MANTHIRA NADAN v. KULANTHIVEL.

MANTHIRA NADAN v. KULANTHIVEL.

D. C., Colombo, 21,685.

Account stated-Cross accounts-Striking balance-Acknowledgment in writing-Prescription Ordinance (No. 22 of 1871), sections 8 13 15. .

Where the plaintiff and the defendant had cross accounts and on a particular day the state of accounts between them was examined by them both in each other's presence, and a balance struck which the defendant admitted to be correct-

Held, that there was a " valid account stated " between the parties within the meaning of the Prescription Ordinance, notwithstanding the absence of any written acknowledgment on the part of the defendant.

Ashby v. James (11 M. and W. 542) followed.

THE facts and arguments appear in the judgment.

Bawa and E. W. Perera, for appellant.

Van Langenberg, A. S.-G., and F. M. de Saram, for respondent.

15th November, 1905. WOOD RENTON, J.-

In the present case the plaintiff-respondent, as administrator of one Muttu Nadar, sued the defendant-appellant for a sum of Rs. 366.65, being the balance of an alleged account stated between them for goods sold and delivered between the 30th June, 1895, and the 30th October, 1902. Two issues were framed raising respectively the questions of the sale and delivery of the goods and the stating of the accounts as the plaintiff alleged. We were informed by counsel for the defendant. that the point as to whether the plaintiff's claim was barred by prescription (see " The Prescription Ordinance, 1871," sections 15, 8, 13) was argued in the court below. No reference, however, to the question of prescription appears in the record, and the learned District Judge decided the case in the plaintiff's favour simply on the ground that the evidence clearly established the fact of an account having been stated between the parties. In regard to that issue the material facts were these. The plaintiff alleged that there had been a course of transactions between his intestate and the defendant; that on the 30th October, 1902, the state of accounts between them was examined by them both in each other's presence; that the balance of Rs. 366.65 sued for in the action was struck; that the defendant acknowledged it to be correct; and that there were transactions of later date and similar character between them. These allegations were denied by the defendant, but the learned District Judge believed the plaintiff's story, and we accept his finding on that point as correct. We have satisfied ourselves by referring to the

books that the transactions between the parties were in the nature of mutual or cross accounts. Mr. Bawa, for the defendant, argued that even accepting the plaintiff's version of the facts as the true one, his claim was barred by prescription, inasmuch as the account stated had been settled orally, and it has been held by the Supreme Court of this Colony that such a parol accounting is insufficient to take a case out of section 13 of " The Prescription Ordinance, 1871," which recognizes only written acknowledgments of indebtedness as arresting the operation of that enactment (Kappoor Saibo v. Mudalihami Baas (1903), 6 N. L. R. 216). Mr. Bawa further relied on the English case of Cottam v. Partridge (1842) 4 M. and G. 271, in which it was held that an open account between two tradesmen for goods sold by each to the other, without any agreement that the goods delivered on the one side should be considered as payment for those delivered on the other, did not constitute such an accounting as would bring the case within the exception of the English Statute of Limitations (21 Jac. I. C. 16, S. 3) in regard to merchants' accounts. In the same case it was held that since Lord Tenterden's Act (9 Geo. IV. c. 64, s. 1) the existence of items within six years in an open account will not operate to take the previous account out of the Statute of Limitations. The same principle was laid down by the Supreme Court in

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