enunciated theprinciple that it was not sufficient to show that the Fiscal had donesomething or faffed to do something which he ought to have done,but that the plaintiff must show that some private right of his hadbeen infringed in consequence. In that case the Court held thatno private right of the plaintiff had been infringed at the. time ofthe sale by the suppression of the fact that a mortgage existed, asthe plaintiff was in a position to enjoy the full benefit of his purchaseuntil the mortgagee pressed his claim, which might never happen.
In this case the English authorities were considered, and thedecision being one of a Full Court is binding on us. The principlewas applied in Karolis v. Woutersz,s where the plaintiff surrenderedto the Fiscal for seizure and sale a mortgage bond in favour of athird party. The Fiscal sold to the plaintiff himself. The plaintiffput the bond in suit, but his case was dismissed on the ground ofirregularity in the seizure and assignment. He then took action
* 32 L. J. Ex. 13.2 Ram. 1877, 338.
3 8 S. G. C. 153.
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1916.
Ennis J.
Suppra-mania Chetv. The PieceWesternProvince
lor damages against the Fiscal, and it was held that his cause ofaction arose upon the latter’s failure to make a valid seizure andassignment, and prescription ran from that date,v Lawrie J. said the loss was a continuing one, which commencedfrom the moment the Fiscal made a mistake, and that at the time ofaction he was suffering the same loss, namely, that of not havingin his poeket money which the Fiscal ought to have recovered forhim, and distinguished the case from D. C. Colombo, No, 69,933,where the plaintiff after a lapse of years suffered loss by eviction.
In Fielding v. The Municipal Council of Colombo,l the horses ofthe plaintiff becoming frightened by being squirted by a watercart owing to the neglect of the defendant’s servant bolted, oneof them injuring itself so severely that it had to be shot two monthsafterwards. It was held that the action was in time, having beenbrought within three months of the horse’s death, on the groundthat where the extent of the injury is doubtful the cause of actionaccrues when the doubt ceases.
Lawrie J. said:“‘Mere ignorance of the plaintiff as to the exact
meaning of pecuniary loss would not excuse delay in bringing theaction. For instance, if a carriage be badly broken, and it is sent tothe builders for repairs, the repairs may not be made for more thanthree^ months, and until the bill be sent in the owner may not know■whether he could claim £10 or £50. That is not a case in which theaction may be delayed. But when it is doubtful what the extentof the injury will be where the injury lessens or grows from day today, it is reasonable .to hold that the cause of action accrues whenthe doubt ceases when the injury is complete. ’’ Moncreiff J., afterdealing with the English cases, came to the conclusion that thecause of action might be said to arise at the time of the neglect, but,inasmuch as a cause of action does not arise until the plaintiff hassustained damage, he saw no reason or justice in holding that thecause of action dates from the moment damage begins to showitself, and held that the causa of action only became complete anddefinite at the later date, and that the plaintiff was entitled to suewithin the prescriptive period from that date. This case conflictswith the principle laid down in D. C. Colombo, No. 69,933; aprivate right of the plaintiff seems to have been infringed at thetime of the negligent act, and the loss was a continuing one. Inthe present case the private right of the plaintiff that the Fiscalshould keep the goods safely was infringed at the time of loss, andthe loss continued. I would follow the principle laid down inD. C. Colombo, No. 69,933, and Karolie v. Woutersz* which wereboth cases in respect of the negligence – of the Fiscal, and hold thatthe cause of action arose at the time of the neglect, and that the actionhas consequently been instituted after the prescriptive period. Iwould accordingly dismiss the appeal with costs.
1 2 Browne 196.
= 8 S. C. C. 153.
