1929  Present: Drieberg and Akbar JJ.

VELUPILLAI v. SIDEMBRAM et al.

450-D. C. Jaffna, 22,349.

Action for money lent-I.O.U. unaddressed to plaintiff-No evidence of money lent-Account stated-Executrix de son tort.

An I.O.U. is no evidence of money lent.

The production of an I.O.U. which is not addressed to anyone, is prima facie proof that it was given to the holder of it.

Where the defendant, who was the widow of a postal employee, received a sum of money from a Public Officers' Guarantee Fund due to her husband's estate,-

Held, that she was liable to be sued as executrix de son tort of the. estate.

PLAINTIFF-respondent, who was resident in the Federated Malay States, by his attorney sued for the recovery of the sum of Rs. 542.50 which was borrowed from him by one R. Aiyampillai, who died in Jaffna in March, 1926. The action was brought against the first defendant-appellant, his widow, as legal representative, and the second defendant, his minor child. Aiyampilai, who was employed in the Postal Department of the Federated Malay States, was entitled on retirement to a gratuity, which was paid to his widow. She also received a sum of Rs. 83.06, which was a refund of payments made by her husband to the Public Officers' Guarantee Fund. The plaintiff sough to make her liable as executrix de son tort. The defendant in her answer denied all knowledge of the transaction and put the plaintiff to the proof thereof. The learned District Judge gave judgment for the plaintiff.

H. V. Perera, for defendant, appellant.-The I.O.Us, are only evidence of an account stated. The action, is for money lent. There is no evidence of a loan. Nor is there evidence that the I.O.Us, were given to the plaintiff. There is no proof of the debt. In fact the defence is that the I.O.Us, referred to another transaction. The action is against the estate of a dead man. It is a rule of law that the Court should insist on strict proof of the liability. Counsel cited Byles on Bills, 18th ed., p. 42, and Fessenmeyer v. Adcock [1 (1847) 16 M. & W. 449.].

N. E. Weerasooria (with Nadarajah), for plaintiff, respondent.-An 'I.O.U. need not be addressed to a particular person. The person in possession is prima facie deemed to be the person to whom it was

given (Curtis v. Richards [1 (1840) 1 Man. & G. 46.] and Douglas v. Holme [2 (1840)12 Ad. & E. 641] ). The explanation given by the defence has been rejected. There is evidence that the defendant was indebted to the deceased at the material dates. Such evidence is sufficient to connect the debt with the claims on the I.O.Us. The letters written by the deceased constitute an admission of liability made by him. No special degree of proof is therefore required.

H. V. Perera, in reply.-There must be definite evidence of the loan in regard to which the I.O.U. was given.

June 18, 1929. DRIEBERG J.-

The respondent, who resides in the Federated Malay States, brought this action to recover two sums of 100 dollars and 210 dollars, amounting to Rs. 542.50, which he said were borrowed from him in the Federated Malay States by R. Aiyampillai on March 15, 1924, and April 21, 1924, respectively. He pleaded that for each of these sums Aiyampillai gave him an I.O.U. Aiyampillai returned to Ceylon and died in March, 1926.

The action is brought against the first defendant-appellant, his widow, as the legal representative of his estate, and the second defendant-appellant, his minor child, over whom the first defendant-appellant was appointed guardian ad litem. The respondent sought to render the first defendant-appellant liable as an executrix de son tort. Aiyampillai shortly before his death gifted a certain land to the first defendant-appellant. Under section 11 of Ordinance No. 1 of 1911 the property remained liable for the debts and engagements of her husband. In considering the issue whether Aiyampillai left an estate the learned District Judge he