GURUSIN APPU v. CARLINA HAMINE et al.

GURUSIN APPU v. CARLINA HAMINE et al.

D. C., Matara, 4, 402.

 

Principal and surety-Execution against surety-Bight of discussion of principal's property,

Where judgment has been entered against a principal and his surety, writ of execution may issue against the property of the surety before writ of execution is issued against the property of the principal; but the surety may protect himself by pointing out the property of the principal for seizure and sale first.

THE facts are set forth in the judgment.

Wendt, for appellant.

Cur. adv. vult.

12th March, 1897; Lawrie, J. -

The law of Scotland on the law of the liability of a surety or cautioner, before the law was altered by the Mercantile Law Amendment Act of 1856, was, so far I believe, the same as the civil law, on which the Dutch Law of Ceylon is founded (Bell's Commentaries, 1, 8, 4). " Discussion is a corollary to the accessory nature of the " engagement. It is a right by which the cautioner is entitled to " insist that the creditor shall first call upon and (in law language) " discuss the principal debtor if the cautioner has not expressly or " virtually dispensed with this right, and that the creditor shall give " the cautioner all the benefit and relief derived from the principal " debtor, Discussion imports not merely a demand of payment " but enforcement of it (by execution). But there is a tendency to " relax this rule, and it is a sufficient answer to a demand for discussion that the principal debtor is out of the kingdom, and has " no estate or effects in it, or that he is bankrupt and his estate " sequestered, " &c.

In a short chapter on Principal and Surety Sir Charles Marshall lays down the same law: " For as the very essence of a surety's " engagement is that he will be answerable in the event of the " principal failing to perform his engagement he has a right to expect " due diligence on the part of the creditor in compelling fulfilment " by the principal. "

As early as 1837 it seems to have been the practice to enter judgment against the principal and surety in the same decree, and to issue writs against both at the same time. The surety could move to have the writ against him recalled if the creditor had discharged the principal from jail without the surety's consent. (Morg. Dig. p. 193. )

In a Batticaloa case reported in 3 Lor. p. 251, where judgment was entered against both principal and surety and writ issued

against both, the surety insisted on property of the principal debtor being first discussed. The next case I find reported is one from Kandy, 40, 670, in 1869, reported by Vanderstraaten, p. 8.

These writs went against both principal and surety, but the surety was allowed to protect his own property by pointing out the principal's property.

The procedure in that case seems a little less favourable to the surety than the law formerly laid down. In my opinion that procedure should be followed, and I would affirm the order for re-issue of the writ; if the surety's property be seized he can protect himself by pointing out the property of the principal to be seized and sold before his (surety's) property be sold.

Withers J. -

This is an action against a principal and surety, and a sum has been adjudged to be due of the principal to the creditor. Judgment however went against the two defendants, and a decree was passed in conformity with that judgment. The surety did not promptly ask the Court to re-form the judgment (I will not decide whether the Court could or could not have done so), nor did he appeal. The decree was passed on 29th October, 1895. On the 15th October, 1896, the surety did ask the Court to re-form the judgment and decree, and to recall the writ issued against his property. No order was made on this application till the 19th January, 1897. The District Judge refused to amend the decree. I think under the circumstances he was quite right to ref

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