1918 Present: Bertram C.J. and De Sampayo J.

VALLIAPPA CHETTY v. SILVA.

124-D. C. Galle, 15,588.

Promissory note-Material alteration-Note a nullity-May note be read in evidence on an action for money lent ?

'' A Court of Appeal ought only to decide in favour of an appellant on a ground put forward for the first time (in appeal), if it be satisfied beyond doubt that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy had arisen at the trial.

Obiter-The effect of material alteration of a promissory note is to make the note absolutely void. Though the note is a nullity, it can be used as evidence in support of a claim put in some other way.

THE facts are set out in the judgment of Bertram C.J.

J. S. Jayawardene, for the defendant, appellant.

A. St. V. Jayawardene, for the plaintiff, respondent.

July 1, 1918. Bertram C.J.-

In this case we have first to consider the findings of fact of the learned District Judge. They are, perhaps, not so clear and explicit as they might be. The learned Judge had at first to consider the case of the parties with regard to the payment. He heard the evidence of both sides, and he rejected the evidence of the defendant. He then had to consider the question of the amount of the interest. The plaintiff has sworn that the amount of the interest was 18 per cent., and that this amount was filled in when the note was signed. The defendant said that it was 12 per cent., and that the figure 18 was filled in after the note was signed. The learned Judge had, therefore, to consider whether the amount of the interest was filled in at all, or whether the note was left blank. On that question he rejected the evidence of the plaintiff. He was, therefore, in this position. He had rejected the evidence of the defendant on the question of payment. He had rejected the evidence of the plaintiff on the question whether the note was a blank note. He then had to apply his mind in this state of affairs to the conflict of evidence as to the amount of the interest, and he speaks as though, under those circumstances, he was logically bound to accept the account given by the defendant. He says, " that being so

the rate must be taken as the defendant states, namely, 12. " I  do not wholly follow that reasoning. But I will take it as a  finding of fact on the conflict of evidence between the plaintiff and the defendant, and as meaning that the learned Judge accepts the  evidence of the defendant. 

The point there taken was a point purely as to the amount of interest. It was a side issue. It was a question which was not very fully or strenuously fought by the defendant, nor very elaborately considered by the learned Judge. But now in this Court, for the first time, the appellant takes a new point. It is entirely new, because a perusal of the record shows that it had not occurred to the defendant in the whole history of the case-neither in the affidavit asking leave to defend, nor in the pleadings, nor in the argument. It is here contended that the finding of fact of the learned Judge that the rate of interest agreed upon was 12 and not 18, and that the note had been filled up, after signature, with a figure which was in excess of the agreed figure, voids the whole note, and that, therefore, the plaintiff cannot even recover the amount which the learned Judge on his previous finding in the case had found to be due.

The question is, Can this point be taken at this stage of the case? In the case of The Tasmania,1[(1890) L. R. A. C. 223.] the House of Lords declined to go into a point taken in the Court of Appeal, which had not been taken in the Court below. Lord Herschell said: " The conduct of a cause at a trial is governed by, and the questions asked of the witnesses are directed to. the point then suggested, and it is obvious that no care is exercised in the elucidation of