086-NLR-NLR-V-11-JAYAWARDANA-v.-ISU-LEBBE.pdf
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Present: Mr. Justice Grenier.
1m.
October n.
JAYAWARDANA v. ISU LEBBE.
C. R., Ratnapura, 9,715.
Prescription—Claim for hire of elephant—Work and labourdone—
Ordinance No. 22 of 1871, ss. 9 and 11.
A olaim for hire of an elephant falls under section 11 and notsection 9 of Ordinance No. 22 of 1871, and is prescribed in threeyears.
PPEAL from a judgment of the Commissioner (W. H. B.
Carbery, Esq.) dismissing the plaintiff’s action on the groundthat it was barred by prescription. The facts sufficiently appear inthe judgment.
H. Jayewardene, for the plaintiff, appellant.
V. M. Fernando, tor the defendant, respondent.
October 16, 1908. Grenier J.—
This was an action for the recovery of a sum of Bs. 230, whiohthe plaintiff alleged was due to him as hire for work done for thedefendant by the plaintiff’s elephant. The learned Commissionerdismissed the plaintiff’s action, holding that the claim was prescribedunder section 9 of Ordinance No. 22 of 1871. In my opinion theCommissioner was wrong in applying section 9. The plaintiff wasnot suing in respect of any sum due for manual work or labourperformed by the defendant, in which case section 9 would un-doubtedly apply, but in respect of the hire due for work done bythe plaintiff’s elephant. The appellant’s consel referred me to acase in Ramanathan’s Reports, 1872-75 and 76, p. 103, in whichMr. Justice Stewart held that a claim for carriage hire falls withinthe 11th and not the 9th section of Ordinance No. 22 of 1871.The judgment was contained in a very few words, and no reasonswere given for the conclusion arrived at, but I accept it, in theabsence of any authorities to the contrary, as definitively holdingthat a claim for carriage hire, which is closely analogous to thepresent claim, must be governed by section 11 and not by section 9.Certainly it cannot be said that the work done by an elephant ora horse is the same as work done by the owner of it. Section 9clearly contemplates manual work and labour.
I would set aside the judgment of the Court below and send thecase back for trial on the merits. The appellant, will have his costsof this appeal.
Cur. adv. unit.
Appeal allowed.
11i. X. A MOOS (8/60)