T. S. FERNAMK), J. Charles Baglin Ltd* v. Letchwmanan
1956 Present: H. N. G. Fernando, J., and T. S. Fernando, J.
CHARLES BAGLIN LTD., Appellant, and A. M. S.
8. C. 177—D. G. Colombo, 14,746(5
Bill of exchange—Acceptance—Burden of proof.
Defendant was sued on a bill of exchange on the ground that the bill wasaccepted by his business partner. He denied, however, (i) that his businesspartner accepted the bill, and (ii) that the partner had any authority toincur the debt on his behalf.
field, that the burden was on the plaintiff to prove the partner’s signature.
Appeal from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.C., with John de Sararn and N. R. M. Daluwatte,for the plaintiff-appellant.
G. Ranganathan, with V. K. Palasunderam, for the 3rd defendant-respondent.
Our. adv. wdt.
August 29, 1956. T. S. Fernando, J.—
The plaintiff, a limited liability company incorporated in England,instituted this action under summary procedure against the 1st, 2ndand 3rd defendants who were on all the dates material to this actionpartners in the business called and known as Sanmugananda Oriental
X. S. FERNANDO, J.—Charles Baglin Ltd. v. Letehumanan
Stores. Summons was served on all three defendants, but the 1stdefendant did not make any application for leave to defend and fileanswer. The 2nd and 3rd defendants both applied for such leave andleave was accordingly granted to them on condition that each gavesecurity in a sum of Rs. 1000. The 2nd defendant did not furnish thesecurity and filed no answer. The 3rd defendant, the respondent onthis appeal, furnished security and filed an answer in the course of whichhe denied certain allegations contained in the plaint, including theallegation that the defendants accepted the bill of exchange sued upon.
The plaintiff’s case was that the bill of exchange sued upon wasaccepted by the 1st defendant, a partner of the business, by signingit and that the bill was dishonoured by non-payment on maturity.The plaintiff sought to make the 3rd defendant liable on the basis thatthe latter was himself a partner of the business on all material dates.The learned District Judge has held against the 3rd defendant on thequestion of fact whether he was a partner of the business on the materialdate, viz. the date of the alleged acceptance of the bill, and there wasin my opinion evidence to support this finding.
The learned Judge has however held that the action as against the3rd defendant must fail in the absence of proof that the bill was acceptedby the 1st defendant. Learned counsel appearing before us for the• plaintiff company has argued that, having regard to the conduct of theproceedings in this case, one could assume that all parties have tacitlywaived the necessity of formal production of the bill in evidence. Ifby this argument was meant that formal proof of the bill was unnecessaryI regret I am unable to accede to the argument. The first issue acceptedby the learned District Judge was the following :—
“ Did the 1st defendant and/or the 2nd defendant and/or the 3rddefendant accept the document sued upon ? ”
The burden of proving acceptance of the bill undoubtedly lay uponthe plaintiff and it is strange that no effort was made on behalf of theplaintiff to discharge this burden even when the 3rd defendant gaveevidence in the course of the trial. The point does not appear to haveescaped the notice of plaintiff’s counsel at the trial because we findthat in the course of the addresses in the District Court counsel for theplaintiff appears to have contended that in the face of the contentsof the 3rd defendant’s affidavit tendered in connection with his applica-tion for leave to defend and file answer the burden of disproving thatthe signature on the bill was that of the 1st defendant was on the persondenying the signature. In the affidavit referred to, the 3rd defendanthas denied (i) that he accepted the bill, and (ii) that the 1st defendanthad any authority to incur the debt on his behalf. I am of opinionthat these denials should have made it clear to the plaintiff that therewas no admission by the 3rd defendant that the 1st defendant didsign, the bill. In view of this opinion and of the plaintiff’s failure tolead any evidence to prove that the 1st defendant signed in acceptance,the order dismissing the plaintiff’s action as against the 3rd defendantis unexceptionable.
T. S. FERNANDO, J.—Charles Baglin Ltd. v. Letchumanan
’ Learned counsel for the plaintiff has referred us to certain Englishdecisions" but they all appear to me to be inapplicable to the case before-us in the absence of some evidence that the bill of exchange has beensigned by the person whose name appears thereon as the acceptor.
In Royden v. Ryde1 it was held that in an action against the acceptorof a bill of exchange it is not necessary for the plaintiff, under ordinarycircumstances, if the handwriting of the acceptor has been proved,to give evidence of his identity with the defendant on the record. Inthat case a witness proved (a) the handwriting of John Thomas Ryde,the acceptor, (b) that he knew John Thomas Ryde who kept an accountat the bank at which he, the witness, was a clerk, and (c) that he knewthe handwriting of John Thomas Ryde, the constituent of the bank andhad often paid his cheques. The court held that there was sufficientproof of acceptance without showing that this was the same JohnThomas Ryde on whom process had been served.
In Sewell v. Evans 2, in an action for goods sold and delivered, wherethe plaintiff had proved the delivery of the goods to a person bearingthe name of the defendant, the handwriting of that person, in a letterto the plaintiff, acknowledging the receipt of the goods being also proved,it was held it was not necessary for the plaintiff to show, in addition,the identity of that person with the defendant on the record.
What was held in both cases referred to above was that to provethe execution by the defendant of an instrument on which he is sued,if it be shown that such instrument is executed by a person bearingthe defendant’s name, it is not necessary to give evidence strictlyidentifying the person whose signature is proved with the party uponwhom process has been served unless facts appear which raise a doubtof the identity.
Two other cases which were relied on, Murieta v. Wolfhagen3 andHamber v. Roberts 4, are also distinguishable in that a witness did giveevidence in both these cases to the effect that he believed the documentto be in the handwriting of a person bearing the name of the defendant.These decisions cannot in my opinion be availed of by the appellantwho made no attempt to prove that the signature on the bill was thatof the 1st defendant.
The burden of establishing acceptance of the bill being upon theplaintiff, it seems to me that the contention of counsel for the respondentthat the failure of the plaintiff to prove the document as required bythe Evidence Ordinance disposes of his appeal is sound. In this connec-tion I would respectfully adopt the language of Ashworth J. in thecase of Salaik Ghand v. Mt. Taniz Bano5 that “the execution of a docu-ment cannot be deemed proved as required by the Evidence Act merelybecause it is proved in the sense of the definition of ‘ proved ’. Thatdefinition of the word ‘ proved ’ must be read along with Section 67 1
1 L. J. (1843) Q. B. 276.3 (1849) 2 Car. <£ K. 744 ; 175 E. E. 311.
8 L. J. (1843) Q. B. 277 .4 (1849) L. J. C. P. (N. S.) 250; 137 E. ft. 311.
A. I. B. (1928) Allahabad 303 at 304.
Majeed Khan v. Government Agent, Eastern Province
of the Act. That Section requires that there must be specific evidencethat the signature purporting to be that of the executant is in. the hand-writing of the executant. Until this is proved, the Court cannot proceedto consider whether execution is proved. In other words, Section 67(of the Evidence Act) makes proof of execution of a document some-thing move difficult than proof of matter other than the execution of adocument”.
I would accordingly dismiss the plaintiff’s appeal with costs.
H. N. Q. Fernando, J.—I agree.'
CHARLES BAGLIS LTD., Appellant, and A. M. S. LETCHUMANAN, Respondent