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SOOSAIPILLAI v. VAITALINGAM et al
NLR37V381
1935 Present
:
Dalton S.P.J. and Maartensz J.
SOOSAIPILLAI v. VAITALINGAM et al.
308-D. C. Jaffna, 3,355.
Prescription-Action on joint
promissory note-Payment by one co-debtor- Interrupts prescription in favour of
the other-English Common Law- of Exchange Ordinance, No. 25 of 1927, s. 97 (3).
A payment by one of two joint-debtors on account of principal and interest
takes the debt out of the Prescription Ordinance as against the other.
THE
plaintiff sued the defendants to recover a sum of money as part capital and
interest due on a promissory note made by the defendants jointly in favour of
one Emmanuel Pillai and endorsed to the plaintiff for valuable consideration.
The note was made on August 26, 1924. On December 10 the first defendant paid
the plaintiff a sum of money in part payment of the principal and interest. The
first defendant filed no answer and the plaintiff obtained judgment against him.
The second defendant filed answer in which he pleaded that no payment had been
made on the note and that the action was prescribed as against him. The learned
District Judge held that a payment had been made and that it arrested
prescription as against the second defendant.
P. Tiyagarajah, for second defendant, appellant.-The makers of the note are
liable "jointly" (Chalmers Bills of Exchange, 9th ed., p. 319). Payment by the
first defendant did not arrest the running of time against the appellant
(Chalmers Bills of Exchange, 9th ed., p. 349, 2 K. B. 933 (1918) ). The claim on
the note is prescribed as against the appellant (section 13 of Ordinance No. 22
of 1871). This section is identical in terms with section 1 of the Statute of
Frauds (Amendment) Act, 1828 (9, Geo. IV. c. 14). See the Mercantile Law
Amendment Act, 1856 (19 & 20, Viet. c. 97), section 14. Although section 97 (3)
of Ordinance No. 25 of 1927 repeals section 2 of Ordinance No. 5 of 1852,
section 92 (2) of Ordinance No. 25 of 1927 restores the provisions of section 2
of Ordinance No. 5 of 1852. Section 92 (2) of Ordinance No. 25 of 1927 has been
given as wide an interpretation as section 2 of Ordinance No. 5 of 1852 (see
Ponniah v. Kanagasabai[1 35 N. L. R. 128.[). In any event section 98 (2) of
Ordinance No. 25 of 1927 was not intended to repeal the law of prescription as
regards payment by the joint-maker of a note.
L. A. Rajapakse (with him H. N. G. Fernando), for plaintiff, respondent-The
terms of section 98 (2) of Ordinance No. 25 of 1927 are clear. This introduces
only the Common law of England and not the Statute law. At common law
part-payment by a joint-contractor arrested prescription as against the other
contractor (see Lindley on Partnerships 9th ed., p. 337; Burleigh v. Stott[2 8
B. & C. 36.]; (1871) 2 Doug. 652).
December 19, 1935. DALTON
S.P.J-
In this action the plaintiff sought to recover the sum of Rs. 3,904.16,
amount alleged to be due in local currency, for part of the capital of and
interest on a promissory note for 2,000 dollars made by the first and second
defendants jointly in favour of one P. Emmanuelpillai and endorsed to the
plaintiff' for valuable consideration. The note was made at Ipoh, in the
Federated Malay States, on August 26, 1924, and endorsed to the plaintiff a
month later. On December 10, 1926, the first defendant paid the sum of 1,250
dollars to the plaintiff in part payment of the principal and interest. This
action was commenced on December 2, 1932.
In this action the first defendant filed no answer and did not appear to defend
the claim. The plaintiff accordingly obtained a decree against him in due
course. The second defendant filed answer, in which he pleaded that no payment
had been made on the note by the first defendant as alleged, and that in any
event the note was prescribed as against him (the second defendant). Other
defences were raised, which, for the purposes of this appeal, it is not
necessary to state. The
