Vyramuttu V. Suduappu Et Al.

Present: Pereira J. and De Sampayo A.J.

VYRAMUTTU v. SUDUAPPU et al.

147-D. C. Batticaloa, 3,622.

Promissory note-Assignment by deed-Assignee not a holder in due course-Past consideration insufficient to support a note.

The assignment of a promissory note by deed is a sufficient transfer of the transferor's interest on the note. The assignment has not the full effect of an indorsement, because the plaintiff cannot be looked upon as a " holder in due course " of the note, unaffected by defences of payment, lack of consideration, &c, which the maker may have as against the assignor; but whatever defence the maker may maintain as against the assignor is also maintainable as against the assignee.

Under the Bills of Exchange Act (section 27) valuable consideration for a note may be constituted by (1) any consideration sufficient to support a simple contract, (2) an antecedent debt or liability. A past consideration is not a consideration which will support a simple contract.

THE facts appear sufficiently from the judgment.

J. Grenier, K.C., for the plaintiff, appellant.-The plaintiff is entitled to sue on the note by virtue of the deed of assignment. It is clear from the evidence that the note was in the possession of Mr. Sheriff on behalf of the payee.

Balasingham, for the defendants, respondents.-There is no consideration for the note. There is no evidence to show-that Ponniah spent money in the testamentary case in which the first defendant was a party at the request of the first defendant. Even if the money was spent on behalf of first defendant, it is clear from the evidence that many persons were spending money in the hope of getting a share of the estate. There does not appear to have been any agreement to repay the money. If the payee could not sue first defendant apart from the note, he could not sue on the note. There was no antecedent debt or liability at the date of the making of the note. A past consideration would not support a note.

J. Grenier, K.C., in reply.

Cur. adv. vult.

June. 16, 1913,. Pereira J.-

In this case the plaintiff sues" for the recovery of a half share of the principal on a promissory note granted by the first defendant to the second defendant and one. Ponniah. The plaintiff bases his

claim on a deed of assignment, whereby Ponniah conveyed to the plaintiff his " right, title, and interest " in and to the note. The first issue framed was whether the plaintiff was entitled to sue on the note filed by virtue of deed No. 10,396 dated September 6, 1912, that is, the deed of assignment referred to above. I think it is clear that the assignment was a sufficient transfer to the plaintiff of the rights of Ponniah on the note. The assignment has not the full effect of an indorsement, because the plaintiff cannot be looked upon as a " holder in due course " of the note, unaffected by defences, of payment, lack of consideration, &c, which the maker may have as against the immediate payees; but whatever defence the maker may maintain as against the payees is also maintainable as against the plaintiff.

One of the defences in the case appears to me to be that the promissory note was not in fact granted by the first defendant to the second defendant and Ponniah, but that the whole transaction was inchoate. The note, it is said, was left in the hands of Mr. Sheriff, and it was to be operative only when, on the fulfilment of certain conditions, he parted with it by giving it to the payees. It is argued that this defence is not open to the defendants under the issues framed, but I find there is an issue that would admit of such a defence, and that is: " Is plaintiff entitled to recover the amount claimed ? " Strictly speaking, an issue should never be framed in such general terms. Any defence would be covered by such an issue. But I find that the issue has been expressly agreed to by the plaintiff, and that being so, it is not for him to complain ag

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