Present: Wood Renton A.C.J.

JAYAWEERA v. SIMON.

786-P. C. Balapitiya, 37,554.

Labour Ordinance, No. 11 of 1865-Toddy drawer-Is he a servant !

There is nothing in the nature of the occupation of a toddy drawer to prevent him from being a servant within the meaning of the Ordinance No. 11 of 1865. Whether he is such a servant or not depends on the facts of each particular case.

A person who was engaged as a toddy drawer on a written contract, by which it was agreed that he should receive a certain share of the profits by way of wages and be paid in addition Rs. 6 per mensem as subsistence money, was held to be a " servant."

THE facts appear from the judgment.

A. St. V. Jayewardene, for the accused, appellant.-The accused was engaged on a written contract as a toddy drawer. He was not paid any fixed salary. He was to receive a share of the profits, and to get Rs. 6 per mensem as subsistence allowance. That was practically money advanced out of the profits to which he was entitled. A person under a, contract of this character cannot be

said to be a servant. Counsel cited Wickremesinghe v. Fernando;1 Rodrigo v. Mel; 2 P. C, Matara, 72,220; 3 P.