MOSELEY S. P. 'J.—Udumanachy v. Meeralevve.
1941Present : Moseley S.P.J.
UDUMANACHY v. MEERALEVVE.
114—C. R. Kalmunai, 950
Prescription—Mortgage bond—Death of creditor—Minority of heirs—Paymentto administrator—No new cause of action.
On November 29, 1940, the plaintiffs, sued the defendant on a mortgagebond dated November, 1912, granted by the defendant in favour ofplaintiffs' intestate. The latter died in 1916, leaving as his heirs, theplaintiffs, who were minors. An administrator was appointed to theestate to whom a payment on account was made in 1917.
Held, that the action was prescribed.
Tillainathan v. Nagalingam (39 N. L. R. 118) followed.
Held, further, that the payment on account could not be regarded as anew cause of action. It merely extended the period of prescription.
PPEAL from a judgment of the Commissioner of Requests,Kalmunai.
M.Tiruchelvam for plaintiffs, appellants.
M.M. I. Karicpper (with him A. H. C. de Silva), for defendant,respondent.
Cur. adv. vult.
October 9, 1941. Moseley S.P.J.—
The defendant-respondent borrowed a quantity of paddy on a mortgagebond dated November 21, 1912, from one Seeny Mohamadu. The latterdied on June 27. 1916, leaving the plaintifTs-appellants, who were thenminors, as his heirs. An administrator was appointed but appears tohave taken no steps to recover the money due under the bond. A pay-ment on account was made to the administrator in 1917. Within thelast ten years all the appellants have attained their majority, and onNovember 29, 1940, brought an action for the value of the paddy stilloutstanding and interest. The respondent pleaded prescription and theparties went to trial on that issue alone. The appellants relied uponsection 13 of the Prescription Ordinance (Cap. 55), a section which hason many occassions come up for judicial interpretation in similar circum-stances. In the present case prescription began to run against SeenyMohamadu in 1912. It seems to have been settled beyond doubt that,where prescription has begun to run, its progress cannot be arrestedmerely by the subsequent incapacity, e.g., minority, of the person entitledto sue. This principle was clearly laid down by a Court of three Judgesin Sinnatamby v. Viravy1 and was followed by Moncreiff A.C.J. inSinnetamby v. Meeralevve *, Soertsz J. in Tillainathan v. Nagalingam “,after considering the above-mentioned authorities, was of the sameopinion.
Counsel for the appellants, however, contends that the position inthis case is altered by the fact of the appointment of an admistrator.It seems to me that in a case where, at the time when a cause of action1 1 S. C. c. 14.*6 N. L. R. 50.
’ 39 N. b. R. 118.
MOSELEY S. P. J.—Udumanachy v. Meeralevve.
arose, the party entitled to sue is a minor, the existence of an administratorwould not affect the right of the minor to take advantage of the provisions•of section 13. But in the present case time had already begun to run,and it does not seem to me that the position of the minors, while in no wayweakened by the appointment of an administrator, is in any way bettered.See Manuel Pillai v. Saverimuttu. ’.
The further point is raised on behalf of the appellants that the paymenton account in 1917 does not merely extend the period of prescription,but creates a new obligation, that is to say, a new cause of action. Counselrelied on Arunasalam v. Ramasamy " where De Sampayo A.J. said:
“ A payment on account is necessarily an acknowledgment of the debt,and the law, in the absence of anything to the contrary, implies fromthe acknowledgment of the debt a promise to pay the balance. Thisimplied promise creates a new obligation and takes the debt out of theoperation of the statute, and this is so even though at the date ofpayment the debt may have been already statute-barred ”.
The learned Commissioner, to whom the above-mentioned authoritywas cited, found, with some justification, the point to be very interesting.He found the argument based on that authority, viz., that a new causeof action was created, to be “ interesting and ingenious ”. He was,however, unable to agree with it.
The case of Tanner v. Smart was assumed to have set at rest a doubtwhich had apparently existed since the passing of the Limitation Act,1623. Until 1827 opinions seem to have varied whether, in order to takea claim out of the operation of the statute a mere admission of the claimwas sufficient, or whether the acknowledgment must amount to a promiseto pay. Then, in Tanner v. Smart (supra), Lord Tenterden C.J. in thecourse of his judgment in which he held that an acknowledgment of a claimon a simple contract will only keep it alive if the acknowledgment amountsto a fresh promise to pay, said:—“The only principle upon which it(i.e., the acknowledgment) can be held to be an answer to the statuteis this, that an acknowledgment is evidence of a new promise, and assuch, constitutes a new cause of action. ….
The authorities on this point were exhaustively reviewed byLord Summer in Spencer v. Hemmerde He found (at page 524) “ thatthe great preponderance of the cases is against regarding the new promiseas a new cause of action, and it seems to me that reason also is against it.Surely the real view is, that the promise which is inferred from theacknowledgment …. is one which corresponds with and is nota variance from or in contradiction of that promise ”.
It seems therefore that, in the present case, the payment on accountcannot be regarded as creating a new 'cause of action ; it merely extendedthe period of prescription. The plaintiffs’ action is therefore clearlyprescribed.
The appeal is dismissed with costs.
3 (1827) 6 B. and C. 603.
* (1922) 2 A. C. 507.
1 Ramanathan's Reports 1863-68 p. 335.’ 17 N. L. R. 156.
UDUMANACHY v. MEERALEVVE