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Schneider J.—
The third plaintiff in the present ~ action, and the original first Suppra-plaintiff (in whose stead the present first and second plaintiffs havebeen substituted) in action No.88,765of theDistrictCourt of Western
Colombo, obtained a hypothecary decree in their favour for the 3 Prownaesum of Rs. 3,357.90 and interest. Under writ issued in executionof this decree the defendant asFiscalseizedand tookinto his
custody the property mortgaged,whichconsisted of thestock in
trade lying in a shop at Padukka. This stock in trade consistedof almirahs and boxes containing rice, cloths, curry, stuffs, <&c, Thedefendant’s officer who effected the seizure says he took the usualsteps, viz., sealing the almirahs and boxes, locking the doors,fastening them ^stith padlocks, and taking ‘possession of the keys.
It is proved that he made an inventory and a valuation of thegoods. He also placed two guards outside the shop. The valueof the goods as appraised wasRs. 3,456.51.The seizure was
effected on July 17, 1914. On July 29 a small portion of the goods,as being perishables, was sold, and realized Rs. 20.45. In Augustthe defendant’s officer went inside the shop and found everythingin order. The sale was fixed for August 25; but it was stayed atthe request of the decree-holders. At the request of the proctorfor the decree-holders on September 3 the sale was re-fixed forOctober 7. In Sie meanwhile, viz., on September 28, the sameofficer who had effected the seizure went to the shop to effect aseizure of the same goods under another writ. He found the guardson duty and the doors secured as he had left them, but on enteringinto the shop he discovered that the seals of the almirahs had beenbroken and some of the contents removed, the thieves had effectedan’ entrance by cutting the laths and making an opening in theroof. The shop was a two-storied building facing the high road,with a garden at the back. The roof could be reached by climbinga tree at the back of the building. The opening of the roof effectedby the thieves was not visible from the high road, nor could anyone on the roof be seen from the high road. It is agreed that thevalue of the goods stolen is Rs. 1,560.75, and that the remainderof the goods sold on October 7 realized Rs. 1,715.55. Reckoningsome cash in the shop, and deducting from the proceeds of executionthe costs of execution, the plaintiff’s decree remained unsatisfiedto the extent of Rs. 1.812.22. The plaintiffs instituted this actionon July 2, 1915, to recover from the defendant the value of thelost goods, alleging that the loss was attributable to “ the fraud orgross negligence or gross want of ordinary diligence on the guardsappointed by the defendant, and deputed by him to look after andguard the said property. And that the plaintiffs became aware ofthe said theft or removal only on the day of the second sale, to wit,
October 7, 1914, and that a cause of action has therefore arisen tothe plaintiffs to sue for and recover from the defendant the value
of the said goods. ” (Plaint, paragraph 7).
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1916.The learned District Judge has held it as proved that the plaintiffs
Schneider knew of the theft on September’ 30. I think he has so held rightly; .
A.J. but the date when the theft came to the knowledge of the plaintiffsSuppra- i® no^ material in the view I take of the law.mania Ohetty It js clear that the draftsman of the plaint had the provisions ofWsection 362 of the Civil Procedure Code before him while drafting
Province the plaint. A«d that, in his opinion, the period of prescription wasto run as irom the date when the theft came to the knowledge ofthe plaintiffs. Section 362 provides that “ every person chargedwith the duty of executing any process shall be protected therebyfrom civil liability for loss or damage caused by, or in the course of,or immediately consequential upon, /the execution of such processby him, or in the case of the Fiscal by his officers, except when theloss or damage for which the claim is made is attributable to anyfraud, gross negligence, or gross irregularity of proceedings, or grosswant of ordinary diligence on the part of the person executingsuch process. Provided that no action shall be maintainable
unless such action shall‘be brought within nine months after
the cause of action shall have arisen. ”
Of the issues framed and tried, I need refer only to the 3rd and4th, viz. :—“ 3. Is the plaintiff’s claim prescribed? 4. Were thegoods stolen or removed through the fraud or gross negligence orgross want of ordinary diligence of the defendant or his agents? ”
The learned District Judge has held in favour of the defendanton both these issues. The plaintiffs appeal. The fourth is a mixedissue of fact and law. I entirely agree with the learned DistrictJudge’s holding on this issue. There is no suggestion, much lessproof, of fraud. The facts do not warrant an inference of negligence,much less of gross negligence. By the latter term I understand“ greater negligence than the absence of that ordinary care whichunder the circumstances a prudent man ought to have taken ”(Earle J. in Gashil v. Wright1). Beven in his Negligence, in Laxosays: “ So long as the sheriff is in possession of the goods of thedebtor, he is bound to exercise the same degree of care in theirpreservation that a man of ordinary discretion and judgment mayreasonably be expected to exercise in regard to his own property.He does not insure the goods, but is in the position of an ordinarybailee for the purposes of custody and sale. He is, therefore,: notliable for an accidental fire, not yet for the loss by theft, robbery,or other accident without want of ordinary care on his part ”(p. 269, third edition).
