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Present : Pereira J. and Ennis J.GOONETILLEKE v. ABEYAGOONESEKERA.
83—D. G. Kandy, 21,892.
benefits from transaction—Surety—Waiver of the benefit.
The senatus consultant velleianum, and the authentica si quamuHer of the Roman-Dutch law have not ceased to be in force inthis Colony, but in view of the altered conditions of life with us,the former, at any rate, should be sparingly administered, that isto say, only when a clear and cogent case is made out calling forits application. The benefit of the consultum may be waived, butthe waiver should be in express terms, and it is not included byimplication in a renunciation of the benefits that sureties areusually entitled to. A woman is not entitled to tbe privilege ofthe consultum where she has bound herself as a principal debtor(or jointly and severally with the principal debtor), or if she hasacquired any benefits by reason of the transaction.
Ennis J.—It has 'been urged on appeal that the renunciationmust expressly refer to the senatus consultum velleianum. I amunable to see that for a renunciation of the general privilege thereis any virtue in a name. It is different in the case of a specialprivilege (beneficium authentica si qua mulier), for, according toGrotius, this must be separately renounced, and it could probablyonly be so renounced by naming it.
HE facts are set out in the judgment. The-material portionsof the bond sued upon are as follows: —
Enow all men by these presents that we, (1) Dissanayake as principaland (2) Lama Ettana as surety, are jointly and severally held and firmlybound unto (1)PalaniappaChetty and (2) CaruppenChetty in tbe sum
of Rs. 3,500 of lawful money of Ceylon to be paid to tbe said (1) Palani-appa Chetty and (2) Caruppen Chetty, or to either of them, their heirs,Ac., for which payment to be well and truly made we do and each ofus doth hereby engage and bind ourselves jointly and severally, ourheirs, Ac., firmly by these presents. And for further and better securingunto the said (1) Palaniappa Chetty and ' (2) Caruppen Chetty . andtheir aforesaid the payment of all . moneys payable and to becomepayable under by virtue or in respect of these presents, we do herebyspecially mortgage and hypothecate to and with them and their afore-saidasa fustor primarymortgagefree from anyencumbrances whatso-
ever all and singular the lands and all the estate, right, title of us andeachofus in,to, upon, or out ofthe said several premises and every
partorportionthereof. I,the saidLama Ettana,as sub-surety,' hereby
expressly renouncing all benefits, privileges, and exceptions whatsoeverto which sureties are otherwise by law entitled, and we do and each of
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ns dothherebyalsofarther engageand bindourselvesjointlyand
severally, our heirs, &c., for the due payment ol any balance sum that
may become payable under andby virtueofthesepresents if theGfoonetiUeke^
proceeds realized by the sale of the premises hereby mortgaged shall be v*found tobe insufficient to cover thewhole ofthe debtunderthese
presents incurred, including all interest and costs.
Whereas the above-bounden (1) Dissanayake and (2) Lama ESttana,widow of the late Dissanayake Muhandiram (hereinafter termed “ theobligors '*)» have requested the saidPalaniappaChetty andCaruppen
Chetty (hereinafter termed M theobligees ")tolendand advance to
them, the obligors, upon promissory notes to bemadeandBigned by
him the first-named obligor Dissanayakesingly infavourof the obligees
or of either of them such sum or sums of money that, they the obligorsor eitherof themmayfrom time to time requireduring thenext twelve
months from thedatethereof, or alsothereafteron the conditionthat
all such sums so lent shall be repaidin mannerin thesaidpromissory
notes stipulated, and shall not in the aggregate exceed the said sum ofBs. 3,500, and shall be secured by these presents in the mortgage herebyeffected.
A. St. V. Jayewardene (with him Oanekeratne), for the plaintiff,appell ant .—The senatus consultum velleianum is obsolete, and i6 notin force now. The intestate has waived the benefit of the senatusconsultum, and it cannot be pleaded as a defence to this claim. BeeVan der Linden 209 (Henry*s edition), Morice’s 'English and Roman-Dutch Law, Brooke v. Natchia.1 It is clear from the terms of thebond that the intestate was a principal debtor, and not merelya surety. She was the party who was primarily benefited by thetransaction. She is therefore liable. Grotius 3, 3, 15 and 16.
Sandra8agrat for the defendants,respondents.—The senatus
consultum velleianum is not obsolete. See Gambs v. Krickenbeek.2
The waiver should be express if a woman is to be barred frompleading the senatMS consultum. In this case the benefits to whichthe intestate was entitled as a woman were not waived. In thiscase there is only a general waiver to which women along with othersureties are entitled. See Grotius 3, 3, 18 and 19.
The deed itself speaks of the woman as a surety. It could notbe said that she was a principal debtor.
Cur. ado. vult.
June 9, 1914. Pereira —
Iu this case the question is whether the second defendant, whopleads that his intestate was a woman and therefore not liableunder the Boman-Dutch law as surety on the bond sued upon, isentitled to succeed in his contention. It has been said that the senatusconsultum velleianum is an effete law that may be deemed to be
i 2 8. C. G. 66.
* Ram. (1820) i.
