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Present: Fisher C.J. and Garvin J.
ELIAS APPUHAMY v. DE SILVA et al.
296—D. C. Hatton, 1,646.
Joint-debt—Action against both creditors—Judgment against one—With-drawal of claim against other—Action barred against latter.
Where the plaintiff sued the defendants on a joint-debt andobtained judgment of consent against the first defendant, withdraw-ing his action as against the second defendant,—
Held, that he was debarred from suing the second defendant onthe same cause of action.
^I^HIS was an action instituted by the plaintiff to recover a sumA of Rs. 800 from the defendants on a promissory note. OnOctober 25, 1926, the plaintiff sued the defendants on the note inquestion, and on December 3, 1926, judgment was entered ofconsent against the first defendant only, the plaintiff being permitcdto withdraw his action under section 406 of the Civil Procedure Codeas against the second defendant. The present action was begun onOctober 12,1927, against the same defendants. The learned DistrictJudge gave judgment against both of them, and the second defendantappealed.
H. V. Perera (with D. E. Wijeyewardene), for second defendant,appellant.
H. H. Baiiholomeusz, for plaintiff, respondent.
February 1, 1929. Fisheh C.J.—
In this case a promissory note dated October 9, 1924, for Rs. 800was signed by K. H. E. de Silva “ for K. H. Endoris de Silva &Company.” The body of the note was as follows :—“ On demandwe, the undersigned K. H. Endoris de Silva & Company, Diyagama,Agrapatna, promise to pay to D. E. Subasinghe of Talawakele ororder the sum of Rupees Eight hundred only, currency for valuereceived with interest, &c.” On October 25, 1926, the plaintiff inthe present action sued the defendants in the present action on thenote in question, and on December 3, 1926, a decree was entered,of which the following portion is material to this case :
-•.. It is ordered and decreed of consent that the first
defendant (K. H. E. de Silva) do pay to the plaintiff a sum ofRs. 927'72, together with interest thereon at the rate of 9 per cent,per annum from October 25, 1926, till payment in full.
“It is further ordered that the plaintiff be and he is herebypermitted to withdraw this action under section 406 as against thesecond defendant.
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“ And it is further ordered that the first said defendant do pay tothe said plaintiff and the plaintiff to the second defendant theircosts of this action as taxed by the officer of the Court.”
The present action was begun on October 12, 1927. Both thedefendants in the first action were again made parties to this action.On July 20 a decree was made ordering “ that the defendants dopay to the plaintiff a sum of Bs. 800 with interest thereon, &c.”From that decree the second defendant appeals. The point wasraised but not persisted in that leave had not been given by theCourt to the plaintiff under section 406 of the Civil Procedure Codeto bring another action against the present appellant. I do notthink there can be any doubt that leave was granted. -The grantingof leave under that section, however, does not give the party towhom it is granted a cause of action in a case in which he wouldotherwise have none, and the sole question on this appeal is whetherthe fact that the plaintiff obtained judgment against the firstdefendant in the former action on the promissory note sued upon inthis action is a bar to his prosecuting a second action against theappellant. There can be no question that both actions werebrought to recover a partnership debt. The wording of the pro-missory note sued upon clearly shows this. That being so, thedebt was a joint-debt. That that is so is clear from many Englishdecisions beginning with King v. Hoare,1 which was cited by Mr.T’erera. That decision was acted upon by the House of Lords inKendall v. Hamilton,2 in which case the expression that partnershipdebts are treated in a Court of Equity as joint and several wasexplained by the Lord Chancellor (Lord Cairns) in his judgment atpage 517.
Once it is established that the debt was a joint-debt the judgmentin the first action against the first defendant precludes the plaintifffrom being able to make the second defendant liable in the secondaction. In the words of Scrutton L.J. in his judgment in Parr v.Snell3 “ the technical rule of law which we have to apply is this :that .where there are joint contractors if judgment is signed againstone the other is discharged.”
For these reasons the judgment of the District Court, in so far asit holds the second defendant (the appellant) liable, must be set asideand judgment must be entered dismissing the action against him,but having regard to the course the proceedings took in the DistrictCourt, w ithout costs, but respondent must pay the appellant hiscosts of this appeal.
Garvin J.—I agree.
1 13 M. cfc IF. 494.‘ L. R. 4, A. C. 504.
3 L. E. 1923, 1 K. B.,atp. 9.
Elias Appu-hamy v. DeSilva
ELIAS APPUHAMY v. DE SILVA et al