026-NLR-NLR-V-08-LETCHEMANAN-v.-SANMUGAM-et-al.pdf
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LETCHEMANAN .v. SANMUGAM et al.D. C., Colombo, 5,647. •
1003.
November 10.
Judgment upon promissory note—Promissory note in favour of “ Me.-A. Ru. A. Itu.
' Letchemanan Chetty "—Letchemanan Chetty, agent of undisclosed partners—Death of such partners—Motion by Letchemanan Chetty for writ of execu-tion^—Legal position of Letchemanan• Chetty in the case—His right, asagent of undisclosed principals, to sue for and recover the debt—Customs ofTamil traders—Natukotte Chetties—Application for writ of execution—Compromise of the decree—Motion of defendant to have the compromiserecorded as certified as an adjustment of the decree—Civil Procedure Code,section 349.
* A borrowed money on a promissory note from Letchemanan Chetty,who, being a Tamil, was carrying on trade as "Me. A. Bn. A. Bn. Letchemanan Chetty.” He received judgment under this name, and movedfor a writ of execution against A, whereupon A appeared in Court andproved that “Me. A. Bu. A. Bu." represented two partners B & N; thatthey were both dead; that their executors were trading under the styleof “Me. A. Bu. A. Bu. “; and that Letchemanan had no authority fromthem to continue the present action.
Held, that the conduct of A showed that he either thought that hispromise to pay was to Letchemanan personally, or that he knew him tobe the agent of an undisclosed principal; that in either case it wascompetent to Letchemanan to sue A; and that, as the debt on the pro-missory note had developed into a judgment and had been partly paid,the judgment with a certificate of payment and the possession of the-promissory note, which would follow upon satisfaction of the judgment,would be a good defence to any claim that might be made by the executorsof the plaintiff’s deceased principals against the defendant.
Meyappa Chetty v. Yusoof, 5 N. L. R., 265, commented upon.
Where a writ of execution issued on 21st May, 1894, but was not put-in force in consequence of an agreement entered into on 7th June, 1891,between the partiestothesuit and certain other creditors ofthe
defendant, whereby certain, securities should be assigned by the defend-ant to his creditors,andit was provided that they shonldnot suethe
defendant so long asthesaidsecurities shall not have beenrealized,and
that in the event ofthesaidsecurities being found to beinadequate or
insufficient after all reasonable and legal steps have been taken, thenthe said creditors “ shall be at liberty to recover from the defendantthe said sum of Bs. 130,000, or any balance thereof or interest thereonrespectively as shall be found due and payable by them, ”—
Held, upon an application of the defendant, under section 349 of theCivil Procedure Code, to have the foregoing compromise recorded ascertified as an adjustment of the decree, that the agreement contem-plated the future execution of the decree, and that the term " recover ”was applicable to a new action as also to the requirement of the decreealready obtained.*
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N this action the plaintiff, suing as Me. A. Ru. A'. Ru. Letche-ipanan Chetty, obtained judgment upon a promissory note
against the defendants on 2nd May, 1894, and sued out a- writof execution, which, however, was not enforced, because of anagreement entered into between the plaintiff, defendants and
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1993. certain other creditors of the defendants, whereby certain securitiesNovember 10. were to be assigned to the plaintiff and the other creditors. Thesecurities having been realized, the plaintiff alleged that there wasstill due to him Rs. 29,319.92. He moved for a notice on thedefendants to showcause why awritofexecutionshould not
issue against them for the recovery of that amount.
1 The defendants showed cause, and as a preliminary objectionurged that plaintiff Letchemanan could not proceed with theaction as his principals were dead.
Letchemanan admitted that the judgment against the defendantswas signed in favour of Me. A. Ru. A. Ru. Letchemanan Chetty,and that the firm of Me. A. Ru. A. Ru. consisted of two personsnamed Ramanathan and Narayanan; that Letchemanan was theiragent; that the two partners were now dead;that theexecutors of
Ramanathan’s estate were tradingunderthestyle ofMe. A. Ru.
