Palaniappa Chetty V. Mortimer

Present. Schneider J. and Jayewardene A.J.  1923

 PALANIAPPA CHETTY v. MORTIMER.

178-D. C. Kandy, 29,887.

Civil Procedure Code, s. 34-Cause of action-Debt due on account stated-Note given by eon for father's debt-Action on the note against son-Subsequent action against administrator of father's estate on account stated-Deposit-Arraha earnest money.

Towed plaintiff Rs. 4,000 on an account stated. T's son gave a note for this aura to secure the amount due by T. Plaintiff obtained judgment against T's son on the note. T died leaving an insolvent estate, and a meeting of the creditors exceeding six-sevenths in number, including plaintiff, was held, and all the creditors agreed to take a transfer of an estate in shares proportionate to their claims in discharge thereof. Plaintiff subsequently backed out, and the estate was transferred to the other creditors, leaving out plaintiff's share. Plaintiff sued the administrator on account stated for Rs. 4,000.

Held, that section 34 of the Civil Procedure Code did not bar the action, as the cause of action against T's son and against the administrator was not the same within the meaning

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