PANIS APPUHAMY v. SELENCHI APPU et al.

PANIS APPUHAMY v. SELENCHI APPU et al.

D. C., Negombo, 4,492.

Lease-Action for rent-Liability of joint lessees-Construction of deed of lease-Intention of parties-Obligation in solidum.

    When two or more persons have joined in stipulating for the payment of a certain sum of money, each is ordinarily liable to pay a quota of that money.

    It is only when the intention of the parties is clearly expressed that each person shall severally pay the whole, that each person becomes bound in solidum.

    Where two lessees covenant to pay a certain sum of money as rent, and there are no words in the lease clearly showing that each lessee bound himself in solidum,-

    Held, that each lessee is not severally liable for the payment of the whole rent.

THE facts of the case are set out in the judgment of Layard, C.J. The appeal was heard on the 2nd April, 1903.

    W. Aserappa, for defendant, appellant.

     No appearance for respondent.

Cur. adv. vult.

5th May, 1903. LAYARD, C.J.-

    This action has been brought by the executor of the deceased lessor of certain immovable property against two joint lessees to recover certain rent due under the lease, and the executor sought to have the two lessees declared jointly and severally liable to pay the whole rent; claimed. The District Judge, after pointing out that there was no provision in the lease stating that the two lessees were jointly and severally liable, held that as both defendants joined in the lease they were jointly and severally liable, and a decree was entered against them in the Court below in terms of that judgment. They have appealed against that judgment and decree, and contend that they are not each of them liable in solidum.

    The Roman-Dutch Law authorities appear to lay down that an obligation contracted generally by several, persons is not an obligation binding on each of them in solidum, unless there is something in the nature of the subject to induce a different construction and render it several in respect of the separate interests of the contracting parties.

    In the lease now under consideration there are no words showing that the obligation had been contracted by the lessees in solido.

    In Terunnanse v. Gunasekara (1 N. L. R. 206) this Court held that one of several lessors may sue for his share of the rent, and the passage in Voet referred to by Chief Justice Bonser in his judgment is applicable to a case of plurality of lessees as well. Voet (lib. 19, tit, 2, section 21) lays down as follows:-Locati actio est personalis bonae fidei quae locatori datur, atque etiam conductori, qui id, quor conduxerat, alteri rursus sublocavit, si plures locaverint, singulis pro sud parte; contra conductorem, et, si plures sint, contra singulos pro rata, nisi aliud nominatim pacto actum sit, aut uppareat locatorem singulorum personas in solidum respexisse et ita duos pluresve in solidum fecisse reos locationis. Mr. Berwick translates the above passage thus:- " The actio locati-which is a personal action, bond fide, given to the locator and also to a conductor, who has sublet to another what he has taken on rent, and if there has been a plurality of locators, to each for his share-lies against the conductor, and if there is a plurality of these against each of them pro rata, unless it has been expressly agreed otherwise or it appears that the locator had looked to each in solidum, and so two or more persons had become liable on the hiring for the whole ". (Berwick's Translation, New Edition, p. 219.) Further, with regard to co-obligors generally, I find it laid down by Vanderlinden (lib. 1, chap. 14, sec. 9, para. 7, Henry's Translation, p. 203):-" However, an obligation may be entered into by which each party may be bounded or entitled in solidum, when this is the object of the several parties, provided however that payment made to one of the parties frees all the others. Th

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