A. Ru. ; and thatLetchemananhadnoauthorityfrom those
executors to continue this action.
The District Judge disallowed plaintiff’s application for a writof execution on the ground that Letchemanan could no longerrepresent the firm for whom the present action was raised.
The plaintiff appealed.
The case came on for argument before Layard, C.J., Middleton,J., and Grenier, A.J., on the 3rd November, 1903.*
Sampayo, K. C., with H. J. C. Pereira and F. M. de Saram, forplaintiff, appellant.
Domhorat, K. C., with W. Pereira, K. C., and Wordaworth, fordefendant, respondent.
Cur. adv. vvlt.
10th November, 1903. Layabd, C.J.—
The plaintiff brought this action, styling himself in the plaintas Meyna Ana Runa Ana Runa Letchemanan Chetty, to recoverfrom the defendants on a promissory note made by them in hisfavour the sum of Rs. 40,000 and interest.
On the 2nd May! 1894, a decree was entered in favour of theplaintiff as follows: —
“ This action coming on for final disposal before D. F. Browne,Ilsq., the District Judge of Colombo, on the 23rd and 28th days ofApril, 1894, in the presence of the Hon. the Attorney-Generalwith Mr. Advocate Loos, instructed by Messrs. Loos and VanCuylenberg, Proctors, on the part of the plaintiff, and of Messrs.Dornhorst and Van Langenberg, Advocates, instructed by Mr.Arthur Alvis, Proctor, on the part of the defendant:It is
ordered and decreed that the defendants do jointly and severally
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pay to the plaintiff the sum of Rs. 40,000, with interest thereon 1903.at the rate of 9 per cent, per annum from 1st February, 1894, till November io.payment in full. And it is further decreed that the defendants do Layabd, C.J.jointly and severally pay to the plaintiff his costs of thiB action.”
On the 21st May, 1894, a writ of execution was issued on theplaintiff’s application; execution under the writ, however, wasnot proceeded with at the request of the defendants, as an agree-ment was entered into between the plaintiff, the defendants, andcertain other creditors of the defendants for the assignment ofcertain securities to the plaintiff and the other creditors.
These securities, the plaintiff alleges, and the defendants admit,have been realized, and the plaintiff alleges that after crediting thedefendants with the amount realized as his proportion of thesecurities, there was and is still due to him a balance sum ofRs. 29,319.92, with interest thereon at 9 per cent, per annumhorn the 14th August, 1898.
On the 14th March, 1903, plaintiff moved for a notice ondefendants to show cause why writ of execution to recover thatamount should not issue.
Notice was allowed. No motion was made to issue writ,however, until the 1st September, 1903.
In the interval, on 24th April, 1903, the first defendantcommenced proceedings, under section 349 of the Civil ProcedureCode, to have the adjustment set out in his affidavit, dated the20th of that month, recorded as satisfied.
On the 8th September last the issue of the writ was disallowedby the District Judge on the ground that Letchemanan Chettv(the plaintiff), in the witness-box on the 1st September, 1903,admitted that he instituted this action as the agent of RamanathanChetty, who was a principal in the firm of Mevna Ana Runa AnaRuna, and that the judgment in the case must be regarded as onein favour of Meyna Ana Runa Ana Runa, and that Meyna AnaRuna Ana Runa is the real plaintiff, and that, as Ramanathan is ■dead, the plaintiff no longer represents the firm Meyna Ana RunaAna Runa.
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The plaintiff has appealed against that judgment, and thequestion to be decided is, Who is the plaintiff on the record, and inwhose favour is the judgment and decree ?
Up to the 1st September Letchemanan Chetty was treated bythe defendants and the District Court as the plaintiff, and thedefendants from the date of the institution of the action in 1894until September, 1903, recognized Letchemanan Chetty as theircreditor both on the original promissory note sued on and on thejudgment and decree of the same year.
