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Present: Dalton and Drieberg JJ-DHABMASENA v. LEWIS et al.
272—D. C. Kalutara, 14,193.
Prescription—Joint debtors in solido—Action instituted against one—Judicial demand—Interruption of ‘prescription.
The institution ol an action against one of several debtors in solidointerrupts the course of prescription against the others.
^^PPEAL from a judgment of the District Judge of Kalutara.
The plaintiff sued the defendants for the recovery of money dueupon a mortgage bond dated August 1, 1917. The mortgage wasexecuted by the first and second defendants and their mother,Nona. Bodrigo, jointly and severally. The plaint was filed onJuly 27, 1927, two days before the expiration of ten years. NonaBodrigo had died six months before action, and the third defendantwas described as her legal representative. On December 12, 1927,on the application of, the plaintiff the third defendant was appointedas a fit person to be the legal representative of the deceased mort-gagor. It was contended for the defence that the action wasprescribed as it must be regarded as having been instituted onDecember 12. The learned District Judge held that the action wasinstituted on July 27, and gave judgment for the plaintiff.
Croos Dabrera, for defendants, appellants.—The issue of prescrip-tion should have been decided in the appellants’ favour. The filingof the plaint against two of the mortgagors did not effect the third,
. who was dead. The filing of papers for the appointment of arepresentative, is not enough. A representative must in fact beappointed. Until then the action is not properly constituted asagainst him, and he is not before the Court. The action as againsthim at least is prescribed.
Weerasooriya, for the plaintiff, respondent.—Assuming that thethird mortgagor was not represented until the appointment of .representative, the filing of the action against the other mortgagorsis sufficient to interrupt the running of prescription. On terms ofthe bond the obligation is one in solidum. A judicial demandagainst one of two co-principal debtors interrupts the running ofprescription against the others as well (Pothier on Obligation!;(Evan’s Trans. Vol. /., p. 144, 150); Walter Pereira, 1913 ed., p.588, dc.).
('roos Dabrera, in reply.
February 3, 1930. Dalton J.—
This case raises an interesting point under the PrescriptionOrdinance. It does not appear to have arisen before in Ceylon.
12J. N. B 11394(10/51)
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The plaintiff sued three defendants for the recovery of an amountdue upon mortgage dated August 1, 1917. The mortgage wasexecuted by the first and second defendants and their mother,Dias Nona Bodrigo, who bound themselves jointly and severally topay the principal amount of the debt with interest. It is concededthat all three mortgagors had shares in the property hypothecatedby the bond.
The plaint was filed on July 29, 1927, two days before the expira-tion of the period of ten years, the term of prescription enacted bysection 6 of the Prescription Ordinance, 1871. Dias Nona Bodrigodied about six months before the action was brought, and the thirddefendant in the action, who is stated in the plaint to be a son ofhers, is described as “ the legal, representative ” of the deceasedmortgagor. With the plaint the plaintiff filed a petition supportedby affidavit moving for an order nisi for the appointment of thethird defendant or any dther fit person as legal representativeof the deceased’s estate $0? all the purposes of the action. Thiswas in conformity with the provisions of section 642 of the CivilProcedure Code.
The plaint bears a rubber stamp of the District Court datedJuly 29, but the District Judge apparently dealt with the petitionon August 4, for on that date he granted an order nisi returnablefor September 29. This order was eventually made absolute onDecember 12, 1927, no one putting in an appearance to contestthe order. After some delay on May 31, 1928, the third defendant’sproctor filed his proxy, and stated he abides by the answer of thefirst and second defendants, who amongst other things had pleadedprescription. The trial came on eventually on May 28, 1929, whentwo issues were tried, one the question of consideration and the otherthe question of prescription. The learned Judge found for theplaintiff on both issues, and* gave judgment for the amount claimed.
The argument on the appeal only dealt with the question ofprescription, it being urged for the defendants that the date of thecommencement of the action at the earliest was December 8, whenthe third defendant was appointed administrator of the deceasedmortgagor for the purposes of the action. The learned Judgehowever declined to accept that view, bolding that the action mustbe considered to have been instituted on July 29, when the plaintwas filed. There seems to be no doubt whatsoever that the plaintwas filed and accepted on that date, the Court only withholding theissue of summons on the first and second defendants until anadministrator be appointed of their deceased mother, as a matter ofconvenience. The learned Judge’s conclusion was, in my opinion,correct as regards the action brought against the first and seconddefendants, but wrong in respect of the third defendant. Therewas in fact, at that date no such person in existence as the third
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defendant is described, and he did not come into existence untilDecember 8. I 'am unable to accept the view of the .learned Judgethat the appointment dated back to the date of the petition.
In the result, however, in my opinion, it is not really material inthe circumstances here that the third defendant has only been suedafter the lapse of ten years for the following reasons. Since therehas been an interruption of the term of prescription by the plaintiffagainst two of the oo-principal debtors, namely, the first and seconddefendants, the authorities lay it down that the prescription isconsidered as having been interrupted with respect to all theremaining co-prinoipal debtors. The same principle is also appli-cable in the case of one or more co-principal creditors making aclaim against a debtor. Voe-t (bh. XLY., tit, 8, s. 6) sets the law outin the following terms:—
Again it is beyond doubt that, just as is the case generally,so also here, the obligations of correal debtors and creditorscan be cancelled by prescription …. For if even oneof correal creditors by stipulation has timeously made a legalclaim against the debtor, or conversely one of several correaldebtors has been called to account by the creditor, the prescriptionis considered as having been interrupted not only with referenceto him who makes the claim or againgt whom it is made,but also with regard to all the remaining correal debtors orcreditors.
In section 1 of the same title he defines what is meant by joint orcorreal stipulations. Upon the facts here there is no doubt of thelegal claim made bv the plaintiff in good time against two of thecorreal debtors.
The. same matter is dealt with in the authority cited byMr. Weerasooria in the course of his argument (Potheir on Obligations,Evan’s Trans, vol. I., p. 150). where the effects of soliditybetween several debtor’s are dealt with. This authority is referredto in detail by Pereira J. in his Laws of Ceylon (1913 ed. at p. 58$and following pages). Just as the acknowledgment of debt madeto any one of the creditors interrupts the prescription as to the wholeof the debt and consequently ensures to the benefit of the othercreditors (Pothier, vol. I., p. 144), so also the judicial demand whichis made against one, the debtors in solido interrupts the course ofprescription against all the- others. The words “Judicial demand”in the original are “ l’intei-pellation,” and Pothier goes on to statethat the creditor “by instituting this proceeding” or in the original" en l’interpellant ” has instituted it for the whole of the debt.This has exactly the same meaning as the words “ promissoreminterpellaverit ,r of Yoet which have been translated as “ has madea legal claim ” against the debtor. What exactly these wordsinclude it is not necessary here to decide, for there is no doubt in my31/26-
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mind that the institution of this section on July 29 with the accept-ance of the -plaint against two of the defendants on that date was alegal claim or judicial demand within the meaning of the authoritiescited.
For these reasons the plaintiff must succeed upon the issue ofprescription.
I would therefore dismiss this appeal with costs.
Drieberg J.—I agree.