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Present : Lascelles C.J. and De Sampayo A.J.
ABUNASALEM v. BAMASAMY.
415—D. C. Colombo, 36,453.
Prescription—Part ■ payment—Acknowledgment of debt and promise topay the balance.
A payment on account is necessarily an acknowledgment of debt,and the . law, in the absence of anything to the contrary, impliesfrom an acknowledgment of the debt a promise to pay the balance.This implied promise creates a new obligation – and takes the debtout of the operation of the statute, and this is so even though atthe date of payment the debt may have been already statute-barred. The implication of a promise may be rebutted by any.special circumstances attending the payment.
fJlHE facts appear from the judgment.
J. Joseph, for' the defendant, appellant.—The plaintiff claimswages from July 1, 1910, to May 20, 1913. The only item ofpayment by defendant was in September, 1912. The action wasinstituted on May 29, 1913. All wages due before May 29, 1912,are barred. One payment made within a year of action; keepsalive the entire claim. See Usuf Saile v. Punchirala *. For a partpayment to take a claim out of prescription, it must have been.,made under circumstances implying an acknowledgment of indebted-ness and a promise to pay the balance. See Silva v. Don Louis JMurugupillai vt Muttelingam.3 The plaintiff must prove that thepayment was .made under such circumstances.
Arulanandam, for the plaintiff, respondent.—In Usuf Saile v.Punchirala 1 it was held that an item of purchase by the defendant,within one year of action does not keep the whole debt alive as againstthe defendant. It was not a case of part payment. Part payment ofa debt is in itself an acknowledgment of debt, and a promise to paythe balance can be inferred therefrom.
1 (1904) 1 Bal. 36.a (1S97) 7 Tamb. 7 L
a (1894) 3 O. £. R. 92.
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January 13, 1914. De Sampayo A.J.—
The plaintiff, who was employed as a dairyman under the defend-ant, sues tiie defendant for a sum of Its. 370.60 as balance ofwages due to him from July 1, 1910, to May 20, 3913. The paymentsfor which credit has been given were made to the plaintiff in Septem-ber, 1912. The action was instituted on May 29, 3918, and thedefendant pleads that the plaintiff’s claim for wages prior to May29, 1912, is barred by prescription. The point for consideration onthis appeal is whether the payments in September, 1912, take thecase out of prescription. The District Judge, relying on Moort7 ia-pillai v. Sivakaminatihapillai,1 has decided .the question in theaffirmative, and I think his decision is right. Counsel for defendant,however, cited Silva v. Don Louis,2 and contended that it shouldhave been proved by evidence that .the payments were made undercircumstances implying an acknowledgment of indebtedness and apromise to pay the balance. The contention, so far as it meansthat it was for the plaintiff to prove> anything more than the factof an absolute payment on account, is not well founded. Neitherin the English Statute of Limitations nor in our Ordinance ofPrescription is there any express provision regulating the effectof a part payment; all that Lord Tenterden’s Act and our OrdinanceNo. 22 of 1871 do is to provide that the enactments requiring anacknowledgment to be in writing shall not “alter, take away, orlessen the effect of any payment of any principal or interest.” Thereason for the absence of such express provision is obvious. Apayment 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.(Fordham v. Wallis*) This implied promise creates a new obligationand takes the debt out of the operation of the statute, and thisis so even though at the date of payment the debt may have beenalready statute-barred. Of course, the implication of a promisemay be rebutted by any special circumstances . attending thepayment, as where the payment is not on account but purports to bein satisfaction of the entire demand (Taylor v. Hollard 4), or wherethe debtor says he will not pay the balance (Wainman v, Kynman 3)or where the payment is compulsory under some legal proceedings(Morgan u. Rowlands «). Such as these are,.I think, the circumstancesalluded to in the case cited from 7 Tomb. 74, but in the present casethere is an entire absence of such qualifying circumstances. Theevidence shows .that the payments made in September, 1912, wereso made by the defendant without any reservation on accountof the accumulated arrears of salary due to plaintiff at that date.If anything further took place between the parties sufficient to
»(1910) 14N.L. B. 30,* (2*97) 7 Tamb. 74.*(1852) 10 Hare 225
4 (1902) 1 K. B. 676.*(1847) 1 Ex. 118.
• (1872) 7 Q. B, 493.
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1918*" alter or take away or lessen the effect " of the payments, it was
Db Samfato f°r the defendant to satisfy the Court on that point, and in the* A.?. absence of any such evidence, the defendant by his payments notArunaeatem onty acknowledged the existence of the debt, but must be taken in</. Ramasamy law to have promised to pay the balance. In my opinion thepayments took the case out of the operation of the Ordinance, and.the defendant's plea of prescription cannot be sustained.
I would dismiss the appeal with costs.
Lascellbs C.J.—I entirely agree.
ARUNASALEM v. RAMASAMY