“ The sheriff is pro hac vice in exactly the same position as ourFiscal ” (Clarence J. on page 344 of Ramanathan’8 Reports for1877). But the effect of the provision in section 362 of the Code)is to deny an action against our Fiscal, unless the damage is attribut-able to gross negligence or gross want of ordinary diligence.’ Ih
» 6 E. <€. 8911.
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v. The Fiscal,
WesternProvince
will be thus seen that our law is more exacting in its requirements 1916.hs to actions against the Fiscal than in the English law. I think Schneiderit cannot be said that an ordinary boutique keeper would have A.J.done any more for the safety of the goods in his shop during hissuppra-
temporary absence than the Fiscal did in this instance. I doubt that mania CheUy
»■ r/l Ii IrV
in the circumstances the shopkeeper would have placed two guards.
The. third issue was argued at some length. Its decision turnsupon the question, What is “ the cause of action? ” The periodof prescription is to be reckoned from the date ” the causeof action ” shall have arisen (section 362 of the Civil ProcedureCode). Did the cause of action arise when ‘the theft took place(i.e., on some date between August 25 and September 28, 1914), aswas contended for on behalf of the respondent Fiscal; or when thefact of such theft came to the knowledge of the plaintiffs-appellants(i.e., September 30, 1914), as was argued on their behalf in the lowerCourt, or as was contended on their behalf on appeal, when theremainder of the goods were sold and it was definitely ascertainedthat the plaintiffs’ decree was not wholly satisfied (i.e., October 7,
1914)? This action was instituted on July 2, 1915, lienee, unlessthe cause of action arose on October 7, 1914, the action is barredby lapse of time.^
To determine what the plaintiffs’ cause of action is in this case,it becomes necessary to ascertain the general principle uponwhich actions are granted to private individuals against publicofficers. This principle is the same under the English or the Roman-Dutch law. It is well expressed by Best C.J. in .Henley v. Mayorof Lyme Regis1: “ I take it to be perfectly clear that if a publicofficer abuses his office, either by an act of omission or commission,and the consequence of that is an injury to an individual, an actionmay be maintained against such public officer. ” As regards thepublic officer, the determining test is the notion of duty placed onhim by statute (vide the decision of Robinson v. Gell 2). As Beven putsit:“ An action for negligence is maintainable against the sheriff,
not because the plaintiff has sued out a writ and delivered it to thesheriff, who has not executed it, and thereby has broken an impliedcontract, but because the plaintiff has a cause of action or judgmentagainst the defendant, which gives him an interest in the writ, andcreates a duty by law apart from contract in the sheriff to him. ”3But it is not the breach of duty alone which, gives rise to the causeof action, but “ an injury ” in consequence to the plaintiff. It wasargued that this “ injury ” is the suffering of pecuniary loss. Thecurrent of the decisions is against this view, which finds no supporteither from general principles. On general principles it is to expressbut a truism to say that the foundation of an action for damageis not that damage has been caused, but that there has been a
I 0 Bing. 91, 107; 1 Bing. N. C. 222.= 12 C. B. 191.
