Wijeyewardene V. Jayawardene

1917 Present : Wood Renton C.J. and De Sampayo J.

WIJEYEWARDENE v. JAYAWARDENE.

187-D. C. Colombo, 45,217.

Surety-Beneficium ordinis-Effect of general renunciation of privileges of suretyship.

When the plaintiff, who held a bond from the Ceylonese Union Company, was about to put his bond in suit, the defendant inter vened and granted him a bond (No. 5,279) which contained, inter alia, the following clauses: -

In consideration of the plaintiff granting the indulgence aforesaid, and forbearing at the request of the defendant to claim and enforce payment of the monies due to him by the company, the defendant doth hereby covenant with the plaintiff as follows: -

(1) That he, the defendant, shall and will, at the expiration of twelve months from date hereof, if there shall be due, owing, and payable to the plaintiff upon the said bond No. 5,112 the whole or any. part of the principal , well and faithfully pay to the plaintiff the full amount so due.

(2) Upon such payment the plaintiff shall execute an assignment in his (defendant's) favour of the said bond No. 5,112, but with the express provision that the defendant shall have no remedy or recourse against the plaintiff if he, the defendant, from any reason or cause fails to recover the said monies 

(3) This guarantee shall be a continuing guarantee, and shall extend to and be applicable to the full amount of the principal due and owing and to become due and owing to the plaintiff as aforesaid.

(4) In order to give full effect to the provisions of this guarantee, the defendant doth hereby expressly waive all suretyship and other rights inconsistent with such provisions, and which he might otherwise be entitled to claim and enforce.

(5) The plaintiff, in consideration of the guarantee and covenant aforesaid, hereby covenants with the defendant that he will not, during the term of twelve months from the date hereof, enforce his claim for the monies due and owing to him.

Held, (a) That the bond (No. 5,279) embodies a contract of guarantee or suretyship, and that the defendant had not bound himself as co-principal debtor.

(b) That the defendant was not debarred from relying on the beneficium ordinis.

" The ordinary privileges of suretyship must be specially renounced. In that case the renunciation by the defendant in deed No. 5,279 of his rights as a surety would clearly be inoperative. But even if we adopt the view of Van der Keessel, the present appeal would still fail. For the efficacy of the general renunciation

depends on whether the surety, not being peritus juris, is proved affirmatively to have understood the nature of the right or rights renounced I would hold that the surety's knowledge on that vital point must appear on the face of the deed of suretyship itself."

THE facts are set out in the judgment.

Elliott and F. J. de Saram, for the plaintiff, appellant.

Bawa, K.C., and Drieberg, for defendant, respondent.

Cur. adv. vult.

July 5, 1917. WOOD RENTON C.J.-

The plaintiff sues in this action for the recovery of a sum of Rs. 58,654.26, alleged to be due to him by the defendant under deed No. 5,279 dated August 8, 1914. The details of the claim are set out in an account of particulars filed with the plaint. The defendant pleaded as matter of law that the action was not maintainable unless and until the plaintiff had sued, and had failed to recover the amount claimed from, the Ceylonese Union Company Limited, and denied his liability in respect of certain items in the account of particulars, with which it is unnecessary to concern ourselves further, as the plaintiff's counsel stated, at the commencement of his argument on the hearing of the appeal, that he would not press his claim in regard to them. The learned District Judge held in favour of the defendant on the issue of law, and ordered the plaintiff's action to stand out of the trial roll till he had sued the Ceylonese Union C

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