TISSERA v. TISSERA.

Bond conditioned for the payment of money--Prescription--Ordinance, No. 22 of 1871, s. 6-General conventional mortgage-Deed-Bond, 'meaning of.

A document executed in triplicate before a notary and two witnesses, whereby the person executing it acknowledges to have borrowed and received from the person in whose favour it is executed a certain sum of money, and promises to pay the latter the same with interest on demand, and binds all his property generally as security for the debt, is a bond conditioned for the payment of money such as is referred to in. section 6 of Ordinance No. 22 of 1871, and the period within which an action can be maintained on it is ten years.

Per Bonser, C.J.-(1) The document may be considered as a general conventional mortgage, in which case it falls under section 6 of the Ordinance, not with standing the provisions of Ordinance No. 8 of 1871.

(2) The attestation of an instrument by a notary in this Island may be regarded as a solemn act equivalent to the formality of the affixing of their seals by the parties to an English deed. So that, in this Island, a deed may be defined as a writing attested by a notary; and a bond as the acknowledgment of a promise to pay a debt in an instrument attested by a notary.

IN this case the question was whether the instrument on which the plaintiff sued was to be considered a promissory note or a document falling under section 6 of Ordinance No. 22 of 1871. The instrument, according to the translation filed with the plaint, ran thus: -

" Debt bond. Amount, Rs. 120. Know all men by these presents " I, Warnakulasuriya Simon Tissera, of Waikkal in Kammel pattu.

" Pitigal korale, Chilaw District, have borrowed and received from " Warnakulasuriya Thomis Tissera of Nangundankare, of the above-" said pattu, the sum of rupees one hundred and twenty this day " in full and satisfactorily, therefore for this sum of money shall " compute interest at the rate of twenty per cent, per annum from " this date hereof till payment in full, together with the principal " and the accumulated interest, shall pay on demand to the creditor " Thomis Tissera, or to his heirs, executors, administrators, and " assigns by me, the debtor Simon Tissera, my heirs, executors, " administrators, and assigns, and get discharged from this debt " (renouncing the benefit of contesting not received this amount), " binding firmly,by these presents unto this I, my heirs, executors, " and all my properties inclusive. In proof of this I have set my " signature unto three copies of the same tenor on the 8th day of " July, 1884,, at Tamberawila."

In appeal Dornhorst, for plaintiff, appellant; Morgan, for defendant, respondent.

24th November, 1896. Bonser, C.J.-

I have no doubt in my mind that, whatever this instrument may be, it is not a promissory note. It is an instrument whereby the defendant promises to pay a certain sum of money with interest, and binds all his property to secure the debt.

It is executed before, and attested by, a notary in the form required by law for the execution of deeds which are intended to bind land. The question is whether this instrument falls under section 6 of Ordinance No. 22 of 1871. Several cases have been referred to in which observations have been made on the meaning of the word " bond " in that section. In my opinion this document may be considered as a general conventional mortgage, that is to say, a mortgage of the whole of the property of the promissor, in which case there is no question that it falls under section 6, notwithstanding the provisions of Ordinance No. 8 of 1871, which deprives such mortages of all effect as a charge on the property. But whether this document is rightly regarded as a conventional general mortgage or not, I am of opinion that it is a " bond conditioned for the payment of money," In English Law a bond means a deed, poll, wher