HARMANIS v. BOCHIA el al,

HARMANIS v. BOCHIA el al,

C, R., Kandy, 3,613.

 

Burden of proof-Action for damages against headman--Plea of theft of animal damage feasant entrusted to headman--Proof of theft and exercise of ordinary care,

In an action against a police headman for damages for loss of a cow which, being caught trespassing, had been entrusted to him as a headman for detention until the damages were paid, he pleaded theft of the cow from his possession-Held, that the burden of proving that the animal had been stolen and that he had taken ordinary care of it lay on the defendant.

THE  first defendant seized the plaintiff's cow damage feasant and entrusted it to the second defendant, a police headman, for detention under Ordinance No. 9 of 1876, section 7, until the damages assessed as due to the first defendant were paid. The cow was lost while in the possession of the second defendant, and thereupon the plaintiff sued both the defendants for the value of his animal. The second defendant pleaded that the cow had been stolen from his possession, notwithstanding that he had taken ordinary care of the animal, but called no evidence to substantiate this plea. The Commissioner dismissed the plaintiff's claim with costs.

On appeal by plaintiff, Wendt for him.

21st February, 1895. Lawrie, A.C.J.-

In my opinion the plaintiff is entitled to judgment. The second defendant, a local headman, admits that the plaintiff's cow was entrusted to him to detain it until the damage done by its trespass was paid. To this action in detinue he pleads that the morning after it was given to him he discovered that the animal had been stolen from his garden where it had been secured. The burden of proving that the animal had been stolen and that he had taken ordinary care of it lay on the defendant. This he did not attempt to do.

[Morgan Dig. 241; 2 horenz, 114; 3 Lorenz, 145, 250; Ramanathan, 1872, 9 and 187; 2 S.C.R, 140,]

Set aside and judgment entered for plaintiff with costs.

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