( 349 )
The marriage of the defendants took place on the 25ih Novem-ber, 1896, and the plaintiff, though thereto requested, failed toconvey the land to the second defendant. The first defendantthereupon claimed the sum of Bs. 8,000, os due to him personallyunder section 19 of the Ordinance No. 15 of 1876.
On the day of trial it was contended for the first defendantthat, as plaintiff had already obtained judgment against the seconddefendant, he was not entitled to proceed further with the actionagainst the first defendant. McLeod v. Power, L. -R. 2 Ch., Div.z95 (1898), was cited in support of this objection.
Browne, D.J., overruled it in these terms: —
“ I held that the decision in McLeod v. Power is no* applicabl .,as there the writ was not specially endorsed. It could not be,because the claim wa0 not one pure and simple for such a debo orliquidated demand rs may undev order 3, rule 6, be sued for by aspecially endorsed writ, but was, inter alia, for damages for deten-tion of shares and alternatively for specific performance ofcertain agreements. The debt in the present action is sued forby our procedure analogous to the English specially endorsedwrit. All tne remarks made by Byrne. J., inimical to the defend-ant’s contention there because the writ was not specially endorsed,apply here in favour of the plaintiff, v here (as I may say) it wasthe special exception made in a plaintiff’s favour by order 14, rule5, where in an action by specially endorsed writ ore defendanthas not leave to defend and has judgment marked against him.That the plain4.ff is not thereby prejudiced in his right to proceedwith his action against him who has leave to defend, applies byparity of reasoning to our procedure; and if our Procedure Codehas not been supplemented by such a rule, I would now initiatewhat I believe to be a just practice. Because I consider that Mr.Grenier, for plaintiff, has very rightly drawn attention to the factthat the second defendant here is fhe wife of the first; the conse-quence whereof must be that neiuier her appearance nor (equally)her non-appearance is of any validity, unless she has her husband’sassi'tance therein, when at all events it is not shown she has aseparate estate of her own, in which case possibly her abstentionfrom a defence might be fa*al to her, for if her husband were torefuse to aid her. J think it not impossible she could obtainleave to defend without his aid. I would say of this case that Iconsider that the Court, had it known the fact that she was amarried woman without separate estate, would not have entered
Mai/ 29 andJane 1.
( 850 )
May 29 and
June 1.
judgment against her on the 24th August, 1897, when her husbandon that day filed answer, certainly not without further inquirywhether both defendants desired she should not answer; i.e., thatthey expressly consented to entry of decree against her, a jointdefendant with her husband.
“ I therefore overrule the first defendant’s objection with costs,but without execution for same ere final decree, and order theaction for further hearing for 19th July, 1899.”
The first defendant appealed.
H. A. Jayawardena, for appellant.—There is only one course ofaction in a joint promissory note, and that being merged in thejudgment against the second defendant there is no foundationfor any further proceedings against the first defendant. TheEnglish Rules and Orders on which the District Judge reliedhave no force in Ceylon. The Civil Procedure Code does notprovide for the continuation of an action on a joint contract wherejudgment has been already entered against one or more of thejoint contractors. The fact that defendants are husband andwife does not prevent the operation of this principle in this case,as they were married after the framing of the Ordinance No. 15of 1876, and their liability is separate, as if they were twodifferent persons contracting jointly with the plaintiff. McLeodv. Power (67 L. J. Chancery, 551) is applicable to this case.
Grenier, for respondent.—The promissory note says, “ we,husband and wife,” and under the Roman-Dutch Law a wifecould not appear without the consent of her husband. Thejudgment obtained against the second defendant is thereforebad. In McLeod v. Power both appeared, which is not the casehere.
H. A. Jayawardane replied.
Cur. adv. vult.
1st June, 1899. Withers, J.—
In this case a husband and wife—married, we are told, notin community of estate—have been sued on their joint pro-missory note by the maker. The plaintiff proceeded underchapter LIU. of the Civil Procedure Code and took out the appro-priate summons, which requires the defendant to obtain leavefrom the Court to appear and defend the action. The first-defendant, the husband, applied for leave to appear and defend.A day was fixed for the filing of the answer, answer was filed, and
( 351 )
the trial of the case was fixed for the 23rd September, 1897. Onthe day the first defendant’s answer was filed, viz., the 24thAugust, 1897, the journal entry contains this note: “Second defend-ant absent, time expired; enter decree as against her,” and inpursuance of that order a formal decree was drawn up bearingdate the 24th August, 1897. Why this decree was passed Icannot understand: the plaintiff did not ask for the decree, andsection 90 of the Civil Procedure Code enacts that “ in the case“ of an action where there are more defendants than one, the Court“ shall not be obliged to pass a decree for default against the“ defendants for failing to appear at a stage of the action, provided“ that one defendant at least appears at that stage against whom“ the action must proceed.” In my opinion, as the husband hadcome forward to defend the note, the decree against his wife wasnot a binding one: in foro the wife is always in statu -pupilari.It makes no difference whether she married before or after theOrdinance of 1876. For if married before 1876 she could only bebrought into Court under1 the protection of her legal guardian,her husband, though by ante-nuptial contract she was allowed toadminister her separate estate. When the case ultimately camefor trial against the first defendant in February last, he raised asan issue of law between himself and the plaintiff, whether thejudgment already obtained against his wife did not estop “ theplaintiff from recovering anything against him. In other words,he pleaded the judgment as a bar to further action against him.
The appellant sought to apply to this case the judgment inMcLeod v. Power (67 L. J. Chancery, 551). The principle of thatcase I understand to be this: joint debtors are entitled to be suedtogether, as there is but one cause of action and the cause of actionbecomes merged in the judgment. Thus, if judgment is recoveredagainst one of the debtors, the other can plead the merger. Thisrule of law may apply here to promissory notes, but I questionif it applies to joint obligations outside the law merchant-. Sucha rule of law can only apply where the judgment pleaded is abinding one. In my opinion this decree is not binding on thewife, for her legal guardian had appeared and was defending theaction when it was obtained. I would affirm the order.
May 29 and
June 1.
Withers, 3.
Lawrie, A.C.J.—
. When (as here) a husband and wife are sued, and the husbandon affidavit obtains leave to appear and defend, the wife is notin default, and no judgment can be entered against her.
( 352 )
May 29 and
June 1.
The decree sgainst the wife must have been entered perincuriam. I agree with my brother Withers that it is not abinding decree • if it had been asked for, I would haverecommended that (in revision) it be set aside'. It is sufficientthat we say that it has no validity.
The first defendant (the husband) has taken the altogetheruntenable position that the decree against his wife relieves himof all further liability.
This plea has been rightly repelled by the learned District Judge,though I dc not fully understand his reasons.
I will not enter on the general question of the disability ofmarried women to contract, nor on the question whether a marriedwoman be bound if she signs a promissory note along with herhusband. Nor will I enter on the question of the liability of jointdebtors, how they can be used, and when the obligation is extin-guished.
I always understood our law to be that .a joint obligations eachdebtor is liable only for his proportion of the debt.
It is sufficient, for the purposes of this decision, to hold that thedecree against the wife ought not to have boon entered, that it is notres judicata, and that the trial must proceed on the answer filed bythe* first defendant. His defence (if successful) will avail his wifeequally with himself.