3 Beven (Negligence in Law) 273; andJones v. Pope, 1 W. M. S. Saund,34, 37, 38.
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1916. violation of a priyate right resulting in pecuniary or moral damage. tSoHsn&mER Injuria sine damno gives a cause of action, while damnum sineA-J* i,njuria does not.
Suppra- It is true that Beven says that an action is not maintainablemania Chetty against a sheriff for not levying, unless actual “ pecuniary damage ”
V ^Westerna* *s shown. In support he cites Stinson v. Fdrnham.1 This decisionProvince does not support his statement. In that case an execution-creditordelivered a writ of fi fa to the sheriff, who proceeded to execute itby seizing goods upon certain premises, but which were then infact in possession of the holder of, a bill of sale,, to whom they hadbeen assigned. The sheriff subsequently released the seizure, andpleaded to the action against him that the goods did not belong tothe judgment-debtor, and that, therefore, the plaintiff had sustainedno damage. Coekburn C.J. in the course of his judgment says:
” The action is founded on tort, from wrong done by the sheriff inmaking a false return. The rule is not only a wrongful act committed,but damage thereby caused to entitle the injured person to maintainthe action. ” Note, therefore, that he does not refer to the damageas being pecuniary, but that the word “ damage ’’ is used in the Senseof injuria or injury. The reasoning of Coekburn C. J., as I followit in his judgment, is this. The action is for “ false return. ” Thereturn was nulla bona. In a sense this was false, as the sherifE hadin fact seized the goods. Having done that, he should have causedthe decree-holder and the execution-creditor to interplead as totheir rights. The bill of sale was in fact a valid one, and hencethe return was not false in that sense, and therefore there was nodamage, that is, no injury done to the plaintiff, as the goods couldneither have been seized nor sold. I have been unable to discovera single decision by the English Courts to support the propositionthat there must be pecuniary damage sustained in order to beentitled to maintain the action. In some of the English cases .forfalse return to a writ of fi fa against the sheriff (which is a form ofaction analogous to our action against the Fiscal) it is true that theword “ damage, ’’ and not “ injury or infringement of a right, ’’ isused.But the cases themselves show that the word “ damage ■’ is
used as the equivalent of injuria. The view of the English law,which is identical with that of the Boman-Dutch law on this point,was well expressed by Lord Holt in Ashby v. White2:“ Every
injury to a right imports a damage in the nature of it, though therebe no pecuniary loss. ’’ That it is the injuria, and not actualpecuniary loss, which is the foundation of the action, is clear fromthe case of Williams v. Mortyn* There .the debtor, who was in thecustody of the sheriff for mesne process, was taken by the sherifEout bf jail to give evidence in some other place after the writ wasreturnable. • But the debtor was returned to jail the same day,
* L. R. 7 Q. B. 175.* 1 Sm. L. C. (11th edition) 840; 2 Ltl. Ratjm. 938.
a 4 M. ct W. 145.
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It was held that this was an escape» but that the plaintiff’s aotionfailed, not because he had suffered no damage, but that as thedebtor was only a prisoner under arrest .on mesne process no rightof the plaintiff had been infringed by the escape, as the nature of.the sheriff’s duty in .the circumstances was to have the debtorready either to be removed or to have some declaration served onthe part of the plaintiff. But it was held that, if the debtor hadbeen a prisoner under an execution, the action would have lain,because the escape would have infringed the creditor’s right tohave his body continuing in jail until satisfaction of the debt.Clarence J. in the anonymous case reported in Ramanathan’sReports for 1877, p. 344,1 thus summarizes the English law:“ Now, in the English cases against the sheriff, who pro hac vice isin exactly the position of our Fiscal, it is very clearly laid downfrom Williams v. Mortyn (ubi supra) that in an action against asheriff it is not enough to show a wrongful thing done by the sheriff,but, to maintain your action, you must go further back and showsome damage, not necessarily pecuniary damage, but a breach ofsome definite right of the plaintiffs.”
