Present : Mr. Justice Wood Renton and
Mr. Justice Grenier.

COREA v. PIERIS et al.

337 A and 337B, D. C, Chilaw, 3,308.

Liability of principal for defamation by agent-Action for defamation, by agent-Principal added as party defendant after two years frown date of defamation-Prescription-Civil Procedure Code, s. 18.

A, who was in charge of B's estate, defamed G in 1904 by doing an act within the scope of his authority and in the course of his employment. In 1905 C brought an action for defamation against A for damages, and in 1907 moved and got A's principal, B, made a party defendant to the action.

Held, (1) that B was liable in damages for the act of hie agent A; (2) but that C's cause of action against B was prescribed.

Obiter, (3) that the Court had no power under section 18 of the Civil Procedure Code to make B a party to the action.

HE facts are briefly stated in if the head note.

Sampayo, K.C. (with him Wadsworth and Vernon Grenier), for the added defendant (appellant in 337A and respondent in 337B).- The added defendant must not be held liable for the acts of his servant which were not done in the course of his employment. The defendant acted outside the scope of his employment in sending the telegram. Counsel referred to Bousted on Agency, pp. 344 and 345; and Citizens' Life Assurance Co. v. Brown.1

The action against the added defendant is clearly barred by the Prescription Ordinance. Counsel commented on Adriana v. Lohu Acharige Prolishamy,2 Came v. Malins,3 Chinnatamby v. Chanmugam.4-

[Their Lordships called upon the respondent to reply on the question of prescription only.]

H. J. C. Pereira (with him H. A. Jayewardene and Chitty), for the plaintiff (respondent in 337A and appellant in 337B).-The cause of action against the first defendant and the second defendant is the same; the second defendant's liability arises from the very act which gives a cause of action against first defendant. Under section 18 of the Civil Procedure Code the Court had the power to join the second defendant as a party to this case. If the Legislature intended that an added party should have .the benefit of the Prescription Ordinance, it would have made special provision

Foot Notes:

1 (1904) A. C. 428.
2 (1884) 6. S. C. G. 93.
3 (1851) 20 L. J. Exc. 434.
4 (1909) 1 Cur. L. R. 134.

to conserve his right. The Legislature has expressly conserved such rights in certain other cases (see Civil Procedure Code, sections 19 and 406).

Where .the cause of action is identical, and where .the agent is sued within the prescribed time, the principal may be joined as as party defendant, even after .the prescribed time.

As between principal and agent, there is a privity, and action against one is action against the other. Counsel referred to Oriental Bank Corporation v. Charriol,1 Swaminathan Chetty v. Silva,2 and Hukum Chand, p. 218.

[Wood Renton J. referred counsel to Doyle v. Kaufman,3 Steward v. The North Metropolitan Tramway Co.,4 Weldon v. Neal.5]

Weldon v. Neal is an authority in favour of respondent; there the Court refused to allow a party to be added, on the ground that if the party were added he would lose the benefit of the Statute of Limitations.

Sampayo, K.C., in reply.-Imam-ud-din v. Liladhar 6 explains Oriental Bank Corporation V. Charriol; this latter case is no authority for the proposition that a party added under section 18 cannot set up a plea of prescription under the circumstances of this case.

Cur. adv. vult.

April 4, 1910. WOOD RENTON J.-

The plaintiff, who is the respondent in the first of these appeals and the appellant in the second, used one Joseph Pieris, since deceased, and now represented by the substituted defendant, who is the Secretary of the District Court of Chilaw, in that Court, to recover damages for libel. The alleged libel consisted of a telegram sent by Joseph Pieris to the Government Agent of the North-Western Province