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1903. The District Judge has decided that this was all a mistake, andJfovember 10. that Letchemanan Chetty is not the real plaintiff, but that tileIayawTc J. members of the firm Meyna Ana Runa Aria Buna are the1 realplaintiffs on the record. Is he right ?
There is no provision in our Procedure Code, such as there is inthe English rules, made under the Judicature Act, which authorizeany two or more persons claiming as co-partners and carrying onbusiness within the jurisdiction of the High Court in England tosue in the name of the firm of which such partners were membersat the time of the accruing of the cause of action.
These rules are not binding on us in Ceylon; they are no part ofthe general law of partnership; the rule in England itsejlf. islimited to the case of persons carrying on business within thejurisdiction of. the English High Court.
Our Procedure Code has no similar provision, neither does it pro-vide, as the English rules do, for the discovery of the individualscomposing the firm when an action is instituted in the name of a firm.
According to our procedure, where persons claim as co-partnersthey must appear individually in their own names, and if they obtainjudgment it must be entered up in favour of them individually.
It is impossible for us to hold that the judgment was entered upin 1894 in favour of some unknown individual or individualstrading under the name and style of Meyna Ana Buna AnaRuna. The contention of respondents is that by prefixing theinitials M. A. R. A. R. to his name Letchemanan Chetty gave him-self out to the world as agent of a firm.
No doubt our Court has recognized ever since 1866 that a Chettywho signs his principal’s initials binds his principal, provided theagent had 'authority to bind his principal (Rdmandthan’s Reports,1863-1868,- p. 209).
He could not, however, as pointed out by Chief Justice Cayleyin the case of Letchimen Chetty v. Pena Car pen Chetty(11 S. C. R. 193), bind his principal by so doing unless he hadexpress authority to do so..
Chief Justice Cayley also says in his judgment in that case thatas long as the agent continued to be the agent of his principalbis principal’s initials were as much a portion of his name as itwas of the principal’s.
It is argued that the defendants, being Tamil, must have knownwhen they made the promissory note in plaintiff’s favour, thattheir creditor was not the plaintiff, but the firm Meyna Ana RunaAna Runa. This certainly does not accord with Chief JusticeCayley’s judgment above referred to, because he lays down that hisprincipal’s initials were as much portion of the agent’s name asthey were of the principal’s, as long as he continued agent oi the
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principal. Further, in a later judgment he holds that the 1903-initials may be simply designative or they may denote agency; November 10.that is, they may either be part of the personal name which the Layabd, C.J.man chooses to adopt for the ordinary purposes of life or business,or they may indicate that he intends to represent himself as theagent of some firm or individual carrying on trade, under thestyle of those initials (4 S. C. C. 92).
■ To bring home knowledge to a Tamil Mr. Berwick, in ajudgment reported at the foot of Chief Justice Cayley’s judgment;says: “ The Tamil must know a signatory’s patronymic, and, ifknowing it, he finds some other name prefixed to the individualnaipe in the signature, he has notice that that signature is made ina representative and not in a personal capacity.”
There is nothing to show in this case that the defendants knewwhat the patronymic of the plaintiff was; and we cannot assumethat they did.
Their conduct throughout the case shows that they eitherthought they were promising to pay Letchemanan Chetty themoney, or that they knew Letchemanan was agent for some undis-closed principal. If they contracted with Letchemanan Chettypersonally, he was entitled to sue; if, on the other hand, as nowappears from Letchemanan Chetty’s evidence, he was acting for anundisclosed principal and the defendants contracted with him inhis own name, he can sue the defendants.
He did so sue, and obtained judgment.
It appears to me that even if .he had not the original right tosue, the contract has passed into a judgment, and the defendantscannot how raise the objection that on the contract he could not sue.
In the converse case Lord Tenterden in Thompson v. Davenport(9 B. & G. 78) said: “ If at the time the seller knew not only thatthe person who is nominally dealing with him is not principalbut agent, but also knows who the principal is, and notwithstand-ing that knowledge chooses to make his agent his debtor, then,according to Addison v. Gandasequi (4 Taunt. 574) and Paterson v.
