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Prescription—Goode sold and money lent—Payment on account—Appro-priation of payment—Rules relating to such appropriation.
Where plaintiff sued defendant for balance value of goods soldand delivered between 17th December, 1892, and 9th January,1894, and for money lent on the 11th August, 1893, and it wasalleged that defendant paid plaintiff Rs. 5 on the 14th December,1894—
Held that, in order to save the claim for goods sold from prescrip-tion, -it was incumbent on plaintiff to allege and prove that at thedate of such payment the shop debt and loan were treated bycreditor and debtor as one and the same account, and that thecreditor, with the consent of the debtor, appropriated the sum toreduce that single account.
In the absence of such proof the payment must, under the Roman-Dutch Law, be applied in reduction of the claim of money lent only.
When nothing is settled at the time of payment, the principlewhich should actuate the creditor is that of the maxim “ Do as youwould be done by.”
When there are more claims than one, the debtor or creditorshould, at the time of payment, constitute with the consent of theother the claim in reduction of which the payment is to go.
If no such appropriation is made at the time of payment, thecreditor must apply it to some claims which could be enforced atthe time of payment and which at the moment is not incontroversy.
Of enforceable claims, the most onerous one must be selected. Ifthere is equality on that score, the older claim must be selected. Ifthe claims are equal as to gravity and time, they must be rateablyreduced by the payment.
HE facts of the case sufficiently appear in the judgment.
Seneviratna, for appellant.
Roberts, for respondent.
1st October, 1895. Withers, J.—
The plaintiff in this action seeks to recover from defendant asum of Rs. 54 01 for goods alleged to have been sold and deliveredby him to the defendant at Galle between the 17th December,
and the 9th January, 1894, and a sum of Rs. 14-18 beingmoney lent by him to the defendant at Galle on the 11th August,
At the date of the institution of this action, viz., the 21st June,1895, the action for the first claim was statute barred, a year beingthe limit under section 9 of the Ordinance No. 22 of 1871 for actionsin respect -of goods sold and delivered, and the last item inthe account being the sale of a draught on the 9th January, 1894.
EPHRAIMS v. JANSZ.C. R., Galle, 3,407.
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Nor. in my opinion does the allegation of payment of a sum of 1896-Rs. 6 on the 14th December, 1894, remove the bar in respect of0°t°ber l.
the first cause of action. Even at that date (the 14th December, Withers, J.1894) action on the shop debt (save an item of 26 cents) was statutebarred. To make the payment of Rs. 6 available for the purposeindicated in the 7th paragraph of his plaint, the plaintiff wasbound to allege and prove that at the date of payment of theRs. 5 the shop debt and loan were treated by the creditor anddebtor as one and the same account, and that the creditor, withthe debtor’s consent, at the time of payment, appropriated that sumto reduce that single account, leaving a balance of Rs. 60 odd asdue and payable thereon. This has not been done, and the defen-dant is clearly entitled to have the action against him on the shopdebt dismissed on that and another ground to be presently men-tioned. The Roman-Dutch Law on the appropriation of payments'seems to be quite clear. When there are more claims than onethe debtor or creditor should, at the very time of payment,constitute, with the other’s assent, the claim in reduction of whichthe payment is to go. If no such appropriation is made at the timeof payment, the creditor is bound to apply it to some claim whichcould at the time of payment be enforced, and is not, at the moment,in controversy.
Of enforceable claims, the most onerous one must be selected.
If there is equality on that score, the older claim must be selected.
If the claims are equal as regards gravity and time, they are to berateably reduced by the payment.
The principle which should actuate the creditor when nothingis settled at the time of payment is contained in the maxim “ Do“ as you would be done by ” (Voet, 46, 3, 16 ; Van Leeuwen ; CensFor. lib. 4, chapter XXXIII., clause 17).
The older enforceable claim at the date of the alleged paymentwas the loan contracted in August, 1893, and to this the paymentmust be applied. This leaves the defendant indebted to the plain-tiff in a sum of Rs. 9-18 for money lent, for which he is entitled•to judgment, with interest from the date of action at the rate of9 per cent., with like interest on the principal and interestso adjudged till date of payment (section 192, Civil ProcedureCode).
It was clearly a slip of the Commissioner to exclude the claimfor money lent, to which the limit is three years under the 8thsection of the Ordinance No. 22 of 1871.
Let the Commissioner of Requests be directed to enter up adecree in accordance with this judgment.
Bonser, C.J.—I agree.
EPHRAIMS v. JANSZ