086-NLR-NLR-V-24-CREASY-v.-STEPHEN.pdf
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1023.
Present: De Sampayo and Schneider JJ.
CBEASY v. STEPHEN.
Ill—D. C. Colombo, 5,747.
Civil Procedure Code, s. 650—Warrant for arrest of defendant beforejudgment.
Before issuing a warrant of arrest before judgment under section650 of the Civil Procedure Code, the Court must have materialsbefore it tending to show that the debtor was about to quit theIsland' under circumstances rendering it improbable that thedebt would be paid.
“ It is not necessary, and, in most cases, it is impossible7 to proveintention by direct evidence; it is sufficient if circumstances areestablished from which a reasonable inference may be drawn.A man’s intention must be collected from his acts. "
r£1 HE facts are set out in the judgment.
*
Samarawickreme, for defendant, .appellant.
Loos, for plaintiff, respondent.
December 4, 1922. De Sampayo J.—
The plaintiff instituted this action on July 26, 1922, to recoverfrom the defendant a sum of Bs. 46,218.97, and at the same timeapplied for and obtained a warrant of arrest before judgmentunder section 650 of the Civil Procedure Code. On July 31 thedefendant, appearing by a firm of proctors, moved that the order'issuing the warrant of arrest be vacated and the warrant be recalled.On August 7 the District Judge, after hearing counsel on bothsides, refused the motion, and the defendant has appealed.
The point urged in the Court below and repeated before us inappeal is that there was no sufficient foundation for the issue of thewarrant, inasmuch as the plaintiff in applying for it had not allegedor shown that the defendant was about to quit the Island with theintention of evading payment of the plaintiffs’ claim. It is notdenied, and it is the defendant’s own case, that he was going toleave the Island about this time, but he says that in doing so he hadno intention to evade paying the plaintiff's claim. Section 650 ofthe Code only requires of the plaintiff to verify his claim and thefact of the defendant being about to quit the Island, and does notprovide for the plaintiff proving any mala fide intention on thepart of the defendant. The District Judge accordingly held
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against the defendant with regard to the specific ground on whichthe defendant's motion was made. It is noticeable that undersection 658 of the Code, which relates to the allied remedy ofsequestration before judgment, it is expressly required of theplaintiff, when he applies for an order, to show that the defendant’is alienating his property to avoid payment of the plaintiff’s claim.The distinction between section 660 and section 653 in respect of thedefendant’s intention must have some meaning, and the omissionin section 650 to require proof of such intention is apparentlyintentional. But we have to recognize judicial authority onthis point of practice. In Ramen Chetty v. VaUipuram,l WoodBenton J., in whose judgment Hutchinson C.J. concurred, decidedthat, notwithstanding the omission in section 660 the Court wouldnot, in the exercise of its discretion, be justified in issuing a warrantof arrest before judgment, unless materials were put before ittending tq show that the debtor was about to quit the Islandunder circumstances rendering it improbable that the debt wouldbe paid. We must, therefore, examine the evidence, premisingthat it is not necessary, and, in most cases, it is impossible to proveintention by direct evidence, and that it is sufficient if circumstancesare established from which a reasonable inference may be drawn.A man’s intention must be collected from his acts.
It is important, in the first place, to note the circumstancesunder which the plaintiff’s claim, arose. The defendant, thougha native of Ceylon, was for some years resident in Singapore, andoarried on a business there under the name of the Singapore EstatesSupply Agency. Early in 1922 the Netherlands Trading Societyof Singapore, on the orders of the defendant, shipped from Java toColombo by the ss. “ Oranje ” to be delivered to the ColonialStorekeeper, on behalf of the Government of Ceylon, 31 cases ofquinine. The steamer was due to arrive in Colombo on February16, and the defendant on February 7 wrote to the plaintiff informinghim of the shipment, and asking him to take delivery of thecases of quinine on arrival of the steamer “ by giving1 the usualBank guarantee" for taking the goods without the. bills of lading,and promising to forward the bills of lading as soon as they cameto hand. The plaintiff accepted this order. The agents in Colomboof the steamer were Messrs. Aitken, Spence & Co., and the guaranteehad to be given to them. On February 16, when the steamerarrived, the plaintiff gave an undertaking to Messrs. Aitken,Spence, in which the National Bank of India at 'the plaintiff'srequest joined, to save that firm harmless from any liability bydelivering the goods without the bills of lading, and obtainedtheir endorsement to the Customs entry for olearing the goods.At the same time the plaintiff had to give an indemnity to theBank. The plaintiff was thus enabled to clear the goods and
* (1910) IS N. L. R. 337.