I think I need say no more to show that the words “ damage ” or‘ ‘ damages ’ ’ when used in this connection are used as meaning’ breachof right, and that the action against the Fiscal is maintainablewhen the refusal or neglect to perform his official duty has resultedin the breach of a right of some individual.
To ascertain the plaintiffs’ rights and the Fiscal’s duty for thepurpose of this case, we must look to the writ issued in the actionunder which writ the execution was based. The right of theplaintiff is correlative to the duty of the Fiscal. The action wasone on a mortgage. The writ, whether under an ordinary decreeor hypothecary, is, as far as I am aware, the same in form, whichis form 43 given in the second schedule to the Civil Procedure Code,and which by virtue of the provision in section 225 is made asubstantive part of the Code. This form is intituled as of theaction, and is addressed to the Fiscal. It runs: “ Bevy and makeof the houses, lands, goods, debts, and credits of the above-named
, by seizure, and, if necessary, by sale thereof, the sum of
rupees, which the saidhas recovered against the said
— by a judgment of the Court bearing date the day
of , 19—, and have that money before this Court on
the day of , 19—, to render to the said
and inform this Court for what sum or sums, and to what person orpersons, you have sold the property respectively: and have you herethis mandate. The duty, therefore, of the Fiscal is to seize and sellthe debtor’s goods to the amount mentioned in the plaint. Thisimplies the duty to keep the goods seized in safe custody. Theright of the judgment-creditor is that the Fiscal shall carry out
1 D. C. Colombo, No. 69,988.
1916.
SOEMSDSB
A.J.
Suppra-mania Chettyv. The FiscalWesternProvince
5*
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1916. this duty. As 13 even says:’ The seizure of goods by the sheriff does
Schneider not’ vest any property in the creditor under whose writ the seizureA.J. is made. The property vested thereby in the sheriff is. no -moreSuppra- ^an that which results from his being the officer of the law, andmania Chetty is to enable him to sell the goods and raise the money. The goodsV ^wtrtern*1’ are *n 171 custodia legis for the benefit of those who are entitledProvince to them, the property in the meanwhile remaining in the debtor. ” 1The plaintiffs’ claim in this action must, therefore, be based onthe fact that the Fiscal, in neglect of his duty to keep in safe custodycertain of the goods he had seized, permitted the same to be stolen,whereby the plaintiffs’ right or rights that he should keep thosegoods in safe custody and bring them to sale for the purpose ofsatisfying the decree have been violated. Whether you regard theright as consisting of two parts, or the two parts as consisting of aseparate right, the breach was the theft, because the. duty to safe-guard the goods, as also the duty to bring them to sale, were violatedby the Fiscal, inasmuch as it was not possible to bring them to saleonce they had been stolen. The period of prescription, therefore,began to run from the date of the theft. Mr. Bawa argued for theplaintiffs that the period of prescription began to run from October7, 1914, because it was only then that it was definitely ascertainedthat the plaintiffs had suffered damage, because the rest of the goodsunder seizure, besides those stolen, might have satisfied the plaintiffs’decree. It seems to me that this argument is based on the fallacy -that the cause of action is the accrual of pecuniary damages. Ihave endeavoured to show that i^ is not so. But, apart from that,this argument is open to the criticism that it is based on the wrong1 assumption that the valuation placed by the Fiscal is not the truevaluation of the goods, because, if that- valuation be accepted, itmust have been evident from the- moment of the theft that the
D
plaintiffs’ decree would not be wholly satisfied without the stolengoods. In principle, in actions for damages such as this, themeasure of damages is the value of the goods, and not the amountof the, writ, and this value is that placed on them by the Fiscal.
