061-NLR-NLR-V-22-KASIPATHY-v.-KANAPATHIPILLAI.pdf
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Present: Schneider A.J.
KASIPATHY «, KANAPATHTPTLLAT.13—O. B. Batlicaloa, 1,185.
Prescription—Action for return of money given for safe keeping—Causeof action arises on refusal to return.
Where money is entrusted by one person to another for safekeeping, prescription in respect of a claim for the return of themoney begins to run from the date of his refusal to return themoney after demand, and not from the date of deposit.
T
HE facts appear from the judgment of the Commissioner ofBequests (C. Coomaraswamy, Esq.):—
The plaintiff brings this action for the recovery of a sum of Rs. 263entrusted by him to defendant in 1913. According to plaintiff thissum consists of two sums of Rs. 165 and Rs. 98. For the sum of Rs; 165the defendant promised to transfer a land to plaintiff, but has notdone so. Hence the- present actipn. It is argued that the action isprescribed. Ido not think so. The money was not lent to defendant.Plaintiff was living in defendant’s house, and the money was, apparently,entrusted to defendant for safe keeping. Therefore, the cause ofaction arose when defendant refused to return the money.
As regards the question whether plaintiff actually entrusted themoney to defendant, although there is no direct evidence on the point,yet the admission by defendant in the presence of two respectablewitnesses, whose evidence I see no reason to disbelieve',- shows thatplaintiff’s story is true. As regards the document D 1, it also supportsplaintiff’s story. If plaintiff- merely wanted money he would haveasked for it. On the other hand, in D 1 plaintiff ^sks for the transferof this land. The tone of the letter is apparently due to the fact thatdefendant is plaintiff’s uncle,' and the plaintiff tried not to give anyoffence to defendant.
I therefore hold that plaintiff is entitled to recover the sum of Rs. 165.As regards the sum of Rs. 98, the evidence of the rural constableis that plaintiff told him that the money was given partly to defendantand partly to his wife. Defendant cannot be sued for the money dueby his wife. It is not known how much was given to defendant andhow much to his wife. The plaintiff cannot succeed on that claim.
I enter judgment for plaintiff for Rs, 165, with costs.
Tisseverasinghe, for the defendant, appellant^—TIio plaintiffentrusted the money to the defendant in November, 1913, and theactiop, was brought on September 30,1919. The action is, therefore,prescribed. Prescription ran from the date of the deposit. Thestatement that money was repayable on demand is clearly anattempt to get over prescription, and in the absence of strong proofshould not have been accented by the Commissioner.
18'
1920.
1920.
pathipfflai
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Bartholomew?, for the plaintiff, respondent.—There is no appealon the facts. The finding is that money was entrusted to defend-ant for safe keeping. The cause of action arose only on demand.Counsel referred to In re Tidd, Tidd v. OvereU.1
July 6,1920. Schneider A.J.—
The point involved in this case is a very simple one. The onlyquestion is, when prescription should begin to run in the circum-stances of this case upon the findings of fact arrived at by the learnedCommissioner. His finding is that the money was originallyentrusted by the plaintiff to the defendant for safe keeping in 1913,and that demand for its repayment or restoration was made inJanuary, 1919. Counsel for the defendant-appellant contendedthat prescription should be reckoned from the date of the deposit.I do not think that this contention should be supported. Theperiod of prescription is to be reckoned, according to the Ordinance,from the date the cause of action arises on a deposit. The cause ofaction would be the refusal to return that deposit. That refusal couldonly arise when a demand has been made. The principle, involvedin this case is laid down in the case of In re Tidd, Tidd v. OvereUThat decision is based upon the authority of a passage from Pothier,which runs thus : “ Where a man deposit money in the hands ofanother, to be kept for his use, possession of the custodee ought tobe deemed the possession of the owner, until an application andrefusal, or other denial of the right; for, until then, there is nothingadverse, and I conceive that upon principle no action should beallowed in these cases Without a previous demand; consequently,that no limitation should be computed further back than suchdemand.-1 1 am indebted to counsel for the reference to this case.
I dismiss the appeal, with costs.
Appeal dismissed.
{1893) L. It. Z Gti. 1Z4.