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MANUEL ISTAKY v. SINNATAMBY et al.
NLR13V284
Present : Mr. Justice
Middleton.
MANUEL ISTAKY v. SINNATAMBY et al.
C. R, Batticaloa, 13,863.
Joint promissory note-Liability of maker
for the entire debt.
Each of the makers of a joint promissory note is liable for the whole debt.
The meaning of the word " joint " under the English Law is entirely different
from that which the word implies under the Roman-Dutch Law.
The liability of a maker of a joint note is governed by the English Law, and not
the Roman-Dutch Law.
" Where several persons make a joint contract, each is liable for the whole,
although the contract be joint, and all must be sued together during their joint
lives, for a judgment obtained against one, although unsatisfied, is a bar to an
action against the others, either in respect of a joint debt or in respect of a
joint tort."
IN this
case plaintiff sued the two defendants on a joint promissory note granted by
them and obtained a joint decree against them, whereby it was " ordered and
decreed that the said defendants do pay to the said plaintiff the sum of Rs.
276.82, with legal interest and costs. " The first defendant on December 30,
1909, brought into Court his proportionate share of the judgment and all the
costs, and moved .that the writ of execution against the property of the first
defendant be recalled. This motion was allowed. On February 2, 1910, plaintiff's
proctor moved for an order of payment in favour of his client to draw the sum
deposited in the case in part satisfaction of his claim, and on February 7 order
of payment was issued in favour of the plaintiff.
On March 24, 1910, plaintiff's proctor moved for a notice on the first defendant
to show cause why the property seized should not be sold for the recovery of the
balance amount due on the decree.
On May 12, after hearing the parties, the learned Commissioner decided that the
holder of a decree, under which several persons are jointly liable, could
proceed against any one of the debtors, and refused to interfere with the
seizure and sale of first defendant's property.
The first defendant, appealed.
Vernon Grenier, for the appellant.-The decree must be interpreted to be a decree
ordering each party to pay his proportionate share. The note sued upon was a
joint promissory note. On a
joint contract each co-debtor is liable for
his share of debt, and Aug.30,1910 not for the whole. (Lindsay v. Oriental Bank
Corporation et al.,[1 Ram. 1860-1862, 54. ] Chinnatamby v. Chunmugam
et al.[2 (1909) 1 Cur. L. R.134.]) The cases relied upon by the
Commissioner (see Pereira's Laws of Ceylon, vol. I., pp. 324 and 325) are beside
the point. [MIDDLETON J.-But the English Law applies in this case; and under a
joint contract, according to the English Law, each co-debtor is liable to his
creditor for the full amount.]
H. A. Jayewardene, for the respondent.-The English Law governs this case,
and not the Roman-Dutch Law.
August 30, 1910. MIDDLETON J.-
This is an appeal from an order made by the Commissioner of requests declining
to stay the sale of the first defendant's property upon a writ in a judgment in
this action. The action is against two defendants on a promissory note, and
judgment was given against them. After judgment on December 30, 1909, the first
defendant by his proctor moved to be allowed to pay into Court his proportionate
share of the judgment and all the costs, and moved that his property-be released
from seizure, and that the Fiscal be directed not to sell it. This motion was
allowed. Subsequently, on May 12, 1910, it was desired to obtain execution
against the further property of the first defendant, and his property was
seized; the Judge was applied to, but refused to interfere, and this appeal was
made. It is contended for the appellant that under the Bills of Exchange Act,
section 85, sub-section (2), that where a note runs " We promise to pay," and is
signed by two or more persons, it is d
