MUTTIAH CHETTY v. DE SILVA el al.

MUTTIAH CHETTY v. DE SILVA el al.

D. C., Galle, 3,443.

 

Joint and several promissory note-Liability of executor of deceased maker to be sued jointly with the survivor-Civil Procedure Code, ss. 14 and 15.

Under section 16 of the Civil Procedure Code the executor of a deceased person who was a party to a joint and several promissory note can be joined with the surviving party in an action by the holder of the note.

THE facts of the case appear in the judgment of Withers, J. Dornhorst and Wendt, for appellant.

Cur. adv. vult.

28th July, 1896. Withers, J.-

In this case the plaintiff, as payee, seeks to recover the principal and interest of a note alleged to have been made at Galle on the 9th June, 1893, by one Sadria de Silva and one Janis. Janis is dead, and his executrix is made a party defendant in this case.

The order appealed from is an order directing that the name of the second defendant be struck out of the plaint as improperly joined. This being a case of a promissory note the English Law applies, subject to any modification by local Ordinances. This is a joint and several promissory note.

Formerly, all could be used jointly on such a note, or each could be sued separately.

When a note is joint only, the whole liability falls on the survivor, and if he dies the executor of the survivor can alone be sued (see 3 C. L. R. 90).

In the 9th edition of Williams on Executors the law is thus laid down: -" But if the contract be several or joint and several, " the executor of the deceased contractor may be sued at law in " a separate action, but he cannot be sued jointly with the survivor " because one is to be charged de bonis testatoris, the other de " bonis propris."

For this statement the learned editor refers to Hall v. Hnffam (2 Lev. 228.) He makes no reference to the rules of the Supreme Court, 1883. Order 16, rule 6, enacts as follows: -

"The plaintiff may at his option join as parties to the same " action all or any of the persons severally or jointly and severally "liable on any one contract, including parties to bills of exchange " and promissory notes."

Section 15 of our Civil Procedure Code adopts that rule word for word.

There was no appearance for the respondent in this case. Counsel for appellant has not found any instance of an English case in which the surviving maker of a joint and several note and the legal representative of a deceased maker were joined in the same action.

I can find no precedent of such a case in modern works on pleading in Courts in England. I can well understand no case of the kind being found in England, because in the Queen's Bench Division it would be scarcely possible to work out a judgment de bonis testatoris, which must be the judgment against an executor as such. Our courts know no distinction of equity and common law. They are simply courts of law, one and indivisible so to speak.

In principle I see no objection to section 15 of the Civil Procedure Code being interpreted to include in persons liable as parties to promissory notes deceased persons who are bound in their estate duly represented to answer for debts contracted in their lifetime, and which at the time of their death have not become barred by any statute of limitations.

In the absence of express authority to the contrary, I propose to hold that in our courts, by virtue of section 15 of our Civil Procedure Code, the executor of a deceased person who was a party to a joint and several note can be joined with the surviving party in an action by the holder of the note.

For these reasons I agree with my brother in setting aside the order of the Court below.

Lawrie, J.-

When one of two makers of a joint and several promissory note dies, his executor is liable to pay the debt.

Whether the executor can be sued along with the surviving maker of the note, or must be sued in a separate action, is a matter not of liability but of proced

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