LIPTON v. BUCHANAN.

LIPTON v. BUCHANAN.

D. C, Colombo, 14,621.

Agreement not to sue-Partnership debt-Payment of moiety of debt by one partner, after dissolution of partnership-Undertaking by creditor not to sue such debtor for the other moiety until all means of recovery against the other debtor had been exhausted-Right of creditor to maintain suit against both debtors for the balance moiety-English Law-Roman-Dutch-Law-Action upon a nude pact when maintainable-Distinction between causa and consideration.

B and F carrying on business in partnership incurred a debt to L in 1899. In 1896 the partnership was dissolved by decree of Court, which appointed a receiver.

F paid a moiety of the debt to the receiver, who paid it to L, and L thereon undertook that he would not take any steps against F for the recovery of the balance due by the firm until he (L) had exhausted every possible means of recovery against B.

In 1901, L raised the present action against B and F to recover the moiety still remaining unpaid.

Held, that the question in issue, not being one " with respect to the law of partnership " in the words of section 2 of the Ordinance No. 22 -of 1866, was not to be decided in terms of the English Law, and that as the question was as regards the validity. of an agreement, between two persons who were not partners, not to recover a debt due, the Roman-Dutch Law should govern the case.

Held further, that there was a justa causa for the agreement. For the creditor-plaintiff recognized that, although the entire debt was exigible from either partner, yet between themselves each was liable for one-half only; and that although a receiver had been in possession of the firm's assets for three years, yet he had not been able to pay the plaintiff anything at all. When defendant F thereupon came forward and paid half the debt, presumably saving the plaintiff further delay and trouble, the plaintiff in return promised not to proceed against F for the balance until B had been completely excused.

Though according to English Law there may be no consideration for this promise, according to the Roman Dutch Law it was supported by a sufficient causa.

Causa denotes the ground, reason, or object of a promise giving such promise a binding effect in law.

It has a much wider meaning than the English term " consideration,'" and comprises the motive or reason for a promise, and also purely moral consideration.

Even if the agreement was a nudum pactum, it would yet support an action under the Roman-Dutch Law, since the maxim of the Roman Law Ex nudo pacto non oritur actio did not hold good in the Roman-Dutch Law.

Node pacts made in earnest and with a deliberate mind give rise to actions, equally with contracts.

Held also that, as the plaintiff did not act promptly in taking measures to recover the other moiety from B before he became insolvent, the plaintiff's action against F could not be maintained.

THE two defendants were at one time trading in partnership under the name and style of Buchanan, Frazer & Company and they then became indebted to the plaintiff in Rs. 15,259.96. The partnership was dissolved by mutual consent and a receiver appointed to recover the assets. Thereafter the second defendant, through this receiver, paid the plaintiff's attorney one-half of the above debt, to wit, Rs. 7,629.98, and received from him, in writing the following undertaking: -'' In consideration of my having received from Mr. S. D. Young, the receiver of the late firm of Buchanan, Frazer & Company, the sum of Rs. 7,629.98 contributed by you as your half share of the debt owed by that firm to me, I hereby undertake that I will not take any steps against you personally for the recovery of the balance of the amount due by the aforesaid firm until I have exhausted every possible means of recovery against your late partner, Mr. D. R. Buchanan." At the date of this undertaking the first defendant was possess

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