Gandasequi (15 East 62), the seller cannot afterwards, on failureof the agent, turn round and charge the principal, having oncemade his election at the time when he had the power ofchoosing between one and the other.”
In Kendall v. Hamilton (4 App. Cases, 504,) Lord Cairns said:
“ Now I take it to be clear that where an agent contracts in hisown name for an undisclosed principal the person with whom hecontracts may sue the agent or he may sue the principal, butif he sues the agent and recovers judgment he cannot afterwardssue the principal, even although judgment does hot result insatisfaction of the debt.”
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1908. If the agent can be sued by the other party to the contract heNovember 10. oan himself Bue such other party.
Latpabd, C.J. I think it is a well-established rule of law that, where a contractnot under seal is made with an agent in his own name for anundisclosed principal, either the agent or the principal may sueon it (Sims & Bond, 5 B. & Ad. 289), the defendant in thelatter case being entitled to be placed in the same situation at thetime of the disclosure of the real principal as if had beep acontracting party.
It was suggested in the course of argument that Cayley,C.J., in a judgment reported in 4 8. C. C. Ill, had departedfrom the ruling of Lord Cairns in the judgment above cited, andI was rather inclined during the argument to think he had. Ifind that I was mistaken.
Cayley, C.J., in that case held that the principals were liable tobe sued notwithstanding that the plaintiff had brought an actionagainst the agent to recover the same claim and had been non-suited.
The plaintiff had not recovered judgment against the agent.That is consistent with Lord Cairns’ judgment, for the words that heuses are not merely “ if he sues the agent and proceeds to judgment,”but “ if he recovers judgment against the agent.” On reading ChiefJustice Cayley’s judgment I sent for the record in D. C., Colombo,76,900, and find on reference to it that the plaintiff wasnon-suited in that case, although he sued the agent. attaching theinitials of his principals in front of the agent’s' own name, andthough the defendant’s agent signed the proxy with the initialsof his principals in front of his own name, on the ground that theplaintiff had entered into the contract with the principals andthey were the proper parties to be sued—thus establishing, what•I have earlier in this judgment pointed out, that according to ourprocedure the individual partners must, to be bound by a judg-ment, be actual parties to the suit, and cannot be reached throughtheir agent if he is sued with their initials in front of his name,and that such an action was merely one against the agent personally.
It was further attempted to support the judgment of theDistrict Judge by ‘reference to a passage in a judgment ofBonser, C.J., in 5 N. L. R. 266, in which he seems to laydown that where .the plaintiff, one Meyappa, sued prefixing tohis initials certain Tamil initial letters, it was an action by thefirm who earned on business under those initials,
I have looked into the District Court record of the case in whichBonser, C.J., gave that judgment in appeal, and I cannot find thatthere was any material to show that Meyappa was agent for anyfirm untO the defendant’s affidavit was filed.
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I am inclined to think that Bonser, C.J., could not have 1803.meant to hold that the action was one of the firm.November 10.
If he did, for the reason given by me above, I cannot agree with ^vabd.O.J.
him._His opinion is not in accordance with that of the previousjudgments of this Court.
however, think, it was obviously right and just to let thedefendants in to defend in that case when it became clear, asstated by Bonser, C.J., tbat Meyappa the plaintiff was the agent ofthe firm,. and the defendants swore in their affidavit that he wasthe attorney of the firm, and that the debt he was suing for was adebt due to the firm, and that from the same firm there was due tothe defendants a large sum of money.
In my opinion the order of the District Judge is wrong; theplaintiff is entitled to enforce the judgment in his favour. I canfind no authority for allowing the defendants to go behind thatjudgment.
The order of the District Judge must be set aside and the casebe returned to the District Court for the Judge to decide on themerits of the cross applications of the plaintiff, on the one hand,and of the first defendant, on the other hand. -The appellant isentitled to his costs of appeal.
Middleton, J.—.
