Gill J:

[1] This is an appeal from a decision of the magistrate's court, Kuala Lumpur, dismissing the action in that court by the plaintiff-appellant against the defendant-respondent for the recovery of a sum of $1,000 being money lent.

[2] The facts of the case are relatively simple. The plaintiff's evidence in support of his claim in the magistrate's court was that on 3 December 1958 the defendant, whom he had known for over ten years, approached him for a loan of $1,000. He agreed and lent the money as requested, whereupon the defendant gave him a document in the following terms:

"This is to acknowledge receipt of the sum of $1,000 (dollars one thousand only) by me the undersigned v. Retnam, identity card No SL. 120601 of No 21, Main Road, Setapak, Kuala Lumpur from Mr Subramaniam son of Somaloo, identity card No SL. 364907, residing at 3 Mile, Setapak, Kuala Lumpur, free of interest.

I hereby undertake and bind myself to repay the said sum of $1,000 with no interest to Mr Subramaniam son of Somaloo after the month of November, 1959 and this shall not be negotiable or transferable to any one by the said Subramaniam.

Dated this 3rd day of December, 1958."

[3] The document was duly signed by both parties and stamped. The money was not repaid in spite of repeated demands.

[4] The defendant's case was that, although he signed the document (P1), he never borrowed any money from the plaintiff. His written statement of defence was to the effect that the money was borrowed by his brother Veeramani from the plaintiff's mother in various sums in the form of cash and gold from time to time in the year 1953, and that he executed the note as guarantor in favour of the plaintiff at the request of the plaintiff's mother when she failed to find his brother for repayment of the loan.

[5] In his evidence at the trial the defendant's story was that his brother Veeramani had taken money on several occasions from plaintiff which in all came to $1,000 and that he signed P1 on being asked to give the plaintiff a letter to the effect that he would pay the money on behalf of his brother. The plaintiff brought the document to him and he signed it not as guarantor but on the understanding that the debt was due from his brother. The document was not read out to him, but the plaintiff told him that it was prepared in accordance with his instructions to the plaintiff. He did not know what the document contained, but it was prepared according to his instructions with the signature of his brother on it, although he said with the same breath that his brother had no connection with it. In re-examination he said that he believed that his brother would pay and he signed the document in that belief.

[6] The learned magistrate has stated in his grounds of judgment that he did not agree with the defence counsel's contention that the agreement (P1) was void on the ground that the parties to it were under a mistake of fact essential to the agreement. He found as a fact that the plaintiff knew what he was doing in that he had the document prepared and explained to himself and to the defendant and then made the defendant sign it, although there was nothing on the document itself to suggest that it was interpreted to the parties or that the defendant knew English. He then says in his grounds that, as the defendant had signed the document on the understanding that the debt was due from his brother and had given no consent that he himself would be liable to the plaintiff, there was in fact no consent given, so that there was no contract. Finally, he says that as neither party had called Veeramani as a witness, although he was present when the transaction took place on 3 December 1958, it would only be fair to assume that Illustration (g) of s 114 of the Evidence Ordinance was not invoked.

[7] I must say that I find it difficult to follow the learned magistrate's reasoning when he says that, as no consent was given, there was no contract, after rejecting the argument that