1968.
Be SaupavoJ.
Crtaey «.
> Stephan
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1688. deliver the same to the Colonial Storekeeper. The bills of lading,jjjj flAlrt.1Vn however, were not forwarded as promised, though the plaintiffcabled to the defendant on that subject. In reply to one of theQrevag a. cables, the defendant replied by cable. on March 18 that the billsQf lading were delayed “ owing to adverse exchange,’' and thatthey would be sent as soon as possible. As a matter of fact, theywere never sent by the defendant. It is difficult to understandhow adverse exchange can cause the bills of lading to be delayed.The fact appears to be that the draft drawn upon the defendantby the shippers for the value of the quinine was dishonoured, andso the defendant was not given the bills of lading. The plaintiffwrote and cabled to defendant in Singapore several times aboutthis matter, but nothing was done by the defendant, and, finally,on April 29, the plaintiff was informed by cable that the defendantwas coming to Ceylon and would settle the matter personally.The defendant arrived on May 5, and stayed at a well-known hotelin Colombo. One would have expected the defendant to see theplaintiff at once and make some arrangement, but he did not.On the contrary, the several letters written by plaintiff and addressedto the defendant at his hotel were left unanswered, nor wasthe plaintiff able to have any interview with the defendant. Inthe meantime the Bank would appear to have' received from theshippers the bills of lading and the dishonoured draft for thepurpose of obtaining payment. The amount for which the plaintiffbecame liable under this guarantee was Bs. 56,218.97, and anurgent telegram sent on July 18 by the plaintiff to the defendant’shotel, informing him that the Bank was demanding immediatepayment of this sum, brought the defendant at last to the plaintiffon. July 24.. This was the first and last time the defendant sawthe plaintiff, though he had been in the Island ever since May 5,at that interview the only satisfaction the defendant .gave theplaintiff was a vague promise, He said that he intended shortlyto leave for Madras, and that he would obtain some money to sendto the plaintiff. The defendant cannot complain if this is construedas a mere evasive attempt to put the plaintiff off. The defendantdoes not appear after all to have gone to Madras as stated, andeven his counsel does not know where the defendant is at thepresent moment. There is no question, however, that no paymenthas been made to plaintiff, except a sum of Bs. 10,000, which thedefendant’s firm transmitted to the plaintiff on July 21. Anotherimportant fact to note in this connection is that as early as February 24the Ceylon Government deposited Bs. 53,280 in the National Bankof India to the defendant’s credit in payment of the amount duefor the quinine. The least that the defendant would be expectedto do was to pay the plaintiff out of this money, but he appearsto have drawn the whole of it, and calmly told the plaintiff, at theinterview of July 24, that he had no sufficient funds in Ceylon to
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satisfy the plaintiff's claim. The plaintiff then came into CourtIMS;
and filed his action on July 26. It will be seen that by his coursesambayo
of conduct the defendant has reaped a double benefit. He has J.received from the Ceylon Government the full value of the quinine, Creasy «.and has made the plaintiff liable for the same, amount to the Bank Stephenon behalf of the shippers.
'What is the fair inference to be drawn from the circumstancesabove detailed? I think that they lead to the conclusion that thedefendant, if he did not intend wholly to avoid payment of theplaintiff’s claim, meant to delay payment indefinitely, and thatthis, case therefore comes within the principal of the decision inRamen Chetty v. Vallipuram (supra). It is strongly urged thatsuch an inference should not be drawn because Singapore was thedefendant’s home, and his leaving Ceylon, where he had been ona holiday, was merely for the purpose of going back to his home.
With regard to this, I need only say that a man may be found toleave a place in meditations fugee, though his ultimate destinationmay be his home. In my opinion this appeal should be dismissed,with costs.
Schnhder J.—I agree.
Appeal dismissed.