076-NLR-NLR-V-16-LATCHIME-v.-JAMISON.pdf
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1913.
Present: Lascelles C.J. and Pereira J.
LATCHIME v. JAMISON.
88—D. C. Kegalla, 3,507.
Action on promissory note—Consideration for note—English law.
The English law is to be applied in respect of all contracts andquestions arising upon or relating to bills of exchange, promissorynotes, and cheques, and in respect of all matters connected withany such instruments.
Plaintiff was defendant’s brother’s mistress and had two childrenby him. When defendant’s brother was leaving Ceylon thedefendant, as a favour, gave a note to the plaintiff to maintainthe children. The defendant did not receive any considerationfrom his brother for making this arrangement, and gave the noteof his own accord and not at his brother’s request.
Held, that in the circumstances of this case plaintiff could notsue the defendant on the note, as the note was given withoutvaluable consideration.
Lascelles C.J.—If the note was given by the defendant merelyin discharge of his brother’s moral obligation to provide for hisillegitimate children, it would be quite immaterial whether or notthe note was given at the defendant’s brother’s request, inasmuchas mere motive such as a moral obligation is not valuable con-sideration. If, however, it be the case that the note was given inconsideration of the plaintiff’s forbearance to sue the defendant’sbrother for maintenance, then such forbearanoe would be sufficientconsideration for this note.
rpHE facts are set out in the judgment.
A. St. V. Jayewardene, for the defendant, appellant.—Therewas no consideration for the note sued upon. The evidence showsthat the note was given voluntarily by the defendant. There is
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no evidence whatever to show that the note was given for the 1M8.purpose of compounding defendant’s brother's liability. Counsel intthkno v.cited Ckitty on Contracts 24 and 25.Jamison
Arulanandam, for the plaintiff, respondent.—The evidence showsclearly that the .note was given to save defendant's brother froman action. Though the plaintiff does not expressly say so, that isthe irresistible conclusion to be drawn from the evidence.
There is sufficient! consideration for the note even under theEnglish law. Counsel cited Bills of Exchange Act, section 27.
Cur. adv. vult.
May 7, 1913. Lascelles C.J.—
This is an appeal from a judgment of the District Judge of Kegallagiving judgment in favour of the plaintiff on a promissory notedated June 26, 1909, given by the defendant to the plaintiff.
The defence is that the note was given without consideration;and the question for determination in this appeal is whether theDistrict Judge was right in holding that the note was given forvaluable consideration.
The note was given in the following circumstances. The defend-ant’s brother, J. G. Jamison, had for some years prior to the givingof the note kept the plaintiff as his mistress and had two childrenby her. About the time when the note was given, J. G. Jamison,who was then entirely without means, was leaving Ceylon forCanada at his father's expense. The defendant then, as he says,gave the note, as a favour, to the plaintiff to maintain the children.
The intention appears to have been that the plaintiff should supportherself and her children out of the interest on the note. Thedefendant denies that he received any consideration from his brotherfor making this arrangement, or that he gave the note at his brother’srequest. Interest was duly paid up to January, 1912, when theplaintiff, hearing that the defendant was about to leave for Australia,very ill-advisedly brought the present action to recover principal andinterest on the note. It is quite clear in the first place that, undersection 2 of Ordinance No. 5 of 1852, the validity of the note nowin suit must be determined by English law, for that section providesthat the law to be administered “ in respect of all contracts andquestions arising upon or relating to bills of exchange, promissorynotes, and cheques, and in respect of all matters connected withany such instruments, shall be the same in respect of .the saidmatters as would be administered in England in the like case at thecorresponding period if the contract had been entered into or ifthe act in respect of which any such question shall have arisenhad been done in England.” This point is important, as differentconsiderations would have arisen if the defendant’s liability hadbeen determinable by the Roman-Dutch law. The grounds on
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Latchime v.Jamison
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which the learned District Judge has held that the note was givenfor valuable consideration may be stated in bis own language.
“ There is no need to quote passages at length from the letters.A perusal of the. letters is sufficient to come to the conclusion thatthe defendant, at the request of his brother, undertook to payRs. 3,000 to the plaintiff.”
The reason given by the learned District Judge does not suppprthis conclusion. If the note was given by the defendant merely indischarge of his brother’s moral obligation to provide for hisillegitimate children, it would be quite immaterial whether or notthe note was given at the defendant's brother’s request, inasmuchas mere motive such as a moral obligation is not valuableconsideration.
If, however, it be the case that the note was given in considerationof the plaintiff’s forbearance to sue the defendant’s brother formaintenance, then such forbearance would be sufficient considerationfor the note {Growhurst v. Lavenach *).
It was on this footing that the only serious attempt was made tosupport the judgment. But so far from there being any evidencethat, the note was given for this consideration, the plaintiff herselfstated that she had no intention of suing the defendant’s brother,and would not have done so if the note had not been given. Herattitude In that respect is that which is usual with women of herclass when in her situation.
Evidence was given as to certain transactions between thedefendant and his brother with regard to the Arangalle estate.The defendant transferred two-thirds of the estate to his brother,and, by way of consideration, took a mortgage on the property.Shortly before the defendant’s brother left Ceylon the share wasre-transferred to the defendant and the mortgage bond was cancellediI cannot see that either this transaction or the circumstance thatthe defendant paid his brother’s debts to the extent of Rs. 4,000or Rs. 5,000 goes to prove consideration for the note sued upon.The note is, in my opinion, clearly bad for want of consideration.I would set aside the judgment, but in the circumstances of the caseI would make no order as regards the costs of the appeal or asregards the costs in the District Court.
Pereira J.—I agree.
Set aside.
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i (im) 8 Ex. m.