( 221 )
SI VAN ADI AN v. SAMARA WIKKR AM A.
D. C., Gcdle, 38,848.Misfeasance of notary public—Careless attestation of mortgage bond—Action for damages against notary by mortgagee—Decree for damages—Difference between what plaintiff could have recovered on mortgagebond and what plaintiff actually recovered—Recovery of a furthersum from other debtors—Right of defendant notary to set off suchamount against amount of decree.
Where plaintiff got judgment against defendant, for misfeasancein his duty as a notary public, for a certain amount as damagescomputed as the difference between what the,plain tiff could haverecovered on his mortgage bond, had it been properly drawn by thedefendant, and what plaintiff actually recovered; and whereplaintiff subsequently recovered by some unforeseen means a furthersum from another debtor—
Held, that in equity the defendant notary was entitled to setoff such further sum against the amount of the decree.
HIS was a suit for the recovery of damages consequent onthe defendant,, who was a notary public, having drawn and
attested a certain mortgage bond executed by W. H. A. Jansz andH. F. Jansz in favour of plaintiff, and having (it was alleged) falselyattested and represented to the plaintiff that the said bond was dulydrawn and attested, whereby the plaintiff was induced to accept thesaid bond as valid, whereas the defendant knew it was not dulydrawn and attested, in that he neglected to take the signature ofH. F. Jansz in the presence of the defendant as notary and of the
( 222 )
subscribing 'witnesses to the deed. The plaintiff alleged that owingto suoh neglect one of his debtors, H. J Jansz, was held by ajudgment of the District Court of Galle, in case No. 36,936instituted by plaintiff against the said H. F. Jansz, not to bebound by the said bond, and was accordingly absolved.
The defendant admitted that he omitted to secure the attend-ance of the subscribing witnesses at the time the said H. F. Janszsigned the bond, but he denied that such omission was madewith a view to defraud and prejudice any one. He furtherpleaded that, though the bond was not valid as a mortgage, yet itwas valid as a personal obligation, and it was the duty of theplaintiff to have appealed against the judgment of the DistrictCourt in 36,936; and that, if the defendant was liable for theneglect complained of, it was only in the amount which the plaintiffwould have actually lost had he taken all the steps availableto him and discussed all the property of the defendant within,:his reach.
The District Judge entered judgment for plaintiff for Rs. 750,
“ as the plaintiff is only entitled to recover the value of the property“ H. F. Jansz purported specially to mortgage.”
After judgment obtained, plaintiff*moved for a rule on plaintiffto show cause why further proceedings in the case should not be.stayed, as the land Kandalwela, which H. F. Jansz purported tomortgage, had been sold and proceeds brought to the credit of theplaintiff.
The District Judge disallowed the motion in these terms:—“ The land sold was not as against Mr. H. Jansz, who was“ absolved. But he chose to allow it to be sold for his son’s debt,“ which cap in no way interfere with plaintiff’s right against“ defendant.”
2nd April, 1878. Clajrencs, J.—
In this case the defendant, a notary, was sued by plaintiff for amisfeasance in his notarial capacity. Defendant was employedby plaintiff to attest a mortgage securing Rs. 4,500 and interest at18 per cent, on the security of certain property of the mortgagors,Messrs. Henry Andree Jansz and Henry Frederick Jansz, anotherperson Mr. Albert William Jansz joining as a surety. This wasadmitted by defendant, who also admitted that he allowed HenryFrederick Jansz to sign the mortgage in the absence of thewitnesses, whereby, that person not scrupling to take objectionwhen the mortgage bond was put in suit by the mortgagee inGalle District Court case No. 36,936, plaintiff lost the benefitof. the mortgage which Henry Frederick Jansz had purported to
( 223 )•
give. At the trial of the present oase Henry Frederick Jansz wascalled and admitted that hedid sign the mortgage bond, thoughnot in the presence of the witnesses.
It is unnecessary now to consider whether under such circum-stances this man should have been allowed to take advantage ofhis own conduct at the expense of the mortgagee, under cover ofthe Ordinance against frauds and perjuries, since not only hasthe case 36,936 been decided on that point in his favour withoutappeal, but the result of that decision has been accepted by thedefendant to the present case. The result of the case 36,936 wasthat J. A. Jansz and A. W. Jansz were decreed to pay plaintiffthe Rs. 4,500 mentioned in the bond with costs of suit, whileH. F. Jansz was absolved from the instance, paying his own costs.It does not appear why he should have been absolved from themoney liability as a mere debt unsecured by the mortgage, buthe was so absolved, and the present defendant contended in hisanswer that plaintiff ought to have appealed against that partof the judgment.
It was by no means made clear at the trial of this case thatplaintiff had exhausted such remedies as he still possessed underthe bond in spite of H. F. Jansz’s escape from the mortgageliability, but the District Judge proceeded to give plaintiff, onconjectural grounds, a judgment for Rs. 750, and this decree hasnot been appealed against.
Upon plaintiff moving for writs under this judgment, defendantraised the contention that a sum of Rs. 500, which plaintiff hadrecovered under, writ in case No. 36,936, should be deducted fromthe amount of judgment in this case, and the District Judge havingdecided that point against defendant, defendant now appeals.
I am of opinion that in equity, supposing plaintiff to have gotjudgment against defendant for a certain amount as damages inthis case, computed as the difference between what plaintiff couldhave recovered on his mortgage bond if defendant had not made themistake and what plaintiff using all lawful means was actually ableto recover; and supposing that plaintiff afterwards by someunforeseen means recovered a further sum from the Janszes,such further sum ought in equity to be set off against the amountof the judgment.
There is in the record of case 36,936 an entry showing thatRs. 500 had got into Court,—how, it does not appear,—andthat after deducting the claims of two claimants, plaintiff wasallowed to draw a balance of Rs. 430 ‘06. The Distriot Judge,in assessing damages, held that plaintiff was entitled to recover thevalue of the property whioh H. F. Jansz purported to mortgage.
( 224 )
ClarbnoBi J •
That property was an allotment of land called Kandalawela, andthe District Judge valuing it at Rs. 750 gave plaintiff damages forthat amount. Consequently, if this net sum of Rs. 430*06 wasrecovered since judgment from H.*F. Jansz, defendant ought tohave the benefit of it. I cannot gather from the record in either .ease what this sum is, or whence it came. Defendant might very .simply have cleared up the question what sum plaintiff has raisedand from what source by examining plaintiff and, if necessary,the Fiscal or the Janszes. Plaintiff having got, a judgment forRs. 750, it is for defendant to show that there has been a satisfac-tion in equity ; and under the above circumstances I can only saythat defendant has not satisfied me that there has been any suchsatisfaction in equity, and I consequently cannot, interfere withthe District Judge’s order which has been appealed against.
SIVANADIAN v. SAMARAWIKKRAMA