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Aug. SO, 1910
Present: Mr. Justice Middleton.
MANUEL ISTAKY v. SINNATAMBY et al.
C. R.t Lztticaloa, 13,863.
Joint promissory note—Liability of maker for the entire debt.
Each of the makers of a joint promissory note is liable for thewhole debt.
The meaning of the word “ joint ’* under the English Law isentirely different from that which the word implies under theBoman-Dutch Law.
The liability of a maker of a joint note is governed by the EnglishLaw, and not the Koman-Duteh Law
“ Where several persons make a joint contract, each is liable forthe whole, although the contract be joint, and all must be suedtogether during their joint lives, for a judgment obtained againstone, although unsatisfied, is a bar to an action against the others,either in respect of a joint debt or in respect of a joint tort/*
N this case plaintiff sued the two defendants on a joint promissorynote granted by them and obtained a joint decree against them,
whereby it was “ ordered and decreed that the said defendants dopay .to the said plaintiff the sum of Rs. 276.82, with legal interestand costs. '* The first defendant on December 30, 1909, brought intoCourt his proportionate share of the judgment and all the costs, andmoved that the writ of execution against the property of the .firstdefendant be recalled. This motion was allowed.On February
1910, plaintiff’s proctor moved for an order of payment infavour of his client to draw the sum deposited in the case in partsatisfaction of his claim, and on February 7 order of piiyment wasissued in favour of the plaintiff.
• On March *24, 1910, plaintiff’s proctor moved for a notice on thefirst defendant to show cause why the property seized should notbe sold for the recovery of the balance amount due on the decree.
On May 12, after hearing the parties, the learned Commissionerdecided that the holder of a decree, under which several personsare jointly liable, could proceed against any one of the debtors.. andrefused to interfere with the seizure and sale of first defendant’sproperty.
The first defendant, appealed.
Vernon Grenier, for the appellant.—The decree must be inter-preted to be a decree ordering each party to pay his proportionateshare. The note sued upon was a joint promissory note. On a
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joint contract each co-debtor is liable for his share of debt, and Aug.30,1910not for the whole. (.Lindsay v. Oriental Bank Corporation et al.,1 ManudChinnatamby v. Chunmugam et al.2) The cases relied upon by the Istakyv.Commissioner (see Pereira's Laws of Ceylon, vol. I., pp. 324 and Sinnaiamb9326) are beside the point. [Middleton J.—But the English Lawapplies in this case; and under a joint contract, according to theEnglish Law, each co-debtor is liable to his creditor for the fullamount.]
H. A. Jayewardene, for the respondent.—-The English Lawgoverns this case, and not the Roman-Dutch Law.
August SO, 1910. Middleton J.—
This is an appeal from an order made by the Commissioner ofRequests declining to stay the sale of the first defendant's propertyupon a writ in a judgment in this action. The action is against twodefendants on a promissory note, and judgment was given againstthem. After judgment on December 30, 1909, the first defendant byhis proctor moved to be allowed to pay into Court his proportionateshare of the judgment and all the costs, and moved that his propertybe released from seizure, and that the Fiscal be directed not to sell it.This motion was allowed. Subsequently, on May 12, 1910, it wasdesired to obtain execution against the further property of the firstdefendant, and his property was seized; the Judge was applied to,but refused to interfere, and this appeal was made. It is contendedfor the appellant that under the Bills of Exchange Act, section 85,sub-section (2), that where a note runs 11 We promise to pay," andis' signed by two or more persons, it is. deemed to be a joint noteonly in the sense implied under the Roman-Putch Law; that is tosay, that each party on the note is liable only for his proportionateshare of the whole amount. This, however, is not the meaning ofthe word "joint " under the English Law; and this is the law thatis necessary to be applied in actions on Bills of Exchange. InBichards v. Heather,3 Abbott J. says that the Law of England is," Where several persons make a joint contract, each is liable for thewhole, although the contract be joint, and all must be sued togetherduring their. joint lives, for a judgment obtained against one,although unsatisfied, is a bar to an action against the others, eitherin respect of a joint debt or in respect of a joint tort." One jointdebtor who has been compelled to pay the whole of the joint debtis entitled to the contribution of the other. So that it will be seenthat the meaning of the word “joint" in England is entirelydifferent from that which the word implies under the Roman-DutchLaw. This is not a point which is raised for the first time here;
8 (1909) 1 Our. L. R. 131.
8 (1974* Bam. dr Aid. 35.
• 1 Ram. 1960-1862, 54.
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Aug 30,1010 within my experience the same question has arisen on other mattersMtomston “ Previous cases. There is a contention that the plaintiff by agree-J. ing to what the first defendant proposed on December 30, 1909,Manvel and drawing out of Court the proportionate share of the debt whichletahy v. the first defendant paid him, has waived his rights to recover theSmnatamby p0rti0n 0f the debt against the first defendant. In my opinion thereis nothing in the record to show that any such waiver as is reliedupon has occurred. The appeal must be dismissed with costs, andthe first defendant must be left to his remedy of contribution againsthis co-debtor.
MANUEL ISTAKY v. SINNATAMBY et al