002-NLR-NLR-V-17-LIVERA-v.-GONSALVES.pdf
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Pregent : Wood Benton A.C.J.
LIVERA v. GONSALVES.
258—C. B. Negombo, 20,357.
Marriage brokage contract—Illegal. .
An agreement with a matrimonial agent for the payment of areward upon the completion of a marriage brought about by theagent cannot be enforced by an action at law.
facts appear from the judgment.
W. Jayewardene, for the plaintiff, appellant.—Under the newStamp Ordinance the agreement sued upon may be stamped inCourt. See section 86 of Ordinance No. 22 of 1909. The original was.lost in Court. If the document was not lost in Court, the plaintiffcould have paid the duty and sued on the document. The plaintiffshould not suffer if the original was lost in Court'. An agreementof this kind is not illegal under the Roman-Dutch law and our law.See Van der Keesel 482. Abdul Hameed v. Peer Cando et al. 1 is n»authority to the contrary. This point was not expressly decidedin that case. It is a very common custom in Ceylon to employbrokers for tile purpose of arranging marriages. The Btate ofCeylon society is far different from English society.
de Zoysa (with him. E. T. de Silva), for the defendant, re-spondent.—In Abdul Hameed v. Peer Cando et al.1 It was concededthat a contract of this kind would be illegal. It is on the groundthat the agreement is against public policy that it is not enforciblein England. The same considerations would apply to Ceylon.Counsel cited 3 Maas dory 18. The agreement sued upon wasinadmissible in evidence. The claim is therefore prescribed.
W. Jayewardene, in reply.
[Canekeratnei, as amicus curia, brought to the Court’s noticeKing v. Qrey. 2]
Cur. ado. vvlt.
August 8, 1913. Wood Renton A.C.J.—
The plaintiff in this case seeks to recover a sum of Rs. 300 from thedefendant on an agreement in writing by the latter to pay him thatamount if he succeeded in bringing about a marriage between him'and a certain lady, who is named in the agreement, with a dowry of
1 (1911) IS N. L. R. 91.* 24 S. O. S44.
IMS*
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1913.
Wood
Ronton
A4U.
IAwrav.
Gonsalves
Bs. 5,000.. The plaintiff was successful In bringing about the*marriage. He now seeks .to recover the stipulated consideration.The learned Commissioner has dismissed the action, holding that,because the original written agreement was not properly stamped,and is lost, the claim must be considered as one on an unwrittenpromise, and that it is now barred by prescription. I do notconsider it necessary to express an opinion on thi6 point, because Ithink .that the appeal must fail upon another ground. The contract,which forms the subject of the suit, is clearly one that would be*described in English law as a marriage brokage contract, and inEngland no action of thi6 kind could be successfully maintained.See the case of Hermann v, Charlesworth.1 The defendant raisedin his answer the plea that the action was not maintainable in Ceylon.But the Commissioner of Bequests has over-ruled that contentionon the strength of a statement by Van der Keessel on the authorityof Bynkershoek (Quastiones Juris Publici 2 and 5) to the effectthat an agreement with a matrimonial agent for the payment of areward upon the completion of a marriage brought about by hisagent may be enforced by an action at law. There is no reportedcase in which that principle has been accepted in Ceylon, and thereare dicta in the recent case of Abdul Hameed v. Peer Gando et at2which point strongly in the contrary direction. After the conclusionof' the argument my attention was called by Mr. Canekeratneas amicus curia, and I am indebted to the kindness of Mr. E., W.Jayewardene for the same reference, to the case of King v. Grey, 3in which the whole question is discussed, and the conclusion arrivedat is that such an action as Van der Keessel and Bynkershoek con-templated could not be maintained in the Courts of Cape Colony. Inview of the absence of any direct authority to the contrary here inCeylon, of the dicta of Sir Alfred Lasceljes and Sir John Middletonin* the case of Abdul Hameed v. Peer Gando et al. 2 and of thedecision in King ti. Grey,2 I. think that we cannot do better thanbring the law of Ceylon into line with that of South Africa on thisimportant question.
I hold that the action is not maintainable, and. the decision of theCommissioner of Bequests must be affirmed with costs.
Affirmed.
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1 {1906) 2 K. B.123.• (1911} IS N. L. R. 91