I agree with my lord that it is impossible to say that Letche-manan Chetty is not the plaintiff in the record, and he gotjudgment and received part payment before it was disclosed to thedefendants otherwise than by inference from the letters preced-ing this name that he was an agent for an undisclosed principal.
In my opinion this decree, with a certificate of payment andthe possession of the promissory note • which would follow upon" satisfaction of the judgment, would be a good defence to any claimthat might be mads by the executors- of the plaintiff’s deceasedprincipals against the defendants..
The plaintiff by his possession of the promissory note wouldseem to me to have implied authority from his principals to sue,recover, and give receipts for payments, and this authority, whichhas developed into a judgment in his favour personally, in myopinion would not be terminated until the completion of theproceedings for which it had been delegated to him.
The defendants would, therefore, be discharged by payment tohim (Elliot v. Merryman, White <£ Tudor, Leading Cases, 896;Bam 78).
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1003. I think, therefore, plaintiff is entitled to enforce his judgment,November io. an(j agree that the order of the District Court should be set aside
Middleton, with costs.
J.
Grenikr, A.J.—
I entirely agree. I can see no legal or equitable grounds uponwhich the appellant can successfully resist the plaintiff’s appli-cation for re-issue of writ. The appellant had acknowledged theplaintiff as his creditor up to the time the application was made,and he should not be heard to say that he is not liable to paywhatever is due at present on the promissory note simply becausethe plaintiff’s principals are dead.»
Upon the case going back to the District Court for the consider-ation of the cross applications of the plaintiff and the firstdefendant, it was contended for the defendants that after theamount of the judgment in favour of the plaintiff had beenreduced to Rs. 29,319.92 there was an agreement in writingnotarially entered into between the plaintiff and defendants insupersession of the decree, and that plaintiff was therefore notentitled to apply for execution on the original decree. It wasurged that his remedy was by action on the agreement.
The District Judge, Mr. J. Grenier, following the judgment ofWithers, J., in C. R., Colombo, 5,552 (3 S. 0. R. 168), held thatplaintiff could not be allowed to issue execution on the originaldecree, butthat his remedyshouldbe by actionuponthe
agreement.
The plaintiff appealed.
The casecame on for argumentbefore Wendt,J.,and
Middleton, J., on the 31st August, 1904.
M. de Saram, for plaintiff, appellant.
' Domhorst, K.C., for defendant, respondent.
Cur. adv. vult.
12th October, 1904. Wendt, J.—
This is an appeal* against the {district Judge's refusal to issueexecution upon the decree in plaintiff’s favour. Briefly stated,the ground of the refusal is that the decree was superseded by asubsequent agreement between plaintiff and defendants. Thedecree was dated 2nd May, 1894, and condemned defendants topay plaintiffRs. 40,000, withinterestat 9 per cent,from1st
February, 1894, and costs. Awrit ofexecution issuedoff21st
May, 1894, but was not put in force in consequence of the arrange^inent arrived at between the parties and embodied in a notarial
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agreement dated 7th June,1894. Inthe interval plaintiff had1904.
lent defendants a further sum of Rs. 10,000, making their total Octoter 19.debt to him Rs. 60,000;and thedefendants were likewiseWknBT, 3.
