047-NLR-NLR-V-01-LOWE-v.-POLORIS.pdf
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1894.
October 4,11.
LOWE v. POLORIS.D. C., CM law, 608.
Promissory note—Illegal consideration—Charge of criminal misappropriationagainst defendant—Promise not to press such charge, part considerationfor note.
P, who had been oharged before a Police Court with criminal mia-appropri&tlon of goods entrusted to him by L, granted to L, during thepending of such case, a promissory note for part of the value of suchgoods and paid him the balance in cash, obtaining at the same time anacknowledgment from L that he had received in full the amount dueto him " from P, the defendant in P. C. case No. 3,664."
Held that, as the debt due was not the only consideration for the note,but the agreement also not to prosecute any further the criminal chargethen pending, the note was tainted with a bad consideration, andwas void.
A CTION on a promissory note. Defendant, inter alia, pleadedthat he received no consideration, and that “ plaintiff“ obtained the said document by fraud, coercion, and duress.”The District Judge gave judgment for plaintiff, seeing no reasonto doubt his statement that the promissory note was granted inconsequence of defendant not accounting to the plaintiff for a
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quantity of copperah entrusted by him to the defendant fordelivery at Colombo ; that the defendant paid plaintiff a part ofthe value of the eopperah in cash, and for the balance grantedthe promissory note; and that thereupon plaintiff withdrew acriminal charge of misappropriation which he had brought againstthe defendant, and which was then pending in court.
Defendant appealed.
4th October, 1894.—Stmeviratne appeared for appellant, andAserappa for plaintiff respond-ni.
Cur. adv. unit.
llt-h October. Lawrie, A.C.J.—
The answer is evasive and disingenuous ; I do not rely on theevidence of the defendant. I examine only the evidence of andthe receipt given by the plaintiff, and in these I find sufficientadmissions and proof that the consideration for this note was atleast in part illegal. It involve.*! the dropping of a criminal prose-cution, for which the i'oiice .Magistrate of the district bad issueda warrant for the apprehension of the first defendant. I think therecan be no doubt that the defendant Polnris and the first accusedPodi Sinno are one and the same person.
The plaintiff says that the first defendant was arrested after hegave the promissory note. This I think may safely be said to beuntrue. He was certainly under arrest when the note was made.It is said by the plaintiff that the consideration for the note was thevalue of copperah which he had charged the first defendant andothers with having misappropriated. The discharge granted by theplaintiff at the 6ame time as the note was made, refers speciallyto the criminal case 3,<>C4: it is an amicable discharge of theamount referred to in that case, and this writing under the handof the plaintiff seems to me to prove clearly that- part of theconsideration for the note was the giving of a document, whichthe parties believed would convince the Magistrate that theplaintiff had settled, and had no further claim against thedefendant.
There may have been a debt due by the first defendant toplaintiff. I assume that there was, but that was not the only con-sideration for the making of the note, that certainly was not theconsideration moving the second defendant (the first defendant’swife) to make it.
The consideration was that the plaintiff would not insist in andcontinue a prosecution for criminal misappropriation which hehad already instituted ; and as I am of opinion that this note istainted with a bad consideration, 1 would set aside and dismissthe action with costs.
1894.
Lawrif.
A.C.J.
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ism. Withers, J.
Withbks, J. This is an action on a promissory note for Ks. 120 with interest,alleged to have been made by the defendants to plaintiff atMarawila on the 28th day of August, 1802.
The answer did not deny the making of the note, but raisedevery possible objection against the makers being adjudged topay the amount. The principal pleas raised are illegality of con-sideration and duress.
These defences are imperfectly pleaded, and the answer con-taining them should have been returned for amendment, or, ifthe party would not amend these pleas, should have been struckout.
The 75th section of the Code requires that the circumstances ofthe case upon which the defendant means to rely for his defenceshould be stated. The answer should have disclosed the circum-stances which constituted “duress,” or made the consideration“ illegal.”
The plaintiff, however, made no objection to the form of theanswer. He no doubt understood the drift of it, and he let thecase go to trial without any settlement of issues.
In the argument in appeal, the two defences of duress andillegal consideration were so mixed up together that I was notquite able to apprehend the line of defence.
1 was not satisfied that the plea of duress had been made out,and so 1 address myself to the plea of illegal consideration. It isadmitted that the plaintiff charged the defendant before thePolice Magistrate with a criminal offence relating to a quantityof copperah, which he alleges he entrusted the first defendant withto take to Colombo for Bale. Upon that charge a warrant ofarreBt waB issued by the Police Magistrate, and this accused wasarrested by one Sebastian, Police Headman of Marawila.
It is admitted that this note was demanded by the plaintiff ofthe defendant on account of the copperah which was the subjectof the criminal complaint. Whether this note was made beforeor after the arrest by the police headman is not clear from theevidence. Plaintiff says it was before, defendant says it wasafter, the arrest.
On the same day, however, as the note was given by the defend-ant to the plaintiff, a receipt was granted by the plaintiff to thedefendant, the correct translation of which is said to be as fol-lows:—“Received amicably on the 28th August the amount in“full due tome from Kuruppu Arachchige Peloris Appu, of“Wennappnwa, the defendant in case No. 8,(164, and his wife“ Catherine Hamy. Signed Panlu” (»>., plaintiff).
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Plaintiff, who gave this receipt, speaks of it in these words: “ I 1894.
“ gave a receipt to the defendant. It was a discharge, on condi- Witbkbs, j.“tion that I would not proceed further with the case against“him." The case referred to is No. 3,664, and is the criminalmatter above mentioned.
After careful consideration of the evidence I find it impossiblenot to regard the demand for the note, the making it, and thegranting of the receipt, as one transaction, and impossible not tosay that a part of the consideration for the making of the notewas the promise not to prosecute the first defendant any further inthe criminal case No. 3,664.
That being so, the agreement not to prosecute clearly vitiatesthe whole transaction, and renders the promissory note void.
The judgment should be set aside, and plaintiff’s actiondismissed with costs.
Action dismissed.
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