This is the principle of the decision in Carpen Chetty v. Conolly. 2The argument also ignores the fact that the Fiscal can seize nomore than is sufficient to satisfy the writ, and hence the removal-ofany portion of the goods seized must ordinarily, and will be presumedto, deprive the decree-holder of his right to have the decree fullysatisfied. In my opinion this case does not fall within the categoryof cases of the class of that reported in Ramanathan for 1877, towhich I had already alluded. There the action was based on thefact that the Fiscal had neglected to inform the plaintiff of theexistence of a mortgage over the property which was sold to theplaintiff, whereby the plaintiff was induced to purchase it for itsfull value, and that, after he had been put in possession; the
1 1 Beven (Negligence in Law) 273,2 4 S. C. C. 33.
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mortgagee sued and had the plaintiff ejected. Clarence 3. points 1916.out that the mere concealment by the Fiscal, or the fact of the sohmhidmiplaintiff’s purchase, did not of themselves constitute a cause of A.J-action, because there was no necessary constat that the property in &Uppra-bis hands .would ever be come down upon for the mortgage debt,and that it was the eviction which constituted the cause of action, * Westernas, till then, the plaintiff was in the enjoyment of the full benefit Provinceof his purchase.
I am unable to adopt the decision in Fielding v. The MunicipalCouncil of Colombo,1 because it follows no principle. Moncreiff J.holds that the cause of action arose with the injuring of the horse,and yet. on grounds of equity, apparently holds – that prescriptionshould be reckoned from the death of the horse, which took placetwo months thereafter. He cites the cases of Bonomi v. Backhouse 8as illustrating the principle that in a certain class of cases ** thecause of action dated from the infliction of damage.” But if Imay say so with all respect to so eminent a Judge, it seems to me thatlie has misapplied the principle of the decision in Bonomi v. Back-house.2 In that case the defendant as owner of certain mines in1849 withdrew the pillars of coal which had been left as supportsto the roofs in some of the old workings. In consequence theroofs fell and the adjacent strata one after another subsided inslow succession, and in 1854 the plaintiff’s house was injured bythe subsidence of the neighbouring ground. It was held that theplaintiff’s cause of action arose when his house was injured, and nottill then, because the removal of the pillars was no injury to theplaintiff, as they stood on the defendant’s land. Therefore, theprinciple of the decision isdthat the cause of action arises with theinjury or infraction of a private right. In Fielding v. The MunicipalCouncil of Colombo 1 as I apprehended the law, the. squirting of thewater upon the’ horse was not injuria, but when in consequencethe horse was injured, that constituted the tort. It was competentto recover the damages, not only for the injury as ascertained atthe time of the injury, but as likely to accrue thereafter from theinjury.
As I understand the law and read the English decisions in regardto prescriptions, the rule is well established that. prescriptiongenerally runs in cases of tort from the date of the tort, and notfrom the occurrence of the damage. But there is an exception tothis where the original act itself, was no wrong, and only becomesso by reason of subsequent damage. This is the case of Bonomi v.Backhouse..2
The leading case in regard to the application of the statute oflimitations is that of Howell v. Young,3 referred to in many of ourlocal ‘cases. This illustrates the principle as I have formulated it.
1 2 Browne 196.2 9 H. of L. C. 503.
s 5 B. <t C. 259.
1916.
SOHNKID EB
A.J.
Suppra-manta Ghettyv. The Fiscal,WesternProvince
( 140 )
The present case, in my opinion, falls entirely within the principleof the decision in Mustappa Ghetty v. Conolly 1 and Karolis v.Woutersz.a In the latter case the defendant in 1884 seized andsold the right, title, and interest of a mortgage in a certain mortgagebond. The plaintiff became the purchaser and obtained anassignment of the bond from the defendant. The plaintiff suedupon the assignment in 1886, when he lost his action, as it wasdiscovered that the seizure was bad for the non-observance ofcertain formalities by the Fiscal. This omission of the Fiscal cameto the plaintiff’s knowledge only in 1886. It was held that prescrip-tion began to run as from the date the Fiscal vhad omitted to makea valid seizure.
For these reasons I agree that the appeal should be dismissed,with costs.
Appeal dismissed.
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