indebted to one ArunasalemChetty inRs. 30,000, to one Colan-
davel Chetty in Rs. 30,000, and to one Cuppan Chetty inRs. 20,000, being an aggregate debt of Rs. 130,000 “ for principal,interest, and costs.” The agreement was between the defendantsof the one part, and the plaintiff and the three other Chetties ofthe other part. It recitedthe debtsin the way I have just
set forth, and also the fact that it had been agreed by and betweenthe part&s that the said claims due and payable by the defendantsshould be settled in the manner following, viz., that the debtsshould in future bear interest at 11 per cent.; that the defend-ant should assign the Chetties certain specified securities; thattha four Chetties should apply all sums realized from suchsecurities in reduction of the debt of Rs. 130,000 and interestthereon in proportion to the respective sums due and payable to•the Chetties respectively—the interest to be first discharged' andthe surplus applied in reduction of principal in the proportionsaforesaid; and that the Chetties should not “ sue, arrest, attach,,seize, levy, or prosecute the defendants or their lands, goods, orchattels for and on account' 'of the said sum of money or -of anypart or balance thereof due to them respectively, so long as thesaid securities or sums of money or the benefits and advantagesundfer the. said recited deeds to be assigned as aforesaid shall nothave been realized. Provided that in the event of the said sumsof money, securities, and benefits and advantages to be assigned asaforesaid being found inadequate or insufficient after all reason-able and legal steps have been taken by the said Chetties, thenthe said Chetties or their respective aforewritten shall be atliberty to recover from the defendants the said sum of Rs. 130,000,or auy balance thereof or interest thereon respectively as shallthen be found due and payable by them.”
On 16th March, 1903, the plaintiff presented the usual applica-tion for execution in respect of a balance of Rs. 29,319.82, withinterest thereon at 9 per cent, from 14th August, 1898, showingin the " adjustment ” colutthn a payment ,of Rs. 10,680.68 onaccount of principal and interest up to 14th August, 1898. Theapplication was accompanied by an affidavit of the plaintiffsetting forth the agreement and stating that, the securities men-tioned having been duly assigned to the Chetties, they had realizedtherefrom the sum of Rs. 113,431, of which the proportion due toreceived by plaintiff was Rs. 43,627.30, which left a balance
R&. 20,312.82 due by defendants on the decree, with interest at9 per cent, from 14th August, 1898. The affidavit also stated
—J. S. B 6920 (4/51)
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1004.
October i2.Wbotot, J.
subsequent facts connected with proceedings against the adminis-trator of one C. Tam by ah, the debtor on certain of the securitiesassigned by defendants.
By way of showing cause against the plaintiff's application thedefendants filed the affidavit of the first defendant, which«xpressly admitted all the facts stated in plaintiff’s affidavit upto the realization of the securities and the sums so produced, anddid not deny the balance deposed to by plaintiff as still due. Itproceeded to state that on 8th January, 1902, an agreement wascome to between plaintiff and defendants and another person notnamed, whereby plaintiff was to be paid Rs. 11,573.25 in fullsettlement of all moneys due to him, and plaintiff was to conveyto one S. Tambyah certain land., First defendant further deposedto payment or satisfaction of this last-mentioned sum save as toRs. 2,000, but averred that plaintiff had failed to convey the landas agreed. On 24th April. 1903, before plaintiff's application wasdiscussed, the defendants applied, under section 349 of the Code,to have the compromise just mentioned recorded as certified asan “ adjustment ” of the decree. In September, 1903, plaintiff’sapplication was dismissed, no order being made on defendants’application, but the Supreme Court set aside this dismissal andsent the case back for the District Court to decide on the meritsof the respective applications of plaintiff and defendants.
The two applications having been discussed again, the learnedDistrict .Judge, on 15th December, 1903, dismissed plaintiff’sapplication, professing to follow the decision in the case of -The Bristol Hotel Company v. Power (3 8. C. B. 168). He heldthat the agreement of 7th June, 1894, superseded the decree,because, after it was entered into, plaintiff had not taken anysteps by way of execution until March, 1903, and because theagreement nowhere said that, in default of the defendantspaying any amount that might be found due at any time after itsexecution, plaintiff was at liberty to issue execution as if theoriginal decree was still in existence and operative as a decree.As to the first of these grounds, the time necessarily occupied, in. realizing the assigned securities, in my opinion, explains thedelay consistently with the continuance in force of the decree.'As to the second ground, I think the agreement, read as a whole,does contemplate the future execution of the decree. It impliesth^ existence of decrees in favour of the creditors, and providesthat they shall not sue the debtors (the term “ sue ” beingappropriate to a new action), arrest, attach, seize, levy their landsgoods, or chattels (words appropriate to the execution of decreesalready obtained) until the securities shall have been realized;and that in case of such securities proving inadequate the
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i •*
creditors shall be at liberty to “ recover ” the balafice of the debt. 1904.