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1914. . obsolete in this Colony. I see no reason for thinking that either1^, j the senatus consultum velleianum or the lex authentica ai qua wulier,
which like many other laws from the same source (namely, the
Homan law) was incorporated into the Boman-Dutch jurisprudence,goonettSeera has ceased to be in force in this Colony, but in view of the alteredconditions of life with us, I think that the senatus consultum vellei-anum t at any rate,- should be sparingly administered, unless a clearand ccgent case is made out calling for its application. The benefitof the eosultum may be waived, and it has been contended thatin this case the deceased, Dissanayake Lamaetani, did waive thebenefit. What is relied on in support of that contention is theexpression in the bond sued upon—“renouncing all benefits andprivileges and exceptions to which sureties are otherwise by lawentitled. ” The waiver in the case of the senatus consultum inquestion should be express (see Grotius 3, 3, 18), and I do not under-stand the words that I have cited to mean an express waiver of thebeneficium senatus consulti velleyani. They rather indicate thewaiver of the ordinary privileges that sureties in general are entitledto, namely, the beneficium ordinis seu excussionis, the beneficiumdivisionis, the beneficium cedendarum actionem, &c. At the sametime it is, I think, clear law that a woman is not entitled to theprivilege in question if she has allowed herself to be a principal debtor(see Grotius 3, 3, 25), or if she has acquired any benefits by reasonof. the transaction (see Grotius 3. 3. 26). It is clear from the terms ofthe bond that Dissanayake Lamaetani had bound herself therebyjointly' and severally with the first defendant. The bond says soin express terms, and further express authority is given thereby tothe obligees to sue for and recover from the “ obligors or from eitherof them *’ the total and aggregate amounts of the notes securedby the bond. True that at the very commencement of the bondthe deceased is described as surety, but that description may help-in adjusting rights and liabilities of herself and the first defendantinter se. It cannot detract from the joint and several liabilityexpressly created by the bond. Moreover, it is clear that thedeceased had benefited by the transaction in connection with thebond sued on. It is therein provided that the obligees should lendand advance to both the obligors money on promissory notes to besigned by the first of them only. For these reasons I would setaside the judgment appealed from and allow the appeal, with costs.
This i6 an action on a bond against two defendants. The seconddefendant is the administrator of the esatate of a woman who diedihtest&te, and the first defendant is the intestate's son. Thesecond defendant pleaded that the intestate was a surety on thebond, and he claimed the benefit of the senatus consultum velleianum
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The learned District Judge upheld this contention, and gave judg-ment against the first defendant and dismissed the action as againstthe • second defendant. The plaintiff appeals from the judgmentso far as it dismissed the action against the second defendant.
I think the case Gambs v. Eriekenbeek1 shows, as found by thelearned District Judge, that the senatus consultum velleianum formspart of the law of Ceylon. That law forbade women to becomesureties for others. In administering the law, however, the Bomanjurists applied certain principles: that a woman could only obtainthe benefit of the senatus consultum by pleading it; that a womanwho became suety with her eyes open and with- a- full knowledgeof her rights ought not to be allowed to evade her responsibility,and that if she renounced her rights still ought not afterwards beallowed the privilege ; that they cannot effectually plead thebenefit of the senatus consultum if . they have attempted to practisea fraud, or if they have benefited by the transaction ; and so on(Brutpt’s Opinions of Grotius 47 ; Nathan*s Common Law of SouthAfrica, vohpp. 291 et seq.).
These principles may receive a different application in Ceylon,so far as they relate to procedure or evidence, by the Ceylon CivilProcedure Code and the Ceylon Evidence Ordinance, and there arecertain features in the present case which, in my opinion, are suffi-cient to throw on the second defendant the onus of proof that hisintestate did not receive any benefit from the transaction. Thebond binds both the first defendant and his mother “ jointly andseverally,” and their heirs, executors, and administrators. Theobligees are to advance “ such sums of money as they, the obligorsor either of them,” may require. The plaint alleges that the moneywas lent to both the parties, and this is not denied in the answerof the second defendant. These points primd facie show that thewoman received some benefit from the transaction. Further, thesecond defendant's intestate renounced “all benefits, privileges,and exceptions whatsoever to which sureties are otherwise by lawentitled. “ She mortgaged the property mentioned in the schedule,and the bond provided .that jt should be lawful for the obligees tosue the obligors or either of them to recover the money in case ofdefault. The bond was notarially executed, and it must be presumedthat it was read, over to her. She must have entered into thetransaction with her eyes open, and with a full knowledge that shewas liable to be called upon to pay all the sums advanced shouldthere be default in payment within the specified time. It has beenurged on appeal that the renunciation must expressly refer to thesenatus consultum velleianum. Grotius 3, 3, 18 .is the passagelelied upon, but I am unable to see that for a renunciation of thegeneral privilege .there is any virtue in a name. It is different in thecage of the special privilege (beneficium authentica si qua mulier), for,
i Ram. (1820) 4.
according to Grotius (5, 3t 19), this must be separately renounced,and it could probably only be so renounced by naming it. Itherefore think that the second, defendant’s intestate in renouncingthe general privileges to‘which women are entitled renounced thebenefit of the eenatus consuhtum velleianum, especially as it seems shemust have been fully aware of the effect of default.
I would allow the appeal.
GOONETILLEKE v. ABEYAGOONESEKERA