I do not see why should we construe the term “ recover ” as OcuAerli-applying to a new action only and not to the enforcement of Wendt, 3.decrees already obtained, and towards the satisfaction of whichthe securities were to be applied.
The District Judge further quoted the words of Withers, J.,in the ease cited, to the effect that the decree-holder, if he wishedto exeoute the. agreement as a decree, must have it certifiedof record as> an adjustment under section 349,. and held thatas plaintiff was not applying to have the present agreement socertified he must fail. I do not, however, see why the plaintiff’sapplication for execution for the balance debt should not beregarded as embracing an application to have the agreementcertified. No special procedure is prescribed for the latterapplication:the decree-holder' is merely to “ certify ” the
adjustment to the Court. It might well be by motion. Thepresent application gives the Court the fullest information of thefacts, sets out the agreement, and what was done in pursuance ofit, and shows a balance due upon the decree, for which executionis prayed. I think it might be, and ought to be, regarded ascomprising both the certificate and an application for execution,upon the footing of it. And if it is so regarded, I think nothinghas been shown which would disentitle plainiff to his writ ofexecution, unless, indeed, defendants are able to establish thelater compromise which they set up.
It was argued in appeal that the agreement was not an“ adjustment,” because it wa6 not confined to the parties to thedecree but brought in outsiders, and also because it dealt notonly with the judgment debt, but also with a later debt of'
Bs. 10,000. As to these objections, I do not think that plaintiffhas surrendered to his co-creditors any part of his. rights underthe decree. The agreement in fact simply amounts to this..
A man has a number of creditors and owns certain securitieswhich he wishes to be applied in payment of his debts. One of.the creditors holds a decree for one claim, and has another claimupon which he has not sued. The parties meet, and it is agreed.that the securities should be assigned to the creditors, and thatuntil they have been realized and applied in due proportionsto the reduction of the debts no legal proceedings should be takenagainst the debtor. The securities are in due course realized, Jihedecree-holder gets his dividend, and duly applies it in reductionof his judgment. Why should he not get -execution for thebalance? He would have been entitled to it if the debtor haddirectly paid him in cash the amount of the dividend, and why
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1WH.
<MfcberJS.Wkndt, J.
should it make a difference that the payment was not simple anddirect but was recovered in a tedious and roundabout way.
For these reasons I think the plaintiff is entitled to executionas prayed for, unless the defendants succeed in having theadjustment which they allege certified under section 349. Thedismissal of plaintiff’s application will, therefore, be set aside,and the case sent back for the hearing and determination ofdefendants’ application. The plaintiff will have his costs up todate in both Courts.
Middleton, J.—
Since the argument in this case I have had an opportunity ofcarefully perusing the agreement of 7th June, 1894, and I agreewith my brother Wendt in the order to be made. I think thedifficulty of realizing the assigned securities may fully accountfor the delay that has occurred.
Looking at the wording of clause 4, it would have beensurplusage to use the five words following the words “ shall notnor will.. notv sue, ” if the ■ agreement had not intended thatthe then" editing rights'''of all the different creditors were -tobe suspended till the realization of the securities was complete.
It was not necessary to use these words relating to executionin order to conserve' the rights of the other creditors, who, if theycould sue, would have execution as a matter of course uponjudgment. I should construe that clause, therefore, as having incontemplation the suspension of the plaintiff’s right to executionon his judgment, and that of the other creditors to sue in theusual way until the realization of the securities.
The word “ recover ” also is wide enough to include a levyingin execution and suing.
If the agreement had been intended to operate in satisfactionor substitution of the plaintiff’s -judgment, I am at a loss tounderstand why the parties did not expressly declare this.
I see no objection to the application for execution of thebalance of plaintiff’s debt, which is apparently admitted, beingtreated as embracing an application to have the agreementcertified.